THE ESTATE OF RICKY D. WISEMAN et al v. UNITED STATES OF AMERICA et al
Filing
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ORDER granting United States' 64 Motion for Summary Judgment and denying Plaintiffs' 66 Motion for Summary Judgment. Signed by Judge Richard L. Young on 4/13/2012. (TMD)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
EVANSVILLE DIVISION
KATHLEEN WISEMAN, as personal
representative of the ESTATE OF RICKY
D. WISEMAN, ED ELDER, and
ELEANOR ELDER,
Plaintiffs,
vs.
UNITED STATES OF AMERICA,
Defendant.
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3:10-cv-111-RLY-WGH
ENTRY ON THE UNITED STATES’ MOTION FOR SUMMARY JUDGMENT
AND PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT
The Cannelton Locks and Dam (“Cannelton Dam” or “Dam”) is located three
miles upstream from Cannelton, Indiana. The Dam was designed, built, and is operated
by the United States Army Corps of Engineers. The Dam has 12 gates, anchored by 13
large piers. The water in and around the Dam is turbulent and dangerous; therefore, the
Army Corps marks the restricted areas with buoys, signs, a flashing red light, and a line
on the lock wall. (Defendant’s Ex. A, Deposition of Lockmaster Jeffrey O. Hill (“Hill
Dep.”) at 112-128).
Ricky D. Wiseman (“Wiseman”) and Ed Elder (“Elder”) were fishing buddies who
frequently fished the Ohio River near the Cannelton Dam. (Defendant’s Ex. B,
Deposition of Ed Elder (“Elder Dep.”) at 51-52). Elder testified that he was familiar with
the Dam’s gates, and that, when the gates were opened, the water flowing through could
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be turbulent. (Id. at 56, 59-61). Elder was familiar with the sign on the lock wall which
marked the area “Restricted No Boats Here To Dam,” and understood that boaters were
not supposed to go beyond the sign toward the Dam. (Id. at 68-69). On a few prior
occasions, Elder and Wiseman “went up close to the restricted area to look at the gates
and the water coming out.” (Id. at 82-83).
In the early morning hours of August 4, 2008, Wiseman and Elder anchored their
boat and began fishing near the end of the lock wall. (Id. at 81-82). About a half an hour
later, they lifted their anchors and ventured just inside the buoys, each marked “Danger
Dam,” and crossed the river as Elder watched the depth finder. (Id.). Elder has no further
recollection of the events of August 4, 2008. (Id. at 83-84).
Four other fishermen were fishing that day just outside the restricted area. (See
generally Defendant’s Ex. C, Police Report; Defendant’s Ex. D, Declaration of Shawn
Allen (“Allen Dec.”); Defendant’s Ex. E, Declaration of Michael Graw (“Graw Dec.”);
Defendant’s Ex. F, Declaration of Jeremy Wright (“Wright Dec.”)). Barton Zimmerman
(“Zimmerman”) and Shawn Allen (“Allen”) were in a boat located below Gate 3; Michael
Graw (“Graw”) and Jeremy Wright (“Wright”) were in a boat located below Gate 6.
(Police Report at 4). Allen, Graw, and Wright witnessed the Wiseman/Elder boat motor
along the lock wall and into the restricted area toward the Dam. (Allen Dec. ¶ 6; Graw
Dec. ¶ 7; Wright Dec. ¶ 5). It appeared to Allen that Wiseman and Elder were trying to
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tie-off or anchor right at the Dam face, between Gates 31 and 4. (Allen Dec. ¶ 6). Shortly
thereafter, the Wiseman/Elder boat was drawn into the boil at Gate 4. (Id.; Graw Dec. ¶
7; Wright Dec. ¶ 5). As Wiseman and Elder clung to the gate trunnion, Zimmerman and
Allen motored their boat toward the Dam, trying to stay closer to closed Gates 1-3, where
the water was calmer. (Allen Dec. ¶ 7; Wright Dec. ¶ 6; Graw Dec. ¶ 8). As Zimmerman
attempted to untie a line from the anchor to throw to Wiseman and Elder, Allen moved
toward Zimmerman to toss him the other (loose) end of the anchor line, but in the
process, Allen accidentally hit the kill-switch. (Allen Dec. ¶ 7). The engine stopped, and
the stern of the boat swung around toward Gate 4, sending Zimmerman into the water.
(Id.; Wright Dec. ¶ 6; Graw Dec. ¶ 8). Graw and Wright drove their boat toward the Dam
area to save Allen; Allen shouted to stay back and then fell into the water. (Allen Dec. ¶
7; Wright Dec. ¶ 6; Graw Dec. ¶ 8). The Zimmerman/Allen boat was drawn into the boil,
and disappeared. (Wright Dec. ¶ 6; Graw Dec. ¶ 8). Of the four men who fell in, only
Allen wore a life jacket. (Police Report at 4, 5; Allen Dec.¶ 7).
Graw and Wright attempted to call 911, but had no cell phone service. They
approached another boater, who made the call. (Graw Dec. ¶ 9; Wright Dec. ¶ 6)
Returning to the vicinity of the Dam, they found Allen alive below Gate 3 and pulled him
from the water. (Graw Dec. ¶ 9; Wright Dec. ¶ 6). Two other boaters, Gregory Kelly and
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When they approached that area, Gates 1-3 were closed and Gates 4-12 were open.
(Allen Dec. ¶ 3; Graw Dec. ¶ 5; Wright Dec. ¶ 5 (noting that Gate 3 was closed and Gate 4 was
open)).
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Ronda Allison, pulled Elder, unconscious and tangled in fishing rods, from the river.
(Police Report at 3). He was flown by helicopter to the University of Louisville Trauma
Center. (Id.). Wiseman and Zimmerman did not survive. (Id. at 5).
Kathleen Wiseman, as personal representative of the Estate of Ricky D. Wiseman,
Ed Elder, and Eleanor Elder, filed the present negligence action against the United States
under the Suits in Admiralty Act, 46 U.S.C. § 30901 et seq. (“SIAA”). The “SIAA
permits suits in admiralty against the United States ‘in cases where . . . if a private person
or property were involved, a proceeding in admiralty could be maintained . . . .’ That is,
it renders the United States liable to suit to the same extent that a private person would be
liable.” Pearce v. United States, 261 F.3d 643, 647 (6th Cir. 2001) (quoting Faust v.
South Carolina State Highway Dep’t, 721 F.2d 934, 938 n.2 (4th Cir. 1983)). A
negligence action under the SIAA consists of the following elements: (1) the existence of
a duty of care owed by the defendant to the plaintiff; (2) a breach of that duty; (3)
proximate causation; and (4) actual loss, injury, or damage. Id. at 647-48 (citing 1
Thomas J. Schoenbaum, Admiralty and Maritime Law § 5-2 at 170 (3d Ed. 2001)).
Plaintiffs and the United States cross-move for summary judgment. Summary
judgment is appropriate if the record “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). The court views the facts and all reasonable inferences in the light most favorable
to the nonmoving party. Hall v. Nalco Co., 534 F.3d 644, 646 (7th Cir. 2008). When a
summary judgment motion is submitted and supported by evidence as provided in Rule
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56(c), the nonmoving party may not rest on mere allegations or denials in its pleadings,
but “must set forth specific facts showing that there is a genuine issue for trial.”
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986) (internal quotation marks and
citation omitted). A genuine issue of material fact exists “if the evidence is such that a
reasonable jury could return a verdict for the nonmoving party.” Id. at 248.
Plaintiffs contend that “someone” opened the Dam Gate when Wiseman and Elder
were fishing at the Dam face, and that an alarm should have sounded before the Gate was
opened. This simple warning, Plaintiffs argue, would have saved Wiseman’s and
Zimmerman’s lives. Plaintiffs’ unsupported theory is contradicted by the overwhelming
evidence submitted by the United States, which unequivocally establishes that Gates 4-12
were open at 3:00 a.m., August 3, 2008 – 28 hours before Wiseman and Elder went
fishing the following morning. (See Defendant’s Ex. H, Declaration of Lock Operator
Janice Alexander ¶ 1; Defendant’s Ex. I, Operating Log; Defendant’s Ex. J, Readings
Report; Defendant’s Ex. K, Weather Data, Gage Readings and Operation of Dam;
Defendant’s Ex. G, Deposition of Lock Operator Mark Short at 27-28; Graw Dec. ¶ 5;
Wright Dec. ¶ 5; Docket # 65, manually filed video footage showing downstream flows).
Plaintiffs also attack the contemporaneous video footage from cameras 6 and 14 at
the Cannelton Dam (see Docket # 65), dated August 4, 2008, claiming that the images
depicting the Wiseman/Elder boat motoring into the restricted area are “false.” Plaintiffs’
speculative claim is belied by the admissible evidence. A summary of that evidence is as
follows: On the day of the accident, Philip Lukat (“Lukat”), the Critical Infrastructure
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Security Program Manager for the United States Army Corps of Engineers, Louisville
District, remotely accessed the Cannelton digital video recorder, reviewed the recordings,
and saved the footage that related to the accident. (See Defendant’s Ex. L, Declaration of
Philip Lukat (“Lukat Dec.”) ¶¶ 1, 3). The video footage was provided to the United
States’ expert, Douglas Lacey, BEK TEK LLC, who examined the video and
synchronized the views from cameras 6 and 14. (Defendant’s Ex. M, Declaration of
Douglas Lacey ¶ 4). He specifically testified that he “saw nothing to suggest that any
portions within the AVI (Audio Video Interleave) files had been removed.” (Id.). The
synchronized video was then given to Captain Brian Boyce (“Captain Boyce”), U.S.
Navy (Ret.), Virginia Beach, VA, a maritime accident reconstruction expert, for his
analysis. (See, generally, Defendant’s Ex. N, Declaration of Brian Boyce). In arriving at
his reconstruction and analysis of the accident, Captain Boyce reviewed the synchronized
video, interviewed witnesses, and visited the Dam. (Id.). Captain Boyce opined that
“[a]lthough the video was recorded at low resolution, the various boats and their
movements relative to the lock and dam structures can be readily discerned.” (Id.). There
is nothing in Captain Boyce’s report from which the court could infer that the video was
in any way tampered with or altered. The synchronized video is consistent with the
eyewitness testimony of Graw, Wright, and Allen.
In sum, the admissible evidence establishes that Wiseman and Elder drove their
boat, with the motor on, into the restricted area near Gates 3 and 4 of the Cannelton Dam.
Their boat was overtaken by the turbulent waters, sending both men into the Ohio River.
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Although the accident had tragic consequences, the only reasonable inference that may be
drawn from the admissible evidence of record – the videotape footage, the
contemporaneous eyewitness statements, and the persuasive collection of other evidence,
including the accident reconstruction – firmly establishes that the accident in question
was solely and proximately caused by Wiseman’s and Elder’s conduct, rather than any act
or omission by the United States. No reasonable jury could find otherwise. Accordingly,
the United States’ Motion for Summary Judgment (Docket # 64) is GRANTED, and the
Plaintiffs’ Motion for Summary Judgment (Docket # 66) is DENIED.
SO ORDERED this 13th day of April 2012.
__________________________________
RICHARD L. YOUNG, CHIEF JUDGE
United States District Court
Southern District of Indiana
Electronic Copies to:
Michelle T. Delemarre
UNITED STATES OF AMERICA
michelle.delemarre@usdoj.gov
Michael Anthony DiLauro
U.S. DEPARTMENT OF JUSTICE
michael.dilauro@usdoj.gov
Greg J. Freyberger
KAHN DEES DONOVAN & KAHN, LLP
gfreyberger@kddk.com
Norman E. Hay
NORMAN E. HAY ATTORNEY AT LAW
nehayattnyatlaw@yahoo.com
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Jill Z. Julian
UNITED STATES ATTORNEY'S OFFICE
jill.julian@usdoj.gov
Jessica Langston McClellan
U.S. DEPARTMENT OF JUSTICE
jessica.l.mcclellan@usdoj.gov
Benjamin Ryan Sweeney
U.S. DEPARTMENT OF JUSTICE
benjamin.r.sweeney@usdoj.gov
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