Stand Up Paddleboard case. Rental company not liable for death of renter who could not swim.

Release and assumption of the risk both used to defeat plaintiff’s claims.

Citation: Kabogoza v. Blue Water Boating, Inc., et al

State: California, United States District Court, E.D. California

Plaintiff: Mary Bacia Kabogoza, on behalf of herself and the Estate of Davies Khallit Kabogoza

Defendant: Blue Water Boating, Inc., Skip Abed and ten “Roe” defendants

Plaintiff Claims: wrongful death, negligence and gross negligence

Defendant Defenses: Assumption of the Risk and Release

Holding: For the Defendant

Year: 2019

Summary

Renter of a stand-up paddleboard drowned after falling off his board. He did not use the free leash and wore his inflatable PFD incorrectly so it did not work.

Court found the plaintiff assumed the risk and had signed a release preventing his survivors from suing.

Facts

In April 2017, Davies Kabogoza and his friend, Laura Tandy, rented stand-up paddleboards from Defendant Blue Water Boating. Kabogoza had rented paddleboards from this rental company before. He was familiar with the staff, but had never told them that he could not swim.

Kabogoza and Tandy signed a rental agreement before taking out the paddleboards. The one-page agreement included several general and SUP-specific safety rules, along with a release of liability. Upon signing the agreement, the rental company-per Kabogoza’s request-gave him and Tandy intermediate-level paddleboards and belt-pack flotation devices. Regular life vests were also available, but Defendants allow their customers to choose between the two options. Belt-pack flotation devices are “very popular” among paddle boarders, but customers often wear them incorrectly, with the flotation portion of the device facing backwards. Id. Plaintiff alleges that Kabogoza was wearing his incorrectly at the time of the accident.

Defendants also gave its customers the option of using a paddleboard leash. Defendant Skip Abed, the owner of Blue Water Boating, told an investigator that 9 out of 10 times, customers do not want a leash. Neither Kabogoza nor Tandy used a leash while paddleboarding.

Shortly after Kabogoza and Tandy began using their paddleboards in the Santa Barbara Harbor, the wind increased, and the water became choppy. Tandy was in front of Kabogoza when she heard a splash behind her. When she turned around, she saw that Kabogoza had fallen off his board, and was struggling to keep his head above water. Tandy was unable to reach Kabogoza and prevent him from drowning. A dive team later found his body at the bottom of the ocean in about 30 feet of water. Id. When the divers found him, Kabogoza’s flotation device was attached to his waist, but in the backwards position. An inspection revealed that the device was in “good working order.”

The defendants filed a motion to dismiss, which was granted by the district court.

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

The court first looked at the gross negligence claim of the plaintiffs. Under California law, gross negligence is defined as “the want of even scant care or an extreme departure from the ordinary standard of conduct.” The court then went on to reiterate the California Supreme Court issue of disposing of gross negligence claims that do not meet the definition.

The court then looked at the defense of assumption of the risk. The plaintiff’s plead admiralty and state law claims in this lawsuit. Each has different types of claims and different defenses and defenses to state law claims do not work in admiralty cases and vice versa. The court waded through the differences in each of the defenses presented by the defendant.

Assumption of the risk is not a defense to an admiralty law claim. Assumption of the risk is a defense to state law claims. The court then went back to the gross negligence claim and found the facts plead by the plaintiff did not rise to the level of gross negligence.

The next claim of the plaintiff’s was a wrongful-death claim. A wrongful-death claim is a claim of the survivors of the deceased. However, any defense to a claim by the deceased is a bar to a wrongful-death claim.

Because the rental agreement signed by the deceased included release language, it was a bar to the wrongful-death claim of the deceased survivors.

So Now What?

First, this is a stand up paddleboard rental; however, the court did not treat it any differently then the rental of any other boat.

Knowledge that renters might wear they PFD incorrectly is disconcerting. I would counsel clients to at least post a sign or something showing people the proper way to wear their PFD’s.

I also think a leash would be required to make sure the boards come back. Fall off your board and the currents will send it away faster than you can swim and the rental company has lost another SUP.

However, tragic accident, legally the result was correct I believe.

What do you think? Leave a comment.

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Results of this injury during a sailing race are scary. Federal judge unloaded on the defendant when a girl could not figure out to move when the boom shifts. Judge wanted to see safety orientation and warning labels on a personal sailboat!

The liability created by this decision will hopefully remain off shore and solely related to sailing and admiralty law; If not, never take someone outdoors again.

When your buddy wants to bring his bartender your boat for a sailing race, don’t let him. Court created liability when it found no safety training or warning labels for a group of people going sailing.

Ray v. Lesniak, 2018 U.S. Dist. LEXIS 28301

State: South Carolina, United States District Court for the District of South Carolina, Charleston Division

Plaintiff: Raven Renee Ray

Defendant: Steve A. Lesniak

Plaintiff Claims: Negligence

Defendant Defenses: never could figure that out

Holding: for the plaintiff

Year: 2018

Summary

Either the defendant failed to present a defense or the court ignored it. Either way, this decision creates massive liability on the part of a trip leader in what was once referred to as common adventure activities. A group of people going out to recreate together on the weekend.

Facts

It is going to be easier to pull quotes from the decision than to outline the facts in this case. It will also give you a better understanding of the court’s position from the beginning.

At the time of the incident at issue, Ray was a 29-year-old female working two jobs in the food and beverage industry, volunteering at an acupuncture clinic, and simultaneously pursuing advanced degrees in psychology and clinical counseling at The Citadel. Ray had never been on a sailboat before the day of the incident.

Colin Skinner (“Skinner”), who Ray knew as a “regular” customer at the Oak Bar Tavern where she worked. Skinner was a crew member on the Celadon. Skinner has been sailing with Lesniak for “[r]oughly five years.” Lesniak allowed Skinner to invite a guest on the boat.

Lesniak did not give safety instructions to any of the guests, including Ray, who was on the Celadon. He also did not give any written instructions to guests. Furthermore, he did not have a written safety checklist or conduct a safety and operational briefing before the Celadon left the marina. At the time of the incident, there were no safety placards or visual displays on the Celadon stating that there were dangerous places to sit on the boat, such as “around any rope, boom.” Lesniak delegated the giving of safety instructions to two crew members, neither of whom testified during the trial.

Lesniak testified that members of his crew told Ray to move “several times” and that the crew members were aware that she did not move–even after Lesniak had called for the gybe maneuver. For example, Truog was aware that Ray was sitting in front of the main sheet when Lesniak gybed. Truog saw “the boom [come] over, and that [Ray] was pushed down to the side of the boat.”

If Lesniak had waited to gybe or made sure that Ray was in a safe location, Ray would not have been hit by the main sheet.

After Lesniak did the gybe maneuver, Ray was hit by the main sheet, the force of which threw her from her seated position onto the deck of the boat.

The plaintiff said she was OK; the race continued. Later that day and the next week she again said she was OK. However, eventually, she sued.

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

The defendant, owner of the board, did not put up a good defense. In fact, the way the court restated his positions, it seemed the court thought he was pretty arrogant. The plaintiff hired an expert witness who started out stating the personal sailboat should be labeled like an amusement ride.

There were also no written instructions on the “hull or deck of the boat or bow or the stern, starboard side” that said where to sit, and no one gave written instructions to Ray when she was on the boat. There was also no formal verbal safety briefing.

The plaintiff’s expert further stated that only experts should have been on the boat.

Wahl opined that competitive sailboat racing “requires a large number of experienced crew to adequately handle the fast-paced activities normally observed during this often dangerous and close quarters style of competitive sailing.” Wahl further opined that “[o]nly highly experienced persons should be aboard for these events.” Id. Based on his review of the evidence, Wahl testified that “there appeared to be a lot of people” on the Celadon, and that “safe places . . . were probably a little bit difficult to find.”

Based on the one-sided statement of facts and testimony only from the plaintiff’s expert, the court easily found the defendant liable.

Lesniak had a duty to: (1) properly administer safety briefings to Ray that included where the safe places to sit on the boat were during the race; (2) warn Ray that the gybe maneuver was going to be undertaken; (3) not gybe until Ray was no longer sitting in front of the main sheet; and (4) not hit Ray with the main sheet rope during the gybe maneuver.

The court then piled it on, following basic first-year law school tort classes in explaining why the defendant was liable.

The court further finds that it was completely foreseeable to Lesniak that Ray could be injured by his failure to warn her that a gybe maneuver was going to be undertaken that would involve moving the main sheet that she was sitting directly in front of, and his failure to prevent the main sheet from hitting Ray. Lesniak’s negligence was a proximate cause of Ray’s injuries; but for this breach of duty, Ray’s injuries would not have occurred.

The court then proceeded to find all four required components of negligence were proven. The first was whether the defendant owed the plaintiff a duty.

It is well-established in general maritime law that a vessel operator has a duty to exercise reasonable care for the safety of his passengers. Lesniak was the captain, and so was in charge of the vessel at the time of Ray’s injury. As such, he was charged with a duty of care to his passengers. This standard of care owed to a passenger by a vessel operator under maritime law is reasonable care under the circumstances at that particular time in each case. “The extent to which circumstances surrounding maritime travel are different than those encountered in daily life and involve more danger to passengers, will deter-mine how high a degree is reasonable in each case.

However, the court’s findings were just out there. The court found the defendant had a duty to determine if the plaintiff had any prior sailing experience.

In this case, the circumstances surrounding a sailboat participating in a race in the Charleston harbor call for a heightened degree of care. Additionally, before stepping on board the Celadon, Ray had never before been on a sailboat, a fact of which Lesniak was unaware of and failed to inquire about.

Second was whether the defendant had breached that duty to the plaintiff.

The court finds that Lesniak failed to act as a prudent mariner in failing to: (1) provide adequate posted, written, or verbal warnings to Ray regarding the potential dangers of movement and position on the Celadon and how to avoid those dangers; and (2) in failing to make sure that his passengers were in a safe location at all times, especially before performing a gybe maneuver which causes the boom and its related parts to swing quickly from port to starboard or vice versa. The court finds that these acts and omissions constitute a breach of Rule 5 of the Inland Navigation Rules, the common-law lookout duty, and the general duty of due care under Admiralty and South Carolina law.

For causation, the court determined it was the defendant’s job to prove there was no causation. That is not how causation normally works!

The court’s determination that Lesniak breached his duty to keep a proper lookout imposes upon him the burden to show by clear and convincing evidence that his breach of duty did not contribute to the incident. The record here does not support such a showing. Therefore, the court concludes that Lesniak’s negligence caused the main sheet to strike Ray’s head and, therefore, Ray’s resulting injuries.

The judge did find the plaintiff was 25% liable for her injuries under the theory of comparative negligence.

Specifically, Ray failed to pay attention to warnings from multiple crew members to move from her position in front of the main sheet rope. Ray was to blame, in part, for being hit by the main sheet. The court finds that Ray was 25% to blame, and so reduces her damages by 25%.

The court found the following four specific times when the plaintiff was liable.

1. Ray was told to move away from the main sheet by multiple crew members, including Truog and Becker, but did not move.

2. After getting hit by the main sheet, Ray did not ask anyone for medical attention and did not appear to be in need of any medical attention.

3. When Ray got off the Celadon at the conclusion of the race, Lesniak asked her if she was “okay” and she replied that “she was fine.”

4. A few days after the incident, Lesniak contacted Ray to give her the option of going to see Bill Lynch, a crew member on the Celadon during the incident and a doctor, at no cost. Ray declined.

The judge then started looking at damages and found every single medical damage the plaintiff had presented had been proved and gave the plaintiff all the damages she requested including pain and suffering, past and future emotional distress and loss of enjoyment of life. Basically, the trifecta of damages.

Those damages totaled:

$958,758.15,6 plus prejudgment interest in the amount of twenty-two thousand, nine-hundred and fifty-two dollars and forty-four cents $22,151.44, and postjudgment interest at the legal rate from the date of this order.

So Now What?

The defendant did not put up a fight, or if he did it was ignored by the court. In fact, the entire decision is a review of the plaintiff’s case and nothing more.

What is scary, is the requirements that a trip leader on a common adventure now has a duty to enquire, duty to educate and a duty to warn.

Sailboats are not going to come with stickers and warning labels.

What do you think? Leave a comment.

Copyright 2018 Recreation Law (720) 334 8529

If you like this let your friends know or post it on FB, Twitter or LinkedIn

   

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Author: Outdoor Recreation Insurance, Risk Management and Law

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By Recreation Law    Rec-law@recreation-law.com    James H. Moss

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Ray v. Lesniak, 2018 U.S. Dist. LEXIS 28301

Ray v. Lesniak, 2018 U.S. Dist. LEXIS 28301

Raven Renee Ray, Plaintiff, v. Steve A. Lesniak, Defendant.

No.: 2:16-cv-1752-DCN

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF SOUTH CAROLINA, CHARLESTON DIVISION

2018 U.S. Dist. LEXIS 28301

February 22, 2018, Decided

February 22, 2018, Filed

CORE TERMS: sheet, boat, brain, crew members, traumatic, pain, sailboat, captain, gybe, admiralty, passenger, maneuver, sailing, vessel, medication, symptoms, present value, guest, experienced, emotional, headaches, safe, hit, suffering, lookout, sit, citation omitted, concussion, sitting, opined

COUNSEL: [*1] For Raven Renee Ray, Plaintiff: Benjamin Catlett Smoot, II, William P Early, LEAD ATTORNEY, Pierce Herns Sloan and McLeod, Charleston, SC; Theodore Augustus Consta Hargrove, II, Pierce Herns Sloan and Wilson LLC, Charleston, SC.

For Steve A Lesniak, Defendant: Joseph R Weston, Stephanie A Phillips, LEAD ATTORNEYS, Weston Law Firm, Mt Pleasant, SC.

JUDGES: DAVID C. NORTON, UNITED STATES DISTRICT JUDGE.

OPINION BY: DAVID C. NORTON

OPINION

Plaintiff Raven Renee Ray (“Ray”) brought this admiralty action against Defendant Steve A. Lesniak (“Lesniak”) pursuant to Federal Rule of Civil Procedure 9(h). Ray is suing Lesniak for personal injuries and other damages she sustained as a result of being struck by the main sheet during a sailing race on Lesniak’s boat “the Celadon.”

The court tried this case without a jury on September 18, 2017. Having considered the testimony and the exhibits admitted at trial, as well as the parties’ pre-trial briefs and post-trial proposed findings and conclusions, the court now makes the following findings of fact and conclusions of law in accordance with Federal Rule of Civil Procedure 52(a). It finds that Lesniak was negligent in his captaining of the Celadon, that Ray suffered an injury while an invited guest on the Celadon as a result of Lesniak’s negligence, and [*2] that as a result of this injury Ray has a permanent traumatic brain injury. It awards $958,758.15 in damages. This award, in the court’s eyes, gives Ray what she deserves–“just some justice, some recognition and help.” Tr. 135:24.

FINDINGS OF FACT1

1 These findings are based on the preponderance of the evidence presented to the court.

1. At the time of the incident at issue, Ray was a 29-year-old female working two jobs in the food and beverage industry, volunteering at an acupuncture clinic, and simultaneously pursuing advanced degrees in psychology and clinical counseling at The Citadel. Ray had never been on a sailboat before the day of the incident.

2. At the time of the incident, 57-year-old Lesniak was the owner, operator, and captain of the sailboat Celadon on which the incident occurred. Lesniak is an experienced captain, who has 35 years of sailing experience–including 25 years of sailing experience in Charleston. Tr. 205:15-17. He has captained “several hundred, maybe a thousand” sailboat races. Tr. 205:18-20. He has been sailing with some of the crew members that were on the Celadon at the time of the incident for “15, 20 years.” Tr. 205:24-206:7.

3. The sailboat Celadon on which the incident occurred is a fifty-one foot, 1995 Beneteau Oceanis 510 registered in [*3] Charleston County, South Carolina. At the time of the incident, Lesniak had owned and operated the Celadon for approximately fifteen years.

4. Operation of the sailboat during a race requires several crewmembers. Thirteen crewmembers and a number of guests were aboard the sailboat on the day of the incident. Tr. 182:1-183:1.

A. The Accident:

1. The court now turns to the day of the incident, May 21, 2014. Ray was invited to a sailboat race by Colin Skinner (“Skinner”), who Ray knew as a “regular” customer at the Oak Bar Tavern where she worked. Tr. 106:14-20. Skinner was a crew member on the Celadon. Tr. 184:3-6. Skinner has been sailing with Lesniak for “[r]oughly five years.” Tr. 206:20-22. Lesniak allowed Skinner to invite a guest on the boat. Tr. 184:5-6.

2. The other crew members who were on the Celadon during the incident had years of sailing experience, many as crew members with Lesniak. Tr. 206:10-208:4. Of the crew members on the boat at the time of the incident, at least three had medical backgrounds, ranging from Emergency Room nurse to thoracic surgeon. Tr. 206:10-208:9. Lesniak testified that these crew members had previously taken action if anyone suffered an injury on the [*4] boat during sailing races and trips. Tr. 209:21-210:5.

3. Lesniak testified that all of his crew members “[knew] to look after new people.” Tr. 208:18-21.

4. Lesniak authorized crew members to perform tasks during the race, including telling guests when and where to move during the course of the race. Tr. 209:1-20.

5. Ray and Skinner arrived at the Carolina Yacht Club, the marina where the yacht was docked. Tr. 107:7-12. When she got to the boat, there were “many” people on the boat, including crew members and guests. Tr. 108:1-4. Ray testified that she did not know anyone on the boat other than Skinner. Tr. 108:5-6.

6. Before May 21st, 2014, Ray had never been on a sailboat. Tr. 106:21-107:1. She knew nothing about how a sailboat worked. Tr. 107:2-4.

7. Lesniak did not give safety instructions to any of the guests, including Ray, who was on the Celadon. Tr. 184:12-17. He also did not give any written instructions to guests. Tr. 187:2-6. Furthermore, he did not have a written safety checklist or conduct a safety and operational briefing before the Celadon left the marina. Tr. 187:16-21. At the time of the incident, there were no safety placards or visual displays on the Celadon stating [*5] that there were dangerous places to sit on the boat, such as “around any rope, boom.” Tr. 186:20-187:1. Lesniak delegated the giving of safety instructions to two crew members, neither of whom testified during the trial. Tr. 14:16-185:6. Lesniak did not hear what safety talks were given to guests because he was at the helm of the boat. Tr. 185:5-9.

8. Ray was late to the start of the boat race and was given an abbreviated version of the “safety talk” by crew members, which involved an instruction on where not to sit on the boat. Tr. 192:10-18.

9. Upon arriving on the Celadon, Skinner placed Ray at the position where she was sitting when the main sheet hit her. Tr. 264:8-265:19. Ray was seated on the deck of the Celadon, near the main sheet. Ex. 13.

10. The crew was aware of where Ray was sitting. Tr. 204:4-6.

11. Within 5-10 minutes of Ray stepping on board the Celadon, the incident occurred. Tr. 194:2-5.

12. Before she was hit, Ray was given instructions by crew members to “get more neighborly, get closer together.” Tr. 114:2-3. Specifically, crew member Dawn Truog (“Truog”) asked Ray, who was sitting in front of the main sheet, to “move back from the [main] sheet.” Tr. 250:16-25. There [*6] was no evidence presented that Ray knew what a “main sheet” was. Crew member Mary Anne Becker (“Becker”) also testified, stating that she “told [Ray] specifically to move, move up front, move forward” multiple times, because Ray “was going to be brushed by the sheets” when the boat gybed. Tr. 257:6-12. Becker further testified that even after these verbal warnings to move, Ray “didn’t move,” and “the next thing” Becker knew was Ray “down on the gutter” of the boat. Tr. 257:17-20.

13. Lesniak made the decision to gybe, which is the action that caused the main sheet to strike Ray. Tr. 199:16-17. When the captain executes a gybe maneuver, as Lesniak did here, the main sheet moves across the deck of the boat. Tr. 221:14-25.

14. Lesniak testified that members of his crew told Ray to move “several times” and that the crew members were aware that she did not move–even after Lesniak had called for the gybe maneuver. Tr. 213:22-214:5. For example, Truog was aware that Ray was sitting in front of the main sheet when Lesniak gybed. Tr. 254:25-255:3. Truog saw “the boom [come] over, and that [Ray] was pushed down to the side of the boat.” Tr. 251:9-18.

15. If Lesniak had waited to gybe or made sure [*7] that Ray was in a safe location, Ray would not have been hit by the main sheet. Tr. 202:9-13.

16. After Lesniak did the gybe maneuver, Ray was hit by the main sheet, the force of which threw her from her seated position onto the deck of the boat. Tr. 115:14-20. The main sheet carries a significant amount of pressure, “absolutely” enough to cause a serious injury. Tr. 237:6-25. Lesniak saw the main sheet strike Ray. Tr. 198:25-199:6.

17. The court considered the testimony of various crew members who were on the Celadon during the incident. For example, Dr. Bill Lynch testified about the main sheet hitting Ray. Additionally, he testified that he did not give any safety instructions to Ray, and was not aware of any sailing experience that she had. Tr. 247:1-6.

18. Ray was left with an abrasion on her forehead as a result of the main sheet hitting her. Pl.’s Ex. 2.

19. After Ray was injured, Lesniak did not turn the boat around. Tr. 117:5-12. Lesniak continued with the boat race. Tr. 148:10-18.

B. Breach of Safety Protocol:

1. Ray testified about the instructions she was given when she got on the Celadon. Specifically, Ray stated that she was “told where the lines were” and where to sit. Tr. [*8] 109:18-23. She was given these instructions and told where to sit by a crew member, “Peggy.” Tr. 110:6-9. She was not warned that she “might get hit in the head with a boom or a rope or anything like that.” Tr. 110:10-17. There were also no written instructions on the “hull or deck of the boat or bow or the stern, starboard side” that said where to sit, and no one gave written instructions to Ray when she was on the boat. Tr. 110:18-24. There was also no formal verbal safety briefing. Tr. 111:4-7.

2. Ray did not hear, and “wouldn’t have understood” any instructions on whether the boom or main sheet were going to swing during the course of the race. Tr. 115:1-4.

3. The court also credits the testimony of Ray’s expert Captain Ken Wahl (“Wahl”), who the court qualified as a boating expert and marine safety consultant. Tr. 214:20-215:9. Wahl opined that competitive sailboat racing “requires a large number of experienced crew to adequately handle the fast-paced activities normally observed during this often dangerous and close quarters style of competitive sailing.” Ex. 1 at 8. Wahl further opined that “[o]nly highly experienced persons should be aboard for these events.” Id. Based on his [*9] review of the evidence, Wahl testified that “there appeared to be a lot of people” on the Celadon, and that “safe places . . . were probably a little bit difficult to find.” Tr. 220:1-9.

4. Wahl opined that Lesniak, who had captained hundreds of races, became “complacent” by delegating the “safety orientation” for guests to crew members. Tr. 225:9-226:3.

5. Wahl testified that when a boat race begins, “[t]here’s some very dangerous places to be on board the boat . . . [a]nd it’s certainly not a safe place to be right near the main sheet.” Tr. 221:10-13. Accordingly, Ray, who was seated on the deck of the boat near the main sheet, was in a dangerous position. Tr. 222:1-6.

6. Specifically, Wahl opined that “[m]oving isn’t quite enough” “when somebody doesn’t know anything about a sailboat, because they don’t know where to move to.” Tr. 223:23-25. The proper procedure for a crew member to ensure that Ray was moved safely to another area of the boat was for Lesniak or a crew member to physically ensure that she had been moved to a safer place. Tr. 226:14-227:16. Simply telling a novice passenger like Ray who had never been on a sailboat to move was insufficient, and a breach of safety protocol. [*10] Tr. 227:9-21.

7. Wahl further opined that it was in contravention of boat safety protocol for Lesniak to gybe while Ray was sitting next to the main sheet, as gybing the boat necessarily causes a movement of the main sheet. Tr. 223:14-19. Wahl offered suggestions on what safety protocol Lesniak should have followed in that scenario, such as “[d]elay the gybe, get somebody to move that person, tell them where to sit, where the safe spot is.” Tr. 223:16-22. Lesniak did none of these things.

8. When a captain changes the position of the sails, such as the gybe maneuver that Lesniak performed, Wahl testified that the captain “typically” will call out to the crew and let the crew members know that he will be changing the position of the sails. Tr. 238:16-239:4.

C. Comparative Negligence:

1. Ray was told to move away from the main sheet by multiple crew members, including Truog and Becker, but did not move. Tr. 257:17-20.

2. After getting hit by the main sheet, Ray did not ask anyone for medical attention and did not appear to be in need of any medical attention. Tr. 210:6-23.

3. When Ray got off the Celadon at the conclusion of the race, Lesniak asked her if she was “okay” and she replied that [*11] “she was fine.” Tr. 210:24-25.

4. A few days after the incident, Lesniak contacted Ray to give her the option of going to see Bill Lynch, a crew member on the Celadon during the incident and a doctor, at no cost. Tr. 210:1-5. Ray declined. Tr. 210:1-5.

D. Causation of Traumatic Brain Injury:

1. Two days after the incident, Ray went to Nason Medical Center because she was experiencing “extreme body pain.” Tr. 119:17-24. Within seven days of the incident, Ray began experiencing different symptoms–namely, debilitating nausea and headaches. Tr. 120:11-21. Ray was “extremely” confused when she went to the Medical University of South Carolina (“MUSC”) the week after the incident as a result of her new symptoms. Tr. 121:1-6. At MUSC, Ray was referred to a neurologist who diagnosed Ray with a concussion and prescribed medications for a head injury. Tr. 121:7-25.

2. The only medical expert who testified during the trial was Dr. Marshall Allen White (“Dr. White”), a board-certified neurologist.2 Tr. 8:15-16. Dr. White treats patients with traumatic brain injuries as part of his practice on “nearly a daily basis,” and has done so since 1991. Dr. White has testified in the past as to both the diagnoses [*12] and causation of traumatic brain injuries. The court credits Dr. White as an expert in the field of traumatic brain injuries. Tr. 9:21-10:17. Dr. White examined Ray, and reviewed the following medical records: (1) Nason Medical Center; (2) MUSC; (3) Dr. Jeffrey Buncher, a pain management physician in Charleston, South Carolina; (4) physical therapy records; (5) acupuncture records; (6) neuropsychological testing performed by Dr. Randolph Waid; and (7) psychiatric records from Dr. Kurtzman. Tr. 11:1-21. Dr. White testified that, based on his examination of Ray, a review of her medical records, and consulting with peer-reviewed articles, Ray sustained a traumatic brain injury. Tr. 12:5-12. Specifically, Dr. White testified that Ray had the symptoms of a concussion immediately following the incident, in that she was “dazed, confused,” and the morning after the event she felt “that she was not going to be able to wake up,” which Dr. White testified indicated “a level of hypersomnolence, which is typical following a concussion.” Tr. 12:17-13:1. Dr. White further testified that compared to “baseline records” that were “pretty close in proximity” to the incident, he observed that Ray had [*13] “heightened levels of anxiety, trepidation, moodiness, difficulty sleeping after the period of hypersomnolence, difficulty focusing, poor memory, and anxiety levels which were dramatically increased from her baseline levels.” Tr. 13:2-10. All of these symptoms of traumatic brain injury, according to Dr. White, were caused by the head trauma that Ray suffered during the incident. Tr. 13:11-15.

3. According to Dr. White, Ray’s traumatic brain injury is “permanent.” Tr. 13:16-18. All three of these opinions–that Ray had a traumatic brain injury, that the brain injury was permanent, and that the brain injury was the result of the incident on the Celadon–Dr. White testified that he held to a “reasonable degree of medical certainty.” Tr. 13:19-22. Specifically, in his report, Dr. White states that:

It is my opinion to a reasonable degree of medical certainty that Ms. Ray experienced traumatic brain injury as a result of her sailing incident, which occurred in 2014. There is ample evidence of headache, nausea, vomiting, and worsening in her neuropsychiatric syndrome and cognitive abilities following the incident . . . It is further my opinion that Ms. Ray would clearly have academic, social [*14] and occupational difficulties throughout every facet of her life.

Pl.’s Ex. 4. Dr. White further testified that when he examined Ray, she was having emotional and concentration issues that he attributed to her “residual [traumatic brain injury] symptomology,” and that this was consistent with a patient with her level of brain injury. Tr. 28:13-23.

4. Dr. White also testified at length about Ray’s post-incident treatment in the week after the incident, based on his review of her medical records. At Nason, Dr. White testified that no diagnostic testing was performed, and instead Nason “basically gave her pain medicine and sent her home.” Tr. 17:9-11. Then, Ray went to the MUSC emergency room, where she was “evaluated and treated” for “neck and back pain.” Tr. 17:14-15. Ray then returned to MUSC with “complaints of pain,” and returned once again within five days of the injury “complaining of headaches” as well as nausea and vomiting. Tr. 17:19-23. These symptoms of headaches, nausea, and vomiting, were, Dr. White testified, symptoms of a concussion. Tr. 18:11-14. Based on his review of Ray’s medical records and after taking her medical history, Dr. White concluded that Ray had “a lot” of [*15] the symptoms of the postconcussive syndrome. Tr. 20:5-9.

5. Lesniak argued at various points during the bench trial that Ray did not immediately experience any symptoms of headaches, nausea, and vomiting while on the Celadon or the next day. However, Dr. White testified that there can be “delayed effects from concussion.” Tr. 35:24. Furthermore, Ray had consumed at least one beer immediately before the incident. Alcohol consumption, Dr. White testified, would impair Ray’s ability to recognize her symptoms. Tr. 36:6-11.

6. Dr. White testified that postconcussive headaches such as the ones that Ray experienced can be developed “within seven days of the concussion itself.” Tr. 18:22-24. Indeed, Dr. White testified on the types of symptoms during the “days and weeks” after a concussion, and stated that there can be “difficulty concentrating, moodiness, hypersomnolence . . . [a]nxiety . . . headaches, nausea, and vomiting.” Tr. 19:1-17.

7. Ray had a CT scan done at MUSC, which had normal results, but Dr. White testified that the normal CT scan did not disturb his opinion that Ray had a traumatic brain injury, as mild traumatic brain injury patients will have “under almost all circumstances [*16] . . . normal imaging.” Tr. 21:18-22:2. Indeed, Dr. White testified that a normal CT scan was “expected” for patients with mild traumatic brain injury. Tr. 22:3-6.

8. The court considered that Ray was not diagnosed with traumatic brain injury, or indeed any injury at all, by any emergency room physicians in her visits to Nason or the MUSC ER. But, according to Dr. White, the peer-reviewed literature in the field is clear that mild traumatic brain injuries “can be overlooked,” even by emergency room physicians. Tr. 36:2-5. Furthermore, in none of the medical visits that Ray had in the immediate aftermath of the incident did she have any cognitive testing done that would have detected such cases of traumatic brain injury. Tr. 52:11-60:4.

9. Dr. Kurtzman, a psychiatrist who examined Ray on May 1st before the incident, indicated that Ray was working on her graduate thesis and had no “uncontrolled anxiety or crying spells.” This psychiatric record is closest in proximity to the incident. Tr. 14:13-15:11. Dr. Kurtzman’s psychiatric record further indicates that as of May 1st, Ray was a “student, working doing marketing, volunteering, and doing research–all while supporting herself financially.” [*17] Tr. 15:12-20. In his treatment notes for Ray after the incident, Dr. Kurtzman stated that Ray had “suffered . . . emotionally and physically from an injury sustained from being hit by a sailboat boom . . . I’m concerned about her emotional prognosis and her emotional upset secondary to the accident.” Tr. 23:6-24:4. Dr. Kurtzman also prescribed Ray the medication Adderall, which Dr. White testified is an “amphetamine stimulant” that is “used for patients with [traumatic brain injury] who are having difficulty concentrating.” Tr. 24:5-15. Concentration and attention problems such as those treated with Adderall are consistent with the diagnosis of mild traumatic brain injury, Dr. White testified. Tr. 24:16. Dr. White further testified that during his examination and interview with Ray, she stated that she experienced those symptoms for the first time after the date of the incident. Tr. 24:19-22. Ray testified that she had never been prescribed Adderall or psychostimulants before the incident. Tr. 101:14-102:7. At the direction of her doctor, Ray has been taking Adderall in increasing doses since the incident. Tr. 126:22-11.

10. The court acknowledges that prior to the incident, Ray was [*18] on the medication Klonopin to treat anxiety. Tr. 16:2-9. However, Dr. Kurtzman was on a successful program to wean Ray off of Klonopin. Tr. 16:10-16. Ray testified that she was in the process of “taper[ing] off” the anti-anxiety medication. Tr. 102:16-103:4. The court also acknowledges that Ray suffered from general anxiety disorder, which can have symptoms similar to those found in someone with a concussion. Relatedly, the court has considered Ray’s testimony about the circumstances of her unfortunate upbringing, including her time in foster care and her intermittent history with prescribed antidepressants and anti-anxiety medication. Tr. 92:1-99:3. The court credits Dr. White’s opinion–that the temporal relationship between the incident and the onset of symptoms supports a finding that Ray was not suffering from her historical general anxiety disorder, but from the head trauma she received as a result of the incident. Tr. 48:4-20.

11. Ray was seen by Dr. Woodard, a neurologist at MUSC, “several months” after the incident. Dr. Woodard also diagnosed Ray as having postconcussion syndrome, and placed her on gabapentin and nortriptyline. Nortriptyline is used to treat headaches, while [*19] gabapentin is used to treat headaches, mood disturbances, and sleep. Tr. 20:12-21:14.

12. On July 28, 2015, Ray had neuropsychological testing, which discerns whether there are “cognitive or emotional deficits related to injury” performed by Dr. Randolph Waid. Tr. 25:1-14. Specifically, Dr. Waid employed the Conners Continuous Performance Test II to assess Ray’s “attentional abilities.” Tr. 25:14-24. Based on Ray’s pre-incident level of functioning, Dr. Waid felt that Ray’s concentration abilities, which were in the ninth percentile, were low. Tr. 26:2-5. Ray had a “very high GPA” in her college and graduate work before the incident. Tr. 26:11-12. Ray had a 3.7 GPA at the College of Charleston. Tr. 101:5-7. The cause of the decrease in Ray’s attention between college and the day that Dr. Waid performed his neurophysical testing was, in Dr. White’s opinion, the traumatic brain injury that she suffered as a result of the incident. Tr. 26:15-18.

13. Ray also saw Dr. Jeffrey Buncher for injuries related to the incident. Ray had pain management issues before the incident, specifically with chronic neck and back pain. Ex. 8. But Ray’s pain problems with her sacrum were, in Dr. White’s opinion, [*20] “exacerbated” by the incident. Tr. 27:1-21.

14. Dr. White offered a future treatment plan to treat Ray’s permanent condition and opined that “there are a number of interventions that ought to be taken in her care that are currently not being taken” and that Ray was not receiving treatment from any doctors who treated traumatic brain injuries. Tr. 30:1-32:2. Dr. White also testified about the cash prices of the drugs necessary for the future treatment plan. Tr. 32:14-33:15.

15. The court also considered the testimony of Chad Houfek (“Houfek”), an acupuncturist and the owner of Charleston Community Acupuncture. Tr. 81:11-23. Houfek knew Ray as a patient as well as a volunteer at Charleston Community Acupuncture. Tr. 82:2. In her capacity as a volunteer, Ray worked answering phones, scheduling appointments, and also helped with bookkeeping. Tr. 82:11-83:8. Houfek testified about how Ray was different after the incident, from a treatment perspective, explaining that she came in for acupuncture a week after the incident, and that “she had a big mark on her temple, and she was very upset, she was crying and very scared, didn’t really know what to do, and she had a lot of neck pain.” Tr. 83:9-19. [*21] When Ray had her acupuncture appointment on May 28th, approximately one week after the incident, Houfek recorded in his session notes that Ray was “postconcussion,” and that what she was experiencing included sensitivity to stimulus and headaches. Tr. 84:9-18. After the incident, Houfek continued to treat Ray, and stated that he was treating her mostly for neck pain and lower back pain, as well as insomnia, and “extreme emotional.” Tr. 87:4-9.

16. Houfek also testified about the changes in Ray as a volunteer after the incident. Before the incident, Houfek described Ray as “awesome,” as an employee who was “very friendly,” who “always showed up on time,” and “took initiative.” Tr. 85:7-15. But after the incident, Houfek testified that Ray was “always late,” “very very scattered,” and that “communicating with her was difficult.” Tr. 85:17-25. Houfek further testified that he had not experienced any of those problems with Ray before the incident. Tr. 86:2-4.

17. The court has considered the reports and treatments notes of the doctors, including pain management specialists and neurologists, that Ray has seen since the incident. Ex. 10. In conjunction with Dr. White’s testimony, these medical [*22] documents support the conclusion that Ray suffered a traumatic brain injury as a result of the injury she suffered on the Celadon.

18. Prior to the incident, Ray testified that “[l]ife was great,” and that she “was excited for finishing” her master’s thesis at the Citadel and continuing on for her Ph.D. Tr. 103:18-25. In addition to being in the master’s program at the Citadel, Ray was also working at the restaurant Oak Barrel four nights a week, Tr. 104:19-24, in the tasting room at the restaurant Freehouse two nights a week, Tr. 104:15-105:1. She was also volunteering with Charleston Community Acupuncture and doing research. Tr. 105:17-24. She testified that despite this busy schedule she never had any problems with attention before the incident. Tr. 106:1-11.

19. Since the incident, Ray has had suicidal ideations. Tr. 124:22-125:9. She has also been suffering from giggling issues and other inappropriate responses to stimuli, which never occurred before the incident. Tr. 127:19-25. As a result of these issues, as well as the problems in concentration and attention, her professors at the Citadel have expressed “legitimate concerns” about her ability to complete the graduate program. [*23] Tr. 127:19-25; 132:1-9. Furthermore, since the incident Ray has lost her jobs at the Oak Barrel and the Freehouse. Tr. 128:16-19. Ray attributes both of these job losses to the incident. For example, as a result of the injuries she sustained, Ray has had to ask her customers and friends to come and help her while she was at the bar. Tr. 129:1-10. Additionally, when there were stimuli such as music or “certain sounds,” Ray would run out of the bar and “leave the entire bar empty, and cry in the alley.” Tr. 129:4-11. Before the incident, Ray did not have these problems at work.

20. Since the incident, Ray has had physical and psychological problems. Physically, she has had trouble sleeping, has “nerve pain down the back of her leg,” and tension headaches. Tr. 130:13-131:21. She now also has communication issues, which have affected her interpersonal, professional, and educational goals. Tr. 136:21-137:13.

21. The court considered the medical bills that Ray has incurred, between the date of the incident and present. Pl.’s Ex. 10. Ray does not have health insurance. Tr. 123:4-7. The total medical bills for her injury totaled $20, 480.70. Pl.’s Ex. 10. By the time of trial, Ray had incurred [*24] the following expenses to treat her injuries:

a. Nason Medical Center $127.00
b. MUSC $4,654.00
c. MUSC Physicians $1,194.00
d. Dr. Waid $1,125.00
e. Dr. Kurtzman $2,050.00
f. Dr. Buncher $5,945.00
g. Charleston Community Acunpuncture $3,130.00
h. EnterpriseRx $74.82
i. Publix Pharmacy $228.36
j. Walgreens Pharmacy $1,952.52
Total: $20,480.70

2 Lesniak objects to allowing Dr. White to testify on the subject of future treatment. However, Ray disclosed Dr. White as one of her treating physicians and produced Dr. White’s medical evaluation of Ray, wherein Dr. White opined that Ray had sustained a permanent traumatic brain injury. The court is convinced that Dr. White’s written report and opinion of Ray’s permanent injury gave Lesniak adequate notice that Ray would need continued medical evaluation and treatment for her condition for the rest of her life. Ray disclosed Dr. White as an expert in neurological medicine and pain management in compliance with all relevant expert disclosure requirements and deadlines. Lesniak made the decision to decline to take Dr. White’s deposition, offer his own medical expert disputing the diagnosis of traumatic brain injury or offer an alternative future treatment plan, or to request any additional information from Dr. White regarding his evaluation of Ray. At the very least, Lesniak was on notice that as a result of the incident, Ray had already spent a significant amount of money on medical treatment including $2,255.70 on medication alone. Certainly, Ray’s medical bills were turned over during discovery. Therefore, the court overrules Lesniak’s objection.

III. CONCLUSIONS OF LAW

Based on the testimony of all of Lesniak’s crew members and all experts, including Ray’s expert Captain Wahl, Lesniak was negligent in doing a gybe maneuver when he and his crew members knew or should have known that Ray was sitting in front of the main sheet which is a dangerous place to sit. Prior to undertaking the gybe maneuver during the sailboat race, Lesniak had a duty to: (1) properly administer safety briefings to Ray that included where the safe places to sit on the boat were during the race; (2) warn Ray that the gybe maneuver was going to be undertaken; (3) not gybe until Ray was no longer sitting in front of the main sheet; and (4) not hit Ray with the main sheet rope during the gybe maneuver. A failure to follow safety precautions, including telling Ray where to move and delaying the gybe maneuver until Ray had moved to a safe place, was [*25] a breach of Lesniak’s duty to Ray. The court further finds that it was completely foreseeable to Lesniak that Ray could be injured by his failure to warn her that a gybe maneuver was going to be undertaken that would involve moving the main sheet that she was sitting directly in front of, and his failure to prevent the main sheet from hitting Ray. Lesniak’s negligence was a proximate cause of Ray’s injuries; but for this breach of duty, Ray’s injuries would not have occurred.

However, Lesniak has presented sufficient evidence to support the allegation in his Answer that Ray was comparatively negligent. Specifically, Ray failed to pay attention to warnings from multiple crew members to move from her position in front of the main sheet rope. Ray was to blame, in part, for being hit by the main sheet. The court finds that Ray was 25% to blame, and so reduces her damages by 25%.

As a direct result of Lesniak’s failure to exercise the proper degree of skill required, Ray sustained injuries and damages, as discussed below. In making the above findings of fact, reference has been made to pertinent portions of the testimony and exhibits introduced into evidence; however, the court has taken [*26] into consideration all of the evidence presented. The court specifically finds the evidence, after considering the appearance, demeanor and qualifications of the witnesses and the testimony as a whole, supports each of its findings by a preponderance of the evidence.

A. Jurisdiction and Applicable Law

Federal admiralty jurisdiction exists where, as here, conditions of both (1) location and (2) a connection with maritime activity are satisfied. Jerome B. Grubart, Inc. v. Great Lakes Dredge & Dock Co., 513 U.S. 527, 534, 115 S. Ct. 1043, 130 L. Ed. 2d 1024, (1995). Admiralty jurisdiction extends to injuries involving recreational vessels such as the Celadon. See Oliver by Oliver v. Hardesty, 745 F.2d 317, 320 (4th Cir. 1984) (admiralty jurisdiction exists over a case involving a collision between a swimmer and a pleasure boat because the claim was based on an allegation of negligent navigation of the boat). The portion of the Charleston Harbor where the incident occurred constitutes navigable waters of the United States, and being struck by the main sheet of a racing sailboat has a connection to maritime activity. Accordingly, the court has subject matter jurisdiction of this action pursuant to 28 U.S.C. § 1333. See Sisson v. Ruby, 497 U.S. 358, 364-65, 110 S. Ct. 2892, 111 L. Ed. 2d 292 (1990).

Cases involving a tort committed on navigable waters are governed by federal admiralty law. Byrd v. Byrd, 657 F.2d 615, 617 (4th Cir. 1981) (citation omitted). However, if there is no admiralty rule for a particular [*27] issue, the court looks to state law to supply the rule of decision. Id. “This rule is especially true in negligence causes of action,” which is the cause of action that Ray asserts. Schumacher v. Cooper, 850 F. Supp. 438, 447 (D.S.C. 1994) (citation omitted). Therefore, to the extent admiralty law is not directly on point, ordinary negligence law applies.

B. Lesniak’s Liability

To establish her claim, Ray must prove that Lesniak’s negligent operation of the Celadon harmed her. The elements of negligence are duty, a breach of that duty, proximate cause, and resulting injury. Schumacher, 850 F.Supp. at 447 (internal citations omitted).

a. Duty

It is well-established in general maritime law that a vessel operator has a duty to exercise reasonable care for the safety of his passengers. See Bubla v. Bradshaw, 795 F.2d 349, 353 (4th Cir. 1986) (quoting Kermarec v. Compagnie Generale Transatlantique, 358 U.S. 625, 630, 79 S. Ct. 406, 3 L. Ed. 2d 550 (1959)). Lesniak was the captain, and so was in charge of the vessel at the time of Ray’s injury. As such, he was charged with a duty of care to his passengers. This standard of care owed to a passenger by a vessel operator under maritime law is reasonable care under the circumstances at that particular time in each case. Id. “The extent to which circumstances surrounding maritime travel are different than those encountered in daily life and involve more danger to passengers, will determine [*28] how high a degree is reasonable in each case.” Keefe v. Bahama Cruise Line, Inc., 867 F.2d 1318, 1322 (11th Cir. 1989) (quoting Rainey v. Paquet Cruises, Inc., 709 F.2d 169, 172 (2nd Cir. 1983)). In this case, the circumstances surrounding a sailboat participating in a race in the Charleston harbor call for a heightened degree of care. Additionally, before stepping on board the Celadon, Ray had never before been on a sailboat, a fact of which Lesniak was unaware of and failed to inquire about.

A vessel operator also “has a duty to maintain a proper lookout by sight and by hearing” while the boat is travelling through navigable waters. Schumacher, 850 F.Supp. at 447. “This duty stems from general concepts of prudent seamanship as well as from the [regulations] governing the navigation of vessels.” Id. As a matter of prudent seamanship, “the performance of lookout duty is an inexorable requirement of prudent navigation.” Anthony v. Int’l Paper Co., 289 F.2d 574, 580 (4th Cir. 1961). Rule 5 of the Inland Navigation Rules states that “[e]very vessel shall at all times maintain a proper look-out by sight and hearing as well as by all available means appropriate in the prevailing circumstances and conditions so as to make a full appraisal of the situation and of the risk of collision.” 33 C.F.R. § 83.05. Rule 5 perpetuates the common-law duty discussed in Anthony. Schumacher, 850 F.Supp. at 448 (citation omitted). It imposes a duty of proper lookout upon the operator of a pleasure [*29] craft such as the Celadon. See Todd v. Schneider, 2003 U.S. Dist. LEXIS 25192, 2003 WL 23514560, at *11 (D.S.C. Dec. 8, 2003). Importantly, “[w]hoever is keeping a lookout must be able to give proper attention to that task and should not . . . undertake duties that would interfere with this function.” Schumacher, 850 F.Supp. at 448 (citation omitted).

“The duty to maintain a proper look-out, whether regulatory or customary, varies with the circumstances of each situation. When circumstances demand unusual care in navigation, such care should be used.” Id. at 449-50 (internal citations omitted). That higher level of care was required here, as Ray was an invited guest aboard a sailboat involved in a race in the Charleston harbor.

Lesniak was the owner, captain, and operator of the sailboat and was in control of its operation at all times. Ray was Lesniak’s passenger and guest. Although Lesniak designated his crewmembers to administer safety instructions to the passengers, as captain, Lesniak was ultimately responsible for the safety of the crewmembers and guests. Thus, Lesniak owed Ray a duty to maintain a proper lookout at all times during the Celadon’s outing.

b. Breach

Ray offered the testimony of Captain Wahl as her liability expert with regard to safe vessel operation. Captain Wahl has extensive knowledge about the safe [*30] operation of vessels. He obtained this knowledge from his many years of personally operating vessels, obtaining credentials, holding an array of maritime positions, authoring several books, and teaching well over 18,000 students in the subject. The court finds the testimony of Captain Wahl to be credible. Lesniak offered no liability expert at trial.

Captain Wahl testified that as the captain of the Celadon at the time of the incident, good seamanship practices required Lesniak to have the ultimate responsibility to look out for persons aboard his vessel–even if he delegated some of those responsibilities to crew members. Wahl testified that this ultimate responsibility includes providing adequate instructions, warnings, guidance, or lessons to all passengers, including late arriving ones, regarding the potential dangers of movement and position on his vessel and how to avoid those dangers. He also testified that looking out for passengers aboard a vessel includes refraining from performing a gybe maneuver until ensuring that all of the passengers are seated safely out of the path of the boom and its related parts such as the main sheet. Captain Wahl further testified that, even if [*31] a passenger is told verbally to move from a certain spot before a maneuver is performed, it would be a best practice to physically ensure that the person, especially if that person is a novice passenger with no sailing experience, has been moved to a safer place on the sailboat before proceeding to perform the maneuver. It is also Captain Wahl’s opinion that only highly experienced persons should be aboard for racing events, because inexperienced persons may not be able to handle the fast-paced activities normally observed during competitive sailing.

The court finds that Lesniak failed to act as a prudent mariner in failing to: (1) provide adequate posted, written, or verbal warnings to Ray regarding the potential dangers of movement and position on the Celadon and how to avoid those dangers; and (2) in failing to make sure that his passengers were in a safe location at all times, especially before performing a gybe maneuver which causes the boom and its related parts to swing quickly from port to starboard or vice versa. The court finds that these acts and omissions constitute a breach of Rule 5 of the Inland Navigation Rules, the common-law lookout duty, and the general duty of due care [*32] under Admiralty and South Carolina law.

c. Causation

General tort principles require a plaintiff asserting a negligence claim to show that the defendant’s breach of duty proximately caused her injuries. Schumacher, 850 F.Supp. at 451. However, a finding that the defendant breached his duty to maintain a proper lookout imposes upon him the burden of showing by clear and convincing evidence that such failure did not contribute to the accident. Id. This burden shift occurs regardless of whether the breach is viewed as a violation of Rule 5 or as breach of the common-law lookout duty. Id.

The court’s determination that Lesniak breached his duty to keep a proper lookout imposes upon him the burden to show by clear and convincing evidence that his breach of duty did not contribute to the incident. The record here does not support such a showing. Therefore, the court concludes that Lesniak’s negligence caused the main sheet to strike Ray’s head and, therefore, Ray’s resulting injuries.

d. Comparative Negligence

Since jurisdiction is premised upon admiralty, federal common law governs. As such, the doctrine of comparative negligence applies. See, e.g., Mullenix v. United States, 984 F.2d 101, 104 (4th Cir. 1993) (citing United States v. Reliable Transfer Co., 421 U.S. 397, 407, 411, 95 S. Ct. 1708, 44 L. Ed. 2d 251, (1975)). Thus, in the context of an admiralty case, damages should “[b]e allocated [*33] among the parties proportionately to the comparative degree of their fault.” Reliable Transfer Co., Inc. 421 U.S. at 411, 95 S.Ct. 1708.

The court finds that Ray’s recovery should be reduced because Ray shares in the fault attributable as a result of the incident. Lesniak is required to prove the elements of duty, breach, causation, and injury as to Ray’s alleged negligence. Schumacher, 850 F. Supp. at 452 (citing Wilson v. Marshall, 260 S.C. 271, 195 S.E.2d 610, 612 (S.C. 1973)). Namely, an individual has a “duty to exercise due care for one’s own safety.” Id. The court finds that Ray’s conduct contributed to her injuries, and reduces her damages by 25%.

The court finds that Ray was instructed by multiple crew members on multiple occasions on safety protocol, including where to sit. Ray admits that she was aware of potential dangers on the Celadon, and that she was told to “get closer together” and to “get more neighborly” in the moments immediately before the main sheet hit her. Lesniak and all four members of his crew who testified at trial indicated that there was a safety protocol, that Becker, an individual with sixty plus years of sailing experience, and her fellow crew member Truog, were delegated the duty of administering safety instructions and watching out for new, inexperienced passengers. Becker and Truog testified at trial [*34] that these were duties bestowed by their captain, Lesniak, and that they had a present-day recollection of communicating with Ray directly. The court further finds that Ray did not follow the instructions to move. Thus, Ray failed to take responsibility for herself, a duty which is imposed under the law. However, the court considers Ray’s inaction against the backdrop of Captain Wahl’s testimony that Ray as a novice passenger would not know what the safe places were on the boat without being physically guided to those places.

C. Damages

Substantive admiralty law governs all cases brought under federal admiralty jurisdiction; however, it does not automatically displace state law. Yamaha Motor Corp., U.S.A. v. Calhoun, 516 U.S. 199, 116 S. Ct. 619, 133 L. Ed. 2d 578 (1996). If there is no admiralty law on point, the court may look to the laws enacted by the state legislature or declared to be law by the state’s highest courts. Byrd v. Byrd, 657 F.2d 615, 617 (4th Cir. 1981). Accordingly, the court may look to the law of the State of South Carolina in regard to the award of damages arising out of a negligence cause of action in admiralty. Id.

In a personal injury case such as this, the elements of damages potentially recoverable “include past and future medical expenses, past and future pain and suffering, past and future loss [*35] of income and earning power, disfigurement, loss of enjoyment of life, and loss of family services.” Schumacher, 850 F.Supp. at 453 (citing Watson v. Wilkinson Trucking Co., 244 S.C. 217, 136 S.E.2d 286, 291 (S.C. 1964)). Mathematical precision in ascertaining damages is not required. Brooks v. United States, 273 F.Supp. 619, 629 (D.S.C. 1967). Instead, the injured party must be awarded damages sufficiently proportionate to the injuries sustained. Drennan v. Southern Railway, 91 S.C. 507, 75 S.E. 45 (S.C. 1912).

The evidence in this case reveals Ray has suffered and will suffer such past and future damages, and she is entitled to recover for all of them.

a. Past Medical Expenses

Ray seeks to recover certain expenses for her prior medical care. At trial, she submitted a medical bill summary totaling $20,480.70 in prior care. Those expenses are recoverable, as they consist of services such as emergency medical treatment, imaging, physical therapy, psychiatric treatment, and pain management. Those expenses resulted from Lesniak’s negligence and were reasonably necessary. See Sossamon v. Nationwide Mut. Ins. Co., 243 S.C. 552, 135 S.E.2d 87, 91 (S.C. 1964). Moreover, the court is satisfied that the invoiced amounts are reasonable. See Haselden v. Davis, 353 S.C. 481, 579 S.E.2d 293, 295 (S.C. 2003) (citation omitted). Therefore, the court awards Ray $20,480.70 in past medical expenses.

b. Future Medical Expenses

Ray seeks damages to cover her anticipated future medical expenses. “[R]ecovery of damages based on future consequences of an injury may be had only if [*36] such consequences are reasonably probable or reasonably certain.” Lohrmann v. Pittsburgh Corning Corp., 782 F.2d 1156, 1160 (4th Cir. 1986). “Reasonably certain” is “a consequence ‘which follows the original act complained of in the usual, ordinary, and experienced course of events.'” Rabb v. Orkin Exterminating Co., 677 F.Supp. 424, 426 (D.S.C. 1987) (quoting Ford v. AAA Highway Express, Inc., 204 S.C. 433, 29 S.E.2d 760, 762 (S.C. 1944)). In other words, damages can be recovered only if there is “[a] greater than 50% chance that a future consequence will occur.” Lohrmann, 782 F.2d at 1160.

Dr. White, the only medical expert offered in this case, testified at trial that Ray’s condition is permanent and will require ongoing future treatment and medication. The court concludes that Ray has established a reasonable certainty that her condition is permanent and will require ongoing future treatment, including seeing a psychiatrist and a neurologist quarterly, and medication, potentially including anti-inflammatories (anti-inflammatory patch), amphetamines or an amphetamine substitute (Nuvigil), a benzodiazepine (Klonopin), a sedative-hypnotic (Belsomra), an anxiolytic (Buspar), and a selective serotonin reuptake inhibitor (Cymbalta). Dr. White testified that Nuvigil costs approximately $800.00 per month, Cymbalta costs approximately $200.00-300.00 per month, and Belsomra costs approximately $400.00-500.00 per month.

Ray’s birthday [*37] is May 8, 1985. At the time of the incident she was 29 years old. Thus, at the time of the incident, Ray had a life expectancy of 52.53 years, or 630.36 months, under S.C. Code Ann. § 19-1-150.

Adjusted for present value,3 the future medications, frequency, current cost, duration, and present value are as follows:

Medication Frequency Current Cost Duration Present Value
Nuvigil annual $9,600/yr 2018-life $330,345
Cymbalta annual $2,400-$3,600/yr 2018-life $82,585-$123,870
Belsomra annual $4,800-$6,000/yr 2018-life $165,170-$206,465

3 Lesniak contends that Ray needs an expert economist on the issue of present value of future damages and needed to present evidence at trial on the calculation of present value discounts. However, he cites no caselaw–and the court is aware of none–that there is a requirement of obtaining expert testimony on the issue of present value of future damages. The court can find no clear requirement in relevant federal case law that plaintiff must present expert evidence of the present value of her claim for future damages. The court draws guidance from the Western District of North Carolina’s recent opinion in Talley v. City of Charlotte, 2016 U.S. Dist. LEXIS 17604, 2016 WL 1212369, at *2 (W.D.N.C. Feb. 12, 2016), appeal dismissed (Aug. 31, 2016), which observed:

[t]he courts are split on whether it is necessary to introduce expert testimony to explain the concept of discounting an award to present value or to supply suggested discount and inflation rates and/or mathematical calculations. While some courts have permitted, for example, a local banker to testify as to the fair return on a safe investment, or a mathematician an actuary, or an accountant to testify concerning the procedure by which the reduction to present value should be calculated, other courts have held that expert testimony is permitted but not required, and that the jury should generally be left to its own discretion as to what discount factors should be used.

Here, the court calculated the present value discounts employing a discount rate of five percent to damages for future medical care. See Faust v. S.C. State Highway Dep’t, 527 F. Supp. 1021, 1036 (D.S.C. 1981), rev’d on other grounds, 721 F.2d 934 (4th Cir. 1983) (“I find that he is entitled to be properly compensated for his pain, suffering, damages and permanent partial disability, before and after trial, and taking into consideration future pain and suffering and discomfort, and reducing that amount to its present cash value by use of a discount rate of five (5%) percent, which this court feels is reasonable and fair.”).

Future [*38] medication costs are increased at an expected inflation rate for prescription drugs of 3.61 percent, compounded annually.4 The present value of the total future medications that Dr. White opined were reasonable and necessary for Ray’s treatment ranges in cost from $578,100 (using the low figures of the cost of medicine needed) to $660,689 (using the high figures of the cost of medicine needed).5 The court awards the average of the cost of medicine needed, and so awards $619,394.50 for future medical expenses associated with her injuries resulting from the May 21, 2014, incident.

4 This rate is based on inflation rates as reported by the Bureau of Labor Statistics for the period 1992-2016.

5 All future medication costs are discounted to present value at a rate of 5 percent, compounded annually. This is a rate that an ordinary person with average financial knowledge, with access to commonly available investment outlets, and facing the full range of financial risks might be expected to earn over a long period of time.

d. Pain and Suffering

Ray’s pain and suffering because of this incident is well documented through her deposition and trial testimony as well as her medical records. She endured months of frequent headaches, nausea, muscle pain, and back pain as a result of her physical injuries. Raven Ray seeks $75,000.00 for past and future pain and suffering. Based on the entire record, the court concludes that $50,000.00 is the appropriate amount of compensation for both past and future pain and suffering. See Schumacher, 850 F.Supp. at 453.

e. Past and Future Emotional Distress

Injured plaintiffs are entitled to recover for mental anguish and permanent emotional [*39] scarring. Steeves v. United States, 294 F. Supp. 446, 458 (D.S.C. 1968). Ray’s severe psychological and emotional injuries because of this incident are well-documented by Houfek. Testimony from Ray and Houfek, in addition to Dr. Kurtzman’s and Dr. Waid’s records, show the extent and severity of Ray’s psychological and emotional injuries proximately caused by Lesniak’s negligence. After a careful review of the entire record, the court finds $75,000.00 for her psychological and emotional injuries reasonable. Therefore, it awards judgment against Lesniak in the amount of $75,000.00 for Ray’s past and future psychological and emotional injuries.

f. Loss of Enjoyment of Life and Permanent Impairment

Next, Ray seeks $100,000.00 as compensation for losing her ability to enjoy the athletic and recreational activities in which she used to participate, as well as her loss of enjoyment of other normal activities of life. Based on the entire record, the court concludes that $100,000.00 is the appropriate amount of compensation for this loss.

Additionally, Ray is permanently impaired due to this traumatic brain injury and must be compensated for her permanent impairment. Ray’s birthday is May 8, 1985. At the time of the incident, she was 29 years old. Thus, [*40] at the time of the incident, Ray had a life expectancy of 52.53 years, or 19,173.45 days, under S.C. Code Ann. § 19-1-150. Finding a valuation of a traumatic brain injury at $20.00 per day to be reasonable, the court awards Ray $383,469.00 for her impairment. In sum, the Court awards Raven Ray $483,469.00 for her loss of enjoyment of life and permanent impairment.

g. Lost Wages/Inconvenience and Disruption of Normal Daily Life

At the time of the incident, Ray was working in the food and beverage industry and attending The Citadel to obtain a graduate degree. Because of her injuries resulting from Lesniak’s negligence, Ray was forced to miss work and experienced difficulty in completing her graduate coursework at The Citadel. The court finds $30,000.00 to be appropriate compensation for Ray’s lost wages and difficulties experienced in completing her graduate coursework at The Citadel. See Schumacher, 850 F.Supp. at 453.

D. Prejudgment Interest

Ray asks the court to add prejudgment interest to her damages. In maritime injury cases, “the awarding of prejudgment interest is the rule rather than the exception, and, in practice, is well-nigh automatic.” U.S. Fire Ins. Co. v. Allied Towing Corp., 966 F.2d 820, 828 (4th Cir. 1992) (citation omitted). The court may decline to award prejudgment interest when it finds that “peculiar [*41] circumstances” would make such relief inequitable. Id. This is an action instituted under the court’s admiralty jurisdiction and no peculiar or exceptional circumstances existed that would prevent Ray from recovering pre-judgment interest. This court, in its discretion, finds no such peculiar circumstances here and finds that Ray is entitled to pre-judgment interest in the amount of $22,952.44 from the date of the accident until the date of this order.

IV. CONCLUSION

Based on the foregoing, it is ORDERED that judgment be entered for Ray against Lesniak in the sum of nine-hundred and fifty-eight, and seven-hundred and fifty-eight dollars and fifteen cents $958,758.15,6 plus prejudgment interest in the amount of twenty-two thousand, nine-hundred and fifty-two dollars and forty-four cents $22,151.44, and postjudgment interest at the legal rate from the date of this order.

6 The tabulation of damages is $1,278,344.20 before the application of a 25% reduction in proportion to Ray’s comparative negligence. After applying the 25% reduction, the total damages award is $958, 758.15.

AND IT IS SO ORDERED.

/s/ David C. Norton

DAVID C. NORTON

UNITED STATES DISTRICT JUDGE

February 22, 2018

Charleston, South Carolina


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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Author: Outdoor Recreation Insurance, Risk Management and Law

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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

 


Admiralty Law Limitation of Liability Act

TITLE 46. SHIPPING

SUBTITLE III. MARITIME LIABILITY

CHAPTER 305. EXONERATION AND LIMITATION OF LIABILITY

Go to the United States Code Service Archive Directory

46 USCS § 30505

  • 30505. General limit of liability

(a) In general. Except as provided in section 30506 of this title [46 USCS § 30506], 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. If the vessel has more than one owner, the proportionate share of the liability of any one owner shall not exceed that owner’s proportionate interest in the vessel and pending freight.

(b) Claims subject to limitation. Unless otherwise excluded by law, 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, damage, 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.

(c) Wages. Subsection (a) does not apply to a claim for wages.


Admiralty law did not stop a release from barring a claim for negligence for a parasailing injury.

Aramark sued for parasailing accident when it booked the trip with an “affiliate.”

Cobb v. Aramark Sports and Entertainment Services, LLC, 933 F. Supp. 2d 1295; 2013 U.S. Dist. LEXIS 20139; 2013 AMC 2563

State: Nevada, United States District Court for the District of Nevada

Plaintiff: Jaclyn Cobb

Defendant: Aramark Sports and Entertainment Services, LLC

Plaintiff Claims: Negligence

Defendant Defenses: Release

Holding: For the defendant

Year: 2013

The plaintiff signed up to go parasailing on Lake Tahoe with Zephyr Cove Resort. Zephyr Cove Resort is described by the court as being an “affiliate of the defendant Aramark. Aramark is well known as a large concessionaire operating hotel and services in National Parks.

After signing up the plaintiff signed a release (waiver). The plaintiff went parasailing and was sailing when the weather turned bad. She was being reeled back to the boat when she struck her knee causing injury.

The plaintiff filed this claim against Aramark. (It is not stated what the relationship is between Aramark and Zephyr Cove Resort or why the plaintiff did not sue Zephyr Cove Resort.)

The defendant filed a motion for summary judgment which the court granted with this opinion.

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

Most legal decisions based where a motion for summary judgment is filed to review the requirements on what must be proved by the defendant (generally), for the motion to be granted. Generally, that occupies one to five paragraphs in the order. Most are either too succinct to explain the process or too wordy to make deciphering the process worth the effort. This court did a great job of explaining what the defendant must prove to succeed in its motion for summary judgment. The court then reviewed what the plaintiff must do to rebut the motion for summary judgment.

The party filing a motion for summary judgment must argue the facts, taken in the light most favorable to the opposing party when applied to the law show there is no genuine issue of material fact. Those facts must show that no reasonable trier of fact (a jury normally), could find any other way.

The moving party bears the burden of informing the court of the basis for its motion, along with evidence showing the absence of any genuine issue of material fact. On those issues for which it bears the burden of proof, the moving party must make a showing that is “sufficient for the court to hold that no reasonable trier of fact could find other than for the moving party.

To rebut the motion for summary judgment the non-moving party must point to facts in the record which so issues. The record is the evidence, depositions, responses to interrogatories and information that met the rules of evidence to be presented to the court.

To successfully rebut a motion for summary judgment, the non-moving party must point to facts supported by the record which demonstrate a genuine issue of material fact.

If a reasonable mind could see the facts in a different way, then a motion for summary judgment is not appropriate. The issues must go to trial and be presented to a jury. The evidence presented in the motion must be genuine that means a reasonable jury can only see the evidence as pointing in one direction, saying one thing. The evidence that is not proved must be more than a scintilla; it must show there is a real dispute in how the facts can be seen.

Where reasonable minds could differ on the material facts at issue, summary judgment is not appropriate. A dispute regarding a material fact is considered genuine “if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” The mere existence of a scintilla of evidence in support of the plaintiff’s position will be insufficient to establish a genuine dispute; there must be evidence on which the jury could reasonably find for the plaintiff.

Consequently, when a court grants a motion for summary judgment, the evidence presented is such the court can see that evidence only proving one view of the issue and there is no other evidence that refutes that evidence sufficient to change the mind, or even make the person waiver in his or her thoughts on how the evidence is viewed.

In this case, the court found that admiralty law did apply in this case. Admiralty law is federal law that controls the seas or waters moving between two states. Lake Tahoe has shores on both Nevada and California so admiralty law was the law to be applied to the case.

The action giving rise to the admiralty law claim must be based on maritime activity. The Supreme Court and other federal courts have a very broad definition of maritime activity, and paragliding has been found to be a maritime activity.

An action falls within the admiralty jurisdiction of the federal courts under 28 U.S.C. § 1333(1) when: (1) the underlying tort occurred on navigable waters; and (2) the actions giving rise to the tort claim bear a significant relationship to traditional maritime activity.

Where, as here, a body of water forms a border between two states and is capable of supporting maritime commerce, it is considered navigable for the purpose of establishing admiralty jurisdiction. Second, parasailing bears a significant relationship to traditional maritime activities sufficient to establish admiralty jurisdiction. (“Careful and safe navigation of vessels in navigable waters have always been a fundamental admiralty concern. Navigation is an essential component in the parasailing activity.”)

Assumption of the risk is not a defense that can be used in a case covered by admiralty law. However, release is a valid defense.

In her opposition, Cobb argues that the liability waiver is unenforceable because under federal maritime law assumption of the risk is not a valid defense. Cobb is correct that assumption of the risk is not an available defense in maritime cases involving personal injury. However, this does not preclude Aramark from raising the defense of express waiver in this case. Waiver and assumption of the risk are two distinct affirmative defenses and are addressed separately under federal admiralty law.

Under Admiralty law, a release must meet a two-part test.

First, Cobb concedes that she knowingly and voluntarily signed the liability waiver. Second, the court finds that the express waiver in this action is clear and unambiguous as it contains specific language releasing Zephyr and its affiliates, including defendant Aramark, for injuries sustained in carrying out the parasailing activities as a result of Zephyr’s negligence

An unambiguous waiver is one that specifically bars the claims of the plaintiff and protects all the defendants. “A waiver is clear and unambiguous if it specifically bars the plaintiff’s negligence claim and explicitly exonerates all defendants in the lawsuit.”

The court then specifically pointed out that the injury the plaintiff is complaining of was specifically listed in the release. “Further, the very injuries Cobb is suing for are specifically precluded by the waiver including “drowning, sprained or broken bones.

Nor does the release violate public policy. Voluntary recreational activities do not violate public policy under admiralty law.

Third, the underlying express waiver is not inconsistent with public policy because waivers of liability on navigable waters do not contravene federal public policy.

The waiver is also not an adhesion contract because again, it is for a voluntary recreational activity.

Finally, the court finds that the express waiver signed by Cobb is not an adhesion contract because it concerns a voluntary recreational activity. Under federal admiralty law, liability waivers for recreational sporting activities like parasailing are not contracts of adhesion because they are not essential services.

Finding that Admiralty law was the law to be applied, finding that admiralty law allowed the use of a release to stop claims for negligence and finding the release in this matter was valid, the court granted the defendants motion for summary judgment.

Therefore, the court finds that the underlying pre-accident waiver is valid and enforceable and absolves the defendant Aramark of any liability arising from the recreational parasailing activity. Accordingly, the court shall grant Aramark’s motion for summary judgment.

So Now What? 

This is another decision that you should keep handy if your recreational activity could be viewed as subject to admiralty law. Scuba diving, whitewater rafting, and as here parasailing, dependent on the location of the activity, can all be subject to admiralty law.

The decision is also good because its explanation of the law is simple and succinct. You want nothing better than to point to a sentence in a case to support your position that is easy to read and easily understood; no matter how intelligent the judges and attorneys are that may be reading it.

Of major importance for everyone is the court specifically pointed out that the injury the plaintiff was complaining about was one the release specifically pointed out as one that could occur in the release.

Whenever those two issues occur, the injury the plaintiff received was in writing in the release courts point it out. That should be a major flag to anyone writing a release that you need to list the risks of the activity in your release. You must list the major accidents that can occur like death and the common accidents that can occur, like sprains and strains for the activity, you are running.

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Cobb v. Aramark Sports and Entertainment Services, LLC, 933 F. Supp. 2d 1295; 2013 U.S. Dist. LEXIS 20139; 2013 AMC 2563

Cobb v. Aramark Sports and Entertainment Services, LLC, 933 F. Supp. 2d 1295; 2013 U.S. Dist. LEXIS 20139; 2013 AMC 2563

Jaclyn Cobb, Plaintiff, v. Aramark Sports and Entertainment Services, LLC, Defendant.

3:11-cv-0840-LRH-WGC

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEVADA

933 F. Supp. 2d 1295; 2013 U.S. Dist. LEXIS 20139; 2013 AMC 2563

February 13, 2013, Decided

February 14, 2013, Filed

SUBSEQUENT HISTORY: As Amended March 18, 2013.

COUNSEL: [**1] For Jaclyn Cobb, Plaintiff: Angela D. Bullentini, Charles M Kilpatrick, Kilpatrick, Johnston & Adler, Carson City, NV.

For Aramark Sports and Entertainment Services, LLC, Defendant: Rachel K McLendon-Kent, Graeme A. Reid, Bauman Loewe Witt & Maxwell, Reno, NV; Terence Cox, Cox, Wootton, Griffin, Hansen & Poulos, LLP, San Francisco, CA.

JUDGES: LARRY R. HICKS, UNITED STATES DISTRICT JUDGE.

OPINION BY: LARRY R. HICKS

OPINION

[*1296] AMENDED ORDER

Before the court is defendant Aramark Sports and Entertainment Services, LLC’s (“Aramark”) motion for summary judgment. Doc. #28. 1 Plaintiff Jaclyn Cobb (“Cobb”) filed an opposition (Doc. #33) to which Aramark replied (Doc. #38). This Order amends Order #39. 2

1 Refers to the court’s docket number.

2 This Order is identical to Order #39, but with needed edits for punctuation and citation accuracy.

I. Facts and Procedural History

Plaintiff Cobb is seeking recovery for a knee injury allegedly sustained while parasailing with an affiliate of defendant Aramark.

On June 15, 2010, Cobb paid to go parasailing on Lake Tahoe through an operation ran by Zephyr Cove Resort (“Zephyr”). Before going on the boat for parasailing, Cobb signed a waiver of liability entitled Acknowledgment and Assumption of Risk and Waiver of Liability (“Waiver”). The waiver stated in relevant part:

In consideration of my being allowed to participate in the parasailing [**2] activities operated and conducted by [Zephyr], I hereby RELEASE and WAIVE . . . any and all claims that I may have . . . against [Zephyr], and any of [its] affiliates . . . I specifically RELEASE [Zephyr], and any of [its] affiliates . . . from . . . all claims for . . . injury or death to persons caused by negligence of any one of them arising out of my participation in the parasailing activities. I AGREE NOT TO SUE . . . the aforementioned parties for any injuries or damages that I might hereby receive from my participation in the parasailing activities, whether or not such injury, loss or damage results from the aforementioned [*1297] parties’ negligence or from any other cause.

Doc. #28, Exhibit A.

After signing the waiver, Cobb boarded the parasailing vessel and, along with another family member, went parasailing in a tandem harness. At some point during the trip, adverse weather conditions, including high winds, caused the parasailing trip to be called short. As she was being reeled back into the boat Cobb struck her knee on the boat causing significant injury.

Subsequently, Cobb filed a complaint for negligence against Aramark. Doc. #1, Exhibit A. Thereafter, Aramark filed the present motion [**3] for summary judgment contending that Cobb expressly waived her right to sue. Doc. #28.

II. Legal Standard

Summary judgment is appropriate only when “the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, 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. P. 56(c). In assessing a motion for summary judgment, the evidence, together with all inferences that can reasonably be drawn therefrom, must be read in the light most favorable to the party opposing the motion. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S. Ct. 1348, 89 L. Ed. 2d 538 (1986); County of Tuolumne v. Sonora Cmty. Hosp., 236 F.3d 1148, 1154 (9th Cir. 2001).

The moving party bears the burden of informing the court of the basis for its motion, along with evidence showing the absence of any genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986). On those issues for which it bears the burden of proof, the moving party must make a showing that is “sufficient for the court to hold that no reasonable trier of fact could find other than for the moving party.” [**4] Calderone v. United States, 799 F.2d 254, 259 (6th Cir. 1986); see also Idema v. Dreamworks, Inc., 162 F. Supp. 2d 1129, 1141 (C.D. Cal. 2001).

To successfully rebut a motion for summary judgment, the non-moving party must point to facts supported by the record which demonstrate a genuine issue of material fact. Reese v. Jefferson Sch. Dist. No. 14J, 208 F.3d 736 (9th Cir. 2000). A “material fact” is a fact “that might affect the outcome of the suit under the governing law.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986). Where reasonable minds could differ on the material facts at issue, summary judgment is not appropriate. See v. Durang, 711 F.2d 141, 143 (9th Cir. 1983). A dispute regarding a material fact is considered genuine “if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Liberty Lobby, 477 U.S. at 248. The mere existence of a scintilla of evidence in support of the plaintiff’s position will be insufficient to establish a genuine dispute; there must be evidence on which the jury could reasonably find for the plaintiff. See id. at 252.

III. Discussion

A. Applicable Law

In its motion, Aramark argues that this action, and thereby [**5] the express waiver, is governed by federal admiralty law. See Doc. #28. An action falls within the admiralty jurisdiction of the federal courts under 28 U.S.C. § 1333(1) when: (1) the underlying tort occurred on navigable waters; and (2) the actions giving rise to the tort claim bear a significant relationship to traditional maritime activity. Charnis v. Watersport Pro, LLC, 2009 U.S. Dist. LEXIS 76022, *5-6 [*1298] (D. Nev. 2009) (citing Sisson v. Ruby, 497 U.S. 358, 365-66, 110 S. Ct. 2892, 111 L. Ed. 2d 292 (1990)).

The court has reviewed the documents and pleadings on file in this matter and finds that this action falls within the court’s exercise of admiralty jurisdiction. First, the alleged injury occurred on Lake Tahoe, a navigable waterway that lies within the borders of Nevada and California. Where, as here, a body of water forms a border between two states and is capable of supporting maritime commerce, it is considered navigable for the purpose of establishing admiralty jurisdiction. Charnis, 2009 U.S. Dist. LEXIS 76022, *6. Second, parasailing bears a significant relationship to traditional maritime activities sufficient to establish admiralty jurisdiction. See e.g., In the Matter of Skyrider, 1990 U.S. Dist. LEXIS 16510, *10 (D. Haw. 1990) [**6] (“Careful and safe navigation of vessels in navigable waters have always been a fundamental admiralty concern. Navigation is an essential component in the parasailing activity.”); UFO Chuting of Hawaii Inc. v. Smith, 508 F.3d 1189, 1193 (9th Cir. 2007) (holding that parasailing is an activity bearing a significant relationship to traditional maritime activities); Charnis, 2009 U.S. Dist. LEXIS 76022, *6 (“The operation of recreational boats, including pulling skiers or wakeboarders, bears a significant relationship to traditional maritime activity.”). Therefore, this action arises under the court’s admiralty jurisdiction and, as such, the court must apply substantive federal admiralty law to this action. Charnis, 2009 U.S. Dist. LEXIS 76022, *6 (“With admiralty jurisdiction comes the application of substantive admiralty law.”) (citing E. River S.S. Corp. v. Transamerica Delaval, Inc., 476 U.S 858, 864, 106 S. Ct. 2295, 90 L. Ed. 2d 865 (1986)).

B. Assumption of the Risk

In her opposition, Cobb argues that the liability waiver is unenforceable because under federal maritime law assumption of the risk is not a valid defense. Cobb is correct that assumption of the risk is not an available defense in maritime cases involving [**7] personal injury. See e.g., De Sole v. United States, 947 F.2d 1169 (4th Cir. 1991); Skidmore v. Grueninger, 506 F.2d 716 (5th Cir. 1975). However, this does not preclude Aramark from raising the defense of express waiver in this case. Waiver and assumption of the risk are two distinct affirmative defenses and are addressed separately under federal admiralty law. See Charnis, 2009 U.S. Dist. LEXIS 76022, *10-11. Therefore, Aramark may raise the affirmative defense of express waiver in this action.

C. Express Waiver

In its motion, Aramark argues that the signed express waiver precludes the present action. See Doc. #28. Specifically, Aramark argues that under federal maritime law, pre-accident liability waivers are enforceable and may properly dispose of this action on summary judgment.

Under federal admiralty law, owners of recreational vessels may, through written waivers, disclaim liability for their own negligence. Charnis, 2009 U.S. Dist. LEXIS 76022, *11. A pre-accident waiver absolves a defendant of liability for recreational activities on navigable waters if the exculpatory clause is (1) clear and unambiguous; (2) is not inconsistent with public policy; and (3) is not an adhesion contract. [**8] Id. at 13.

The court has reviewed the documents and pleadings on file in this matter and finds that the signed waiver of liability is [*1299] enforceable. First, Cobb concedes that she knowingly and voluntarily signed the liability waiver. See Doc. #33. Second, the court finds that the express waiver in this action is clear and unambiguous as it contains specific language releasing Zephyr and its affiliates, including defendant Aramark, for injuries sustained in carrying out the parasailing activities as a result of Zephyr’s negligence.

A waiver is clear and unambiguous if it specifically bars the plaintiff’s negligence claim and explicitly exonerates all defendants in the lawsuit. See Charnis, 2009 U.S. Dist. LEXIS 76022. Here, the waiver specifically bars plaintiff from suing for her injuries. Doc. #28, Exhibit A (“I AGREE NOT TO SUE . . . the aforementioned parties for any injuries or damages that I might hereby receive from my participation in the parasailing activities, whether or not such injury, loss or damage results from the aforementioned parties’ negligence or from any other cause.”). Further, the very injuries Cobb is suing for are specifically precluded by the waiver including “drowning, [**9] sprained or broken bones.” Doc. #28, Exhibit A. Therefore, the court finds that the express waiver is sufficiently clear and unambiguous to cover Cobb’s injuries sustained while parasailing.

Third, the underlying express waiver is not inconsistent with public policy because waivers of liability on navigable waters do not contravene federal public policy. Charnis, 2009 U.S. Dist. LEXIS 76022, *13-14; In re Aramark Sports and Entertainment Services, LLC, 2012 U.S. Dist. LEXIS 123786, *21 (C.D. Utah 2012) (holding that maritime exculpatory clauses are enforceable when a party clearly absolves itself from liability for its own negligence).

Finally, the court finds that the express waiver signed by Cobb is not an adhesion contract because it concerns a voluntary recreational activity. Under federal admiralty law, liability waivers for recreational sporting activities like parasailing are not contracts of adhesion because they are not essential services. See e.g., Charnis, 2009 U.S. Dist. LEXIS 76022, *14-15; In re Aramark, 2012 U.S. Dist. LEXIS 123789, *15. Therefore, the court finds that the underlying pre-accident waiver is valid and enforceable and absolves defendant Aramark of any liability [**10] arising from the recreational parasailing activity. Accordingly, the court shall grant Aramark’s motion for summary judgment.

IT IS THEREFORE ORDERED that defendant’s motion for summary judgment (Doc. #28) is GRANTED. The clerk of court shall enter judgment in favor of defendant Aramark Sports and Entertainment Services, LLC and against plaintiff Jaclyn Cobb.

IT IS SO ORDERED.

DATED this 18th day of March, 2013.

/s/ Larry R. Hicks

LARRY R. HICKS

UNITED STATES DISTRICT JUDGE


Whitewater rafting, 13 injuries one death and release in WV are upheld. Management-level employees of DC health care company rafted river in allegedly high water causing injuries.

West Virginia Supreme court holds that admiralty or maritime law does not apply to whitewater rafting.

River Riders, Inc., v. Steptoe, et al, 223 W. Va. 240; 672 S.E.2d 376; 2008 W. Va. LEXIS 116; 2009 AMC 2157

Date of the Decision: December 10, 2008

Plaintiff on Appeal, Defendants at the trial court: River Riders, Inc., and Matthew Knott, Petitioners

Defendant: The Honorable Thomas W. Steptoe

Third parties on appeal: plaintiff’s at the trial court: Executor of the estate of the deceased and the 13 injured plaintiffs

Plaintiff Claims: failed to meet the statutory “standard of care” expected of members of the whitewater guide profession in direct violation of the West Virginia Whitewater Responsibility Act, W. Va. Code

Defendant Defenses: release

Issue on Appeal: Whether the trial court had improperly held the whitewater rafting trip was subject to federal admiralty law.

Holding:

This is an interesting case from a procedural perspective as well as a factual one. The issue on appeal is not a review of a complete ruling by the trial court but of a ruling that the defendants, and the court felt would influence the final decision. Meaning the defendant could convince the appellate court that the trial court’s ruling was probably wrong and unless corrected now, the entire trial would have to be done again.

The facts are people went rafting on the Shenandoah River in West Virginia. Before embarking on the trip each person signed a “Release, Assumption of Risk and Indemnity Agreement.” The water was higher than average on the day of the raft trip; 12.5 feet compared to an average of 2 to 4 feet. During the raft trip four of the rafts dumped, sending several people into the water, including the deceased and thirteen other rafters into the river.

Two separate lawsuits were filed over the incident. The first was by the estate of the deceased. The second lawsuit was filed by the other thirteen injured rafters.

The complaints of the plaintiff allege several issues:

…River Riders failed to meet the statutory “standard of care” expected of members of the whitewater guide profession in direct violation of the West Virginia Whitewater Responsibility Act, W. Va. Code §20-3B-3(b) (1987).

…that running a raft trip on September 30, 2004, simply was not reasonable under the circumstances, and that the expected standard of care would have obligated River Riders to cancel or reschedule the whitewater expedition on that day because of the river’s high and turbulent waters caused by a recent hurricane that had swept through the area.

…failing to call off or postpone the trip until conditions were safe to go out on the river, by failing to recognize that the operating capabilities of its rafts with the inexperienced customers would be unsafe and hazardous in high, swift and rough water conditions; and by wrongfully electing to navigate the Shenandoah River and in particular the Shenandoah Staircase.

The complaint for the wrongful death included the following claims:

two separate counts: one for negligence, gross negligence, reckless and wanton conduct; the other for negligence per se. Citing fifteen alleged acts or omissions, Count One alleges that the duties owed by River Riders to Mr. Freeman included the duty to conform to the standard of care expected of members of their profession, the duty to conform to safety and other requirements set forth in the West Virginia Code, the duty to conform to rules promulgated by the commercial whitewater advisory board, and the duty not to act in a reckless or wanton manner. Count Two alleges two additional acts or omissions constituting negligence per se, including citations by the West Virginia Division of Natural Resource for failure to mark a commercial water craft and failure to have a valid CPR card as required by W. Va. Code §20-2-23a

Prior to trial, the plaintiff’s filed a motion in limine to exclude the release agreement which the court granted. The court relied upon a prior West Virginia Supreme Court case that held since there was a statute supporting and providing defenses for the whitewater rafting industry, a release was no long available as a defense. Murphy v. North American River Runners, Inc., 186 W. Va. 310, 412 S.E.2d 504 (1991)

Another motion in limine was filed by the plaintiff’s arguing that assumption of risk could not be a defense because the case was governed by maritime law.

Finally, the plaintiff’s filed a motion to consolidate both lawsuits into one and have one trial. This motion was also granted by the court.

The defendants then filed motions with the West Virginia Supreme court arguing that the motions of the trial court were wrong, and the court had to intervene for a fair trial to occur. This motion was called a Writ of Prohibition.

The West Virginia Supreme Court granted the Writ but only as to the issue of whether or not maritime law applied to a whitewater rafting case in West Virginia.

This Court has, on limited occasions, considered challenges from evidentiary rulings in unique circumstances where the matter at issue rose to a level of considerable importance and compelling urgency.

The court declined to review the other issues because a writ of prohibition was not the proper way to argue the issues and timing of those issues were best left to the appeal of the case.

Summary of the case

To be subject to Federal maritime law a two-prong test must be met, “whether the rafting mishap and ensuing tort claims arising therefrom satisfied both prerequisite conditions of 1) location on the navigable waters and 2) connection with maritime activity.”

In determining whether or not the accident occurred on navigable waters the trial court should have included an analysis of “…whether the incident constituted “a potentially disruptive impact on maritime commerce” and that it had a “substantial relationship to traditional maritime activity” and determined the “the activity of whitewater rafting does not constitute traditional maritime activity and is therefore, not governed by maritime law.”

…given the fact that the Shenandoah River maintains average depths of two feet, 18 it is hard to envision how the act of whitewater rafting could have a potentially disruptive impact on maritime commerce, to  the extent that this area was unlikely a highly traveled thoroughfare over which trade and travel is conducted.

Nor could the court find any decision where admiralty law had been applied to whitewater rafting.

Whitewater rafting is a recreational activity where participants seek the adventure of paddling a rubber raftin rapidly moving whitewater streams and rivers. Such use of streams and rivers carrying people, not as traveling passengers, but rather as participants seeking adventure, makes it difficult to conceive that whitewater rafting bears a substantial relationship to traditional maritime activity.

The appellate court sent the case back down with two of the rulings intact.

So Now What?

Admiralty law is a separate area of the law. It was developed prior to the formation of the United States for commerce between countries. It has very different rules for liability, worker’s compensation and other legal issues. In the US, admiralty law also applies to travel on major rivers and waterways. When and how admiralty law is applied is dependent upon the federal statute and the type of admiralty activity. As an example there are more than a dozen different definitions of navigable for different maritime activities.

Admiralty law came from commerce. Admiralty law has been applied to recreational activities in the past, such as using personal water craft, however, in all of those cases; the activity was on the ocean or large bodies of water.

Admiralty law could be used in some states on some rafting rivers as a defense, if handled by a law firm knowledgeable in admiralty law. If the jurisdictional issues are met, a defendant can go to court within six months of an accident and file a notice (open a case) and post a bond. The reason for doing this is, under admiralty law, the damages available to the plaintiff’s is limited to the value of the vessel and its contents after the accident. However, by doing this the raft company may be admitting liability and must prove it was an admiralty issue.

This law as created to limit the damages of a ship owner to not bankrupt the owner or the industry. A $10,000 raft, frame and gear are a relatively cheap and easy way to get out from under a potential claim. However, if you fail to meet the requirements but are still subject to admiralty law, you do not have several defenses normally relied upon to stop claims: releases and assumption of the risk.

To some extent, we are left hanging by the decision on whether a release is valid as a defense in a rafting accident in West Virginia. However, the decision on whether the federal maritime law is applicable is valuable.

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River Riders, Inc., and Matthew Knott, v. The Honorable Thomas W. Steptoe, et al, 223 W. Va. 240; 672 S.E.2d 376; 2008 W. Va. LEXIS 116; 2009 AMC 2157

River Riders, Inc., and Matthew Knott, v. The Honorable Thomas W. Steptoe, et al, 223 W. Va. 240; 672 S.E.2d 376; 2008 W. Va. LEXIS 116; 2009 AMC 2157

River Riders, Inc., and Matthew Knott, Petitioners v. The Honorable Thomas W. Steptoe, all Plaintiffs in the Christopher et al v. River Riders, Inc., Civil Action No. 06-C-328, And All Plaintiffs in Freeman Civil Action NO. 06-C-325, Respondents

No. 34206

SUPREME COURT OF APPEALS OF WEST VIRGINIA

223 W. Va. 240; 672 S.E.2d 376; 2008 W. Va. LEXIS 116; 2009 AMC 2157

October 28, 2008, Submitted

December 10, 2008, Filed

SYLLABUS

[**378] [*242] BY THE COURT

1. “In determining whether to entertain and issue the writ of prohibition for cases not involving an absence of jurisdiction but only where it is claimed that the lower tribunal exceeded its legitimate powers, this Court will examine five factors: (1) whether the party seeking the writ has no other adequate means, such as direct appeal, to obtain the desired relief; (2) whether the petitioner will be damaged or prejudiced in a way that is not correctable on appeal; (3) whether the lower tribunal’s order is clearly erroneous as a matter of law; (4) whether the lower tribunal’s order is an oft repeated error or manifests persistent disregard for either procedural or substantive law; and (5) whether the lower tribunal’s order raises new and important problems or issues of law of first impression. These factors are general guidelines that serve as a useful starting point for determining whether a discretionary writ of prohibition should issue. Although all five factors need not be satisfied, it is clear that the third factor, the existence of clear error as a matter of law, should be given substantial weight.” Syllabus Point 4, State ex rel. Hoover v. Berger, 199 W. Va. 12, 483 S.E.2d 12 (1996).

2. [***2] “In determining whether to grant a rule to show cause in prohibition when a court is not acting in excess of its jurisdiction, this Court will look to the adequacy of other available remedies such as appeal and to the over-all economy of effort and money among litigants, lawyers and courts; however, this Court will use prohibition in this discretionary way to correct only substantial, clear-cut, legal errors plainly in contravention of a clear statutory, constitutional, or common law mandate which may be resolved independently of any disputed facts and only in cases where there is a high probability that the trial will be completely reversed if the error is not corrected in advance.” Syllabus Point 2, State ex rel. Tucker County Solid Waste Authority v. West Virginia Division of Labor, 222 W. Va. 588, 668 S.E.2d 217, 2008 WL 2523591 (W. Va. 2008).

3. “In the absence of compelling evidence of irremediable prejudice, a writ of prohibition will not lie to bar trial based upon a judge’s pretrial ruling on a matter of evidentiary admissibility.” Syllabus Point 3, State ex rel. Shelton v. Burnside, 212 W. Va. 514, 575 S.E.2d 124 (2002).

4. “A writ of prohibition will not issue to prevent a simple abuse of [***3] discretion by a [**379] [*243] trial court.” Syllabus Point 4, State ex rel. Shelton v. Burnside 212 W. Va. 514, 575 S.E.2d 124 (2002).

5. “A party seeking to petition this Court for an extraordinary writ based upon a non-appealable interlocutory decision of a trial court, must request the trial court set out in an order findings of fact and conclusions of law that support and form the basis of its decision. In making the request to the trial court, counsel must inform the trial court specifically that the request is being made because counsel intends to seek an extraordinary writ to challenge the court’s ruling. When such a request is made, trial courts are obligated to enter an order containing findings of fact and conclusions of law. Absent a request by the complaining party, a trial court is under no duty to set out findings of fact and conclusions of law in non-appealable interlocutory orders.” Syllabus Point 6, State ex rel. Allstate Ins. Co. v. Gaughan, 203 W. Va. 358, 508 S.E.2d 75 (1998).

6. Federal admiralty law governs a tort action if the wrong occurred on navigable waters, and if the incident involved had the potential to disrupt maritime activity and the general character of the activity [***4] giving rise to the incident had a substantial relationship to traditional maritime activity.

7. “[A] party seeking to invoke federal admiralty jurisdiction pursuant to 28 U.S.C. §1333(1) over a tort claim must satisfy conditions both of location and of connection with maritime activity. A court applying the location test must determine whether the tort occurred on navigable water or whether injury suffered on land was caused by a vessel on navigable water. 46 U.S.C. App. §740. The connection test raises two issues. A court, first, must ‘assess the general features of the type of incident involved,’ 497 U.S., at 363, 110 S.Ct., at 2896, to determine whether the incident has ‘a potentially disruptive impact on maritime commerce,’ id., at 364, n. 2, 110 S.Ct., at 2896, n. 2. Second, a court must determine whether ‘the general character’ of the ‘activity giving rise to the incident’ shows a ‘substantial relationship to traditional maritime activity.’ Id., at 365, 364, and n. 2, 110 S.Ct., at 2897, 2896, and n. 2.” Grubart v. Great Lakes Dredge & Dock Company, 513 U.S. 527, 534, 115 S.Ct. 1043, 1048, 130 L. Ed. 2d 1024 (1995).

8. The activity of whitewater rafting does not constitute traditional maritime activity [***5] and is therefore not governed by federal admiralty law.

COUNSEL: For Petitioners: Robert P. Martin, Esq., Justin C. Taylor, Esq., Jared M. Tully, Esq., Bailey & Wyant, P.L.L.C., Charleston, West Virginia; Michael A. Barcott, Esq., Holmes Weddle & Barcott, P.C., Seattle, Washington.

For Kathy L. Freeman, Respondent: Stephen G. Skinner, Esq., Laura C. Davis, Esq., Skinner Law Firm, Charles Town, West Virginia.

For The Christopher Plaintiffs, Respondent: Michael P. Smith, Esq., Salsbury, Clements, Beckman, Marder & Adkins, LLC, Baltimore, Maryland; Mark Jenkinson, Esq., Burke, Schultz, Harman, and Jenkinson, Martinsburg, West Virginia.

JUDGES: JUSTICE BENJAMIN delivered the Opinion of the Court. CHIEF JUSTICE MAYNARD concurs and reserves the right to file a concurring opinion. JUSTICE ALBRIGHT not participating. SENIOR STATUS JUSTICE McHUGH sitting by temporary assignment.

OPINION BY: BENJAMIN

OPINION

Petition for a Writ of Prohibition

WRIT GRANTED AS MOULDED

BENJAMIN, Justice: 1

1 Pursuant to an administrative order entered on September 11, 2008, the Honorable Thomas E. McHugh, Senior Status Justice, was assigned to sit as a member of the Supreme Court of Appeals of West Virginia commencing September 12, 2008, and continuing until [***6] the Chief Justice determines that assistance is no longer necessary, in light of the illness of Justice Joseph P. Albright.

Petitioners, River Riders, Inc. and Matthew Knott, seek a writ of prohibition to vacate three pre-trial orders of the Circuit Court of Jefferson County that (1) excluded from the forthcoming trial the Release and Assumption of Risk Agreements that had been signed by fourteen plaintiffs prior to embarking on a whitewater rafting expedition provided by the Petitioners; (2) ruled that the rafting incident was governed by [**380] [*244] general maritime law, thus, precluding assumption of the risk as a defense; and (3) consolidated the civil action of the personal representative of the estate of the decedent with the civil action brought by thirteen injured persons. After careful consideration of the memoranda 2 and arguments in this proceeding, as well as the pertinent legal authorities, we grant the writ sought only to the extent of vacating the circuit court’s ruling finding that the rafting incident is governed by maritime law.

2 We wish to acknowledge the participation of the West Virginia Professional River Outfitters amicus curiae in support of Petitioners and appreciate their [***7] participation in this action.

I.

FACTUAL AND PROCEDURAL HISTORY

This original proceeding in prohibition arose out of a commercial whitewater rafting accident on the Shenandoah River in Jefferson County, West Virginia, which resulted in the death of one person and injuries to thirteen others, all paying participants in a rafting expedition taken with River Riders, Inc., a licensed commercial whitewater outfitter. 3 As a result of the accident, two separate lawsuits against River Riders ensued. The first action was filed by Kathy L. Freeman [hereinafter referred to as the “Freeman plaintiff”], as personal representative of the estate of her husband, the decedent, Roger Freeman. 4 The second action was filed by the thirteen injured persons and seven of their spouses [hereinafter collectively referred to as the “Christopher plaintiffs”] who claimed loss of consortium. 5

3 The accident, which occurred on September 30, 2004, involved four inflatable rafts which dumped Roger Freeman and thirteen of the Christopher plaintiffs into the Shenandoah River, causing Mr. Freeman to drown, and causing various personal injuries to the others. All but two of the fourteen were management employees of Kaiser [***8] Permanente of suburban Washington, D.C. It is claimed that on this particular day, the level of water on the Shenandoah River was approximately 12.5 feet, compared to a normal average level of 2 to 4 feet during that time of year.

4 The Freeman lawsuit also names Matthew Knott, owner of River Riders, as a defendant. Mr. Knott is also alleged to have been a commercial whitewater guide who guided one of the rafts on the ill-fated expedition and who served as the trip’s leader.

5 In the second of the complaints, Timothy Friddle, husband of Cristina Renee Friddle, is named as a plaintiff. They claim “loss of consortium and services, and interference with and injury to their marital relationship.” Timothy Friddle is not, however, named as a spouse and as plaintiff in the Memorandum which these plaintiffs filed with this Court in this proceeding. The Petitioners represent that Mr. Friddle has been voluntarily dismissed from the action.

Prior to embarking on the rafting expedition, Roger Freeman and each of the injured Christopher plaintiffs signed a “Release, Assumption of Risk and Indemnity Agreement” [hereinafter sometimes referred to as “Release Agreement”] provided to them by River Riders. [***9] In that agreement, each signatory (1) acknowledged that he or she had requested to be allowed to participate in whitewater rafting provided by River Riders; and expressed his or her understanding, among other things, that “[whitewater rafting] activities and services pose substantial risks of injury or death. . . as the result of exposure; . . . or being in whitewater rivers and streams; . . . the negligence, gross negligence, or bad judgment by [the signatory], River Riders, Inc., or other participants; the failure or misuse of equipment; . . . and other known and foreseeable risks of [whitewater rafting].” (Emphasis in original). The signatories to the Release Agreement also agreed, in part, that:

In consideration of and as partial payment for being allowed to participate in [whitewater rafting] provided by River Riders, Inc., I ASSUME, to the greatest extent permitted by law, all of the risks, whether or not specifically identified herein, of all the activities in which I participate and services I use [whitewater rafting]; I RELEASE River Riders, Inc. from any and all liability, including, but not limited to, liability arising from negligence, gross negligence, willful and wanton [***10] and intentional conduct; . . .

[**381] [*245] The Freeman plaintiff and the Christopher plaintiffs contend that River Riders failed to meet the statutory “standard of care” expected of members of the whitewater guide profession in direct violation of the West Virginia Whitewater Responsibility Act, W. Va. Code §20-3B-3(b) (1987). 6 In both actions, they assert that running a raft trip on September 30, 2004, simply was not reasonable under the circumstances, and that the expected standard of care would have obligated River Riders to cancel or reschedule the whitewater expedition on that day because of the river’s high and turbulent waters caused by a recent hurricane that had swept through the area. 7 Specifically, Respondents argue that River Riders was negligent and careless and failed to conform to the standard of care by failing to call off or postpone the trip until conditions were safe to go out on the river, by failing to recognize that the operating capabilities of its rafts with the inexperienced customers would be unsafe and hazardous in high, swift and rough water conditions; and by wrongfully electing to navigate the Shenandoah River and in particular the Shenandoah Staircase. 8

6 In 1987, [***11] the Legislature enacted the Whitewater Responsibility Act, codified as W. Va. Code §§20-3B-1 et seq.(1987). Therein, [HN1] the Legislature stated that it “recognizes that there are inherent risks in the recreational activities provided by commercial whitewater outfitters and commercial whitewater guides which should be understood by each participant. It is essentially impossible for commercial whitewater outfitters and commercial whitewater guides to eliminate these risks. It is the purpose of this article to define those areas of responsibility and affirmative acts for which commercial whitewater outfitters and commercial whitewater guides are liable for loss, damage or injury.” W. Va. Code §20-3B-1.

The Act [HN2] declares that “[n]o licensed commercial whitewater outfitter or commercial whitewater guide acting in the course of his employment is liable to a participant for damages or injuries to such participant unless such damage or injury was directly caused by failure of the commercial whitewater outfitter or commercial whitewater guide to comply with duties placed on him by article two of this chapter, by the rules of the commercial whitewater advisory board, or by the duties placed on such [***12] commercial whitewater outfitters or commercial whitewater guide by the provisions of this article.” W. Va. Code §20-3B-5(a).

Among the duties imposed by the Whitewater Responsibility Act upon all commercial whitewater guides providing services for whitewater expeditions in this state is that they “while providing such services, conform to the standard of care expected of members of their profession.” W. Va. Code §20-3B-3(b).

7 The Freeman plaintiff represents to the Court that the liability issues are exactly the same in both cases.

8 The wrongful death complaint filed by the Freeman plaintiff contains two separate counts: one for negligence, gross negligence, reckless and wanton conduct; the other for negligence per se. Citing fifteen alleged acts or omissions, Count One alleges that the duties owed by River Riders to Mr. Freeman included the duty to conform to the standard of care expected of members of their profession, the duty to conform to safety and other requirements set forth in the West Virginia Code, the duty to conform to rules promulgated by the commercial whitewater advisory board, and the duty not to act in a reckless or wanton manner. Count Two alleges two additional acts [***13] or omissions constituting negligence per se, including citations by the West Virginia Division of Natural Resource for failure to mark a commercial water craft and failure to have a valid CPR card as required by W. Va. Code §20-2-23a (1999) and 58 C.S.R. 12 (2008).

The complaint filed by the Christopher plaintiffs contains twenty counts, seven of which assert loss of consortium claims. The remaining thirteen counts are negligence claims under general maritime law, one for each injured plaintiff.

Prior to the forthcoming trial in this matter, the Freeman plaintiff filed a Motion in Limine to exclude the Release Agreement 9 that had been signed by Mr. Freeman. On January 30, 2008, the circuit court, in finding that the issues at trial on liability were whether the defendants met the standard of care required under the Whitewater Responsibility Act, entered an order granting the Motion in Limine prohibiting the defendants from introducing the Release Agreement, making any reference to it, or eliciting any information regarding it at trial. The circuit court based it ruling on the language of W. Va. Code §20-3B-3(b), and on this Court’s prior decision in Murphy v. North American River Runners, Inc., 186 W. Va. 310, 412 S.E.2d 504 (1991) [***14] 10 and on Johnson v. New [**382] [*246] River Scenic Whitewater Tours, Inc., 313 F.Supp.2d. 621 (S.D. W.Va. 2004).

9 The Freeman Plaintiff also filed a Motion for Judgment on the Pleadings which the circuit court denied.

10 In Murphy, this Court held that generally, [HN3] in the absence of an applicable statute, a plaintiff who expressly and, under the circumstances, clearly agrees to accept a risk of harm arising from a defendant’s negligent or reckless conduct may not recover for such harm, unless the agreement is invalid as contrary to public policy. 186 W. Va. 310, 412 S.E.2d 504.

Thereafter, on April 15, 2008, the circuit court likewise granted a Motion in Limine Regarding Release and Assumption of the Risk filed by the Christopher plaintiffs, which excluded the release agreement from trial. The circuit court, finding that maritime law governed the case, held that assumption of the risk was not an available defense. Specifically, the court held:

Second, this Court is of the opinion that assumption of the risk is not an available defense in this maritime action. Because the incident occurred on the Shenandoah River, a navigable body of water, it is governed by general maritime law. Yamaha Motor Corp. v. Calhoun, 516 U.S. 199, 206, 116 S. Ct. 619, 133 L. Ed. 2d 578 (1996). [***15] Assumption of the risk is not a defense in admiralty or maritime law. DeSole v. United States, 947 F.2d 1169, 1175 (4th Cir. 1991). In fact, “[t]he tenants of admiralty law, which are expressly designed to promote uniformity, do not permit assumption of risk in cases of person [sic] injury whether in commercial or recreational situation.” Id. The foundation of this principle has been recognized for more than 70 years. In The Arizona v. Anelich, Justice Harlan F. Stone, stated in support of his position that assumption of the risk was not a proper defense in cases of unseaworthiness, “No American case appears to have recognized assumption of risk as a defense by such a suit.” 298 U.S. 110, 122, 56 S. Ct. 707, 80 L. Ed. 1075 (1936). Accordingly, Defendant is prohibited from asserting the defense of assumption of the risk or making any argument in support of this defense at trial.

To the left of the judge’s signature on the order, there appeared a stamped “Note to Counsel”, which reads, “[t]he court has received no pleadings in opposition to this motion during the time period contemplated by trial court rule 22 order.” Subsequent to the circuit court’s ruling on those issues, Petitioners filed a Motion for Relief from [***16] the circuit court’s order on April 23, 2008, to clarify that it had in fact filed a response to plaintiffs’ motion in limine, but that it was untimely filed due to excusable neglect. 11 Petitioners urged the circuit court to consider its reply.

11 Petitioners contended that the mailing, rather than faxing, of their responses to the motion on the last day of filing was a clerical error that should not result in completely ignoring their response to the motion, which resulted in the exclusion of a recognized common law defense in West Virginia, among other findings.

In a third order entered on May 19, 2008, the circuit court granted the Christopher plaintiffs’ motion to consolidate their case with the case of the Freeman plaintiff under Case No. 06-C-328. In granting the motion, the circuit court considered the four factors set forth in Syllabus Point 2, State ex rel. Appalachian Power Company v. Ranson, 190 W. Va. 429, 438 S.E.2d 609 (1993) in exercising its discretion when deciding issues of consolidation under Rule 42(a) of the West Virginia Rules of Civil Procedure. The circuit court expressly declined Petitioner’s request to bifurcate the cases on the issue of damages, stating that [***17] “the issue of liability and damages are intertwined and not reasonably susceptible of being bifurcated.”

Following the entry of the third order, Petitioners invoked the original jurisdiction of this Court in prohibition seeking a writ to vacate the three circuit court orders of January 30, 2008, April 15, 2008, and May 19, 2008. Petitioners assert that the circuit court’s rulings are incorrect for several reasons: (1) the Release Agreements are admissible as evidence because they contain warnings of the inherent risks of participating in whitewater rafting, and to the extent the Agreements contain inadmissible or unenforceable provisions, those provisions could be redacted therefrom; (2) maritime jurisdiction does not extend to this whitewater rafting case on the Shenandoah River because the Whitewater Responsibility Act is controlling, as the Shenandoah River is not a navigable waterway since it cannot be used for [**383] [*247] commercial shipping; (3) the circuit court failed to make any findings of fact regarding the navigability of the Shenandoah River; (4) assumption of the risk would be an available defense of the actions pursuant to controlling West Virginia law; (5) mandating the application [***18] of maritime law negates the West Virginia Whitewater Responsibility Act, and deprives the defendants of the defense of assumption of the risk, thus rendering all whitewater outfitters uninsurable and crippling a vital State industry; and (6) consolidating the two cases for trial will cause unfair prejudice and insure juror confusion as a result of the intertwining of unrelated legal, factual and damage issues in that one case is a wrongful death case, and the others are personal injury cases. Specifically, Petitioners claim that the circuit court’s consolidation of the two cases will result in the application of maritime law to both actions, prohibiting the defense of assumption of the risk in both.

Conversely, the Christopher plaintiffs argue (1) that maritime law applies because the tort they complain of has a nexus to traditional maritime activity, and because the Shenandoah River is a navigable waterway; (2) that since there is no well- developed substantive maritime law of the issue of whitewater rafting safety, maritime law permits the circuit court to properly look to the West Virginia Whitewater Responsibility Act for guidance 12 and (3) that “[b]ecause there is no federal statute [***19] stating otherwise, the duty under maritime law is the same duty established under West Virginia’s Whitewater Responsibility Act – that commercial whitewater outfitters and commercial whitewater guides ‘conform to the standard of care expected of members of their profession.’ W. Va. Code §20-3B-3.” It appears that the only facet of maritime law that the Respondents wish to have applied to this case is that assumption of the risk is not a defense.

12 Citing Tassinari v. Key West Water Tours, L.C., 2007 U.S. Dist. LEXIS 46490, 2007 WL 1879172 (S.D. Fla. 2007)(unpublished opinion); Smith v. Haggerty, 169 F.Supp.2d 376 (E.D.Pa. 2001); and Coastal Fuels Marketing, Inc. v. Florida Exp. Shipping Co., Inc., 207 F.3d 1247, 1251 (11th Cir. 2000).

II.

STANDARD OF ISSUANCE OF WRIT OF PROHIBITION

[HN4] The standard for the issuance of a writ of prohibition is set forth in W. Va. Code §53-1-1 (1882): “The writ of prohibition shall lie as a matter of right in all cases of usurpation and abuse of power, when the inferior court has not jurisdiction of the subject matter in controversy, or having such jurisdiction, exceeds its legitimate powers.” In syllabus point 4 of State ex rel. Hoover v. Berger, 199 W. Va. 12, 483 S.E.2d 12 (1996) we [***20] held:

[HN5] In determining whether to entertain and issue the writ of prohibition for cases not involving an absence of jurisdiction but only where it is claimed that the lower tribunal exceeded its legitimate powers, this Court will examine five factors: (1) whether the party seeking the writ has no other adequate means, such as direct appeal, to obtain the desired relief; (2) whether the petitioner will be damaged or prejudiced in a way that is not correctable on appeal; (3) whether the lower tribunal’s order is clearly erroneous as a matter of law; (4) whether the lower tribunal’s order is an oft repeated error or manifests persistent disregard for either procedural or substantive law; and (5) whether the lower tribunal’s order raises new and important problems or issues of law of first impression. These factors are general guidelines that serve as a useful starting point for determining whether a discretionary writ of prohibition should issue. Although all five factors need not be satisfied, it is clear that the third factor, the existence of clear error as a matter of law, should be given substantial weight.

Id., Syl. Pt. 4.

This Court has stated that “. . . [HN6] prohibition. . . against judges [***21] [is a] drastic and extraordinary remed[y] . . . As [an] extraordinary remed[y], [it is] reserved for really extraordinary causes.” State ex rel. United States Fid. & Guar. Co. v. Canady, 194 W. Va. 431, 436, 460 S.E.2d 677, 682 (1995)(citations omitted); State ex rel. Tucker County Solid Waste Authority v. West Virginia Division of Labor, 222 W. Va. 588, 668 S.E.2d 217, [**384] [*248] 2008 WL 2523591 (W. Va. 2008). Thus, we have held that:

[HN7] In determining whether to grant a rule to show cause in prohibition when a court is not acting in excess of its jurisdiction, this Court will look to the adequacy of other available remedies such as appeal and to the over-all economy of effort and money among litigants, lawyers and courts; however, this Court will use prohibition in this discretionary way to correct only substantial, clear-cut, legal errors plainly in contravention of a clear statutory, constitutional, or common law mandate which may be resolved independently of any disputed facts and only in cases where there is a high probability that the trial will be completely reversed if the error is not corrected in advance.

Id. at Syl. Pt. 2 (citing Syllabus Point 1, Hinkle v. Black, 164 W. Va. 112, 262 S.E.2d 744 (1979)).

In [***22] syllabus point 3, State ex rel. Shelton v. Burnside, 212 W. Va. 514, 575 S.E.2d 124 (2002), this Court recognized “[i]n [HN8] the absence of compelling evidence of irremediable prejudice, a writ of prohibition will not lie to bar trial based upon a judge’s pretrial ruling on a matter of evidentiary admissibility.” (quoting Syl. Pt. 2, State ex rel. Williams v. Narick, 164 W. Va. 632, 264 S.E.2d 851 (1980)). “A writ of prohibition will not issue to prevent a simple abuse of discretion by a trial court.” Syl. Pt. 4, 212 W. Va. 514, 575 S.E.2d 124. “The writ does not lie to correct ‘mere errors’ and . . . it cannot serve as a substitute for appeal, writ of error or certiorari.” Narick, 164 W. Va. at 635, 264 S.E.2d at 854.

This Court further stated in Burnside that:

[t]here is a practical reason for not allowing challenges, by use of the writ of prohibition, to every pre-trial discretionary evidentiary ruling made by trial courts. Such use of the writ would effectively delay trials interminably while parties rushed to this Court for relief every time they disagree with a pre-trial ruling. The fact remains that “[t]he piecemeal challenge of discretionary rulings through writs of prohibition [***23] does not facilitate the orderly administration of justice.” Woodall, 156 W. Va. at 713, 195 S.E.2d at 721. Said another way, “writs of prohibition should not be issued nor used for the purpose of appealing cases upon the installment plan.” Wimberly v. Imel, 1961 OK CR 25, 358 P.2d 231, 232 (Okla. Crim. App., 1961).

212 W. Va. at 519, 575 S.E.2d at 129. Guided by these principles, we proceed to consider the parties’ arguments.

III.

DISCUSSION

Petitioners raise questions regarding three pretrial rulings made by the circuit court on two motions in limine and one motion to consolidate. We note as a preliminary matter that it is this Court’s general practice and procedure to decline to consider rulings on motions in limine. This Court has recognized that “[t]hese [HN9] motions necessarily involve the exercise of discretion, and the correctness of discretionary rulings should ordinarily be challenged at a time when the entire record is available to an appellate court. The piecemeal challenge of discretionary rulings through writs of prohibition does not facilitate the orderly administration of justice.” Woodall v. Laurita, 156 W. Va. 707, 713, 195 S.E.2d 717, 720-21 (1973). Thus, in the absence of jurisdictional [***24] defect, the administration of justice is not well served by challenges to discretionary rulings of an interlocutory nature. These matters are best saved for appeal. State ex rel. Allen v. Bedell, 193 W. Va. at 37, 454 S.E.2d at 82 (Cleckley, J. concurring). As Justice Cleckley cautioned in his concurrence in State ex rel. Allen v. Bedell:

[HN10] Mere doubt as to the correctness of a trial court’s ruling on a motion in limine regarding an evidentiary issue is an insufficient basis to invoke this Court’s writ power. To justify this extraordinary remedy, the petitioner has the burden of showing that the lower court’s jurisdictional usurpation was clear and indisputable and, because there is no adequate relief at law, the extraordinary writ provides the only available and adequate remedy. Thus, writs of prohibition, as well as writs of [**385] [*249] mandamus and habeas corpus, should not be permitted when the error is correctable by appeal.

193 W. Va. at 37, 454 S.E.2d at 82.

This Court has, on limited occasions, considered challenges from evidentiary rulings in unique circumstances where the matter at issue rose to a level of considerable importance and compelling urgency. 13 In reviewing the claims asserted [***25] by Petitioners herein, which allege that the circuit court, by virtue of a motion in limine, made jurisdictional rulings that serve to have a significant and lasting negative impact on the question of liability for an important segment of business within this State, we find it appropriate to accept this matter for consideration at this stage in the proceedings. 14

13 See State ex rel. Foster v. Luff, 164 W. Va. 413, 419, 264 S.E.2d 477, 481 (1980)(prohibition granted where trial court abused discretion in failing to authorize expenditure of adequate funds to allow defense to secure experts); State ex rel. Register-Herald v. Canterbury, 192 W. Va. 18, 449 S.E.2d 272 (1994)(prohibition granted to reverse order constituting prior restraint against newspaper); State ex rel. Tyler v. MacQueen, 191 W. Va. 597, 447 S.E.2d 289 (1994)(prohibition used to review disqualification of prosecutor’s office); State ex rel. Leach v. Schlaegel, 191 W. Va. 538, 447 S.E.2d 1 (1994)(prohibition granted to prevent relitigation of case which was foreclosed because of collateral estoppel); State ex rel. DeFrances v. Bedell, 191 W. Va. 513, 446 S.E.2d 906 (1994)(prohibition used to review decision on lawyer’s [***26] disqualification).

14 Respondents contend that the circuit court’s order of April 15, 2008, cannot be challenged by the Petitioners, or is not before this Court in this extraordinary proceeding, because the Petitioners did not timely oppose the Christopher plaintiffs’ motion in limine asking the circuit court to find that maritime law governed the case. Petitioners admit that a scheduling order required them to file their response to the motion in limine by April 10, 2008, but that through “clerical error” their response was mailed, not faxed, to the clerk and the court on April 10, 2008. Five days later, on April 15, 2008, the circuit court, having not received the mailed response, entered an order granting the motion. To the left of the judge’s signature on the order, there appears a stamped “Note to Counsel”, which reads, “[t]he court has received no pleadings in opposition to this motion during the time period contemplated by trial court rule 22 order.” Petitioners contend that the mailing, rather than faxing, of their responses to the motion on the last day of filing was a clerical error that should not result in completely ignoring their response to the motion, which resulted in [***27] the exclusion of a recognized common law defense in West Virginia, among other findings.

Rule 6(b) of the West Virginia Rules of Civil Procedure [HN11] provides, in part, that “[w]hen . . . by order of court an act is required or allowed to be done at or within a specified time . . . the court for cause shown may at any time in its discretion . . . (2) upon motion made after the expiration of the specified period permit the act to be done when the failure to act was the result of excusable neglect. . .” In Pritt v. Vickers, 214 W. Va. 221, 227, 588 S.E.2d 210, 216 (2003), the Court approvingly quotes this statement in 3 Moore’s Federal Practice §16.14: “[a] trial court may modify or amend a scheduling order only when ‘good cause’is shown and the court grants leave to modify.” See also Walker v. Option One Mortgage Corporation, 220 W. Va. 660, 665, 649 S.E.2d 233, 238 (2007)(trial courts should not permit parties to obtain extensions absent a showing of good cause). The record before us does not reveal that Petitioners filed a motion with the circuit court after the April 10, 2008, deadline to permit the belated filing of their response. If they did not, we cannot condone their failure, and [***28] their argument that this Court should, nevertheless, hear their argument that the circuit court incorrectly concluded that maritime law applies and that assumption of the risk is not a defense under that law. We will, however, consider the circuit court’s order of April 15, 2008, in this regard because it raises questions of whether the circuit court has jurisdiction of the subject matter in controversy. Issues of jurisdiction may be raised by this Court sua sponte. Ray v. Ray, 216 W. Va. 11, 13, 602 S.E.2d 454, 456 (2004). Also, “[t]his Court may, sua sponte, in the interest of justice, notice plain error.” Syl. Pt.1, Cartwright v. McComas, 223 W. Va. 161, 672 S.E.2d 297, 2008 W. Va. LEXIS 81, 2008 WL 4867068 (W. Va. 2008).

Having made the determination to consider this matter, we limit our review herein to the specific jurisdictional issue of the circuit court’s finding that the rafting incident is governed by maritime law. We decline to address on a writ of prohibition the other issues presented regarding the exclusion of the Releases signed by the plaintiffs and the circuit court’s consolidation of the two cases, to the extent that the circuit court’s rulings were discretionary. As stated above, this Court’s general rule provides that [***29] [HN12] prohibition is ordinarily inappropriate in matters involving a trial court’s pretrial ruling on the admissibility of evidence. State ex rel. Shelton v. Burnside, 212 W. Va. at 518, 575 S.E.2d at 128. Furthermore, “[a] [HN13] decision by a trial court to consolidate civil actions on [**386] [*250] any or all matters in issue under Rule 42(a) of the West Virginia Rules of Civil Procedure will be deferentially reviewed under an abuse of discretionary standard.” State ex rel. Appalachian Power Company v. MacQueen, III, 198 W. Va. 1, 4, 479 S.E.2d 300, 303 (1996).

[HN14] A trial court, pursuant to provisions of Rule 42, has a wide discretionary power to consolidate civil actions for joint hearing or trial and the action of a trial court in consolidating civil actions for a joint hearing or trial will not be reversed in the absence of a clear showing of abuse of such discretion and in the absence of a clear showing of prejudice to any one or more of the parties to civil actions which have been so consolidated.

Syl. Pt. 1, Holland v. Joyce, 155 W. Va. 535, 185 S.E.2d 505 (1971); State ex rel. Appalachian Power Company v. MacQueen, III, 198 W. Va. 1, 4, 479 S.E.2d 300, 303 (1996).

Herein, Respondents allege that the instant [***30] petition should not be considered because Petitioners never requested that the circuit court set forth a detailed order including findings of fact and conclusions of law that support and form the basis of its decision, or informed the circuit court that it intended to seek an extraordinary writ to challenge the court’s ruling. We held in State ex rel. Allstate Ins. Co. v. Gaughan, 203 W. Va. 358, 367, 508 S.E.2d 75, 84:

[HN15] A party seeking to petition this Court for an extraordinary writ based upon a non-appealable interlocutory decision of a trial court, must request the trial court set out in an order findings of fact and conclusions of law that support and form the basis of its decision. In making the request to the trial court, counsel must inform the trial court specifically that the request is being made because counsel intends to seek an extraordinary writ to challenge the court’s ruling. When such a request is made, trial courts are obligated to enter an order containing findings of fact and conclusions of law. Absent a request by the complaining party, a trial court is under no duty to set out findings of fact and conclusions of law in non-appealable interlocutory orders.

Syl. Pt. [***31] 6, 203 W. Va. 358, 508 S.E.2d 75.

While we recognize that there is generally a duty on the part of a party petitioning this Court for an extraordinary writ based upon a non-appealable interlocutory decision of a trial court to make a request that the trial court set forth findings of fact and conclusions of law prior to seeking prohibition, we will proceed to consider the maritime issue before us since it concerns a distinct issue of law involving the interpretation and application of a federal statute which may be resolved on the pleadings, orders and arguments before us. This Court has, on prior occasions, recognized that [HN16] when we are able to resolve issues before the Court without a detailed order, it is not necessary to remand for the circuit court to provide findings of fact and conclusions of law. See, e.g., Pruitt v. W. Va. Dep’t of Pub. Safety, 222 W. Va. 290, 664 S.E.2d 175 (2008)(citing Fayette County National Bank v. Lilly, 199 W. Va. 349, 484 S.E.2d 232 (1997))(this Court is able to resolve issues before us without a detailed order and thus have no reason to remand for the circuit court to provide findings of fact and conclusions of law). See also Toth v. Board of Parks and Recreation Com’rs, 215 W. Va. 51, 55, 593 S.E.2d 576, 580 (2003); [***32] Ward v. Cliver, 212 W. Va. 653, 656, 575 S.E.2d 263, 266 (2002). [HN17] Based upon the jurisprudence of the United States Supreme Court and the statutory laws of the State of West Virginia, we find, as a matter of law, that the activity of whitewater rafting does not invoke federal admiralty jurisdiction.

The question of whether or not the rafting accident on September 30, 2004, is governed by general maritime law presents a federal admiralty jurisdictional question. 15 Herein, [**387] [*251] the circuit court concluded that because the incident occurred on the Shenandoah River, a navigable body of water, it is governed by general maritime law. The circuit court order cites to the decision Yamaha Motor Corp. v. Calhoun, 516 U.S. 199, 206, 116 S.Ct. 619, 623, 133 L. Ed. 2d 578 (1996), as support for its ruling.

15 [HN18] The United States Constitution provides in relevant part that “[t]he judicial Power shall extend. . . to all Cases of admiralty and maritime jurisdiction. . .” U.S. Const. Art. III, §2, cl. 1. Pursuant to 28 U.S.C.A. §1333(1948 and 1949), “[t]he district courts shall have original jurisdiction, exclusive of the courts of the States, of: (1) Any civil case of admiralty or maritime jurisdiction, saving to suitors in [***33] all cases all other remedies to which they are otherwise entitled.” The United States Supreme Court interpreted this section in Offshore Logistics, Inc. v. Tallentire, 477 U.S. 207, 222, 106 S.Ct. 2485, 2494, 91 L. Ed. 2d 174 (1986) stating:

[HN19] the “savings to suitors” clause . . . allows litigants to bring in personam maritime actions in state courts. See Judiciary Act of 1789, §9, 1 Stat. 76 (“savings to suitors, in all cases, the right of a common law remedy, where the common law is competent to give it”); 28 U.S.C. §1333 . . . See also Madruga v. Superior Court, 346 U.S. 556, 560, n. 12, 74 S.Ct. 298, 300, n. 12, 98 L.Ed. 290 (1954) . . . The “savings to suitors” clause leaves state courts competent to adjudicate maritime causes of action in proceedings in personam and means that “a state, ‘having concurrent jurisdiction, is free to adopt such remedies, and to attach to them such incidents, as it sees fit’ so long as it does not attempt to [give in rem remedies or] make changes in the ‘substantive maritime law.'” [citations omitted]. Stated another way, the “savings to suitors” clause allows state courts to entertain in personam maritime causes of action, but in such cases the extent to which state [***34] law may be used to remedy maritime injuries is constrained by a so-called “reverse-Erie” doctrine which requires that the substantive remedies afforded by the States conform to governing federal maritime standards.

477 U.S. at 222, 106 S.Ct. at 2494. See also Wright, Miller, Cooper, 14A Fed. Prac. & Proc. Juris.3d §3672, and Am.Jur.2d Admiralty §108.

Yamaha, 516 U.S. 199, 116 S.Ct. 619, 133 L. Ed. 2d 578, involved a collision between a twelve-year-old on a rented jet-ski and another recreational vehicle in territorial waters of the United States off a hotel frontage in Puerto Rico. The Yamaha Court found that because the case involved a watercraft collision on navigable waters, it fell within admiralty’s domain. 516 U.S. at 206, 116 S.Ct. at 623. The Yamaha Court then cited to its other previous decisions in Sisson v. Ruby, 497 U.S. 358, 361-367, 110 S.Ct. 2892, 2895-2898, 111 L. Ed. 2d 292 (1990), and Foremost Ins. Co. v. Richardson, 457 U.S. 668, 677, 102 S.Ct. 2654, 2659, 73 L. Ed. 2d 300 (1982), which set forth [HN20] the admiralty or maritime jurisdiction test for tort claims. “The test ‘comprises two functional inquiries: first, the traditional “situs” analysis determining whether the tort was committed or the alleged injury occurred on navigable [***35] waters, and second, the more recently developed “nexus” analysis determining whether the alleged tort bears a significant relationship to traditional maritime activities.” Sisson, 497 U.S. at 361-367, 110 S.Ct. at 2895-2898.

Subsequently, in Grubart v. Great Lakes Dredge & Dock Co., 513 U.S. 527, 534, 115 S.Ct. 1043, 130 L. Ed. 2d 1024 (1995), the Supreme Court stated:

After Sisson, then, [HN21] a party seeking to invoke federal admiralty jurisdiction pursuant to 28 U.S.C. §1333(1) over a tort claim must satisfy conditions both of location and of connection with maritime activity. A court applying the location test must determine whether the tort occurred on navigable water or whether injury suffered on land was caused by a vessel on navigable water. 46 U.S.C. App. §740. The connection test raises two issues. A court, first, must “assess the general features of the type of incident involved,” 497 U.S., at 363, 110 S.Ct., at 2896, to determine whether the incident has “a potentially disruptive impact on maritime commerce,” id., at 364, n. 2, 110 S.Ct., at 2896, n. 2. Second, a court must determine whether “the general character” of the “activity giving rise to the incident” shows a “substantial relationship to [***36] traditional maritime activity.” Id., at 365, 364, and n. 2, 110 S.Ct., at 2897, 2896, and n. 2.

513 U.S. 527, 534, 115 S.Ct. 1043, 130 L. Ed. 2d 1024. Thus, according to Grubart, federal admiralty law governs a tort action if the wrong occurred on navigable waters, and if the incident involved had the potential to disrupt maritime activity and the general character of the activity giving rise to the incident had a substantial relationship to traditional maritime activity. 16

16 The Fourth Circuit has recognized the Grubart jurisdictional test. See Brock v. Lewis, 86 F.3d 1148 (4th Cir. 1996)(unpublished opinion). Other publications that provide discussion of the criteria for determining admiralty jurisdiction include:1 The Law of Maritime Personal Injuries §10.1 (5th ed.)(2007)(stating that “[t]here is no doubt that [HN22] under the current law recreational boating activities that give rise to personal injuries or death fall within admiralty jurisdiction if they satisfy the locus and nexus criteria for admiralty tort jurisdiction.”; See also Wright, Miller, Cooper, 14A Fed. Prac. & Proc. Juris.3d §3676; Admiralty Jurisdiction: Maritime Nature of Torts – Modern Cases, 80 A.L.R. Fed. 105 (2008).

[**388] [*252] Based upon the United [***37] States Supreme Court’s holding in Grubart, [HN23] in order for the circuit court to find that general maritime law applies, it should have properly determined whether the rafting mishap and ensuing tort claims arising therefrom satisfied both prerequisite conditions of 1) location on the navigable waters and 2) connection with maritime activity. Failing to conduct such an analysis, the circuit court’s order of April 15, 2008, concluded, in a single sentence, that “because the incident occurred on the Shenandoah River, a navigable body of water, it is governed by general maritime law.” From its order, the circuit court appears to have only considered the first prong of the Grubart test in arriving at its conclusion that maritime law applied. 17

17 It is not necessary for this Court to discuss the propriety of the circuit court’s findings regarding the location requirement to the extent that we find that the second part of the Grubart test is not satisfied. [HN24] A party seeking to invoke federal admiralty jurisdiction pursuant to 28 U.S.C. §1333(1) over a tort claim must satisfy conditions both of location and of connection with maritime activity. With that said, we note that the circuit court provided [***38] no standards whereby it determined that the Shenandoah River is in fact a navigable river, and no facts to which it applied standards to make that determination. Based on the limited set of facts we have reviewed herein, we question how a river with average relevant depths of two feet that was used for whitewater rafting purposes could possibly be considered a navigable waterway for purposes of maritime jurisdiction.

In addition to determining whether the incident occurred on navigable waters, the circuit court should have also analyzed whether the incident constituted “a potentially disruptive impact on maritime commerce” and that it had a “substantial relationship to traditional maritime activity” in order to satisfy the second nexus criterion. Applying the second prong of the Grubart test to the circumstances of the instant case, we find that [HN25] the activity of whitewater rafting does not constitute traditional maritime activity and is therefore not governed by maritime law.

First, given the fact that the Shenandoah River maintains average depths of two feet, 18 it is hard to envision how the act of whitewater rafting could have a potentially disruptive impact on maritime commerce, to [***39] the extent that this area was unlikely a highly traveled thoroughfare over which trade and travel is conducted. 19 However, even assuming, for the sake of argument, that the incident that occurred during this whitewater rafting trip had a potentially disruptive impact on maritime commerce, it still did not bear a substantial relationship to traditional maritime activity.

18 This fact was represented by both the Petitioners and the Respondents.

19 See Grubart, 115 S.Ct. at 1051 (the relevant inquiry is whether the general features of the mishap place it within a class of incidents that pose more than a fanciful risk to commercial shipping.)

The cases before us involve an unfortunate incident that occurred during the course of a recreational outing on a river that was unusually swollen with flood waters resulting from a hurricane. They do not concern piloting, shipping, or navigational error, or other aspects of traditional maritime activity. Foster v. Peddicord, 826 F.2d 1370, 1376 (4th Cir. 1987). The requisite maritime connection is therefore missing.

It is particularly relevant that there is no existing federal or state precedent applying admiralty jurisdiction to the activity of whitewater [***40] rafting. Perhaps this is because the very nature of the activity of whitewater rafting is not the customary mode of travel or transportation with which maritime law has ever been concerned. Whitewater rafting is a recreational activity where participants seek the adventure of paddling a rubber raft in rapidly moving whitewater streams and rivers. Such use of streams and rivers carrying people, not as traveling passengers, but rather as participants seeking adventure, makes it difficult to conceive that whitewater rafting bears a substantial relationship to traditional maritime activity. For these reasons, we conclude that the circuit court committed clear error in determining [**389] [*253] that maritime law applies to the instant cases.

IV.

CONCLUSION

Accordingly, we grant the writ sought only to the extent of vacating the circuit court’s ruling finding that the rafting incident is governed by maritime law. We remand this matter to the circuit court for entry of an order consistent with this opinion.

Writ granted as moulded.

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Electronic release upheld in Florida federal court for surfing on a cruise ship

Johnson v. Royal Caribbean Cruises, Ltd., 2011 U.S. Dist. LEXIS 28128; 2011 AMC 1171

Electronic releases are slowly gathering judicial precedent, if you can save paper and go electronic.

English: The Flowrider aboard the Royal Caribb...

English: The Flowrider aboard the Royal Caribbean cruiseliner Freedom of the Seas (Photo credit: Wikipedia)

The defendant Royal Caribbean Cruises, Ltd had a ship, the Oasis of the Seas which had a FlowRider on it. A FlowRider is a wakeboard surfing device/pool/wave. The FlowRider was an amusement that was not part of the fees charged for the cruise, but required a separate sign up and fee payment by people wanting to ride the device.

The plaintiff rode the FlowRider for approximately 45 minutes, falling several times. On her last fall, she hit the rear wall and fractured her ankle. Prior to her injury, she had allegedly watched a safety video which was on the ship’s cabin TVs. She also watched  other riders ride.

To ride the FlowRider the plaintiff had to read and sign an electronic release. The release was three pages long and designed so the readers had to scroll through all three of the pages before it could be signed. The plaintiff scrolled through all three pages and electronically signed the release. The plaintiff later argued she thought she was signing a room charge. (Room charges are three pages long?)

The plaintiff argued that admiralty law applied, which would prevent the use of the release and that the release was void based on equitable grounds. The decision was later overturned because the court found the admiralty statute was vague and the issue on whether the release worked in this case was an issue that should be litigated.

So?

The admiralty law argument states that if admiralty law applies, releases cannot be used to defeat a claim. The legal relationship is similar to the common carrier‘s duty to protect passengers, because the control of the transportation is outside of the ability of the passenger to control, the common carrier owes the highest degree of care to the passengers. You are not driving; you are a passenger. You can’t slow down, turn or hit the break from the rear of the cabin.

For admiralty law to apply it must meet a two-prong test. The incident causing the harm:

(1)             must have a potentially disruptive impact on maritime commerce, and

(2)            the activity must bear a substantial relationship to traditional maritime activity.

The judge quickly denied that argument. He found that the cruise line industry would not be disrupted because of FlowRider injuries in the future, and the activity is purely recreational and has no relationship to navigation, piloting or shipping: “…as the FlowRider can hardly be considered essential functions of a common carrier…”

The court then looked at whether the release was valid on equitable grounds. The release used bold language to point out the different important sections. The bold language also indicated the nature and purpose of the document. One page explained the potential risks associated with the activity.

The court found it irrelevant that the plaintiff had not been provided a hard copy of the release and found the plaintiff’s attempt to characterize the release as a room charge as a failure to read the language “clearly presented to her.”

So Now What?

English: Royal Caribbean International's, &quo...

Royal Caribbean International’s, “MS Oasis of the Seas” (Photo credit: Wikipedia)

If you do operate in a legal environment where all or part of your activities may be held to a higher standard of care such as admiralty law or as a common carrier, you can use a release to eliminate claims for associated or side line activities. To do so you will need to identify the actual nature of the activity and why it is not associated with the higher degree of care needed by the other part of the activity.

What also proved instrumental to the court was the video which was available to everyone on the ship and which the plaintiff said she had watched when she signed the release. It is difficult to argue you did not understand the risk, when you agreed to watch a video which explained the exact risk which you are claiming is the cause of your injury.

The Waiver further provides that the passenger agrees not to use the FlowRider until she has watched a safety video. At the time of the alleged incident, the FlowRider safety video was in circulation on the stateroom channel, which is available to all passengers on their cabin TVs.

Another factor the court found important was the fact that the release could not be signed without scrolling through all three of the electronic pages.

The Waiver is three pages long and is designed so that passengers must scroll through all of its language before execution; otherwise it is simply impossible to execute the Waiver.

The issue that the release was electronic was never brought up.

Also of importance and pointed out by the court several times was the fact the plaintiff had watched other riders on the FlowRider and had watched them fall as well as having ridden the FlowRider for 40 minutes before suffering her only injury. It is difficult to argue you did not assume the risk when you clearly saw then experienced the risk.

Even though the release was held effective to stop the suit, the judge pointed out the assumption of risk issues and the fact the injury the plaintiff claimed was pointed out both in the wavier and in the video.

·        Electronic Releases are accepted and used.

·        Include the risks in your release as well as the necessary legal language

·        Make sure the important sections are not hidden, but specifically pointed out to the participant.

·        If you can, and you should, have the participant watch a video of the risks and acknowledge that they watched the video in the release.

·        Be able to prove other issues or facts that support the fact the participant knew and understood the risks of the activity.

However this decision was overturned in Johnson v. Royal Caribbean Cruises, Ltd, 449 Fed. Appx. 846; 2011 U.S. App. LEXIS 25240 because of the lack of clarity in the US Admiralty Statutes. The basis for overturning the decision was:

(1) the waiver was clearly a contract with a provision that limited the liability of the owner for personal injury or death caused by the negligence or fault of the owner or the owner’s employees or agents,
(2) the cruise ship owner undoubtedly was the owner of a vessel transporting passengers between a port in the United States and a port in a foreign country, and
(3) the statute contained no exceptions regarding the type of activity in which the passenger is partaking when the injury occurs nor where the particular provision is found.

The court did not overturn the issue of whether the electronic part of the waiver was at issue.

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So will this kill the rental market or just prove that life happens

Landowner, who rented cottage to married couple sued for death, when groom drowns in landowner kayak

According to the article, the landowner rented her cottage to a couple on their honeymoon. On the last day of their stay the deceased took a kayak out on the ocean that was at the cottage. The deceased was wearing a PFD (life jacket).

He was found dead floating in the bay with his PFD on after the weather changed.

So anticipating a lawsuit, the landowner filed a notice of claim under Admiralty law. Admiralty law says the claim of the injured (or deceased) is limited to the value of the vessel after the accident. In her filing she states she paid indicates she purchased the vessel, manufactured by Ocean Kayak, in May 2009 for $297 for the kayak three years ago.

If the federal district court accepts the notice, then the lawsuit is effectively ended and the plaintiff’s will receive $297.

two Ocean Kayak sit-on-tops for two paddlers each.

two Ocean Kayak sit-on-tops for two paddlers each. (Photo credit: Wikipedia)

It is a great move in anticipation of litigation.

However

It is stupid that a person who is renting out their cottage on the ocean has to do this. What was the negligent act that she did? The kayak was still good, it was found floating, there was a PFD for the victim and he was wearing it. What else could you be liable for?

A property owner, landowner, has a duty of care to keep the property reasonably safe and to inform guests or invitees of any dangers. The deceased left the property!

See Kayak owner may face lawsuit over groom’s death or Property owner seeks liability protection in case of kayaker’s death.

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