Broken Record – Judgment in Favor of Scuba-Diving Instructor in Death Case Upheld (TX)


DeWolf v. Kohler (Texas)

In 2008, Terry Sean DeWolf died while scuba diving more than fifty miles off the coast of Massachusetts.  Initially, the medical examiner identified the cause of death as drowning, but later revised the conclusion to reflect that he died of natural causes (myocarditis).  Terry’ wife thereafter filed a lawsuit against numerous defendants, including (among others) the boat used for the dive, the individual who chartered the boat (Kohler), a television network which had carried a program on which Kohler had appeared, the dive-training company from which Kohler obtained credentials as a scuba-diving instructor, and the scuba-equipment manufacturer that manufactured the rebreather that Terry had used during the dive.  The wife alleged several claims, including violations of the Deceptive Trade Practices Consumer Protection Act, the federal Death on the High Seas Act, and other state law claims.

Numerous motions were filed in this complicated lawsuit, and the trial court addressed many issues relating to personal jurisdiction and statutes of limitation.  Ultimately, Kohler was the only remaining defendant and the case proceeded to trial.  Following a jury trial, the court entered judgment in favor of the defendant, and the wife appealed.  On appeal, the wife challenged instructions that were given to the jury.

First, she claimed that the court should have instructed the jury about the defendant’s potential liability for a “voluntarily assumed undertaking” (i.e. [1] the defendant undertook to perform services it know or should have known were necessary for the plaintiff’s protection, [2] the defendant failed to exercise reasonable care in performing those services, and [3] either the plaintiff relied upon the defendant’s performance or the defendant’s performance increased the plaintiff’s risk of harm).  However, the Court of Appeals of Texas noted that the wife had failed to present any evidence of the second or third elements, and the “partial reporter’s record” submitted by the wife on appeal was incomplete and did not indicate a reversible error.

Second, the wife contended that the trial court erred by including a question in which the jury was asked to allocate responsibility for Terry’s death among Terry, Kohler, and two non-parties.  She claimed there was no evidence to suggest that Terry or the two non-parties were responsible for the death.  However, again the Court cited to the “partial state of the record” submitted by the wife on appeal, and indicated that the Court “must presume there was such evidence.  Additionally, the Court explained that the jury was asked not to answer the question regarding allocation of responsibility unless it found “that a wrongful act, neglect or default of a vessel or person proximately caused the death.”  Since the jury did not find anyone responsible for Terry’s death, the allocation question never became an issue.

Third, the wife argued that the trial court erred in refusing to give the jury her proposed jury instruction as follows: “Do not consider any testimony as to whether or not the Plaintiffs agreed to release the Defendant Kohler or any party from liability.”  Setting aside that the Court noted that it could not conclude there was reversible error on this point due to the lack of a complete record on appeal, the Court stated that because the jury failed to find that Kohler was responsible for Terry’s death (and was therefore not liable), “the validity or invalidity of the release from liability [did] not affect the outcome of the case.”

Finally, the wife also complained about improper jury argument concerning the weight or evidence, and the erroneous admission of evidence in the form of the release of liability, which she claimed to be void.  In both instances, the Court presumed that the omitted portions of the record supported the judgment.  The wife had claimed that the release signed by Terry was void, but she did not include the release in the reporter’s record or properly refer to a ruling by the trial court on the issue.  Additionally, because the jury failed to find that Kohler caused Terry’s, the release did not affect the outcome of the case.

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