Youngberg v. McKeough, et al

Filing

OPINION: the judgment of the district court is AFFIRMED, decision not for publication. R. Guy Cole , Jr., AUTHORING Circuit Judge; Bernice Bouie Donald, Circuit Judge and Algenon L. Marbley, U.S. District Judge for the Southern District of Ohio, sitting by designation.

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NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 13a0779n.06
No. 12-1988

FILED

UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT

ALEXIS YOUNGBERG,
Plaintiff-Appellant,
v.
MICHAEL MCKEOUGH, JACK MCKEOUGH, the
ESTATE OF ROBERT JACK JEROVSEK and
JACK L. JEROVSEK as personal representative of the
ESTATE OF ROBERT JACK JEROVSEK,
Defendants-Appellees.

BEFORE:

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Aug 23, 2013
DEBORAH S. HUNT, Clerk

ON APPEAL FROM THE
UNITED STATES DISTRICT
COURT FOR THE WESTERN
DISTRICT OF MICHIGAN
OPINION

COLE and DONALD, Circuit Judges; MARBLEY, District Judge.*

COLE, Circuit Judge. This appeal arises out of a personal injury action after a watercraft
collision in 2009. Jack McKeough took several friends out on his parents’ Mastercraft wake boat
on Spring Lake in Michigan. They met up with several other friends, including Alexis Youngberg
and Robby Jerovsek, who were riding a Sea-Doo personal watercraft, which Robby drove. The
afternoon ended in tragedy when the Mastercraft ran over the back of the Sea-Doo, killing Robby
and severing Alexis Youngberg’s leg. Ms. Youngberg brought a personal injury suit in diversity
alleging negligence against Jack McKeough, his parents, and Jack Jerovsek (“Jerovsek”), Robby
Jerovsek’s father, and personal representative of Robby’s estate. At trial, a jury awarded Ms.
*

The Honorable Algenon L. Marbley, United States District Judge for the Southern District
of Ohio, sitting by designation.

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Youngberg $4.6 million for Jack’s negligent driving. During the trial, however, the district court
dismissed her remaining claims pursuant to Defendant’s motion for partial summary judgment and
judgment as a matter of law. See Fed. R. Civ. P. 56, 50. The dismissed claims included claims
against Jack’s parents for negligent entrustment and supervision and a claim against Jerovsek for
Robby’s negligence. Ms. Youngberg now appeals these judgments as well as various evidentiary
rulings. For the following reasons, we affirm the judgment of the district court.
I.
On the evening of September 5, 2009, then-fourteen-year-old Jack took four teenage friends
out on his parents’ Mastercraft motorboat on Spring Lake with the permission of his father, Michael
McKeough. Before heading out, Jack and his friends met up with fifteen-year-old Robby Jerovsek,
sixteen-year-old Alexis Youngberg and twenty-three year-old Kaitlin Van Dam, at the McKeough’s
boat dock. Robby drove a three-person Sea-Doo personal watercraft with Ms. Youngberg seated
directly behind him and Kaitlin seated on the back. The Sea-Doo was owned by Ms. Youngberg’s
father Mark Youngberg. It was a sunny, clear day, the lake was calm, and there was little boat traffic
on the water.
After leaving the dock, Jack drove the MasterCraft at “full throttle,” traveling at
approximately 50 miles per hour. The Sea-Doo initially drove at a similar speed, moving in excess
of 50 miles per hour. The speed limit on the lake was 55 miles per hour. Minutes later, the Sea-Doo
slowed to an idle speed of 5 miles per hour as the MasterCraft approached it from behind. Jack was
distracted by a catalogue behind him and averted his attention from the waters ahead of him. Jack
turned to face forward just in time to see his boat hit the Sea-Doo squarely in the stern and run over
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the top of it. The MasterCraft did not slow down as it collided with the Sea-Doo. Robby was killed
in the accident and Ms. Youngberg’s left leg was severed below the knee.
In September 2010, Ms. Youngberg1 filed an action in the United States District Court for
the Western District of Michigan, alleging negligence on the part of Jack McKeough. She also
alleged a cause of action against Michael McKeough, Jack’s father, as the owner of the MasterCraft
boat, based on a Michigan statute that makes a boat owner liable for any injury caused by the
negligent operation of his or her boat. See Mich. Comp. Laws § 324.80157. The complaint
additionally alleged that both of Jack’s parents, Michael and Nina McKeough (“the McKeoughs”),
were liable under Michigan law for negligent entrustment and negligent supervision of their son.
Finally, Ms. Youngberg alleged a negligence claim against Jerovsek as the personal representative
of Robby’s estate. Ms. Youngberg’s claims against Jerovsek were predicated on the theory that
Robby’s sudden slowing of the Sea-Doo violated several Inland Navigational Rules (“INR”).
Jerovsek filed a cross-claim against Jack McKeough and his parents, a counter-claim against
Ms. Youngberg and a third-party claim against Mark Youngberg.
Prior to trial, Jack admitted liability for negligent operation of the MasterCraft and Mr.
McKeough admitted liability under Michigan law as owner of the MasterCraft. The district court
granted the McKeoughs judgment as a matter of law on Ms. Youngberg’s negligent entrustment and

1

The case was originally filed by Janice Youngberg, as a personal representative of Alexis
Youngberg, because Ms. Youngberg was a minor at the time the original complaint was filed. When
Ms. Youngberg reached the age of eighteen, in 2011, the complaint was amended to reflect that she
is the sole Plaintiff.
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negligent supervision claims. The jury awarded Ms. Youngberg $4.6 million for Jack and Mr.
McKeough’s negligence.
The district court dismissed a number of Ms. Youngberg’s claims against Jerovsek before
trial. In particular, the court granted a cross-motion for partial summary judgment for Jerovsek,
holding that Ms. Youngberg could not show that Robby was obligated to maintain his course and
speed as a vessel being overtaken under INR 17(a)(1), 33 U.S.C. § 2017(a)(1); 33 C.F.R.
§ 83.17(a)(1). With regard to the claims presented to the jury, Jerovsek was found not liable.
Jerovsek’s claims against Ms. Youngberg and her father were dismissed before trial. His
cross-claim against Jack and the McKeoughs was resolved with a $6 million consent judgment.
Ms. Youngberg now brings a timely appeal on several grounds. She argues that: (1) the
district court erred by granting partial summary judgment to Jerovsek; (2) the district court erred in
granting judgment as a matter of law on her claims of negligent entrustment and negligent
supervision against the McKeoughs; (3) the district court erred in excluding testimony relevant to
the negligent entrustment and negligent supervision claims; and (4) the district court erred by
excluding expert testimony on the negligent entrustment and negligent supervision claims. We
address these claim in turn.
II.
Ms. Youngberg first argues that the district court erred by granting partial summary judgment
to Jerovsek. The district court held that, as a matter of law, Ms. Youngberg could not show that
Robby had violated INR 17(a)(1). We review an order granting summary judgment de novo.
Tysinger v. Police Dep’t of City of Zanesville, 463 F.3d 569, 572 (6th Cir. 2006). Summary
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judgment is proper “if the movant shows that there is no genuine dispute as to any material fact and
the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). On summary
judgment, we view the facts and draw all reasonable inferences in the light most favorable to the
non-moving party. Tysinger, 463 F.3d at 572. A genuine dispute is one “based on evidence upon
which a reasonable jury could return a verdict in favor of the non-moving party.” Id.
The INRs are federally established rules which “apply to all vessels upon the inland waters
of the United States.” 33 U.S.C. § 2001; 33 C.F.R. § 83.01(a); see also Matheny v. Tenn. Valley
Auth., 557 F.3d 311, 317 n.3 (6th Cir. 2009). We interpret the INRs according to the most
reasonable and natural reading of the language. See Gonzales v. Oregon, 546 U.S. 243, 285 (2006)
(interpreting a federal regulation according to the most “reasonable” and “natural” interpretation);
United States v. Parrett, 530 F.3d 422, 429 (6th Cir. 2008) (“The statutory-interpretation analysis
begins by examining the language of the statute itself to determine if its meaning is plain.” (internal
quotation marks omitted)).2
INR 17(a) provides:
(a) Stand-on vessel to keep course and speed; action allowed when give-way vessel
fails to take appropriate action.
(1) Where one of two vessels is to keep out of the way, the other shall keep
her course and speed.

2

Prior to 2010, and at the time of the accident, the Inland Navigation Rules were codified as
statutes. In May 2010, the statutes were repealed and became part of the Code of Federal
Regulations. The text of the rules did not change. It is not clear if the pre-May 2010 statutory
version or the post-May 2010 Federal Regulation version of the INR applies in this case. It does not
impact our analysis here, however, because the plain language of INR 17(a)(1) is clear.
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33 C.F.R. § 83.17(a); see also 33 U.S.C. § 2017(a). INR 13(a) provides that “any vessel overtaking
any other shall keep out of the way of the vessel being overtaken.” 33 U.S.C. § 2013(a); 33 C.F.R.
§ 83.13(a). Ms. Youngberg argues that Robby violated INR17(a)(1) by slowing the Sea-Doo,
allowing it to be overtaken by the MasterCraft, and that this issue should have gone to the jury.
In response Jerovsek contends, and the district court held, that INR 17(a)(1) was not violated
because Jack did not signal before overtaking the Sea-Doo. Under INR 34(c):
(c) Overtaking situations. When in sight of one another:
(1) A power-driven vessel intending to overtake another power-driven
vessel shall indicate her intention by the following signals on her
whistle: one short blast to mean “I intend to overtake you on your
starboard side”; two short blasts to mean “I intend to overtake you on
your port side”; and
(2) The power-driven vessel about to be overtaken shall, if in
agreement, sound a similar sound signal. If in doubt she shall sound
the danger signal prescribed in paragraph (d).
33 U.S.C. § 2034(c); 33 C.F.R. § 83.34(c). Jerovsek argues that because a signal was never sounded,
Robby’s duty to maintain his course and speed as a vessel being overtaken never arose.
As a preliminary matter, most questions of fact have been resolved by the jury and therefore,
the question before us on appeal is narrow. At trial, the jury found that Robby was not liable for not
providing an adequate lookout, INR 5, 33 U.S.C. § 2005; 33 C.F.R. § 83.05; not liable for failing
to maintain a safe speed under INR 6, 33 U.S.C. § 2006; 33 C.F.R. § 83.06; not liable for failing to
determine if there was a risk of collision under INR 7, 33 U.S.C. § 2007; 33 C.F.R. § 83.07; and not
liable for failing to take action to avoid collision, INR 8, 33 U.S.C. § 2008; 33 C.F.R. § 83.08. There
is an unresolved issue of fact as to whether Robby knew that the MasterCraft was behind him, and
for purposes of summary judgment, we view the facts in the light most favorable to Ms. Youngberg
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as the non-moving party. See Tysinger, 463 F.3d at 572. Therefore, the question before us today is
this: assuming Robby knew that the MasterCraft was behind him, was it a violation of INR 17(a)(1)
for him to fail to maintain his speed?
As the district court noted, the Second Circuit has held that “it is only after the exchange of
signals that the duty of the vessel ahead begins at all.” The Industry, 29 F.2d 29, 30 (2d Cir. 1928).
The Second Circuit went on to explain that this is the only reasonable interpretation of INR 17(a)(1):
The vessel ahead is usually overtaken because she has less speed and cannot avoid
it; the overtaking vessel may always slow down and keep astern. The rules provide
for no signal by which the overtaken vessel may declare her purpose to change her
course and speed, and, if she is bound to keep both, she is, as it were, frozen in her
navigation from the moment that the risk of collision begins, merely because the
overtaking vessel begins to overhaul her, something which it is not always easy to
ascertain. Thus she may be compelled to abandon her intended destination, or to pass
her berth, merely because the overtaking vessel insists upon passing. It is therefore
fair to suppose that her consent is required, not alone because she may think the
passing dangerous in any case, but also because she may need to change her course
for her own purposes to which the interests of the overtaking vessel can hardly be
considered equal. The latter should therefore be obliged to hold herself in check
against unexpected changes of course, and be prepared to meet them, until by the
consent of the vessel ahead she gets assurance that it is convenient for her to hold on.
Id. In other words, the overtaking vessel has the primary duty to avoid collision. The rules provide
that the overtaking vessel must both “keep out of the way” and initiate the passing maneuver by
sending the first signal. See 33 U.S.C. §§ 2013(a), 2034(c); 33 C.F.R. §§ 83.13(a), 83.34(c).
Presumably, the overtaking vessel only proceeds to overtake after receiving a consent signal, as
opposed to the “danger signal” (or no signal at all), from the overtaken vessel. It would be an absurd
interpretation of INR 17(a)(1), then, to require the overtaken vessel to maintain her course and speed

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before this communication has taken place, whenever she thinks there is a chance that she might
possibly get passed.
Ms. Youngberg argues that because a reasonable juror could conclude that Robby knew or
should have known that the MasterCraft was directly behind him, the above interpretation should
not apply in this particular case. She cites to two district court cases from outside of this jurisdiction
to support this proposition. See The Pillar de Larringa, 42 F.Supp. 648 (E.D. Pa. 1942); The
Osceola, 30 F. 383 (D.C.N.Y. 1887). To the extent that these cases are not distinguishable we
decline to follow them. A forward vessel may know of another vessel’s location without being sure
of her intentions—there is no reason to assume that she intends to pass. The INRs provide for a clear
communication method—a series of signals—which create the duty to maintain course and speed.
These signals obviate the need to guess another vessel’s intentions. Therefore, Robby’s knowledge
of the MasterCraft’s location was irrelevant.
Ms. Youngberg cites one Sixth Circuit opinion, Robinson v. Detroit & C. Steam Co., 73 F.
883 (6th Cir. 1896), but it does little to advance her argument. In Robinson, while an overtaken
vessel was found liable, the liability was not on the basis of failure to maintain course or speed under
INR 17(a)(1), but instead on the fact that the vessel was not properly manned with a lookout. Id. at
892. The question of whether Robby had adequately provided a lookout under INR 5, 33 U.S.C.
§ 2005; 33 C.F.R. § 83.05, was submitted to the jury and Jerovsek was found not liable. Therefore,
Robinson does not apply here and the district court did not err by granting partial summary judgment
to Jerovsek.

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III.
Ms. Youngberg next argues that the district court erred by granting judgment as a matter of
law, under Federal Rule of Civil Procedure 50(a), to the McKeoughs on her negligent entrustment
and negligent supervision claims. Neither this issue nor the two following evidentiary issues relating
to Ms. Youngberg’s claim against the McKeoughs were raised at oral argument. Accordingly, it
appears that these claims have been abandoned. But even if they have not been abandoned, we
affirm the judgment of the district court.
When reviewing a Rule 50(a) motion in diversity, this Court applies the law of the forum
state. See Betts v. Costco Wholesale Corp., 558 F.3d 461, 466 (6th Cir. 2009). Michigan courts use
the term “directed verdict” as opposed to “judgment as a matter of law.” Id. “Orders granting a
directed verdict are reviewed de novo by Michigan appellate courts, which also ‘view[ ] the evidence
and all legitimate inferences in the light most favorable to the nonmoving party.’” Id. (quoting
Elezovic v. Ford Motor Co., 697 N.W.2d 851, 857 (Mich. 2005)). The motion may be granted only
if, after viewing all of the evidence in the light most favorable to the non-moving party, “reasonable
minds could not differ on any question of material fact.” Id. (citing Caldwell v. Fox, 231 N.W.2d
46, 49 (Mich. 1975)).
To make out a claim for either negligent supervision or negligent entrustment under
Michigan law, Ms. Youngberg must have submitted evidence to show that the McKeoughs could
have or should have foreseen that Jack was likely to injure someone while driving the MasterCraft.
See Fredericks v. Gen. Motors Corp., 311 N.W.2d 725, 727 (Mich. 1981) (“To sustain a cause of
action for negligent entrustment a plaintiff must prove that defendant knew or should have known
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of the unreasonable risk propensities of the entrustee.”); Muma v. Brown, 148 N.W.2d 760, 764
(Mich. 1967) (holding that in order for parents to be liable for negligent supervision, some action
of the parents must be the proximate cause of the specific tortious act of the child and the act must
have been foreseeable to the parents). Because no evidence was presented to show that Jack was an
unusually reckless teenager or that he demonstrated any propensity for negligence with his parents’
boat or any other water craft which would have put the McKeoughs on notice, her claims fail.
Ms. Youngberg emphasizes Jack’s involvement in “high-risk” sports, including skiing and
wake surfing, unfamiliarity with the MasterCraft Owner’s Manual and specific Michigan boating
statutes, and an alleged lack of sufficient direction from the McKeoughs on safe operation of the
boat. She also notes that the McKeoughs admitted at trial that they never read the Michigan Boater
Safety Handbook or MasterCraft Owners’ Manual with Jack. Even taken in the light most favorable
to Ms. Youngberg, these facts are insufficient to have put the McKeoughs on notice that Jack was
likely to cause injury to another person while driving the boat.
Other evidence elicited at trial demonstrated that Jack was a competent seaman. He had
completed the Michigan Boater Safety Course and had spent hundreds of hours boating since he was
a small child. (Trial Test., R.209, PageID#3133, 3192-93.) Second, he was in sailing school and
raced sailboats every week in the summer, giving him significant experience with boating on the
lake.

(Id. at PageID#3189.)

Third, while Ms. Youngberg relies on the McKeoughs’s

testimony—admitting that they did not perform certain acts such as reading the Boater Safety
Handbook—to assert that Jack had received insufficient direction on boating from his parents, that
same testimony indicates that Jack received many hours of boating instruction from his parents
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including “safety quizzes” while out on the water. (Id. at PageID#3193.) The McKeoughs’s failure
to read an Owners’ Manual or Boater Safety Handbook to their son is no more significant than a
parent’s failure to read the owner’s manual of a car or the state driving laws to their child once they
have completed drivers’ education. Finally, while Ms. Youngberg emphasizes Jacks’s participation
in high-risk sports, she has submitted no evidence that skiers or wake surfers are riskier, more
reckless, or less competent boat drivers than any other individuals. The district court did not err in
granting judgment as a matter of law.
IV.
Ms. Youngberg additionally alleges that the district court erred in excluding the testimony
of Mark Youngberg, her father. In his deposition, Mark Youngberg testified to an incident which
occurred prior to the September 5, 2009, accident when he became upset with Jack for driving the
MasterCraft too close to Ms. Youngberg, who was then driving the Sea-Doo. Mr. Youngberg
furthermore testified that Jack always drove the MasterCraft too fast on the lake. He clarified,
however, that, in his opinion, the appropriate speed was twenty-five miles per hour below the speed
limit.
“We review for abuse of discretion a district court’s evidentiary rulings, including rulings on
witness testimony . . . .” United States v. White, 492 F.3d 380, 398 (6th Cir. 2007). It is an abuse of
discretion “when the district court relies on clearly erroneous findings of fact, . . . improperly applies
the law, or . . . employs an erroneous legal standard.” United States v. Lopez-Medina, 461 F.3d 724,
741 (6th Cir. 2006) (internal quotation marks omitted) (alterations in original). “This standard of
review is deferential because a trial judge has broad discretion on evidentiary rulings.” Flagg v. City
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of Detroit, 715 F.3d 165, 175 (6th Cir. 2013) (internal quotation marks omitted).
Ms. Youngberg’s primary argument is that this testimony should have been admissible to
show that the McKeoughs had notice, or should have had notice, of Jack’s negligent driving
propensities for purposes of her negligent entrustment and negligent supervision claims. In order
for Mr. Youngberg’s testimony to be admissible, it must be relevant. See Fed. R. Evid. 402. To be
relevant, the testimony must make it more or less probable that the McKeoughs could have foreseen
the accident. See Fed. R. Evid. 401. Mr. Youngberg’s testimony, however, lacks a key element: he
did not testify that he or anyone else ever informed the McKeoughs of Jack’s allegedly poor driving.
There is no evidence that the McKeoughs were aware of Jack’s behavior—and in fact their own
testimony is evidence to the contrary. Without this element, Mr. Youngberg’s testimony is not
relevant to the negligent entrustment or negligent supervision claims. Furthermore, even if Mr.
Youngberg’s testimony that Jack drove “very fast all the time” could be taken to suggest the
McKeoughs, at some point, should have seen Jack drive “very fast” themselves, and therefore should
have been on notice, Mr. Youngberg admitted that “very fast” by his definition was still under the
speed limit—not fast enough to put the McKeoughs on notice of any reckless or negligent driving
habits.
V.
Finally, Ms. Youngberg appeals the district court’s grant of the McKeoughs’s motion in
limine to preclude expert testimony on the issues of negligent entrustment and negligent supervision.
The district court held that the proposed expert testimony would not be helpful to the jury under
Federal Rule of Evidence 702(a). We review the district court’s decision to preclude expert
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testimony for an abuse of discretion. Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 152 (1999).
Ms. Youngberg argues on appeal that “the conclusion reached by the district court is simply
wrong. [P]laintiff would merely be presenting [expert] evidence on two elements of a negligence
claim that are the subject of expert opinion in innumerable Michigan cases—the applicable standard
of care and the defendants’ breach of that standard of care.” However, she neither cites case law in
support of her statement nor makes clear what the district court’s exact errors were. It is not clear
from the record who Ms. Youngberg’s proposed expert is or exactly what expertise the intended
expert would have offered. For all of our lack of information, Ms. Youngberg has been clear that
the expert testimony would have pertained to whether the McKeoughs were negligent for letting Jack
drive the boat. This is enough information to find that the expert testimony would not be helpful to
the jury under Rule 702(a), and to affirm the district court on the same grounds that it excluded the
testimony.
Helpful opinions do not “merely tell the jury what result to reach.” McGowan v. Cooper
Indus., Inc., 863 F.2d 1266, 1272 (6th Cir. 1988) (quoting Fed. R. Evid. 704 advisory committee’s
note (1972 Proposed Rules)). It is not helpful to the jury when expert testimony gives lay testimony
interpreting the facts of the case or “address[ing] matters that [are] equally within the competence
of the jurors to understand and decide.” Id. The district court held that:
[e]xpert testimony may very well be helpful to jurors in understanding the handling
characteristics of the MasterCraft X-80, the strength, skills, experience and maturity
necessary to safely operate it, and to explain performance differences between a
standard ski boat and the more powerful MasterCraft X-80. However, the Court
disagrees with [the] contention that expert testimony “will of necessity” require an
expression of opinion on whether Jack McKeough should have been permitted to
operate the MasterCraft. The experts will be able to give testimony on the technical
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issues without addressing the adequacy of supervision and entrustment. The jury will
be able to make a determination on this ultimate issue without the assistance of the
experts’ opinions.
A jury is competent to determine whether or not parents were negligent in their supervision of a child
by allowing him to drive a boat. Therefore, it is not an appropriate subject for expert testimony
under Rule 702(a).
VI.
For the foregoing reasons, we affirm the judgment of the district court.

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