Opinion
Civ. No. 98-2035, SECTION "R" (4).
January 26, 2000.
ORDER AND REASONS
Before the Court is the motion of defendant, Rodney J. Strain, Jr., in his official capacity as Sheriff of St. Tammany Parish, for summary judgment dismissing plaintiff's claims against him. Because this Court cannot find, as a matter of law that Strain did not voluntarily assume a duty to mark the sandbar, defendant's motion is denied.
I. Background
This case arises out of a single vessel accident on the Pearl River Navigational Canal. On April 12, 1998, plaintiff Timothy Dunaway was operating his recreational motor boat on the canal when he struck a submerged sandbar and injured himself. The canal was authorized by the River and Harbor Act of 1935, and was completed by the U.S. Army Corps of Engineers in 1958. The waterway was constructed primarily to facilitate commercial traffic, but commercial traffic declined significantly after 1964. In 1975, the Corps discontinued maintenance dredging for several years and placed the project in limited operational status with reduced funding and maintenance. Subsequently, the project sponsor requested that tests be performed regarding the feasibility of reopening the project. The results indicated that dredging was needed, and the United States dredged to reopen the waterway to commercial traffic on two occasions in 1988 and 1989. Subsequently, a number of environmental impact studies were performed in order to assess the potential harm of dredged materials, and environmental litigation seeking declaratory and injunctive relief against dredging the canal was filed in January of 1995. The United States District Court for the Eastern District issued a preliminary injunction against dredging in 1995, and the same year, Congress restricted dredging and placed the canal in caretaker status. The injunction was lifted in March of 1998. In the meantime, the sandbar formed as a natural result of the shifting riverbed. At all times, the Corps and the. United States Coast Guard retained responsibility for maintaining the canal and correcting certain safety problems at the project locks.
The Sheriff is not charged with maintaining the canal, but he is responsible for patrolling the canal and enforcing laws regarding the operation of vessels on public waters, fishing and hunting, and investigating boating accidents. Nevertheless, on October 10, 1997, Deputy Sheriff Singletary placed a temporary warning sign on the sandbar. On November 16, 1997, he noticed that the sign had been removed. He ordered a new sign and in the meantime placed "crime scene" tape across the sandbar. While patrolling the canal, Singletary noticed several times that the tape had fallen down or had been removed, and he replaced it. When plaintiff's vessel struck the sandbar on April 12, 1998, nothing was marking the sandbar.
On July 10, 1998, Dunaway sued the United States in this Court, alleging that the. Corps was negligent in failing to mark, warn of or remove the sandbar. Dunaway thereafter amended his complaint to include the Sheriff of St. Tammany, Rodney Strain, in his official capacity, alleging the same under the general maritime law. This. Court granted the United States' motion for summary judgment on September 2, 1999, dismissing it from the case under the discretionary function exception to the Federal Tort Claims Act.
Strain now moves for summary judgment on the grounds that he had no duty to mark, warn of or remove the sandbar, and, alternatively, that he is shielded by the state discretionary function exception, and thus cannot be held liable for plaintiff's injuries.
II. Discussion
A. Summary Judgment Standard
Summary judgment is appropriate when there are no genuine issues as to any material facts, and the moving party is entitled to judgment as a matter of law. See FED. R. Civ. P. 56(c); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 2552 (1986). A court must be satisfied that no reasonable trier of fact could find for the nonmoving party or, in other words, "that the evidence favoring the non-moving party is insufficient to enable a reasonable jury to return a verdict in her favor." Lavespere v. Niagara Mach. Tool Works, Inc., 910 F.2d 167, 178 (5th Cir. 1990), citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S.Ct. 2505, 2511 (1986). The moving party bears the burden of establishing that there are no genuine issues of material fact.
If the dispositive issue is one for which the nonmoving party will bear the burden of proof at trial, the moving party may satisfy its burden by merely pointing out that the evidence in the record contains insufficient proof concerning an essential element of the nonmoving party's claim. See Celotex, 477 U.S. at 325, 106 S.Ct. at 2554; see also Lavespere, 910 F.2d at 178. The burden then shifts to the nonmoving party, who must, by submitting or referring to evidence, set out specific facts showing that a genuine issue exists. See Celotex, 477 U.S. at 324, 106 S.Ct. at 2553.
B. Discretionary Function Exception
In order for the discretionary function exception contained in Louisiana Revised Statute § 9:2798.1 to apply, the public entity or agent must have discretionary or policy-making authority over the activity in issue. Here, neither Strain nor Singletary had discretion to mark the sandbar, and, in fact, Deputy Singletary's actions violated 14 U.S.C. § 83, and could have subjected Strain to fines. Title 14, United States Code, Section 83 provides:
§ 83. Unauthorized aids, to maritime navigation; penalty
No person, or public body, or instrumentality, excluding the armed services, shall establish, erect, or maintain any aid to maritime navigation in or adjacent to the waters subject to the jurisdiction of the United States, its territories or possessions, or the Trust Territory of the Pacific Islands, or on the high seas if that person, or public body, or instrumentality is subject to the jurisdiction of the. United States, without first obtaining authority to do so from the Coast Guard in accordance with applicable regulations. Whoever violates the provisions of this section or any of the regulations issued by the Secretary in accordance herewith shall be guilty of a misdemeanor and shall be fined not more than $100 for each offense. Each day during which such violation continues shall be considered as a new offense.14 U.S.C. § 83, emphasis added. Under § 83, neither Strain nor Singletary is allowed to erect or maintain any aids to navigation without first obtaining authorization from the Coast Guard. Neither party contends that Strain requested or received such authorization. In fact, Singletary testified that he did not ask the Coast Guard for authorization to put up the sign or tape and that he did not think he needed permission. ( See Pl.'s Opp'n Ex. 1 at 74.) Despite Singletary's mistaken assumption that he was responsible for warning of and marking the sandbar, neither he nor Strain had a duty to do so. Thus, because Strain never had discretion to mark the sandbar in the first place, and because he was prohibited from doing so by federal statute, the discretionary function exception is not applicable to shield him from liability in this case. See LA. REV. STAT. § 9:2798.1(B) ("Liability shall not be imposed on public entities or their officers or employees based upon the exercise or performance or the failure to exercise or perform their policymaking or discretionary acts when such acts are within the course and scope of their lawful powers and duties").
C. Assumption of Duty
The appropriate inquiry in this case is whether Strain assumed a duty to mark the sandbar once Singletary initially marked it. "[A] duty of care may be derived . . . from the dictates of reasonableness and prudence under the given circumstances of a case." Tidewater Marine, Inc. v. Sanco Int'l Inc., 1997 WL 543108 at * 10 (E.D. La. Sept. 3, 1997), citing Coumou v. United States, 107 F.3d 290, 295-96 (5th Cir. 1997), withdrawn and superseded in part on reh'g, 114 F.3d 64 (5th Cir. 1997). Thus, one who voluntarily assumes a duty owed by another and then breaches that duty becomes liable to one who is injured as a result of the breach. See Indian Towing, 350 U.S. 61, 69, 76 S.Ct. 122, 127 (1955). In Indian Towing, the Coast Guard elected to operate a light in a lighthouse on Chandeleur Island, and subsequently failed to repair the light or warn of its dysfunction when it was extinguished. The United States Supreme Court explained:
The Coast Guard need not undertake the lighthouse service. But once it exercised its discretion to operate [the] light . . . and engendered reliance on the guidance afforded by the light, it was obligated to use due care to discover this fact and to repair the light or give warning that it was not functioning. If the Coast Guard failed in its duty and damage was thereby caused to petitioners, the United States is liable under the Tort Claims Act.Indian Towing, 350 U.S. at 69, 76 S.Ct. at 127.
In this case, plaintiff asserted his claims against Strain under the general maritime law. See 28 U.S.C. § 1333 (1). The ability to voluntarily assume a duty explained in Indian Towing, or the "Good Samaritan" rule, is applicable in maritime cases. See Patentas v. United States, 687 F.2d 707, 716 (3rd Cir. 1982) (Coast Guard inspection of ship prior to discharge of cargo); Miss Janel, Inc. v. Elevating Boats, Inc., 725 F. Supp. 1553, 1567 (S.D. Ala. 1989) (duty to mark sunken wreck). See also Sheridan Trans. Co. v. United States, 834 F.2d 467, 474 (5th Cir. 1987) (same); United States v. Gavagan, 280 F.2d 319, 328 (5th Cir. 1960) (rescue operation); Eklof Marine Corp. v. United States, 762 F.2d 200, 203 (2d Cir. 1985) (marking of reef); In re Falcon Inland, Inc., 1999 WL 600373 at *7 n. 6 (E.D. La. Aug. 9, 1999) (assist in moving packer). The Good Samaritan doctrine is also set forth in §§ 323 and 324A of the Second Restatement of Torts. Section 324A, entitled "Liability to Third Person for Negligent Performance of Undertaking," provides:
Section 323 is nearly identical to 324A, but involves the negligent performance of undertaking to render services to directly benefit a specific person. Because Singletary's actions were intended to benefit the boating public, this Court finds that § 323 is inapplicable, and that § 324A sets forth the appropriate standard. See Patentas, 687 F.2d at 716 (finding § 323 inapplicable when Coast Guard activities were intended to benefit the public generally, rather than, specifically, appellants).
One who undertakes, gratuitously or for consideration, to render services to another which he should recognize as necessary for the protection of a third person or his things, is subject to liability to the third person for physical harm resulting from his failure to exercise reasonable care to perform his undertaking, if
(a) his failure to exercise such care increases the risk of such harm, or
(b) he has undertaken to perform a duty owed by the other to the third person, or
(c) the harm is suffered because of reliance of the other or the third person upon the undertaking.
RESTATEMENT (SECOND) OF TORTS § 324A (1965), quoted in Patentas, 687 F.2d at 715; Miss Janel, 725 F. Supp. at 1567, citing Indian Towing, supra. Section 324 applies to situations in which a third person is a foreseeable beneficiary of the activity in issue. The rationale behind the Good Samaritan doctrine is to prevent one who voluntarily attempts to help others from harming them, either by negligently performing the duty assumed, or by engendering reliance on, the part of the other person. In the context of maritime tort liability, whether a duty exists is a question of law. See Florida Fuels, Inc. v. Citgo Petroleum Corp., 6 F.3d 330, 333 (5th Cir. 1993); Tidewater, 1997 WL 543108 at *10. This Court finds the Good Samaritan principle embodied in § 324A of the Second Restatement applicable to this case, because plaintiff was a foreseeable beneficiary of Singletary's actions. Here, Strain had no initial duty to mark the sandbar. However, because Singletary marked it not once, but repeatedly — the Court cannot say as a matter of law that Strain did not voluntarily assume a duty to the boating public, including plaintiff, to mark it in a nonnegligent manner. See Indian Towing, 350 U.S. at 69, 76 S.Ct. at 127; Tidewater, 1997 WL 543108 at *11.
Strain relies on Inland Tugs Co. v. Ohio River Co., 709 F.2d 1065 (6th Cir. 1983), for the proposition that the duty to mark the sandbar was nondelegable and thus he is shielded him from any liability arising out of plaintiff's accident. In Inland Tugs, a tug boat collided with an unmarked sunken barge. See Id. at 1067-68. Both the owner of the sunken vessel and the owner of the tug filed complaints against the United States for the Coast Guard's negligence in failing to mark the barge. See id. at 1068. The Sixth Circuit held that the owner of a sunken vessel had a duty to mark or warn of the wreck under the Wreck Act, and that, although the Coast Guard had discretion to assist the owner in marking the wreck, the owner's duty was nondelegable and therefore could not be assumed by the Coast Guard even after it initially marked the wreck. See id. at 1070. The Inland Tugs court observed:
Congressional identification of the vessel's owner, and no other, as charged with the marking of its wreck until the obstruction is removed or until its abandonment is legally accomplished, compels the conclusion that the duties to mark and maintain the mark are non-delegable, non-imputable duties which cannot be assigned to or assumed, to the absolution of the owner from liability by any third party. . . .Id. at 1071. Strain apparently argues that under this reasoning, the statutory duty of Corps and/or Coast Guard to mark the sandbar is nondelegable; thus, despite Singletary's efforts to mark it, he could not have assumed this duty. This Court does not read Inland Tugs for such a broad proposition. First, that case involved the Wreck Act, a statute designed to ensure that the owner of a vessel cannot eschew his duty to mark the vessel. By contrast, the statute in this case involves the duties of the Coast Guard, and the Coast Guard may establish aids to navigation by contract with a third party under 14 U.S.C. § 81. Second, Strain submits that the above-quoted language of the Wreck Act means that a third party cannot assume a duty to mark a sunken vessel and thus cannot be held liable even if it undertakes to do so. Strain's interpretation, however, ignores the words "to the absolution of the owner from liability by any third party." This language indicates that the owner cannot escape liability by delegating its duty to a third party; it does not mean that a third party who attempts to mark the vessel cannot, under any circumstances, be held liable for its negligence in marking the wreck. In fact, the Sixth Circuit noted in a footnote that conditions may arise in which a duty is imposed on a third party to mark the wreck under certain circumstances. See id. at 1071 n. 6, citing The Anna M. Fahy, 153 F. 866, 868 (2d Cir. 1907) Moreover, in Humble Oil Refining Co. v. Tug Crochet, 42 F.2d 602, 607 (5th Cir. 1970), the Fifth Circuit recognized the possibility that a third party could be held liable for negligently maintaining a marker of a sunken vessel. Although it affirmed the lower court's finding that exonerated the United States, it rested its opinion on lack of causation, rather than lack of duty.
The United States had no notice or knowledge that the light on the buoy had been struck or was inoperative. Any liability of the United States must necessarily have been predicated upon proof that the accident was caused by its failure to use due care in buoy placement and maintenance or by its lack of due care in allowing a defective buoy to remain on station for an unreasonable time after actual or constructive notice of such defect. The record here shows the opposite.Humble Oil, 422 F.2d at 607. Thus, in the context of the Wreck Act, a third party may be held liable for negligence in certain circumstances, and Strain's argument by analogy to Inland Tugs does not absolve him of liability.
Strain also argues that he could not have assumed a duty to warn of or mark the sandbar because such a duty would have required him to break the law. The Sheriff's office should have been aware of the federal statute (18 U.S.C. § 83) restricting its ability to place navigational aids in waters under the jurisdiction of the United States. It would appear that the purpose of § 83 is to prevent interlopers from taking measures that conflict or would be inconsistent with United States Coast Guard policies. Deputy Singletary's ignorance that his actions violated a federal statute is not a factor in defendant's favor. Thus, that Singletary mistakenly believed he did not need Coast Guard authorization under § 83 to mark the sandbar, and marked it anyway, does not disable Strain from assuming a duty. Singletary's actions, although well-meaning, may have engendered reliance on the part of Dunaway, and may have contributed to and/or caused his accident. Under these facts, this Court cannot find that Strain had no duty as a matter of law, and Strain's motion for summary judgment is therefore denied.
III. Conclusion
For the foregoing reasons, defendant's motion for summary judgment is denied.
New Orleans, Louisiana, this 26th day of January, 2000.