Filed 2/22/24 Chapman v. Aloha Dive Shop CA2/2

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION TWO

DONNA CHAPMAN,

Plaintiff and Appellant,

v.

ALOHA DIVE SHOP et al.,

Defendants and

Appellants.

 B322703

 (Los Angeles County

 Super. Ct. No. BC713453)

APPEAL from a judgment of the Superior Court of Los 

Angeles County, Richard L. Fruin, Judge. Affirmed.

Gregory B. Byberg for Plaintiff and Appellant.
2

Pollak, Vida & Barer, Daniel P. Barer, Anna L. Birenbaum; 

Hewitt & Raphael, Stephen L. Hewitt and Patricia M. Bakst for 

Defendants and Appellants. 

* * * * * *

A man in his 50s training to become a SCUBA1 diver died 

soon after resurfacing from his fifth dive in the open ocean. His 

mother sued the dive instructor as well as the dive shop and its 

owner for wrongful death, and a jury awarded her more than $1 

million in damages. The trial court overturned the jury verdict 

after finding no evidence that any gross negligence by the dive 

instructor, the dive shop, or its owner caused the man’s death. 

We independently conclude that there is no substantial evidence 

supporting the element of causation, and thus affirm the trial 

court’s order granting judgment notwithstanding the verdict. 

FACTS AND PROCEDURAL BACKGROUND

I. Facts

In September of 2016, Christopher Gallie (Gallie) went to 

the Aloha Dive Shop (located in the San Fernando Valley) to 

learn how to SCUBA dive. The Aloha Dive Shop was owned and 

operated by Christopher Russello (Russello). This was not the

first time Gallie started this process; he had signed up with a 

different dive shop in 2013, and had obtained a medical clearance 

to dive—which was necessitated by Gallie’s age and selfidentification as a smoker—but he did not provide this clearance 

to the Aloha Dive Shop. Gallie signed a waiver form absolving 

the Aloha Dive Shop and its instructors of liability for anything 

but gross negligence. 

1 SCUBA is an acronym for Self-Contained Underwater 

Breathing Apparatus.
3

SCUBA dive training involves three educational 

components: (1) academic instruction and testing, (2) practice 

dives in a confined body of water like a swimming pool using 

SCUBA equipment, and (3) open water dives in the ocean. A 

certified dive instructor must supervise each step. Deborah

Nusbaum (Nusbaum) acted as Gallie’s dive instructor; because 

Nusbaum was not certified as an instructor until shortly before 

Gallie began the open water dives, Russello supervised her for 

the earlier portions of Gallie’s training. 

Gallie was unable to complete the academic instruction and 

testing online—which should have taken him around five hours

to complete—so Nusbaum instead provided him more than eight 

hours of classroom instruction and testing.

Gallie completed his pool dives.

Gallie completed three ocean dives on his first day of open 

water dives in the Two Harbors area of Catalina Island on 

November 6, 2016. The dives were “uneventful.”

Gallie ventured to the same area of Catalina for a second 

day of open water dives on December 3, 2016.

Russello supervised Gallie’s first dive that day. Because 

Gallie looked “uncomfortable” in the water and “panicked,”

Russello ordered him out of the water and told him, “The dive is 

done.” Gallie insisted that he do another dive, but with 

Nusbaum.

Nusbaum supervised Gallie’s second dive that day. They 

descended in tandem to 20 to 25 feet below the ocean’s surface, 

where Nusbaum tested Gallie’s skills for 15 minutes. Then Gallie 

suddenly “took off” for the bottom of the ocean, descending to 82 

feet below the surface. Nusbaum gave chase; when she caught up 

with him at 82 feet below, she used hand signals to verify that
4

Gallie was “okay.” Nusbaum then started a guided and regulated 

ascent, to ensure that Gallie did not ascend too fast. At first, 

Nusbaum held onto Gallie’s buoyancy device with her hands, but 

eventually let go as they ascended in tandem, face-to-face. When 

they had ascended to 70 feet below the surface, Gallie “bolted” 

upward, “kicking hard” and swimming at full speed to reach the 

surface. Again, Nusbaum gave chase, trying to grab his fins to 

slow or stop him, but he kept kicking.

When Nusbaum reached the ocean’s surface seconds behind 

Gallie, she questioned him to see if he was suffering from 

barotrauma because he had ascended at a faster-thanrecommended pace. Gallie seemed physically fine as well as 

mentally coherent. Nusbaum thus resumed the skills check, 

having Gallie inflate his buoyancy device, swap out his regulator 

for a snorkel, and start to swim for the current line dragging 

behind the dive boat. 

Once they started swimming along the current line toward 

the boat, Gallie stopped and told Nusbaum he was tired, so she 

advised him to just hold onto the line so others could drag the 

line onto the boat without having Gallie exert himself any 

further. Gallie then told her he was fine, and resumed 

swimming. Moments later, Gallie stopped moving. Within 

seconds, Nusbaum pulled Gallie’s head out of the water, put a 

regulator in his mouth to prevent him from swallowing water, 

and yelled for help. Three others dove into the ocean and pulled 

Gallie on board the dive boat, where they administered CPR. 

Gallie’s skin tone was already ashen, and he was declared dead.
5

II. Procedural Background

A. Complaint

In July 2018, Gallie’s mother, Donna Chapman (plaintiff),

sued Nusbaum, Russello and the Aloha Dive Shop (collectively, 

defendants).2 In the operative first amended complaint, plaintiff 

alleged (1) a claim for wrongful death caused by defendants’ 

gross negligence, and (2) a survival claim for compensatory and

punitive damages for the harm Gallie endured before he died.

B. Jury trial

The matter proceeded to a seven-day jury trial in April 

2022. In addition to calling as witnesses Gallie’s mother and 

brother, the captain of the dive boat, the investigating officer, 

Russello, Nusbaum, and competing experts on whether Russello 

and Nusbaum acted in a grossly negligent manner, plaintiff and 

defendants each presented an expert witness on the issue of 

causation.

Plaintiff called Dr. Vadims Poukens, the deputy medical 

examiner with the coroner’s office who had performed the 

autopsy on Gallie. After completing a physical examination, Xray, toxicology examination, and microscopy examination of 

Gallie’s body, Dr. Poukens opined that he had found no physical 

injury or physical evidence of any natural cause of death, found 

no toxicological or microscopic cause of death, found no evidence 

of a stroke or heart attack, found no evidence of an air embolism 

(which happens when a too-rapid ascent causes air bubbles to 

form in the bloodstream or internal organs), and found no 

evidence of any salt water in Gallie’s lungs or stomach (which one 

2 Plaintiff also sued the boat and its owners that transported 

Gallie to his fatal dive. Plaintiff did not proceed to trial against 

those parties, so we do not discuss them further. 
6

would “expect to find” if a person had experienced aspiration or 

asphyxiation from drowning).3 Dr. Poukens frankly admitted 

that he “could not find any evidence . . . to conclude that [Gallie’s] 

death was the result of any specific mechanism.” However, 

because Dr. Poukens had a “duty” to list something as the “official 

cause of death,” and because coroners use the label “drowning” 

when they cannot explain a death that happened in the water, 

Dr. Poukens listed the “official cause of death” on Gallie’s death 

certificate as “drowning.” At no point did Dr. Poukens opine to 

any reasonable medical probability that Gallie died from a 

particular mechanism or that Gallie’s death was caused by 

anything defendants did or did not do.

Defendants called Dr. John Millington, a physician 

specializing in hyperbaric medicine. Dr. Millington initially

suspected that the two “most likely” causes of Gallie’s death were 

either arrythmia (an irregular heartbeat) or an air embolism. 

But because there was “no . . . evidence” of arrythmia (which can 

be detected only as it is happening and leaves no postmortem 

trace), Dr. Millington opined that “the most likely” causes—which 

he ranked a “50/50”—were either an air embolism or “sudden 

death syndrome,” the term used when middle-aged men “all of a 

sudden just go into . . . severe arrythmia” when swimming back 

to a dive boat. In light of the absence of any evidence of “what 

caused [Gallie’s] death from a physical, anatomical, microscopic” 

or “historic” “standpoint,” Dr. Milligington ultimately opined that 

he could not “say to a medical certainty what the cause of . . . 

Gallie’s death was.”

3 Testing of Gallie’s SCUBA equipment also uncovered no 

issues. 
7

After the jury returned three defective special verdicts and 

the court on each occasion ordered the jurors to resume 

deliberations, the jury returned a special verdict finding 

defendants grossly negligent in causing Gallie’s death, 

attributing 70 percent of the fault to Nusbaum and 30 percent to 

Russello,4 and awarding plaintiff $60,950 in past economic 

damages and $1 million in past noneconomic damages.

C. Posttrial motions

Defendants moved for judgment notwithstanding the 

verdict (JNOV) and for a new trial. Following full briefing and a 

hearing, the trial court issued a 12-page order granting both 

motions.

The court granted defendants’ motion for a JNOV after 

finding “insufficient evidence to support the [jury’s] verdict that 

defendants’ acts, considered either individually or collectively, 

were a cause of . . . Gallie’s death.” Specifically, the court noted 

that there was “no evidence that Gallie’s death was caused to a 

reasonable medical probability by the SCUBA dive” and “no 

evidentiary showing of a causal connection between any 

deficiencies in Gallie’s SCUBA instruction and [his] unfortunate 

death.” Although Dr. Poukens had listed the official cause of 

death as “drowning,” the court noted the undisputed evidence 

that Dr. Poukens had “found no physical evidence of drowning.”

As an alternative ruling, the court also granted defendants’ 

motion for a new trial on the grounds that (1) the evidence of 

causation was “insufficient,” (2) the evidence of gross negligence 

was “insufficient,” (3) plaintiff’s attorney had prejudicially 

4 The jury also found Gallie negligent but that his negligence 

was not a substantial factor in causing his death and therefore 

attributed no percentage of responsibility to him. 
8

misrepresented Dr. Poukens’s opinion during closing argument, 

and (4) the jury’s special verdict was internally inconsistent.

D. Appeal

Plaintiff filed a notice of appeal on August 2, 2022—after 

the trial court had issued its order granting posttrial relief but 

two days before the court had entered judgment for defendants.

We exercise our discretion to treat plaintiff’s premature notice of 

appeal as effective.5 (E.g., Boyer v. Jensen (2005) 129 

Cal.App.4th 62, 69.) 

DISCUSSION

Plaintiff argues that the trial court erred in granting 

defendants’ motion for JNOV and a new trial.6

An order granting JNOV is appropriate “‘only if it appears 

from the evidence, viewed in the light most favorable to the party 

securing the verdict, that there is no substantial evidence to 

support the verdict.’” (Hauter v. Zogarts (1975) 14 Cal.3d 104, 

110.) We independently review the substantiality of the 

evidence. (Stephens & Stephens XII, LLC v. Fireman’s Fund Ins. 

Co. (2014) 231 Cal.App.4th 1131, 1143.) “Of course, the 

substantiality of the evidence is measured against the elements 

the plaintiff must prove; what those elements are, and what they 

5 Defendants also filed a “protective” cross-appeal, which we 

dismiss as moot.

6 Defendants ask us to treat plaintiff’s appeal as waived due 

to deficiencies in the opening brief and significant omissions in 

the appendix plaintiff prepared. Although we agree with 

defendants that plaintiff’s briefing and appendix do not comply 

with the California Rules of Court in many respects, we will not 

punish plaintiff for her lawyer’s shortcomings and exercise our 

discretion to reach the merits of her appeal.
9

mean, are questions of law that we also independently review.” 

(Lopez v. City of Los Angeles (2020) 55 Cal.App.5th 244, 253.)

To prevail on a claim for wrongful death, a plaintiff has the 

burden of proving (1) the defendant engaged in negligent conduct 

(or, in this case, grossly negligent conduct); (2) the victim died;

and (3) the defendant’s grossly negligent conduct caused the 

victim’s death. (Norgart v. Upjohn Co. (1999) 21 Cal.4th 383, 390 

[elements of wrongful death]; Chavez v. 24 Hour Fitness USA, 

Inc. (2015) 238 Cal.App.4th 632, 640 [same elements apply, even 

when standard is gross negligence].)7 

To establish the element of causation, the plaintiff must 

establish that it is “reasonably probable”—that is, more probable 

than not—that the defendant’s negligent (or, here, grossly 

negligent) conduct caused the victim’s death. (Beebe v. Wonderful 

Pistachios & Almonds LLC (2023) 92 Cal.App.5th 351, 370; 

Espinosa v. Little Co. of Mary Hospital (1995) 31 Cal.App.4th 

1304, 1314; Jennings v. Palomar Pomerado Health Systems, Inc.

(2003) 114 Cal.App.4th 1108, 1118.) The plaintiff need not prove 

this causal link by excluding all other possible causes of death

(Cooper v. Takeda Pharmaceuticals America, Inc. (2015) 239 

Cal.App.4th 555, 580; Espinosa, at p. 1314), but must prove 

“‘something more than a “50-50 possibility”’” (Belfiore-Braman v. 

Rotenberg (2018) 25 Cal.App.5th 234, 247); it is not enough to 

show a “possibility” of a causal link or to rely upon speculation or 

conjecture (Jones v. Ortho Pharmaceutical Corp. (1985) 163 

Cal.App.3d 396, 402; Saelzler v. Advanced Group 400 (2001) 25 

7 The elements for a survival claim are the same, except that 

instead of causing the victim’s death, the defendant’s negligence 

must cause harm (except for pain and suffering) suffered by the 

victim prior to death. (Code Civ. Proc., § 377.34.) 
10

Cal.4th 763, 775-776). When causation is beyond the common 

experience of jurors (as it often is when the cause of death turns 

on specialized medical knowledge), the plaintiff must present 

expert testimony linking the cause of death to the defendant’s 

negligence (or, here, gross negligence) to a “reasonable medical 

probability.” (Jennings, at p. 1118; see generally Hernandez v. 

County of Los Angeles (2014) 226 Cal.App.4th 1599, 1614 [“Where 

the complexity of the causation issue is beyond common 

experience, expert testimony is required to establish causation”]; 

Pacific Indemnity Co. v. Industrial Accident Com. (1946) 28 

Cal.2d 329, 338 [“cause of death . . . was a question for the 

determination of medical experts”]; People v. Sims (1993) 5 

Cal.4th 405, 436 [expert testimony appropriate when assessing 

cause of death from drowning]; cf. People v. Catlin (2001) 26 

Cal.4th 81, 146 [cause of death may be within common experience 

of jurors when it is not medically complex]; Cavero v. Franklin 

General Benevolent Society (1950) 36 Cal.2d 301, 309 (Cavero)

[cause of injury can be within common experience in situations 

where a sponge is left in a body or where a patient is burned with 

hot compresses, which are not medically complex].)

We independently agree with the trial court that plaintiff 

did not sustain her burden of proving that Gallie’s death was 

“more probably than not” the result of any gross negligence by 

defendants. There was no evidence establishing the actual cause 

of Gallie’s death. Although Dr. Poukens listed drowning as the 

official cause of death, it is undisputed—by Dr. Poukens 

himself—that he listed that cause of death because he could not 

actually find any mechanism for Gallie’s death (including any 

salt water in Gallie’s lungs or stomach) and because “drowning” 

is the default cause of death used when an unexplainable death 
11

occurs in the water. “Drowning” is effectively the “none of the 

above” answer. Thus, plaintiff’s assertion on appeal that it is 

“obvious [that Gallie] died by drowning” is flatly contradicted by 

the record. Because no witness was able to identify what 

ultimately caused Gallie’s death, it is no surprise that no witness 

testified that this unknown cause of death was more probably 

than not linked to anything defendants did or did not do. This 

void in the evidence is fatal to plaintiff’s claims.

Plaintiff makes what boils down to four arguments in 

response.

First, plaintiff argues that, even if there was no affirmative

evidence establishing that defendants’ acts probably resulted in 

Gallie’s death, a jury could reasonably infer causation because all 

other possible causes of death had been eliminated. To be sure, 

causation may sometimes be established through a process of 

elimination. (E.g., Minder v. Cielito Lindo Restaurant (1977) 67 

Cal.App.3d 1003, 1009; Brancati v. Cachuma Village, LLC (2023) 

96 Cal.App.5th 499, 506; George v. Bekins Van & Storage Co.

(1949) 33 Cal.2d 834, 844.) But here, the undisputed evidence 

eliminated all of the causes of death that might be linked to 

defendants’ conduct: Gallie did not drown (potentially caused by 

gulping water once he surfaced) because there was no salt water 

in his lungs or stomach; Gallie did not suffer from an air 

embolism (potentially caused by too rapid an assent) because 

there were no air bubbles in his blood or his organs; Gallie did 

not suffer from a heart attack or stroke (from being in the water 

or from stress) because there was no physical evidence of either. 

Because there was “‘clear, positive, [and] uncontradicted’” 

evidence that Gallie’s death was not more probably than not due 

to anything defendants did or did not do, the inference plaintiff 
12

asks us to draw—namely, that Gallie’s death must have been due 

to what defendant’s did or did not do—is not a reasonable one; on 

this record, granting JNOV was appropriate. (Casetta v. United 

States Rubber Co. (1968) 260 Cal.App.2d 792, 814-815 (Casetta).) 

Indeed, were we to ignore the evidence affirmatively eliminating 

the link between Gallie’s death and defendants’ conduct, we 

would in effect be conclusively presuming causation from proof of 

gross negligence and the victim’s subsequent death, thereby 

eliminating any need for plaintiff to prove the element of 

causation; we decline plaintiff’s invitation to rewrite the tort of 

wrongful death to eliminate that element. (Youst v. Longo (1987) 

43 Cal.3d 64, 74 [refusing to “essentially eliminate the tort’s 

element of causation”].)

Second, and along similar lines, plaintiff seems to suggest 

that a wrongful death verdict in her favor might be upheld on a 

res ipsa loquitur-type theory—namely, that causation should be 

presumed (unless and until rebutted) because an unexplainable 

death occurring during SCUBA dive training likely results from 

gross negligence in that training. 

We reject this suggestion for three reasons. 

To begin, plaintiff waived this theory because she did not 

request a res ipsa loquitur instruction below. (Gagosian v. 

Burdick’s Television & Appliances (1967) 254 Cal.App.2d 316, 

319.) 

More to the point, a presumption of causation under res 

ipsa loquitur is appropriate only when “it can be said, in the light 

of past experience, that [the victim’s injury or death] probably

was the result of negligence [or, here, gross negligence] by 

someone and that the defendant[s are] probably the person[s] . . . 

responsible.” (Siverson v. Weber (1962) 57 Cal.2d 834, 836, italics 
13

added; Faulk v. Soberanes (1961) 56 Cal.2d 466, 470; cf. Brown v. 

Poway Unified School Dist. (1993) 4 Cal.4th 820, 826 (Brown)

[res ipsa loquitur does not apply to slip and fall cases because 

they are “not so likely to be the result of negligence as to justify a 

presumption to that effect”].)8 To be “probab[le],” it must be 

“‘“more likely than not”’” that the victim’s injury or death was the 

result of (gross) negligence and the result of (gross) negligence by 

the defendant(s). (Rodela v. Southern California Edison Co.

(1957) 148 Cal.App.2d 708, 712-713, italics added; Newing v. 

Cheatham (1975) 15 Cal.3d 351, 360 [for presumption to apply, 

defendant’s negligence must be “the most probable” 

explanation].) “[R]es ipsa loquitur will not apply if it is equally

probable that the” injury was not due to (gross) negligence or that 

“the [(gross)] negligence was that of someone other than the 

defendant.” (Zentz v. Coca Cola Bottling Co. of Fresno (1952) 39 

Cal.2d 436, 443, italics added.) Here, the record is devoid of 

evidence—whether from experts or from lay witnesses—that 

deaths arising in the course of SCUBA dive training are more 

probably than not the result of negligence (or gross negligence), 

or that the negligence is more probably than not the negligence of 

the instructors and dive shop owners. (See Crawford v. County of 

Sacramento (1966) 239 Cal.App.2d 791, 792-793 [refusing to 

8 This threshold requirement is encapsulated and 

implemented in the three classic prerequisites to the applicability 

of res ipsa loquitur—namely, “‘“(1) the [victim’s injury] must be of 

a kind which ordinarily does not occur in the absence of 

someone’s negligence; (2) [the injury] must be caused by an 

agency or instrumentality within the exclusive control of the 

defendant; [and] (3) [the injury] must not have been due to any 

voluntary action or contribution on the part of the plaintiff.”’” 

(Brown, supra, 4 Cal.4th at pp. 825-826.)
14

apply res ipsa loquitur to presume that patient’s death during 

surgery was due to negligence of anesthetist because “medical 

testimony neither established nor furnished evidence from which 

a lay jury could reasonably infer the probability of such 

negligence”]; Engelking v. Carlson (1939) 13 Cal.2d 216, 221-222 

[same, due to evidence that victim’s injury to peroneal nerve may 

occur when there is no negligence at all], disapproved of in 

Seneris v. Haas (1955) 45 Cal.2d 811, 827; cf. Quintal v. Laurel 

Grove Hospital (1964) 62 Cal.2d 154, 164 [res ipsa loquitur 

appropriate where “there was testimony that 90 per cent of the 

deaths resulting from cardiac arrest occurred by reason of faulty 

intubation”]; Cavero, supra, 36 Cal.2d at p. 311 [same, where 

victim’s death during tonsil surgery probably does not occur 

absent negligence].) 

Further, even if we assume that the res ipsa loquitur 

theory applies, it erects a rebuttable presumption that was 

conclusively refuted in this case by the undisputed medical 

testimony that Gallie did not die from any cause connected to 

defendants’ conduct, thereby making JNOV appropriate. 

(Casetta, supra, 260 Cal.App.2d at pp. 814-815; cf. Haft v. Lone 

Palm Hotel (1970) 3 Cal.3d 756, 762-763 [res ipsa loquitur 

appropriate when no evidence rebuts presumption].)

Third, plaintiff argues that the burden of proving causation 

somehow shifted to defendants because they offered contrary 

expert testimony regarding causation and because of the newly 

enacted Evidence Code section 801.1. This argument rests on a 

misreading of the record and a misunderstanding of the newly 

enacted provision of the Evidence Code. For starters, defendants 

did not offer contrary testimony on the issue of causation because 

both Dr. Poukens and Dr. Millington agreed that they could not 
15

determine Gallie’s cause of death. What is more, a defendant’s 

introduction of evidence to undermine or contradict a plaintiff’s 

expert witness on causation does not somehow relieve the 

plaintiff of her burden of proof on that element; defendants here 

were not trying to establish an affirmative defense, so plaintiff’s 

citation to cases involving affirmative defenses are irrelevant. 

(Consumer Cause, Inc. v. SmileCare (2001) 91 Cal.App.4th 454, 

469 [“Of course, at trial, a defendant raising an affirmative 

defense has the burden of proving it”].) And Evidence Code 

section 801.1 premises the admission of testimony by defense

experts as well as plaintiff’s experts on a showing of a causal link 

by a “reasonable medical probability,” but “does not preclude” a 

defense expert from opining that an opinion by a plaintiff’s expert

about causation was incorrect. (Evid. Code, § 801.1, subds. (a) & 

(b).) Here, however, neither expert opined to any particular cause 

of death or causal link. So, even if we assume that this newly 

enacted provision applies retroactively (since it did not take effect 

until 20 months after the trial in this case), Evidence Code 

section 801.1 is irrelevant.

Fourth and finally, plaintiff argues that the trial court was 

wrong to overrule “the decision of the jury.” But overturning a 

jury verdict is the whole point of a JNOV motion—namely, to test 

whether that decision is supported by substantial evidence. 

Where, as here, it is not, the jury’s factually unsupported decision 

is entitled to no weight. We reject plaintiff’s implicit invitation to

mandate the denial of all JNOV motions.

* * *

In light of our affirmance of the trial court’s order granting 

JNOV and entering judgment for defendants, the propriety of the 
16

court’s order granting a new trial is moot. (In re Coordinated 

Latex Glove Litigation (2002) 99 Cal.App.4th 594, 614.) 

DISPOSITION

The judgment for defendants is affirmed. Defendants are 

entitled to their costs on appeal.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.

______________________, J.

HOFFSTADT

We concur:

_________________________, P. J.

LUI

_________________________, J.

ASHMANN-GERST