A judge has ruled that a national diving association will have to defend itself to a jury in a case where it could be found liable for the drowning death of a young Missoula woman.

Missoula County District Judge Leslie Halligan this week denied a diving association’s claim that it shouldn’t be included as a defendant in a lawsuit resulting from the November 2020 drowning death of Linnea Mills. The lawsuit listed Professional Association of Diving Instructors Worldwide Corporation, or PADI, along with Gull Dive Center of Missoula and its instructors as negligent in Mills’ death.

Gull Dive and its instructors, Debbie Snow and Seth Liston, claimed to be certified by PADI and were training Mills to be a PADI instructor. But a combination of improper diving gear, nonexistent safety checks and poor instructor supervision caused Mills to get caught in a situation where she couldn’t surface as she struggled to breath under pressure. While the instructor was unaware, another trainee’s attempt to save Mills was unsuccessful, and she sank 127 feet to the bottom of Lake MacDonald in Glacier National Park.

The Mills’ lawsuit includes three counts against PADI, with at least one saying PADI had vicarious liability for Mills’ death.

But in April, PADI submitted a document denying vicarious responsibility and asking Halligan to eliminate them as a defendant. Helena attorney Cherche Prezeau representing PADI argued that Gull Dive and its instructors are not agents of or employed by PADI, so PADI has no responsibility. Prezeau said that PADI includes standard disclaimers on several documents, from student applications to pages on its website, saying member shops are not agents of PADI. As evidence, Prezeau has submitted agreement forms with disclaimers that Mills initialed when signing up for training.

But Halligan decided that non-agency disclaimers weren’t enough evidence to allow her to release PADI from responsibility. Her decision rested on the legal definition of “agent” and a Montana Supreme Court ruling.

An “actual agent” is an individual or entity employed by another party, and PADI argues that Gull Dive and the instructors weren’t its employees. While the court agreed to an extent, Halligan noted that PADI had some control over Gull Dive and its instructors because PADI’s membership agreements include the phrase, “Except as otherwise provided in this membership agreement…” She also pointed out that Gull Dive and the instructors were “contractually obligated” to follow PADI’s standards and instructions.

Alternatively, someone like a Gull Dive instructor can be an “ostensible agent” of PADI if a third party, say Linnea Mills, believes the instructor represents PADI because of PADI’s claims.

While Prezeau argued that Mills shouldn’t have thought Gull Dive or the instructors were agents of PADI since she signed a disclaimer, the Mills' attorney, David Concannon, provided several incidents and reasons that disputed that, according to court documents. That put Halligan in the position of having to decide who was right if she was to release PADI from the lawsuit.

Halligan said precedent took the issue out of her hands. She cited a 1987 Montana Supreme Court case, Burkland v. Electronic Realty Associates, where ERA argued it shouldn’t be liable for defects in a house sold by ERA Hannah Realty Associates because Hannah Realty Associates wasn’t its agent and provided non-agent disclaimers as proof. However, ERA required Hannah Realty Associates to display the ERA logo on all its material and listings. The Montana Supreme Court ruled that the decision as to whether a disclaimer went far enough to clarify that Hannah Realty Associates wasn’t an ostensible agent of ERA needed to be decided by a jury, not just a judge.

Halligan said a jury decision is even more important in the PADI case because while ERA just required its logo to be displayed, PADI had some control over how Gull Dive and the instructors were to operate.

“PADI is in the background of a significant amount of how and why a PADI dive center operates. Whether that creates an ostensible agency relationship is a disputed question of fact to be determined here by (trial),” Halligan wrote.

Contact reporter Laura Lundquist at lundquist@missoulacurrent.com.