Petition for Writ of Certiorari — Doyle v. Graske
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No.____99 -85 7 2010
OFAICE OF THE CLERK
Fn The WiamK Suter, Clerk
Supreme Court of the Anited States
oe —
ANNE DOYLE,
Petitioner,
LELAND GRASKE,
Respondent.
On Petition For A Writ Of Certiorari
To The United States Court Of Appeals
For The Eighth Circuit
——________———_ @ —
PETITION FORA WRIT OF CERTIORARI
en! enews
JOSEPH B. MULLER
(Counsel of Record)
RONALD J. PALAGI
LAW OFFICES OF RONALD J. PALAGI, P.C., L.L.O.
3131 South 72nd Street
Omaha, Nebraska 68124
(402) 397-5000
joe@ronaldjpalagi.com
Attorneys for Petitioner
COCKLE LAW BRIEF PRINTING CO} (800) 225-4964
OR CALI. COLLECT (402) 442-2831
QUESTIONS PRESENTED
The circuit courts and district courts are split
regarding the issue in this case: is there a remedy for
loss of consortium under general maritime law?
In some circuits damages for loss of consortium are
available. In other circuits damages for loss of con-
sortium are not available. This case will allow this
Court to resolve this conflict among the lower courts,
and to clarify these questions of general maritime
law:
1. Whether, pursuant to American Export Lines,
Inc. v. Alvez, 446 U.S. 274, 10 S.Ct. 1673 (1980), loss
of consortium caused by a nonfatal injury to a non-
seafarer is a remedy under general maritime law.
2. Whether, pursuant to Yamaha Motor Corp.,
U.S.A. v. Calhoun, 516 U.S. 199, 116 S.Ct. 619 (1996),
state law remedies are applicable in maritime cases
where there is no federal statute that specifies the
appropriate relief, and where the injured party is a
nonseafarer.
3. Whether Graske waived his defense of failure
to state a claim upon which relief can be granted.
P
PARTIES TO THE PROCEEDING BELOW
The only parties involved in the trial and sub-
sequent appeal were Daniel Doyle and Anne Doyle,
Plaintiffs, and Leland Graske, Defendant.
Although the Eighth Circuit listed Third Party
Defendants as parties, none of the Third Party De-
fendants were involved in the relevant proceedings
below. The Third-Party Complaint against Jason
Haynes was dismissed on October 5, 2007. Caribe
Inflatables USA, Inc. and Kirk Marine were both
dismissed from this action on September 27, 2006.
ili
TABLE OF CONTENTS
Page
QUESTIONS PRESENTED FOR REVIEW ........ i
PARTIES TO THE PROCEEDING BELOV ....... il
TABLE. OF AU THORET Bape isecccscsivcccessssoncesesesscors v
CITATIONS TO JUDGMENTS AND OPIN-
PRPS E SOUT US es chnssniniecustctercsatoeginabiermaceleineens
BASIS FOR JURISDICTION .................02.seseceeeee
STATUTES INVOLVED IN CASE ......................
STATEMENT OF THE CASE.................:cceeeeeeeee
I. THERE ISA SPLIT IN THE DECISIONS
OF THE CIRCUIT COURTS......................
A. The First, Second, and Third Circuits
Allow Damages for Loss of Consor-
CI isn snaivaudenncnstvareteconkbcedeseciacieiias diesen:
B. The Fifth, Eighth, Ninth, and Elev-
enth Circuits Do Not Allow Damages
for Loss of Consortium ...................++0+
Il. LOSS OF CONSORTIUM DAMAGES
ARE AVAILABLE UNDER GENERAL
DEAT 5 ROE BANUT isnicsessncsccsncccectcsauningrinense
A. Higginbotham and Miles Do Not
Control the Decision in this Case........
Ill. A STATE LAW REMEDY SHOULD BE
APPLIED IN THIS CASE. ......................--.
TABLE OF CONTENTS — Continued
Page
IV. GRASKE WAIVED HIS DEFENSE OF
FAILURE TO STATE A CLAIM ................. 15
SED ccicuuchticosinnnsabeapacenieresuandiaeucsmuueasl 16
APPENDIX
Amended Opinion of the Eighth Circuit Court
IIE cikccicnc sacsnahsan tpcnesseubaaibeemainediaumnninoeneens App. 1
District Court Findings of Fact and Con-
I OIE I iirckaibasterqncnctncssvecsensecttinbesaiiseten’ App. 20
District Court Memorandum and Order .......... App. 59
III -siicieansonnccaicnshnussasdetindaastctenviecmdeineiaeeen App. 68
TABLE OF AUTHORITIES
Page
CASES
American Dredging Co. v. Miller, 510 U.S. 443,
Se I ons sccvecarsnsdupuchadcausdensecssousnionserets 14
American Export Lines, Inc. v. Alvez, 446 U.S.
Br, Be ree BES CH ocevcascvcccccccssccccsevceees passim
Anson v. Fletcher, 192 Neb. 317, 220 N.W.2d
ee ee no en nendnionbabanaveeaeumenensiouls 14
Atlantic Sounding Co., Inc. v. Townsend, 129
I co citcdbaubisabmannnesees 11, 13
Calhoun v. Yamaha Motor Corp., U.S.A., 40
Be te CE FO cenccnccncniciscssccosccnecccasvaccccoscnsss 8
Carlson v. Okerstrom, 267 Neb. 397, 675
DE ON IN oii cise sécisaticcuniuatabuaeadanddsensbbeveesosonns 14
CEH, Inc. v. F/V Seafarer, 70 F.3d 694 (1st Cir.
RRR TREC FPR FATE RAIA OUI TT een Re De Re AP TORE 7
Chan v. Soc’y Expeditions, Inc., 39 F.3d 1398
SRE Sater peo ee eR ER Ae RMF 8,9
DeLoach v. Companhia de Navegacao Lloyd
Brasileiro, 782 F.2d 438 (3rd Cir. 1986) ................... 8
Exxon Shipping Co. v. Baker, 128 S.Ct. 2605
(RESET ES a a ERR Sole aOR eek REN Retr ARE 10, 11
Great-West Life & Annuity Ins. Co. v. Knudson,
534 U.S. 204, 122 S.Ct. 708 (2002)........................- 13
Grubbs v. General Elec. Credit Corp., 405 U.S.
Se: Se a RI 0 FID cs ccincscdcksvccconsavcsnsonaccoussecvended 5
—
lt TTT ——_—
TABLE OF AUTHORITIES — Continued
Page
Lyon v. Ranger III, 858 F.2d 22 (1st Cir. 1988)............ 7
Matheny v. Tennessee Valley Authority, 557
ee RE I 0.5 scacencuandonedensebonsetndsoenenecess 8
Miles v. Apex Marine Corp., 498 U.S. 19, 111
so cavnemsuunsinatnenes 12, 13, 16
Mobil Oil Corp. v. Higginbotham, 436 U.S. 618,
Be ris Be © BOPP cosccecnsesesccssesvocsencoseese 6, 12, 13, 16
Moragne v. States Marine Lines, Inc., 398 U.S.
Be ee ree OOD CTW cscinscccecencsscvnctesccecesscctes 10, 11
New York & Long Branch Steamboat Co. v.
Johnson, 195 F. 740 (3rd Cir. 1912)....................02008: 8
Nichols v. Petroleum Helicopters, Inc., 17 F.3d
i ho cc eurbemsbbenesesness 8
Norfolk Shipbuilding & Drydock Corp. uv.
Garris, 532 U.S. 811, 121 S.Ct. 1927
Et Ie Oo oe 7,10, 11,16
Robinson v. Alter Barge Line, Inc., 513 F.3d 668
a cieemnauaians alanis 15
Romero v. International Terminal Operating
Co., 358 U.S. 354, 79 S.Ct. 468 (1959) ................... 14
Saunders v. Cunard Line Litd., 1995 WL
ica ucsacscnasunvebbeeensenanunbintendantens 7
Sea-Land Services, Inc. v. Gaudet, 414 U.S.
I ee Ss EE © BEI Paccicensccnsstccsscnssccescnes 10, 11, 16
Tucker v. Fearn, 333 F.3d 1216 (11th Cir. 2003).......... 8
Wartman v. Commodore Cruise Line, Lid., 100
F.3d 943, 1996 WL 47964 (2nd Cir. 1996)................ 8
Vil
TABLE OF AUTHORITIES — Continued
Page
Wilburn Boat Co. v. Fireman’s Fund Ins. Co.,
348 U.S. 310, 75 S.Ct. 368 (1955)........................00 14
Yamaha Motor Corp., U.S.A. v. Calhoun, 516
U.S. 199, 116 S.Ct. 619 (1996)...............-006 10, 14, 15
Zicherman v. Korean Air Lines Co., Lid, 438
EE Se CE EE TIE sccccicnedeuinccmnaatnnsnsedensnesinweseseenss 7
Zicherman v. Korean Air Lines Co., Ltd, 516
Ree. ke 5. Be ees eC itedcensitticensacssctcvsecsccens 7
STATUTES
i IRIE SITE cinco saeco savtnanaahonsnaennmeousumeianesesneaeael 2
Sa, as a coeteaneneiemmnemnanenaneueni 2
BL RENT AE EL RE NOT 6, 10
ee I iisctcan:sonsrinteseciendsaconenciecnenieesenssenninmunniiiia 2
PS a lI I A Se CC ERE passim
46 U.S.C. §§30301-30308 -...........cececeeeeee- 6, 7,9, 10, 13
Oe I oc ccacecha ctapensiacamunensudulsanseiianinbiaaaies 3
ee IIE ccc au taasic omens eanuanenebmenancetiied 3
ee I wissen cei saciccancdskcdndeaninniesessneudsasaienasnaned 4
OTHER AUTHORITIES
Federal Rules of Civil Procedure, Rule 8..................- 16
Federal Rules of Civil Procedure, Rule 12................. 16
Thomas J. Schoenbaum, 1 Admiralty and Mar.
Be, Se IIE TIC F dcnccannccanpocksuahaaheetadioncccunenaeneionctns 9
l
CITATIONS TO JUDGMENTS
AND OPINIONS BELOW
This case was tried in the United States District
Court for the District of Nebraska, Chief Judge
Joseph Bataillon presiding. Doyle v. Graske, 565
F. Supp.2d 1069 (D. Neb. 2008) (App. 20-58). After a
judgment in favor of the Plaintiffs, the trial court
denied Defendant’s Motion to Amend Findings of Fact
and Conclusions of Law, or for a new trial. Doyle uv.
Graske, 2008 WL 3539269 (D. Neb. 2008) (App. 59-
67). Those decisions were appealed to the United
States Court of Appeals for the Eighth Circuit. A
panel of that Court — Chief Judge Loken, Circuit
Judge Colloton, and Circuit Judge Hansen — affirmed
in part and reversed in part. That decision, as
amended, is Doyle v. Graske, 579 F.3d 898 (8th Cir.
2009) (App. 1-19).
BASIS FOR JURISDICTION
The Court of Appeals entered its judgment and
opinion on September 2, 2009. After timely Petitions
for Rehearing were filed, the Court denied the
Petitions for Rehearing on October 22, 2009 (App. 68-
69). In that Order the Court noted that Circuit
Judges Bye and Shepherd would grant the Petition
for Rehearing En Banc filed by Appellee Anne Doyle
which raised the same issues as this Petition.
28 U.S.C. §1254(1) confers jurisdiction on this
Court to review the judgment of the Eighth Circuit
Court of Appeals.
STATUTES INVOLVED IN CASE
28 U.S.C. §1254(1):
Cases in the courts of appeals may be reviewed
by the Supreme Court by the following methods:
(1) By writ of certiorari granted upon the
petition of any party to any civil or
criminal case, before or after rendition of
judgment or decree;
28 U.S.C. §1333(1):
The district courts shall have original juris-
diction, exclusive of the courts of the States, of:
(1) Any civil case of admiralty or maritime
jurisdiction, saving to suitors in all cases
all other remedies to which they are
otherwise entitled.
The following statutes are not applicable on the
facts, but are discussed in the Argument section
below.
33 U.S.C. §903(a):
Except as otherwise provided in this section,
compensation shall be payable under this chapter in
respect of disability or death of an employee, but only
if the disability or death results from an injury
occurring upon the navigable waters of the United
States (including any adjoining pier, wharf, dry dock,
terminal, building way, marine railway, or other ad-
joining area customarily used by an employer in load-
ing, unloading, repairing, dismantling, or building a
vessel).
46 U.S.C. §30104:
A seaman injured in the course of employment or,
if the seaman dies from the injury, the personal
representative of the seaman may elect to bring a
civil action at law, with the right of trial by jury,
against the employer. Laws of the United States
regulating recovery for personal injury to, or death of,
a railway employee apply to an action under this
section.
46 U.S.C. §30302:
When the death of an individual is caused by
wrongful act, neglect, or default occurring on the high
seas beyond 3 nautical miles from the shore of the
United States, the personal representative of the
decedent may bring a civil action in admiralty against
the person or vessel responsible. The action shall be
for the exclusive benefit of the decedent’s spouse,
parent, child, or dependent relative.
46 U.S.C. §30303:
The recovery in an action under this chapter
shall be a fair compensation for the pecuniary loss
sustained by the individuals for whose benefit the
action is brought. The court shall apportion the re
covery among those individuals in proportion to the
loss each has sustained
46 U.S.C. §30308:
(a) State law. - This chapter does not affect the
law of a State regulating the right to recover for
death
(b) Internal waters This chapter does not
apply to the Great Lakes or waters within the
territorial limits of a State.
STATEMENT OF THE CASE
This case is about the loss of consortium and
society suffered by a wife, Anne Doyle, when her
husband, Daniel Doyle, sustained a permanent brain
injury in a boating accident. Daniel Doyle was not
a seaman, nor was he a longshoreman. He was
seriously injured, but he did not die. His injuries did
not occur in territorial waters.
On the morning of October 31, 2003 Daniel Doyle
sustained a permanent brain injury when he was run
over by a boat in the waters off of Grand Cayman
Island. The boat was owned and operated by Leland
Graske. See, generally, App. 2-4.
Due to the brain injury, Daniel Doyle has been
unable to work. He has memory and cognition
problems. His behavior has become emotional and
erratic.
Anne and Daniel Doyle’s marriage has been
transformed. Instead of having a loving, caring
husband she can rely on — a partner — Anne is now
Daniel’s caretaker. Anne Doyle has lost the care,
companionship, and comfort that Daniel Doyle had
provided her, and which she expected to benefit from
for the rest of her life. See, generally, App. 55-58.
This case was originally filed in the state courts
of Nebraska. Graske removed the case to the United
States District Court for the District of Nebraska.
The Doyle’s consented to removal, and did not seck
a remand to state court. Thus, the district court
properly exercised jurisdiction because the Doyle's
waived any objections to removal. Grubbs v. General
Elec. Credit Corp., 405 U.S. 699, 92 S.Ct. 1344 (1972),
After a trial to the court, the court found that
Leland Graske was negligent, and that his negligence
caused Daniel Doyle’s injuries. The Court entered a
judgment in favor of Daniel Doyle for his damages,
and in favor of Anne Doyle for her loss of consortium.
The Eighth Circuit Court of Appeals affirmed the
findings of negligence, causation, and the judgment in
favor of Daniel Doyle. However, the court reversed
the judgment in favor of Anne Doyle because it
decided that she did not have a claim loss of consor-
tium under general maritime law. App. 9, 11, 18.
4
6
ARGUMENT
The circuit courts are split regarding the issues
in this case. In the First, Second, and Third Circuits
damages for loss of consortium can be recovered. In
the Fifth, Ninth, and Eleventh Circuits, and now the
Eighth, loss of consortium damages are not recover-
able. Thus, whether a spouse can recover damages for
loss of consortium depends on where she is able to file
her cause of action. This Petition should be granted
so that this Court can resolve this conflict between
the circuit courts, and establish uniformity regarding
remedies in admiralty law cases.
I. THERE IS ASPLIT IN THE DECISIONS OF
THE CIRCUIT COURTS
Before examining the split between the circuit
courts, it is necessary to identify the three federal
statutes that provide remedies for injury or death in
maritime law: the Jones Act, 46 U.S.C. §30104
(hereinafter “Jones Act”), the Longshore and Harbor
Workers’ Compensation Act, 33 U.S.C. §§901-950
(hereinafter “LHWCA”), and the Death on the High
Seas Act, 46 U.S.C. §§30301-30308 (hereinafter
“DOHSA”).
When a case comes within the parameters of one
of these statutes, then the decision is controlled by
the statutory language. Mobil Oil Corp. v. Higgin-
botham, 436 U.S. 618, 98 S.Ct. 2010 (1978). When a
case — such as this case — is not controlled by one of
these statutes, then principles of general maritime
7
law apply. Norfolk Shipbuilding & Drydock Corp. v.
Garris, 532 U.S. 811, 121 S.Ct. 1927 (2001).
A. The First, Second, and Third Circuits
Allow Damages for Loss of Consortium
The First Circuit affirmed an award of damages,
including loss of society, to an injured party’s son in
Iyon v. Ranger III, 858 F.2d 22 (1st Cir. 1988); a
wrongful death action under general maritime law.
See also CEH, Inc. v. F/V Seafarer, 70 F.3d 694 (1st
Cir. 1995) where the court affirmed an award of puni-
tive damages which, like loss of consortium damages,
are considered nonpecuniary damages. The court’s
rationale in F/V Seafarer was that if DOHSA and the
Jones Act do not apply, then nonpecuniary relief is
available. This rationale applies to damages for loss
of consortium as well.
The Second Circuit considered loss of consortium
damages in Zicherman v. Korean Air Lines Co., Ltd.,
43 F.3d 18 (2nd Cir. 1994). The court held that mari-
time law permits the recovery of damages for loss of
society (consortium). /d. at 43 F.3d 23. This Court
reversed the award of damages for loss of society
because DOHSA applied. Zicherman v. Korean Air
Lines Co., Ltd., 516 U.S. 217, 116 S.Ct. 629 (1996).
However, the initial determination that loss of society
damages are available under general maritime law
is still the law in the Second Circuit. Saunders v.
Cunard Line Ltd., 1995 WL 329323 (S.D.N-Y. 1995);
8
Wartman v. Commodore Cruise Line, Lid., 100 F.3d
943, 1996 WL 47964 (2nd Cir. 1996).
Long ago the Third Circuit recognized a claim for
loss of consortium in admiralty cases. New York &
Long Branch Steamboat Co. v. Johnson, 195 F. 740
(3rd Cir. 1912). More recently, in DeLoach v. Com-
panhia de Navegacao Lloyd Brasileiro, 782 F.2d 438
(3rd Cir. 1986), the court denied loss of consortium
damages for a child whose parent was injured.
However, in that opinion it is clear that a spousal
claim for loss of consortium is cognizable under mari-
time law. Also, in Calhoun v. Yamaha Motor Corp.,
U.S.A., 40 F.3d 622 (3rd Cir. 1994), the court held
that a state remedy for loss of consortium is con-
sistent with principles of general maritime law. See
also Matheny v. Tennessee Valley Authority, 557 F.3d
311 (6th Cir. 2009).
B. The Fifth, Eighth, Ninth, and Eleventh
Circuits Do Not Allow Damages for
Loss of Consortium
In this case the Eighth Circuit Court aligned
itself with decisions by the Fifth and Ninth Circuits
that general maritime law does not provide a remedy
for loss of consortium. Chan v. Soc’y Expeditions, Inc.,
39 F.3d 1398 (9th Cir. 1994); Nichols v. Petroleum
Helicopters, Inc., 17 F.3d 119 (5th Cir. 1994). See also
Tucker v. Fearn, 333 F.3d 1216 (11th Cir. 2003).
Nichols v. Petroleum Helicopters, Inc., 17 F.3d 119
(5th Cir. 1994) involved injuries to a longshoreman on
9
the high seas. The case did not involve claims against
the employer. Rather, the claims were asserted
against a negligent third party. The court denied
recovery for loss of consortium because it decided that
such damages were not available under general
maritime law.
In Chan v. Soc’y Expeditions, Inc., 39 F.3d 1398
(9th Cir. 1994), the circumstances were similar to this
case. The Ninth Circuit held that loss of consortium
damages are unavailable as a remedy under general
maritime law. In Chan the Ninth Circuit never
addressed the conflict between its decision and this
Court’s decision in American Export Lines, Inc. v.
Alvez, 446 U.S. 274, 100 S.Ct. 1673 (1980). The Ninth
Circuit also ignored the fact that this Court accepted
a lack of uniformity between DOHSA, the Jones Act,
and its holding in Alvez. Thus, the Chan decision has
been criticized. See, e.g., Thomas J. Schoenbaum, 1
Admiralty and Mar. Law, §5-16 (4th ed.).
Anne Doyle would be allowed to recover her
damages for loss of consortium in the First, Second,
and Third Circuits. However, the Eighth Circuit
denied her recovery for her damages. The Fifth,
Ninth, and Eleventh Circuits would deny her re-
covery as well. This lack of uniformity is untenable.
This Court should grant this Petition to resolve this
split among the circuit courts, and supply uniformity
on this issue 1n maritime law.
10
iil. LOSS OF CONSORTIUM DAMAGES ARE
AVAILABLE UNDER GENERAL MARI-
TIME LAW
Daniel Doyle was not a seaman, nor was he a
maritime worker. He was a nonseafarer. Yamaha
Motor Corp., U.S.A. v. Calhoun, 516 U.S. 199, at 205,
n.2, 116 S.Ct. 619 (1996). Therefore, neither the Jones
Act nor the LHWCA control the outcome of this case.
See Garris, supra at 532 U.S. 817-818, citing Alvez,
supra. Daniel Doyle did not die so DOHSA does not
apply. See Garris, supra at 532 U.S. 818, quoting
Moragne v. States Marine Lines, Inc., 398 U.S. 375,
90 S.Ct. 1772 (1970). Thus, none of the maritime stat-
utes control, and this case presents issues of general
maritime law.
This Court has never specifically addressed the
circumstances presented by this case: loss of consor-
tium for injury (not death), to a nonseafarer, in non-
territorial waters (the high seas). However, in other
cases that were not controlled by the maritime
statutes, this Court held that loss of consortium
damages are an available remedy. Sea-Land Services,
Inc. v. Gaudet, 414 U.S. 573, 94 S.Ct. 806 (1974);
American Export Lines, Inc. v. Alvez, 446 U.S. 274,
100 S.Ct. 1673 (1980). See also Exxon Shipping Co. v.
Baker, 128 S.Ct. 2605, at 2630, n.21 (2008).
Some of the lower courts have followed these
decisions, others, such as the Eighth Circuit in this
case, have not. Thus, one of the issues presented by
11
this case is the continuing viability of Gaudet and
Alvez.
In Gaudet this Court held that loss of consortium
damages are an available remedy in a wrongful death
action under general maritime law. In Alvez this
Court held that the decision in Gaudet extended to
nonfatal injuries. Thus, under general maritime law,
there is a remedy for loss of consortium in both injury
cases and death cases. The rationale in both cases is
that, where there is no statute to the contrary,
common law principles apply.
This Court applies the same rationale to other
issues of admiralty law. In Garris, supra, since there
was no statute to the contrary, this Court held that
the Moragne wrongful death action extends to cases
involving negligence. Likewise, in Exxon Shipping
Co. v. Baker, 128 S.Ct. 2605 (2008) this Court noted
that historically admiralty courts develop and apply
remedies where there are no controlling statutes. /d.
at 128 S.Ct. 2630, n.21. Finally, in Atlantic Sounding
Co. Inc. v. Townsend, 129 S.Ct. 2561 (2009), this
Court held that, since the Jones Act did not preclude
them, punitive damages are an available remedy.
These opinions support the rationale of Gaudet and
Alvez that common law remedies are available unless
there is congressional action to the contrary.
The rationale behind Gaudet, Alvez, and other
maritime cases is clear. This rationale has been
applied in the First, Second, and Third Circuits.
However, the Eighth Circuit, following the Fifth,
12
Ninth, and Eleven Circuits, did not follow this Court’s
rationale in this case. It is unclear why these courts
do not follow this Court’s lead, but it is clear that
their failure to do so has created a split of decisions
between the circuits.
The issue in this case is whether there is a rem-
edy for loss of consortium when there is a nonfatal
injury to a nonseafarer in non-territorial waters.
There is no statute addressing this issue. In Alvez
this Court held that loss of consortium damages were
available as a remedy for a nonfatal injury under
general maritime law. However, as reflected in the
conflict between the trial court and the Eighth Circuit
in this case, there is conflict and confusion in the
lower courts regarding whether Alvez is still good law.
A decision in this case would resolve this conflict, and
help to clarify issues related to remedies under
general maritime law.
A. Higginbotham and Miles Do Not Con-
trol the Decision in this Case
The lower courts that reject the remedy for loss of
consortium rely on two decisions by this Court. Un-
like this case, both cases were controlled by statute.
This case allows this Court to decide whether some
lower courts are justified in extending the holdings in
these cases beyond their original scope.
The first case is Mobil Owl Corp. v. Higginbotham,
436 U.S. 618, 98 S.Ct. 2010 (1978). Since Higgin-
botham involved death on the high seas, general
13
maritime law was preempted by DOHSA. However,
that preemption extends only to those cases where
DOHSA applies. Townsend, supra at 129 S.Ct. 2571,
n.6 (2009); Accord Alvez, supra at 446 U.S. 282.
DOHSA does not apply to this case.
Some lower courts, including the Eighth Circuit,
fail to recognize this limit on the decision in Higgin-
botham. Contrary to well recognized principles of
statutory construction, some lower courts “ ... attri-
bute words to Congress that it has not written.”
Townsend, supra at 129 S.Ct. 2575. See also Great-
West Life & Annuity Ins. Co. v. Knudson, 534 U.S.
204, at 216-218, 122 S.Ct. 708 (2002). As a result,
some lower courts have extended DOHSA and Hig-
ginbotham to injury cases, such as this, where they
do not apply.
The second case is Miles v. Apex Marine Corp.,
498 U.S. 19, 111 S.Ct. 317 (1990). In the interest of
uniformity, courts in some circuits have interpreted
Miles as limiting recovery in all injury and death
cases to the remedies provided in the Jones Act and
by DOHSA. This interpretation is too broad.
“The laudable quest for uniformity in admiralty
does not require the narrowing of available damages
to the lowest common denominator approved by
Congress for distinct causes of action.” Townsend,
supra at 129 S.Ct. 2574. This principle is applied by
the First, Second, and Third Circuits, but it is ignored
by the Fifth, Eighth, Ninth, and Eleventh Circuits.
14
il. A STATE LAW REMEDY SHOULD BE
APPLIED IN THIS CASE
In the Amended Complaint, Daniel and Anne
Doyle prayed for judgment against Leland Graske for
damages consistent with general maritime law and
the law of the State of Nebraska. Under Nebraska
law, damages for loss of consortium are available as a
remedy in negligence actions. See, e.g., Carlson uv.
Okerstrom, 267 Neb. 397, 675 N.W.2d 89 (2004);
Anson v. Fletcher, 192 Neb. 317, 220 N.W.2d 371
(1974).
In Yamaha Motor Corp., U.S.A. v. Calhoun, 516
U.S. 199, 116 S.Ct. 619 (1996) this Court held that
state remedies could be applied in a maritime wrong-
ful death action. “Traditionally, state remedies have
been applied in accident cases of this order —
maritime wrongful-death cases in which no federal
statute specifies the appropriate relief and the
decedent was not a seaman, longshore worker, or
person otherwise engaged in a maritime trade.” Jd. at
516 U.S. 202. Likewise, in Romero v. International
Terminal Operating Co., 358 U.S. 354, at 373-374,
79 S.Ct. 468 (1959), this Court pointed out that
admiralty law incorporates state rules and remedies
in various types of cases. See also, Wilburn Boat Co.
v. Fireman’s Fund Ins. Co., 348 U.S. 310, 75 S.Ct. 368
(1955); American Dredging Co. v. Miller, 510 U.S.
443, 114 S.Ct. 981 (1994).
15
These cases instruct courts sitting in admiralty
to look to state remedies where there is no federal
statute or policy to the contrary. Since this case in-
volves Nebraska citizens, and there is no federal
statute to the contrary, applying Nebraska’s remedy
for loss of consortium would do nothing to undermine
admiralty law. See Robinson v. Alter Barge Line, Inc.,
513 F.3d 668, at 672 (7th Cir. 2008) (State law is
preempted by maritime law only if it would under-
mine admiralty law.)
The circumstances regarding maritime law are
the same in this case as they were in Calhoun: no
federal statute specifies the appropriate relief, and
Daniel Doyle was not a seaman, longshore worker, or
a person otherwise engaged in a maritime trade.
Thus, the outcome should also be the same. Nebraska
law should apply, and Anne Doyle should be allowed
to recover her damages for loss of consortium.
IV. GRASKE WAIVED HIS DEFENSE OF
FAILURE TO STATE A CLAIM
The first tume Graske raised the issue that Anne
Doyle’s cause of action failed to state a claim was in
his post-verdict Motion. App. 59-60. It was not raised
in his Answer. It was not raised as an issue during
the Pre-Trial Conference, nor in the Proposed Find
ings of Fact and Conclusions of Law, and there was
no argument in Graske’s Trial Brief. Also, no objec-
tions were asserted during the trial when Plaintiff
16
adduced evidence regarding the loss of consortium
damages.
Pursuant to the Federal Rules of Civil Procedure,
Graske waived his defense that loss of consortium
damages are not available in this case. F.R.Civ.P.
8(bX 1&6), 8(c), 12(b), and 12(h). This Court should
exercise its supervisory powers, and direct the Eighth
Circuit to enforce the Federal Rules, as they are
written.
,
a4
CONCLUSION
The issue of remedies under general maritime
law is an important part of this Court’s admiralty
jurisdiction. However, there is a split and lack of
uniformity between the circuits regarding the remedy
for loss of consortium.
The circuit courts are split regarding the con-
tinuing viability of Gaudet and Alvez. There is a
significant split regarding the scope of Higginbotham
and Miles. In their attempts to reconcile the decisions
in Alvez, Miles, and Garris, the lower courts have
reached different conclusions.
This Court should grant this Petition for a Writ
of Certiorari because a decision on the merits in this
case would provide clarity and direction to the lower
17
courts regarding an important issue of federal law
the remedies available under general maritime law
Respectfully submitted,
JOSEPH B. MULLER
(Counsel of Record)
RONALD J. PALAGI
LAW OFFICES OF
RONALD J. PALAGI, P.C., L.L.O
3131 South 72nd Street
Omaha, Nebraska 68124
(402) 397-5000
joe@ronaldjpalagi.com
Attorneys for Petitioner
App. I
United States Court of Appeals
FOR THE EIGHTH CIRCUIT
No. 08-3144
Daniel Doyle; Anne Doyle, °
Plaintiffs/Appellees, :
Vv *
Leland Graske, * Appeal! from the
* United States
Defendant/Appellant, 4 pictrict Court for
Vv * the District of
*
Jason R. Haynes; Caribe _ Nebraska.
Inflatables USA, Inc., Kirk .
Marine,
Third Party Defendants.
a.
7
Submitted: April 16, 2009
Filed: September 2, 2009
Amended: October 21, 2009
Before LOKEN, Chief Judge, HANSEN § and
COLLOTON, Circuit Judges
COLLOTON, Circuit Judge
App. 2
Daniel Doyle suffered injuries while he was a
passenger on a boat owned and operated by Leland
Graske. Doyle and his wife brought an action in
Nebraska state court, claiming that Graske was
negligent in his operation of the boat. Graske
removed the case to federal district court, invoking
admiralty jurisdiction. Removal based on admirality
jurisdiction was improper under 28 U.S.C. § 1441, see
Romero v. International Terminal Operating Co., 358
U.S. 354, 371-72 (1959), but the Doyles waived their
objection to improper removal by failing to seek a
remand to state court, and the district court properly
exercised jurisdiction over claims that could have
been brought originally in federal court. See Grubbs
v. Gen. Elec. Credit Corp., 405 U.S. 699, 702 (1972);
Morris v. Princess Cruises, Inc., 236 F.3d 1061, 1069
(9th Cir. 2001). The district court, sitting without a
jury, found that Doyle’s injuries were caused by
Graske’s negligence, and awarded compensatory dam-
ages to Doyle, as well as loss-of-consortium damages
to his wife, Anne. We affirm the district court’s
judgment in favor of Daniel Doyle, but reverse its
award of loss-of-consortium damages to Anne Doyle.
On October 31, 2003, Graske and two friends,
Daniel Doyle and Robert Van Hook, decided to go
fishing in the waters off the coast of Grand Cayman
Island, where Graske owned a vacation home. The
three set out on Graske’s inflatable boat at around
10:30 a.m. The boat was fourteen feet long, with a
App. 3
seventy-horsepower engine and room for six passen-
gers. It featured two seats at the stern (or rear), two
more at midship, and a cushion for two passengers at
the bow (or forward end). Both seats at the stern
faced forward and included backrests. The stern seat
on the starboard side (i.e., the right side while looking
forward) was known as the “helm seat” because of its
position opposite the boat’s steering wheel, located on
a console at midship. The forward side of the console
functioned as a backrest for the starboard midship
seat. The other midship seat (on the port, or left, side)
and the bow cushion seats did not have backrests,
and passengers sitting on the latter had to ride facing
the rear. An inflatable tube formed most of the boat’s
hull, and there were hand straps along the top of the
tube for passengers sitting at midship or in the bow.
From the helm seat, Graske steered the boat
slowly through the no-wake zone — a zone extending
two hundred yards from shore in which boats are
prohibited from traveling above five miles per hour.
When the boat was past the zone, Graske said, “Here
we go,” or words to that effect, and began accel-
erating. As the boat came on plane — that is, reached
a speed at which its hull was no longer displacing the
water, but skimming across it — a nylock nut came
loose from the boat’s steering system, causing the
system to malfunction and the boat to turn abruptly
and sharply to the left.
Despite the sudden turn, Graske was able to
maintain his position behind the steering wheel. Van
Hook, who was sitting on one of the midship seats,
App. 4
managed to remain on the boat as well. Doyle,
however, was thrown overboard. Accounts differ con-
cerning where Doyle was located when he was
ejected. According to Graske, Doyle was sitting on the
inflatable tube, with his feet between the starboard
midship and bow seats, and with at least one hand on
a hand strap. According to Van Hook, Doyle was
seated on the bow cushion (having moved there from
the tube), and was not holding any hand strap. Doyle
himself cannot remember.
Wherever he was sitting, Doyle was thrown into
the water, and as the boat continued turning counter-
clockwise, it struck him in the back and on the head.
Graske immediately put the boat in neutral. Doyle
was some distance from the boat, injured but con-
scious. Graske brought the boat closer to Doyle, and
Van Hook grabbed hold of him, eventually pulling
him onto the inflatable tube.
Graske guided the boat to shore. From there,
Doyle was transported to a local hospital and then
transferred to medical facilities in the United States.
Doctors diagnosed him with a flail chest, his respira-
tion hindered by multiple rib fractures. Because of
difficulties breathing, Doyle suffered permanent
brain injury while hospitalized.
Doyle brought an action against Graske in
Nebraska state court, claiming negligence in Graske’s
operation of the boat. Graske removed the case to
federal district court, invoking admiralty jurisdiction
under 28 U.S.C. § 1333(1). He sought to implead
App. 5
several third-party defendants, including a mechanic
who repaired and reassembled the boat’s steering
system just days before the accident. Graske, how-
ever, was unable to establish personal jurisdiction
over the third-party defendants, and his claims were
ultimately dismissed without prejudice. Doyle filed
an amended complaint, adding his wife, Anne, as a
plaintiff.
Following a bench trial, the district court entered
judgment in favor of the Doyles. Applying general
maritime law, the court found that Graske was
negligent in his operation of the boat, and that
Graske’s negligence was a proximate and substantial
cause of Doyle’s injuries. It also determined that
Doyle’s own negligence contributed to his injuries,
because he should have been more aware of the
dangers around him. The court apportioned ninety
percent of the fault for Doyle’s injuries to Graske and
potential tortfeasors, including the mechanic, and the
remaining ten percent to Doyle himself. Taking ac-
count of Doyle’s comparative negligence, the court
awarded $3,238,153 in compensatory damages to
Doyle. It also awarded $750,000 in damages for loss
of consortium to Anne, but that amount did not
reflect any proportional reduction for Doyle’s com-
parative fault. Graske appeals.
IT.
Graske first challenges the district court’s finding
that he was negligent in the operation of the boat.
App. 6
Because negligence in admiralty is a factual deter-
mination, we may not set aside the district court’s
finding unless it is clearly erroneous. McAllister v.
United States, 348 U.S. 19, 20 (1954). “A finding is
clearly erroneous when although there is evidence to
support it, the reviewing court on the entire evidence
is left with a definite and firm conviction that a
mistake has been committed.” Jd. (internal quotations
omitted).
Under general maritime law, a boat owner owes a
duty of reasonable care to passengers lawfully aboard
his boat. Kermarec v. Compagnie Generale Trans-
atlantique, 358 U.S. 625, 630 (1959). The district
court found that Graske breached this duty by
bringing the boat on plane while Doyle was seated in
“a position of danger.” The court acknowledged that
according to Graske, Doyle was sitting on the tube
when the accident occurred, whereas according to Van
Hook, Doyle was sitting on the bow cushion. But the
court determined that this difference of opinion was
immaterial, because “both the tube and the bow cush-
ion seat are positions of danger while accelerating a
small watercraft on the open ocean.” Given that Doyle
was sitting at either one position or the other, the
court reasoned that Graske should have known that
it was unsafe to accelerate. Accordingly, the court
concluded that by bringing the boat on plane, Graske
App. 7
failed to exercise reasonable care for Doyle’s safety,
and was thus negligent in his operation of the boat.’
Graske does not dispute that his actions were
negligent if Doyle was sitting on the tube. Indeed,
various boating experts testified at trial that sitting
on the tube was unsafe while the boat was planing,
and there was no testimony to the contrary. Graske
focuses instead on the district court’s finding that his
operation of the boat was negligent if Doyle was
sitting on the bow cushion. Graske argues that this
finding is clearly erroneous. We disagree.
At trial, Michael Sampsel, a mechanical and
marine engineer, testified that the bow cushion was
an unsafe position while the boat was on plane.
Sampsel noted that the cushion was naturally subject
to greater motion at higher speeds, given its location
in the boat’s bow. According to Sampsel, however, the
cushion’s design did not account for such increased
motion. Quite the opposite, he explained, the
cushion’s short height — just 13.5 inches above the
deck — meant that passengers would be sitting in an
unusual posture, with their knees higher than
normal. He also noted that the lack of thigh
restraints or backrests meant that passengers would
* Graske contends that the district court abused its discre-
tion by failing to make a specific finding of fact as to where
Doyle was sitting when the accident occurred. Because Doyle’s
exact seating position is not an ultimate fact necessary to reach
a decision, we reject Graske’s contention. See Allied Van Lines,
Inc. v. Small Bus. Admin., 667 F.2d 751, 753 (8th Cir. 1982).
App. 8
be prone to sliding across the cushion. Sampsel ac-
knowledged the presence of nearby hand straps, but
maintained that they were meant for use in lifting
the boat, not for use by passengers. In Sampsel’s
opinion, therefore, the bow cushion’s location and
design rendered the seat unsafe while the boat was
on plane, and Graske violated safe boating practices
if he proceeded to accelerate with Doyle sitting there.
The testimony of two other experts was not
inconsistent with Sampsel’s conclusion. Paul Larson,
a marine surveyor and investigator, testified that
when the boat was planing, a seat at midship was “a
better and safer position” than one in the bow. He did
not rule out the possibility that if Doyle was seated
on the bow cushion when the accident occurred, then
Graske’s operation of the boat was negligent. Ac-
cording to Larson, whether Graske failed to exercise
reasonable care would depend on the circumstances.
Herbert Angell, a boating law administrator for the
State of Nebraska, took a similar position. Like
Larson, Angell testified that whether it was negligent
to allow Doyle to sit on the bow cushion would depend
on how fast the boat was traveling and other en-
vironmental conditions.
The only expert witness who stated categorically
that sitting in the bow was safe at planing speed was
Robert MacNeill, a boat manufacturing consultant.
The district court noted, however, that MacNeill’s
expertise was in designing yachts, not small recre-
ational vessels. The court therefore declined to credit
MacNeill’s testimony regarding the safe operation of
App. 9
Graske’s fourteen-foot boat. Giving due deference to
the district court’s determination of credibility, we
cannot say that its refusal to accept MacNeill’s testi-
mony was unreasonable.
In light of the record as a whole, we conclude that
substantial evidence supports the district court’s
conclusion that Graske breached a duty of reasonable
care if Doyle was seated on the bow cushion when the
boat came on plane. The definitive testimony of
Sampsel, and the fact-dependent opinions of two
other experts, provided sufficient basis for the court
to find that the bow cushion was a position of danger
under the circumstances, such that Graske should
have known not to accelerate while Doyle was seated
there. Given that the only other position where Doyle
could have been located was on the tube — a position
Graske does not dispute would have been unsafe — we
hold that the district court’s finding of negligence in
Graske’s operation of the boat is not clearly
erroneous.
IIl.
Graske next challenges the district court’s deter-
mination that his negligent operation of the boat was
a proximate and substantial cause of Doyle’s injuries.
Issues of proximate causation in admiralty “involve
application of law to fact, which is left to the
factfinder, subject to limited review.” Exxon Co.,
U.S.A. v. Sofec, Inc., 517 U.S. 830, 840-41 (1996). We
may not disturb the district court’s determination
App. 10
unless it is clearly erroneous. Am. Home Assurance
Co. v. L & L Marine Serv., Inc., 875 F.2d 1351, 1354
(8th Cir. 1989).
Graske invokes the doctrine of superseding
cause, arguing that the negligent repair of the boat’s
steering system superseded his negligent operation of
the boat, thereby relieving him of liability for Doyle’s
injuries. The allegedly negligent repair of the boat,
however, could not have been a superseding cause of
Doyle’s injuries. The doctrine of superseding cause
applies “where the defendant’s negligence in fact
substantially contributed to the plaintiff’s injury, but
the injury was actually brought about by a later cause
of independent origin that was not foreseeable.”
Sofec, 517 U.S. at 837 (emphasis added) (internal
quotation omitted). Here, the allegedly negligent re-
pair of the boat occurred before Graske’s negligence,
and thus could not have superseded it. Accordingly,
the doctrine of superseding cause is of no avail to
Graske.
Graske also invokes the doctrine of inevitable
accident, arguing that Doyle’s injuries would have
occurred as a result of the failure of the boat’s
steering system, regardless of whether Graske’s
operation of the boat was negligent. We doubt that
the doctrine of inevitable accident applies outside the
context of collision liability, where it may be raised as
an affirmative defense by vessels accused of causing
collisions. See The Louisiana, 70 U.S. (3 Wall.) 164,
173 (1865); Grant Gilmore & Charles L. Black, Jr.,
The Law of Admiralty § 7-2, at 486-88 (2d ed. 1975).
App. 11
But even assuming that the doctrine does apply in
this general context, it would not apply in this case.
An accident cannot be said to have been inevitable if
it could have been prevented by “human skill and
precaution, and a proper display of nautical skill.”
The Louisiana, 70 U.S. (3 Wall.) at 173. The district
court did not clearly err in finding that Doyle’s
injuries could have been prevented if Graske had
exercised reasonable care by waiting to accelerate
until Doyle was seated at midship or the stern. After
all, Graske and Van Hook were riding in those areas
when the boat suddenly turned, and both were able to
avoid harm. Doyle’s injuries were therefore not the
inevitable consequence of the malfunctioning of the
boat’s steering system. The district court’s finding
that Graske’s negligence was a proximate and
substantial cause of Doyle’s injuries is not clearly
erroneous.
IV.
Finally, Graske challenges the district court’s
award of loss-of-consortium damages to Doyle’s wife,
Anne. “Loss of consortium” refers to “loss of the
benefits that one spouse is entitled to receive from
the other, including companionship, cooperation, aid,
affection, and sexual relations.” Black’s Law Diction-
ary 1031 (9th ed. 2009). In the context of marriage,
the terms “loss of consortium” and “loss of society” are
used interchangeably. In re Midland Enters., Inc., 886
F.2d 812, 816 n.4 (6th Cir. 1989). Graske contends
that general maritime law does not allow recovery for
App. 12
loss of consortium by the spouse of a nonseafarer
negligently injured beyond the territorial waters of
the United States. A “nonseafarer” is someone, like
Doyle, who is neither a seaman covered by the Jones
Act, 46 U.S.C. § 30104, nor a longshore or harbor
worker covered by the Longshore and Harbor
Workers’ Compensation Act, 33 U.S.C. § 901 et seq.
See Yamaha Motor Corp., U.S.A. v. Calhoun, 516 U.S.
199, 205 n.2 (1996). We review de novo the question
whether general maritime law allows recovery for
loss of consortium. See In re Am. Milling Co., 409 F.3d
1005, 1013 (8th Cir. 2005).*
The Supreme Court’s most recent guidance on
how to approach this sort of problem came in Afélantic
Sounding Co. v. Townsend, 129 S.Ct. 2561 (2009).
There, the Court considered “whether an injured sea-
man may recover punitive damages for his employer’s
willful failure to pay maintenance and cure.” /d. at
2565. The Court began its analysis by reviewing the
history of punitive damages under the common law
generally and federal maritime law specifically. Based
on that review, the Court determined that “punitive
damages have long been available at common law,”
and that “the common-law tradition of punitive
* The Doyles contend that Graske waived his argument
that loss-of-consortium damages are unavailable under general
maritime law by raising it for the first time in a post-verdict
motion. In ruling on that motion, however, the district court
considered and rejected Graske’s argument on the merits. The
issue is a purely legal one, and we proceed to consider it.
App. 13
damages extends to maritime claims.” /d. at 2569.
The Court reasoned that because “there is no
evidence that claims for maintenance and cure were
excluded from this general admiralty rule,” the only
question remaining was whether the rule had been
abrogated by Congress’s enactment of the Jones Act,
which provided seamen a statutory cause of action for
negligence. Jd. The Court concluded that the rule had
survived the Jones Act, because the Act did not
address either maintenance and cure or its remedy.
Id. at 2572. Because Congress had not altered the
traditional understanding regarding the availability
of punitive damages in admiralty, the Court held that
“such damages for the willful and wanton disregard
of the maintenance and cure obligation should remain
available in the appropriate case as a matter of
general maritime law.” Id. at 2575.
Applying the Townsend approach here, we
conclude that there is no well-established admiralty
rule, as there is with respect to punitive damages,
authorizing loss-of-consortium damages as a general
matter. In 1963, the question whether maritime law
allowed recovery of loss-of-consortium damages by
the wife of a longshoreman negligently injured in
state territorial waters was “presented for the first
time in a federal Court of Appeals.” Igneri v. Cie. de
Transports Oceaniques, 323 F.2d 257, 258 (2d Cir.
1963). In an opinion by Judge Friendly, the Second
Circuit noted that common-law authorities regarding
a wife’s recovery for loss of consortium were “con-
flicting,” id. at 265, and that there were no maritime
App. 14
cases pertaining to the issue except for two district
court decisions denying such recovery. /d. at 265-66.
Against this backdrop, the court rejected the wife’s
loss-of-consortium claim. Jd. at 267.
Loss-of-consortium damages were not definitively
recognized under general maritime law in any context
until 1974, when the Supreme Court held in Sea-
Land Services, Inc. v. Gaudet, 414 U.S. 573 (1974),
that a wife could recover such damages for the
wrongful death of her husband, a longshoreman
killed in state territorial waters. Six years later, in
American Export Lines, Inc. v. Alvez, 446 U.S. 274
(1980), the Court extended Gaudet to personal injury
actions, holding that “general maritime law autho-
rizes the wife of a harbor worker injured nonfatally
aboard a vessel in state territorial waters to maintain
an action for damages for the loss of her husband’s
society.” Jd. at 276 (plurality opinion); see id. at 286
(Powell, J., concurring in judgment). The plurality in
Alvez explained in its discussion of the Second Circuit
decision in Jgneri that although “the principles of
maritime law prevalent in 1963 militated against,
rather than supported, the creation of a right to
recover for loss of society,” id. at 280, Gaudet had
since provided “the conclusive decisional recognition
of a right to recover for loss of society that Igneri
found lacking.” Jd. at 280-81.
The short history of loss-of-consortium damages
in admiralty consists almost entirely of the Supreme
Court’s relatively recent decisions in Gaudet and
Alvez. Given the narrow holdings of those decisions,
App. 15
general maritime law on loss-of-consortium damages
remains an area marked by few settled principles.
Thus, unlike the Court in Townsend, which was not
asked to “change maritime law in its operation as an
admiralty court,” we cannot simply apply a pre-
existing general rule left unaltered by Congress. 129
S.Ct. at 2574 n.11.
The Court in Alvez recognized a right to recover
loss-of-consortium damages for nonfatal injuries to a
spouse in the territorial waters of the United States,
but Doyle was injured nonfatally beyond such waters,
off the coast of Grand Cayman Island. Whether
someone in the position of Doyle’s wife may recover
loss-of-consortium damages is an open question in
this circuit. Because we are confronted with an issue
of first impression, we must continue the develop-
ment of general maritime law “in the manner of a
common law court.” Exxon Shipping Co. v. Baker, 128
S.Ct. 2605, 2619 (2008); see Romero v. Int'l Terminal
Operating Co., 358 U.S. 354, 360-61 (1959).
In exercising this authority, we heed the policy
choices made by Congress. “Admiralty is not created
in a vacuum; legislation has always served as an
important source of both common law and admiralty
principles.” Miles v. Apex Marine Corp., 498 U.S. 19,
24 (1990). Where there is no recognized claim under
general maritime law, as there was in Townsend, an
admiralty court should look to legislative enactments
governing closely related claims for policy guidance.
Id. at 27. After reviewing the relevant policy pro-
nouncements by Congress, we conclude that allowing
App. 16
recovery for loss of consortium here would give rise to
two serious disparities between general maritime law
and legislative policies. These anomalies counsel
against recognizing a right to recovery.
First, the spouses of those injured nonfatally
beyond state territorial waters would be treated
differently than the spouses of those injured fatally.
Congress enacted the Death on the High Seas Act
(“DOHSA”), 46 U.S.C. § 30301 et seq., to provide a
remedy in admiralty for wrongful deaths occurring
more than three miles from the shore of the United
States. Id. § 30302. Under DOHSA, a decedent’s
survivors may recover only for pecuniary loss; dam-
ages for loss of society are not available. Jd. § 30303.
The Supreme Court has held that DOHSA provides
the exclusive measure of damages in wrongful-death
actions arising beyond the three-mile limit. Mobil Oil
Corp. v. Higginbotham, 436 U.S. 618, 623 (1978).
Accordingly, the spouses of those injured fatally
beyond that limit have no claim to loss-of-consortium
damages. To allow recovery of such damages by the
spouses of those injured nonfatally in the same
waters would thus give rise to a significant anomaly.
Indeed, the Court confronted just such a disparity in
Alvez, and extended the holding of Gaudet to avoid it.
Five Justices agreed that “there is no apparent
reason to differentiate between fatal and nonfatal
injuries in authorizing the recovery of damages for
loss of society.” Alvez, 446 U.S. at 281 (plurality
opinion); see id. at 286 (Powell, J., concurring in
judgment) (“Since I see no rational basis for drawing
App. 17
a distinction between fatal and nonfatal injuries, I
join in the judgment of the Court.”). Alvez rejected a
disparity between fatal and nonfatal injuries within
territorial waters, and there is no reason to think
that a disparity of that kind beyond such waters is
more acceptable.
Second, if the spouses of injured nonseafarers
like Doyle could recover loss-of-consortium damages
on claims of negligence, then their rights under
general maritime law would be greater than the
rights of the spouses of injured seamen under the
Jones Act. Although the Jones Act provides an action
in negligence for injury to seamen, it does not
authorize recovery by the seaman’s spouse for loss of
consortium. See Miles, 498 U.S. at 32. It would be odd
if the relief available to the spouse of a nonseafarer
were more expansive than that which Congress has
afforded the spouse of a seaman. After all, the
principles of maritime law have always included “a
special solicitude for the welfare of seamen and their
families.” Id. at 36; see also Moragne v. States Marine
Lines, Inc., 398 U.S. 375, 387 (1970) (noting the
development under maritime law of “a special solici-
tude for the welfare of those men who undertook
to venture upon hazardous and unpredictable sea
voyages”). There is no reason to believe that Congress
meant to place the spouses of injured seamen in a
worse position than the spouses of injured non-
seafarers. Cf. Igneri, 323 F.2d at 267 (“We can think
of no reason why Congress, having ruled out a
maritime claim against the ship for loss of consortium
App. 18
by the spouse of a negligently injured seaman, would
wish the courts to construct one for the spouse of a
negligently injured stevedore.”).
Given the value of uniformity recognized in
Miles, 498 U.S. at 33, we agree with the Fifth and
Ninth Circuits that general maritime law does not
allow recovery of loss-of-consortium damages by the
spouses of nonseafarers negligently injured beyond
the territorial waters of the United States. See Chan
v. Soc’y Expeditions, Inc., 39 F.3d 1398, 1408 (9th Cir.
1994); Nichols v. Petroleum Helicopters, Inc., 17 F.3d
119, 122-23 (5th Cir. 1994). It may be argued in reply
that this holding creates an anomaly of its own.
Under the rule we establish here, Anne Doyle may
not recover loss-of-consortium damages, because her
husband was negligently injured in waters beyond
our nation’s territorial sea. But under the rule set
forth in Alvez (assuming that rule is not limited to
the wives of harbor workers), she would have been
able to recover for loss of consortium if the accident
had occurred within territorial waters. This kind of
disparity, however, already exists in maritime law:
Loss-of-consortium damages are available under
Gaudet when a wrongful death occurs in territorial
waters, but not under Higginbotham and DOHSA
when the death occurs on the “high seas.” See
Higginbotham, 436 U.S. at 624 & n.20. We therefore
conclude that our holding best coincides with the con-
gressional policies reflected in DOHSA and the Jones
App. 19
Act, as well as the Supreme Court’s development of
general maritime law.
* * *
For these reasons, the judgment of the district
court is affirmed in part and reversed in part.
App. 20
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
(Filed Jun. 10, 2008)
DANIEL DOYLE and )
ANNE DOYLE, ) 8:05CV21
Plaintiffs, FINDINGS OF FACT
re , AND CONCLUSIONS
OF LAW
LELAND GRASKE,
)
Defendant.
This matter is before the court for resolution
after a trial to the court from March 31, 2008 to April
8, 2008. This is an action in admiralty for damages
for personal injuries in connection with a boating
accident that occurred in Grand Cayman Island on
October 31, 2003. Plaintiffs allege negligence by
defendant Leland Graske in the operation of the boat.
This is a trial to the court.
I. Findings of Fact
A. The Accident
The evidence adduced at trial establishes the fol-
lowing. The Doyle and Graske families are longtime
friends. In October of 2003, Daniel Doyle and his
wife, Anne, visited Graske and his wife, Leslie, at the
Graske’s condominium in the Cayman Islands.
Leland Graske owns a 14-foot Caribe inflatable
boat for recreational purposes in the Cayman Islands.
See Trial Exhibit (“Tr. Ex.”) 1, replica drawing of a
App. 21
Caribe 14-foot boat; Tr. Exs. 2-15, photographs of
boat. The boat has seating for six people and is rated
for a float capacity of six adults. Tr. Ex. 2-15, 205,
photographs of boat; Tr. Ex. 18, Caribe owner’s
manual, and testimony of Leland Graske. In the boat,
there is forward-facing seating for two aft, two mid-
ship, and rear-facing seating for two on a cushion in
the bow. Id. The bow cushion seating is approxi-
mately four to five inches below the top of the inflated
sides (gunnel) of the boat.’ Tr. Ex. 221, photograph.
The aft and midship seats are angled down from front
to aft. Tr. Exs. 209, 211, photographs. The bow seat is
flat. Tr. Ex. 221, photograph. All the seats measured
from the top of the seat cushion are approximately
16" above the deck (the bow seat being 13.5"). Tr. Exs.
211, 216, photographs. The aft seat has a back rest.
Tr. Ex. 219, photograph. The midship seat has a back
rest for the starboard side only. Tr. Ex. 220, photo-
graph. The bow seat has no back rest, but it does
have a back stop of approximately 5 inches. Tr. Ex.
221, photograph. There are gunnel hand-hold straps
(hand straps) for the midship and bow passengers.
Tr. Exs. 206, 289, photographs. The boat was
equipped with an outboard 70-horsepower two-cycle
engine manufactured by Yamaha. Tr. Ex. 207. A
70-horsepower engine is the maximum horsepower
engine approved for use on the craft. Tr. Ex. 18,
Caribe owner’s manual at 4.
' A gunnel is the outer side or hull of the boat. In this case
the tube is the gunnel. See Testimony of Herbert Angell.
App. 22
The evidence adduced at trial shows that the
boat had been repaired by a local mechanic employed
by Kirk Marine a few days before the accident that is
the subject of this action. Leland Graske testified that
the steering mechanism had been frozen. In the
repair, Kirk Marine reported that its mechanic had
disassembled and lubricated the steering mechanism.
The engine had been used for approximately two
hours in the time between the repair and the acci-
dent. During those two hours the engine was used at
idle or low rpms to travel close to shore.
Leland Graske testified that he has been a boat
owner and operator for most of his adult life. Doyle
had limited experience as a boat owner and operator.
He owned a boat for use on the Missouri River for
several seasons and he also owned a small fishing
boat that he used infrequently. Graske also testified
that he believes that Daniel Doyle is an above-
average risk-taker. He would rate Doyle’s risk-taking
as 8 on a scale of 1-10, ten being the highest.
The testimony at trial establishes that on
October 31, 2004, at approximately 10:30 a.m., Daniel
Doyle, Leland Graske and Graske’s friend, Robert
(Bobby) Van Hook went fishing in Graske’s Caribe
inflatable boat. Graske testified that he swam to the
boat’s mooring and brought the boat back to shore,
where Doyle and Van Hook boarded the boat with a
cooler, a fishing tackle box, and fishing rods. No one
was wearing a life jacket. There is considerable
disagreement in the testimony with regard to the
seating of the passengers in the boat.
App. 23
Doyle testified that he has little or no recollection
of the event. Leland Graske testified that he was
driving the boat and was standing or sitting behind
the midship starboard side steering panel, which
rises above the boat’s gunnel level and has a wind
screen.” Graske testified that he recalls Van Hook
sitting in the midship starboard side seat holding a
diagonal hand strap located on the inside of the port
inflatable tube. Graske consistently maintains that
Daniel Doyle was seated on the starboard inflated
tube, holding at least one hand strap and with his
feet between the midship seat and the bow cushion
seat. He testified that he does not believe Doyle
changed position until he was ejected from the boat.
Bobby Van Hook testified that he was seated on
the port side of the midship seat, the fishing equip-
ment was on the starboard side and the tackle box
and cooler were on the deck in front of the midship
seat. He stated that the fishing rods were propped
between the bow and the midship seating area,
slanting upward toward the stern, on the starboard
side. (Tr. Ex. 1). He testified that Graske was seated,
not standing, behind the steering wheel. Van Hook
also testified that he believes Doyle was initially seated
on the port side inflated tube, toward the bow, adja-
cent to or above the bow seat. Van Hook testified that
as the boat accelerated, Doyle moved to a fully-seated
* Starboard is the right side of the boat when facing forward
to the bow of the boat and port is the left side of the boat. See
Testimony of Herbert Angell.
App. 24
position in the bow seat on the port side of the seat. It
was from this position that the plaintiff was ejected
from the boat. He does not recall Doyle holding any
hand straps.
Graske testified that after the occupants were on
board, he steered the boat, at idle speed, through the
no-wake zone. He testified that he announced to the
passengers that the boat was about to accelerate by
saying words to the effect “Here we go.” He then
increased speed to put the boat on plane.’ The boat
came on plane and, as the defendant was adjusting
the trim, the steering linkage disengaged. The motor
swung violently clockwise causing the boat to turn
hard to the port side.
Doyle was ejected from the boat over the star-
board side. The underside of the boat struck him on
the right side of his back and the back of his head.
Graske testified that he immediately put the boat in
neutral or killed the motor. He and Van Hook located
Doyle in the water. Graske was able to steer the boat
by holding the engine’s drag link in one hand and the
throttle in the other. Doyle was hurt, but coherent.
He apparently did not lose consciousness, nor was he
bleeding. Graske and Van Hook brought Doyle back
to shore. Once on shore, they helped him walk to the
* “On plane” means that the boat is going fast enough that
the hull of the boat is skimming along the top of the water
rather than displacing the water. See Testimony of Herbert
Angell.
App. 25
edge of the beach. They called an ambulance which
took him to the Cayman Islands Health Services
Authority Hospital in Georgetown, Grand Cayman
(“Georgetown Hospital”).
B. The Medical Evidence
At Georgetown Hospital, the emergency room
staff diagnosed Doyle with fractures of multiple right
posterior ribs, a right flail chest,‘ a right hemothorax,
a right pnuemothorax, right posterior chest surgical
emphysema, and multiple minor lacerations to his
posterior skull, right arm and right shoulder. See
Tr. Ex. 37, Georgetown Hospital medical records at 1-
2, 36. On admission, Doyle had no adverse neurologic
signs or symptoms. /d. at 2, 36-37.
Doyle was treated with insertion of a chest tube
and transferred to intensive care. Jd. at 3-5. On the
third day of his hospital stay, November 2, 2003, at
4:15 p.m., Georgetown hospital staff witnessed a
cardiopulmonary arrest. Jd. at 49. Cardiopulmonary
resuscitation was initiated immediately and the code
team arrived within five minutes. /d. Doyle was
intubated and was placed on a ventilator by 4:30 P.M.
Id. Thereafter, the plaintiff was sedated, medically
paralyzed and kept on a ventilator. Jd. at 27-29. On
November 4, 2003, a chest x-ray showed bilateral
changes consistent with acute respiratory distress
* A flail chest describes a chest cavity in which the ribs do
not provide enough rigid support for effective inspiration.
App. 26
syndrome. /d. at 32-33. Later that day, Doyle was
transported by air to the United States for treatment.
Id. at 34-35. Originally, Doyle was to have been trans-
ferred directly to University of Nebraska Medical
Center (“UNMC’”) in Omaha, Nebraska, but, because
the respirator in the air ambulance was malfunc-
tioning, Doyle was instead transported, along with
Georgetown Hospital’s ventilator, to Memorial
Regional Hospital in Hollywood, Florida (“Hollywood
Hospital”). Jd. at 35; Tr. Ex. 38, Hollywood Hospital
medical records.
Doyle was admitted in critical condition to the
Hollywood Hospital at 2:37 a.m. on November 5,
2003. Tr. Ex. 38, Hollywood Hospital records at 60.
On admission, his injuries were noted to be “a flail
chest involving the right hemithorax with multi rib
fractures, essentially involving the entire right hemi-
thorax.” Id. at 24. He was diagnosed with fractures of
all eleven right posterior ribs and his right scapula.*
* A hemithorax is one side of the thorax, which is “(t]he
upper part of the trunk between the neck and the abdomen; it is
formed by the 12 thoracic vertebrae, the 12 pairs of ribs, the
sternum, and the muscles and fasciae attached to these; below, it
is separated from the abdomen by the diaphragm; it contains the
chief organs of the circulatory and respiratory systems.” Sted-
man’s Medical Dictionary (27th ed. 1994) (available on Westlaw
at Stedmans 177000 & 408370).
* The scapula is “[a] large triangular flattened bone lying
over the ribs, posteriorly on either side, articulating laterally
with the clavicle at the acromioclavicular joint and the humerus
at the glenohumeral joint. It forms a functional articulation
with the chest wall, the scapulothoracic articulation.” Stedman’s
(Continued on following page)
App. 27
Id. at 25-27. Diagnostic tests also showed underlying
pleural effusion and a minimal anterior pnuemo-
thorax.’ Jd. at 28. On November 7, a tracheostomy
was performed to provide a permanent airway for his
continued ventilation.” Jd. at 3, 62. A gastrostomy
feeding tube (“G-tube”) was also surgically placed
that day. Jd. at 3. Doyle later developed respiratory
insufficiency and was transported to UNMC on
November 14, 2003. /d.
Doyle was admitted to UNMC at 9:46 p.m. on
November 14, 2003. Tr. Ex. 39, UNMC records at 37.
Doyle’s attending physician at UNMC was Dr. Joseph
C. Stothert, M.D., Ph.D., the Medical Director for
Trauma at UNMC, a surgeon and a Ph.D. Pulmonary
Physiologist. Tr. Ex. 79, Stothert curriculum vitae;
Tr. Ex. 39, UNMC records at 6. He was discharged on
November 19, 2003. Tr. Ex. 39, UNMC records at 38.
It was noted in Doyle’s discharge summary that he
had been admitted on a ventilator, had a feeding tube
Medical Dictionary (27th ed. 1994) (available on Westlaw at
Stedmans 364860).
" A pleural effusion is increased fluid in the plural space.
Stedman’s Medical Dictionary (27th ed. 1994) (available on
Westlaw at Stedmans 125240). The pleura is the serous mem-
brane enveloping the lungs and lining the walls of the pleural
cavity. Id. at 321290. A pnuemothorax is the presence of free air
or gas in the pleural cavity. Jd. at 323250. External compression
of the lung by a pneumothorax or pleural effusion can lead to a
pulmonary collapse. Id. at 85710.
* Atracheostomy is an operation to make an opening in the
trachea. Stedman’s Medical Dictionary (27th ed. 1994) (available
on Westlaw at Stedmans 414210).
App. 28
in place, and had suffered a closed head injury that
left him confused and agitated at times. Jd. at 37.
During his hospitalization, Doyle was weaned from
the ventilator and his condition improved to allow
him to eat some regular food. Jd. At the time of his
discharge, he was able to speak well and to recognize
family and friends. Jd. Doyle received occupational
and physical therapy consultations for ambulation,
strength, and to learn how to perform the activities of
daily living. Jd. He was assessed for inpatient reha-
bilitation by a physical medicine and rehabilitation
specialist, Dr. Jason Schave. Jd. at 40. Dr. Schave
diagnosed Doyle with anoxic encephalopathy with
coordination difficulties and confusion, impaired ac-
tivities of daily living and mobility, dysphagia,” and
agitated behavior. Jd. Doyle was referred to Metho-
dist Hospital Acute Rehabilitation Center (“Methodist
Acute Rehab”) for inpatient rehabilitation. /d. at 37.
Doyle underwent a long course of physical and
neurological rehabilitation. Tr. Ex. 40, Methodist
Acute Rehab medical records at 14. He was hos-
pitalized at Methodist Acute Rehab from November
19, 2003, to December 5, 2003, for medical care and
occupational and physical therapy as part of a com-
prehensive brain injury rehabilitation program. /d.
Doyle’s treating physician there was Dr. Jude Cook,
M.D., an internist and physical medicine and
* Dysphagia is difficulty swallowing. Stedman’s Medical
Dictionary (27th ed. 1994) (available on Westlaw at Stedmans
122190).
App. 29
rehabilitation specialist (also referred to as a physia-
trist). Jd. at 10; Tr. Ex. 107, Cook curriculum vitae.
At the time of his admission, Doyle had right rib
fractures, a right clavicle fracture, a right scapular
fracture, a G-tube placed, a tracheostomy, he was
agitated and had symptoms of dysphagia. Tr. Ex. 104,
Trial Deposition of Jude Cook, M.D. (“Cook Dep.”) at
33. Dr. Cook diagnosed traumatic brain injury and
anoxic encephalopathy.” Id. at 34. A neurological
examination revealed a brain injury rated level IV on
the Rancho Los Amigos scale, a scale that helps
medical professionals determine a person’s level of
impairment secondary to brain injury.” Jd. at 6. A
person with a Rancho level IV brain injury demon-
strates poor memory, insight and judgment, lack of
awareness of his physical ailments and environment
and agitation. Jd. at 11. Dr. Cook did not diagnose
Doyle with depression, but testified that people in a
Rancho level IV of brain injury often lack the aware-
ness of their environment or personal health that
would lead them to be depressed. Jd. at 11. Dr. Cook
also found that Doyle’s cerebellar functioning, which
relates to fine motor control and coordination, was
' Encephalopathy is any disorder of the brain. Stedman's
Medical Dictionary (27th ed. 1994) (available on Westlaw at
Stedmans 129640). Anoxia is absence or almost complete ab-
sence of oxygen from inspired gases, arterial blood, or tissues.
Id. at 24700.
‘' See also Rancho Los Amigos National Rehabilitation
Center website (“Rancho Los Amigos website”), http//www.rancho.
org/patient_education/cognitive_levels.pdf
App. 30
slow but intact. Jd. at 13. Dr. Cook established goals
of brain injury recovery, education of the patient and
his family regarding brain injury issues, improving
Doyle’s mobility to a standby assist level, improving
his activities of daily living and his swallowing to
an ultimate goal of removal of his tracheostomy.
Id. at 14-15.
During the term of the hospitalization, Doyle’s
rib fractures resolved, his ability to swallow im-
proved, and his tracheostomy was removed. Tr. Ex.
40, Methodist Acute Rehab medical records at 14. Dr.
Cook’s discharge summary notes that during the
hospitalization Doyle’s cognition slowly improved
from a Rancho level IV to a near Rancho level VI at
the time of his discharge.” Jd. Significantly however,
Doyle still had a gastronomy tube, mild agitation and
reactive depression secondary to his head injury.
Id. at 13.
Doyle was followed on an outpatient basis by Dr.
Cook. Tr. Ex. 104, Cook Dep. at 25. In May 2004, Dr.
Cook reported slow improvement. Jd. Cook examined
Doyle again in November 2004, and noted that test
results were consistent with a moderate to severe
“ Rancho level VI is labeled “Confused-Appropriate.” At
that level, “a patient shows goal-directed behavior, but relies on
cueing for direction. He can relearn old skills such as activities
of daily living, but memory problems interfere with new learn-
ing. He has a beginning awareness of self and others.” See
Rancho Los Amigos website, http//www.rancho.org/research_pted.
htm
App. 31
brain injury. Cook Dep. at 29. When Doyle was last
seen by Dr. Cook in May 2006, he was neurologically
the same as he had been in the previous examination,
but continued to be depressed. Jd. at 42. Based on Dr.
Cook’s examination of Daniel Doyle, Doyle’s history
and Dr. Cook’s collaborative consultations with other
physicians and health providers, Dr. Cook testified
that he believed to a reasonable degree of medical
certainty that Daniel Doyle is permanently disabled
and unemployable. Jd. at 30-31.
After his release from Methodist Acute Rehab,
Doyle was referred to Dr. Richard L. Bowles, Psy.D., a
rehabilitation neuropsychologist, for testing to deter-
mine the extent of impairment from the brain injury.
Id. at 18-19; Tr. Ex. 42, Neuropsychological Evalua-
tion dated March 1, 2004 (“Bowles first report”) at 1;
Tr. Ex. 67, Deposition of Richard L. Bowles, Psy.D.,
(“Bowles Dep.”) at 5. Dr. Bowles diagnosed dementia
secondary to acquired brain injury and depressive
reaction by history. Tr. Exs. 42, Bowles first report at
7; 104, Cook Dep. at 19; Bowles Dep. at 38. Dr.
Bowles reported considerable impairment in numerous
cognitive areas including attention/concentration,
processing speed, memory and executive functioning
and problem solving. Tr. Ex. 104, Cook Dep. at 23;
Tr. Ex. 42, Bowles first report at 6. Test results
indicated a moderately severe degree of overall
impairment. Tr. Ex. 42, Bowles 2004 Report at 7.
Bowles recommended 24-hour supervision. Jd. At the
time of the first exam, Dr. Bowles expected Doyle to
recover further over the following several months to a
App. 32
year. Id. Dr. Bowles reexamined Doyle in July 2004.
Tr. Ex. 43, Neuropsychological Evaluation dated
March 1, 2004 (“Bowles second report”) at 2. The
second neuropsychological examination showed a
moderate to severe brain injury. Jd. at 6. Test results
were generally consistent with those obtained in the
earlier testing, but there were significant declines in
some areas. Id. at 4, 6. Doyle continued to exhibit
deficits in short term memory, basic and complex
attention as well as decreased vigilance and slowed
processing of information. Jd. at 6. Given Doyle’s rela-
tive lack of progress, Dr. Bowles was concerned about
the prognosis for recovery of cognitive function. /d.
Doyle’s last neuropsychological evaluation was
performed by Dr. Bowles in 2005. Tr. Ex. 44, Neuro-
psychological Evaluation dated June 23, 2005
(“Bowles third report”) at 2. Doyle’s scores on various
tests reflected little change from his 2004 testing. Jd.
at 7. Dr. Bowles found Doyle’s status to be incom-
patible with the ability to operate a motor vehicle
safely. Jd. Dr. Bowles testified by deposition that
Doyle’s physical condition is at its maximum improve-
ment. Tr. Ex. 67, Bowles Dep. at 50-52. Dr. Bowles
stated that Doyle’s psychological condition may be
improved with different therapies, but it too is static.
Id.
At present, the record shows that, although he is
within the average range of global intellectual func-
tioning, Doyle has deficits in verbal and visual short-
term memory, concentration and complex attention,
processing word speed and categorical fluency as well
App. 33
as diminished motor speed and coordination in both
hands. Tr. Ex. 44, Bowles third report at 7. He has
little motivation, questionable judgment and lacks
awareness of safety. Id. Doyle continues to need
ongoing supervision as a result of the questionable
reliability of his judgment and his lack of awareness
of safety-related issues. /d. His signs and symptoms
are consistent with a moderate to severe brain injury.
Id. Dr. Bowles also stated that Doyle’s status was not
compatible with the ability to operate a motor vehicle
safely. Id. Dr. Bowles reports that he expects Doyle’s
cognitive status to remain stable into the future,
barring a stroke or other brain injury. Jd. at 7.
On his treating physician’s recommendation,
Doyle received outpatient therapeutic services from
Quality Living, Inc., in Omaha from 8/2004 to 3/2005.
Quality Living records show that he did not make
much progress there with the therapy. Tr. Ex. 41,
Quality Living, Inc.’s medical records at 21. Other
records show that Doyle’s cognitive level improved
from a Rancho level IV (confused and agitated)
to a level VI (confused and appropriate). Tr. Ex. 46,
Giiter records at 7; see also Rancho Los Amigos web-
site, http//www.rancho.org/patient_education/cognitive_
levels.pdf."*
"’ Rancho level VII is theoretically the highest level a
thinking-impaired patient can achieve short of full recovery. See
Rancho Los Amigos website, http//www/rancho.org.
App. 34
At the present time, Doyle is being treated by his
family physician, an internist, Dr. Michael F. Giiter.
Tr. Ex. 46, Giiter medical records. Dr. Giiter’s notes
indicate that Doyle has diagnoses of reactive depres-
sion and decreased mental status secondary to brain
injury. Jd. at 49. Doyle is also being treated by a
psychiatrist, Dr. Rodney L. Nitcher, D.O., Tr. Ex. 45,
Nitcher medical records. Dr. Nitcher has expressed
the opinion that Doyle’s psychiatric condition is
chronic and that Doyle needs 24-hour supervision and
cannot live alone. Tr. Ex. 288, Allison questionnaires
at 3; Tr. Ex. 24, Allison Supplemental Life Care
Plan at 2.
All of Doyle’s treating physicians agree that he is
permanently and totally disabled. Dr. Cook testified
to his opinion that Doyle suffered a traumatic brain
injury from his boating accident as well as an anoxic
encephalopathy due to subsequent events. Tr. Ex.
104, Cook Dep. at 35. All of the doctors agree that his
condition relates to an injury sustained as a result of
the boating accident described above. See Tr. Ex. 78,
Report of Dr. Joseph C. Stothert at 1 (noting “the
original injury on October 31, 2003 caused a deterio-
ration in Mr. Doyle’s respiratory status leading to an
anoxic event” and “the injury to his chest and sub-
sequent events caused the brain injury that Mr. Doyle
currently suffers from”). The physicians further agree
that it is unlikely Doyle sustained the closed head
injury at the time of accident, but is more likely that
he had an anoxic hypoxic event during his hospital
treatment for the injuries he sustained during the
App. 35
boating accident.“ Tr. Ex. 104, Cook Dep. at 34. No
doctor is of the opinion that the anoxic hypoxic event
is unrelated to the boating accident.
C. Duty of Care
At trial, the plaintiffs presented the testimony of
Herbert Charles Angell, Nebraska State Boating Law
Administrator, with respect to the duty or standard of
care for the operator of a boat. See also Tr. Ex. 58,
Herbert Angell curriculum vitae. Angell testified that
he has investigated more than a thousand boating
accidents. He reviewed several boating safety publica-
tions. See Tr. Ex. 89, United States Coast Guard
(“USCG’”) inland rules for navigation; Tr. Ex. 92, 2007
Nebraska boating guide. He stated that his review of
the evidence in this case led him to conclude that
Doyle had been seated on the top of the tube, or
gunnel, on the starboard side toward the bow. He
testified that, in his opinion, Graske should not have
allowed Doyle to sit on the starboard right gunnel or
tube and that to have done so violated safe boating
practices. He testified that even if Doyle had been
seated in the bow seating area at the front of the
boat, facing backward, Graske’s operation of the boat
“ Anoxia is absence or almost complete absence of oxygen
from inspired gases, arterial blood, or tissues. It is to be
differentiated from hypoxia, which is a decrease below normal
levels of oxygen in inspired gases, arterial blood, or tissue, short
of anoxia. Stedman’s Medical Dictionary (27th ed. 2000) at [on
Westlaw] Stedmans 24700 & 196860
App. 36
would have been unsafe and “negligent.” He testified,
assuming that Van Hook’s version of events were
true, that Doyle was at first seated on the tube, but
sometime in the period of time between the boat’s
proceeding at no-wake speed and coming up on plane,
Doyle assumed a position on the bow seat and was
told by both Van Hook and Graske to hold on, but did
not do so, it would have been an unsafe boating prac-
tice for Graske to proceed. Angell also testified that at
planing speed the only safe seating for anyone other
than the operator would be in the middle seat facing
forward. He stated that the distance between the
cushioned area and the top of the tube would not
provide an adequate backrest to allow safe seating in
the bow cushion seating area.
Michael Sampsel, a mechanical and marine engi-
neer, also testified as an expert witness on behalf of
the plaintiffs. He testified that based on the evidence
he had reviewed, the hull planing speed of a boat
similar to Graske’s is estimated to be less than 30
MPH. He further testified that the cushion on the
bow of the boat — on which Van Hook claims Daniel
Doyle was seated — is not designed to be a seat when
the boat is “underway,” or going faster than a fast
idle.
Paul J. Larson, a marine accident investigator,
marine surveyor, consultant and retired Commander
in the USCG, testified that he also investigated
the accident. Tr. Ex. 54, Larson curriculum vitae.
He reviewed the deposition testimony in this case as
well as various boating safety regulations, guides and
App. 37
statistics. See Tr. Ex. 87, USCG requirements for
recreational boats; Tr. Ex. 88, USCG boating statis-
tics; Tr. Ex. 93, California Boating Law; Tr. Ex. 94,
Federal Safety Tips. Based on his knowledge and
investigation of this and numerous other “fall over-
board” type accidents, he testified that, in his opinion,
it was “negligent” for Graske to have allowed Doyle to
sit on the tube of the boat. He testified that the
operator of a boat is responsible for all aspects of safe
operation of the vessel. In his opinion, a sudden me-
chanical failure caused the accident, but the unsafe
boating by Graske in allowing Doyle to remain seated
on the tube while the boat was underway was the
cause of Doyle’s fall overboard. Also, he testified that
a shipowner has a nondelegable duty to maintain a
ship in a seaworthy condition. Larson also testified
that if a passenger were sitting on the tube of the
boat, holding the hand straps would not have pre-
vented ejection from the boat. He further testified
that, even if the testimony of Bobby Van Hook were
credited and Doyle moved from the tube to the bow
cushion seat after the vessel was underway and was
warned to hold a hand strap, but did not, Graske’s
operation of the boat would have been in violation of
safe boating practices. Larson also stated that the
bow cushion area would not have been a safe seat
while the boat was underway at planing speeds.
The defendant’s expert, Robert MacNeill, a naval
architect, human factors engineer and Coast Guard
Licensed Captain, also testified at the trial. Tr. Ex.
261, Robert MacNeill curriculum vitae. He testified
App. 38
that he has investigated or reviewed investigations of
hundreds of boating accidents in connection with
consulting provided to the Coast Guard with respect
to the implementation of the federal boat safety act.
He further stated that in preparation for testimony in
this case he physically inspected and operated Leland
Graske’s inflatable boat. Tr. Ex. 202-227, photographs
of boat, Tr. Ex. 260, Supplemental Report of Robert
MacNeill (received for limited purpose of measure-
ments). He testified that, in his opinion, there are
occasions when it would be safe to allow a passenger
to sit on the tube of an inflatable boat. With respect to
a duty of pre-trip inspection by a boat operator, he
stated that it would be sufficient for the operator to
make sure that the boat was operational. He also
testified that, in his opinion, any passenger who was
seated in the front of the boat and was not holding on
to a hand strap would have been thrown out of the
boat in a sudden turn. He also testified that he knew
of no rules, regulations, or standards that would
require a boat operator to insist that a passenger hold
a handhold.
D. Damages
Daniel Doyle’s wife, Anne, and his children also
testified at the trial. They testified with respect to
Doyle’s abilities and disabilities and to differences in
his personality since the accident. Anne Doyle also
testified to the differences to her life and to the
Doyles’ marriage since the accident.
App. 39
The parties have stipulated that the Doyles have
incurred medical bills to date in the amount of
$252,517. Filing No. 295, Ex. A, Stipulation, Tr. Ex.
22, Summary of Medical Bills. The evidence shows
that prior to the accident, Daniel Doyle was employed
as a mechanical engineer earning between $52,692
and $57,301 per year for the years 1999 to 2002.
Tr. Exs. 81-85, Income Tax Returns, 1999-2003. He
would have been expected to continue working until
he reached age 66, his Social Security full retirement
age. Tr. Ex. 255, John Scarborough Supplemental
Economic Loss Analysis at 2. There is no evidence
that he would have been inclined to retire any earlier.
Both parties submitted evidence on the cost of
providing medical and supportive care to Doyle in the
future. According to life expectancy tables, Doyle
would be expected to live to age 79. Tr. Ex. 80, Stan-
dard Ordinary Mortality Table; Tr. Ex. 25, Report of
Kent Jayne at 8. The plaintiffs’ expert, Kathie
Allison, a certified life care planner, presented three
alternative life care plan scenarios. Tr. Ex. 23, Allison
Life Care Plan; Tr. Ex. 24, Supplement to Life Care
Plan. Option I would provide additional assistance for
Doyle to remain in his home, such as help with home
maintenance and cleaning, as well as a household
attendant for 111.6 hours per week, and would cost
$66,811 to $67,051 annually, in today’s dollars. Tr. Ex.
23 at 10; 24 at 4. Option II would provide for live-in
care for Doyle and would cost between $102,500 and
$109,500 annually, at the rate for care of $280 to $300
per day. Id. Option III would provide supportive
App. 40
living at a facility designed for brain-injured people,
such as Quality Living, Inc., and would cost $82,125
annually. Jd. Under each option, Ms. Allison’s life care
plan would also include additional sums for physi-
cians’ visits, medication and supplies, physical and
occupational therapy, equipment, and mileage, at an
approximate cost of between $2,434 and $3,049 per
year. Id. at 4. Ms. Allison estimates the lifetime cost
for Doyle’s care under Option I would be $1,830,876
to $1,866,462; under Option II would be $2,765,834 to
$2,978,611; and under Option III would be $2,232,140
to $2,261,386 in today’s dollars. Jd.
William H. Burke, Ph.D., a certified rehabilita-
tion counselor and Board-certified disability analyst
and rehabilitation consultant, testified on behalf of
the defendant. Tr. Ex. 258, William Burke, Ph.D.
curriculum vitae. He stated that he had reviewed
Doyle’s medical records, physicians’ recommenda-
tions, Ms. Allison’s life care plan and the depositions
and testimony in this case. He concluded that Daniel
Doyle has a combination of cognitive and higher
cognitive deficits that interfere with his ability to live
independently. He agreed that Doyle needs someone
available for round-the-clock care. He also presented
several options for Doyle’s continued care. Tr. Ex. 257.
Each included costs for medical care, equipment and
medication.
Dr. Burke’s first option for Doyle’s supportive
care is based on the assumption that Mrs. Doyle
would continue to care for Daniel Doyle in his home
and that she preferred to do so. Jd. at 13. Dr. Burke
App. 41
testified that this option contemplates the utilization
of a community living coach for 40 hours per week to
enable Doyle to perform work-type activities in the
community. Dr. Burke estimated that the community
living coach services could be provided for $23,712
per year. Id. at 15.
Option II assumes that Mrs. Doyle would not be
available and would provide Doyle with a live-in
personal care attendant and homemaker along with
household production assistance and case manage-
ment to replace those services provided by his wife.
Id. Dr. Burke estimated that the services of a live-in
personal care attendant could be obtained for
approximately $50,219 per year, including room and
board. Id. at 16.
Option III provides for placement of Doyle in an
assisted-living facility. Dr. Burke estimated that this
option would cost between $28,416 and $49,320 per
year. Dr. Burke’s calculations do not include any
compensation for Mrs. Doyle or other family members
in caring for Doyle. Dr. Burke testified that he
envisioned the assisted-living option to be utilized
when Doyle was elderly.
The plaintiffs’ economic expert witness, Kent
Jayne, M.A., M.B.A., a vocational Economic Con-
sultant and Rehabilitation economics _ specialist,
calculated the value of Doyle’s lost earnings as of July
2007 to be $152,826. See Tr. Ex. 25, Report of Kent
Jayne at 8; Tr. Ex. 61, Kent Jayne curriculum vitae.
He calculated that the present value of Doyle’s
App. 42
diminished earning capacity from July 1, 2007 to his
retirement age of 66 is $817,112. Jd. The defendant’s
economic expert, John Scarbrough, Ph.D., calculated
Doyle’s lost future wages according to a worklife
expectancy of 12.6 years from the age of 49, to
account for the likelihood that Doyle would not live to
the age of 66, or would have been out of the workforce
at times. Tr. Ex. 255, Scarbrough Supplemental
Report at 4. He also factored the projected cost of
health insurance and retirement benefits into his
future earnings analysis and also calculated the
present value of Doyle’s lost earnings before and after
a deduction of Doyle’s Social Security disability
benefits. Jd. Dr. Scarbrough’s analysis resulted in a
total net economic loss for past and future wages in
the amount of $886,696 (present value), if disability
payments were deducted, and of $1,059,785, without
the deduction of disability payments.
Dr. Scarbrough also analyzed the future cost of
medical care and supported living for Doyle and
calculated present value under both Ms. Allison’s Life
Care Plan and the plan proposed by Dr. Burke.
Tr. Ex. 255, Scarbrough Supplemental Report at 4.
According to Dr. Scarbrough’s analysis, the present
value of the future costs of Doyle’s care under Ms.
Allison’s Option I (household attendant) would be
$1,580,750. Id. at 21, Table A.2 for Option I. The
present value of the future costs of Doyle’s care under
Ms. Allison’s Option II (live in care) would be
$2,449,476. Id. at 22, Table A.2 for Option II. The
present value of the future costs of Doyle’s care under
App. 43
Ms. Allison’s Option III (supported living) would be
$1,919,934. Id. at 23, Table A.2 for Option III. Under
the scenarios presented by defendant’s expert, Dr.
Burke, the present value of the future costs of Doyle’s
care under Option I (wife available) would be
$656,762. Id. at 30, Table A.4 for Option I. The
present value of the future costs of Doyle’s care under
Option IT (wife not available — home care) would be
$1,285,272. Id. at 31, Table A.4 for Option II. The
present value of the future costs of Doyle’s care under
Option III (wife not available — facility care) would be
$930,691. Jd. at 32, Table A.4 for Option III.
Il. Conclusions of Law
A. Law
This action arises under the admiralty and
maritime jurisdiction of this court pursuant to 28
U.S.C. § 1333. General maritime law governs a tort
claim when conditions of location and connection to
maritime activity are satisfied. Sisson v. Ruby, 497
U.S. 358, 369 (1990). The general tort concepts of
negligence and proximate cause apply in admiralty
and maritime cases. Phillips Petroleum Co. v. Stokes
Oil Co., 863 F.2d 1250, 1255 (6th Cir. 1988). In tort
actions, courts look to the Restatement (Second) of
Torts as a source of general common law principles to
determine general maritime law. See Wells v. Liddy,
186 F.3d 505, 525 (4th Cir. 1999); Wallis v. Princess
Cruises, Inc., 306 F.3d 827, 841 (9th Cir. 2002).
App. 44
In order to succeed on a claim of negligence
under maritime law, a plaintiff must establish all
elements of a negligence cause of action in admiralty,
which are essentially the same as land-based negli-
gence under the common law: 1) the existence of a
duty of care owed by the defendant to the plaintiff;
2) the breach of that duty of care; 3) a causal connec-
tion between the offending conduct and the resulting
injury, which is called “proximate cause”; and 4) actual
loss, injury or damage suffered by the plaintiff. Pearce
v. United States, 261 F.3d 643, 647-48 (6th Cir. 2001);
Hartley v. St. Paul Fire & Marine Ins. Co., 118
Fed. Appx. 914, 919 (6th Cir. 2004). The duty of care
can be derived from “duly enacted laws, regulations,
and rules; ... custom ... or ... the dictates of
reasonableness and prudence.” Galentine v. Estate of
Stekervetz, 273 F. Supp. 2d 538, 544 (D. Del. 2003).
As a general rule, a shipowner owes to a person
lawfully aboard the vessel “the duty of exercising
ordinary care, which is held to mean reasonable care
under the circumstances of each case.” Urian uv.
Milstead, 473 F.2d 948, 951 (8th Cir. 1973); Kermarec
v. Compagnie Generale Transatlantique, 358 U.S. 625,
632 (1959). Under that standard, the degree of care
required must be in proportion to the apparent risk.
Muratore v. M/S Scotia Prince, 845 F.2d 347, 353 (1st
Cir. 1988). In other words, under certain situations,
reasonable care may be a very high degree of care and
in another situation it may be less. Smith v. Southern
Gulf Marine Co. No. 2, Inc., 791 F.2d 416, 421 (5th
Cir. 1986). The “extent to which the circumstances
App. 45
surrounding maritime travel are different from those
encountered in daily life and involve more danger to a
passenger, will determine how high a degree of care is
reasonable in each case.” Mendelson v. Delaware
River & Bay Authority, 112 F. Supp. 2d 386 (D. Del.
2000).
Admiralty law also adheres to principles of
comparative fault. United States v. Reliable Transfer
Co., 421 U.S. 397, 409 (1975); McDermott, Inc. v.
AmClyde, 511 U.S. 202, 221 (1994). Accordingly,
proportional division of liability applies in admiralty
cases. See, e.g., Phillips Petroleum Co. v. Stokes Oil
Co., Inc., 863 F.2d 1250, 1255 (6th Cir. 1988) (“Dam-
ages in admiralty cases are generally allocated among
tortfeasors based on comparative fault.”). Under the
maritime rule, the plaintiff’s comparative negligence
mitigates his damages. Carey v. Bahama Cruise
Lines, 864 F.2d 201, 208 (1st Cir. 1988).
Admiralty law imposes joint and several liability
on tortfeasors. Edmonds v. Compagnie Generale
Transatlantique, 443 U.S. 256, 273 n.30 (1979)
(stating that “the general rule is that a person whose
negligence is a substantial factor in the plaintiff’s
indivisible injury is entirely liable even if other
factors concurred in causing the injury”). Where joint
and several liability is imposed, “[nlormally, the
chosen tortfeasor may seek contribution from another
concurrent tortfeasor.” Id.; see also McDermott, Inc. v.
AmClyde, 511 U.S. at 210 n.10 (noting that compara-
tive negligence and joint and several liability are not
incompatible). Joint and several liability allows a
App. 46
plaintiff to recover from one of multiple defendants,
when plaintiff’s recovery from other tortfeasors is
limited by outside facts, such as a defendant’s in-
solvency, making other defendants, rather than the
innocent plaintiff, responsible for the _ shortfall.
McDermott, 511 U.S. at 210 n.10. Although the
damages assignable to the plaintiff’s own culpability
must be subtracted from whatever damages the
plaintiff has proven at trial, the defendant would still
be liable “in full for the remainder,” even where a
third-party’s negligence contributed to the injuries.
See Edmonds v. Compagnie Generale Transatlantique,
443 U.S. at 260.
Joint and several liability applies “where there
has been a judgment against multiple defendants,”
whereas, in admiralty law, a defendant may be liable
for the proportion of fault assignable to another
culpable party who was not named as a defendant.
See Id. (quoting McDermott, Inc. v. AmClyde, 511 U.S.
at 221).
B. Analysis
1. Duty/Breach of Duty
In making these findings the court generally
credits the testimony of Doyle’s treating physicians
and plaintiffs’ experts Angell, Larson, Sampsel, and
Allison. The court also generally agrees with the
opinions of the defendant’s life care expert Burke.
The court generally agrees with both expert econo-
mists Jayne and Scarbrough. For reasons discussed
App. 47
below, the court is not inclined to fully credit the
testimony of defendant’s expert MacNeill.
The court finds that the evidence establishes that
a boat owner and operator has an undisputed re-
sponsibility for the passengers’ safety and the safe
operation of the boat. The court credits the testimony
of Angell and Dr. Larson, supported by the boating
safety regulations and guidelines admitted into evi-
dence, that it is an unsafe boating practice to operate
a vessel with a passenger seated on the gunnel or
tube of the boat. The court finds that defendant
Graske’s conduct in the operation of the boat violated
a boat operator’s duty to use reasonable care under
the circumstances. Significantly, the circumstances in
this case involve a small boat outside the no wake
zone in the ocean accelerating to bring the boat on
plane.
The court finds that the totality of the evidence
shows that Doyle was seated on the tube as the boat
proceeded through the no wake zone. It is plausible
that Doyle may have moved to the bow seating area
as the boat accelerated, but whether he did so or not
does not affect the court’s analysis. The court finds
that Graske did not use reasonable care for the safety
of his passengers under the circumstances in either
event. The evidence establishes that both the tube
and the bow cushion seat are positions of danger
while accelerating a small watercraft on the open
ocean. Similarly, whether or not Doyle was told by
either Graske or Van Hook to “hold on,” and dis-
regarded the admonition, makes no difference to the
App. 48
court’s analysis. If Doyle had disregarded such a
command, it would have then been negligent for
Graske to continue to accelerate knowing that Doyle
was not holding the hand straps.
Graske had a duty of reasonable care under the
circumstances for the safety of his passengers and the
safe operation of his boat. The evidence shows that it
is an unsafe boating practice to accelerate up to plane
with a passenger in a position of danger. Under these
circumstances, a boat operator using reasonable care
would ensure that his passengers were seated in a
safe position in the boat while accelerating. Graske,
an experience boater, knew or should have known
that his passenger was in a place of danger as long as
Doyle was in the bow section of the boat and the boat
was traveling at a speed sufficient to bring it on
plane.
Daniel Doyle, as a passenger somewhat familiar
with boating, also had a duty to use reasonable care
for his own safety. The evidence shows that Daniel
Doyle put himself in a place of danger and knew or
should have known that it was an unsafe boating
practice to sit on the tube of the boat. He similarly
should have known that it was not safe to change
positions in the boat while the boat was accelerating.
Nevertheless, if Doyle were sitting on the tube,
Graske’s duty of reasonable care for passenger safety
would have correspondingly increased in proportion
to the increased danger to the passenger. Thus, Graske
would have an even higher duty to a passenger
App. 49
sitting on the inflatable tube portion of the boat while
the boat is operating at plane speeds. Any criticism
that can be leveled at Daniel Doyle for either sitting
on the tube or failing to hold a strap, can also be
leveled at Graske for accelerating in the face of such
conduct. If Doyle’s conduct on the boat was unsafe,
then it would be unsafe for boat’s operator to continue
to allow the conduct and to operate the boat in a
fashion that jeopardizes the passenger’s safety.
Although Mr. MacNeill’s measurements are valu-
able to the court’s analysis, the court is not inclined to
credit his testimony on safety issues. Mr. MacNeill’s
essential expertise is in designing yachts, not small
recreational boats shorter than twenty feet. MacNeill
is also imbued with the laissez-faire safety attitude of
most manufacturers. Although he repeatedly recog-
nized the boat operator’s duty to safely operate the
boat, he was quick to point out the passenger’s re-
sponsibility to act safely, failing to appreciate that
contributory negligence is not a complete defense
under admiralty law. Significantly, MacNeill also
admitted that anyone seated in the bow of the boat
who was not holding the hand straps would have
been ejected if there were a sudden turn. The court
credits Mr. Larson’s opinion that a passenger holding
the hand straps would not be able to react quickly
enough to prevent his ejection from the boat. Mr. Van
Hook testified that he was surprised at how quickly
the plaintiff was ejected from the boat. Were it not for
his position at, or aft of, the boat’s pivot point, it is
likely Van Hook would have suffered the same fate.
App. 50
The plaintiffs’ assertion that the defendant should
have inspected the steering linkage to the engine
prior to operating the boat is not supported by the
credible evidence. The plaintiffs’ expert witnesses’
expressed opinion that an inspection of the steering
linkage at the engine would have been a safe thing to
do is irrefutable. However, there is no evidence to
support the court’s imposition of a duty on a boat
operator to examine this linkage before each excur-
sion. The safety and regulatory materials received by
the court support a duty only to make sure the
steering is operational. On Graske’s boat, operating
the steering wheel prior to starting the excursion
fulfills that requirement. There is no evidence that
the steering mechanism was not functional prior to
the instant catastrophic failure. The boat was oper-
ated from its mooring to shore and then from shore
through the no wake zone and then some distance
further. It is reasonable to assume the steering
mechanism was operational until the drag arm
became disengaged from the steering cable extension.
That event occurred while the engine was being
trimmed. Trimming the engine requires tilting it to
gain effective propeller purchase with the water in
order to maintain plane and efficient operation.
Because the above analysis is dispositive, the
court need not address the plaintiffs’ other allegations
of negligence.”
’° The plaintiffs’ claims that Graske was negligent in failing
to maintain a seaworthy vessel, failing to require a life jacket,
(Continued on following page)
App. 51
The evidence adduced in this case also estab-
lishes that other parties also owed duties to the
plaintiff. The manufacturer of the boat would have
had a duty to warn a purchaser, operator, or occupant
of the boat that bow seating would not be safe at
planing speeds or that seating on the inflatable tubes
should not be allowed during operation at planing
speeds. Accordingly, it appears that the manufacturer
may have some liability for failure to warn that no
one should be in the bow section of the boat or on the
inflatable tubes when the boat operated at a speed
sufficient to keep it on plane. Similarly, the mechanic
who repaired the steering mechanism had a duty to
repair it properly. The evidence establishes that a
reasonably competent mechanic would have known
that a used nylock nut should have been replaced
with a new nylock nut and not reinstalled. The
mechanic’s employer had a duty to properly supervise
the mechanic’s work and to ensure that new nylock
nuts were installed when replacing such nuts during
repairs, especially on critical mechanisms such as
steering. The medical providers involved in Doyle’s
care all had a duty to provide standard medical care.
There is no evidence in this case, however, that the
care provided by any of the health care providers
was substandard. Although Dr. Stothert expressed
the opinion that he would have placed Doyle on a
and failing to keep the boat in safe operating condition were
dismissed a the close of plaintiffs’ case-in-chief for the reasons
stated on the record.
App. 52
ventilator at the outset of his hospitalization, there is
no evidence that any failure to do so violated the
standard of care of a reasonable medical professional.
Stothert testified that he did not have sufficient
records to come to such a conclusion. The extent to
which these duties were breached by other parties
cannot be determined by the court since the court
does not have jurisdiction over them.
2. Causation
There is no sole proximate cause in this case. The
issue of an intervening, superseding cause has al-
ready been addressed in the court’s earlier order. See
Filing No. 276. The evidence at trial shows that an
unbroken chain of events connects the boat accident
to Doyle’s anoxic brain injury. Substandard medical
care generally does not break the chain of causation
even if the care adds to the damages.” Throughout
Doyle’s hospital care in the Cayman Islands, at the
time of his air ambulance transfer, and in the Florida
hospitalization, Doyle had oxygenation problems. He
would not have had this condition were it not for
suffering from a flail chest caused by the fracture of
all his posterior ribs in the boating accident.
The evidence shows that the accident would
not have occurred absent the failure of the boat’s
steering mechanism, which was allegedly due to the
It is questionable that medical negligence is even cog-
nizable in the Grand Cayman Islands.
App. 53
mechanic’s negligence. A sudden mechanical failure,
however, is not an unforeseeable event. It is the duty
of an owner and operator of a vessel to operate the
boat safely in the event of such an occurrence.
Assuring that passengers are properly seated in a
small boat accelerating on the open ocean is fun-
damental to that duty. The failure of Graske to
exercise reasonable care under the circumstances in
the operation of his boat by accelerating while a
passenger was in a position of peril caused Doyle to
fall overboard in the sudden turn.
As to the defendant’s assertion that the failed
steering mechanism is the sole cause of the accident,
the court notes that even the defendant recognized
that an emergency turn is necessary when swimmers
suddenly appear from beneath the water. No doubt
the defendant will concede that any number of haz-
ards that require a hard turn can occur. In that event
the bow passenger will be ejected from the boat.
Thus, every boating manual received by the court in
this case notes the requirement that passengers
should not sit on the side of the boat while it is
underway. Accordingly, the court finds that the
negligence of defendant Graske in the operation of
the boat was a proximate and substantial cause of
Daniel Doyle’s injuries.
The court must next determine whether the
plaintiff’s own negligence also contributed to the
injury and the proportionate share of the damages
attributable to the plaintiff vis-a-vis defendant
Graske. Given the size and power of this boat, even
App. 54
plaintiffs’ expert expressed the opinion that anyone in
the bow of this boat would be ejected in a sharp turn,
and that anyone in the boat would be able to appre-
ciate the danger of not holding on to the hand straps
when the boat was at planing speed. The evidence
shows that Doyle knew or should have Known that it
was unsafe to sit on the gunnel or tube of the boat
while it was underway. Doyle violated a passenger’s
duty to use reasonable care for his own safety.
Doyle’s comparative negligence mitigates the
damages attributable to Graske to some extent. How-
ever, the court finds that, because, as the operator of
the boat, Graske has a higher duty of care than his
passenger, Graske remains responsible for a substan-
tial portion of the damages.
Because there are no other party defendants to
this action, the court cannot determine the extent to
which the alleged negligence of other tortfeasors
contributed to the Doyle’s injuries, nor can it deter-
mine the proportion of the damages that should be
allocated to each of those parties. Given the totality of
negligence supported by the record in this case, the
court finds that the plaintiff Daniel Doyle can be held
accountable for no more than 10% of the total lia-
bility. The evidence indicates that the greatest share
of the responsibility for the negligence in this case
rests with the boat mechanic and his employer for
improperly repairing the steering mechanism and for
reusing a nylock nut. There may also be a claim
against the manufacturer for failing to warn of the
dangers to bow and gunnel riding passengers of this
App. 55
14-foot boat. However, these later mentioned parties
are not part of the case presented to this court and
subject to its jurisdiction. Consequently, the court will
leave it to the courts that do have jurisdiction over
these matters to sort out any contribution or indem-
nification issues between the defendant and the
aforementioned potential tortfeasors. Accordingly,
with respect to the overall liability of all potential
tortfeasors for the injuries Doyle sustained in the
boating accident, the court apportions damages as
follows: 10% to the plaintiff, Daniel Doyle, 90% to the
defendant, Leland Graske, and the other potential
tortfeasors. Plaintiff Daniel Doyle’s recovery should
accordingly be reduced by 10%.
3. Damages
The parties have stipulated that plaintiff Daniel
Doyle incurred medical bills in the amount of
$252,517. The court credits the testimony of Dr.
Scarborough that Daniel Doyle’s lost wages up to
November 1, 2007, amount to $269,112. The evidence
shows that, had he not been injured, Doyle would
have worked until his full retirement age, or to age
66. The court further finds that the present value
of Doyle’s future lost wages until retirement is
$790,646, resulting in damages for past and future
lost wages in the amount of $1,059,758.
The court finds that Doyle will incur certain
medical expenses in the future as a result of his
injuries. The court finds, however, that there is no
App. 56
reasonable likelihood that physical or occupational
therapy for Doyle would be effective or necessary in
the future. The evidence supports a one-time award
of $400 for equipment such as a cane, shower grab
bars, and a shower bench.
The evidence also shows that Doyle will need
round-the-clock care by a personal attendant for the
rest of his life or until he may need care in a resi-
dential facility as part of his normal aging process.
The option for the supportive care of a live-in
caregiver would best suit Daniel Doyle’s needs and
conditions. The evidence shows that Doyle needs
round-the-clock care. The court credits Dr. Burke's
testimony that such care, furnished by a personal
care assistant, along with case management, room
and board, transportation, and allowances for the
costs of housecleaning, home maintenance, physi-
cian’s care, and medication could be obtained for
approximately $58,907 per year in today’s dollars,
resulting in the present value of total damages for
Doyle’s future medical and supportive care in the
amount of $1,285,272.
Provision of the cost of live-in care will ade-
quately account for the services of plaintiff’s wife for
any part she continues to play in Daniel Doyle’s care.
Mrs. Doyle’s willingness to care for her husband is
commendable, but she is not required to do so. If
Anne Doyle were not available to care for Daniel
Doyle, the services of a personal care attendant would
be required. Accordingly, Mrs. Doyle’s services should
be calculated at the same rate as a personal care
App. 57
attendant. If Daniel Doyle should need to be admitted
to an assisted-living or long-term care as he ages, he
will have been compensated for his lost wages and
can pay for assisted living the same as any other
individual, but will have the balance of the damage
award to pay for any additional supportive care that
he will reasonably require as a result of his injuries.
In view of the foregoing, the court finds that a special
damages award of $2,597,947 to plaintiff Daniel
Doyle will adequately compensate him for the injuries
he has suffered in this case. This award includes his
past and future lost wages, medical expenses — past
and future — and the cost of his future supportive
care.
The evidence also supports a substantial award
of compensatory damages to Daniel Doyle for pain
and suffering and loss of enjoyment of life and to
Anne Doyle for loss of consortium. Testimony at trial
shows that both Daniel and Anne Doyle have suffered
an incalculable loss. Daniel Doyle has substantial
physical and mental disabilities. The evidence shows
that Daniel Doyle has enough awareness of his
condition to appreciate his predicament. His injuries
have left him depressed, lacking in motivation,
and incapable of exercising proper judgment. He
comprehends the fact that he is no longer the person
he once was, but is powerless to change his situation.
As a result of Daniel Doyle’s injury, Anne Doyle
has essentially lost the companionship of the person
she once knew. The course of her life, as well as
App. 58
Daniel Doyle’s, was irreversibly altered by the acci-
dent. She has become a full-time caregiver for a
person who is no longer the person she married. The
court finds that she should be compensated for this
intangible loss at a level close to that of her husband.
Accordingly, the court finds that a general damages
award for pain, suffering and loss of life’s enjoyment
in the amount of $1,000,000 is appropriate for Daniel
Doyle and a general damages award of $750,000 is
appropriate for Anne Doyle’s loss of consortium.
Because the court finds comparative negligence
by Daniel Doyle that operates to mitigate defendant
Graske’s liability, Daniel Doyle’s total award of
$3,597,947 must be reduced by 10%, or $359,794,
resulting in a total damages award of $3,238,153 to
Daniel Doyle. Anne Doyle’s damages are not subject
to any reduction. Accordingly, in conformity with this
opinion, a judgment in the amount of $3,238,153 will
be entered in favor of plaintiff Daniel Doyle, and a
judgment in the amount of $750,000 will be entered
in favor of plaintiff Anne Doyle and against defendant
Leland Graske, together with taxable court costs.
DATED this 10th day of June, 2008.
BY THE COURT:
s/ Joseph F. Bataillon
Chief United States
District Judge
App. 59
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
DANIEL DOYLE and
)
hia 8:05CV21
Fianattes, ) MEMORANDUM
v. ) AND ORDER
LELAND GRASKE, (Filed Aug. 11, 2008)
Defendant. )
This matter is before the court on the defendant’s
motion to amend findings of fact and conclusions of
law and judgment, or for a new trial, Filing No. 325,
and on defendant’s motion to stay execution of the
judgment, Filing No. 327. This action for damages for
personal injuries as the result of a boating accident
was tried to the court under admiralty jurisdiction
from March 31, 2008, to April 8, 2008. The court
found the defendant liable for the plaintiffs’ injuries
and awarded damages to the plaintiff Daniel Doyle in
the amount of $3,238,153.00 and to plaintiff Ann
Doyle for loss of consortium in the amount of
$750,000.00.
I. Motion to Alter or Amend
In his motion to alter or amend the findings, the
defendant contends that damages ffor loss of
consortium are not recoverable in admiralty and that,
if such damages are awarded, the award should be
reduced by the percentage of fault assigned to the
App. 60
injured spouse. The defendant did not raise this issue
at any earlier point in this ktigation, which has been
pending since January 18, 2005.’ Plaintiff Ann
Doyle’s loss-of-consortium claim was added in an
amended complaint filed on October 11, 2007. Filing
No. 171. The defendant consented to the filing. See
Filing No. 169. Graske never moved to dismiss the
amended complaint, nor did he assert in his answer
that Mrs. Doyle’s claim was precluded as a matter of
law. See Filing No. 177. In the pretrial order, the
parties agreed that Mrs. Doyle’s recovery of general
damages, including loss of consortium, was a
controverted and unresolved issue. Filing No. 254,
Order on Pretrial Conference at 4. At trial, the
plaintiffs presented evidence in support of Ann
Doyle’s loss-of-consortium claim without objection by
defendant. The defendant never argued at trial that
recovery for loss of consortium was not available in
admiralty. At this late stage of the proceeding, the
court is reluctant to entertain the issue. If the court
were to consider the issue, however, the court would
find that the defendant’s position is not tenable.
It is settled that general maritime law imposes
duties to avoid unseaworthiness and negligence and
that fatal and nonfatal injuries caused by the breach
of either duty are compensable. Norfolk Shipbuilding
& Drydock Corp. v. Garris, 532 U.S. 811, 813-14
' Defendant contends that he raised the issue by denying
liability for Ann Doyle’s loss-of-consortium claim. The court does
not agree.
App. 61
(2001); see also Moragne v. States Marine Lines, Inc.,
398 U.S. 375, 408-09 (1970) (recognizing a wrongful-
death remedy under general maritime law that
supplements federal statutory remedies). General
maritime law provides a cause of action for the loss of
a deceased or injured spouse’s “society” or consortium.
American Export Lines, Inc. v. Alvez, 446 U.S. 274,
276 (1980) (involving nonfatal injuries); Sea-Land
Services, Inc. v. Gaudet, 414 U.S. 573 (1974) (outlining
elements of recovery for wrongful death in state
territorial waters, guided by state wrongful death
statutes and the “humane and liberal” policies
inherent in maritime law); Mobil Oil Corp. v.
Higginbotham, 436 U.S. 618, 622 (1978) (allowing
recovery of loss-of-consortium damages for injuries in
territorial waters); see also Exxon Shipping Co. uv.
Baker, ___ U.S. __, __., 128 S. Ct. 2605, 2630 n.21,
2008 WL 2511219, **19 n.21 (June 25, 2008) (affirming
continuing validity of Alvez and citing it for the
proposition that maritime law provides a cause of
action for loss of consortium).
Congress has enacted statutes that also provide
remedies for certain maritime injuries or deaths.
Miles v. Apex Marine Corp., 498 U.S. 19, 23-24 (1990);
see, e.g., the Jones Act, 46 U.S.C. § 30104 eft seg.
(covering seamen in the course of employment); the
* “Seaman” is a term of art that has an established meaning
under maritime law, incorporated in the Jones Act. Stewart v.
Dutra Const. Co., 543 U.S. 481, 487 (2005). A seaman under the
Jones Act is a maritime worker with a substantial employment-
(Continued on following page)
App. 62
Death on the High Seas Act (‘DOHSA”), 46 U.S.C.
§ 30301 et seg. (covering persons killed on the high
seas); and the Longshore and Harbor Workers Act
(“LHWCA”), 33 U.S.C. §901 et seg. (covering
nonseaman maritime workers injured or killed in the
course of employment). These statutes provide only
for pecuniary relief. See Miles, 498 U.S. at 32.
When a statute resolves a particular issue, the
general maritime law must comply with that
resolution. Garris, 532 U.S. at 817; Scarborough v.
Clemco, 391 F.3d 660 (5th Cir. 2004). Because loss-of-
consortium damages are not available under these
statutes, there can be no recovery for loss of
consortium under general maritime law for an injury
or death that is also covered by one of the statutes.
See Miles, 498 U.S. at 32; Mobil Oil Corp. v.
Higginbotham, 436 U.S. at 623 (noting that when a
Congressional act “speak[s] directly to a question,
courts are not free to ‘supplement’ Congress’ answer
related connection to a vessel in navigation. Chandris, Inc. v.
Latsis, 515 U.S. 347, 373 (1995).
* DOHSA provides that “[wJhen the death of an individual
is caused by wrongful act, neglect, or default occurring on the
high seas beyond 3 nautical miles from the shore of the United
States, the personal representative of the decedent may bring a
civil action in admiralty against the person or vessel
responsible.” 46 U.S.C. § 30301. DOHSA does not cover deaths
resulting from incidents occurring within state territorial waters
— that is, deaths resulting from incidents occurring within three
miles of the shore of any State, or the District of Columbia, or
the Territories or dependencies of the United States. See
Moragne, 398 U.S. at 395.
App. 63
so thoroughly that the Act becomes meaningless.”).
Thus, if a factual scenario is covered by a statute
such as the Jones Act or DOHSA, “and the statute
directs and delimits the recovery available under the
statute,” the statute will operate to limit the recovery
available under the general maritime law as well.
Scarborough v. Clemco Indus., 391 F.3d at 667.
Nevertheless, unless Congress has prescribed a
comprehensive tort recovery scheme for a class of
maritime actions, admiralty remedies can be supple-
mented by those available under state law. Yamaha
Motor Corp., U.S.A. v. Calhoun, 516 U.S. 199, 210-
211 (1996) (noting that Congress had passed no law
prescribing remedies for the wrongful deaths of
nonseafarers in territorial waters). Traditionally,
state remedies have applied in maritime wrongful
death cases in which no federal statute specifies the
appropriate relief and the decedent was not a
seaman, longshore worker or person otherwise
engaged in the maritime trade. Jd. at 207. State
remedies remain applicable in such cases and have
not been displaced by the federal maritime wrongful
death action. Jd. at 215-216. In Yamaha, the Supreme
Court noted that the provision of a maritime cause of
action for wrongful death “centered on extension of
relief, not on the contraction of remedies,” basing its
decision on the longstanding maritime precept that
“‘it better becomes the humane and liberal character
of proceedings in admiralty to give than to withhold
the remedy, when not required to withhold it by
established and inflexible rules.’” Jd. at 213 (quoting
App. 64
The Sea Gull, 21 F. Cas. 909, 910 (C.C.Md.1865) (No.
12,578).
Although an admiralty court should look primarily
to legislative enactments for policy guidance, it “may
not slough off [its] responsibilities for common law
remedies because Congress has not made a first
move.” Exxon Shipping Co. v. Baker, ____ U.S. at __,
128 S.Ct. at 2630 (exercising federal maritime
common law authority to review punitive damages
award under general maritime law). The propriety of
damages under general maritime law falls within a
federal court’s jurisdiction to decide, “subject to the
authority of Congress to legislate otherwise if it
disagrees with the judicial result.” Jd. at 128 S. Ct.
2619 (involving an award of punitive damages).
None of the federal maritime statutes that would
potentially limit Ann Doyle’s recovery for loss of
consortium apply in this case because Daniel Doyle
was neither a seaman nor a maritime worker, and his
injuries were not fatal so as to come within the
purview of DOHSA. Accordingly, the court finds that
Ann Doyle’s recovery is not precluded and the
defendant’s motion to alter or amend the judgment
will be: denied.
To the extent that the plaintiff’s remedies under
general maritime law could be expanded or
supplemented by state or foreign law, the court would
be faced with a determination of which law should
determine the proper measure of compensatory
damages. In an admiralty action, federal choice of law
App. 65
principles apply. See Lauritzen v. Larsen, 345 USS.
571, 577 (1953). Neither party has addressed this
issue. Courts weigh seven factors in rendering choice-
of-law decisions: place of the wrongful act, law of the
flag, allegiance or domicile of the injured, allegiance
of the defendant shipowner, place of contract,
inaccessibility of a foreign forum, and the law of the
forum. See id. at 583-91. Application of these factors
would not seem to favor the law of the Cayman
Islands, and, in any event, the defendant has not
shown that Mrs. Doyle’s loss-of-consortium damages
would be unavailable under Cayman Islands law or
any international law principles. In view of the
circumstances, the court finds an award of loss-of-
consortium damages under general maritime law is
appropriate.
The defendant’s contention that the _ loss-of-
consortium damages award should be proportionately
reduced also lacks merit. The proportional-liability
rule applies only to defendants who proximate cause
an injury. Exxon Co., U.S.A. v. Sofec, Inc., 517 U.S.
830, 842 (1996). “A party whose fault did not
proximately cause an injury is not liable at all.” Jd.
If. Motion to Stay Execution of the Judgment
Defendant Graske moves to stay execution of the
judgment pending resolution of post-trial motions and
pending appeal. The motion for a stay pending
resolution of post-trial motions will be rendered moot
by this decision. In lieu of a supersedeas bond,
App. 66
defendant proposes an irrevocable letter of credit.
Filing No. 329, Ex. A. In response, without conceding
the adequacy of the letter of credit, plaintiffs contend
that any letter of credit or supersedeas bond should
include The Law Offices of Ronald J. Palagi, in light
of the attorney lien filed in the case, and also contend
that the effective date of the letter of credit should be
June 10, 2008, the date of judgment. Filing No. 330.
Under the Federal] Rules, a party is entitled to a
stay as a matter of right if a supersedeas bond is
posted. Fed. R. Civ. P. 62(d). Alternatively, the party
may move for the court to exercise its discretion to
waive the bond requirement. Dillon v. City of
Chicago, 866 F.2d 902, 904 (7th Cir. 1988). “When
determining whether to waive the posting of bond,
the district court considers several criteria: (1) the
complexity of the collection process; (2) the amount of
time required to obtain a judgment after it is affirmed
on appeal; (3) the degree of confidence that the
district court has in the availability of funds to pay
the judgment; (4) whether the defendant’s ability to
pay the judgment is so plain that the cost of a bond
would be a waste of money; and (5) whether the
defendant is in such a precarious financial situation
that the requirement to post a bond would place other
creditors of the defendant in an insecure position.” Jd.
Also, the district court has discretion to order a
partially secured or unsecured stay if the judgment
creditor’s interest in ultimate recovery is not unduly
endangered. Fed. Prescription Serv., Inc. v. American
Pharm. Ass’n., 636 F.2d 755, 760-61 (D.C. Cir. 1980).
App. 67
The court is satisfied that the letter of credit from
Omaha National Bank will adequately protect the
plaintiffs’ interest and secure the judgment. The court
agrees that the Law Offices of Ronald J. Paliagi
should also be protected in the letter of credit.
Accordingly,
IT IS ORDERED that:
1. Defendant’s motion to alter or amend the
judgment is denied.
2. Defendants motion for a stay of the judgment
pending appeal is granted.
3. Within ten days of the date of this order,
defendant shall file an irrevocable letter of credit
drawn in favor of Plaintiffs Daniel Doyle and Ann
Doyle and the Law Offices of Ronald J. Palagi,
effective as of the date of judgment.
4. Upon the filing of such letter of credit,
execution on the judgment shall be stayed until the
time for filing an appeal has expired or the appeal, if
filed, is resolved.
DATED this 11th day of August, 2008.
BY THE COURT:
s/ Joseph F. Bataillon
Chief United States
District Judge
App. 68
UNITED STATES COURT OF APPEALS
FOR THE EIGHTH CIRCUIT
No: 08-3144
Daniel Doyle and Anne Doyle,
Appellees
v.
Leland Graske,
Appellant
v.
Jason R. Haynes, et al.,
Appeal from District of Nebraska — Omaha
(8:05-cv-00021-JFB)
ORDER
The petitions for rehearing en banc are denied.
The petitions for rehearing by the panel are also
denied.
Judge Bye and Judge Shepherd would grant the
petition for rehearing en banc filed by appellee Anne
Doyle.
App. 69
October 22, 2009
Order Entered at the Direction
of the Court:
Clerk, U.S. Court of Appeals,
Eighth Circuit.
/s/ Michael E.Gans __
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.