Harrison v. Newman
ORDER AND OPINION granting in part and denying in part (Dkt. No. 34 ) Defendant's First Motion for Summary Judgment. Defendant's first motion for summary judgment is GRANTED as to Plaintiff's request for punitive damages; the motion is otherwise DENIED. Defendant's second motion for summary judgment (Dkt. No. 35 ) is DENIED. AND IT IS SO ORDERED. Signed by Honorable Richard M Gergel on 9/28/2017.(sshe, )
IN THE UNITED STATES DISTRICT COURT FCCEiVL u c1x
DISTRICT OF SOUTH CAROLINA
2011 SEP 29
A 7= 55
ORDER AND OPINION
This matter is before the Court on Defendant's first motion for summary judgment, which
argues there is no evidence Defendant was negligent and no evidence supporting punitive
damages, and Defendant's second motion for summary judgment, which argues the negligence
complained of did not cause Plaintiffs transverse myelitis. For the reasons set forth below, the
Court grants in part and denies in part Defendant's first motion for summary judgment, and denies
Defendant's second motion for summary judgment.
On May 17, 2014, Plaintiff was injured during a "buddy" fishing trip while on a boat owned
and operated by Defendant. There is no allegation Plaintiff was a passenger for hire. Plaintiff
alleges the injury occurred when Defendant activated the electric windlass while Plaintiff was
assisting with the anchor, causing a crush injury to Plaintiffs right ring finger. Allegedly, the
anchor was stuck on the ocean floor. Plaintiff was manually pulling on the anchor line to free the
anchor while Defendant toggled the windlass on and off. When the anchor was freed, the anchor
line moved abruptly. As a result, Plaintiff lost his balance. As he attempted to brace himself, his
hand landed on the windlass and his finger was caught by the anchor line. To treat the injury,
Plaintiff received a TDAP vaccination and surgery to repair the finger. Plaintiff alleges that after
the initial treatment, his health drastically declined and that he was diagnosed with transverse
Plaintiff filed this action in admiralty on August 24, 2016, asserting a claim for negligence
and seeking actual and punitive damages. Defendant moved for summary judgment on July 31,
2017. Defendant filed two motions for summary judgment. In the first motion, Defendant argues
he was not negligent because there is no genuine dispute that the windlass was an open and obvious
danger. He also argues that there is no genuine dispute of material fact supporting a claim for
punitive damages. In the second motion, Defendant argues there is no evidence Defendant's
actions proximately caused Plaintiff's transverse myelitis.
Summary judgment is appropriate if a party "shows that there is no genuine dispute as to
any material fact" and that the movant is entitled to judgment as a matter oflaw. Fed. R. Civ. P.
56(a). In other words, summary judgment should be granted "only when it is clear that there is no
dispute concerning either the facts of the controversy or the inferences to be drawn from those
facts." Pulliam Inv. Co. v. Cameo Props., 810 F.2d 1282, 1286 (4th Cir. 1987). "In determining
whether a genuine issue has been raised, the court must construe all inferences and ambiguities in
favor of the nonmoving party." HealthSouth Rehab. Hosp. v. Am. Nat'! Red Cross, 101 F.3d 1005,
1008 (4th Cir. 1996). The party seeking summary judgment shoulders the initial burden of
demonstrating to the court that there is no genuine issue of material fact. Celotex Corp. v. Catrett,
477 U.S. 317,323 (1986).
Once the moving party has made this threshold demonstration, the non-moving party, to
survive the motion for summary judgment, may not rest on the allegations averred in his pleadings.
Id. at 324. Rather, the non-moving party must demonstrate that specific, material facts exist that
give rise to a genuine issue. Id. Under this standard, "[c]onclusory or speculative allegations do
not suffice, nor does a 'mere scintilla of evidence"' in support of the non-moving party's case.
Thompson v. Potomac Elec. Power Co., 312 F .3d 645, 649 (4th Cir. 2002) (quoting Phillips v.
CSXTransp., Inc., 190 F.3d 285,287 (4th Cir. 1999)).
Open and obvious danger
Personal injury negligence actions arising from navigation on the open ocean are within
the admiralty jurisdiction of this Court. See Schumacher v. Cooper, 850 F. Supp. 438,447 (D.S.C.
1994). Cases involving a tort committed on navigable water are governed by admiralty law. Byrd
v. Byrd, 657 F.2d 615, 617 (4th Cir. 1981). If there is no admiralty rule on point, admiralty law
looks to state law to supply the rule of decision. Id. at 617. "This rule is especially true in
negligence causes of action." Schumacher, 850 F. Supp. 447. In the present case, "[t]o recover
for his injuries, Plaintiff must prove that Defendant was negligent in the operation of his boat"specifically, the operation of the windlass.
"The elements of negligence that must be
established are a duty, a breach of that duty, proximate cause, and resulting injury." Id. Regarding
the element of duty, "[i]t is a settled principle of maritime law that a shipowner owes the duty of
exercising reasonable care towards those lawfully aboard the vessel who are not members of the
crew." Kermarec v. Compagnie Generale, 358 U.S. 625,630 (1959). "The duty of ordinary care
includes, of course, a duty to warn of harm that is reasonably foreseeable under the circumstances."
Bub/av. Bradshaw, 795 F.2d 349,353 (4th Cir. 1986).
Plaintiff proposes a different standard, pointing out that Defendant "admits and concedes
that it was Defendant's job, duty, and responsibility to return Plaintiff to shore safely." (Dkt. No.
41 at 6.) The legal standard a lay witness admits to in a deposition is neither controlling nor
persuasive. Federal admiralty law provides "a shipowner is not an insurer of its passengers'
safety." Monteleone v. Bahama Cruise Line, Inc., 838 F.2d 63, 65 (2d Cir. 1988). It was not
Defendant's duty to return Plaintiff to shore safely. It was Defendant's duty to exercise reasonable
care under the circumstances. Kermarec, 358 U.S. at 630.
Defendant's first motion for summary judgments asserts there is no evidence Defendant
breached the duty of ordinary care because the windlass was an open and obvious danger. Under
admiralty law, a vessel owner has a duty to warn passengers about only latent dangers. Marin v.
Myers, 665 F.2d 57, 58 (4th Cir. 1981). But even assuming, arguendo, that the windlass was in
fact an open and obvious danger, the crux of Plaintiffs allegations is not a failure to warn. Plaintiff
argues Defendant was negligent in activating the windlass while Plaintiff was holding the anchor
line or was in close proximity to the windlass.' (Dkt. No. 41 at 6.) That perhaps could be cast as
an argument Defendant failed to warn Plaintiff that he was about to activate the windlass. But
"[ o]rdinary tort concepts also apply in admiralty actions," Everett v. Gerhart, No. 3: 16 CV 3110,
2017 WL 3238156, at *2 (N.D. Ohio July 31, 2017), and it is an ordinary tort concept that an open
and obvious danger is a danger that was known or obvious to the injured party, Restatement
(Second) of Torts § 343A (1965). Plaintiff has admitted he knew the windlass was toggling on
and off while he was pulling the anchor line (see Dkt. No. 34-2 at 10), but Plaintiff has raised a
genuine issue of material fact regarding whether it was obvious that the anchor chain would
respond as it did when Plaintiff freed the anchor (see id at 11 ). The Court concludes that whether
Plaintiff argues he has asserted "various claims of negligence" against Defendant. That is true,
but Plaintiffs recitation of nineteen ways in which Defendant was purportedly negligent is mostly
duplicative or irrelevant boilerplate. (Dkt. No. 1112 (compare "b. In failing to properly and safely
operate the boat and raise the anchor" and "h. In failing to use proper seamanship at all times" with
"p. In failing to exercise due care to safely and properly operate the boat and raise the anchor" and
"n. In failing to use proper seamanship while attempting to raise the anchor"); id (alleging
Defendant somehow injured Plaintiff by "violating the applicable Rules of the Road," which are
regulations for preventing collisions at sea).) The crux of this matter is whether Defendant was
negligent in activating the windlass while Plaintiff was holding the anchor line or while Plaintiff
was near the windlass.
the windlass was an open and obvious danger is a factual question for trial, and therefore denies
Defendant's first motion for summary judgment as to liability.
Defendant argues Plaintiff has not alleged conduct warranting punitive damages.
admiralty, punitive damages are available only for conduct that constitutes "gross negligence" or
"willful, wanton, and reckless indifference for the rights of others." Exxon Shipping Co. v. Baker,
554 U.S. 471, 493 (2008); see also Kahumoku v. Titan Mar., LLC, 486 F. Supp. 2d 1144, 115253 (D. Haw. 2007). Under the general tort principles applicable in admiralty,
Recklessness may consist of either of two different types of conduct. In one the
actor knows, or has reason to know ... of facts which create a high degree of risk
of physical harm to another, and deliberately proceeds to act, or to fail to act, in
conscious disregard of, or indifference to, that risk. In the other the actor has such
knowledge, or reason to know, of the facts, but does not realize or appreciate the
high degree of risk involved, although a reasonable man in his position would do
Restatement (Second) of Torts§ 500 cmt. a (1965) ("Reckless Disregard of Safety Defined"). The
distinction between recklessness and gross negligence under general tort principles is less clear.
The Court therefore looks to South Carolina's common law of torts. See Royal Ins. Co. ofAm. v.
Sw. Marine, 194 F.3d 1009, 1015 (9th Cir. 1999) (looking to state law for elements of gross
negligence in admiralty case). Under South Carolina law, gross negligence is the "failure to
exercise slight care." Clyburn v. Sumter Cnty. Sch. Dist. # 17, 451 S.E.2d 885, 887 (S.C. 1994).
But under South Carolina law, punitive damages are not available for gross negligence unless the
negligence has "the nature of wantonness, willfulness or recklessness." Solanki v. Wal-Mart Store
No. 2806, 763 S.E.2d 615,619 (S.C. Ct. App. 2014). Thus, for the purposes of punitive damages,
South Carolina treats gross negligence as a synonym for recklessness. That rule accords with the
Supreme Court's discussion of punitive damages in admiralty in Exxon Shipping. See 554 U.S. at
In this case, Plaintiff testified that he was "prepared for [the anchor line] to come loose"
but "[w]hat I wasn't prepared for it to do was come loose so abruptly and for me to tumble back
and lose my balance." (Dkt. No. 34-2 at 12.) Plaintiff has no evidence Defendant had materially
more knowledge than Plaintiff did about how abruptly the line would bite when the anchor was
freed. Nor does Plaintiff have evidence that a reasonable person in Defendant's position would
have had knowledge about how abruptly the line would bite in those circumstances. Moreover,
Plaintiff admits Defendant warned him to be careful. (Id at 8, 16.) Again, the crux of this case is
Plaintiffs assertion that (regardless of warnings) it was unreasonable for Defendant to activate the
windlass while someone was standing on the bow to manipulate the anchor line. That is sufficient
to create a triable issue with regard to negligence but it is insufficient to show the "conscious
disregard" of a known risk or of a risk that a reasonable person in Defendant's position would have
known that is necessary for punitive damages. The Court therefore grants Defendant's first motion
to dismiss as to punitive damages.
Further, the Court agrees with Defendant that, in the absence of a claim for punitive
damages, discovery of Defendant's assets is not relevant to any pending issue. In the event
Plaintiff obtains a judgment in his favor, he may then seek discovery in aid of execution to the
extent permitted by law. See Fed. R. Civ. P. 69. Defendant seeks an order striking or sealing
certain portions of his deposition that purportedly disclose his assets, but Defendant has not
provided the Court a copy of all deposition pages he wishes to redact. The Court directs Defendant
to meet and confer with Plaintiff regarding proposed redactions from Defendant's deposition.
Defendant may thereafter file a motion to strike.
Causation of transverse myelitis
Plaintiff was given a TDAP vaccination was part of the standard treatment for his injury.
Plaintiff asserts an adverse reaction to that vaccination caused him to develop transverse myelitis,
a neurological disorder. Defendant argues Plaintiff cannot prove the TDAP vaccination caused
his transverse myelitis. Defendant also argues that transverse myelitis from of a TDAP vaccination
is not a reasonably foreseeable result of Defendant's conduct.
Defendant's challenge to Plaintiffs evidence on causation is insufficient under the
summary judgment standard. Plaintiffs treating neurologist, Dr. Craig Woodard, has testified that
it is probable the TDAP vaccination caused Plaintiffs transverse myelitis:
Q. So are you able to say to a degree of medical certainty that it was caused by the
Tdap shot or the vaccination as opposed to simply being idiopathic?
A. I'd have to say there's a 50 percent-at least 50 or better chance of that given
the temporal-the rapid temporal relationship, yes, the close relationship. If it was
a longer period of time then you would have to call that into question.
(Dkt. No. 35-8 at 11.) Plaintiffs retained expert, Dr. Marshall White, has opined, "It is my
opinion, to a reasonable degree of medical certainty, that Mr. Harrison did suffer acute transverse
myelitis ... caused by the tetanus shot." (Dkt. No. 42-3 at 3.) In other words, Plaintiff produces
treating physicians and medical experts who opine that Plaintiffs injury was specifically caused
by the standard treatment for Plaintiffs injury. Those opinions are sufficient to create a triable
issue of material fact.
Indeed, Defendant's arguments for summary judgment do not really attempt to meet the
summary judgment standard, but instead appear to be dry runs of trial arguments. Defendant
argues Plaintiffs expert opinions on causation are "equivocal" in that they concede the TDAP
vaccination might not have caused Plaintiffs transverse myelitis.
Defendant will have an
opportunity to impeach Plaintiffs witnesses at trial. Defendant argues "experts in the medical
community and evidence in this case confirm that, despite the temporal association, the TDAP
vaccine does not cause myelopathy." (Dkt. No. 35-1 at 8.) Plaintiff will have an opportunity to
present that evidence at trial. Moreover, the Court observes that in other cases, courts have found
that a TDAP vaccination did cause transverse myelitis, which would seem to make the statement
"the TDAP vaccine does not cause myelopathy" at least disputable. E.g., Raymo v. Sec '.Y ofHealth
& Human Servs., No. l l-0654V, 2014 WL 1092274, at *23 (Fed. Cl. Feb. 24, 2014); Helman v.
Secy of Health & Human Servs., No. 10-813V, 2012 WL 1607142, at *3 (Fed. Cl. Apr. 5, 2012).
Defendant also argues that transverse myelitis from of a TDAP vaccination is not a
reasonably foreseeable result of Defendant's conduct, and so Defendant's conduct was not a legal
cause of Plaintiffs transverse myelitis. That argument is without merit, assuming the TDAP
vaccination factually caused the transverse myelitis. The Court perceives no genuine dispute that
a tetanus shot is part of the standard of emergency care for a severed fingertip. "An actor whose
tortious conduct is a factual cause of harm to another is subject to liability for any enhanced harm
the other suffers due to the efforts of third persons to render aid reasonably required by the other's
injury, so long as the enhanced harm arises from a risk that inheres in the effort to render aid."
Restatement (Third) of Torts: Phys. & Emot. Harm § 35 (2010).
If Defendant is liable for
Plaintiffs severed fingertip, then Defendant is liable for any harms caused by medical treatment
reasonably required for Plaintiffs severed fingertip.
The Court therefore denies Defendant's second motion for summary judgment.
For the foregoing reasons, the Court GRANTS IN PART AND DENIES IN PART
Defendant's first motion for summary judgment (Dkt. No. 34). Defendant's first motion for
summary judgment is GRANTED as to Plaintiffs request for punitive damages; the motion is
Defendant's second motion for summary judgment (Dkt. No. 35) is
AND IT IS SO ORDERED.
United States District Court Judge
September 2S?, 201 7
Charleston, South Carolina
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