Holmes v. Parker et al
Filing
57
ORDER granting 41 The United States' Motion for Summary Judgment. A pretrial conference for the remaining claims and parties is set for April 4th at 1:00 p.m. Signed by Chief Judge Lisa G. Wood on 3/6/2013. (csr)
3hz the aniteb btatto 3ttrtct Court
for the bouthern flttrttt of otorata
runittk Athtoton
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Plaintiff,
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VS.
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JOSEPH PARKER; UNITED STATES OF *
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AMERICA; MARGARET'S KEY, LLC,
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Defendants.
MEGAN HOLMES, individually and as
Administrator of the Estate of Cathy J0
Holmes,
CV 211-111
[.) l,)
Presently before the Court is a Motion for Summary Judgment
or in the Alternative a Motion to Dismiss filed by Defendant
United States of America. See Dkt. No. 41. For the reasons
stated below, the Motion for Summary Judgment is GRANTED.
BACKGROUND
This case arises out of a tragic boating accident that led
to the death of Cathy Jo Holmes, the Decedent. On Saturday,
July 11, 2009 between 6:00 p.m. and 7:00 p.m., Joseph J. Parker,
William Turner, and the Decedent boarded Parker's twenty-three
foot motorboat to meet friends at Raccoon Key, an island off
Jekyll Island. Dkt. No. 48, Ex. 3 ¶ 1. Parker used a portion
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of the Intracostal Waterway to travel south from the Brunswick
Landing Marina to Raccoon Key. Parker had travelled through the
Jekyll Creek Intracoastal Waterway approximately "one thousand
times" since he was ten years-old, and the evening's first trip
through the Intracoastal Waterway was uneventful. Dkt. No. 48,
Ex. 3 91 2. After passing through the Intracoastal Waterway,
Parker and his companions met Layton Johns, Don Drury, and Erin
Drury at Raccoon Key sometime between 7:30 p.m. and 8:00 p.m.
Dkt. No. 48, Ex. 3 ¶ 3. The group of friends stayed at Raccoon
Key fishing off the dock before leaving for St. Andrews Sound at
approximately 10:30 p.m. to go shark fishing.
Dkt. No. 48, Ex.
3 ¶ 4.
The party later returned to Raccoon Key during the early
morning hours of Sunday July 12, 2009. Dkt. No. 48, Ex. 3 91 4.
Parker's boat ran aground in the marsh while they were returning
to the dock. Dkt. No. 48, Ex. 3 ¶ 6. However, SeaTow, a towing
company for boats, was called and was able to pull the boat free
from the marsh without damage. Dkt. No. 48, Ex. 3 ¶ 7. After
unloading the boat and eating a sandwich at Raccoon Key, Parker
and the Decedent decided to return to the Brunswick Landing
Marina to retrieve additional fishing gear so they could go
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offshore fishing later that same morning. Dkt. No. 41, Ex. 1 ¶
91
Once again, the boat with Turner, Parker, and the
Decedent headed for the Brunswick Landing Marina. Dkt. No. 48,
Ex. 3 ¶ 10. The United States contends, with supporting
evidence, that at some point during this trip the Decedent took
the helm of the boat. See Dkt. No. 41, Ex. 1. Plaintiff
adamantly disagrees and asserts that Parker drove the entire
time. Plaintiff has presented no evidence supporting this
position. The question of who was at the helm at the time of
the accident, however, has no bearing on the outcome of the
present Motion.
While travelling through the Intracoastal Waterway for a
final time, the boat suddenly jerked, left the channel, and
crashed into the rocks alongside the waterway. Dkt. No. 48, Ex.
1
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In her response to the United State's Statement of Material Fact,
Plaintiff disputed several paragraphs. However, for the vast
majority of these paragraphs, Plaintiff failed to indentify or
present any evidence actually contradicting the United States'
statement. See, e.g., Dkt. No. 48, Ex. 3 ¶9! 9, 12, 13, 15. Plaintiff
vaguely asserted that she "anticipates that the testimony at trial
will contradict" the evidence cited by the United States. See, e.g.,
Dkt. No. 48, Ex. 3 191 9, 12, 13, 15. This, however, is insufficient
to create a factual dispute. If Plaintiff had any supporting
evidence, the time to present such evidence was in her response to
the United States' summary judgment motion. Discovery has long since
closed. While Plaintiff in her response requested additional time to
conduct several depositions, she never made a formal motion and, in
ruling on another evidentiary issue, the Magistrate Judge denied
Plaintiff's request stating that Plaintiff offered "reason for the
delay in her request for depositions . . . and Plaintiff at no time
prior to the close of discovery moved for an extension of the
discovery period." Dkt. No. 56.
3 ¶ 4. Parker and the Decedent were thrown from the boat and
into the water. Dkt. No. 48, Ex. 3 ¶ 17. Parker swam back to
the boat, located the radio handset, and made a mayday call to
the Coast Guard for assistance. Dkt. No. 48, Ex. 3 ¶ 18.
Parker and Turner, who had managed to remain inside the boat,
began yelling for the Decedent. Dkt. No. 48, Ex. 3 ¶ 19.
Parker eventually located the Decedent floating unconscious in
the water nearby. Dkt. No. 48, Ex. 3 ¶ 20. Parker pulled the
Decedent onto the rocks and administered CPR. Dkt. No. 48, Ex.
3 ¶ 21.
Both a Coast Guard response boat and a private "Good
Samaritan" boat operated by Creighton Dukes heard and responded
to the mayday call. Dkt. No. 48, Ex. 3 ¶ 4. Once on the scene,
the Coast Guard boat retrieved Parker and the unconscious
Decedent from the rocks. Dkt. No. 48, Ex. 3 IT 25-26. Despite
several CPR attempts, the Decedent was never revived. Dkt. No.
48, Ex. 3 ¶ 26. On the way back to the station, Parker
described the accident to the Coast Guard crew and stated that,
while the Decedent was driving, it felt like something reached
up and grabbed or jerked the helm of the boat, causing the boat
to crash into the rocks. Dkt. No. 48, Ex. 3 ¶ 29.
After transporting Parker, the Decedent, and Turner to the
Coast Guard station, Dukes and the Coast Guard crew returned to
the scene of the accident to investigate. Dkt. No. 48, Ex. 3 IT
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30-31. They observed some type of line fouled in the vessel's
propeller. Dkt. No. 48, Ex. 3 91 4. Although Plaintiff
attributes a different cause to the accident, Parker believes
his boat crashed as a result of a crab pot that caused the line
to wrap around the vessel's propeller, which caused the boat to
jerk and the Decedent to lose control. Dkt. No. 41, Ex. 1 91 32.
Plaintiff, individually and as the administrator of the
Decedent's estate, brought the present action against Parker,
the United States, and Margaret's Key, LLC, the owner and
operator of Raccoon Key. See Dkt. No. 1. Plaintiff alleged
that the United States caused the accident because it improperly
marked, illuminated, and maintained the jetty. See Dkt. No. 1.
LEGAL STANDARD
The United States has moved for summary judgment, or in the
alternative, dismissal for lack of jurisdiction. Under Federal
Rule of Civil Procedure 56(a), summary judgment is appropriate
"if the rnovant shows that there is no genuine dispute as to any
material fact and the movant is entitled to judgment as a matter
of law." The court must view the evidence and draw all
inferences in the light most favorable to the nonmovant.
Adickes v. S.H. Kress & Co., 398 U.S. 144, 157-59 (1970). The
party seeking summary judgment must first identify grounds that
show the absence of a genuine issue of material fact. Celotex
Corp. v. Catrett, 477 U.S. 317, 322-24 (1986). To discharge
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this burden, the movant must show the court that there is an
absence of evidence to support the nonmoving party's case. Id.
at 325. The burden then shifts to the nonmovant to go beyond
the pleadings and present affirmative evidence to show that a
genuine issue of fact does exist. Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 257 (1986).
Under Federal Rule of Civil Procedure 12(b) (1), there are
two types of motions to dismiss for lack of subject matter
jurisdiction—facial attacks and factual attacks. Morrison v.
Amway Corp., 323 F.3d 920, 925 n.5 (11th Cir. 2003) (citing
Lawrence v. Dubar, 919 F.2d 1525, 1529 (11th Cir. 1990)).
"Facial attacks challenge subject matter jurisdiction based on
allegations in the complaint, and the district court takes the
allegations as true in deciding whether to grant the motion."
Id. "Factual attacks challenge subject matter jurisdiction in
fact, irrespective of the pleadings." Id. In resolving a
factual attack, the district court may consider extrinsic
evidence such as testimony and affidavits." Id. In considering
a factual attack:
the trial court may proceed as it never could
under 12(b)(6) or Fed. R. Civ. P. 56.
Because at issue in a factual 12(b) (1) motion
is the trial court's jurisdiction-its very
power to hear the case-there is substantial
authority that the trial court is free to
weigh the evidence and satisfy itself as to
existence of its power to hear the case. In
short, no presumptive truthfulness attaches
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to plaintiff's allegations, and the existence
of disputed material facts will not preclude
the trial court from evaluating for itself
the merits of the jurisdictional claims.
Lawrence, 919 F.2d at 1529 (citing Williamson v. Tucker, 645
F.2d 404, 412-413 (5th Cir. 1981)
DISCUSSION
This Court will first address the threshold question of
jurisdiction before turning to the United State's other
arguments. The United States contends that Plaintiff cannot
maintain the present action because sovereign immunity has not
been waived. See Dkt. No. 41. Ex. 6. It is well established
that the United States, as sovereign, is immune from suit except
where it consents to be sued, and the terms of its consent
define the court's jurisdiction. United States v. Sherwood, 312
U.S. 584, 586 (1941); Cranford v. United States, 466 F.3d 955,
957-58 (11th Cir. 2006); Mid-South Holdinq Co., Inc. v. United
States, 225 F.3d 1201, 1203 (11th Cir. 2000). The consent to be
sued cannot be implied but must be "unequivocally expressed" and
strictly construed in the United States' favor. United States
v. Nordic Village, 503 U.S. 30, 34-35 (1992) (citations
omitted)
The Eleventh Circuit, consistent with the majority of
circuits, has held that the waiver of sovereign immunity under
the Suits in Admiralty Act is limited by the discretionary
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function exception found in the Federal Torts Claims Act. See
Mid-South, 225 F.3d at 1203-1204. Under the discretionary
function exception, the United States is not liable for:
[a]y claim based upon an act or omission of
an employee of the Government, exercising
due care, in the execution of a statute or
regulation, whether or not such statute or
regulation be valid, or based upon the
exercise or performance or the failure to
exercise or perform a discretionary function
or duty on the part of a federal agency or
an employee of the Government, whether or
not the discretion involved be abused.
28 U.S.C. § 2680(a).
The application of the discretionary function exception is
determined by a two-step test. United States v. Gaubert, 499
U.S. 315, 322-23 (1991). First, the court considers whether the
conduct involves "an element of judgment or choice, which will
be the case unless "a federal statute, regulation, or policy
specifically prescribes a course of action embodying a fixed and
readily ascertainable standard." Cranford, 466 F.3d at 958
(citations omitted). Under current law, the conduct need not be
"confined to the policy or planning level." Gaubert, 499 U.S.
at 325.
Second, the court asks "whether the judgment or choice is
grounded in considerations of public policy, because the purpose
of the discretionary function exception is to prevent judicial
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'second-guessing' of legislative and administrative decisions
grounded in social, economic, and political policy through the
medium of action in tort." Cranford, 466 F.3d at 98 (citations
omitted). "When established governmental policy, as expressed
or implied by statute, regulation, or agency guidelines, allows
a government agent to exercise discretion, it must be presumed
that the agent's acts are grounded in policy when exercising
that discretion." Id. (citations omitted). The "inquiry does
not focus either on the subjective intent of the government
agent, or on whether the agent actually weighed policy
considerations, but on the nature of the actions taken and on
whether they are susceptible to policy analysis." Id.
(citations omitted)
Plaintiff has advanced two different types of conduct on
the part of the Coast Guard that she alleges were deficient.
First, Plaintiff claims that the jetty was not sufficiently
illuminated or marked. Second, the Plaintiffs assert that the
markers the Coast Guard did provide were negligently maintained
in that some of the light bulbs were out.
The first type of conduct clearly falls within the
discretionary function exception. Establishing navigational
aids involves the element of judgment and choice as indicated by
the applicable statute. Fourteen U.S.C. § 86 states that the
"Secretary may mark for the protection of navigation any sunken
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vessel or other obstruction existing on the navigable waters
in such manner and for so long as, in his judgment,
the needs
of maritime navigation require." (emphasis added). This
statutory language places no restraints on the Secretary's
decision.
As for the second prong, the decision at issue was grounded
in policy because when, as here "established governmental
policy, as expressed or implied by statute, regulation, or
agency guidelines, allows a government agent to exercise
discretion, it must be presumed that the agent's acts are
grounded in policy when exercising that discretion." Cranford,
466 F.3d at 98 (citations omitted). Additionally, courts have
repeatedly held that the placement of navigational aids falls
within the discretionary function exception. See id. at 959
(determining that 14 U.S.C. § 86 confers discretionary authority
on the Coast Guard); Theriot v. United States, 245 F.3d 388 (5th
Cir. 1998) ("[lIt is clear that the government's decision
whether to place a warning sign or marker at the sill's location
was a discretionary decision that required judgment or choice
and one that was grounded in public policy considerations.");
Arguesa LDC v. United States, 622 F. Supp. 2d 1322, 1330 (S.D.
Fla. 2008) ("[IJt is clear that the establishment, maintenance,
and operation of aids to navigation are precisely the types of
conduct and judgments that the discretionary function exception
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is designed to shield."); Williams ex rel. Sharpley v. United
States, 581 F. Supp. 847, 854 (S.D. Ga. 1983) (duty of Coast
Guard to mark objects in navigable waters is discretionary
function).
As for the second type of conduct identified by Plaintiff,
Plaintiff steadfastly maintains that, once the Coast Guard has
placed navigation aids, it lacks discretion in maintaining them.
See Dkt. No. 48. Fourteen U.S.C. § 81, however, states that
"[i]n order to aid in navigation and to prevent disasters,
collisions, and wrecks of vessels and aircraft, the Coast Guard
may establish, maintain, and operate: (1) aids to maritime
navigation . . . . " (emphasis added). Under the Gaubert test,
this broad authority given to the Coast Guard in maintaining
navigation aids supports a finding that this exercise is
discretionary.
Additionally, other courts have determined that the Coast
Guard's decisions regarding how and when to maintain aids and
how to prioritize repairs is a discretionary function. See
Harrell v. United States, 443 F.3d 1231 (10th Cir. 2006)
(holding "that the Coast Guard's decisions concerning whether
and when to service the buoy at issue . . . were policy-based"
discretionary decisions dependent on "the availability and
allocation of agency resources."); Smith v. United States, 251
F. Supp. 2d 1255 (D.Md. 2003) (Coast Guard's decision, after
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receiving notification that a daybeacon was broken, to address
the problem the next day was discretionary)
There is authority that once the Coast Guard undertakes to
provide navigational aids and engenders reliance on those aids,
the Coast Guard is obligated to make certain that they are in
good working condition. See Indian Towing v. United States, 350
U.S. 61, 54-65 (1955); Whitney S.S. Co. v. United States, 747
F.2d 69, 72 (2d Cir. 1984) (citing Indian Towing for proposition
that "once the government exercises its discretion to operate
navigational aids and engenders reliance on the guidance
afforded by such aids, it is thereafter obliged to make certain
that they remain in good working condition.")
Indian Towing, however, does not control the present case
for two reasons. First, in Indian Towiflg "the discretionary
function exception was not at issue because the government
conceded that it did not apply" based on the then-applicable
rules that distinguished between operational level decisions and
decisions at the policy and planning levels. See Harrell, 443
U.S. at 1237 (describing the law with regards to discretionary
function in place at the time Indian Towing was decided); Nonzon
v. United States, 253 F.3d 567, (11th Cir. 2001) (noting that in
Indian Towing "the Government did not attempt to invoke the
benefit of the discretionary function exception"); Ochran v.
United States, 117 F.3d 495, 505 (11th Cir. 1997) ("Indian
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Towing, however, has been severely undercut, if not altogether
disavowed by the Supreme Court in Gaubert.").
Finally, even apart from the discretionary function
exception, Plaintiffs claim against the United States for
failing to maintain the navigable aids fails. Plaintiff
contends that the lights in the aids guiding the boat were out
the night of the accident. However, no evidence in the record
supports this assertion. Parker, in his deposition, stated
"that there were some lights that needed to be fixed." Dkt. No.
41, Ex. 2, 124:22-25, 125:1-3. The lights Parker referred to,
however, were lights used to guide vessels into the Intracoastal
Waterway and Jekyll Creek, not to guide vessels coming out of
the area. Dkt. No. 41, Ex. 2, 133:4-14. The accident occurred
when Parker's boat was travelling out of the Intracoastal
Waterway so Parker testified that the broken lights "were not at
play" when the accident happened. Dkt. No. 41, Ex. 2, 133:1115. In sum, even apart from discretionary function exception,
Plaintiffs claims against the United States fail.
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CONCLUSION
The United States' Motion for Summary Judgment is GRANTED.
Dkt. No. 41. A pretrial conference for the remaining claims and
parties is set for April 4th at 1:00pm.
SO ORDERED, this 6th day of March, 2013.
L SA GODBEY OOD, CHIEF JUDGE
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF GEORGIA
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