The Estate of Joseph R. Kane, v. Epley’s Inc., 2017 U.S. Dist. LEXIS 48179

The Estate of Joseph R. Kane, v. Epley’s Inc., 2017 U.S. Dist. LEXIS 48179

The Estate of Joseph R. Kane, deceased; Stacie Kane, individually, and as guardian of Joseph P. Kane; and Thomas Kane, individually, Plaintiffs, vs. Epley’s Inc., an Idaho corporation, Defendant.

Case No.: 3:15-cv-00105-EJL-REB

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF IDAHO

2017 U.S. Dist. LEXIS 48179

March 28, 2017, Decided

March 28, 2017, Filed

PRIOR HISTORY: Estate of Kane v. Epley’s Inc., 2016 U.S. Dist. LEXIS 170316 (D. Idaho, Dec. 5, 2016)

COUNSEL:  [*1] For Estate of Joseph R Kane, deceased, Stacie Kane, individually, and as guardian of Joseph P Kane, Joseph P Kane, Thomas Kane, individually, Plaintiffs: Theron A Buck, LEAD ATTORNEY, Frey Buck, P.S., Seattle, WA; Thomas Daniel Frey, LEAD ATTORNEY, PRO HAC VICE, Frey Buck, P.S., Seattle, WA.

For Epley’s, Inc., an Idaho corporation, Defendant: Caitlin Elizabeth O’Brien, LEAD ATTORNEY, Winston & Cashatt, Lawyers, Coeur d’Alene, ID; Patrick J Cronin, LEAD ATTORNEY, Winston & Cashatt, Lawyers, Spokane, WA.

JUDGES: Honorable Ronald E. Bush, Chief United States Magistrate Judge.

OPINION BY: Ronald E. Bush

OPINION

MEMORANDUM DECISION AND ORDER RE:

PLAINTIFFS’ MOTION TO AMEND COMPLAINT TO ASSERT PUNITIVE DAMAGE CLAIM

(Docket No. 17)

 

PLAINTIFFS’ MOTION TO STRIKE DEFENDANT’S “SUR REPLY” TO PLAINTIFFS’ MOTION TO AMEND COMPLAINT TO ADD PUNITIVE DAMAGES

(Docket No. 39)

Now pending before the Court is Plaintiffs’ (1) Motion to Amend Complaint to Assert Punitive Damage Claim (Docket No. 17), and (2) Motion to Strike Defendant’s “Sur Reply” to Plaintiffs’ Motion to Amend Complaint to Add Punitive Damages (Docket No. 39). Having carefully considered the record, heard oral argument, and otherwise being fully advised, the Court enters the [*2]  following Memorandum Decision and Order:

I. BACKGROUND

Joseph R. Kane died after being ejected from a raft on a section of the Lower Salmon River known as “Slide Rapid.” Mr. Kane was part of a Boy Scouts of America (“BSA”) group, composed of minors and other adults — the majority of whom had no “whitewater” experience whatsoever. The group booked their trip with Defendant Epley’s Inc. (“Epley’s”), a licensed outfitter in the state of Idaho that offers guided rafting tours on the Salmon River and Snake River.

Through this action, Plaintiffs (to include the estate of Mr. Kane, his wife Stacie Kane, and sons Thomas and Joseph P. Kane) claim that Epley’s conduct — in particular, its decision to run the Slide Rapid at flows above 23,000 cubic feet per second (“cfs”) — breached the standard of care applicable to outfitters and guides under chapter 12, Title 6, Idaho Code and that said breach was a direct and proximate result of Mr. Kane’s death. See generally Pls.’ Compl., ¶¶ 4.1-4.12 (Docket No. 1). Plaintiffs specifically allege:

Defendant’s conduct was wrongful and otherwise breached its standard of care by taking Joseph R. and Thomas down the river and through the Slide when they knew or [*3]  should have known that the river’s flow was in excess of 23,500 cfs, and knowing that these extreme conditions would produce incredibly dangerous Class V or Class VI rapids. Defendant’s guides’ decision to run these rapids not only ignored the rafter’s inexperience, it was also contrary to the express written recommendations of the BLM’s published handbook for rafting the Lower Salmon River. Defendant’s actions were wrongful in the face of a known, significant risk that was unknown to the Plaintiffs.

Id. at ¶ 4.5. Since the action’s inception, the above-referenced breach-of-the-standard-of-care allegations have further evolved into the bases for Plaintiff’s at-issue Motion to Amend Complaint to Assert Punitive Damage Claim.1

1 Even so, these allegations were preliminarily tested in the context of Defendant’s intervening Motion for Summary Judgment. See MSJ (Docket No. 16). U.S. District Judge Edward J. Lodge denied that Motion, concluding that questions of fact populated the interwoven issues of (1) the proper standard of care involved, (2) whether Defendant breached such standard of care, and (3) whether Defendant’s conduct proximately caused Plaintiffs’ injury and/or any actual loss or damage. See generally 12/6/16 MDO, pp. 16-30 (Docket No. 44).

According to Plaintiffs, Epley’s not only ignored and misrepresented to the group the extreme risks presented by the water levels forecasted to be encountered at Slide Rapid on June 27, 2014 (thus permitting the trip’s June 24, 2014 launch in the first instance), its later decision to actually continue through Slide Rapid on June 27, 2014 at flows in excess of 23,500 cfs represented an extreme deviation from industry standards. See generally Mem. in [*4]  Supp. of Mot. to Am., pp. 5-17 (Docket No. 17, Att. 1). Plaintiffs argue:

Despite the dangerous conditions produced by the high flow levels, Defendant authorized the trip to commence as planned on June 24, 2014. Defendant’s manager [(Blackner)] admits that he told the group that the river level would slacken by the time they reached the Slide on the fourth day of the trip, a fact admitted by Blackner and reflected in pre-trip emails by group members. Notably, Blackner told the group he expected the river would be down to 17,000 cfs by the time they hit the Slide. Blackner asserts he was relying on on-line river forecasts by the National Weather Service (“NWS”) vis-a-vis [National Oceanic and Atmospheric Administration] (“NOAA”) and [U.S. Geological Survey] (“USGS”), in making this claim.

In fact, however, the water level forecasted by the NWS model as of the morning of the trip launch (June 24) for June 27 — the day the group was scheduled to hit the Slide — was not 17,000; it was approximately 21,000 cfs, Class V-VI water. Moreover, while earlier forecast modeling had predicted that the flow levels might recede below 20,000 cfs, the actual flow measurements taken by the . . . USGS show [*5]  that the river had remained steadily above 23,000 cfs for the four days before launch date, flatly belying the earlier forecast models. Defendant’s manager and guides were aware of this flow before the trip began. Moreover, rain was forecast for the area during the trip. In short, there was no earthly reason to believe the water level would decrease significantly from the 23,400 cfs level on launch date by the time the Boy Scouts hit the Slide; all extant evidence and forecasts unequivocally established the Slide would be Class V water on June 27. Notwithstanding the extreme water level, the inexperienced, unfit passengers and the want of cause to believe the river volume would drop, Defendant launched the excursion.

Prior to launch, the Defendant prepared no plan whatsoever to avoid or safely transit the Slid should the water level remain at ClassV level. There were several options available. Defendant could have arranged to take the group off the river at Eagle Creek, the last overnight stop before the Slide. It could have arranged for a larger, motorized raft to transit the group. It could have arranged for jet boat transit at the Slide. Defendant took none of these prudent steps. [*6]

On June 26,2014, the scout group landed and took out at Eagle Creek to spend the night. This was the group’s last overnight location before reaching the Slide. Eagle Creek was also the last place where the group could have readily exited the river on land. The guides were aware that the river had not changed appreciably since the launch level of 23,400 cfs. Indeed, on the morning of June 27, after spending the night at Eagle Creek, Epley’s guides could see with the naked eye that the river flow had actually increased overnight. Defendant’s guides knew that these extreme flows would produce Class V or VI rapids at the Slide. Despite this knowledge, prior to and after reaching Eagle Creek, the Defendant’s agents made no plan to avoid the Slide in the event the water level did not recede, no plan to remove the group at Eagle Creek, and no plan to bring extra assets to the area of the Slide to relieve the obvious risk posed by the rapid. The guides had access to a satellite phone, but they opted to not use it to verify water levels or explore options for avoiding the Slide, notwithstanding that it had “constantly” rained following the June 24 launch. . . . .

Id. at pp. 5-6 (internal citations omitted, [*7]  italics in original, underlining added); see also id. at pp. 14, 16 (“Based on the evidence presented here, it can be inferred that Blackner intentionally or with gross negligence misled the group (and possibly his lead guide) to believe the Slide would be safely navigable by June 27. . . . . There [was] no rational justification for allowing this group to launch on June 24, other than for financial gain.”); id. at p. 16 (“Simply put, once the group left on June 24, Epley’s plan was to send the group through the Slide regardless of conditions, risk of injury or death to riders, or industry standards. . . . . The decision by the guides to authorize the trip to continue through the Slide after reaching Eagle Creek on June 26 also constitutes an extreme deviation from industry standards. The trip should have unquestionably been terminated when the guides recognized that the flows had not dropped since June 24.”).2

2 Plaintiffs also claims that Epley’s use of inexperienced and inadequately trained guides contributes to the milieu of conduct auguring in favor of a punitive damages claim against Epley’s. See Mem. in Supp. of Mot. to Am., pp. 14, 16 (Docket No. 17, Att. 1) (“There is no dispute that the guides selected by lead boatman Mike Cornforth for the trip had never transited the Slide at levels near 23,000 cfs. Accordingly, they lacked any training or experience whatsoever to manage the extreme conditions presented by the Slide at that level. . . . . Epley’s decision to permit commencement of the trip on June 24, with minors as young as 14 and unfit 50-year-olds, at flows in excess of 23,000 cfs, under the supervision of inexperienced and unqualified guides, with no alternative safety plan in place, constituted an extreme deviation from the standard of care.”).

Epley’s disputes these claims outright, but alternatively argues that, even if true, they operate only to support claims that it was grossly negligent or reckless. See generally Opp. to Mot. to Am., pp. 12-19 (Docket No. 22). In short, attacking the quantum of Plaintiffs’ proffered evidence, Epley’s argues [*8]  that, “[t]he mere fact of a tragic death during a high risk recreational activity does not create the necessary fraud, malice, outrage, or oppression” to warrant a claim for punitive damages. Id. at p. 12; see also id. at p. 15 (“Ultimately, even Plaintiffs’ evidence regarding the water levels do not rise to any necessary level of proof that Epley’s acted maliciously, outrageously, fraudulently, or oppressively.”); id. at p. 17 (“The Plaintiffs’ evidence fails to rise to the level of reasonable likelihood of proving fraud, oppression, malice, or outrage.”); id. at p. 19 (“[Plaintiffs’] evidence in this motion at best claims that [Epley’s] was grossly negligent or reckless, but nowhere explains or establishes fraud, oppression, malice, or outrage necessary to amend to add punitives.”).

II. DISCUSSION

A. Punitive Damages: Legal Standard

Claims for punitive damages are governed by Idaho Code § 6-1604, which provides:

In any action seeking recovery of punitive damages, the claimant must prove, by clear and convincing evidence, oppressive, fraudulent, malicious or outrageous conduct by the party against whom the claim for punitive damages is asserted.

I.C. § 6-1604(1).

Whether to allow a claim of punitive damages is a substantive question controlled by Idaho law. See Windsor v. Guarantee Trust Life Ins. Co., 684 F. Supp. 630, 633 (D. Idaho 1988). Ultimately, [*9]  an award of punitive damages requires a bad act and a bad state of mind. See Todd v. Sullivan Const. LLC, 146 Idaho 118, 191 P.3d 196, 201 (Idaho 2008). The defendant must (1) act in a manner that was an extreme deviation from reasonable standards of conduct with an understanding of — or disregard for — the likely consequences, and must (2) act with an extremely harmful state of mind, described variously as with malice, oppression, fraud, or outrageousness. See Myers v. Workmen’s Auto Ins. Co., 140 Idaho 495, 95 P.3d 977, 983 (Idaho 2004); see also I.C. § 6-1604.3

3 The Idaho Supreme Court has recognized that, since the enactment of Idaho Code § 6-1604 in 1987, gross negligence or deliberate or willful conduct is not sufficient for an award of punitive damages. See Cummings v. Stephens, 157 Idaho 348, 336 P.3d 281, 296, n.5 (Idaho 2014) (“Since the enactment of the statute, gross negligence or deliberate or willful conduct is not sufficient for an award of punitive damages.”). Accordingly, the undersigned disagrees with Plaintiffs’ to the extent they ask the Court to infer that a harmful state of mind can be satisfied by a defendant’s gross negligence. See, e.g., Mem. in Supp. of Mot. to Am., p. 10 (Docket no. 17, Att. 1); compare with Opp. to Mot. to Am., p. 10 (Docket No. 22) (“A party seeking punitive damages must prove defendant’s action constituted an extreme deviation from reasonable standards of conduct, which was done with knowledge of the likely consequences, and an ‘extremely harmful state of mind.’ However, that ‘extremely harmful state’ can no longer be termed gross negligence or recklessness.”) (internal citations omitted, emphasis in original).

At trial, the party alleging punitive damages must satisfy this standard by clear and convincing evidence. See I.C. § 6-1604(1). However, for purposes of a motion to amend, the party seeking to add a claim for punitive damages does not need to meet this high burden; rather, the party need only show “a reasonable likelihood of proving facts at trial sufficient to support an award of punitive damages.” See I.C. § 6-1604(2). Therefore, although FRCP 15(a) encourages the trial court to liberally grant motions to amend pleadings, this policy is substantially tempered by the requirements under Idaho law. That is, plaintiff may add a claim for punitive damages only if they establish a reasonable likelihood of proving, by clear and convincing evidence, that the defendant’s conduct was oppressive, fraudulent, [*10]  malicious, or outrageous.

Since plaintiffs are only required to demonstrate a “reasonable likelihood” of establishing their entitlement to punitive damages, on motions to amend to assert a claim for punitive damages under Idaho Code § 6-1604(2), courts apply the same standard it would apply in resolving an FRCP 50 motion at the close of plaintiffs’ case. See Bryant v. Colonial Sur. Co., 2016 U.S. Dist. LEXIS 22414, 2016 WL 707339, *3 (D. Idaho 2016). That is, evidence is viewed in the light most favorable to plaintiffs, with the benefit of all legitimate inferences without assessing credibility. See id. (citing E.E.O.C. v. Go Daddy Software, Inc., 581 F.3d 951, 961 (9th Cir. 2009)).

It is in the trial court’s discretion to decide whether to submit the punitive damages issue to the jury. See Manning v. Twin Falls Clinic & Hosp., Inc., 122 Idaho 47, 830 P.2d 1185, 1190 (Idaho 1992). As a matter of substantive law, it is well established in Idaho that punitive damages are not favored and should be awarded only in the most unusual and compelling circumstances, and are to be awarded cautiously and within narrow limits. See id. at 1185; see also Jones v. Panhandle Distribs., Inc., 117 Idaho 750, 792 P.2d 315 (Idaho 1990); Soria v. Sierra Pac. Airlines, Inc., 111 Idaho 594, 726 P.2d 706 (Idaho 1986); Cheney v. Palos Verdes Inv. Corp., 104 Idaho 897, 665 P.2d 661 (Idaho 1983); Linscott v. Rainier Nat’l Life Ins. Co., 100 Idaho 854, 606 P.2d 958 (Idaho 1980).

B. Plaintiffs May Assert a Claim for Punitive Damages Against Epley’s

This lawsuit and the instant Motion to Amend are focused on the decisions surrounding the events leading up to June 27, 2014 — the day Mr. Kane, his son, and the rest of the rafters in their group encountered Slide Rapid. The evidentiary record about such decisions [*11]  (viewed in light most favorable to Plaintiffs), gives rise to a reasonable likelihood of proving, by clear and convincing evidence, that Epley’s engaged in a bad act, with a bad state of mind, so as to warrant a claim for punitive damages.

1. Bad Act: Extreme Deviation From Reasonable Standards of Conduct

Plaintiffs point out that, in the days leading up to, and including, the June 24, 2014 launch, Defendant’s manager and guides were aware that water levels on the Salmon River consistently measured higher than 23,000 cfs and that, on June 24, 2014, the water level forecasted for June 27, 2014 (the day the group was scheduled to reach Slide Rapid) was approximately 21,000 cfs. See Mem. in Supp. of Mot. to Am., pp. 2-6, 11, 14 (Docket No. 17, Att. 1) (citing Ex. D (Blackner Dep. at p. 96) to Frey Decl. (Docket No. 17, Att. 3); Ex. F (Cornforth Dep. at p. 21) to Frey Decl. (Docket No. 17, Att. 3); Ex. L (USGS Discharge Data), to Frey Decl. (Docket No. 17, Att. 4); Ex. M (Northwest River Forecast Center (“NWRFC”) River Flow Forecast), to Frey Decl. (Docket No. 24)).4 Still, Epley’s decided to proceed with the trip and, according to Plaintiffs, did so with “no plan whatsoever” to address the [*12]  anticipated flow levels at Slide Rapid in the event water flow volumes remained dangerously high. See Mem. in Supp. of Mot. to Am., pp. 6-7, 15-16 (Docket No. 17, Att. 1) (citing Ex. D (Blackner Dep. at pp. 107-08) to Frey Decl. (Docket No. 17, Att. 3)).5

4 It is undisputed that, at levels over 20,000 cfs, Slide Rapid represents either Class V (expert) or Class VI (extreme and exploratory) waters. See Mem. in Supp. of Mot. to Am., pp. 4, 7, 14 (Docket No. 17, Att. 1) (citing Ex. B (BLM Guide) to Frey Decl. (Docket No. 17, Att. 3); Ex. D (Blackner Dep. at p. 86) to Frey Decl. (Docket No. 17, Att. 3); Ex. Q (Ranck Dep. at pp. 16-17) to Frey Decl. (Docket No. 17, Att. 6); Ex. E (Estes Dep. at pp. 18-19) to Frey Decl. (Docket No. 17, Att. 3)).

5 According to Defendant’s lead guide, Mr. Cornforth, “regardless of the height of the river when [the party] got to Slide [Rapid],” his only plan was “to try to stay river left and go through it.” Ex. F (Cornforth Dep. at p. 22) to Frey Decl. (Docket No. 17, Att. 3).

Flow levels did not appreciably change over the course of the trip and, on the morning of June 27, 2014, Defendant’s guides could see that the river flow had actually increased overnight as the party camped at Eagle Creek (the last overnight location before reaching Slide Rapid). See Mem. in Supp. of Mot. to Am., p. 7 (Docket No. 17, Att. 1) (citing Ex. F (Cornforth Dep. at pp. 59-60) to Frey Decl. (Docket No. 17, Att. 3); Ex. G (Sharp Dep. at pp. 34-36) to Frey Decl. (Docket No. 17, Att. 4); Ex. P (Sharp Witness Statement) to Frey Decl. (Docket No. 17, Att. 6)). Still, Defendant decided to proceed through Slide Rapid with allegedly unqualified guides, foregoing options to use an available satellite phone to discuss potentially safer options for the relatively inexperienced group, portage around Slide Rapid,6 or altogether exit the river on land at Eagle Creek (the last place where the group could have readily done so). See Mem. in [*13]  Supp. of Mot. to Am., pp. 6-7, 15-16 (Docket No. 17, Att. 1) (citing Ex. D (Blackner Dep. at p. 154) to Frey Decl. (Docket No. 17, Att. 3; Ex. F (Cornforth Dep. at pp. 22, 29-30) to Frey Decl. (Docket No. 17, Att. 3); Ex. O (Sears Expert Report, p. 6) to Frey Decl. (Docket No. 17, Att. 6); Ex. W (Nicolazzo Report, p. 3), to Frey Decl. (Docket No. 17, Att. ).

6 Plaintiffs claim that another outfitter, Exodus River Adventures, ran the Lower Salmon River during the same time frame and, on June 26, 2014, portaged around Slide Rapid rather than running it at similar flows. See Mem. in Supp. of Mot. to Am., p. 7 (Docket No. 17, Att. 1) (citing Ex. D (Blackner Dep. at p. 154) to Frey Decl. (Docket No. 17, Att. 3)); but see Ex. Q (Ranck Dep. at p. 30) to Frey Decl. (Docket No. 17, Att. 6) (testifying that portaging Slide Rapid was not a viable option: “It is a steep slope with sharp rocks. Lots of ledges. Loose rocks. Having middle-aged parents. Some of which were overweight. They would have been more than capable to do so on maybe a beach or a smaller rock outcropping. But they wouldn’t have been able to get safely over that rock slide by themselves. Especially carrying gear.”).

For its part, Epley’s disputes Plaintiffs’ contentions about forecasted flows for Slide Rapid in the days leading up to June 27, 2014, believing them to be lower. See Opp. to Mot. to Am., pp. 4-5, 14 (Docket No. 22) (“Despite Plaintiffs’ incorrect assertions, the Northwest River Forecast website continued to predict that the Lower Salmon River water level would drop to below 20,000 cfs by the time the group was to reach the Slide.”) (citing Ex. L (National Oceanic and Atmospheric Administration’s National Weather Service, Northwest River Forecast Center River Flow and Stage Forecasts) to Cronin Decl. (Docket No. 22, Att. 3). Consistent with this, the BLM officials present at the launch site on June 24, 2014, neither warned the group not to go, nor stated any concern about the water levels whatsoever. See Opp. to Mot. to Am., [*14]  p. 6 (Docket No. 22) (citing Ex. A (Blackner Dep. at p. 113) to Cronin Decl. (Docket No. 22, Att. 2). And, as to precautions taken before hitting Slide Rapid itself, Epley’s notes that its guides (who it contends were state-licensed and experienced) conducted a safety talk on the morning of June 27, 2014 and, before reaching the rapids, pulled the group’s rafts to shore to scout and pick the safest line to run — the “Sneak” down the left bank, with identified spots to “eddy out” at the bottom of the run “in case any individuals fell out during the rapid and they needed to perform a rescue.” Opp. to Mot. to Am., pp. 6, 15-17 (Docket No. 22) (citing Ex. P (Ranck Dep. at pp. 29-31) to Cronin Decl. (Docket No. 22, Att. 3)).

The extent to which the parties’ above-referenced arguments define the standard of care orbiting Defendant’s actions leading up to Mr. Kane’s death is clearly disputed. Judge Lodge stated as much when considering Defendant’s Motion for Summary Judgment, discussing the relevant standard of care as follows:

A question of fact exists, however, concerning what the standard of care is in this case; i.e., what ordinary care Epley’s, as an outfitter, owed to Plaintiffs, as its [*15]  customers/participants. The parties dispute the testimony of the expert witnesses offered to opine regarding the standards of the profession and the use/relevance of certain public information and industry publications to define the standard of care — in particular the standard of care in the profession for outfitters running the Slide Rapid above 20,000 cfs.

Each sides’ expert witnesses offer differing opinions concerning the standard of care applicable to the circumstances presented in this case. In his report, the Defendant’s expert, Gary Lane, states that he used a 25,000 cfs cut-off for running commercial trips at the Slide Rapid but that “it has long been the standard practice and is the practice today for commercial outfitters on the Lower Salmon River to take commercial trips down the Lower Salmon, including the Slide Rapid, at flows up to and exceeding 25,000 cfs” and concludes that Epley’s conformed to the standard of care expected of outfitters and guides rafter the Lower Salmon at the Slide Rapid with this group, gear, and at water levels higher than 20,000 cfs. Plaintiffs’ expert, on the other hand, conclude the Defendant violated the standard of care with regard to running [*16]  the Slide Rapid above 20,000 cfs under the circumstances of this case. Resolving the disputed questions presented by the experts’ testimonies requires the weighing of evidence and credibility determinations which must be done at trial.

12/6/16 MDO, pp. 19-20 (Docket No. 44) (internal citations omitted).7 And, whether these same arguments reflect Defendant’s breach of any duty owed to Plaintiffs is also disputed, with Judge Lodge similarly ruling:

For the same reasons discussed above with regard to duty, the Court finds a genuine issue of material fact exists as to whether Defendant breached the standard of care applicable in this case. This case presents the classic example of a battle of experts where both sides have presented contradicting testimony from experts concerning whether the Defendant breached a duty of care owed to Plaintiffs. Further, the facts surrounding events in question relevant to the breach issue are in dispute. For instance, the conditions presented on the day in question; what the guides knew regarding the water flow level of the Slide Rapid; whether there was a rescue plan and if that plan was followed; and any safety procedures in place and used by the guides. [*17]  The jury, as the finder of fact, must consider all of the disputed facts, the credibility of the witnesses, and the weight of the evidence in order to determine whether Defendant breached its duty. Therefore, summary judgment is denied on this question.

Id. at p. 23.

7 Judge Lodge also considered the “public information and industry publications” for the purposes of determining the appropriate standard of care for Idaho outfitters running commercial trips on the Lower Salmon River generally, and when Slide Rapid experiences high flows. See 12/6/16 MDO, pp. 20-22 (Docket No. 44). This examination included the BLM’s Lower Salmon River Boater’s Guide, the American Whitewater Safety Code, outfitter websites, and industry blogs (including one by Defendant’s expert, Gary Lane). However, they also didn’t highlight the standard of care as a matter of law. See id. at p. 22 (“While these materials do not, in and of themselves, define the standard of care, and their admissibility and/or use at trial is not decided here, the materials do show a genuine issue of material fact is present in this case concerning the applicable standard of care.”).

Viewing the evidence in the light most favorable to Plaintiffs, and giving Plaintiff the benefit of all legitimate inferences without assessing credibility, Plaintiffs have established a reasonable likelihood of proving by clear and convincing evidence that Defendant acted in a manner that was an extreme deviation from reasonable standards of conduct with an understanding (as an experienced outfitter) of — or disregard for — the likely consequences of those actions. See, e.g., Morningstar Holding Corp. v. G2, LLC, 2012 U.S. Dist. LEXIS 12355, 2012 WL 287517, at *14 (D. Idaho 2012) (“It is true that ‘[w]here evidence is conflicting, and where it can be said that if one theory of the case is correct there may be ground for the imposition of exemplary damages, the matter is properly submitted to the jury’ to determine the correct theory.”) (quoting Williams v. Bone, 74 Idaho 185, 259 P.2d 810, 813 (Idaho 1953)). As already indicated by Judge Lodge, it will be for the jury to resolve the issue of the actual standard of care involved and, relatedly, whether Epley’s breached [*18]  that same standard in the days and moments leading up to Mr. Kane’s death. See supra.

2. Bad State of Mind: Acting With An Extremely Harmful State of Mind

Plaintiffs assert that Epley’s, through its manager, Mr. Blackner, told Marelene Schaefer, who organized the event for the BSA, that (1) Defendant followed “BLM criteria” in determining whether to launch on the Lower Salmon Rive, and (2) they would not launch if the water was above 20,000 cfs. See Reply in Supp. of Mot. to Am., p. 2 (Docket No. 27) (citing Ex. B (Schaefer Dep. at pp. 25-28, 30) to Buck Decl. (Docket No. 21, Att. 3)). Plaintiffs also contend that Mr. Blackner assured Ms. Schaefer that he was monitoring river flows, even expressing concern that they might not be able to launch on the date planned and that they may have to “take an alternative trip if the water was over 20,000 cfs.” See Reply in Supp. of Mot. to Am., p. 2 (Docket No. 27) (citing Ex. B (Schaefer Dep. at pp. 27-29) to Buck Decl. (Docket No. 21, Att. 3)).

But, according to Plaintiffs, at the June 24, 2014 launch Mr. Blackner did not tell Ms. Schaefer (who was also present with the inspection team at the launch) that the water level was above 23,000 cfs, but [*19]  did say that the water levels would be dropping to 17,000 cfs at Slide Rapid and, if they did not drop in time, they could alter the plan and take out at Eagle Creek or run a different route. See Reply in Supp. of Mot. to Am., p. 2 (Docket No. 27) (citing Ex. B (Schaefer Dep. at p. 46) to Buck Decl. (Docket No. 21, Att. 3);8 Ex. D (Blackner Dep. at pp. 91- 93) to Frey Decl. (Docket No. 17, Att. 3)). Mr. Blackner allegedly made these representations despite the fact that river level forecasts for June 27, 2014 (the day the group was scheduled to reach Slide Rapid) was, in reality, approximately 21,000 cfs. See Reply in Supp. of Mot. to Am., pp. 2-3 (Docket No. 27) (“Blackner admitted that he checked the USGS website that provided actual and forecasted river levels; consequently, he knew his statement that the river would be at 17,000 cfs by June 27 was false.”) (citing Ex. D (Blackner Dep. at pp. 91-93) to Frey Decl. (Docket No. 17, Att. 3); Ex. M (NWRFC River Flow Forecast), to Frey Decl. (Docket No. 24)). In other words, Plaintiffs argue that Mr. Blackner purposely misled Ms. Schaefer and, thus, the group by failing to inform them of actual (as of the June 24, 2014 launch date) and [*20]  projected (for the anticipated encounter with Slide Rapid on June 27, 2014) river flows — that is, it was fraudulent and outrageous for Mr. Blackner to say that the forecasted flow for Slide Rapid on June 27, 2014 was 17,000 cfs, when, in actuality, it was much higher.

8 Whether Ms. Schaefer actually understood if Defendant would either take out at Eagle Creek or cancel the as-planned trip altogether is unclear, with Ms. Schaefer testifying:

Q: Okay. And that if [the river levels did not drop], according to what you’ve testified earlier, they could alter the plan and take out before they got to the Slide?

A: Yes.

Q: Okay.

A: Well, their alternate plan was to run a different route, not to pull out before the Slide. There’s a place to pull out I think.

Ex. B (Schaefer Dep. at p. 46) to Buck Decl. (Docket No. 21, Att. 3). Even so, the gist of this testimony is that Ms. Schaefer understood that, at certain flows, there would be no launch. See id. at p. 63 (“Well, I’m saying you saw where [Mr. Blackner] had an alternative if they could not launch and run the river the way that we had planned.”). The Court understands that the alternative trip was from Vinegar Creek to Pine Bar. See Ex. D (Blackner Dep. at pp. 92-93) to Frey Decl. (Docket No. 17, Att. 3).

Again, Epley’s takes issue with Plaintiffs’ representation of what was actually forecasted for Slide Rapid as of June 24, 2014. See supra. Epley’s does acknowledge the dueling factual accounts of what was said between Mr. Blackner and Ms. Schaefer surrounding the circumstances in which the group would (or would not) proceed with the as-planned trip, in the face of dangerous high river flow levels. See Reply in Supp. of MSJ, p. 3 (Docket No. 25) (“While it is disputed what Roger Blackner may have told Marlene Schaefer regarding what level he would run the Slide Rapid at prior to the June 24, 2014 trip, nothing [*21]  that the Plaintiffs cite establishes that Roger, or any other Epley’s personnel, testified the water was over the Epley’s limit, or the industry standard.”).

And, as before, such evidence and inferences must be viewed to Plaintiffs’ benefit when considering Plaintiffs’ efforts to amend their Complaint to assert a claim for punitive damages. When doing so, Plaintiffs have established a reasonable likelihood of proving by clear and convincing evidence that Epley’s not only acted in a manner that was an extreme deviation from reasonable standards of conduct with an understanding of — or disregard for — the likely consequences of those actions (see supra), but also did so with a harmful state of mind when viewing Mr. Blackner’s statements to Ms. Schaefer as fraudulent and/or outrageous. See Morningstar, 2012 U.S. Dist. LEXIS 12355, 2012 WL 287517 at *14 (discussing role of jury to resolve conflicting evidence in context of exemplary damages). Whether Epley’s actually acted with such a harmful state of to support an award of punitive damages is therefore a question for the jury, and not the subject of this Memorandum Decision and Order.9

9 To be clear, the undersigned is granting Plaintiffs’ Motion to Amend Complaint to Assert Punitive Damages Claim. However, the fact of doing so does not guarantee the claim will go to the jury. Judge Lodge will preside over the trial of the case and it will be within Judge Lodge’s province to decide, after hearing the evidence, whether the jury should decide the issue of punitive damages at trial. See, e.g., Clark v. Podesta, 2016 U.S. Dist. LEXIS 103637, 2016 WL 4179851, at *8 (D. Idaho 2016) (Judge Lodge stating on that facts of that case: “It is premature for the Court to make a binding decision on punitive damages until the close of evidence. Only then can the Court determine if evidence has been presented that Podesta acted with the requisite state of mind to allow punitive damages to be considered by the jury. Accordingly, the Court will allow the motion to amend the Complaint but will reserve ruling on whether such claim will be decided by the jury. . . .”).

III. ORDER

Based on the foregoing, IT IS HEREBY ORDERED that:

1. Plaintiffs’ Motion to Amend Complaint to [*22]  Assert Punitive Damage Claim (Docket No. 17) is GRANTED; and

2. Plaintiffs’ Motion to Strike Defendant’s “Sur Reply” to Plaintiffs’ Motion to Amend Complaint to Add Punitive Damages (Docket No. 39) is DENIED as moot.

DATED: March 28, 2017

/s/ Ronald E. Bush

Honorable Ronald E. Bush

Chief U. S. Magistrate Judge

 

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Utah Court reaches to find a boat renter liable when a boat sinks on Lake Powell due to high winds

The Federal District Court found the boat rental operation was negligent to defeat damages defenses provided by admiralty law. Causation, the relationship between what the defendant did and the accident giving rise to the claim seems to be stretched in this case.

In re Aramark Sports and Entertainment Services, LLC, 2014 U.S. Dist. LEXIS 121565

State: Utah, United States District Court for the District of Utah, Central Division

Defendant: In re Aramark Sports and Entertainment Services, LLC, a Delaware limited liability company, as owner of a certain 20′ 2007 Baja Islander 202 for exoneration from or limitation of liability

Plaintiff Claims: Negligence

Defendant Defenses: Limitation of Liability Act, 46 U.S.C. §§ 30501-30512

Holding: for the Plaintiff

Year: 2014

This case is a little out of the unusual for me because it concerns a powerboat. However, the legal issues could apply to any boat; whitewater raft, sea kayak, kayak or whatever. More importantly, it could affect canoe liveries or boat rentals if the decision is accepted by other courts.

One way of defending against claims due to boating accidents is by using federal law. If a river or body of water is determined to be navigable as defined under federal law, then a defendant can use a federal statute and admiralty law to limit any possible claims. The reason you would want to do this is the maximum that can be recovered against someone using this section of admiralty law, is the value of the vessel after the accident plus the value of the cargo. So most cases, when there has been a catastrophic loss the value of the raft zero, as the boat is destroyed or sunk. Even a raft that is recovered with all of its gear would still be limited to $10 to $20,000.00 in value.

The first issue you have to overcome when using admiralty law limits is to establish jurisdiction. The body of water or river has to qualify as being a navigable river under a specific section of the law. The problem is there are 17 different definitions of navigable under federal law, plus who knows how many more under state law. You must apply the correct definition of navigable to the case.

In this case, the accident occurred on Lake Powell. Because Lake Powell spans two states and is used for commercial traffic it was declared to be navigable under the law.

The basis for this claim is three couples rented a boat from the concessionaire at the marina. Eventually, the boat sank with four of them drowning. The winds picked up and exceeded the maximum wind speed the boat should have been operated at. The defendant filed this action in federal court claiming the value the vessel after the accident was zero and therefore, there was no recovery available to the plaintiffs. The court disagreed.

The boat that sunk was only rated to be workable at wind speeds of 31 miles an hour or less. At 31 miles an hour the boat manual stated the driver should have had a lot of boating skills. The boat was also not positively buoyant; meeting that if the boat filled with water, it would sink and would not stay on the surface. There was also no law or requirement that the boat be buoyant.

One of the main issues facing the defendant in this case was they normally handed out a weather report both at the time of the rental of the boat and the time the boat left the dock. The plaintiffs received a weather report when they completed the paperwork but not in the day they left. However, they did leave the docks a half-hour earlier than when the rental operations normally open.

One risk of using admiralty law to avoid liability in a boating accident is admiralty law does not allow the defendant to use a release. I suspect that a release might’ve been used in this case because the paperwork and renting a boat usually go hand in hand.

The plaintiffs were three couples from Florida, who came to Arizona to vacation. They rented a boat from the marina the intention of going up to see natural bridges and coming back on the same day. They rented the boat before the day they left on their trip. That day they received a weather forecast from the boat rental agent. The forecast changed in the middle of the night and when they picked up the boat, they did not receive a new forecast. On the way back from visiting the Natural Bridges Arch they had to stop at another marina to refill. After leaving that marina they went out into the Lake Powell and on the way back the boat sunk due to high winds.

Analysis: making sense of the law based on these facts.

One of the first main issues the court looked at was who could determine if boat rentals should stop because of the weather. Several employees of the defendant testified that wind speeds from 25 to 30 miles an hour, boat rentals were stopped. However, there was no written policy on when boat rentals were stopped and each employee answered with a slightly different answer. More importantly nothing in the transcript indicated that there is any reliable way to determine what the weather forecast was for the wind speed was at the rental operations.

A sub argument of this was not reviewed by the court or raised by the defendant was, whether or not there was a duty on the part of the rental operation to contact the other marina and warn the people not to go back out on the lake. No phone call was made by the rental operation to the other marina.

This argument was futile though because the only way to contact the boat drivers before, or after they left the second marina was by radio. The plaintiff’s never turned the radio turned on.

Ms. Ambrosius did not attempt to call Dangling Rope Marina to have personnel there warn the Prescott Party of the high winds although she knew that the Prescott Party would stop there to refuel. She did not notify any of the tour captains to watch for Boat 647 and alert them of the danger. She did not attempt to call the Prescott Party on the marine radio. (Although that would have been futile because Mr. Brady did not turn on Boat 647’s radio.) In sum, the court finds that Ms. Ambrosius did nothing to locate Boat 647.

The federal statute that the defendant relied upon was the Limitation of Liability Act, 40 6U. S. §§ 30501 – 30512. This statute provides exoneration of liability for the boat owner up to the value of the vessel and freight after the accident. There is an exception to the rule if there is knowledge or is in the law states privity with the owner of the vessel to the possibility of the damage.

The Act does, however, create an exception to that general rule by defining “claim, debt, or liability”: “claims, debts, and liabilities subject to limitation under subsection (a) are those arising from any embezzlement, loss, or destruction of any property, goods, or merchandise shipped or put on board the vessel, any loss, damages, or injury by collision, or any act, matter, or thing, loss, damage, or forfeiture, done, occasioned, or incurred, without the privity or knowledge of the owner.”

It is this knowledge or privity that allows the plaintiff to argue that the plaintiff defendant could have stopped them and save their lives.

Admiralty law was created for the transportation of goods and people across the oceans. It was adopted as uniform laws among countries with interests in shipping. As such, many parts of admiralty law make more sense when viewed in this light a boat on the high seas.

There’s a two-step inquiry to determine whether the act shall apply based on the privity or knowledge of the owner of the boat.

Courts use a two-step inquiry to determine whether a petitioner is entitled to exoneration or limitation of liability when sued for negligence. “First, the court must determine what acts of negligence . . . caused the accident. Second, the court must determine whether the shipowner had knowledge [of] or privity [with the person who committed] those same acts of negligence . . . The claimant bears the burden of proving negligence and if successful, the burden shifts to the shipowner to prove lack of knowledge or privity.

In this case, the court held that negligence on the land is similar to negligence in the water. The plaintiffs had to prove that there was a connection between the defendant’s conduct and the plaintiff’s injury.

Torts occurring on navigable waters are governed by maritime law. “The elements of a maritime negligence cause of action are essentially the same as land-based negligence under the common law.” A claimant must prove “a duty owed by the defendant to the plaintiff, breach of that duty, injury sustained by [the] plaintiff, and a causal connection between [the] defendant’s conduct and the plain-tiff’s injury.”

The ship owner owes a duty of reasonable care to all passengers on his ship. Or, in this case, the court held the rental operation owes a duty of reasonable care to the people renting his boat.

“Under Maritime law, a plaintiff is owed a duty of ordinary care under the circumstances.” “We hold that the owner of a ship in navigable waters owes to all who are on board for purposes not inimical to his legitimate interests the duty of exercising reasonable care under the circumstances of each case.”

The court found that the defendant breached his duty of reasonable care when it allowed plaintiffs to leave the morning of the accident. “Here, the court concludes that Aramark breached its duty of reasonable care when it allowed the Prescott Party to leave the morning of April 25, 2009.”

This conclusion was reached because the defendant had a duty to warn the renters of the weather issues. This is where this case takes on some concerns that exceed those of the normal rental situation. Hertz never gives your weather forecast when you leave its rental operation with their car.

I suspect that duty was created by the defendant normally providing all renters of its boats with a copy of the weather forecast because that was not done, then it created a duty.

Aramark, primarily Ms. Ambrosius, had a duty to be advised of the current weather forecasts and wind advisories before allowing any party to leave the marina in an Aramark power boat. This is particularly true because, as Aramark knew, in the spring, the weather changed constantly. Phyllis Coon testified that in the spring, shutting down rentals was considered almost on “an hourly basis” because of the erratic weather. And “[s]pringtime is al-ways windy on the lake.”

The second issue the court found or had an issue with, was the boat owner’s manual cautioned that when the winds exceeded 31 miles an hour, the boat should not be driven. Aramark’s only requirement when renting a boat was to make sure that the person was 18 years or older and had a valid driver’s license. Again, the same requirements to rent a car as Hertz used. The court held that a person’s prior ability and experience were important.

The boat owner’s manual cautioned that when wind speeds reached 31 miles an hour, only experienced operators might be able to safely operate the boat. Yet Aramark rented to anyone eighteen years or older, with a valid driver’s license, without regard to that person’s previous boating experience.

All these facts allow the court to conclude that Aramark could possibly be negligent.

The court, when it considers these facts, concludes that Aramark had frequently in the past recognized that high winds could be dangerous to boaters. Aramark should have been aware, if it was not, that high winds were forecast for April 25, 2009. And it was foreseeable to Aramark that if those who had rented Baja 202 Islanders for a trip on Lake Powell the morning of April 25, 2009, were allowed to depart, the boats could sink because of the high winds. It was further foreseeable to Aramark that if the boats sank, particularly in the cold April water, the passengers could suffer injury and even death. Aramark breached that duty when it allowed the Prescott Party to leave.

The next issue is whether or not breach of the duty of the boat renter/defendant was the cause of the injury. Here the court found that by allowing the boating party to leave the other marina that was a factor in the sinking of the boat. “Here, the court concludes that Aramark’s failure to stop the Prescott Party from leaving was a substantial factor in the sinking of Boat 647 and the resulting harm.”

(Which begs the questions, how were you going to stop someone from leaving a marina when their car and lodging were at their destination?)

Both marinas were owned and operated by the same defendant.

The final issue the court was, whether or not there was privity between the defendant and what happened. Privity in admiralty law is a weird definition of the word. In this case, the defendant must prove that they did not have any knowledge of the negligence. Normally, this would make sense when the owner of the boat is sitting on shore thousands of miles away and the captain or a member of the crew does something that was negligent causing the sinking of the boat.

In this case because the boat was a rental and owned by a defendant Corporation the court held all the employees had a duty or had privity to the negligent acts. “When a corporation owns the vessel, the test is whether culpable participation or neglect of duty can be attributed to an officer, managing agent, supervisor, or other high-level employee of the corporation.”

Because the general manager and several employees of the defendant could stop the rental, the court said the discretionary authority to close the boat rentals, was held to have been a negligent act.

Finding this the court held that Aramark could not exonerate or limit its liability in this case. The case would then proceed to trial for the full amount of damages claimed by the plaintiffs. This decision is not a finding of negligence against the defendant only that there was enough negligent for the court to conclude Aramark could be liable.

So Now What?

Here’s a situation whereby trying to be good and help people renting your boats you created your own liability.

The experience of the person running the boat also creates its own nightmares as you well know someone is going to lie to you when they fill out a form asking for experience. The will tell you they have plenty experience when want to rent a boat. The experience issue is a nightmare.  no way you can test someone’s experience or trust them. If they say they can rent a boat, and it sinks, the rental operation is liable for not testing them. If they don’t test now, they are liable.

All six people were from Florida, which is surrounded by water and has thousands of boat able canals, rivers and lakes, and only one person of the six had any boating experience.

The causation issue is another issue that is disturbing. Normally, causation is defined as a closer or more direct relationship between what the defendant does in creating the injury of the plaintiff. Here causation was found by allowing them to leave the marina.

However, that was not the cause of the sinking of the boat. The boat sunk because it was driven improperly in high winds. However, the court then came back and said earlier, that because they didn’t check the boating experience and didn’t hand out the weather report that was also part of the accident. The court created circuitous routes to get to the fact that they wanted the defendant liable in this case.

It is disturbing when it can quickly become a nightmare for any program or business in attempting to help the people coming to its business. Probably in the future the weather forecasts will be in a stack on the desk with a little sign that says weather forecasts take one if you want one. There will be a sign that says the boat should not be operated if the wind speed is above XX miles an hour and there will be a wind gauge nearby.

None of which will do anything save anyone’s life. Boats are rented for weeks and the weather changes. The wind in on a cove could be calm, and you hit the open part of the lake, and the wind is catastrophic. The information you obtained earlier, a day or a week will have no value where you are when trouble starts.

Besides, how many people can effectively guess the wind speed?

I think another issue here, but not written in the opinion is the boat operation’s manual had a specific wind speed where the boat should not be used. Consequently, since the manufacturer suggested the boat not be used at that speed, probably the court thought the rental operation should not rent boats when speeds exceeded the manufacturer’s recommendations.

I also suspect that some type of wind meter will be installed on the marina property so that the rental people can look at the wind and see if it should be rented. But again then who has the ability to make that call to the wind meter when the person rents the boat says the winds find, but by the time they go back to the car get their items they want to take with them and walk out the winds kicked up does the 18-year-old summer intern holding the boat for the people as they enter it have the ability to say hey it’s too windy can’t go. How’s he going to know at the end of the dock? In the future, more people may become injured because they didn’t pick up a weather forecast and didn’t understand what they’re getting into because nobody the defendant is going to stick their neck that is to tell them.

In the past rental, operations have had no liability once the equipment rented leaves the renter’s operation.

If you are interested in having me write your release, fill out this Information Form and Contract and send it to me.

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In re Aramark Sports and Entertainment Services, LLC, 2014 U.S. Dist. LEXIS 121565

In re Aramark Sports and Entertainment Services, LLC, a Delaware limited liability company, as owner of a certain 20′ 2007 Baja Islander 202 for exoneration from or limitation of liability, Plaintiff.

Case No. 2:09-CV-637-TC-PMW

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF UTAH, CENTRAL DIVISION

2014 U.S. Dist. LEXIS 121565

August 29, 2014, Decided

August 29, 2014, Filed

PRIOR HISTORY: In re Aramark Sports & Entm’t Servs., LLC, 289 F.R.D. 662, 2013 U.S. Dist. LEXIS 42692 (D. Utah, 2013)

CORE TERMS: boat, wind, weather, lake, mile, rental, weather forecast, advisory, marina, forecast, zone, morning, bridge, rope, vessel, life jackets, gusts, mph, claimant, privity, high winds, channel, radio, rent, foreseeable, allision, mooring, rig, boating, manager

 

COUNSEL:  [*1] For Aramark Sports and Entertainment Services, a Delaware limited liability company, as owner of a certain 20″ 2007 Baja Islander 202 for exoneration from or limitation of liability, In Re, Counter Defendant: John R. Lund, LEAD ATTORNEY, SNOW CHRISTENSEN & MARTINEAU, SALT LAKE CITY, UT; Matthew W. Starley, LEAD ATTORNEY, SNOW CHRISTENSEN & MARTINEAU (ST GEORGE), ST GEORGE, UT; Terence S. Cox, LEAD ATTORNEY, PRO HAC VICE, Marc A. Centor, PRO HAC VICE, COX WOOTTON GRIFFIN HANSEN & POULOS LLP, SAN FRANCISCO, CA.

For Taranto, Terry The Estate and Heirs of, Taranto, Maryanne The Estate and Heirs of, Defendants, Counter Claimants: Daniel Thomas Benchoff, Marvel Eugene Rake, Jr., LEAD ATTORNEYS, PRO HAC VICE, RAKE PETTI PC, PHOENIX, AZ; Robert S. Prince, LEAD ATTORNEY, KIRTON MCCONKIE, SALT LAKE CITY, UT.

For Prescott, Robert The Estate and Heirs of, Prescott, Katherine The Estate and Heirs of, Defendants, Counter Claimants, Counter Defendants: Casey W. Stevens, LEAD ATTORNEY, PRO HAC VICE, STEVENS & WILLIAMSON PC, ALPHARETTA, GA; Daniel Thomas Benchoff, Marvel Eugene Rake , Jr., LEAD ATTORNEYS, PRO HAC VICE, RAKE PETTI PC, PHOENIX, AZ; Robert S. Prince, LEAD ATTORNEY, KIRTON MCCONKIE, SALT [*2]  LAKE CITY, UT.

For James Brady, Heather Brady, Defendants: Jeffery Scott Williams, LEAD ATTORNEY, Jeffrie L. Hollingworth, NELSON CHRISTENSEN HOLLINGWORTH & WILLIAMS, SALT LAKE CITY, UT; William D. Holm, LEAD ATTORNEY, John T. Masterson, PRO HAC VICE, JONES SKELTON & HOCHULI PLC, PHOENIX, AZ.

For Baja Marine, Defendant: Alex B. Marconi, Craig A. Logsdon, LEAD ATTORNEY, Patrick X. Fowler, PRO HAC VICE, SNELL & WILMER (AZ) ONE ARIZONA CTR, PHOENIX, AZ; Elisabeth M. McOmber, LEAD ATTORNEY, SNELL & WILMER (UT), SALT LAKE CITY, UT.

JUDGES: TENA CAMPBELL, United States District Judge.

OPINION BY: TENA CAMPBELL

OPINION

FINDINGS OF FACT AND CONCLUSIONS OF LAW

Aramark Sports and Entertainment Services, LLC (Aramark) owns a fleet of boats on Lake Powell that it rents to the public. On April 25, 2009, one of the Aramark power boats sank with six people on board. Four people, Terry and Maryanne Taranto, and Robert and Katherine Prescott, died in the accident. Two people, James and Heather Brady, survived.

Aramark filed a petition in this court to limit its liability under the Limitation of Liability Act, 46 U.S.C. §§ 30501-30512, from claims made by the Taranto Estates, the Prescott Estates and James and Heather Brady (the Claimants). The court held a [*3]  five-day bench trial to resolve the questions of whether any negligent conduct by Aramark employees caused the injury and whether Aramark had privity with the negligent actor or knew of the negligent conduct.

Because the court concludes that negligent conduct by Aramark employees was a cause of the injuries and also concludes that Aramark had privity and/or knew of the negligent conduct, the court denies Aramark’s petition to limit its liability.

FINDINGS OF FACT

  1. THE PARTIES
  1. Aramark

Aramark is a concessionaire for the National Park Service (NPS) in the Glen Canyon National Recreation Area. As concessionaire, Aramark operates the Wahweap Marina, located on Lake Powell just south of the Utah-Arizona border. Aramark operates other marinas on Lake Powell north of the Utah-Arizona border: Dangling Rope, Halls Crossing and Bullfrog.

Aramark will rent a power boat to anyone who is eighteen years or older and has a valid driver’s license. No previous boating experience is required.

Lake Powell’s main channel is 186 miles long when the lake is at high water. In the spring, the water is cold and the weather is frequently windy. The weather is erratic and can quickly change. In April, wind speeds [*4]  often exceed thirty miles an hour and can even reach fifty miles an hour. The weather can be calm at one part of the lake but have high winds and waves at another.

  1. The Claimants

James Brady, Robert Prescott, and Terry Taranto were retired police officers with the St. Petersburg, Florida Police Department. From time to time, they got together socially with their wives. Heather Brady, James Brady’s wife, had recently retired from the St. Petersburg Fire Department after twenty-six years as a firefighter and EMT.

In April 2009, the three couples (the Prescott Party) went on vacation together to Lake Powell. Robert Prescott had previously visited Arizona and Lake Powell and, in Heather Brady’s words, “Bob [Prescott] was familiar with the area so he just lined up all of the places we would go.” (Trial Transcript dated March 4, 2014 (“March 4 Tr.”) at 392 (Dkt. No. 310).)

  1. FRIDAY APRIL 24
  1. Arrival at Wahweap Marina

Members of the Prescott Party arrived at Lake Powell on Friday, April 24, 2009, and checked in at the resort at the Wahweap Marina area. The Bradys and the Prescotts, who arrived at Wahweap Marina on Friday before the Tarantos, went to Aramark’s boat rental office to rent a [*5]  boat for the next day. Phyllis Coon, a rental agent for Aramark, and Karen Ambrosius, Wahweap Marina general manager and the person in charge of boat rentals, were in the office. Mr. Brady, Mr. Prescott, and Ms. Coon discussed Mr. Brady’s previous boating experience,1 the Prescott Party’s plans to travel to Rainbow Bridge, which would take a full day, and the weather forecast for Saturday, April 25, the day the Prescott Party would be on the lake. The weather forecast, which was based on National Weather Service data collected at 3:44 a.m. that Friday morning, predicted the weather on Saturday, April 25 as “Breezy, with a south southwest wind, between 15 and 23 mph, with gusts as high as 37 mph.” (National Weather Service 7-Day Forecast, Ex. J-7.) Given the weather forecast, Ms. Coon suggested that they “might be more comfortable” on one of the tour boats that was available “because it was chilly on the lake and that going in the power boat they would need to go straight up to Rainbow Bridge just to ensure that they get up there, and then stop at Dangling Rope on the way back to fuel up.” (March 4 Tr. at 360 (Dkt. No. 310).) Mr. Brady and Mr. Prescott declined Ms. Coon’s suggestion [*6]  of a tour boat trip, and Mr. Prescott signed the rental contract for a Baja 202 Islander, number 647 (Boat 647). Mr. Prescott was given a copy of the weather forecast (Ex. J-7). Ms. Coon told Mr. Prescott that he would be given an updated weather report the next day before the Prescott Party departed on the boat. But this did not happen.

1 James Brady has some boating experience. He began boating as a young boy, “maybe as early as 10 riding on the boat. Dad and I would fish. From there, high school years running up and down the beach. A friend of mine had a boat. Running up and down the beach. And then my brother, who is now a licensed captain, he went into the fishing scene, so I [rode] on boats with him before, mullet boat.” (Id. at 465 (Dkt. No. 310-1).) Mr. Brady has owned several boats, including a 17-foot Mitchell, a 21-foot Mako, and “a couple Voyagers” (a Voyager is sport fishing boat). (Id.) When asked what percentage of his boating experience was in a lake and what percentage was in an ocean, Mr. Brady answered, “95 gulf or bay inland intercoastal and 5 percent lake.” (Id. at 472-73.) He estimated that the coldest water he had been in was “70, I believe 70, 72 degrees, [in] Florida.” (Id. at 473.)

  1. Boat 647

Boat 647 is just [*7]  over twenty feet in length and can hold eight passengers. U.S. Coast Guard regulations do not require boats over twenty feet in length to have positive flotation, and Boat 647 did not. (A boat with positive flotation has the ability to float and not sink for a period of time even if filled with water.) Boat 647 had a marine band radio that could receive and monitor both the hailing channel (channel 16) and the weather channel. Type II PFDs (life jackets) were on Boat 647.

The Baja 202 Islander is identified as a design category “C” boat that can withstand an upper limit wind speed of 31 miles per hour. (Baja Marine Owner’s Manual, Ex. C at 1.8.) The manual warns: “It is only the most experienced operators and crew that may be able to operate a boat safely under these conditions.” (Id.)

III. SATURDAY APRIL 25

  1. The Weather Forecasts

The National Weather Service maintains a website that is available to the public. Phyllis Coon testified that employees in Aramark’s boat rental office accessed the National Weather Service site for weather information. Moreover, it was Aramark employees’ general practice to keep the marine band radio on at the boat rental office during working hours to monitor [*8]  the weather.

The court reviewed several exhibits that showed the National Weather Service’s forecasts and advisories for April 24 and April 25, 2009. One of those exhibits included the National Weather Service 7-day forecast given to the Prescott Party, which read, “Breezy, with a south southwest wind, between 15 and 23 mph, with gusts as high as 37 mph.” (Ex. J-7.) That forecast, which was the only weather forecast given to the Prescott Party, was last updated at 3:44 a.m. on April 24. At various times after that, on April 24 and April 25, the National Weather Service updated the weather information that, if accessed through the website, would have been incorporated into a 7-day weather forecast similar to the one the Prescott Party received.

In its forecasting system, the National Weather Service divides the United States into geographical areas called “zones” and then issues forecasts for each zone. Two zones relevant to this case are (i) the Arizona Zone 5, which is a fairly small area, just below Lake Powell, and it includes Page, Arizona; and (ii) Utah Zone 21, which covers most of Lake Powell. Zone 21 forecasts give a more accurate prediction of weather conditions on Lake Powell, [*9]  but a comparison of the two zones’ forecasts for the relevant days showed that the forecasts contained similar data. (See Ex. A-120.)

Significantly, the National Weather Service updated the weather forecast at 3:18 p.m. on April 24 (almost twelve hours after issuance of the forecast data given to the Prescott Party) for Zone 5. That update announced a wind advisory in effect from 8 a.m. to 7:00 p.m. on Saturday, April 25, predicting 20 to 35 mile an hour winds and gusts around 45 miles an hour in the late morning and afternoon. (Trial Transcript dated March 7, 2014 (“March 7 Tr.”) at 907 (Dkt. No. 313-1).) A new 7-day forecast, if generated for the Prescott Party when they arrived to pick up Boat 647, would have reflected these changes (i.e., increases in wind speed) and a new wind advisory.2 And shortly before 3 a.m. for Zone 21 the National Weather Service issued a wind advisory for Lake Powell effective from noon on Saturday until 6 p.m. that evening, predicting sustained winds increasing to 25 to 35 miles an hour and gusts to around 55 miles an hour late in the afternoon. (Id. at 902.) A few minutes later, at 3:10 a.m., the National Weather Service issued a wind advisory for Zone 5, Glen Canyon [*10]  and Page, that would be in effect from 8 a.m. until 7 p.m. on Saturday, April 25. (Ex. K. at 40.) That forecast predicted “South winds 15 to 20 mph with gusts to around 35 mph shifting to the southwest 20 to 30 mph with gusts to around 45 mph in the late morning and afternoon.” (Id.)

2 The National Weather Service issues advisories to inform the public about potentially hazardous situations. (March 7 Tr. at 885.)

Alton Ketchersid, Aramark’s resident district manager for water operations at Lake Powell, testified that it was his general practice to print the weather forecast at his home each morning at about 6 a.m. so he could distribute it to the administrative office and to the lodge. In his absence, Carrie Markus, an Aramark employee, would distribute it. Both Mr. Ketchersid and Ms. Markus were gone on April 24 and April 25, 2009.

  1. Pre-Departure Briefing

Because the Prescott Party had asked to leave early the morning of September 25, Bob Graham, a boat rental instructor for Aramark, met them on the dock at about 7:30 a.m. that morning (the boat rental office opened at 8 a.m.). Mr. Graham, who was not a witness at trial but testified through deposition, testified that he gave the Prescott [*11]  Party instructions about the use of the radio, the location of the PFDs, the route to Rainbow Bridge, and the weather forecast (the same one given to the Prescott Party the day before (Ex. J-7)).

According to Mr. Graham, before he met the Prescott Party that morning, he had gone to the rental office before it opened and looked at the weather forecast on the computer. But he testified that the weather forecast he viewed was the same one the Prescott Party had been given the day before.

Mr. Graham testified that he told Mr. Prescott that wind gusts around 37 to 40 miles an hour could be dangerous and that he recommended that the Prescott Party go directly to Rainbow Bridge and return. He told them, “You don’t have time to go sightseeing, to do anything else except go up there and get back before the weather turns bad on you.” (Dep. of Robert Graham at 21.) The Bradys do not remember this discussion.

  1. Stopping Boat Rentals

Aramark did not have a written policy addressing when it would stop renting boats because of weather conditions. But Alton Ketchersid testified that “if we were standing on the dock and the wind was blowing 31 miles an hour, we would not rent the boat, no.” (Trial Transcript [*12]  dated March 3, 2014 (“March 3 Tr.”) at 101 (Dkt. No. 312).) He explained that “it was not a good practice” to do so. (Id. at 102.) He acknowledged that if the wind speed exceeded 31 miles an hour on the lake, it could be “dangerous” for those on the boats. (Id. at 103.) Mr. Ketchersid testified that the decision whether to stop boats from leaving the marina was “mainly based on the safety of the guests.” (Id. at 105.)

Phyllis Coon believed that Aramark had “a general practice” of “shut[ting] down all rentals” if there were sustained winds of thirty miles an hour. (March 4 Tr. at 336 (Dkt. No. 310).) Aramark also would not rent boats if wind or weather advisories were issued.

Jon Maris, who was the former Aramark Director of Operations, testified that if he read a wind advisory predicting gusts of 55 miles an hour, he would shut down rentals. (Dep. of Jon Maris at 47.)

Karen Ambrosius, in her deposition testimony, testified that “[w]here we had sustained winds, . . . meaning constant winds of 30 miles per hour we would not send a boat out.” (March 3 Tr. at 226 (Dkt. No. 312-1) (quoting deposition testimony).) Ms. Ambrosius had the authority and discretion to decide if boat rentals should be shut down. She had previously exercised that [*13]  authority, shutting down boat rentals if sustained winds reached thirty miles an hour or if the National Weather Service had issued a wind advisory.

Robert Grippentog, who with other family members, runs Las Vegas Boat Harbor on Lake Mead, testified in his deposition that his business does not rent power boats if the sustained wind speeds are 25 miles an hour. (Dep. of Robert Grippentog, Jr. at 43.)

According to Horace Schuler, the general manager of Lake Mohave Resort outside of Bullhead City, Arizona, if the weather forecast was for sustained winds of 25 to 35 miles an hour, gusting to 55 miles an hour, the resort would not rent ski boats. (Dep. of Horace Schuler at 105.)

  1. Karen Ambrosius Stops Boat Rentals

Ms. Ambrosius testified that she was unaware of either the updated weather forecasts or the wind advisories. Ms. Ambrosius claimed that it was not until approximately 10:30 a.m., when she heard the National Weather Service wind advisory on Channel 16, that she knew that high winds were predicted. According to Ms. Ambrosius, she then walked outside and looked at the lake. Only then did she decide to end boat rentals.

Ms. Ambrosius also testified that the Prescott Party had told her [*14]  that they would be gone for only half a day. This testimony is contrary to the testimony of Ms. Coon, James Brady, Heather Brady and Robert Graham.

When asked what steps she had taken to alert the Prescott Party of the high winds, Ms. Ambrosius testified that both she and her office manager called the dispatch at the National Park Service and told them that the boat was late. But there is no record of any calls being made to the National Park Service until after Boat 647 had sunk. (Ex. J-39 at BAJA00036, Ex. J-40.) According to Steve Luckesen of the National Park Service, if calls had been made to the National Park Service, they would be reflected in the National Park Service log. (Dep. of Steve Luckesen at 517.)

She also claimed that she called the Aramark parts room, asked that if there was a chase boat available, and said “let them know that we have a boat that is late.” (March 3 Tr. at 250-51 (Dkt. No. 312-1).) Nothing in the record supports this claim, and Ms. Ambrosius admitted that she could not testify that she sent a chase boat to search for Boat 647.

Ms. Ambrosius did not attempt to call Dangling Rope Marina to have personnel there warn the Prescott Party of the high winds although [*15]  she knew that the Prescott Party would stop there to refuel. She did not notify any of the tour captains to watch for Boat 647 and alert them of the danger. She did not attempt to call the Prescott Party on the marine radio. (Although that would have been futile because Mr. Brady did not turn on Boat 647’s radio.) In sum, the court finds that Ms. Ambrosius did nothing to locate Boat 647.

  1. The Prescott Party’s Trip

The Prescott Party left the marina at about 8 a.m. James Brady was operating the boat because he had the most experience. During the trip to Rainbow Bridge, Heather Brady took photographs. Once they arrived at Rainbow Bridge, the party (with the exception of Katherine Taranto) hiked to the Rainbow Bridge monument. When they returned to the dock, they met some hikers who were waiting for a boat to arrive. James Brady tried to call Dangling Rope Marina to tell someone there about the hikers, but he could not contact the marina. He again turned off the radio.

The Prescott Party began the return trip to Wahweap Marina. They stopped, as they had been instructed to do, at Dangling Rope Marina to refuel. Once the boat had been refueled, the Prescott Party left. As they were leaving [*16]  Dangling Rope, Heather Brady saw both a tour boat and a National Park Service boat apparently headed toward Dangling Rope Marina.

  1. Boat 647 Sinks

After the Prescott Party left Dangling Rope, the channel became more open and the water was choppier. Heather Brady moved to the back seat to be more comfortable. No one in the Prescott Party was wearing a life jacket.

When they reached an area of the lake called Padre Bay (on the Utah side of the state line), the water grew rougher and spray came over the bow. Heather Brady felt water at her feet and she called to her husband. She heard him calling “mayday, mayday, mayday, vessel 647” over the radio. (March 4 Tr. at 411 (Dkt. No. 310).) She jumped out of the boat and grabbed one of the life jackets that floated by her. She swam with the life jacket to Terry Taranto and gave it to him. She grabbed another life jacket and swam to her husband. Then Terry Taranto “came over a wave and said, ‘I need a life jacket. I need a life jacket.'” (Id. at 414.) She found an extra life jacket and gave it to him. She and Jim Brady, using the life jackets they found floating in the water and a blue canvas bag that was also in the water, were able to reach a rock pile. [*17]  They climbed on the rock pile and waited until they were rescued by a National Park Service boat. The other members of the Prescott Party did not survive.

When Boat 647 was recovered, it did not have a breached hull. The boat had no value.

CONCLUSIONS OF LAW

Aramark has filed a petition under the Limitation of Liability Act, 46 U.S.C. §§ 30501-30512, seeking exoneration or limitation of liability under 46 U.S.C. § 30505 (titled “General limit of liability”). Section 30505 provides that “the liability of the owner of a vessel for any claim, debt, or liability described in subsection (b) shall not exceed the value of the vessel and pending freight.” 46 U.S.C. § 30505(a) (emphasis added). The Act does, however, create an exception to that general rule by defining “claim, debt, or liability”: “claims, debts, and liabilities subject to limitation under subsection (a) are those arising from any embezzlement, loss, or destruction of any property, goods, or merchandise shipped or put on board the vessel, any loss, damages, or injury by collision, or any act, matter, or thing, loss, damage, or forfeiture, done, occasioned, or incurred, without the privity or knowledge of the owner.” 46 U.S.C. § 30505(b) (emphasis added).

Courts use a two-step inquiry to determine whether a petitioner is entitled to exoneration or [*18]  limitation of liability when sued for negligence. “First, the court must determine what acts of negligence . . . caused the accident. Second, the court must determine whether the shipowner had knowledge [of] or privity [with the person who committed] those same acts of negligence . . . .” Farrell Lines, Inc. v. Jones, 530 F.2d 7, 10 (5th Cir. 1976). The claimant bears the burden of proving negligence and if successful, the burden shifts to the shipowner to prove lack of knowledge or privity. Id.

  1. ARAMARK’S NEGLIGENCE

Torts occurring on navigable waters are governed by maritime law. “The elements of a maritime negligence cause of action are essentially the same as land-based negligence under the common law.” Withhart v. Otto Candies, L.L.C., 431 F.3d 840, 842 (5th Cir. 2005) (citations omitted). A claimant must prove “a duty owed by the defendant to the plaintiff, breach of that duty, injury sustained by [the] plaintiff, and a causal connection between [the] defendant’s conduct and the plaintiff’s injury.” In re Cooper/T. Smith, 929 F.2d 1073, 1077 (5th Cir. 1991).

  1. Duty/Breach

“Under Maritime law, a plaintiff is owed a duty of ordinary care under the circumstances.” In re Great Lakes Dredge & Dock Co. LLC, 624 F.3d 201, 211 (5th Cir. 2010). “We hold that the owner of a ship in navigable waters owes to all who are on board for purposes not inimical to his legitimate interests the duty of exercising reasonable care under the circumstances [*19]  of each case.” Kermarec v. Compagnie Generale Transatlantique, 358 U.S. 625, 632, 79 S. Ct. 406, 3 L. Ed. 2d 550 (1959).

The court in In re Signal Int’l, LLC, 579 F.3d 478 (5th Cir. 2009), gave a thorough analysis of duty in a maritime negligence action. In Signal, the owner of two barges named the MISS TIFF and the JACK KING filed a petition under the Limitation of Liability Act, when the two barges broke loose from their moorings during Hurricane Katrina and allided3 with a bridge located approximately 4.7 miles away on Interstate 10 in Mississippi. The Mississippi Department of Transportation (MDOT) repaired the bridge and opposed Signal’s petition. The Fifth Circuit affirmed the order of the trial court denying, after a bench trial, exoneration but granting limitation of liability.

3 “An allision is a collision between a moving vessel and a stationary object.” Signal, 579 F.3d at 484 n.4 (internal quotation marks and citations omitted).

The trial court found that Signal had used “an improvised, untested method” of securing the two vessels and that Signal’s negligence caused the allision. Id. at 486. Signal argued that it was entitled to exoneration because the damage to the bridge was not a foreseeable consequence of its negligent mooring of the two vessels. The Fifth Circuit rejected Signal’s argument:

The critical question in this case is whether the allision with the Interstate [*20]  10 bridge was a harm of the general sort to an entity of a general class that a reasonably thoughtful person might have anticipated to result from Signal’s negligent mooring of the MISS TIFF and the JACK KING in light of the anticipated natural forces wrought by Hurricane Katrina. As the question makes clear, our analysis does not focus on the particular allision site, but the general risk of allision; it does not focus on MDOT, but on the class of property owners in the paths available to the runaway barges.

Id. at 492. The court cautioned: “The test of foreseeability is not measured against normal conditions, but those that were anticipated or reasonably should have been anticipated.” Id. at 493. Looking at the facts of the case, the court concluded that “the approaching hurricane, the expected height and predicted movement of the storm surge, and the topology of the Pascagoula River basin gave rise to the need to moor the barges and made this allision a foreseeable consequence of negligence in that mooring.” Id.

Here, the court concludes that Aramark breached its duty of reasonable care when it allowed the Prescott Party to leave the morning of April 25, 2009. The court bases this conclusion on the following: [*21]

  1. The weather forecasts and wind advisories

As detailed above, the forecast at 3:18 in the afternoon on April 24 for Zone 5 showed that a wind advisory was in effect from 8 a.m. to 7 p.m. on April 25. Then, around 3 a.m., April 25, the National Weather Service issued wind advisories for both Zone 5 and Zone 21. Yet Ms. Ambrosius denied having seen or heard any forecast that contained that information. According to Ms. Ambrosius, the first she was aware of the wind advisory was when she heard the information on Channel 16 around 10 a.m. the morning of the 25th. But throughout Ms. Ambrosius’ testimony, as the court has noted above, her recounting of the events of April 24 and 25 differed significantly from other evidence. For that reason, the court concludes that Ms. Ambrosius did not have an accurate memory about those events and the court cannot rely on her testimony.

Aramark, primarily Ms. Ambrosius, had a duty to be advised of the current weather forecasts and wind advisories before allowing any party to leave the marina in an Aramark power boat. This is particularly true because, as Aramark knew, in the spring, the weather changed constantly. Phyllis Coon testified that in the spring, [*22]  shutting down rentals was considered almost on “an hourly basis” because of the erratic weather. (March 4 Tr. at 337 (Dkt. No. 310).) And “[s]pringtime is always windy on the lake.” (Dep. of Donald Scott Bergantz at 107.)

Moreover, the water could be very cold in April which could lead to hypothermia if boat passengers were in the water.

  1. Boat 647

The boat owner’s manual cautioned that when wind speeds reached 31 miles an hour, only experienced operators might be able to safely operate the boat. Yet Aramark rented to anyone eighteen years or older, with a valid driver’s license, without regard to that person’s previous boating experience.

Because Boat 647’s length exceeded twenty feet, the boat did not have positive flotation and could not remain afloat when filled with water.

The court, when it considers these facts, concludes that Aramark had frequently in the past recognized that high winds could be dangerous to boaters. Aramark should have been aware, if it was not, that high winds were forecast for April 25, 2009. And it was foreseeable to Aramark that if those who had rented Baja 202 Islanders for a trip on Lake Powell the morning of April 25, 2009, were allowed to depart, the boats could sink [*23]  because of the high winds. It was further foreseeable to Aramark that if the boats sank, particularly in the cold April water, the passengers could suffer injury and even death. Aramark breached that duty when it allowed the Prescott Party to leave.

  1. Causation

Aramark’s negligence is actionable only if its action was the legal cause of the Claimants’ injuries, which is “something more than ‘but for’ causation, and the negligence must be a ‘substantial factor’ in the injury.'” Donaghey v. Ocean Drilling & Exploration Co., 974 F.2d 646, 649 (5th Cir. 1992), quoting Thomas v. Express Boat Co., Inc., 759 F.2d 444, 448 (5th Cir. 1985).

Here, the court concludes that Aramark’s failure to stop the Prescott Party from leaving was a substantial factor in the sinking of Boat 647 and the resulting harm. Even though Aramark argues that Boat 647 sank because of the actions of the Prescott Party, the court concludes that the failure to stop the boat from leaving was a substantial factor in the sinking of the boat.

In Thomas v. Express Boat Co., Inc., 759 F.2d 444 (5th Cir. 1985), Lance Thomas, a crewman aboard a rig supply boat, sued the operator of the boat, Express Boat, for injuries he sustained while mooring the rig supply boat to an offshore drilling rig. The rig was owned and operated by Penrod Drilling Company (Penrod). The lower court decided that Penrod was negligent because as part of the mooring [*24]  procedure, it had presented a frayed line to the rig supply boat. (A jury had previously found that Express Boat was negligent and returned a verdict in favor of Mr. Thomas.) The court allocated one-third of the responsibility to Penrod. On appeal, Penrod (and Mr. Thomas, whose damage award was effectively reduced by the allocation of fault) argued that the evidence was insufficient to prove that Penrod’s negligence was a legal cause of Mr. Thomas’ injuries. The appellate court affirmed the trial court’s decision holding that Penrod’s negligence in presenting the frayed rope was more than “but for” causation of Mr. Thomas’ injury and was a “substantial factor in the injury.” Id. at 448. In response to appellants’ argument that the captain of the rig supply boat was negligent and caused the injury because he made the decision to bring in the frayed line, the court stated: “The danger in sending a frayed line to a vessel in such poor weather was certainly foreseeable. Although [Captain] Peterson also may have been negligent in deciding to bring in the line, this does [not] excuse Penrod’s negligence.” Id. The court noted that, “because Penrod’s negligence [in presenting the frayed rope] made [Captain [*25]  Peterson’s] decision necessary, the district court properly concluded that Penrod bears some responsibility for the accident.” Id.

Here, similar to the facts in Thomas, as this order details above, the danger of allowing the Prescott Party to depart the morning of April 25, 2009, certainly was foreseeable to Aramark.4 Regardless of whether the members of the Prescott Party made wrong choices while on the boat, the harm was, at least in part, the result of Aramark’s initial negligence and so Aramark “bears some responsibility for the accident.” Id.

4 See In re: Signal Int’l, LLC, 579 F.3d 478 (5th Cir. 2009), for a discussion of the role of foreseeability in both duty and causation: “We have historically considered foreseeability relevant to both the duty and proximate cause determinations.” Id. at 490 n.12 (citations omitted).

Whether the Prescott Party’s actions contributed to the loss must be resolved in another proceeding.

  1. PRIVITY

Because Claimants have proven negligence, the burden shifts to Aramark to show that it did not have knowledge of the acts of negligence and was not in privity with the negligent actor. Farrell Lines, Inc. v. Jones, 530 F.2d 7, 10 (5th Cir. 1976). “When a corporation owns the vessel, the test is whether culpable participation or neglect of duty can be attributed to an officer, managing [*26]  agent, supervisor, or other high-level employee of the corporation.” Carr v. PMS Fishing Corp., 191 F.3d 1, 4 (1st Cir. 1999) (citations omitted).

Aramark has not met its burden. The testimony, including that of the general manager, Karen Ambrosius, was clear that the general manager had the discretion and authority to close boat rentals. In fact, it was Ms. Ambrosius who belatedly made the decision to close rentals on April 25, 2009.

III. CONCLUSION

The court denies Aramark’s petition to exonerate it or limit its liability. The court does not make any findings or reach any other conclusion regarding the other allegations of negligence asserted by the Claimants. It also makes no findings or conclusions concerning whether anyone in the Prescott Party was also negligent. These questions are to be resolved in another proceeding. The court ORDERS that all pending motions are denied as moot.

DATED this 29th day of August, 2014.

BY THE COURT:

/s/ Tena Campbell

TENA CAMPBELL

U.S. District Court Judge

 


Stop the Draining of the Pudre River to Protect a Proposed Whitewater Park

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Hi Amazing Poudre River Lovers!

You’ve sent 450 emails to the Fort Collins City Council asking them to Protect the Poudre River by Actively Opposing the river-draining Northern Integrated Supply Project (NISP). Great work! Thank you! We are almost to our goal of 500!

As you know, the City is proposing to build a whitewater park in downtown Fort Collins. But, if NISP is built, it would drain the river to the point that the whitewater park would only be viable a few weeks per year.

It’s CRAZY to build a whitewater park and then drain the river that makes the whitewater park viable!

Please help reach the goal of 500 emails to City Council. Here’s the link! CLICK: http://savethepoudre.org/eblast/

Here’s what else you can do:

1. Attend the City’s “Open House” regarding NISP negotiation – (TOMORROW NIGHT) Monday, February 13, 5-7 p.m. at the Lincoln Center’s Columbine Room, 417 West Magnolia St.

2. Call key members of City Council: Councilmember Kristin Stephens: 970-217-5817; Councilmember Gerry Horak: (970) 217-2993; Mayor Wade Troxell: 970-219-8940

3. Attend, and speak at, Councilmember Horak’s “Listening Session” — 9:30-11:30 a.m., Friday, February 17 – Fort Collins Senior Center, 1200 Raintree Drive

4. Attend, and speak at, the City Council meeting on February 21st at City Hall, 300 LaPorte Ave.

Thank you for your work and support!

Gary Wockner, Director, Save The Poudre

Copyright © 2017 Save The Poudre: Poudre Waterkeeper, All rights reserved.
You are receiving this email because you signed up for information about the Cache la Poudre River on our website SaveThePoudre.org
Our mailing address is:Save The Poudre: Poudre WaterkeeperPO Box 20

Fort Collins, CO 80522

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Motion for Summary Judgment failed because the plaintiff’s claim was based upon a failure to follow a statute or rule creating a negligence per se defense to the release in this Pennsylvania sailing case.

Negligence per se is an elusive legal issue that generally prevents a release to be effective as in this case. Understanding the issue for your state is important.

Citation Knarr v. Chapman School of Seamanship, 2000 U.S. Dist. LEXIS 5351

State: Pennsylvania, United States District Court for the eastern District of Pennsylvania

Plaintiff: Jean Knarr & Lester Knarr

Defendant: Chapman School of Seamanship

Plaintiff Claims: negligence per se

Defendant Defenses: release and plaintiff failed to plead enough facts to establish a negligence per se case

Holding: for the plaintiff

Year: 2000

Negligence per se cases are arising with more frequency. They are a way the plaintiff can beat the release in recreational activities. In most states, a successful negligence per se claim is not dismissed because of a release, and the plaintiff can go to trial. On top of that, Juries take a dim view of a defendant who did not follow the law or rules for his industry.

In this case, the plaintiff (wife) enrolled in a seamanship school with the defendant in Florida. (Thus the reason why the Federal District Court was hearing the case.)

 

The defendant filed a motion for summary judgment based on the release; the plaintiff had signed and argued the negligence per se claims of the plaintiff should be dismissed because the plaintiff failed to present evidence that the defendant had violated a rule or statute. This was the second motion for summary judgement; the first was over the issues of the release and the simple or ordinary negligence claims.

Analysis: making sense of the law based on these facts.

Florida’s law allows a release to stop a negligence claim. (See Release fails under Florida’s law because it is only an assumption of risk form, not a release in a Go-Kart case.; Trifecta of stupidity sinks this dive operation. Too many releases, operation standards and dive industry standards, along with an employee failing to get releases signed, sunk this ship on appeal.; Release for bicycle tour wins on appeal but barely; Electronic release upheld in Florida federal court for surfing on a cruise ship, Florida statute that allows a parent to release a minor’s right to sue)

However, Florida does not allow a release to stop a negligence per se claim.

In denying an earlier motion for summary judgment, the Honorable Marvin Katz concluded that although the indemnification agreement protected the Defendant from liability arising from mere negligence, it could not protect itself from claims arising from negligence per se.

Under Florida’s law, negligence per se is defined as:

According to the Supreme Court of Florida, negligence per se is established if there is “a violation of any … statute which establishes a duty to take precautions to protect a particular class of persons from a particular injury or type of injury.”

Negligence per se under Florida’s law was defined broadly: Florida’s state courts have concluded that violations of other legal pronouncements, other than statutes, amount to negligence per se. Negligence per se was applied to violation of Florida Department of Health and Rehabilitative Service Rules, violations of administrative regulations, and FAA regulations. (Compare this to the limited application of negligence per se in a Colorado rafting case in 10th Circuit Court of Appeals upholds Colorado law concerning releases in a whitewater rafting fatality.)

The issue here was whether any US Coast Guard regulation applied to this defendant and the ship the injury occurred upon and whether the regulation applied to the ladder, specifically.

Here the court found that the boat was of the size the regulation was applied to. The court also found the boat was “for hire” because the plaintiff had paid to be on the boat to take the seamanship course. The final issue was whether the regulation, which was a standard created by ANSI, (American National Standards Institute) applied in this case.

The court found the regulation was specifically adopted for situations, specifically like this:

One could hardly imagine a set of ship regulations more specifically written for the benefit of passengers for hire than ones dealing with escape, as evidenced by certain events that occurred 88 years ago today in the North Atlantic.

The reference was to the sinking of the Titanic.

The final issue was whether the claims of the plaintiff, as plead, fit the requirement for negligence per se, an injury the regulations were designed to prevent. Here again, the court found the pleadings were not specific, but outlined enough of the issues to meet the definitions of a ladder that was dangerous. This was based more on the failure of the defendant to show the ladder met the ANSI and subsequent US Coast Guard regulations.

Our conclusion would be different, of course, if the record contained either some specific information on the ladder’s actual set-back distance, or on the precise features of the ladder that allegedly caused the accident. At this point, however, we have neither. It thus appears that the case will turn on a resolution of disputed facts, some of which will, no doubt, be the subject of expert opinions.

Consequently, the case was allowed to proceed.

So Now What?

If you were to speculate, this boat was probably a sail boat created for some owner. It has been converted to a vessel for hire when the classes were offered by the owner. As such, no standard applied to the vessel as a pleasure vessel, when it was being built; however, now that it fit the regulations, it had to meet the regulations.

Another scenario could be the vessel was old enough that it was built before the regulations were in effect.

Both scenarios can be found in outdoor programs daily.  Land is purchased for a recreation program with buildings already on the land. No emergency exit from the second floor, no fire alarms, all could lead to losing a law suit.

A release is a great line of defense against claims, but fraud, gross negligence and as seen here, negligence per se will not be stopped by a release. Consequently, risk management and education is a never-ending requirement for a recreation provider to be on the lookout for.

For other articles, looking at Negligence per se issues see:

Instructional Colorado decision Negligence, Negligence Per Se and Premises Liability  http://rec-law.us/wEIvAW

10th Circuit Court of Appeals upholds Colorado law concerning releases in a whitewater rafting fatality.            http://rec-law.us/1njzlhf

If you really are bad, a judge will figure out a way to void your release         http://rec-law.us/Xyu8CZ

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Knarr v. Chapman School Of Seamanship, 2000 U.S. Dist. LEXIS 5351

Knarr v. Chapman School Of Seamanship, 2000 U.S. Dist. LEXIS 5351

Jean Knarr & Lester Knarr v. Chapman School Of Seamanship

CIVIL ACTION NO. 99-952

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA

2000 U.S. Dist. LEXIS 5351

April 14, 2000, Decided

April 14, 2000, Filed

COUNSEL: For JEAN KNARR, LESTER KNARR, PLAINTIFFS: DAVID S. KATZ, DAVID S. KATZ, ESQ., P.C., NORRISTOWN, PA USA.

For CHAMPMAN SCHOOL OF SEAMANSHIP, DEFENDANT: ANDREW P. MOORE, MARSHALL, DENNEHEY, WARNER, COLEMAN & GOGGIN, DOYLESTOWN, PA USA.

JUDGES: JACOB P. HART, UNITED STATES MAGISTRATE JUDGE.

OPINION BY: JACOB P. HART

OPINION

MEMORANDUM AND ORDER

JACOB P. HART

UNITED STATES MAGISTRATE JUDGE

April 14, 2000

The Defendant in this personal injury action has filed a motion for summary judgment. It argues that the Plaintiffs have failed to present any expert testimony to support their contention that the Defendant violated Coast Guard regulations and Florida state laws and codes that would constitute negligence per se pursuant to Florida law. Without the ability to prove negligence per se, Defendant argues that Plaintiffs’ claims are all barred by the release Mrs. Knarr signed.

[HN1] Summary judgment is warranted where the pleadings and discovery, as well as any affidavits, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Fed. R. Civ. Pr. 56. [HN2] The moving [*2] party has the burden of demonstrating the absence of any genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986). [HN3] When ruling on a summary judgment motion, the court must construe the evidence and any reasonable inferences drawn from it in favor of the non-moving party. Tigg Corp. v. Dow Corning Corp., 822 F.2d 358, 361 (3d Cir. 1987).

Construing the evidence in favor of the Plaintiffs, as we are required to do at this stage of the proceedings, reveals the following. Plaintiff, Jean Knarr, was a student at the Chapman School of Seamanship, (“Chapman”). In March of 1997, Mrs. Knarr slipped and fell on one of the wet, wooden ladder steps, while disembarking from a ship, owned and operated by Chapman. To stop her fall, she attempted to reach for a railing on the right side of the ladder. Unfortunately, there was no railing on the right side of the ladder. As a result of the fall, Mrs. Knarr fractured her right foot, ankle, and leg, and suffered other bruises and lacerations.

Before the accident took place, Mrs. Knarr signed an agreement to indemnify Chapman for any suit or claim arising [*3] from the use of Chapman’s equipment.

I, the undersigned, for myself … and all those claiming by, through or under me, for and in consideration of being allowed to use the equipment, motors and vessels … owned by … the Chapman School of Seamanship, Inc. … hereby forever release and indemnify said Chapman School of Seamanship, Inc. from any … bodily injury … suit or claim arising out of the use of any equipment, motors or vessels, whether or not such … bodily injury … is based upon the sole negligence of Chapman School of Seamanship … .

(Chapman Application/Registration Form).

In denying an earlier motion for summary judgment, the Honorable Marvin Katz concluded that although the indemnification agreement protected the Defendant from liability arising from mere negligence, it could not protect itself from claims arising from negligence per se.

[HN4] While, under Florida law, contracts indemnifying a party against its own negligence will be enforced if the language of the contract is clear and unequivocal, see Charles Poe Masonry v. Spring Lock Scaffolding Rental Equip. Co., 374 So. 2d 487, 489 (Fla. 1979)(citation omitted), a party [*4] cannot indemnify itself against negligence per se. See John’s Pass Seafood Co. v. Weber, 369 So. 2d 616, 618 (Fl. 2d Dist. Ct. App. 1979)(holding such indemnification is against public policy).

(Order, 9/9/99). Judge Katz found that there were unresolved issues of fact regarding Chapman’s conduct and whether such conduct constituted negligence per se.

Chapman has now filed a second motion for summary judgment, arguing that the Plaintiffs have failed to present any expert testimony supporting their contention that certain conditions on the ship constituted statutory violations, establishing negligence per se. In response, the Plaintiffs present the court with a report and a letter from the engineering firm of Goedken, Liss. Specifically, Harold A. Schwartz, P.E., states that Chapman violated Coast Guard Regulations, Florida laws and codes, and the rules of the State Boating Law Administrators for safe boating certification.

In the report, however, Mr. Schwartz fails to identify any specific statute, regulation, or rule, that Chapman violated. In a follow-up letter, Mr. Schwartz refers to a standard adopted by the American National Standards Institute [*5] (“ANSI”), applying to ladders. He opines that the ladder in question fails to comply with the ANSI standard in three respects. First, the top rung is not level with the landing platform. Second, the side rails failed to extend the required 3 feet 6 inches above the top of the landing platform. Finally, the ladder did not have sufficient step across distance (the distance from the centerline of the rungs to the nearest edge of the structure). (Letter of Schwartz, 12/9/99).

The court is left to answer the questions of whether a violation of these ANSI standards is sufficient to constitute negligence per se under Florida law, and if not, are these standards embodied in any governing statutes, a violation of which would constitute negligence per se.

We answer the first question in the negative. [HN5] According to ANSI, it is the “coordinator of the United States private sector voluntary standardization system.” <<UNDERLINE>http://web.ansi.org/public/about.html, 4/11/00> As such, the ANSI standards do not have the force of law, absent adoption by statute, ordinance, or regulation. See Jackson v. H.L. Bouton Co., 630 So. 2d 1173, 1174-75 (Dist. Ct.App.Fl. 1994)(violation [*6] of ANSI standard is “merely evidence of negligence.”); Evans v. Dugger, 908 F.2d 801, 807 (11th Cir. 1990)(ANSI standards regarding handicapped access adopted by Florida regulation); Nicosia v. Otis Elevator Co., 548 So. 2d 854, 855 (Dist. Ct.App.Fl. 1989)(Florida adopted ANSI standard for elevator safety by statute).

However, our own search of Coast Guard regulations reveals that the Coast Guard has adopted the specific ANSI standard regarding the step off space (minimum of 7 inches) for escape ladders on small passenger vessels. 46 C.F.R. § 177.500(k). Therefore, we must determine whether a violation of this Coast Guard regulation constitutes negligence per se pursuant to Florida law.

[HN6] According to the Supreme Court of Florida, negligence per se is established if there is “a violation of any … statute which establishes a duty to take precautions to protect a particular class of persons from a particular injury or type of injury.” DeJesus v. Seaboard Coast Line Railroad Co., 281 So. 2d 198, 201 (Fla. 1973). Although we have been unable to find any case arising out of the state courts in Florida which concludes that a violation [*7] of a Coast Guard regulation amounts to negligence per se, [HN7] the Fifth Circuit and the United States Supreme Court have concluded that such a violation does constitute negligence per se. Reyes v. Vantage Steamship Co., Inc., 609 F.2d 140, 143 (5th Cir. 1980)(“the failure to follow any Coast Guard regulation which is a cause of an injury establishes negligence per se.”); Kernan v. American Dredging Co., 355 U.S. 426, 2 L. Ed. 2d 382, 78 S. Ct. 394 (1958). [HN8] Similarly, Florida state courts have concluded that violations of other legal pronouncements, other than statutes, amount to negligence per se. See First Overseas Investment Corp. v. Cotton, 491 So. 2d 293, 295 (Dist.Ct.App.Fl. 1986)(violation of Florida Department of Health and Rehabilitative Service Rule constitutes negligence per se); Underwriters at La Concorde v. Airtech Services, Inc., 493 So. 2d 428, 430 (Fla. 1986)(Boyd, J. concurring)(acknowledging expansion of negligence per se concept to include violations of administrative regulations); H.K. Corporation v. Miller, 405 So. 2d 218 (Dist.Ct.App.Fl. 1981)(violation of state administrative [*8] regulation constituted negligence per se); Florida Freight Terminals, Inc. v. Cabanas, 354 So. 2d 1222, 1225 (Dist.Ct.App.Fl. 1978)(violation of FAA regulation constitutes negligence per se). But see Murray v. Briggs, 569 So. 2d 476, 480 (Dist.Ct.App.Fl. 1990)(violation of Interstate Commerce Commission regulation not negligence per se); Jupiter Inlet Corp. v. Brocard, 546 So. 2d 1 (Dist.Ct.App.Fl. 1989)(violation of OSHA regulation does not constitute negligence per se). 1 Therefore, we conclude that a violation of a Coast Guard regulation will constitute negligence per se if the plaintiff is a member of the particular class of persons that the regulation sought to protect and she suffered an injury that the regulation was designed to prevent.

1 In Jones v. Spentonbush-Red Star Co., 155 F.3d 587 (2nd Cir. 1998), the Second Circuit distinguished violations of OSHA and Coast Guard regulations. The court explained that OSHA, itself, states that it should not be construed “to enlarge or diminish or affect in any other manner the common law or statutory rights, duties, or liabilities of employers and employees.” Jones, at 595 (citing 29 U.S.C. § 653(b)(4)). Relying on this language, the court explained that imposing negligence per se for an OSHA violation would “enlarge or diminish or affect … the liability of a maritime employer.” Jones, at 595.

[*9] As indicated above, the only ANSI standard relevant to the issues in this case that has actually been adopted by the Coast Guard, is the one dealing with the minimum distance that must be observed between the rungs of the ladder and the nearest permanent object in back of the ladder (here the side of the cabin). 46 C.F.R. § 177.500(k) requires that this distance be at least 7 inches.

The first question we must answer about this regulation is whether the plaintiff is a member of the particular class of persons that the regulation sought to protect. We have little trouble concluding that she is. The regulation appears at Subchapter T of the Coast Guard regulations. This subchapter specifically covers “Small Passenger Vessels (Under 100 Tons).” There is no dispute here that defendant’s boat is such a vessel. The general provisions of subchapter T state that the provisions of the subchapter apply, inter alia, if the vessel carries less than 150 passengers, but more than 6, so long as at least one of the six passengers is “for hire.” Since she was a student of defendant, using defendant’s boat for instruction, clearly Mrs. Knarr was a passenger “for hire.” Finally, the specific ladder [*10] regulation in question appears under the heading “Escape Requirements.” One could hardly imagine a set of ship regulations more specifically written for the benefit of passengers for hire than ones dealing with escape, as evidenced by certain events that occurred 88 years ago today in the North Atlantic. Cf. The Titanic, 233 U.S. 718, 34 S. Ct. 754, 58 L. Ed. 1171 (1914).

The next question — whether plaintiff suffered an injury that the regulation was designed to prevent — is a bit more difficult to answer. We nevertheless conclude that there are present here at least some genuine issues of material fact that prevent the court from ruling, as a matter of law, that Mrs. Knarr’s injuries could not have been avoided had the ladder complied with this regulation.

Defendant urges us to give a literal reading to plaintiffs’ complaint, and to find from such a reading that Mrs. Knarr has not alleged any fact from which a jury could conclude that the distance between the cabin wall and the ladder step could have proximately caused her fall. We decline to do so. In addition to the well known principle of federal pleading that [HN9] the facts alleged in a complaint need only put the defendant on notice of the [*11] plaintiff’s theories of recovery and need not state each element of proof with specificity, see Fed.R.Civ.P. 8(a)(2), we have here at least two specific allegations that could relate to the ladder’s set back distance.

In paragraph 10 a. of the complaint, Mrs. Knarr alleges that “the step upon which she was standing was in an unsafe condition.” In the next subparagraph, 10 b., she claims that “there were slippery substances on the steps which were not visible to the plaintiff.” While neither of these allegations specifically attributes negligence to the ladder set-back distance, we think it would be improper, at this point, to preclude plaintiff’s expert from testifying that the setback distance was related to the general “unsafe condition” allegation, or to the plaintiff’s alleged inability to see the condition of the ladder steps themselves.

Our conclusion would be different, of course, if the record contained either some specific information on the ladder’s actual set-back distance, or on the precise features of the ladder that allegedly caused the accident. At this point, however, we have neither. It thus appears that the case will turn on a resolution of disputed facts, some [*12] of which will, no doubt, be the subject of expert opinions. Accordingly, summary judgment is inappropriate at this time.

An appropriate order follows.

ORDER

AND NOW, this 14 day of April, 2000, upon consideration of the Defendant’s Motion for Summary Judgment, the Plaintiffs’ response, thereto, including the attached reports of his expert engineer, and for the reasons stated in the accompanying Memorandum, IT IS HEREBY ORDERED that the Motion is DENIED.

BY THE COURT:

JACOB P. HART

UNITED STATES MAGISTRATE JUDGE


De Castro v. Odetah Camping Resort, Inc., 2015 Conn. Super. LEXIS 2297

De Castro v. Odetah Camping Resort, Inc., 2015 Conn. Super. LEXIS 2297

Adelson Luiz De Castro, Administrator of the Estate of Jose Luiz De Castro v. Odetah Camping Resort, Inc.

FBTCV126026625

SUPERIOR COURT OF CONNECTICUT, JUDICIAL DISTRICT OF FAIRFIELD AT BRIDGEPORT

2015 Conn. Super. LEXIS 2297

September 2, 2015, Decided

September 2, 2015, Filed

NOTICE: THIS DECISION IS UNREPORTED AND MAY BE SUBJECT TO FURTHER APPELLATE REVIEW. COUNSEL IS CAUTIONED TO MAKE AN INDEPENDENT DETERMINATION OF THE STATUS OF THIS CASE.

JUDGES: [*1] Michael P. Kamp, J.

OPINION BY: Michael P. Kamp

OPINION

MEMORANDUM OF DECISION RE DEFENDANT’S MOTION TO SET ASIDE THE VERDICT AND MOTION FOR JUDGMENT NOTWITHSTANDING THE VERDICT

PROCEDURAL BACKGROUND

The defendant, Odetah Camping Resort, Inc., has filed a renewal of its motion for directed verdict and a motion to set aside the jury’s verdict.1 The trial commenced on April 28, 2015, and evidence concluded on May 6, 2015, when the defense rested its case. The jury received the charge on the law on May 6, 2015. On May 6, 2015, the jury returned a verdict for the plaintiff, Adelson Luiz DeCastro, Administrator of the Estate of Jose Luiz DeCastro, and awarded total damages of $229,155.96. Regarding the question of comparative negligence, the jury found the plaintiff’s decedent, Jose DeCastro, was 49% responsible for his own injuries.

1 The defendant originally moved for a directed verdict at the close of the plaintiff’s case in chief. At that time, the court reserved decision, and the defendant commenced its defense. On close of the defendant’s case, the matter was submitted to the jury.

The defendant filed its motion to set aside the verdict on May 15, 2015. The plaintiff filed its objection to the defendant’s motion [*2] on May 19, 2015. On June 22, 2015, the court heard the matter at short calendar and took the papers.

The defendant argues in its motion that the plaintiff failed to prove beyond the realm of surmise and speculation that the defendant’s negligence was the proximate cause of the death of the decedent. This argument is based upon a lack of evidence as to what actually caused the decedent to drown.

II

FACTS

After a trial, the jury could have found as follows. On July 7, 2011, the decedent and a group of friends went to the defendant resort located in Bozrah, Connecticut. In order to gain entrance, the decedent paid an entrance fee. The defendant is an approximately 100-acre campground that offers multiple recreational activities. In addition to facilities to accommodate overnight camping, the defendant offers sporting facilities, which include a pool as well as volleyball, tennis, and basketball courts. The defendant abuts a large, thirty-two-acre freshwater lake, which includes a small beach, and offers swimming and boating activities. A portion of the lake that is adjacent to the beach has a designated swim area. The boundaries of the swim area are designated by a rope line and buoys. Just [*3] beyond the roped off swimming area are two inflatable platforms. One was described as a platform or trampoline, and the other was described as an “iceberg.” Both inflatable devices were attractions to be used by the resort guests. The defendant did not provide lifeguards at the pool or lake swim area. A single sign was posted at one end of the beach area, indicating: “No Lifeguard on Duty. Swim at Your Own Risk.” No employees of the defendant directly supervised the lake swimming area.

On July 9, 2011, the decedent and his friend, Saulo Sousa, entered the designated swimming area for the purpose of swimming out to the trampoline just beyond the buoy line. When Sousa reached the rope line, he observed the decedent immediately behind him in the water. The depth of the water at this location was approximately six feet. As Sousa lifted the rope line to duck under it, he observed the decedent diving forward and under the rope. When Sousa reached the trampoline, he climbed on it but did not observe the decedent. After spending a few minutes on the trampoline, Sousa reentered the water and swam to the shore. After unsuccessfully attempting to locate the decedent, employees of the defendant [*4] were notified that he was missing. After a brief search, 911 emergency services were dispatched, and Bozrah firefighters and rescue personnel responded to the scene. When notified that the decedent was last seen in the designated swim area near the buoy line, firefighter Colin Laffey entered the water and located the decedent floating unresponsive just below the surface of the water just inside the buoy line. Laffey testified that he located the decedent in an area where the depth of the water was less than six feet. The decedent was brought to shore, and CPR was administered. The decedent was then transported by ambulance to Backus Hospital, but never regained consciousness and was pronounced dead. A postmortem autopsy determined the cause of death to be asphyxia due to submersion. The postmortem examination was negative for any signs of illness, traumatic injury, or any preexisting medical condition or disease. A toxicology examination was negative for the presence of any drugs, alcohol, or medication.

The decedent’s drowning was unwitnessed despite the fact that there were numerous people in the water and on the beach. Although other members of the decedent’s group, including his [*5] girlfriend, were on the beach adjacent to the swimming area, no one saw him in distress or struggling in the water. He was identified by his friends as a good or strong swimmer.

III

DISCUSSION

Practice Book §16-37 provides, in relevant part: “Whenever a motion for a directed verdict made at any time after the close of the plaintiff’s case in chief is denied or for any reason is not granted, the judicial authority is deemed to have submitted the action to the jury subject to a later determination of the legal questions raised by the motion.” “Directed verdicts are not favored . . . A trial court should direct a verdict only when a jury could not reasonably and legally have reached any other conclusion . . . In reviewing the trial court’s decision to direct a verdict in favor of a defendant we must consider the evidence in the light most favorable to the plaintiff . . . Although it is the jury’s right to draw logical deductions and make reasonable inferences from the facts proven . . . it may not resort to mere conjecture and speculation . . . A directed verdict is justified if . . . the evidence is so weak that it would be proper for the court to set aside a verdict rendered for the other party.” (Internal [*6] quotation marks omitted.) Riccio v. Harbour Village Condominium Assn., Inc., 281 Conn. 160, 163, 914 A.2d 529 (2007). “A verdict may be directed . . . where the claim is that there is insufficient evidence to sustain a favorable verdict.” (Internal quotation marks omitted.) Beale v. Yale-New Haven Hospital, 89 Conn.App. 556, 565-66, 874 A.2d 259 (2005).

Likewise, “[a] trial court may set aside a verdict on a finding that the verdict is manifestly unjust because, given the evidence presented, the jury mistakenly applied a legal principle or because there is no evidence to which the legal principles of the case could be applied . . . A verdict should not be set aside, however, where it is apparent that there was some evidence on which the jury might reasonably have reached its conclusion . . . This limitation on a trial court’s discretion results from the constitutional right of litigants to have issues of fact determined by a jury.” (Internal quotation marks omitted.) Deas v. Diaz, 121 Conn.App. 826, 841, 998 A.2d 200, cert. denied, 298 Conn. 905, 3 A.3d 69 (2010), rev’d on other grounds, Saleh v. Ribeiro Trucking, LLC, 303 Conn. 276, 32 A.3d 318 (2011).

“[T]o establish a prima facie case, the proponent must submit evidence which, if credited, is sufficient to establish the fact or facts which it is adduced to prove . . . [T]he evidence offered by the plaintiff is to be taken as true and interpreted in the light most favorable to [the plaintiff], and every reasonable inference is to be drawn in [the plaintiff’s] [*7] favor.” (Internal quotation marks omitted.) Cadle Co. v. Errato, 71 Conn.App. 447, 455-56, 802 A.2d 887, cert. denied, 262 Conn. 918, 812 A.2d 861 (2002). “The credibility and weight to be attributed to any evidence offered [at trial] is solely within the province of the jury.” Murteza v. State, 7 Conn.App. 196, 208-09, 508 A.2d 449, cert. denied, 200 Conn. 803, 510 A.2d 191 (1986). “[I]t is not the function of [the trial] court to sit as the seventh juror when [it] review[s] the sufficiency of the evidence . . . rather, [it] must determine, in the light most favorable to sustaining the verdict, whether the totality of the evidence, including reasonable inferences therefrom, supports the [trier’s] verdict . . . In making this determination, [t]he evidence must be given the most favorable construction in support of the verdict of which it is reasonably capable . . . In other words, [i]f the [trier] could reasonably have reached its conclusion, the verdict must stand, even if [the trial] court disagrees with it.” (Internal quotation marks omitted.) O’Connor v. Larocque, 302 Conn. 562, 612, 31 A.3d 1 (2011).

“In order to make out a prima facie case of negligence, the plaintiff must submit evidence that, if credited, is sufficient to establish duty, breach of duty, causation, and actual injury . . . A defendant’s duty and breach of duty is measured by a reasonable care standard, which is the care [that] a reasonably prudent person would use under [*8] the circumstances . . . After the plaintiff establishes that the defendant did not exercise reasonable care, the plaintiff has the burden of proving that the defendant’s negligence caused the plaintiff’s injuries. To do so, the plaintiff must first establish causation in fact, that is, that the injury would not have occurred but for the actor’s conduct . . . The plaintiff then must show proximate cause . . . Proximate cause requires that the defendant’s conduct [was] a substantial factor in bringing about the plaintiff’s injuries and that there was an unbroken sequence of events that tied [the plaintiff’s] injuries to the [defendant’s conduct] . . . Proximate cause does not require the plaintiff to remove from the realm of possibility all other potential causes of the accident . . . Instead, the plaintiff must establish that it is more likely than not that the cause on which the plaintiff relies was in fact a proximate cause of the accident. The more likely than not standard ensures that the causal connection . . . [is] based [on] more than conjecture or surmise.” (Citations omitted; emphasis omitted; internal quotation marks omitted.) Rawls v. Progressive Northern Insurance Company, 310 Conn. 768, 776-77, 83 A.3d 576 (2014).

The defendant’s primary argument is that no one [*9] witnessed the decedent’s drowning, and there was no evidence offered as to what caused him to drown. The defendant relies on Wu v. Fairfield, 204 Conn. 435, 528 A.2d 364 (1987). In Wu, the plaintiff’s decedent who was fifteen years old, went to Lake Mohegan, a freshwater lake, with her mother and two brothers for an afternoon of swimming. Id., 437. There was a designated swim area marked by a buoy line. At the time of the occurrence, there were four lifeguards on duty. Id. Those lifeguards had observed that the plaintiff’s decedent was a poor swimmer and had warned her twice to return to the shallow portion of the designated swim area. Id. When an approaching storm prompted the lifeguards to clear the water, the plaintiff’s decedent did not return to shore. Id. After a search, one of the lifeguards found the decedent’s body at the bottom of the lake in the designated swim area but beyond the shallow portion. Id., 437-38. The plaintiff alleged that the town and several of its employees, the lifeguards, were negligent in the performance of their duties. Id., 436. A jury returned a verdict for the defendants. Id. The plaintiff then filed a motion to set aside the verdict, which motion was denied. Id. In affirming the trial court’s denial of the plaintiff’s [*10] motion to set aside the verdict, the court held that “[w]hile it is undisputed that the decedent drowned, there was no evidence tying any negligence on the defendant lifeguards’ part to her death . . . Here, the plaintiff presented no evidence other than that the victim perished in an unwitnessed drowning. The plaintiff failed to establish an unbroken sequence of events causally flowing from the defendant lifeguards’ arguably negligent supervision to the decedent’s drowning.” Id., 440.

In this case, the plaintiff’s May 4, 2015 amended complaint contained two specifications of negligence as to the conduct of the defendant. The first allegation was that the defendant was negligent in failing to provide lifeguards. The second allegation was that the defendant was negligent when it knew or should have known of the danger associated with encouraging its guests to swim to its recreational flotation devices, yet failed to take reasonable steps to secure their safety in doing so. In response to jury interrogatories submitted by the court the jury found that the defendant was negligent with regard to the second specification but not the first. With regard to the claim of negligence concerning encouraging [*11] swimmers to use the flotation devices, the plaintiff relied on testimony that the owner’s manual for the two devices contained warnings that recommended users wear life vests. Although life vests were available in a shed adjacent to the lake swim area, the defendant did not require guests entering the lake or using any of the flotation devices to wear them. In addition, the plaintiff argued that the defendant failed to properly supervise and monitor the swimming area and had an inadequate emergency rescue plan.

The plaintiff offered the testimony of Gerald Dworkin, an aquatic safety expert. Dworkin offered opinion testimony regarding the defendant’s lack of safety measures including its failure to have lifeguards monitoring the swim area. Dworkin was also critical of the defendant’s lack of an emergency safety plan. Dworkin did not, however, offer any opinion testimony as to what actually caused the decedent to drown. He affirmed that it was an unwitnessed drowning. In addition, although the owner’s manuals for the flotation devices recommended the use of life vests, the decedent was not using either device when he drowned; the little evidence there is indicates he never left the designated [*12] swim area. The flotation devices were located outside that designated area.

Here, as in Wu, the plaintiff presented no evidence other than that the decedent died in an unwitnessed drowning. There was no evidence as to what caused the decedent to drown. In the absence of any such evidence, any number of factual possibilities could explain this accident. Without any evidence as to what caused this unfortunate incident, only speculation and conjecture could link the plaintiff’s drowning to the negligent conduct of the defendant. The plaintiff failed to present any evidence to establish an unbroken sequence of events causally flowing from the defendant’s conduct that the jury found negligent to the decedent’s drowning. “The establishment of proximate cause is an essential element of a negligence claim and the parties recognize that if proximate cause is lacking, the plaintiff cannot prevail.” Wu v. Town Of Fairfield, supra, 204 Conn. 441.

Viewing the evidence in the light most favorable to the plaintiff, based on the evidence presented by the plaintiff, no reasonable juror could find that the negligence of the defendant caused or was a substantial factor in causing the decedent’s death by drowning. The lack of any evidence as to what [*13] caused this drowning is fatal to the plaintiff’s case.

IV

CONCLUSION

Because the plaintiff failed to establish that the negligent conduct of the defendant was the proximate cause of the decedent’s drowning, the defendant’s motion to set aside the verdict is granted. Judgment may enter for the defendant.

KAMP, J.