Glover v. Hryniewich et al

Filing 60

ORDER denying 22 Motion for Judgment on the Pleadings; denying 24 Motion for Judgment on the Pleadings. Signed by District Judge Henry C. Morgan, Jr on 04/16/18. (jjon)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF VIRGINIA

Norfolk Division

APR 1 6 2018

!

DAVID 1. GLOVER,
Plaintiff,
Civil Action No. 2;17cvl09

V.

RICHARD J. HRYNIEWICH
and

THE CITY OF NORFOLK, VIRGINIA,
Defendants.

TIMOTHY B. PRIDEMORE,
Plaintiff,
Civil Action No.2:17cvll0

V.

RICHARD J. HRYNIEWICH
and

THE CITY OF NORFOLK, VIRGINIA,
Defendants.

OPINION & ORDER

This matter is before the Court pursuant to four (4) Motions: (1) Defendant City of

Norfolk's ("City's") Motion for Judgment on the Pleadings in Glover v. Hrvniewich. et al.. No.
2:17cvl09, Doc. 22; (2) the City's Motion for Judgment on the Pleadings in Pridemore v.
Hrvniewich. et al.. No. 2:17cvll0, Doc. 22; (3) Defendant Richard J. Hryniewich's

("Hryniewich's") Motion for Judgment on the Pleadings in Glover v. Hrvniewich. et al.. No.
2:17cvl09, Doc. 24; and (4) Hryniewich's Motion for Judgment on the Pleadings in Pridemore
v. Hrvniewich. et al.. No. 2:17cvlI0, Doc. 24.
1

Glover. No. 2:17cvl09, and Pridemore. No. 2:17cvl10, are consolidated for the purposes
of discovery. Both of the City's Motions, although filed in the two (2) separate cases, are
identical. The same can be said of the two (2) Motions filed by Hryniewich. Given this

connection and for clarity's sake, all references and citations to pleadings herein will be made to
Glover. No. 2:17cvl09, unless otherwise specified.
For the reasons stated below, the Court DENIES all four (4) Motions.
1.

A.

BACKGROUND

Factual Allegations*
On January 21, 2014, the City issued a purchase order to Willard Marine Services, Inc.

("Willard") "for the modification and repair of the City's 27 foot aluminum hull SAFE Boat

vessel." Doc. 1 ("Compl.") ^ 6. On February 6, 2014, the City issued an additional purchase

order to Willard "for the repair and modification of the vessel's steering system." Id The City
took redelivery of the SAFE Boat on March 21, 2014. Id H 7. Hryniewich, employed by the
City as a police officer, was present for the vessel's redelivery on behalf of the City. Id. ^ 8.

Willard's employees Glover and Pridemore, who are the Plaintiffs in these actions, were also
present for the vessel's redelivery, as were two (2) City of Norfolk employees. Id, The
individuals present for the redelivery proceeded to conduct a sea trial of the vessel. Id

8-10.

"During the course of the sea trial, Hryniewich identified what he perceived to be
steering and handling issues with the vessel and expressed those concerns to the other City of

' "The standard of review for Rule 12(c) motions is the sameas that [for a motion to dismiss] under Rule 12(b)(6)."
Draeer v. PLIVA USA. Inc.. 741 F.3d 470, 474 (4th Cir. 2014). "In considering a motion to dismiss, (the Court]
accept[s] as true all well-pleaded allegations and view[s] the complaint in the light most favorable to the plaintiff."
Venkatraman v. REl Svs.. Inc.. 417 F.3d 418, 420 (4th Cir. 2005) (citing Mvlan Labs.. Inc. v. Matkari. 7 F.3d 1130,
1134 (4th Cir.1993)). The Court cautions, however, that the facts alleged by Plaintiff are recited here for the limited

purpose of deciding the instant Motions for Judgment on the Pleadings. The recited facts are not factual fmdings
upon which the parties may rely for any other issue in this proceeding.

Norfolk employees on board." Id. ^ 10. While maneuvering the SAFE Boat, Hryniewich pushed
"the vessel to high speed and then, without slowing down or warning other than a 'hold on' with

insufficient notice, recklessly turned the wheel hard to starboard causing the vessel to capsize."
Id ^ 11. Plaintiffs were severely injured and taken to a local hospital. Id T] 12. Plaintiffs
suffered temporary and permanent physical injuries, considerable medical expenses, and lost
wages.

Id

Plaintiffs contend that their injuries were caused by the "negligence, gross

negligence and recklessness" of Hryniewich in "attempting to make a severe turn at an unsafe
speed." Id TITI 14, 16. Plaintiffs further allege that the City is liable for "failing to provide a

competent operator of the vessel," id If 14, and that, "[a]t the time of the inception of the voyage

... the City of Norfolk knew or should have known that Hryniewich was not competent to

operate the vessel, thereby rendering it unseaworthy within the City of Norfolk's privity and
knowledge." Idll5.
B.

Procedural History

On March 21, 2016, Glover and Pridemore each filed a complaint against the City and

Hryniewich (collectively, "Defendants") in Norfolk Circuit Court ("State Actions"). Doc. 6, Ex.
1. Defendants responded with a Plea in Bar in both of the State Actions and Plaintiffs each filed
a Motion to Strike Defendants' Plea in Bar. Id at 2. On December 16, 2016, the Norfolk Circuit
Court denied Plaintiffs' Motions to Strike. Doc. 7 at 3.

On February 23, 2017, Plaintiffs filed the instant Complaints ("Federal Actions").
Glover v. Hrvniewich et al.. No. 2:17cvl09, Doc. 1; Pridemore v. Hrvniewich. et al. No.

2:I7cvllO, Doc. 1.

On March 6, 2017, the Court ordered that the Federal Actions be

consolidated for discovery purposes. Doc. 4 at 1. On April 21,2017, Defendants filed a Motion
to Dismiss or Stay Pursuant to Rule 12(b)(1) ("Motion to Dismiss"). Doc. 5. On August 4,
3

2017, the Court granted the Motion to Dismiss in part, and stayed the Federal Actions pending a
Norfolk Circuit Court ruling regarding whether sovereign immunity was available to Defendants
in the State Actions. Doc. 11.

By letter opinion dated August 18, 2017, the Norfolk Circuit Court found that the City
was engaged in a governmental function at the time of the alleged negligent incident, and
therefore held that the City was entitled to sovereign immunity. Sw Doc. 12, Ex. A at 1. The
Norfolk Circuit Court further held that Hryniewich was entitled to sovereign immunity as to
Plaintiffs' simple negligence claims, but not as to their gross negligence claims. Id Given the

Norfolk Circuit Court's finding of sovereign immunity, this Court found that abstention was
inappropriate, and the Court subsequently denied Defendants' Motion to Dismiss.
Defendants filed the instant Motions on October 18, 2017. Docs. 22, 24.

Defendants

then filed Third-Party Complaints against Willard and Safe Boats International, LLC ("Safe

Boats") on October 31, 2017. Docs. 26, 27, 28, 29. Plaintiffs responded in opposition to the
Motions on November 1, 2017. Docs. 34, 35. Defendants replied in further support of the
Motions on November 7, 2017. Docs. 38, 39. Defendants filed a Request for Hearing on the
Motions on November 8, 2017. Doc. 40.

On March 22, 2018, Defendants filed a Notice informing the Court that two (2) issues
have been certified for interlocutory appeal to the Supreme Court of Virginia in the State
Actions: (1) the Norfolk Circuit Court's granting of sovereign immunity for the City in a general

maritime law case, and (2) that court's denial of general maritime law qualified immunity to
Hryniewich. Doc. 56.
II.

LEGAL STANDARDS

"The standard of review for Rule 12(c) motions is the same as that [for a motion to
4

dismiss] under Rule 12(b)(6)." Draeer v. PLIVA USA. Inc.. 741 F.3d 470,474 (4th Cir. 2014).
A motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) tests the sufficiency
of a complaint; it does not resolve contests surrounding the facts, the merits of a claim, or the
applicability of defenses. Republican Party of N.C. v. Martin. 980 F.2d 943, 952 (4th Cir. 1992).
"To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as
true, to 'state a claim to relief that is plausible on its face.'" Ashcroft v. lobal. 556 U.S. 662, 678
(2009) (citing Bell Atl. Corp. v. Twomblv. 550 U.S. 544, 570 (2007)); s^ also Venkatraman.
417 F.3d at 420 ("In considering a motion to dismiss, we accept as true all well-pleaded

allegations and view the complaint in the light most favorable to the plaintiff.") (citing Mvlan
Labs.. 7 F.3d at 1134). A complaint establishes facial plausibility "once the factual content of a

complaint allows the court to draw the reasonable inference that the defendant is liable for the
misconduct alleged." Nemet Chevrolet. Ltd. v. Consumeraffairs.com. Inc.. 591 F.3d 250, 256

(4th Cir. 2009) (quoting labal. 556 U.S. at 678). Therefore, the complaint need not include

"detailed factual allegations" as long as it pleads "sufficient facts to allow a court, drawing on

judicial experience and common sense, to infer more than the mere possibility of misconduct."
Id Although a court must accept as true all well-pleaded factual allegations, the same is not true

for legal conclusions. "Threadbare recitals of the elements of a cause of action, supported by
mere conclusory statements, do not suffice." Iqbal. 556 U.S. at 678.

In deciding the motion, a court may consider the facts alleged on the face of the

complaint as well as "'matters of public record, orders, items appearing in the record of the case,
and exhibits attached to the complaint.'" Moore v. Flaestar Bank. 6 F. Supp. 2d 496, 500 (E.D.

Va. 1997) (quoting 5A Charles A. Wright & Arthur R. Miller, Federal Practice & Procedure
§ 1357 (1990)).

The court may look to documents attached to the complaint and those
5

incorporated by reference without converting a Rule 12(b)(6) motion into a Rule 56 motion for

summary judgment. ^

Pueschel v. United States. 369 F.3d 345, 353 n.3 (4th Cir. 2004)

(citations omitted).
III.

A.

ANALYSIS

City's Motions

The City argues that it is entitled to judgment on the pleadings for three (3) reasons.
First, the City argues that Plaintiffs have alleged that its vessel was unseaworthy, and, "because
[Plaintiffs] have brought their suit under 33 U.S.C. § 905(b), an action for unseaworthiness is not
available to them." Doc. 23 at 1. Second, the City argues that it is immune to Plaintiffs' claims
"because the Commonwealth of Virginia's jurisdictional immunity extends to the City under the

circumstances presented here and because ... the City was acting as an arm of the state at the
time of the Plaintiffs' injuries." Id at 1-2. Third, the City argues that "Plaintiffs have failed to

plead a violation of any of the duties that the City owed to them." Id at 2. The Court rejects
these arguments and DENIES the City's Motions.
1.

Plaintiffs' claims are permissible maritime tort claims.

Section 905(b) provides that "[t]he liability of the vessel under this subsection shall not
be based upon the warranty of seaworthiness or a breach thereof at the time the injury occurred."
33 U.S.C. § 905(b). The City claims that "[t]he Complaints assert a cause of action against the
City for the alleged unseaworthiness of the Vessel," and thus that Plaintiffs—harbor workers
otherwise entitled to recover under § 905(b)—have brought a claim which is barred under the
statute. Doc. 23 at 5.

Plaintiffs argue that the Complaints do not charge a cause of action for unseaworthiness.

"Proof of this is that the relief sought is not strict liability against the Defendant, which would
6

otherwise have been the remedy available prior to the 1972 amendment [that abrogated claims
for unseaworthiness]." Doc. 34 at 4. Rather, Plaintiffs assert that they have brought negligence
actions against Defendants under the general maritime law.

Id

The use of the term

"unseaworthiness" in the Complaints is descriptive, and reflects the fact that "there is

considerable overlap between what may constitute the substantive negligence of a vessel and an
unseaworthy condition." Id As support for their position, Plaintiffs cite to Norfolk Shipbuilding

& Drvdock Corp. v. Garris, 532 U.S. 811 (2001), in which the Supreme Court stated:
It is settled that the general maritime law imposes duties to avoid unseaworthiness
and negligence. ... We are able to find no rational basis ... for distinguishing
negligence from seaworthiness.
Id at 813, 815.

The Court FINDS that Plaintiffs' claims are permissible maritime tort claims, and not—

as the City argues—unseaworthiness claims barred by the statute.
2.

a.

The City is not entitled to sovereign immunity.

The City was not engaged in a "governmental function" that would merit immunity.

The City next argues that it is immune from Plaintiffs' claims because "the ftill extent of
Virginia's jurisdictional immunity is extended to municipalities when engaged in governmental
functions delegated to them by the Commonwealth." Doc. 23 at 6. In support of this argument,

the City cites to Tinslev v. Ferrvboat West Point, in rem. and Citv of Portsmouth. 1946 A.M.C.
1532, 1946 WL 62670 (E.D. Va. 1946), for the proposition that municipalities involved in a
"governmental function" are immune. In Tinslev. two (2) Navy officers were injured in a
collision with a passenger ferry that was owned and operated by the City of Portsmouth and the
County of Norfolk. Id at 1533. The Tinslev plaintiffs sued the ferry in rem. as well as the City
of Portsmouth and the County of Norfolk in personam. Id. The Court held that Portsmouth was
7

not immune to the plaintiffs' claims. Id at 1535 ("[T]he operation of the ferry is not a public
duty and therefore the City would be subject to a proceeding in admiralty.").
In its Motion, the City argues that it was performing a public duty at the time of the
alleged accident, and thus that it is entitled to the protections of sovereign immunity, despite the
general rule that "[t]he bar of the Eleventh Amendment to suit in federal courts extends to States

and state officials in appropriate circumstances ... but does not extend to counties and similar
municipal corporations." Mt. Healthy Citv Sch. Dist. Bd. of Educ. v. Dovle. 429 U.S. 274, 280

(1977). The very case that the City cites for its support defeats this argument. In Tinslev. the
Court explained that immunity may extend to municipalities only in very limited circumstances,
and the discussion focused on in rem claims:

The immunity of a city against an action in admiralty was discussed by the
District Court of Maryland in 1886 in the case of The F.C. Latrobe. 28 Fed. 377,
which involved a libel against an ice boat owned and operated by the City of
Baltimore. The city was held liable in personam. When dismissing the in rem
feature of the action, the Court used the following language: "And when, in the

performance of any duty, either imposed upon or assumed by it, the municipality
employs maritime instrumentalities, I think it should be held answerable under the
maritime law, with those exceptions only which public policy absolutely requires.
If the vessel belonging to the municipality is used by it as a necessary instrument
in the exercise of some municipal function, then ... public policy requires that the
municipality shall not be deprived of its use."
Tinslev. 1946 A.M.C. at 1534. The relevance of the public duty analysis in that case was to

determine whether the municipality's vessel could be arrested in satisfaction of a plaintiffs
claim, or whether the vessel was needed for "the exercise of some municipal function." The

instant actions against the City are in personam: thus, the Tinlev Court's acknowledgement of
this limited "public duty" exception appears inapplicable.
Moreover, the Court in Tinlev made the following observation about Workman v. New

York. 179 U.S. 552 (1900), in which the Supreme Court held that the City of New York could
8

not claim sovereign immunity as to the negligence of its fire department:
It was held that the City[,] having the general capacity to sue and be sued, could
not successfully interpose a claim of sovereign immunity from the consequences
of negligence of one of its departments or agencies. It would appear that the
Workman case presents a stronger case for the City than the case at bar by reason
of the fact that there was involved a fire boat under the control and management
of the fire department, operating presumably with no profit, whereas in the instant
case the vessel involved was a ferry boat operating for profit.
Tinlev. 1946 A.M.C. at 1535.

As Plaintiff has observed, "[flighting fires is as truly

governmental as policing," and there is simply no way for the City to get around the Workman
holding, nor the Supreme Court's later decision upholding Workman. See Northern Ins. Co.
N.Y. V. Chatham Ctv.. Ga.. 547 U.S. 189, 196 (2006) ("Workman dealt only with the substantive

law of admiralty precisely because the Workman Court held that admiralty courts have

jurisdiction over municipal corporations." (citing Workman. 179 U.S. at 565 ("[A]s a general
rule, municipal corporations, like individuals, may be sued; in otherwords ... they are amenable

to judicial process for the purposes ofcompelling performance oftheir obligations."))).^
b.

The City is not an "arm of the state."

The City's alternative argument that it is an "arm of the state" and thus entitled to
sovereign immunity is also unpersuasive. The Fourth Circuit has identified various factors for
consideration in determining whetheran entity is an arm of the state for immunity purposes. ^
Cash V. Granville Ctv. Bd. of Educ.. 242 F.3d 219, 223-24 (4th Cir. 2001). "The principal

factor, upon which courts have virtually always relied, is whether a judgment against the

governmental entity would have to be paid from the State's treasury." Id at 223. "[A] finding
that the State treasury will not be affected by a judgment against the governmental entity weighs
^ See also Moore v. Hampton Rds. Sanitation Dist. Comm'n. 557 F.2d 1030, 1035 (4th Cir. 1976) ("[T]he weight of

admiralty authority which has been cited or found is in line with those state decisions which have increasingly
repudiated or narrowed the immunity of municipal corporations when performing governmental functions.").

against finding that entity immune. Nonetheless, the entity may still enjoy sovereign immunity if
the judgment would adversely affect the dignity of the State as a sovereign and as one of the
United States." Id. at 224.

The City admits that "it is true that anyjudgment entered against the City here would not
be paid by the Commonwealth," but insists that "the animating purpose behind the monetary
source factor is nevertheless implicated," because the purchase orders in this case were funded

through a U.S. Department of Homeland Security grant program. Doc. 23 at 13. There is no
basis for the City's speculative invocation of the "animating purpose behind the monetary source
factor." The Cash Court made clear that the "twin reasons" for the adoption of the Eleventh
Amendment were: (1) "the States' fears that 'federal courts would force them to pay their

Revolutionary War debts, leading to their financial ruin,'" and (2) "the integrity retained by each
State in our federal system." Cash. 242 F.3d at 223 (quoting Hess v. Port Auth. Trans-Hudson

Corp.. 513 U.S. 30, 39 (1994) (other citations omitted)). The fact that the repairs to and sea trial

of the vessel in question were funded through a federal grant does not threaten or implicate state

sovereignty in any way. The Supreme Court "has consistently refused to construe the [Eleventh]
Amendment to afford protection to political subdivisions such as counties and municipalities,
even though such entities exercise a 'slice of State power.'"

Cash. 242 F.3d at 226-27.

Considering that the Commonwealth is not responsible for paying any judgment awarded against
the City, and that such judgment does not implicate the sovereignty of the Commonwealth in any
way, the Court FINDS that the City is not an arm of the state and thus is not immune to
Plaintiffs' claims.

3.

Plaintiffs' Complaints properly allege claims ofnegligence against the City.

The City argues that the alleged "hard, high-speed turn [which] caused the Vessel to
10

capsize . . . was a necessary component of the Sea Trial," and thus that "the risk of capsize was
inherent to the Sea Trial." Doc. 23 at 18. "As a risk inherent to contract work," the City argues,
"the City therefore owed the Plaintiffs no duty to prevent a capsize resulting from a hard, high

speed turn." Id Rather, the City asserts that this duty was owed to Plaintiffs by their employer,
Willard.

Id Moreover, the City again protests Plaintiffs' use of the term "unseaworthy" as

representing "a cause of action that is unavailable to the Plaintiffs." Id. Thus, the only cause of
action available to Plaintiffs, according to the City, is for breach of the "active control duty"

under Scindia Steam Navigation Co. v. De Los Santos. 451 U.S. 156 (1981), which the City
argues Plaintiffs have failed to support.

As already discussed, a claim of unseaworthiness as a manifestation of a negligence
claim is entirely appropriate under the general maritime law. See Norfolk Shipbuilding. 532
U.S. at 813, 815 ("It is settled that the general maritime law imposes duties to avoid
unseaworthiness and negligence.... We are able to find no rational basis ... for distinguishing

negligence from seaworthiness."). To state such a claim. Plaintiffs must allege:
(1) the existence of a duty required by law that obligates a person to conform to a
certain standard of conduct to protect others against unreasonable risks of harm;
(2) a breach of said duty by engaging in conduct that falls below the applicable
standard; (3) a causal connection between the improper conduct and the resulting
injury; [and] (4) an actual loss or injury to the plaintiff because of the improper
conduct.

Gauthreaux v. United States. 712 F. Supp. 2d 458, 464 (E.D. Va. 2010) (citing Murrav v. United
States. 215 F.3d 460,463 (4th Cir. 2000)).

Plaintiffs have alleged sufficient facts to support their maritime tort claims against the
City. In the Complaints, Plaintiffs allege that the City, "as Hryniewich's employer and as owner,

operator and manager of the vessel, owed a duty of reasonable care to all aboard, including

11

[Plaintiffs], to operate the vessel in a reasonable and workmanlike manner in accordance with

good, accepted marine practices and to maintain the vessel in a seaworthy condition." Compl. ^
13. They further allege that the City breached this duty of care by "failing to provide a
competent operator of the vessel." Id. H14. To support their contention that Hryniewich was not

a competent operator of the vessel, Plaintiffs allege that Hryniewich—with insufficient warning
to Plaintiffs and others aboard the vessel—attempted to make a severe turn in the vessel at an
unsafe speed, thereby capsizing the vessel. Id.

11, 14. Plaintiffs allege that they were thrown

from the vessel as a direct result of Hryniewich's actions, and that they sustained severe injuries

which caused "enormous medical expenses and loss of wages which will continue into the

future." Id H 12. The Court FINDS that these allegations, if true, allow the Court to draw the
reasonable inference that the City was negligent. Accordingly, the Court DENIES the City's
Motions, Docs. 22.

B.

Hryniewich's Motions

Hryniewich argues that he is entitled to judgment on the pleadings for two (2) reasons.

First, Hryniewich argues that Plaintiffs' claims are barred by the federal doctrine of qualified
immunity. Second, he argues that even if he is not immune, "the Complaints fail to state a claim
for negligence . . . because they do not allege or plead facts to support an inference that the
Accident was a foreseeable result of the turn Officer Hryniewich attempted." Doc. 25 at 4. The

Court rejects these arguments and DENIES Hryniewich's Motions.
1.

Hryniewich is not entitled to qualified immunity as a matter oflaw.

Hryniewich argues that the federal common law doctrine of qualified immunity "protects
municipal employees from maritime tort liability," even where the municipality itself is not
immune. Doc. 25 at 4 (citing Yacht Sales Int'l. Inc. v. City of Virginia Beach. 977 F. Supp. 408,
12

412 (E.D. Va. 1997)). Hryniewich argues that "police officers acting within the scope of their
authority are entitled to qualified immunity essentially as a matter of law," only needing to show
that they were "acting in an official capacity and within the scope of [their] discretionary
authority." Id at 5 (citing Williamson v. City of Va. Beach. Va.. 786 F. Supp. 1238, 1260 &
n.28 (E.D. Va. 1992); Rabenstine v. NatM Ass'n of State Boating Law Adm'rs. Inc.. 2015 WL
3470191, at *3 (E.D. Va. June 1, 2015)).

In police driving cases, absent the assertion of some other right, the only right
implicated usually is that of substantive due process, which is only violated for
qualified immunity purposes where the defendant's conduct "so shocks the
conscience as to constitute an abuse of governmental power."
Id (quoting Temkin v. Frederick Ctv. Comm'rs. 945 F.2d 716, 720 (4th Cir. 1991)). Hryniewich

argues that Plaintiffs have not alleged that he "acted with the actual intent to harm [them]," and
thus have not made the requisite showing to meet the "shocks the conscience" standard. Id at 6.

Plaintiffs agree that Hryniewich was acting in his official capacity at the time of the
alleged accident, and they do not appear to contest Hryniewich's contention that he was

performing a discretionary task in conducting the sea trial. However, Plaintiffs argue that
Hryniewich is not entitled to the protections of qualified immunity, pursuant to the "plainly
incompetent" standard articulated by the Supreme Court. See Mallev v. Briess. 475 U.S. 335,
341 (1986) ("As the qualified immunity defense has evolved, it provides ample protection to all
but the plainly incompetent or those who knowingly violate the law."); Ashcroft v. al-Kidd. 563
U.S. 731, 743 (2011) ("Qualified immunity gives government officials breathing room to make
reasonable but mistaken judgments about open legal questions.

When properly applied, it

protects 'all but the plainly incompetent or those who knowingly violate the law.'"). Plaintiffs
argue that they have pled sufficient facts to support an allegation of incompetence, and thus that

13

Hryniewich is not immune to their negligence claims. Doc. 35 at 5.
This Court has previously recognized the "plainly incompetent" standard, and also noted

that "there 'are surprisingly few cases addressing qualified immunity for non-constitutional
maritime torts.'" Rabenstine. 2015 WL 3470191, at *3 (E.D. Va. June 1, 2015) (quoting Sol v.
City of Miami. 776 F. Supp. 2d 1375, 1380 (S.D. Fla. 2011)). It appears to the Court that there
are also surprisingly few cases that not only articulate, but also explicitly apply the plain
incompetence standard. However, the Supreme Court has done so on at least one (1) occasion,
and the Court FINDS that application of the standard in this case is appropriate.

See

Messerschmidt v. Millender. 565 U.S. 535, 553 (2012) ("The officers' judgment that the scope

of the warrant was supported by probable cause may have been mistaken, but it was not 'plainly

incompetent.'" (quoting Mallev. 475 U.S. at 341)). The competence inquiry—as opposed to the

"knowing violation of law," or "discretionary-ministerial" line-drawing exercise utilized in other
cases—seems particularly suited to general maritime tort claims, which may clearly allege injury
but find it difficult to attach that injury to the violation of a particular constitutional right or
statute.

Plaintiffs have alleged sufficient facts to suggest that Hryniewich was plainly
incompetent in his handling of the vessel. Plaintiffs allege that Hryniewich "pushed the vessel to

high speed and then, without slowing down or warning other than a 'hold on' with insufficient
notice, recklessly turned the wheel hard to starboard causing the vessel to capsize." Compl. ^11.
Plaintiffs further allege that Hryniewich took these actions "after identifying what he believed to

be steering and handling issues." Id.1I 16 (emphasis added). Plaintiffs asserted multiple times

that Hryniewich was not competent to operate the vessel, and that his actions during this specific
incident constituted incompetence. ^

111 14, 15, 17; see also id ^ 17 (asserting that
14

Hryniewich "was clearly not qualified" to operate the vessel). The Court FINDS that these
allegations are sufficient to support a reasonable inference that Hryniewich was plainly

incompetent in his operation ofthe vessel.^
2.

Plaintiffs 'failure to allege that Hryniewich knew or should have known that his actions
would cause the alleged accident does not merit dismissal oftheir claims.
Hryniewich argues that, "even in the absence of immunity, the Complaints fail to state a

claim because they have not alleged that the Accident was a foreseeable result of the turn Officer

Hrynievwch attempted, nor any facts to support such an inference." Doc. 25 at 15. In support of
his argument, Hryniewich asserts that "[t]he scope of duty—the extent to which the risk of
harm to the public is a foreseeable risk of particular conduct—is a pure question of law for the
Court." Id (citing Semler v. Psvchiatric Inst. of Wash.. D.C.. 538 F.2d 121, 124 (4th Cir.
1976)). Because Plaintiffs "do not allege that Officer Hryniewich knew or should have known
that turning the Vessel hard to starboard while it was traveling at high speed risked causing it to
capsize," Hryniewich argues, they "have failed to establish that Officer Hryniewich's duty of
care extended to avoiding a hard, high speed turn." Id at 15-16.

Hryniewich offers no case law that suggests Plaintiffs are required to plead that the
accident was a foreseeable result of the turn that Hryniewich allegedly attempted. The cases to
which he cites all take place after the motion-to-dismiss stage. See Semler. 538 F.2d 121 (appeal

from bench trial); Cargill. Inc. v. C & P Towing Co.. 1990 WL 270199 (E.D. Va. August 16,
1990) (post-trial motion); Yacht Sales Int'l. Inc. v. Citv of Va. Beach. 977 F. Supp. 408 (E.D.

Va. 1997) (summary judgment). There is no reason for the Court to require a more specific

^ Hryniewich also argues that he is entitled to "employee sovereign immunity" under Virginia law. The Court
rejects this argument, as this case is governed by admiralty law, which as discussed above does not recognize
sovereign immunity for municipalities and their employees.
15

pleading than that outlined in Section II1.A.3 of this Opinion for a claim of negligence:
(1) the existence of a duty required by law that obligates a person to conform to a
certain standard of conduct to protect others against unreasonable risks of harm;
(2) a breach of said duty by engaging in conduct that falls below the applicable
standard; (3) a causal connection between the improper conduct and the resulting
injury; [and] (4) an actual loss or injury to the plaintiff because of the improper
conduct.

Gauthreaux. 712 F. Supp. 2d at 464 (citing Murray. 215 F.3d at 463). Accordingly, and for the

same reasons outlined in Section III.A.3 of this Opinion, the Court FINDS that Plaintiffs have
alleged sufficient facts to state a general maritime tort claim against Hryniewich, and DENIES
his Motions, Docs. 24.
IV.

CONCLUSION

For the reasons stated herein, the Court DENIES Defendants' Motions, Glover v.

Hrvniewich. et al.. No. 2:1 lev 109, Docs. 22, 24; Pridemore v. Hrvniewich. et al.. No. 2:1 lev 110,
Docs. 22,24.

The Clerk is REQUESTED to send a copy of this Order to all counsel of record.
It is so ORDERED.

/s/

Henry Coke Morgan, Jr.

Senior United States District Judgefi/l//
HENRY COKE MORGAN
SENIOR UNITED STATES DISTRICT JUDGE

Norfolk, VA

April /b, 2018

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