Holmes v. Parker et al

Filing 88

ORDER re: July 10, 2014 one-day bench trial. The Court finds in favor of Defendant Parker and Against the Plaintiff. Signed by Chief Judge Lisa G. Wood on 7/10/2015. (csr)

3n the Uniteb Stateo 30tarta (Court
for the boutbern aitrttt of deoria
36runowirk flibiion
MEGAN HOLMES, Individually
and as Administrator of the
Estate of Cathy J0 Holmes,
Plaintiff,
V.

JOSEPH PARKER,
Defendant.

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2:11-cv-111

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ORDER

This case arises out of a tragic boating accident that
claimed the life of Cathy Jo Holmes in the predawn moments of
July 12, 2009, in the waters near Jekyll Island, Georgia. On
July 10, 2014, the Court conducted a one-day bench trial
involving Plaintiff and Defendant Joseph Parker.'
The parties dispute who was at the helm of the boat when
the accident occurred. Plaintiff contends Parker was driving the
boat at the time of the accident; Parker contends it was Holmes,
the Decedent. There were three people on the boat at the time of
The United States of America's motion for summary judgment was granted on
March 6, 2013. (Doc. 57). Margaret's Key, LLC was placed in default on June
6, 2012, (Doc. 44), and default judgment was entered against Margaret's Key,
LLC on August 20, 2014. (Doc. 85).

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the accident. One testified (Parker), one could not (the
Decedent), and one did not (William Turner).
After hearing all of the testimony and considering all of
the evidence, the Court makes the following findings of fact and
conclusions of law pursuant to Rule 52 of the Federal Rules of
Civil Procedure.
I. Findings of Fact

(1)
The Plaintiff called Christopher Hodge as a witness. Hodge was
employed in the Law Enforcement Division of the Georgia
Department of Natural Resources. He took a leading role in the
investigation of the July 12, 2009 accident. (Tr. 13-18)
(2)
As a part of his investigation, Hodge spoke with the two
surviving occupants of the boat: Defendant Joseph Parker, who
owned the 23-foot Pro-Line motorboat, and William Turner, a
passenger. Hodge also interviewed individuals who had seen the
boating party earlier in the evening, including Layton Johns and
Don Drury. Additionally, Hodge investigated the scene of the
accident and the boat. (Tr. 20-22).
(3)
Hodge spoke with Parker at the hospital not long after the
accident. Parker told Hodge that Holmes had been driving the
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boat at the time of the accident. (Tr. 59). Parker's injuries
included eight broken ribs, extensive bruising and a dislocated
elbow. (Tr. 45, 84; Pl.'s Ex. 4).
(4)
Hodge studied the injuries to Holmes' body. She suffered a head
gash, broken teeth, injuries to her nose, bruises to her
shoulder, torn flesh above her breast and hand injuries. The
cause of her death was drowning. (Tr. 64-69)
(5)
Hodge interviewed Turner who told Hodge that, over the course of
the night, both Parker and Holmes drove the boat. (Tr. 60)
Although Turner was on the boat at the time of the accident, he
was in a rear-facing seat and unable to say who was driving at
the time of the accident. (Tr. 26, 60; Pl.'s Ex. 2A). Other
people at a pre-accident party on Raccoon Key, such as Layton
Johns and Don Drury, saw Parker drive the boat earlier, but they
were not present to witness who was at the helm at the time of
the accident. (Tr. 21-22)

Parker's medical records indicated the presence of alcohol in
his system, along with cocaine and marijuana. (Tr. 52-55; Pl.'s
Lx. 31) . Holmes' records were negative for the presence of
alcohol but positive for cocaine and hydrocodone. (Tr. 53). A
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pipe and a small bag containing a green, leafy substance were
found on board the boat. (Tr. 25).
(7)
Ultimately, Hodge was unable to determine through physical
evidence who was driving the boat at the time of the accident.
(Tr. 23-24)

U
Although he was unable to determine through physical evidence
who was driving the boat, Hodge believes the cause of the
accident was operator inattention, whoever that operator was.
(Tr. 23).

MY
Hodge noticed three different kinds of rope of varying sizes
wrapped around the propeller of the boat after the accident
occurred. (Tr. 38-39)
(10)
Hodge does not believe the ropes caused the accident, nor does
he believe the boat hit a crab trap line, causing it to jerk.
Hodge testified that some of the lines on the propeller could
have been the same size as a crab line, but some were similar to
the lines found on Parker's boat. Additionally, some of the
lines on the propeller had hand-tied loops, and they did not
appear to have been in the water for long. No crab traps were
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found in the vicinity, and the lines were loosely wrapped around
the propeller. Accordingly, Hodge concludes that the lines
reached the propeller after the accident and came from Parker's
boat. (Tr. 38-43)
(11)
The Plaintiff called Defendant Joseph Parker for the purpose of
cross-examination. Additionally, Parker testified on direct
examination as the sole witness called by the defense. Parker
provided the only eyewitness trial testimony of what happened
immediately before, during and after the accident.
(12)
According to Parker, he and Cathy Holmes lived together at his
home in Brunswick, Georgia, out of which Holmes conducted a very
successful title search business. (Tr. 104)
(13)
On the evening of July 11, 2009, Parker and Holmes boarded
Parker's boat at the Brunswick Landing Marina at approximately
6:00 p.m. to go shark fishing off of Raccoon Key, a private
island. Parker drove the boat, and they arrived at Raccoon Key
around 7:00 p.m. that evening. (Tr. 104-107).

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(14)
Alcohol was served at Raccoon Key, but there was no evidence
that Parker witnessed Cathy Holmes drinking or ingesting drugs
near the time of the accident. (Tr. 107-108, 228-229). 2
(15)
At approximately 10:30 p.m. the partygoers went shark fishing,
and Parker drove the boat. (Tr. 108-109)
(16)
On the way back to Raccoon Key, the boat became stuck on the
marsh. Sea Tow was called to dislodge the boat, and the boat was
back in service by 2:10 a.m. (Tr. 109-114).
(17)
Holmes, Turner and Parker left Raccoon Key again at
approximately 3:30 a.m. with Parker at the helm. (Tr. 114-115).
As they continued their trip, Holmes took the helm, according to
Parker, near the Jekyll Island Marina. (Tr. 215) . She did so
with Parker's consent and permission. (Tr. 104).

ME
Parker testified that Holmes slowed the boat as they approached
a small vessel stopped to fish for flounder. After clearing the

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Parker's deposition testimony indicates that Parker saw Holmes consume some
limited amount of alcohol the evening before the predawn accident. (Pl.'s Ex.
33, pp. 34, 58, 62). This comports with Holmes' medical records which showed
no alcohol in Holmes' system.

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flounder fishing boat, Holmes began to bring the boat back on
plane. (Tr. 118)
(19)
Parker was in the process of securing a cushion when he felt the
boat jerk. He heard Holmes scream. (Tr. 118)
(20)
Parker looked up and saw that they were heading toward the rocks
of the Jekyll Island jetty. He reached over to grab the steering
wheel to try to turn the boat away but was unable to do so. The
boat impacted the rocks. (Tr. 120, 216-217)
(21)
Holmes and Parker were thrown from the boat, but Turner remained
on board. Parker yelled at Turner to cut off the boat engine,
which Turner did. (Tr. 217). Parker got back to the boat and
instituted a Mayday call to the Coast Guard. He did not see
Holmes and immediately began to search for her. Parker found
Holmes face down in the water. He pulled her to the rocks and
tried to revive her but was unable to do so. (Tr. 218-219)
(22)
Parker is a very experienced boater, having operated boats since
the age of 10 or 11. (Tr. 116). He testified that Holmes had
experience as well, having driven his boat at least 25 to 30
times. Parker testified that he and Holmes had extensive
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experience in the area near the Jekyll jetty. They had been
together on a boat in that area at least 100 times and dozens of
times at night. Holmes herself had, prior to the accident,
steered the boat through the Jekyll jetty area at night. (Tr221-224)
(23)
Regarding Holmes' operation of the boat, Parker did not see
Holmes do anything wrong or inappropriate the morning of her
death. (Tr. 225) . Parker had no knowledge that Holmes was in any
way impaired. (Tr. 231)
(24)
Four additional witnesses were called by the Plaintiff, and each
of the four testified about what a full and meaningful life
Holmes led, as well as to shed light on her family history and
relationship with Parker.
(25)
Jennifer Lewis is Holmes' stepdaughter. (Tr. 134) . She testified
that Holmes loved the outdoors and activities such as hiking,
kayaking and traveling. She traveled the world and was a staunch
advocate for her daughter, Morgan, who was disabled. (Tr. 139141)

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(26)
Holmes encountered tragedy in 2005 when her husband, Mike,
died and again in 2007 when Morgan, her disabled daughter,
died. (Tr. 139).
(27)
Lewis testified that it was typical for Parker to be drinking
while operating the boat, and she described an evening on the
boat where she felt fearful for her safety and that of the other
passengers, at least in part because of Parker's impairment.
(Tr. 136, 145) . Lewis was aware that Holmes had smoked marijuana
but had never seen her operate a boat, impaired or otherwise.
(Tr. 146, 134-135)

HE
Ray Davidson is Holmes' older brother. (Tr. 149). Their family
had a boat while they were growing up, but Davidson never saw
Holmes operate it or any other boat. (Tr. 151)
(29)
Cindy Crowder Harper is Holmes' sister. (Tr. 156) . Harper was
aware that after Holmes' daughter Morgan died, Holmes
participated in drinking alcohol and smoking marijuana.
(Tr. 160). Harper saw Holmes operate Parker's boat only

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sporadically, and Harper testified that Parker was "mostly
always drinking" while operating the boat. (Tr. 157, 164-165)
(30)
Megan Holmes ("Megan") is Cathy Holmes' daughter and the
administrator of her estate. (Tr. 176) . Megan gave very vivid
and completely credible testimony about what an excellent person
and outstanding mother Cathy Holmes was. (Tr. 191-196)
(31)
Holmes was 50 years old at the time of her death. (Tr. 173)
Prior to the accident, Megan smoked marijuana with her mother
but never on the boat. (Pr. 184) . She saw her mother drive the
boat a few times for short periods. (Tr. 180). Megan observed
Parker drinking regularly. (Pr. 177)
II. Conclusions of Law

(1)
Plaintiff brought two causes of action against Defendant Parker.
First, she brought an admiralty and maritime claim, within the
meaning of Rule 9(h) of the Federal Rules of Civil Procedure,
alleging negligence and wrongful death. (Compl. 9191 6, 32)
(2)
Jurisdiction of that admiralty claim is proper pursuant to 28
U.S.C. § 1333. (Compl. ¶ 5).
(3)
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Second, Plaintiff brought a state law claim for damages based on
the allegedly negligent operation of a motorboat owned by
Parker, pursuant to O.C.G.A. sections 51-1-21(b) and 51-1-22.
(Compi. ¶91 37-38)
(4)
Jurisdiction of that state law claim is proper pursuant to 28
U.S.C. § 1367. (Compl. ¶ 8).
(5)
The case proceeded to a nonjury trial on the basis of admiralty
jurisdiction. Both parties stipulated to the Court deciding both
causes of action: the negligence/wrongful death claim brought
under federal admiralty law and the state law claim for damages
based on the alleged negligent motorboat operation. (Tr. 235)

The Plaintiff bears the burden of proving her case by a
preponderance of the evidence.
(7)
Wrongful death actions based on negligence may be maintained
under maritime law. Thomas J. Schoenbaum, Admiralty and Mar. Law
§ 8-3 (4th ed. 2004)

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Ordinary diligence is that degree of care which is exercised by
the ordinarily prudent person under the same or similar
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circumstances. The absence of such diligence is negligence.
O.C.G.A. § 51-1-2.

ME
Georgia law provides that the owner of a watercraft shall be
liable for any tort caused by the operation of the watercraft,
in the same manner and to the same degree as the owner of an
automobile is liable for torts caused by operation of the
automobile. O.C.G.A. § 51-1-21(b).
(10)
The owner of a vessel shall be liable for any injury or damage
occasioned by the negligent operation of the vessel when the
vessel is being operated with the consent of the owner. Gunn

V.

Booker, 381 S.E.2d 286, 288-89 (Ga. 1989) (citing O.C.G.A. § 511-22) (noting that owner-consent statutes go further than the
family-purpose doctrine).
(11)
Under the doctrine of negligent entrustment, a party is liable
if he entrusts someone with an instrumentality, with knowledge
that the person to whom he has entrusted the instrumentality is
incompetent by reason of age, inexperience, physical or mental
condition or known habit of recklessness. Worthen v. Whitehead,
396 S.E.2d 595 (Ga. Ct. App. 1990) (citing Gunn, 381 S.E.2d at
290)
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(12)
A first-party negligent entrustment case is one in which the
plaintiff is the person who was negligently entrusted with the
instrumentality in question. In such cases, liability is often
cut off by the doctrine of comparative negligence. Zaldivar v.
Prickett, No. S14G1778, --- S.E.2d ----, 2015 WL 4067788, at *10
(Ga. July 6, 2015)
(13)
In Georgia, the law provides that a "plaintiff shall not be
entitled to receive any damages if the plaintiff is 50 percent
or more responsible for the injury or damages claimed." O.C.G.A.
§ 51-12-33 (g)
III. Mixed Findings of Fact and Conclusions of Law

(1)
The Court finds the testimony of Parker to be credible.
Although he certainly has an interest in the outcome of the
case, his demeanor on the stand, the nature of his recollections
and the consistency of his testimony all lead the Court to
conclude that he was not lying on the stand.
(2)
As a result, the Plaintiff is unable to meet her burden of
proving that Parker was negligent.
(3)
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Plaintiff did not prove that Parker was operating the boat at
the time of the accident. Hodge could not determine who was
driving. Parker has consistently and credibly maintained that
Holmes was driving. True, Parker drove the boat more than Holmes
did, and Parker drove the boat earlier in the morning, prior to
the accident. However, multiple witnesses were aware that Holmes
sometimes operated the boat.
(4)
Nor did Plaintiff prove that Parker was negligent in allowing
Holmes to take the helm. He credibly testified that she had
ample experience driving his boat, had ample familiarity with
the area, and had prior experience operating the boat at night
in the accident area.
(5)
Nor was it proven at trial that Holmes was impaired at the time
of the accident. Her medical records did not indicate the
presence of alcohol in her system. while Holmes' records were
positive for cocaine and hydrocodone, there was no evidence at
trial that Parker was aware of any drugs ingested by Holmes the
night before or morning of the accident. Nor was there any
evidence that Holmes was exhibiting signs of impairment prior to
the accident.

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Even accepting Hodge's conclusion that driver inattention, as
opposed to a line fouling the propeller, caused the boat to hit
the Jekyll jetty rocks, there is insufficient evidence that
Parker was driving at the time of the accident, and there is
insufficient evidence that Parker was negligent in allowing
Holmes to drive.
(7)
To the extent Plaintiff alleges that Holmes' own negligent
operation of the boat caused her injuries, and she is entitled
to recover damages from Parker because he owned the boat and
consented to her driving it, the doctrine of comparative
negligence bars such recovery. Holmes' own negligence would
overwhelm any other actor's alleged responsibility.
CONCLUSION

For the aforementioned reasons, the Court finds in favor of
Defendant Parker and against the Plaintiff.
SO ORDERED, this 10TH day of July, 2015.

L SA GODBEY 1qOOD, CHIEF JUDGE
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF GEORGIA
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