Rigsbee v. Honolulu, City & County of

Filing 99

ORDER GRANTING PLAINTIFF'S MOTION FOR DISPOSITIVE RULINGS UNDER FED. R. CIV. P. 16 AND 56(A) REGARDING THE AVAILABILITY OF HEDONIC DAMAGES (ECF No. 48 ) AND GRANTING PLAINTIFF'S MOTION FOR DISPOSITIVE RULINGS UNDER FED. R. CIV. P. 16 AND 56(a) REGARDING THE ESTATE'S SURVIVAL-CLAIM FOR FUTURE LOST EARNINGS (ECF No. 50 ) - Signed by JUDGE HELEN GILLMOR on 10/16/2018. (emt, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
CLIFFORD MCARTHUR RIGSBEE, as
Personal Representative of the
Estate of Clifford Meredith
Rigsbee, deceased,

)
)
)
)
)
Plaintiff,
)
)
vs.
)
)
CITY AND COUNTY OF HONOLULU,
)
)
Defendant.
)
)
___________________________________

Civ. No. 17-00532 HG-KSC

ORDER GRANTING PLAINTIFF’S MOTION FOR DISPOSITIVE RULINGS UNDER
FED. R. CIV. P. 16 AND 56(A) REGARDING THE AVAILABILITY OF
HEDONIC DAMAGES (ECF No. 48)
and
GRANTING PLAINTIFF’S MOTION FOR DISPOSITIVE RULINGS UNDER FED. R.
CIV. P. 16 AND 56(a) REGARDING THE ESTATE’S SURVIVAL-CLAIM FOR
FUTURE LOST EARNINGS (ECF No. 50)
On June 14, 2016, Clifford Meredith Rigsbee (“Decedent”) was
engaged in rescue watercraft training as part of his duties as a
firefighter with the Honolulu Fire Department.

The training was

conducted on the navigable waters within the State of Hawaii on
the southeast shore of Oahu, less than one marine league from
shore.
During the ocean training, Decedent suffered blunt force
injury to his head and neck.

He was brought ashore and

transported to Straub Medical Center.

Two days later, on June

16, 2014, he died as a result of his injuries.

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Plaintiff Clifford McArthur Rigsbee, as the personal
representative of the Estate of the Decedent, filed a First
Amended Complaint against the City and County of Honolulu.

The

First Amended Complaint asserts claims for negligence and seeks
damages on behalf of the Estate as a result of the Decedent’s
death.
Plaintiff has filed two motions.

The motions seek rulings

concerning the types of damages available in this action.
First, Plaintiff seeks damages pursuant to general maritime
law for the future lifetime loss of the Decedent’s earnings.
Second, Plaintiff seeks to supplement the damages available
to the Estate pursuant to general maritime law with hedonic
damages pursuant to Hawaii state law.
Defendant City and County of Honolulu takes no position on
either of Plaintiff’s Motions.
Plaintiff’s Motions (ECF Nos. 48, 50) are GRANTED.
The Estate of Clifford Meredith Rigsbee may seek to recover
damages for the Decedent’s lost future earnings.
The Estate may also seek to recover hedonic damages pursuant
to Hawaii state law.
PROCEDURAL HISTORY
On October 23, 2017, Plaintiff Clifford McArthur Rigsbee, as
Personal Representative of the Estate of Clifford Meredith
Rigsbee, deceased, filed a Complaint.

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(ECF No. 1).

On January 29, 2018, Plaintiff filed PLAINTIFF’S MOTION TO
STRIKE DEFENDANT’S SEVENTH AFFIRMATIVE DEFENSE (FOR ASSUMPTION OF
RISK). (ECF No. 27).
On February 14, 2018, the Court issued a STIPULATION TO
DISMISS WITH PREJUDICE THE SEVENTH AFFIRMATIVE DEFENSE OF
DEFENDANT CITY AND COUNTY OF HONOLULU’S ANSWER TO COMPLAINT,
FILED ON DECEMBER 18, 2017 AND ORDER.

(ECF No. 30).

On May 17, 2018, Plaintiff filed the FIRST AMENDED
COMPLAINT.

(ECF No. 36).

On July 18, 2018, Plaintiff filed PLAINTIFF’S MOTION FOR
DISPOSITIVE RULINGS UNDER FED. R. CIV. P. 16 AND 56(a) REGARDING
THE AVAILABILITY OF HEDONIC DAMAGES and a Concise Statement of
Facts in Support.

(ECF Nos. 48 and 49).

On the same date, Plaintiff filed PLAINTIFF’S MOTION FOR
DISPOSITIVE RULINGS UNDER FED. R. CIV. P. 16 AND 56(a) REGARDING
THE ESTATE’S SURVIVAL-CLAIM FOR FUTURE LOST EARNINGS and a
Concise Statement of Facts in Support. (ECF Nos. 50 and 51).
On August 7, 2018, Defendant filed DEFENDANT CITY AND COUNTY
OF HONOLULU’S STATEMENT OF NO POSITION TO PLAINTIFF’S MOTION FOR
DISPOSITIVE RULINGS UNDER FED. R. CIV. P. 16 AND 56(a) REGARDING
THE ESTATE’S SURVIVAL-CLAIM FOR FUTURE LOST EARNINGS.

(ECF No.

57).
On the same date, Defendant filed DEFENDANT CITY AND COUNTY
OF HONOLULU’S STATEMENT OF NO POSITION TO PLAINTIFF’S MOTION FOR
DISPOSITIVE RULINGS UNDER FED. R. CIV. P. 16 AND 56(a) REGARDING
THE AVAILABILITY OF HEDONIC DAMAGES.
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(ECF No. 58).

On September 7, 2018, the Court elected to decide the
Motions without a hearing pursuant to District of Hawaii Local
Rule 7.2(d).

(ECF No. 68).
BACKGROUND

The Parties do not dispute the following facts:
Clifford Meredith Rigsbee (“Decedent”) was employed as a
firefighter with the Honolulu Fire Department.

(First Amended

Complaint at ¶ 7, attached as Ex. A to Pla.’s Concise Statement
of Facts, ECF No. 49-2; Amended Answer at ¶ 3, attached as Ex. B
to Pla.’s Motion, ECF No. 49-3).
On June 14, 2016, Decedent was assigned to rescue watercraft
training on the southeast shore of Oahu, near Kaimana Beach.
(Id.)
The rescue watercraft training occurred in the navigable
waters within the State of Hawaii, less than one marine league
from the Oahu shore.

(FAC at ¶ 4, ECF No. 49-2; Amended Answer

at ¶ 3, ECF No. 49-3).
During the training, Decedent was laying on a board being
pulled by a jet ski.
at ¶ 3, ECF No. 49-3).

(FAC at ¶ 11, ECF No. 49-2; Amended Answer
At some point during the training,

Decedent sustained blunt force injuries to his head and neck.
(Deposition of Christopher Happy, M.D., at p. 52, (“Dr. Happy
Depo.”) attached as Ex. C to Pla.’s CSF, ECF No. 49-4).

The

driver of the jet ski observed the Decedent floating faced-down

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in the water.

(Statement of Fire Fighter Matthew Martin,

attached as Ex. E to Pla.’s CSF, ECF No. 49-6).

Decedent was

brought in from the water and transported to Straub Medical
Center.

(Discharge Summary from Straub Clinic and Hospital,

attached as Ex. D, ECF No. 49-5).
The Decedent died two days later, on June 16, 2016, as a
result of the blunt force injuries to his head and neck.

(Id.;

Dr. Happy Depo. at p. 52, Ex. C, ECF No. 49-4).
STANDARD OF REVIEW
Summary judgment is appropriate when there is no genuine
issue as to any material fact and the moving party is entitled to
judgment as a matter of law.

Fed. R. Civ. P. 56(c).

To defeat

summary judgment there must be sufficient evidence that a
reasonable jury could return a verdict for the nonmoving party.
Nidds v. Schindler Elevator Corp., 113 F.3d 912, 916 (9th Cir.
1997).
The moving party has the initial burden of “identifying for
the court the portions of the materials on file that it believes
demonstrate the absence of any genuine issue of material fact.”
T.W. Elec. Serv., Inc. v. Pacific Elec. Contractors Ass'n, 809
F.2d 626, 630 (9th Cir. 1987) (citing Celotex Corp. v. Catrett,
477 U.S. 317, 323 (1986)).

The moving party, however, has no

burden to negate or disprove matters on which the opponent will
have the burden of proof at trial.

The moving party need not

produce any evidence at all on matters for which it does not have
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the burden of proof.

Celotex, 477 U.S. at 325.

The moving party

must show, however, that there is no genuine issue of material
fact and that he or she is entitled to judgment as a matter of
law.

That burden is met by pointing out to the district court

that there is an absence of evidence to support the non-moving
party’s case.

Id.

If the moving party meets its burden, then the opposing
party may not defeat a motion for summary judgment in the absence
of probative evidence tending to support its legal theory.
Commodity Futures Trading Comm'n v. Savage, 611 F.2d 270, 282
(9th Cir. 1979).

The opposing party must present admissible

evidence showing that there is a genuine issue for trial. Fed. R.
Civ. P. 56(e); Brinson v. Linda Rose Joint Venture, 53 F.3d 1044,
1049 (9th Cir. 1995).

“If the evidence is merely colorable, or

is not significantly probative, summary judgment may be granted.”
Nidds, 113 F.3d at 916 (quoting Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 249-50 (1986)).
The court views the facts in the light most favorable to the
non-moving party.

State Farm Fire & Casualty Co. v. Martin, 872

F.2d 319, 320 (9th Cir. 1989).

Opposition evidence may consist

of declarations, admissions, evidence obtained through discovery,
and matters judicially noticed.
477 U.S. at 324.

Fed. R. Civ. P. 56(c); Celotex,

The opposing party cannot, however, stand on

its pleadings or simply assert that it will be able to discredit
the movant's evidence at trial.
Elec. Serv., 809 F.2d at 630.

Fed. R. Civ. P. 56(e); T.W.
The opposing party cannot rest on
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mere allegations or denials.

Fed. R. Civ. P. 56(e); Gasaway v.

Northwestern Mut. Life Ins. Co., 26 F.3d 957, 959-60 (9th Cir.
1994).

When the non-moving party relies only on its own

affidavits to oppose summary judgment, it cannot rely on
conclusory allegations unsupported by factual data to create an
issue of material fact.

Hansen v. United States, 7 F.3d 137, 138

(9th Cir. 1993); see also National Steel Corp. v. Golden Eagle
Ins. Co., 121 F.3d 496, 502 (9th Cir. 1997).
ANALYSIS
I.

There Is Admiralty Tort Jurisdiction Over The Estate’s
Negligence Claims

A party seeking to invoke federal admiralty jurisdiction
pursuant to 28 U.S.C. § 1333(1) for a tort claim must satisfy two
conditions.
requirement.

First, admiralty tort jurisdiction has a locality
Grubart v. Great Lakes Dredge & Dock Co., 513 U.S.

527, 534 (1995).

The plaintiff must demonstrate that the tort

occurred on navigable water or demonstrate that the injury
suffered on land was caused by a vessel on navigable water.

Id.

Second, admiralty tort jurisdiction requires that the tort
be connected with traditional maritime activity.
A.

Id.

Locality

The test for locality is whether the tort occurred on
navigable water or whether injury suffered on land was caused by
a vessel on navigable water.
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In this case, the test for locality is satisfied.

There is

no dispute that the accident involving the Decedent occurred in
the navigable ocean waters off the coast of Oahu.
B.

Nexus To Marine Activity

The second issue for deciding admiralty tort jurisdiction
requires that the case be connected to a maritime activity.

The

Court applies the “nexus test,” which involves two parts:
(1)

whether the incident has a “potentially disruptive
impact on maritime commerce,” and;

(2)

whether the general character of the activity giving
rise to the incident bears a substantial relationship
to traditional maritime activity.

Grubart, 513 U.S. at 534; Sisson v. Ruby, 497 U.S. 358, 36263 (1990).
1.

Disruption Of Maritime Commerce

The disruption issue does not turn on whether the particular
accident actually disrupted commercial activity, but whether the
incident had a potentially disruptive effect.

In re Mission Bay

Jet Sports, LLC, 570 F.3d 1124, 1128-29 (9th Cir. 2009).
The Ninth Circuit Court of Appeals has explained that there
is a potentially disruptive impact when a passenger is injured
within navigable waters.

Id.

The appellate court stated that

such an accident could cause the vessel to stop to conduct a
search and rescue operation or call for assistance from others.

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It may also involve other vessels that could ensnarl maritime
traffic.

Id.

Here, the accident is the sort that disrupts maritime
commerce.

The accident occurred within navigable waters.

It had

the potential to interfere with commercial activity as the
Decedent had to be pulled from the water.

It was necessary to

have a rescue vessel dispatched to the scene here.
2.

Id.

Substantial Relationship To Traditional Maritime
Activity

The case also has a substantial relationship to traditional
maritime activity.

Accidents involving jet skis are

substantially related to maritime activities.

Jet skis are

vessels that have traditionally carried passengers across
navigable waters.

In re Mission Bay Jet Sports, LLC, 570 F.3d at

1129 (finding admiralty jurisdiction over tort claims by two
people who were seriously injured when thrown off jet skis).
There is admiralty jurisdiction over Plaintiff’s tort
claims.

II.

Grubart, 513 U.S. at 534.

The Estate May Seek Survival Action Remedies Pursuant to
General Maritime Law
A.

General Maritime Law Applies To Plaintiff’s Claims

There are two primary sources of federal maritime law:
general maritime law and statutory law.

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Plaintiff’s claims arise pursuant to general maritime law,
not a federal statute.

Congress has enacted statutes to cover

remedies for injuries relating to seafarers, for injuries
occurring on the high seas, and for injuries to those involved in
maritime trade.

See The Jones Act, 46 U.S.C. § 30104; The Death

On The High Seas Act, 46 U.S.C. § 30301; The Longshore & Harbor
Workers’ Compensation Act, 33 U.S.C. § 903.
Federal statutory law does not provide the basis for
injuries occurring to nonseafarers who are injured within a
State’s territorial waters.

In 1970, the United States Supreme

Court created a general maritime law remedy for tort claims
involving a nonseafarer who sustains injuries in state
territorial waters.

Moragne v. States Marine Lines, Inc., 398

U.S. 375, 393, 409 (1970).
The Parties agree that the Decedent was a “nonseafarer.”
The Decedent was a Honolulu firefighter.

He was not a seaman,

longshore worker, or person otherwise engaged in a maritime trade
who would be subject to a federal maritime statute.

Yamaha Motor

Corp., U.S.A. v. Calhoun, 516 U.S. 199, 208 (1996).
The Parties also agree that the Decedent’s injuries occurred
in Hawaii state territorial waters, less than one marine league
from the Oahu shore.

(Amended Answer at ¶ 3, ECF No. 49-3).

Plaintiff’s claims are subject to general maritime law.

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B.

The Estate May Seek Recovery Of Decedent’s Lost Future
Earnings

Plaintiff brings a survival action on behalf of Decedent’s
estate.

The survival action pursuant to general maritime law

allows for the recovery of damages for any loss or injury that
was sustained by the decedent himself.

Davis v. Bender

Shipbuilding and Repair Co., Inc., 27 F.3d 426, 429 (9th Cir.
1994).
The Ninth Circuit Court of Appeals addressed the types of
damages available in a survival action pursuant to general
maritime law in Evich v. Morris, 819 F.2d 256, 258 (9th Cir.
1987) (Evich II).
In Evich II, the appellate court explained that pre-death
pain and suffering is compensable in a survival action brought by
the decedent’s estate.

Id.

The Ninth Circuit Court of Appeals found that damages for
future economic loss are available in general maritime law
survival actions in addition to pre-death pain and suffering.
Id.

The appellate court stated that recovery for the decedent’s

future economic loss is available in such cases, because it
“better becomes the humane and liberal character of proceedings
in admiralty.”

(Id. quoting Moragne, 398 U.S. at 387) (internal

quotation marks and citations omitted).
Evich II was overruled, in part, in Miles v. Apex Marine
Corp., 498 U.S. 19, 33 (1990).

Miles limited recovery in cases

subject to the Jones Act or the Death On The High Seas Act.
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Neither the Jones Act nor the Death On The High Seas Act
applies in this case.

Evich II remains good law.

The Ninth

Circuit Court of Appeals has upheld the holding in Evich II in
general maritime survival actions as recently as 2018.

Batterton

v. Dutra Group, 880 F.3d 1089, 1095-96 (9th Cir. 2018);
see Sutton v. Earles, 26 F.3d 903, 919-20 (9th Cir. 1994)
(upholding Evich II following the decision in Miles).
The holding in Evich II allowing recovery of future earnings
is applicable to this case.

See Hambrook v. Smith, Civ. No. 14-

132 ACK-KJM, 2016 WL 4084110, *4-*5 (D. Haw. Aug. 1, 2016)
(applying Evich II and permitting evidence for loss of future
earnings in a general maritime law case where it does not result
in double recovery).
The Estate of Clifford Meredith Rigsbee is permitted to seek
recovery of the lost future earnings of the Decedent.
PLAINTIFF’S MOTION FOR DISPOSITIVE RULINGS UNDER FED. R.
CIV. P. 16 AND 56(a) REGARDING THE ESTATE’S SURVIVAL-CLAIM FOR
FUTURE LOST EARNINGS (ECF No. 50) is GRANTED.

III. The Estate May Seek To Supplement General Maritime Law
Damages With Hedonic Damages Pursuant To Hawaii State Law

In Yamaha Motor Corp., U.S.A. v. Calhoun, 516 U.S. 199, 206
(1996), the United States Supreme Court held that state remedies
remain applicable in maritime survival actions in which no
federal statute specifies the appropriate relief.

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See 17A

Moore’s Federal Practice § 124.46 n.15 (3d ed. 2009) (state law
applies if not in conflict with general maritime law).
State law may be applied in general maritime law cases to
fill gaps or provide relief that is otherwise unavailable under
admiralty law.

Matheny v. Tennessee Valley Auth., 503 F.Supp.2d

917, 922 (M.D. Tenn. 2007); In re Air Crash at Belle Harbor, New
York, No. MDL 1448, 2006 WL 1288298, at *15 (S.D.N.Y. May 9,
2006) (“Subsequent federal courts, consistent with the rationale
of Yamaha, have allowed more generous state law to supplement the
Moragne death action and rejected arguments by defendants that
Yamaha requires application of state law even when that law is
narrower than the Moragne cause of action.”).
Plaintiff seeks to supplement the remedies available
pursuant to general maritime law with Hawaii State law.
Specifically, Plaintiff seeks hedonic damages pursuant to Hawaii
State law.
Hedonic damages are damages for the loss of enjoyment of
life, or for the value of life itself, as measured separately
from the economic productive value that the injured or deceased
person would have had.
(Haw. 1994).

Montalvo v. Lapez, 884 P.2d 345, 347 n.2

Recovery of hedonic damages is provided by statute

in Hawaii Revised Statutes § 663-8.5(a).
The question of whether Hawaii state law hedonic damages may
supplement the remedies available in a general maritime law tort
action was recently addressed in this District in Hambrook v.

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Smith, Civ. No. 14-00132 ACK-KJM, 2016 WL 4408991, *22 (D. Haw.
Aug. 17, 2016).
In Hambrook, the District of Hawaii Court reviewed the
Hawaii statute that permits hedonistic damages in tort actions.
The District Court found no conflict between the Hawaii state
statute and general maritime law.

Id. at *40-*41.

The District

Court found that a decedent’s recovery for loss of enjoyment of
life is not limited by death and may be considered separately
from pain and suffering.

Id. at *41 (citing Polm v. Dep’t of

Human Servs., 2014 WL 7390879, at *20-*21 (Haw. App. Ct. Dec. 30,
2014).
The District Court for the District of Hawaii awarded
hedonic damages pursuant to Hawaii state law in addition to the
damages pursuant to general maritime law.

Hambrook, 2016 WL

4409881, *41.
The Estate of Clifford Meredith Rigsbee is permitted to seek
hedonistic damages pursuant to Haw. Rev. Stat. § 663-8.5(a).
PLAINTIFF’S MOTION FOR DISPOSITIVE RULINGS UNDER FED. R.
CIV. P. 16 AND 56(a) REGARDING THE AVAILABILITY OF HEDONIC
DAMAGES (ECF No. 48) is GRANTED.

CONCLUSION

PLAINTIFF’S MOTION FOR DISPOSITIVE RULINGS UNDER FED. R.
CIV. P. 16 AND 56(a) REGARDING THE ESTATE’S SURVIVAL-CLAIM FOR
FUTURE LOST EARNINGS (ECF No. 50) is GRANTED.

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PLAINTIFF’S MOTION FOR DISPOSITIVE RULINGS UNDER FED. R.
CIV. P. 16 AND 56(a) REGARDING THE AVAILABILITY OF HEDONIC
DAMAGES (ECF No. 48) is GRANTED.
IT IS SO ORDERED.
DATED:

October 16, 2018, Honolulu, Hawaii.

Clifford McArthur Rigsbee as Personal Representative of the
Estate of Clifford Meredith Rigsbee, deceased v. City and County
of Honolulu; Civ. No. 17-00532HG-KSC; ORDER GRANTING PLAINTIFF’S
MOTION FOR DISPOSITIVE RULINGS UNDER FED. R. CIV. P. 16 AND 56(A)
REGARDING THE AVAILABILITY OF HEDONIC DAMAGES (ECF No. 48) and
GRANTING PLAINTIFF’S MOTION FOR DISPOSITIVE RULINGS UNDER FED. R.
CIV. P. 16 AND 56(a) REGARDING THE ESTATE’S SURVIVAL-CLAIM FOR
FUTURE LOST EARNINGS (ECF No. 50)
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