Drowning suit heard in court

Husband says diving instructor is to blame for wife's death

Posted: Wednesday, May 24, 2000

A wrongful death lawsuit stemming from a 1996 diving incident went to trial Tuesday in Juneau Superior Court.

The undisputed facts of the case are that Heidi Kirkevold, 37, was diving in Admiralty Island's Barlow Cove, 17 miles northwest of Juneau, with her husband, Gary Ausec, on Oct. 24, 1996. They were diving off a boat owned by Joel Mitchell, diving instructor and operator of The Scuba Tank.

What else happened on that day is in dispute. Ausec claims Mitchell bears responsibility for Kirkevold's death. Mitchell claims Kirkevold had the status of ``former student'' during a pleasure dive collecting scallops and crab.

The trial is being held before Superior Court Judge Larry Weeks and a jury of eight men and six women. Opening arguments were given Tuesday afternoon.

``This is a case about misplaced trust -- misplaced trust in an instructor, Joel Mitchell; in his business, The Scuba Tank; and misplaced trust in the diving school that he represented, Scuba Schools International,'' said Anchorage attorney Mark June, representing Ausec.

June described Kirkevold as ``a weak swimmer at best who found herself out of air 80 feet below the surface and her instructor was nowhere in sight.''

Under those circumstances, Ausec panicked, June said. ``He failed to save her life. Instead he was forced to see her death, her body brought up to the surface blue from lack of oxygen and to find himself trapped in a nightmare.''

Standing next to the couple's wedding photo, June described Kirkevold as ``a spark plug, a pistol ... who believed that diving was an activity she could share with her husband and it would make her marriage better.''

June characterized SSI as a ``mail-order business,'' whose real concern was in selling equipment -- not in providing instruction.

Kirkevold and Ausec were married five years. Since the accident, he has suffered from post traumatic stress syndrome and ``his friends describe him as a hermit,'' his attorney said.

In his opening remarks, Mitchell's lawyer William Wuestenfeld of Anchorage agreed with June that ``this is a case about responsibility.'' But he placed the responsibility on Ausec's shoulders.

When Kirkevold apparently ran out of air, she did everything right, Wuestenfeld said: ``She started to buddy breath and dropped her weights.'' But her husband did everything wrong: ``He panicked. He kicked for the surface. He did not look down to see if she was following. He wants to believe that someone else, anyone else, is responsible.''

Wuestenfeld said evidence would show this was never supposed to be a training dive. Mitchell and SSI were not shirkingresponsibility, Wuestenfeld said, ``but a former instructor is not required to accompany former students in order to protect them from their buddies.''

June had acknowledged that the marriage was a stormy one, in which police had been called. Wuestenfeld brought this to the jury's attention, although neither attorney stated precisely what court records show: that twice in July 1994 domestic violence restraining orders were taken out against Ausec.

``This is a tragic accident, but unrelated to anything Joel or SSI did,'' Wuestenfeld said, noting that Mitchell checked everyone's air 10 minutes into the dive and everything was normal. When Kirkevold subsequently ran out of air, Ausec was at fault, the attorney said. ``Ausec gave up the idea of buddy breathing. He did not secure Heidi to himself,'' and, he added, ``Ausec told Gary that it was his fault.''

Ausec filed suit against Mitchell in 1998. June said in an interview 10 days ago that he would seek economic recompense as well as compensation for ``losing one's wife and witnessing a wife's death.''

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