Bergman v. Moffitt

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF NORTH CAROLINA

SOUTHERN DIVISION

Case No. 7:23-CV-01064-M-BM

MARY BETH BERGMAN,

Plaintiff,

V. ORDER

GEORGE REESER MOFFITT, III and

MICHELE MOFFITT,

Defendants.

This matter comes before the court on Defendants George Reeser Moffitt, II] □□□□□□

Moffitt”) and Michele Moffit’s (“Ms. Moffitt”) motion for summary judgment [DE 31]. For the

reasons that follow, Defendants’ motion is granted in part and denied in part.

I. Factual Background

In late 2019, Plaintiff Mary Beth Bergman (“Ms. Bergman’’) and her husband, Josh

Bergman (“Mr. Bergman’) began the search for a new boat. DE 32-1 at 10-11. Around the same

time, George and Michele Moffitt listed their boat, a “Palmetto 33,” for sale. DE 32-2 at 9. The

Moffitts’ Palmetto was a vessel 33 feet in length, with twin 300-horsepower engines and a center

console for navigation. Jd. at 13-15.

Using the services of a boat broker, the Bergmans connected with the Moffitts and arranged

for a sea trial of the Moffitts’ vessel. DE 32-1 at 10, 14. Mr. Moffitt “didn’t want to do” a sea

trial because “[t]he boat wasn’t ready.” DE 32-2 at 17. At the time, Mr. Moffitt was in the process

of fixing some electronics that were not firmly fastened to the center console of the vessel. Jd. at

18. But he decided to move forward with the sea trial because he “wanted to sell the boat.” Jd. at

17.

The Bergmans arrived at the Moffitt residence on the morning of July 3, 2020, and shortly

thereafter departed on the sea trial. DE 32-1 at 15; DE 32-2 at 23. The occupants of the vessel

included Mr. Moffitt, the Bergmans, the Bergman’s broker, and a marine surveyor. Jd. Ms.

Bergman and the broker were seated on a bench at the helm, or front, of the vessel. Jd. at 25. Mr.

Moffitt, Mr. Bergman, and the surveyor stood around the center console. Jd. Ms. Moffitt did not

accompany the group on the sea trial. DE 32-1 at 15; see also id. at 46. The Moffitts had their

own broker as well, but he was out of town for the weekend and did not attend the sea trial either.

DE 32-2 at 17.

Although one of the brokers typically conducts the sea trial, in this case Mr. Moffitt

operated the vessel. DE 33-6 at 7. There is conflicting testimony about why Mr. Moffitt conducted

the sea trial instead of the Bergman’s broker, but it is undisputed that Mr. Moffitt was operating

the vessel that day. Compare id. at 8 (broker’s testimony that Mr. Moffitt “was insistent” that he

conduct the sea trial), with DE 32-2 at 17, 27 (Mr. Moffitt’s testimony that he had to conduct the

sea trial because his broker was out of town, and that he offered to let Mr. Bergman operate the

vessel, but Mr. Bergman declined); but see also DE 33-6 at 10 (broker’s testimony that she had □□

torn meniscus” at the time of the sea trial).

Mr. Moffitt is an experienced boater; he has “‘been on the water a long time,” “probably

30-some years.” DE 32-2 at 7. He has experience with boats ranging from 8 to 55 feet in length.

Id. at 8. He also took and passed a captain’s course at Cateret Community College, although he

did not submit the requisite paperwork in order to obtain his captain’s license. See id. at 8-9.

There is no dispute that the boating conditions on July 3 were less than ideal. Ms. Bergman

testified in her deposition that “[i]t was pretty windy,” the water was “really choppy,” and being

that it was the day before the Fourth of July, the water was trafficked by boats of “all shapes” and

“sizes.” DE 32-1 at 16. Mr. Moffitt agreed that it was “[w]indy” and “choppy,” but expressed

that the conditions were not “crazy bad.” DE 32-2 at 28; but see id. at 41 (later testifying that the

conditions were “[vJery choppy, very windy”). And the broker indicated that there were “[a] lot

of boats” and “current coming from different directions.” DE 33-6 at 10.

Mr. Moffitt navigated the vessel through Beaufort Inlet towards the Atlantic Ocean. DE

32-1 at 16. There is a factual dispute about whether the incident in question occurred while Mr.

Moffitt was piloting the vessel out of Beaufort Inlet into the Atlantic Ocean, or on the way back

through the inlet after returning from the ocean. Compare id. at 19, with DE 32-2 at 29. But it is

undisputed that the incident occurred in Beaufort Inlet. See id. And it is also undisputed that the

tide was going out from the inlet into the ocean at the time of the incident. See DE 32-2 at 29, 41-

42.

As the vessel traveled through Beaufort Inlet, Ms. Bergman overheard Mr. Moffitt tell Mr.

Bergman that he wanted to demonstrate how smoothly the vessel could operate in choppy waters.

DE 32-1 at 18-19. For that demonstration, Mr. Moffitt started “going faster” through the inlet. Jd.

at 19. Mr. Moffitt estimated that he was “running about 25 knots,” which is approximately 29

miles per hour. DE 32-2 at 30-31. Mr. Moffitt described that rate of speed as “[a] little bit over

plan[ing speed].” Jd. at 30.' The broker, who is also an experienced boater, observed that there

| “Planing speed is the velocity at which an accelerating ship’s hull rises to the top of the water’s surface.” Hines v.

Triad Marine Ctr., Inc., 487 F. App’x 58, 60 n.3 (4th Cir. 2012).

were “[a] lot of boats” in Beaufort Inlet and stated that Mr. Moffitt “was driving faster than [she]

would drive.” DE 33-6 at 10.

Mr. Moffitt similarly testified that “there was [sic] boats coming in” through the inlet, and

that he observed two large “sport fishers” passing “‘on each side” of the vessel.” DE 32-2 at 36;

see also id. (testimony that there was “[a] lot of boat traffic”). The two sport fishing boats passed

on either side of the vessel at a point where “‘[t]he channel chokes in” and it was “tight.” Jd. at 37.

Mr. Moffitt “observed them passing” but “didn’t see anything different than what [he] always

see[s].” Jd. Mr. Moffitt continued operating the vessel at 25 knots when passing between the two

sport fishing boats and did not reduce his speed. Jd.

The broker testified that when ‘“‘there’s a ton of boats going by, you’ll have large wake.”

DE 33-6 at 19. As Mr. Moffitt navigated the vessel between the two sport fishing boats, he was

“talking” to Mr. Bergman “about electronics” on the vessel and could not “recall” whether that

conversation “diver[ted]” his attention. DE 32-2 at 37.

The vessel then struck two large waves in rapid succession. Ms. Bergman “wasn’t really

looking forward to where” the vessel was “going,” DE 32-1 at 21, but testified that they “caught

two rogue big waves,” id. at 19. Mr. Moffitt described the waves as “a rogue situation,”

“unforeseen,” and that he had no idea where the waves “‘c[a]me from.” DE 32-2 at 29-30. Because

of the speed of the vessel, the broker could not see over its helm but testified that they must have

hit “a big wave” for the impact “‘to slam [her and Ms. Bergman] like that.” DE 33-6 at 18. Because

there were large sport fishing boats passing nearby in Beaufort Inlet, the broker testified that Mr.

Moffitt “must [have] stuffed it into a wake.” Jd. at 11.

The impact of the first wave “catapulted” Ms. Bergman off her seat, though she was “able

to hold on” to a pole next to her seat. DE 32-1 at 19-20. But the second wave “threw” Ms.

Bergman up and she “lost [her] grip on the pole and ended up” on the deck of the vessel, at which

point Mr. Moffitt “killed the engines” and “got control” of the vessel again. /d. at 20; see also DE

33-6 at 11 (broker’s testimony that she and Ms. Bergman “were thrown [o]nto the floor’). On

impact, multiple pieces of electronic equipment were dislodged from the center console, id.,

though that could also be attributable to the fact that Mr. Moffitt was in the process of reattaching

the electronics to the center console at the time of the sea trial, DE 32-2 at 18. The entire incident

“happened pretty quickly.” DE 32-1 at 21.

After Mr. Moffitt regained control of the vessel, he “turned the boat around” and headed

back to the Moffitt residence. DE 32-2 at 44. The Bergmans moved forward with the purchase of

the Palmetto 33. /d. at 45.

In the immediate aftermath of the incident, Ms. Bergman “was real nauseous and had a

headache.” DE 32-1 at 24. And after a week, she began to experience hip pain, back spasms, and

tightness running from her shoulder blades around her chest. Jd. at 24-25. She has since received

care from her primary care physician and a pain management clinic. /d. at 26-32.

II. Procedural History

Invoking this court’s admiralty jurisdiction, Ms. Bergman instituted this federal action on

June 12, 2023. DE 1. She alleges that Mr. Moffitt was negligent by (1) failing to operate the

vessel at a safe speed, (2) failing to keep the vessel under proper control, (3) failing to keep a

proper lookout, and (4) operating the vessel recklessly and without due care. Jd. at 4. Even though

Ms. Moffitt was not present for the sea trial, Ms. Bergman alleges that she is also liable by virtue

of “respondeat superior.” Jd. at 3.

After the close of discovery, Defendants moved for summary judgment. DE 31. First,

Defendants argue that “there are no viable claims against” Ms. Moffitt because she “was not on

board during the sea trial.” Jd. at 1. Next, Defendants contend that a reasonable factfinder could

only conclude that the vessel hit unforeseeable rogue waves, so Mr. Moffitt was not negligent. Jd.

Defendants then assert that there is no evidence ‘“‘to establish the scope of duty owed” or evidence

“that establishes a breach of any duty owed.” Jd. Defendants have not advanced any argument

that Ms. Bergman assumed the risk inherent in a sea trial or was contributorily negligent. See id.

In response, Ms. Bergman avers that Ms. Moffitt remains liable because she was the sole

owner of the vessel and therefore appointed Mr. Moffitt as her agent to conduct the sea trial. DE

33 at 12-16. Ms. Bergman next rejoins that, taking the evidence in the light most favorable to her,

a reasonable factfinder could conclude that Mr. Moffitt negligently operated the vessel. Jd. at 16-

22. Ms. Bergman then counters Defendants’ assertion that she failed to identify the scope of Mr.

Moffitt’s duty or evidence supporting a breach of that duty. /d. at 22-30. Lastly, Ms. Bergman

suggests that summary judgment should instead be granted in her favor. /d. at 30.

Ill. Standard of Review

a. Summary Judgment

“The court shall grant summary judgment if the movant 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). “A genuine question of material fact exists where, after reviewing the record as a

whole, a court finds that a reasonable jury could return a verdict for the nonmoving party.”

Dulaney v. Packaging Corp. of Am., 673 F.3d 323, 330 (4th Cir. 2012). At this stage, the court

must not “weigh the evidence and determine the truth of the matter but [merely] determine whether

there is a genuine issue for trial.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). In

determining the existence of a genuine issue of material fact, the court “draw/[s] all reasonable

inferences in favor of the non-moving party.” Emmons v. City of Chesapeake, 982 F.3d 245, 250

(4th Cir. 2020).

Nevertheless, “[t]he mere existence of a scintilla of evidence in support of the [non-

movant’s]} position will be insufficient.” Anderson, 477 U.S.at 252. To that point, a party’s

“[u]nsupported speculation is not sufficient to defeat a summary judgment motion,” Felty v.

Graves-Humphreys Co., 818 F.2d 1126, 1128 (4th Cir. 1987), and any inference drawn in the non-

movant’s favor must not be “so tenuous that it rests merely upon speculation and conjecture,” C7B,

Inc. v. Hog Slat, Inc., 954 F.3d 647, 658 (4th Cir. 2020) (quoting Lovelace v. Sherwin-Williams

Co., 681 F.2d 230, 241 (4th Cir. 1982)).

With those principles in mind, the moving party ultimately need not “produce evidence

showing the absence of a genuine issue of material fact.” Celotex Corp. v. Catrett, 477 U.S. 317,

325 (1986). Rather, “the burden on the moving party may be discharged by showing. . . that there

is an absence of evidence to support the nonmoving party’s case.” Jd. (internal quotation marks

omitted). When the movant does so, the burden shifts to the nonmovant to “come forward with

specific facts showing that there is a genuine issue for trial.” Matsushita Elec. Indus. Co. v. Zenith

Radio Corp., 475 U.S. 574, 587 (1986) (internal quotation marks omitted). A showing of specific

facts requires “‘cit[ation] to particular parts of materials in the record.” Fed. R. Civ. P. 56(c)(1)(A).

The existence of “some metaphysical doubt as to the material facts [does not suffice].” Matsushita,

475 US. at 586.

b. Negligence

Familiar standards of negligence apply to claims under maritime law; Ms. Bergman “must

show: 1) the existence of a duty of care; 2) the breach of that duty of care; 3) the breach of duty

proximately caused the resulting injury; and 4) actual loss, injury, or damage.” Matter of Lava

Ocean Tours Inc., No. 19-CV-00023, 2021 WL 2599664, at *2 (D. Haw. Jan. 20, 2021). “It □□ 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 Transatlantique, 358 U.S. 625, 630 (1959). The scope of this duty depends

on “the circumstances of each case.” Jd. at 632. “Differing circumstances necessitate different

levels of degree of care.” Petition of Catalina Cruises, Inc., 930 F. Supp. 1384, 1391 (C.D. Cal.

1996). Relevant circumstances include “the experience of the crew, the type of carrier involved,

the dangers to the passengers peculiar to that type of carrier, the carrier’s degree of control over

the passengers, and the carrier’s ability to take precautions against such dangers.” Smith v. S. Gulf

Marine Co. No. 2, 791 F.2d 416, 421 (Sth Cir. 1986).

When a passenger is injured on a vessel, the operator at times asserts a “rogue wave”

defense. A rogue wave “is a peril of nature or an act of God for which [the vessel operator] cannot

be responsible.” Petition of Catalina Cruises, 930 F. Supp. at 1386. In other words, “an

unpredictable freak swell of the sea” is “not the result of any fault on the part of the ship.” Jrwin

v. United States, 236 F.2d 774, 776 (2d Cir. 1956) (internal quotation marks omitted). But

“{clourts tend to reserve determination of the cause of a plaintiff's injuries—whether it be

negligence or an unpredictable force of nature—for the trier of fact.” Stanley v. Starfleet Marine

Transportation, Inc., No. 16-CV-13753, 2018 WL 3632354, at *2 (E.D. La. July 31, 2018); see

also Christensen v. Georgia-Pac. Corp., 279 F.3d 807, 813 (9th Cir. 2002) (observing that

“summary judgment is rarely granted” in maritime negligence cases because determining whether

“the defendant acted reasonably is ordinarily a question for the trier of fact”); Schoenfeldt v.

Schoenfeldt, No. 13-CV-5468, 2014 WL 1910808, at *3 (W.D. Wash. May 13, 2014) (“Questions

of forseeability [sic] and causation in [maritime] negligence cases particularly lend themselves to

resolution by a jury.”).

IV. Analysis

a. Jurisdiction?

This court’s “judicial power” extends “to all cases of admiralty and maritime jurisdiction.”

U.S. Const., Art. III § 2. “Congress has embodied that power in a statute,” Jerome B. Grubart,

Inc. v. Great Lakes Dredge & Dock Co., 513 U.S. 527, 531 (1995), which provides that “(t]he

district courts shall have original jurisdiction, exclusive of the courts of the States, of . . . [aJny

civil case of admiralty or maritime jurisdiction,” 28 U.S.C. § 1333(a)(1). “[A]dmiralty jurisdiction

over maritime torts depends on” two factors: (1) “the location of the tort” (specifically, “whether

it occurs on navigable waters,” and (2) the tort’s “relation to traditional maritime activity.”

Baltimore Gas & Elec. Co. v. Coastline Com. Contracting, Inc., 107 F.4th 264, 268 (4th Cir. 2024),

cert. denied, No. 24-397, 2024 WL 5112299 (U.S. Dec. 16, 2024). Courts refer to the tort’s

location and relation to maritime activity as “the /ocus and the nexus criteria.” Mullenix v. United

States, 984 F.2d 101, 104 (4th Cir. 1993) (italics in original).

A water is navigable for purposes of the locus criterion of maritime jurisdiction when it is

capable of bearing commercial navigation. Price v. Price, 929 F.2d 131, 134 (4th Cir. 1991);

Mullenix, 984 F.2d at 104. The Beaufort Inlet meets the locus test because it is a tidal water that

connects to the Atlantic Ocean. See Baltimore Gas, 107 F.4th at 269 (“tidal waters remain the

prototypical navigable waters and firmly fall within the ambit of federal admiralty jurisdiction”).

And when the alleged wrong “involves the negligent operation of a vessel on navigable waters,”

2 Federal “courts must always assure themselves of subject matter jurisdiction before reaching the merits.” Virginia

Dep't of Corr. v. Jordan, 921 F.3d 180, 187 (4th Cir. 2019).

the tort “has a sufficient nexus to traditional maritime activity to sustain admiralty jurisdiction in

the District Court.” Foremost Ins. Co. v. Richardson, 457 U.S. 668, 674 (1982). This case involves

the allegedly negligent operation of a vessel in navigable waters, and thus satisfies both the locus

and nexus criteria of admiralty jurisdiction. 28 U.S.C. § 1333(a)(1).

b. Ms. Moffitt’s Liability

Turning to the merits, Defendants first argue that there is no viable claim against Ms.

Moffitt because she was not present on the vessel during the sea trial and there are no facts

supporting a principal/agent relationship between her and her husband. DE 32 at 3. This argument

has merit. Although there is a genuine issue of fact as to whether the Moffitts were co-owners of

the vessel, or whether Ms. Moffitt was the sole owner, this fact is not material because Ms.

Bergman has not identified any record evidence supporting the existence of an agency relationship.

Defendants contend that the Moffitts were co-owners of the vessel, meaning that Mr.

Moffit retained independent authority to conduct the sea trial and was not acting as Ms. Moffitt’s

agent. DE 32 at 3. Mr. Moffitt also testified during his deposition that he and Ms. Moffitt “both”

owned the vessel. DE 32-2 at 9. But when Ms. Bergman alleged in her Complaint that the Moffitts

co-owned the vessel, DE 1 at 1, Defendants denied that allegation, DE 16 at 5. And, when the

Moffitts acquired the vessel in 2013, Ms. Moffitt is the only buyer listed on the bill of sale. DE

33-7 at 2. Likewise, when the Bergmans purchased the vessel in 2020, Ms. Moffitt is the only

seller listed on the bill of sale. Jd. at 3. Further, a United States Coast Guard Certificate of

Documentation listed Ms. Moffitt as the sole owner of the vessel. DE 33-8 at 1.

Thus, there is conflicting record evidence regarding the vessel’s ownership. But this

conflict is immaterial because, even if Ms. Moffitt was the sole owner of the vessel, there is no

evidence supporting that she appointed Mr. Moffitt as her agent to conduct the sea trial.

10

“Federal maritime law embraces the principles of agency.” Naviera Neptuno S.A. v. All

Int'l Freight Forwarders, Inc., 709 F.2d 663, 665 (11th Cir. 1983). And “[t]he Restatement

(Second) of Agency has been adopted in maritime law as an accurate statement of applicable

general agency principles.” US Wind Inc. v. InterMoor, Inc., 640 F. Supp. 3d 390, 401 (D. Md.

2022). Per the Restatement (Second), “[a]n agency relation exists only if there has been a

manifestation by the principal to the agent that the agent may act on his account, and consent by

the agent so to act.””, RESTATEMENT (SECOND) OF AGENCY § 15 (1958); see also id. at § 27

(explaining that apparent authority requires “written or spoken words or any other conduct of the

principal which, reasonably interpreted, causes the third person to believe that the principal

consents to have the act done on his behalf by the person purporting to act for him”). Although

husband or wife can be authorized to act for the other party to the marital relation,” id. at §

22, “[nJeither husband nor wife by virtue of the relation has power to act as agent for the other,”

id. at § 22 cmt. b.

Here, the record contains a dearth of evidence to support that Ms. Moffitt appointed Mr.

Moffitt as her agent to conduct the sea trial. Ms. Bergman contends that Mr. Moffitt conducted

the sea trial “with the knowledge of’ Ms. Moffitt because Ms. Moffitt “was present when the sea

trial began.” DE 33 at 15. But the only evidence Ms. Bergman cites as support is her own

deposition, where she indicated that Ms. Moffitt was inside the Moffitt home on the day of the sea

trial, that they said “hi, hello, nice to meet you” in the home, and that Ms. Moffitt stayed “at the

house with their two daughters” while the rest of the group walked down to the dock and departed

on the sea trial. DE 32-1 at 46.

To reiterate, Ms. Moffitt was “in the house.” Jd. There is no evidence that she was outside

by the dock, observed the group board the vessel and leave for the sea trial, or had any idea that

1]

Mr. Moffitt would be operating the vessel during the sea trial. See id. In fact, multiple individuals

testified that one of the brokers normally conducts the sea trial, and Ms. Bergman has not identified

any evidélice to suggest that Ms. Moffitt was aware that the July 3 sea trial would deviate from

that typical arrangement. DE 32-2 at 17; DE 33-6 at 7. Ms. Bergman’s “[u]nsupported

speculation” to the contrary “is not sufficient to defeat a summary judgment motion.” Felty, 818

F.2d at 1128.

In the absence of evidence supporting the existence of a principal-agent relationship, the

dispute over the vessel’s ownership is not material and Defendants are entitled to judgment as a

matter of law on Ms. Bergman’s claim against Ms. Moffitt. See Gogel v. Maroulis, 689 F. Supp.

3d 73, 81 (D. Md. 2023) (entering summary judgment and holding that wife/co-owner of vessel

was not liable for her husband’s acts when she was not present on trip and had no reason to know

manner in which husband would conduct voyage).

c. Mr. Moffitt’s Liability

Next, Defendants make two arguments to support that summary judgment must be entered

on Ms. Bergman’s negligence claim against Mr. Moffitt. DE 32 at 3. First, they assert that Ms.

Bergman conceded that the accident “was caused when the vessel hit a rogue wave.” Jd. Second,

they contend that “[t]here is no evidence that [Mr.] Moffitt could have anticipated this wave.” Jd.

The court addresses each argument in turn.

First, as to Ms. Bergman’s purported concession, her deposition testimony does include

her statement that the vessel “caught two rogue big waves.” DE 32-1 at 19. But the court has

detailed previously that “rogue wave” is a term of art in maritime law. E.g., Petition of Catalina

Cruises, 930 F. Supp. at 1386; Jrwin, 236 F.2d at 776. Ms. Bergman had limited boating

experience. DE 33-5 at 7 (interrogatory response that Ms. Bergman “took a boater safety class”

12

in high school). At the time, she “was not looking for a boat”; her husband was the one interested

in purchasing the vessel, and she “was just married to the man that insisted on having a boat.” DE

32-1 at 11. And when the vessel struck two waves in rapid succession, Ms. Bergman ‘wasn’t

really looking forward to where” the vessel was “going.” /d. at 21.

Placed in appropriate context, a reasonable factfinder could conclude that Ms. Bergman

used the term rogue wave in the colloquial (not technical) sense, meaning that the vessel striking

two waves in rapid succession was an unexpected occurrence to her, not that the waves were an

unforeseeable risk to Mr. Moffitt. See id. at 19. Just as importantly, Defendants may not use Ms.

Bergman’s deposition testimony to establish that the waves were “rogue waves” as that term is

used in maritime law; lay witness testimony is inadmissible when it employs a term that has “a

separate, distinct and specialized meaning in the law different from that present in the vernacular.”

United States v. McIver, 470 F.3d 550, 562 (4th Cir. 2006). For those reasons, the court finds that

Ms. Bergman’s use of the term “rogue wave” in her deposition does not require the conclusion

that the incident involved an unforeseeable “act of God.” Petition of Catalina Cruises, 930 F.

Supp. at 1386.

Second, Defendants argue that Mr. Moffitt could not have anticipated the waves. DE 32

at 3. Viewing the evidence in the light most favorable to Ms. Bergman and drawing every

reasonable inference in her favor, the court is not convinced. To restate the pertinent facts:

1. Mr. Moffitt was navigating the vessel through Beaufort Inlet on the Friday of a summer

holiday weekend, and there was a significant amount of boat traffic;

2. There were strong winds and the water was choppy;

3. The tide was ebbing from the inlet out to the ocean, which creates steeper swells;

13

4. Mr. Moffitt stated that he was going to increase the speed of the vessel to demonstrate

how it handled choppy water, and was navigating the vessel faster than the broker

would have in light of the conditions;

5. Two sport fishing boats were passing by on either side of the vessel at a point where

the channel narrows, and it was “tight”;

6. Large sport vessels create large wake;

7. Mr. Moffitt was navigating the vessel at a speed of nearly 30 miles per hour and did

not decrease his speed when passing between the sport fishing boats;

8. Mr. Moffitt was talking to Mr. Bergman about the vessel’s electronics and could not

recall whether that conversation diverted his attention;

9. The vessel hit two waves in rapid succession and “there w[ere] no more [waves] like

that’; and

10. The second wave catapulted Ms. Bergman out of her seat and onto the deck.

DE 32-1 at 16, 18-21; DE 32-2 at 28-31, 36-37, 41-42; DE 33-6 at 10-11, 18-19.

Construing those facts in the light most favorable to Ms. Bergman, there is a genuine

dispute of material fact as to whether the vessel struck two “rogue” waves, or whether it struck

wake from the sport fishing boats. See DE 33-6 at 11 (broker’s testimony that Mr. Moffitt “must

[have] stuffed it into a wake”); DE 32-2 at 36-37 (Mr. Moffitt’s testimony that two sport fishing

boats had just passed the vessel prior to collision with two waves). Unlike a rogue wave, large

wake from passing boats is both foreseeable and avoidable. See DE 33-6 at 19 (broker’s testimony

that, where “‘there’s a ton of boats going by, you’ll have large wake”). There is likewise a genuine

dispute of material fact concerning whether Mr. Moffitt kept a proper lookout, or whether his

14

conversation with Mr. Bergman diverted his attention. See DE 32-2 at 37 (Mr. Moffitt’s testimony

that he could not “recall .. . a diversion or anything like that”).

Defendants attempt to liken this case to Southard, but that comparison is inapt. In

Southard, the plaintiff brought a maritime negligence action against the defendant captain after the

plaintiff was injured on a fishing charter when the vessel struck what the defendant described as a

rogue wave near the Oregon Inlet. Southard v. Paul Lester & Oregon Inlet Fishing Ctr., Inc., No.

2:05-CV-47, 2006 WL 84490339, at *1 (E.D.N.C. Oct. 12, 2006), aff'd sub nom. Southard v. Lester,

260 F. App’x 611 (4th Cir. 2008). The District Court entered summary judgment in the

defendant’s favor, and the Fourth Circuit affirmed. Jd. at *6; see also Southard v. Lester, 260 F.

App’x 611, 615 (4th Cir. 2008).

But there are two material differences between the evidence in Southard and the record in

this case. First, because the conditions in Southard were choppy, the defendant “slowed his speed

to 18 knots, three to five nots [sic] off the [vessel’s] usual 21-23 knot cruising speed.” Southard,

2006 WL 8449039, at *3. Unlike in Southard, here the record reflects that Mr. Moffit increased

his speed to 25 knots in response to the choppy conditions. DE 32-1 at 18-19; see also DE 33-6

at 10.

Second, and more critically, the defendant’s testimony in Southard that a large wave

suddenly appeared right in front of the vessel was “‘the only evidence in the record with regard to

the timing and formation of the ‘rogue’ wave.” Southard, 2006 WL 8449039, at *5. Unlike in

Southard, where the passengers were below deck in the cabin and there were no other vessels

around, the record in this case plausibly permits the inference that Mr. Moffitt did not strike a

rogue wave, but rather wake from sport fishing boats that passed on either side of the vessel

immediately prior to its collision with two waves. DE 32-2 at 36-37; DE 33-6 at 11, 19. Thus, the

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factfinder here would not need to “rely upon sheer speculation and conjectural hypothesizing to

conclude that [Mr. Moffitt] breached his duty of reasonable care when he failed to avoid the

‘rogue’ wave.” Southard, 2006 WL 8449039, at *5; see also DE 33-6 at 19 (broker’s testimony

that, where “‘there’s a ton of boats going by, you’ll have large wake”’). Southard is not persuasive

authority on this distinguishable factual record.

The record in this case, taken in the light most favorable to Ms. Bergman, more closely

resembles a significant body of case law in which rogue wave defenses were resolved at trial, and

not summary judgment. E.g., Stanley, 2018 WL 3632354, at *2 (explaining that it is rarely

“appropriate to grant summary judgment” on rogue wave defense); Christensen, 279 F.3d at 813;

Schoenfeldt, 2014 WL 1910808, at *3 (emphasizing that summary judgment is rarely granted in

maritime negligence cases and that jury is best positioned to resolve whether incident occurred

due to negligence or act of God); Buccina v. Grimsby, 261 F. Supp. 3d 842, 843 (N.D. Ohio 2017)

(concluding after trial that operation of vessel in trafficked and choppy waters at 20 miles per hour

breached standard of care); Winfield v. Pac. Longline Co. LLC, No. 12-CV-861, 2013 WL

1015427, at *3 (W.D. Wash. Mar. 14, 2013) (holding that conflicting evidence regarding whether

ship collided with rogue wave compelled denial of summary judgment); Wyler v. Holland Am.

Line-USA, Inc., 348 F. Supp. 2d 1206, 1211-12 (W.D. Wash. 2003) (determining that jury must

resolve whether cruise ship hit rogue wave or executed dangerous turn in rough conditions); cf

Hines, 487 F. App’x at 62 (affirming trial court’s finding that defendant’s operation of 22-foot

vessel at 145-20 miles per hour over oncoming waves of four to five feet breached duty of care).

The foregoing authority militates in favor of denyiag Defendarits’ motion for summary judgment

and lettiag this matter proceed to trial, where a factfinder may both assess witness credibility and

scrutinize all the evidence neutrally, and not in a light favorable to either party.

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d. Evidence Regarding the Scope of Duty and Breach

Lastly, Defendants move for summary judgment on the basis that Ms. Bergman “has no

evidence establishing the standard of conduct required,” and that, “[b]ecause [she] has failed to

identify the duty owed, she has no evidence of a breach of this duty.” DE 32 at 4. Defendants do

not cite any authority in support of these blanket assertions, and they are not persuasive.

For the same reasons the court finds that there are genuine issues of material fact

concerning the vessel’s collision with two waves on July 3, 2020, it likewise concludes that the

available record permits it to articulate a duty of care and identify evidence in the record plausibly

indicating a breach of that duty. As noted, “[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.”

Kermarec, 358 U.S. at 630. The scope of this duty depends on “the circumstances of each case.”

Id. at 632; see also Petition of Catalina Cruises, Inc., 930 F. Supp. at 1391; Smith, 791 F.2d at

421. To establish the duty of care, Ms. Bergman may rely on “the demands of reasonableness and

prudence.” In re Frescati Shipping Co., Ltd., 718 F.3d 184, 211 (3d Cir. 2013). Reasonableness

and prudence require the captain to operate the vessel in a safe manner and maintain a proper

lookout. Proctor v. Tsao, 164 F.3d 625 (Table), 1998 WL 70868, at *5 (4th Cir. 1998); Buccina,

261 F. Supp. 3d at 849. The scope of this duty aligns with the allegations in Ms. Bergman’s

Complaint. See DE 1 at 4.

There is also sufficient circumstantial evidence in the record to permit a reasonable

factfinder to infer that Mr. Moffitt breached his duty of care. To briefly recapitulate the factual

record in the light most favorable to the non-moving party, Mr. Moffitt operated the vessel at or

above planing speed through Beaufort Inlet when the conditions were choppy, there was

significant boat traffic, and Mr. Moffitt passed between two large sport fishing boats right before

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striking two waves in quick succession. E.g., DE 32-1 at 16, 18-21; DE 32-2 at 28-31, 36-37, 41-

42; DE 33-6 at 10-11, 18-19. The broker, another experienced boater, testified that Mr. Moffitt

was navigating faster than she would have, and that he likely “stuffed it into a wake.” DE 33-6 at

10-11. And at the time of the incident, Mr. Moffitt was conversing with Mr. Bergman and does

not recall whether the conversation diverted his attention. DE 32-2 at 37. Mr. Moffitt, for his part,

swears that the two waves were “unforesee[able].” Jd. at 29.

This factual recitation does not provide conclusive evidence that Mr. Moffitt breached his

duty of care. But it is more than a mere “‘scintilla of evidence,” and at this stage the court must not

“weigh the evidence and determine the truth of the matter but [merely] determine whether there is

a genuine issue for trial.” Anderson, 477 U.S. at 249 & 252. Construed in the light most favorable

to Ms. Bergman, the record evidence presents genuine issues for trial. For the foregoing reasons,

the court finds that Defendants are not entitled to summary judgment on Ms. Bergman’s claim

against Mr. Moffitt.°

e. Ms. Bergman’s Request for Summary Judgment

In concluding her brief in opposition to Defendants’ motion for summary judgment, Ms.

Bergman asserts that “[s]}ummary judgment for the Plaintiff, non-movant, should be granted

pursuant to Fed. R. Civ. P. Rule 56(f)(1).” DE 33 at 30. As this order’s analysis makes clear,

genuine issues of material fact make this case one for trial. Just as a factfinder could infer based

on the circumstantial evidence that Mr. Moffitt failed to operate the vessel at a safe speed or

their reply brief, Defendants argue for the first time that Ms. Bergman cannot prove that Mr. Moffitt breached the

standard of care without “expert testimony.” DE 34 at 2. But “new arguments cannot be raised in a reply brief.”

United States v. Smalls, 720 F.3d 193, 197 (4th Cir. 2013). And, in any event, “expert testimony is not necessary to

establish negligence” in maritime cases “where the negligence and harmful results are sufficiently obvious as to lie

within common knowledge.’” Felton v. Felton, 181 F.3d 87 (Table), 1999 WL 381814, at *3 (4th Cir. 1999) (quoting

Fitzgerald v. Manning, 679 F.2d 341, 350 (4th Cir.1982)).

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maintain a proper lookout, a factfinder could just as equally credit his testimony that the waves

were unforeseeable and unavoidable rogue waves. Ms. Bergman’s request for summary judgment

is denied.

V. Conclusion

Defendants’ motion for summary judgment [DE 31] is GRANTED IN PART and DENIED

IN PART. Judgment is entered in favor of Defendants as to Ms. Bergman’s claim against Ms.

Moffitt, and Ms. Bergman’s claim against Mr. Moffitt will proceed to a bench trial.4 The court

will issue a separate trial scheduling order.

SO ORDERED this_[( day of April, 2025.

oP al =. Mee

RICHARD E. MYERS II

CHIEF UNITED STATES DISTRICT JUDGE

4 See In re Lockheed Martin Corp., 503 F.3d 351, 354-55 (4th Cir. 2007); Fed. R. Civ. P. 9(h) & 38(e); DE 1 at 1.

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