Garcia v. Vitus Energy, LLC

Full title: CHRISTINA GARCIA, Plaintiff, v. VITUS ENERGY, LLC, Defendant.

Court: United States District Court, District of Alaska

Date published: Jun 6, 2022

605 F. Supp. 3d 1188 (D. Alaska 2022)

Opinion

Case No. 3:20-cv-00249-JMK

2022-06-06

Christina GARCIA, Plaintiff, v. VITUS ENERGY, LLC, Defendant.

Michele L. Power, Whitney Power Wilson, Power and Power Law, Anchorage, AK, for Plaintiff. Dustin C. Hamilton, Nathan John Beard, Le Gros Buchanan & Paul, Seattle, WA, for Defendant.

JOSHUA M. KINDRED, United States District Judge

Michele L. Power, Whitney Power Wilson, Power and Power Law, Anchorage, AK, for Plaintiff.

Dustin C. Hamilton, Nathan John Beard, Le Gros Buchanan & Paul, Seattle, WA, for Defendant.

ORDER GRANTING IN PART DEFENDANT'S MOTION FOR PARTIAL SUMMARY JUDGMENT

JOSHUA M. KINDRED, United States District Judge

Before the Court is Defendant Vitus Energy LLC's ("Vitus") Motion for Partial Summary Judgment and Partial Judgment on the Pleadings ("Motion for Partial Summary Judgment") at Docket 46. Plaintiff Christina Garcia responded in opposition at Docket 49. Vitus replied at Docket 48. For the foregoing reasons, Vitus's Motion for Summary Judgment is GRANTED IN PART.

I. FACTUAL BACKGROUND

A. The JACKIE M Skiff

Defendant Vitus is the owner and operator of the JACKIE M, a 61-foot, 14-ton tugboat.¹ The JACKIE M is a United States Coast Guard documented vessel.² As is common for tugboats working in Alaska, the JACKIE M uses skiffs to guide the tugboat and take depth soundings.³ In October 2018, the skiff used to support the JACKIE M ("the skiff") was an 18-foot aluminum boat equipped with a 75-horsepower engine.⁴ Plaintiff alleges that the skiff did not have any lighting or seating.⁵ B. Plaintiff Meets Mr. Kevin Dewitt

1 Docket 46 at 2.

2 Id.

3 Id.

4 Id.

5 Docket 49 at 3–4; Docket 49-13 at 3.

In October 2018, Mr. Kevin Dewitt was the captain of the JACKIE M, having been hired by Vitus earlier in the season.⁶ Vitus's Director of Marine Operations Luther Bartholomew testified that Mr. Dewitt met the requirements for the position of captain at the time he was hired.⁷ Mr. Bartholomew stated that Mr. Dewitt "would have been in the top tier captains or operators on western rivers based on his experience, based on his knowledge, based on his license and based on his endorsements that he currently had."⁸

6 Docket 49 at 1–2.

7 Docket 49-2 at 5.

8 Id.

Plaintiff testified that she met Mr. Dewitt in October 2018 at the Sea Inn Bar in Dillingham, Alaska.⁹ Mr. Dewitt was accompanied by two other Vitus employees, Engineer Scott Edwards and Deckhand Jonathan Russo.¹⁰ Plaintiff testified that the group drank "a lot" that night, staying at the bar until it closed.¹¹ Mr. Dewitt and Plaintiff stayed in contact after meeting and made plans to meet again the following Friday.¹²

9 See Docket 49 at 4; Docket 49-6 at 3.

10 Docket 49 at 4; Docket 49-6 at 3.

11 Docket 49-6 at 4.

12 Id. at 6; Docket 49-13 at 2.

C. The October 19, 2018 Grounding of the Skiff

That Friday, October 19, 2018, Mr. Dewitt told the crew of the JACKIE M that he was going to Dillingham to meet someone.¹³ Mr. Dewitt then traveled to Dillingham in the skiff to meet Plaintiff at the Sea Inn Bar.¹⁴ Mr. Dewitt arrived at the bar after Plaintiff.¹⁵ Plaintiff testified that Mr. Dewitt did not appear intoxicated when he arrived.¹⁶ In support of her opposition to Vitus's Motion for Summary Judgment, Plaintiff submitted an affidavit reiterating that Mr. Dewitt did not appear intoxicated when he arrived at the bar on October 19, 2018, but stating that she could "smell[ ] alcohol on his breath."¹⁷ In an answer to one of Vitus's interrogatories, Plaintiff indicated that she "now believes that Mr. Dewitt had been drinking prior to arriving at the bar."¹⁸

13 Docket 49 at 3; Docket 49-9 at 3.

14 Docket 49 at 3; Docket 49-9 at 3.

15 Docket 49-6 at 6.

16 Id. at 9.

17 Docket 49-13 at 2.

18 Docket 51-1 at 5.

Mr. Dewitt drank one beer at the bar, which Plaintiff bought for him.¹⁹ Shortly after arriving, Mr. Dewitt told Plaintiff that he had forgotten his wallet on the JACKIE M and asked Plaintiff if she would like to accompany him to retrieve it.²⁰ Plaintiff agreed, and the pair boarded the skiff.²¹ At the time Plaintiff and Mr. Dewitt left the bar, it was dark outside.²² Plaintiff alleges that Mr. Dewitt did not provide her with a life jacket.²³ Plaintiff testified that there was nowhere for her to sit in the skiff, so she braced herself against "the cabinet."²⁴ Plaintiff and Mr. Dewitt arrived at the JACKIE M and Plaintiff greeted the crew and toured their sleeping quarters.²⁵ Engineer Edwards testified that he thought Plaintiff and Mr. Dewitt were in "party mode" and "were just happy and running around the boat."²⁶ After Mr. Dewitt went to his living quarters to retrieve his wallet, Mr. Dewitt and Plaintiff left the JACKIE M aboard the skiff.²⁷ Vitus had a company policy that the skiff was to be used "for Vitus Marine business only – NOT FOR PERSONAL USE."²⁸ The JACKIE M crew members did not question Mr. Dewitt's authority to use the skiff to transport Plaintiff that evening.²⁹

19 Docket 49 at 4; Docket 49-6 at 6.

20 Docket 49 at 4; Docket 49-6 at 6.

21 Docket 49-6 at 6.

22 Docket 49 at 4; Docket 49-12 at 1.

23 Docket 49-13 at 3.

24 Docket 49-6 at 6.

25 Docket 49-6 at 6; Docket 49-13 at 3.

26 Docket 49-5 at 4.

27 Docket 49-6 at 6; Docket 49-7 at 5.

28 Docket 49-19 at 1.

29 Docket 49-13 at 3.

As the pair traveled back to Dillingham in the skiff, Plaintiff again braced herself against the console.³⁰ Mr. Dewitt testified that "the water was high, the shore was very low ... it was only three feet up off of the waterline so in the darkness it was hard to see."³¹ Mr. Dewitt misjudged their location and the skiff struck a sandbar and became grounded.³² Mr. Dewitt and Plaintiff were thrown into the skiff's consoles, which broke free from the skiff.³³ Both Mr. Dewitt and Plaintiff suffered lacerations to their heads.³⁴

30 Docket 49-6 at 6–7.

31 Docket 49-7 at 7.

32 Docket 49-7 at 11; Docket 49-13 at 4.

33 Docket 49 at 5; Docket 49-7 at 11.

34 Docket 49-6 at 7; Docket 49-7 at 8.

D. After the Grounding

Immediately after the grounding, Plaintiff and Mr. Dewitt used their cell phones for lighting.³⁵ Plaintiff testified that Mr. Dewitt "freaked out" and was hesitant to contact the crew of the JACKIE M for assistance.³⁶ Mr. Dewitt tripped and fell into the water.³⁷ He then tried unsuccessfully to push the skiff off the shore.³⁸ At Plaintiff's behest, Mr. Dewitt called the crew of the JACKIE M.³⁹ The crew of the JACKIE M traveled to the location of the skiff and hoisted the skiff onto the tug.⁴⁰ After Mr. Dewitt and Plaintiff were aboard the tug, Engineer Edwards called Vitus's office to report the accident and spoke with Mark Smith, Vitus's Chief Strategic Officer.⁴¹ After speaking with Mr. Smith, Engineer Edwards called 911.⁴² The crew of the JACKIE M then dropped Mr. Dewitt and Plaintiff off at the dock in Dillingham, where they were met by Emergency Medical Technicians and a local police officer.⁴³ The police officer spoke with Mr. Dewitt but did not speak with Plaintiff.⁴⁴ Mr. Dewitt and Plaintiff were transported to Kanakanak Hospital in Dillingham via ambulance.⁴⁵ At the hospital, Plaintiff and Mr. Dewitt each received treatment for the lacerations on their heads.⁴⁶ Plaintiff and Mr. Dewitt were discharged from the hospital that same evening and went to Plaintiff's apartment.⁴⁷ At Plaintiff's house, Plaintiff attested that Mr. Dewitt produced a half-consumed bottle of alcohol from his jacket pocket and took a drink.⁴⁸ Mr. Dewitt denies that he consumed alcohol at Plaintiff's home after the grounding.⁴⁹

35 Docket 49-7 at 6.

36 Docket 49-13 at 4.

37 Id. ; Docket 49-7 at 7.

38 Docket 49-13 at 4.

39 Id.

40 Docket 49-5 at 5–6; Docket 49-13 at 4.

41 Docket 49-5 at 7.

42 Docket 49-5 at 6–7.

43 Docket 49-5 at 7; Docket 49-7 at 8; Docket 49-13 at 4.

44 Docket 49-13 at 4; Docket 49-7 at 8.

45 Docket 49 at 7; Docket 49-6 at 7; Docket 49-7 at 8.

46 Docket 49 at 7; Docket 49-6 at 7.

47 Docket 49-6 at 8.

48 Docket 49-13 at 5.

49 Docket 49-7 at 9.

Hours after the grounding, at 5:47 a.m., Vitus CEO Justin Charon, sent an email to CSO Mark Smith, asking "[w]ho called you and gave you the report? Local police? If we fire [Mr. Dewitt] for drinking while operating a skiff do we report that to the [United States Coast Guard]? Of course we need all the facts first."⁵⁰ There is no evidence that Mr. Dewitt was tested for alcohol impairment, either through a saliva swab, breathalyzer, or blood sample, at any point on the night of October 19, 2018.⁵¹

50 Docket 49 at 7; Docket 49-17.

51 Docket 49 at 8; Docket 49-7 at 10.

II. LEGAL STANDARDS

A. Summary Judgment

Vitus moves for summary judgment on Plaintiff's negligence per se, negligent entrustment, and vicarious liability claims.⁵² Vitus moves for judgment on the pleadings or, in the alternative, summary judgment on Plaintiff's negligent hiring, training, and supervision claim and punitive damages claim.⁵³ Under Federal Rule of Civil Procedure 56(a), a court "shall grant summary judgment if the movant shows there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." A material fact is "one that might allow judgment in favor of the party opposing summary judgment."⁵⁴ The party moving for summary judgment has the burden of demonstrating there is no genuine dispute as to any material fact.⁵⁵ Where the nonmoving party will bear the burden of proof at trial on a dispositive issue, the moving party need not present evidence to show that summary judgment is warranted; it need only prove there is an absence of evidence of a genuine dispute as to any material fact.⁵⁶ Once the moving party has met this burden, the nonmoving party must set forth evidence of specific facts showing the existence of a genuine issue for trial.⁵⁷ The nonmoving party's burden "is not a light one."⁵⁸ The nonmoving party must come forth with competent "evidence from which a jury could reasonably render a verdict in the nonmoving party's favor."⁵⁹ The nonmoving party may not simply rest on allegations and denials in its pleading⁶⁰ and must show "more than the mere existence of a scintilla of evidence."⁶¹ All evidence presented by the nonmoving party must be believed for purposes of summary judgment and all justifiable inferences are to be drawn in its favor.⁶² A court's function on summary judgment is not to weigh evidence or determine the truth of the matter, but rather, to determine if there are genuine issues for trial.⁶³

52 Docket 46.

53 Id.

54 Pac. Nw. Venison Producers v. Smitch , 20 F.3d 1008, 1013 (9th Cir. 1994).

55 JL Beverage Co., LLC v. Jim Beam Brands Co. , 828 F.3d 1098, 1105 (9th Cir. 2016).

56 See Celotex Corp. v. Catrett , 477 U.S. 317, 325, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986).

57 In re Oracle Corp. Sec. Litig. , 627 F.3d 376, 387 (9th Cir. 2010).

58 Id.

59 Id.

60 Snead v. Wright , 427 F. Supp. 3d 1133, 1137–38 (D. Alaska 2019) (citing Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 248–49, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) ).

61 In re Oracle Corp. Sec. Litig. , 627 F.3d at 387 (citing Anderson , 477 U.S. at 252, 106 S.Ct. 2505 ).

62 Anderson , 477 U.S. at 255, 106 S.Ct. 2505.

63 Id. at 249, 106 S.Ct. 2505.

B. Judgment on the Pleadings

Pursuant to Federal Rule of Civil Procedure 12(c), a party may move for judgment on the pleadings after the pleadings are closed but early enough not to delay trial. "Judgment on the pleadings is properly granted when, accepting all factual allegations in the complaint as true, there is no issue of material fact in dispute, and the moving party is entitled to judgment as a matter of law."⁶⁴ A Rule 12(c) motion is "functionally identical" to a Rule 12(b)(6) motion, as both require the court to assess the legal sufficiency of the claims asserted in the complaint.⁶⁵ "If, on a motion under Rule 12(b)(6) or 12(c), matters outside the pleadings are presented to and not excluded by the court, the motion must be treated as one for summary judgment under Rule 56."⁶⁶ If the court converts a Rule 12(c) motion into one for summary judgment, all parties must be given a reasonable opportunity to present all the material pertinent to that motion.⁶⁷ Here, Vitus did not specifically rely on extrinsic evidence in moving for judgment on the pleadings as to Plaintiff's claims for negligent hiring, training, and supervision and punitive damages.⁶⁸ However, because the Court has the benefit of the entire summary judgment record before it, and because both parties are on notice, the Court will exercise its discretion and consider Vitus's Motion regarding Plaintiff's claim for negligent, hiring, training, and supervision and punitive damages under the Rule 56 standard.⁶⁹

64 Chavez v. United States , 683 F.3d 1102, 1108 (9th Cir. 2012) (quoting Fleming v. Pickard , 581 F.3d 922, 925 (9th Cir. 2009) ).

65 Yetter v. Ford Motor Co. , 428 F. Supp. 3d 210, 219 (N.D. Cal. 2019) (quoting Dworkin v. Hustler Magazine, Inc. , 867 F.2d 1188, 1192 (9th Cir. 1989) ).

66 Fed. R. Civ. P. 12(d).

67 Id.

68 See Docket 46 at 18–20; 22–25.

69 See Zavala v. Kruse-W., Inc. , 562 F.Supp.3d 1059, 1067–69 (E.D. Cal. 2021).

III. DISCUSSION

A. Choice of Law

As a preliminary matter, the parties appear to disagree about the substantive law applicable to this case. Vitus asserts that federal maritime law applies, while Plaintiff consistently applies Alaska state law.⁷⁰ This case invokes the Court's diversity jurisdiction.⁷¹ While this Court normally would apply the law of the forum state in diversity cases, "if the case sounds in admiralty the Court must apply federal admiralty law."⁷² Thus, "if the district court could have maritime jurisdiction over a tort claim, ‘substantive maritime law controls’ the claim, ‘whatever the forum or asserted basis of jurisdiction.’ "⁷³ Maritime law applies to tort claims that "satisfy conditions both of location and of connection with maritime activity."⁷⁴ To determine whether the location element is satisfied, courts consider "whether the tort occurred on navigable water or whether injury suffered on land was caused by a vessel on navigable water."⁷⁵ The connection element hinges on (1) "whether the incident has a potentially disruptive impact on maritime commerce"; and (2) "whether the general character of the activity giving rise to the incident shows a substantial relationship to traditional maritime activity."⁷⁶ As for the first prong, the Ninth Circuit "takes an inclusive view of what general features of an incident have a potentially disruptive effect on maritime commerce."⁷⁷ Regarding the second prong, courts look to the "tort claim's general features, rather than at its minute particulars, to assess whether there is the requisite connection."⁷⁸ However, the Supreme Court has cautioned against describing a tortfeasor's activity at such a hyper-generalized level as to "eliminate any hint of maritime connection."⁷⁹ The Court has acknowledged that ordinarily activities "involving a vessel on navigable waters fall[ ] within the scope of admiralty jurisdiction" when described with the appropriate level of generality.⁸⁰

70 See Docket 46 at 8–9; Docket 49 at 10–34.

71 See Docket 1 at 1–2.

72 Dominique v. Holland Am. Line, N.V. , No. C12-78RSL, 2013 WL 5437436, at *1 (W.D. Wash. Sept. 27, 2013) (citing Gibbs v. Carnival Cruise Lines , 314 F.3d 125, 131 (3rd Cir. 2002) ).

73 Adamson v. Port of Bellingham , 907 F.3d 1122, 1126 (9th Cir. 2018) (quoting Unigard Sec. Ins. Co. v. Lakewood Eng'g & Mfg. Corp. , 982 F.2d 363, 366 n.1 (9th Cir. 1992) ).

74 Jerome B. Grubart, Inc. v. Great Lakes Dredge & Dock Co. , 513 U.S. 527, 534, 115 S.Ct. 1043, 130 L.Ed.2d 1024 (1995).

75 In re Mission Bay Jet Sports, LLC , 570 F.3d 1124, 1128 (9th Cir. 2009) (quoting Grubart, 513 U.S. at 534, 115 S.Ct. 1043 ).

76 Wallis v. Princess Cruises, Inc. , 306 F.3d 827, 840 (9th Cir. 2002) (quoting Grubart , 513 U.S. at 534, 115 S.Ct. 1043 ) (internal quotation marks omitted).

77 Mission Bay Jet Sports, 570 F.3d at 1128 ; see also Sisson v. Ruby , 497 U.S. 358, 363, 110 S.Ct. 2892, 111 L.Ed.2d 292 (1990) (noting that courts determine an activity's "potential impact ... by examining its general character" not the "actual effects on maritime commerce" nor "the particular facts of the incident" that may have rendered it more or less likely to disrupt commercial activity.).

78 Ali v. Rogers , 780 F.3d 1229, 1235 (9th Cir. 2015).

79 Grubart, 513 U.S. at 541–42, 115 S.Ct. 1043.

80 Id. at 543, 115 S.Ct. 1043.

The location element clearly is met here, as the tort in question occurred on navigable waters outside Dillingham, Alaska.⁸¹ Regarding the connection element, the general character of the activity giving rise to the incident is best described as the allegedly negligent operation of a skiff resulting in harm to the passengers.⁸² The first prong of the connection element is satisfied, as an incident of this nature has a potentially disruptive impact on maritime commerce, especially considering the damage to the skiff and the fact that the JACKIE M crew assisted with the rescue.⁸³ The second prong also is satisfied, as this case falls into the "typical maritime tort scenario" where the "general character of the activity giving rise to the incident" was the navigation of a vessel by a maritime employee.⁸⁴ Therefore, given the Supreme Court's instruction to characterize the relevant activity generally, but not so generally as to obscure the maritime context, the connection element is met.⁸⁵

81 Docket 1 at 2–3.

82 See Mission Bay Jet Sports , 570 F.3d at 1129 (describing the incident at issue as "as harm by a vessel in navigable waters to a passenger.").

83 See id. ("[A] vessel from which a passenger goes overboard in navigable waters would likely stop to search and rescue, call for assistance from others—which, in this area, could include the Coast Guard and in fact did involve another vessel—and ensnarl maritime traffic in the lanes affected.").

84 See Gruver v. Lesman Fisheries Inc. , 489 F.3d 978, 983 (9th Cir. 2007).

85 See id. at 986.

This case satisfies both the location and connection elements; therefore, maritime law provides the substantive standard for assessing Plaintiff's claims on Vitus's Motion for Partial Summary Judgment.⁸⁶ Federal maritime law is "an amalgam of traditional common-law rules, modifications of those rules, and newly created rules."⁸⁷ The application of maritime law "does not result in automatic displacement of state law."⁸⁸ Rather, a fundamental feature of maritime law is that "federal admiralty courts sometimes do apply state law"⁸⁹ and "state law may be used to supplement federal maritime law so long as state law is ‘compatible with substantive maritime policies.’ "⁹⁰

86 See Adamson v. Port of Bellingham , 907 F.3d 1122, 1126 (9th Cir. 2018).

87 E. River S.S. Corp. v. Transamerica Delaval, Inc. , 476 U.S. 858, 864–65, 106 S.Ct. 2295, 90 L.Ed.2d 865 (1986).

88 Jerome B. Grubart, Inc. v. Great Lakes Dredge & Dock Co. , 513 U.S. 527, 545, 115 S.Ct. 1043, 130 L.Ed.2d 1024 (1995).

89 Id. at 546, 115 S.Ct. 1043.

90 Espinoza v. Princess Cruise Lines, Ltd. , No. 2:17-cv-08412-FLA (JEMx), 581 F.Supp.3d 1201, 1220-21 (C.D. Cal. Jan. 25, 2022) (quoting Yamaha Motor Corp., U.S.A. v. Calhoun , 516 U.S. 199, 207, 116 S.Ct. 619, 133 L.Ed.2d 578 (1996) ).

B. Vitus's Motion to Strike

A "court can only consider admissible evidence in ruling on a motion for summary judgment."⁹¹ Accordingly, in ruling on Vitus's Motion for Partial Summary Judgment, the Court did not consider evidence that it deemed inadmissible in its Order on Vitus's Motion in Limine at Docket 54. Additionally, "a party may object to the admissibility of evidence on summary judgment without filing a separate motion to strike."⁹² In its reply in support of its Motion for Partial Summary Judgment, Vitus moves to strike several exhibits submitted with Plaintiff's opposition, arguing these exhibits contain inadmissible evidence.⁹³ Vitus requests that the Court strike (1) Plaintiff's affidavit that she submitted with her opposition; (2) "the hearsay and speculative statements contained in" Plaintiff's affidavit; and (3) several unauthenticated exhibits submitted with Plaintiff's opposition.⁹⁴

91 Orr v. Bank of Am., NT & SA , 285 F.3d 764, 773 (9th Cir. 2002).

92 Everett v. Am. Gen. Life Ins. Co. , 703 F. App'x 481, 482 (9th Cir. 2017).

93 Docket 50 at 2–4.

94 Id.

1. Plaintiff's affidavit

Vitus moves to strike Plaintiff's affidavit, arguing that it raises new issues of fact that contradict Plaintiff's previous testimony.⁹⁵ Vitus contends that the affidavit is a "sham" submitted solely for the purpose of defeating summary judgment.⁹⁶ There is a "general rule in the Ninth Circuit that a party cannot create an issue of fact by an affidavit contradicting his prior deposition testimony."⁹⁷ The sham affidavit rule is necessary because "if a party who has been examined at length on deposition could raise an issue of fact simply by submitting an affidavit contradicting his own prior testimony, this would greatly diminish the utility of summary judgment as a procedure for screening out sham issues of fact."⁹⁸ However, the Ninth Circuit has advised that the sham affidavit rule "should be applied with caution," as it is in tension with the fundamental principle that courts deciding a motion for summary judgment may not make credibility determinations or weigh conflicting evidence.⁹⁹ Therefore, to justify striking an affidavit as a sham, courts must (a) "make a factual determination that the contradiction is a sham" and (b) determine that "the inconsistency between a party's deposition testimony and subsequent affidavit is clear and unambiguous ...."¹⁰⁰ New facts in an affidavit, when accompanied by a reasonable explanation, "should not ordinarily lead to the striking of [an affidavit] as a sham."¹⁰¹

95 Id. at 2–3; see also Docket 49-13.

96 Docket 50 at 2–3.

97 Yeager v. Bowlin , 693 F.3d 1076, 1080 (9th Cir. 2012) (quoting Van Asdale v. Int'l Game Tech. , 577 F.3d 989, 998 (9th Cir. 2009) ).

98 Van Asdale , 577 F.3d at 998 (quoting Kennedy v. Allied Mut. Ins. Co. , 952 F.2d 262, 266 (9th Cir. 1991) ).

99 Yeager , 693 F.3d at 1080 (quoting Van Asdale , 577 F.3d at 998 ).

100 Id. (quoting Van Asdale , 577 F.3d at 998–99 ).

101 Id. at 1081.

Vitus asserts that Plaintiff claimed for the first time in her affidavit that she smelled alcohol on Mr. Dewitt's breath when he arrived at the Sea Inn Bar in Dillingham on October 19, 2018, and again later when Mr. Dewitt and Plaintiff were boarding the skiff to return to Dillingham from the JACKIE M.¹⁰² Vitus claims these allegations are inconsistent with Plaintiff's sworn responses to Vitus's Interrogatories, in which she was asked to describe "each and every fact and sequence of events Plaintiff contends caused her to be injured and that form the basis of her claims against Vitus."¹⁰³ Plaintiff's response detailed the evening of October 19, 2018, but did not mention Mr. Dewitt smelling like alcohol at any point.¹⁰⁴ When describing the evening of the grounding in her deposition, Ms. Garcia likewise made no mention of having smelled alcohol on Mr. Dewitt's breath, testifying that Mr. Dewitt did not appear intoxicated when he arrived at the Sea Inn Bar and stating, "[h]e looked clean, fresh."¹⁰⁵

102 Docket 50 at 2–3; Docket 49-13 at 2, 4.

103 Docket 50 at 2; Docket 51-1 at 3.

104 Docket 50 at 2; Docket 51-1 at 3–5.

105 Docket 50 at 2–3; Docket 47-1 at 15.

Plaintiff's failure to allege that Mr. Dewitt smelled like alcohol when he arrived at the Sea Inn Bar in both her deposition testimony and interrogatory response gives the Court pause as to whether her affidavit is a sham. However, in an answer to another of Vitus's interrogatories, Plaintiff mentioned that she "now believes that Mr. Dewitt had been drinking prior to arriving at the bar."¹⁰⁶ This statement is enough to reconcile the inconsistency between Plaintiff's previous testimony and her assertion in her affidavit that Mr. Dewitt smelled like alcohol when he arrived at the Sea Inn Bar on the night of October 29, 2018.

106 Docket 51-1 at 5.

The affidavit's statement that "[Plaintiff] still could smell alcohol on [Mr. Dewitt's] breath" when they left the JACKIE M for Dillingham is, however, more problematic.¹⁰⁷ Plaintiff's failure to assert this fact in depositions and answers to interrogatories was not explained in her affidavit or elsewhere.¹⁰⁸ This Court finds that this new fact is arguably incompatible with Plaintiff's previous testimony, but it does not present an inconsistency that is so "clear and ambiguous" as to justify employing the sham affidavit rule.¹⁰⁹ While a close question, given the caution with which the sham affidavit rule must be applied, this Court concludes that striking this statement from Plaintiff's affidavit veers too far into the jury's role of engaging in credibility determinations or weighing evidence.¹¹⁰ Although the Court expresses a fair amount of skepticism regarding Plaintiff's newly asserted allegation that Mr. Dewitt smelled like alcohol in the moments before the grounding, it is for the trier of fact to weigh the credibility of these statements.

107 Docket 49-13 at 4.

108 See generally id.

109 See Yeager v. Bowlin , 693 F.3d 1076, 1081 (9th Cir. 2012) (quoting Van Asdale v. Int'l Game Tech. , 577 F.3d 989, 998–99 (9th Cir. 2009) ).

110 See Manley v. Rowley , 847 F.3d 705, 711 (9th Cir. 2017).

Finally, Vitus asserts that, in Plaintiff's First Motion for Sanctions for Spoliation of Evidence, filed at Docket 38, Plaintiff made "an intentional, binding judicial admission that there is no ‘dispositive or circumstantial evidence of Capt. DeWitt's level of intoxication.’ "¹¹¹ Vitus contends that Plaintiff also admitted that there was "insufficient evidence" to meet her burden of proof on her negligence per se claim.¹¹² Vitus argues that Plaintiff should be bound by these admissions.¹¹³ The Ninth Circuit has held that "statements of fact contained in a brief may be considered admissions of the party in the discretion of the district court."¹¹⁴ As Plaintiff's statements are not statements of fact, but rather, arguments made in support of sanctions, the Court declines to treat these statements as binding judicial admissions. Vitus's Motion to Strike inconsistent statements in Plaintiff's affidavit is therefore DENIED WITHOUT PREJUDICE.

111 Docket 50 at 3 (quoting Docket 38 at 15–16).

112 Id.

113 See id.

114 Am. Title Ins. Co. v. Lacelaw Corp. , 861 F.2d 224, 227 (9th Cir. 1988) (emphasis in original); see also Gospel Missions of Am. v. City of Los Angeles , 328 F.3d 548, 557 (9th Cir. 2003) (collecting cases).

2. Hearsay statements in Plaintiff's affidavit

Vitus also moves to strike the "hearsay and speculative statements" contained in Plaintiff's affidavit.¹¹⁵ Hearsay is an out of court statement that "a party offers in evidence to prove the truth of the matter asserted."¹¹⁶ "Inadmissible hearsay cannot be used to establish material facts on a summary judgment motion."¹¹⁷ In her affidavit, Plaintiff claims that, a week before the grounding, Vitus employee Scott Edwards told her that Mr. Dewitt was "an alcoholic and had fallen off the wagon."¹¹⁸ In opposing summary judgment, Plaintiff relies on this statement as evidence that Mr. Dewitt was, in fact, an alcoholic who had relapsed; in other words, Mr. Edwards' statement is hearsay as it is being offered for the truth of the matter asserted.¹¹⁹ Vitus correctly points out that, although Mr. Edwards was a Vitus employee, his statement does not constitute an opposing party's statement under Federal Rule of Evidence 801 because he was not speaking on a matter within the scope of his employment relationship.¹²⁰ As no other hearsay exception appears to apply, and Plaintiff offering none, the Court strikes this statement and will not consider it on this Motion for Partial Summary Judgment.

115 Docket 50 at 3–4.

116 Fed. R. Evid. 801(c).

117 Roness v. T-Mobile USA, Inc. , No. C18-1030-RSM, 2019 WL 2918234, at *2 (W.D. Wash. July 8, 2019).

118 Docket 49-13 at 2; see also Docket 49 at 4; Docket 44-5 at 3.

119 See Docket 49 at 4, 14, 15 (noting "a reasonable juror could find that Capt. DeWitt's was an alcoholic whose personal life was taking a toll on him and that he broke his sobriety, drinking to excess, in the week before the grounding and consumed alcohol on the night of the grounding.").

120 Fed. R. Evid. 801(d)(2)(D) (providing that a statement offered against an opposing party that was made by a party's employee on a matter within the scope of that relationship is not hearsay).

Plaintiff offers evidence that a gesture Mr. Dewitt made in response to Mr. Edwards's statement—raising his glass—proves that statement's truth.¹²¹ Plaintiff also alleges that Mr. Dewitt "implicitly admitted" he was drinking on the night of October 19, 2018, when he was silent after Plaintiff said, "I knew it. I knew you were drinking."¹²² Although not statements in the common sense, the gesture and silence are "statements" for purposes of the ban on hearsay.¹²³ These out of court "statements" are being offered to prove the truth of the matter asserted, namely, that Mr. Dewitt agreed with the speaker's statement.¹²⁴ They are not adopted admissions nor opposing party statements because Mr. Dewitt is not a party to this action and was not communicating on a matter within the scope of his employment relationship with Vitus.¹²⁵ The Court concludes that Mr. Dewitt's gesture and silence constitute inadmissible hearsay under Federal Rule of Evidence 801 and do not appear to fall within the hearsay exceptions enumerated in Federal Rules of Evidence 803 and 804. The Court therefore strikes these "statements" for the purposes of Vitus's Motion for Partial Summary Judgment. Accordingly, Vitus's Motion to Strike is GRANTED as to the hearsay statements contained in Plaintiff's affidavit. The Court emphasizes these hearsay statements are only stricken for the purposes of this Motion. These statements may be considered at a later stage in the proceeding if Plaintiff is able to offer them in admissible form.

121 See Docket 49 at 12 ("Just one week prior to the grounding, Capt. DeWitt consumed alcohol to excess and implicitly admitted he had ‘fallen off the wagon’ "); see also id. at 14–15; Docket 49-6 at 4; Docket 49-13 at 2.

122 See Docket 49 at 13 ("After obtaining medical care, Capt. DeWitt began consuming alcohol again and implicitly admitted to Ms. Garcia that he had been intoxicated when he operated the watercraft."); Docket 49-13 at 5.

123 See Fed. R. Evid. 801(a) (providing that a "statement" in the rule against hearsay means "a party's oral assertion, written assertion, or nonverbal conduct, if the person intended it as an assertion."); see also Equal Emp. Opportunity Comm'n v. Glob. Horizons, Inc., No. 2:11-CV-3045-RMP, 2020 WL 1318792, at *19 (E.D. Wash. Mar. 20, 2020), appeal dismissed sub nom. No. 20-35434, 2020 WL 6731483 (9th Cir. Aug. 21, 2020) (finding a nod inadmissible hearsay).

124 See Docket 49 at 12, 13.

125 See Fed. R. Evid. 801(d)(2)(B), (D).

3. Unauthenticated exhibits

Finally, Vitus requests that this Court strike the following exhibits filed with Plaintiff's opposition: (a) a printout from the Hazelden Betty Ford Foundation regarding alcoholism;¹²⁶ (b) a printout from the Alaska Department of Fish and Game describing the Nushagak River;¹²⁷ and (c) a Coast Guard Auxiliary paper.¹²⁸ Vitus asserts that Plaintiff failed to authenticate these documents and, as such, they constitute inadmissible hearsay.¹²⁹ The Ninth Circuit has "repeatedly held that unauthenticated documents cannot be considered in a motion for summary judgment."¹³⁰ Plaintiff's exhibits appear to be printouts from various websites.¹³¹ They have not been authenticated by any of the means articulated in Federal Rules of Evidence 901 or 902. The Court therefore GRANTS Vitus's Motion to Strike as to these unauthenticated exhibits and will not consider them on this Motion for Partial Summary Judgment.¹³²

126 Docket 49-10.

127 Docket 49-11.

128 Docket 49-25.

129 Docket 50 at 4.

130 Orr v. Bank of Am., NT & SA , 285 F.3d 764, 773 (9th Cir. 2002).

131 See Docket 49-10; Docket 49-11; Docket 49-25.

132 See Haines v. Home Depot U.S.A., Inc. , No. 1:10-cv-01763-SKO, 2012 WL 1143648, at *7 (E.D. Cal. Apr. 4, 2012) (sustaining evidentiary objection to website page that was not properly authenticated).

C. Vitus's Motion for Partial Summary Judgment

Vitus moves for summary judgment on "all of Plaintiff's claims asserted against it," namely, Plaintiff's claims for negligence per se; negligent entrustment; negligent hiring, training, and supervision; vicarious liability; and punitive damages.¹³³ Vitus also moves for judgment on the pleadings on Plaintiff's negligent hiring, training, and supervision claim and punitive damages claim.¹³⁴ Vitus notes that the only claim on which it "does not move to dismiss is Plaintiff's negligence claim against non-party Kevin Dewitt."¹³⁵ At the outset, this Court notes that Vitus's position is a peculiar one—it moved for summary judgment on Plaintiff's negligence per se claim, which pertains only to the actions of non-party Kevin Dewitt, but did not move for summary judgment on Plaintiff's negligence claim, which similarly is solely concerned with the conduct of Mr. Dewitt.¹³⁶ Vitus's distinction between these two claims, which both lack allegations of direct conduct against Vitus, is perplexing. Nonetheless, the Court addresses each of the claims on which Vitus seeks summary judgment below.

133 See generally Docket 46.

134 Id. at 1.

135 Docket 46 at 1 n.1.

136 See Docket 1 at 3–4.

1. Negligence per se

Plaintiff brings a claim for negligence per se, alleging that Mr. Dewitt violated Alaska Statute ("AS") 28.35.030 when he operated Vitus's skiff while under the influence of an alcoholic beverage.¹³⁷ Courts do not consistently apply the doctrine of negligence per se in the context of federal maritime law.¹³⁸ While federal maritime law recognizes an analog of negligence per se in the Pennsylvania Rule, "unlike negligence per se ... the Pennsylvania Rule creates a presumption of causation, not a presumption of negligence."¹³⁹ In the absence of well-developed maritime law pertaining to Plaintiff's negligence per se claim, the Court will incorporate common law principles and Alaska state law.¹⁴⁰ Alaska state law recognizes that "the violation of a regulation or statute amounts to negligence as a matter of law—that is, negligence per se—when the statute or regulation at issue defines a standard of conduct that a reasonable person is expected to follow under the circumstances presented."¹⁴¹ Thus, "[t]he negligence per se doctrine provides that a person who indisputably violates a statute must be found negligent."¹⁴² The statute at issue here, AS 28.35.030(a), provides:

137 Id.

138 See Tau v. F/V Saint Jude, 227 F. App'x 663, 664 (9th Cir. 2007) (stating "[t]here is no maritime theory of strict liability or negligence per se under which [Defendants] could be liable for [Plaintiff's] injuries."); Park v. Stockstill Boat Rentals, Inc. , 492 F.3d 600, 602–03 (5th Cir. 2007) (acknowledging the applicability of negligence per se under the Jones Act); Marshall v. Isthmian Lines, Inc., 334 F.2d 131, 134 (5th Cir. 1964) (applying the theory of negligence per se embodied in Restatement (First) of Torts § 286 (1934) to a maritime negligence action); Saunders v. Consumers Energy Co. , No. 1:19-cv-782, 2021 WL 5367424, at *8 (W.D. Mich. Nov. 15, 2021) (discussing the five elements of negligence per se in admiralty cases pursuant to the Jones Act); Holderbaum v. Carnival Corp. , No. 13-24216-CIV, 2014 WL 12516074, at *4 (S.D. Fla. Dec. 11, 2014) (dismissing cause of action for negligence per se while applying maritime law); In re Oil Spill by the Oil Rig Deepwater Horizon in the Gulf of Mexico, on Apr. 20, 2010 , MDL No. 2179, 2011 WL 4575696, at *10 (E.D. La. Sept. 30, 2011) (acknowledging the cause of action of negligence per se under maritime law).

139 Brown v. Cox , No. 2:11cv184, 2011 WL 3269680, at *3 (E.D. Va. July 27, 2011) (discussing whether federal maritime law recognizes an independent claim for negligence per se).

140 See Just v. Chambers , 312 U.S. 383, 388, 61 S.Ct. 687, 85 L.Ed. 903 (1941) ("With respect to maritime torts we have held that the State may modify or supplement the maritime law by creating liability which a court of admiralty will recognize and enforce when the state action is not hostile to the characteristic features of the maritime law or inconsistent with federal legislation."); see also Russo v. APL Marine Servs., Ltd. , No. 2:14-cv-03184-ODW, 2014 WL 3506009, at *4 (C.D. Cal. July 14, 2014) ("Thus, in cases in which the issues are not sufficiently addressed by maritime law, and where state law fills those gaps in a way that is not destructive to the uniformity that admiralty law endeavors to maintain, the relevant state law applies.")

141 Pagenkopf v. Chatham Elec., Inc. , 165 P.3d 634, 647 (Alaska 2007) (citing Bachner v. Rich , 554 P.2d 430, 441–42 (Alaska 1976) ).

142 Meyer v. ARG Enterprises, Inc. , No. 3:05-cv-000239 TMB, 2007 WL 9718459, at *1 (D. Alaska Sept. 28, 2007) (applying Alaska law and quoting Ardinger v. Hummell , 982 P.2d 727, 733–34 (Alaska 1999) ).

A person commits the crime of driving while under the influence of an alcoholic beverage, inhalant, or controlled substance if the person operates or drives a motor vehicle or operates an aircraft or a watercraft (1) while under the influence of an alcoholic beverage, intoxicating liquor, inhalant, or any controlled substance, singly or in combination; or (2) and if, as determined by a chemical test taken within four hours after the alleged operating or driving, there is 0.08 percent or more by weight of alcohol in the person's blood or 80 milligrams or more of alcohol per 100 milliliters of blood, or if there is 0.08 grams or more of alcohol per 210 liters of the person's breath.

The Alaska Supreme Court has held that the subsection (a)(1) offense (the "under the influence theory") depends on whether "the driver was impaired at the time of driving."¹⁴³ The under the influence theory requires "proof of a level of impairment that renders the driver incapable of operating a motor vehicle ‘with the caution characteristic of a person of ordinary prudence who is not under the influence.’ "¹⁴⁴ The subsection (a)(2) offense (the "blood-alcohol-level theory") depends "solely on whether ‘the driver's chemical test result is 0.08 percent or higher within four hours of driving.’ "¹⁴⁵ It is not possible for Plaintiff to raise a material factual dispute about whether Mr. Dewitt violated AS 28.35.030(a)(2) because both parties agree that Mr. Dewitt was not chemically tested for alcohol intoxication during the night of October 19, 2018,¹⁴⁶ and a violation of AS 28.35.030(a)(2) cannot be established without a chemical test.¹⁴⁷ Plaintiff does not argue otherwise, instead asserting that Vitus's Motion for Partial Summary Judgment as to Plaintiff's claim of negligence per se may be mooted if the Court imposes a dispositive sanction pursuant to Plaintiff's Motion for Sanctions at Docket 38. On April 29, 2022, the Court denied Plaintiff's Motion for Sanctions at Docket 53. As such, Vitus's Motion on this claim remains ripe.

143 Barnebey v. Dep't of Admin., Div. of Motor Vehicles , 473 P.3d 682, 689 (Alaska 2020), reh'g denied (May 18, 2020) (quoting Valentine v. State , 215 P.3d 319, 326 (Alaska 2009) ).

144 Molina v. State , 186 P.3d 28, 29 (Alaska Ct. App. 2008) (quoting Gundersen v. Anchorage , 762 P.2d 104, 114–15 n.7 (Alaska Ct. App. 1988) ).

145 Barnebey, 473 P.3d at 682 (quoting Valentine , 215 P.3d at 326 ).

146 Docket 46 at 12; Docket 49-7 at 10.

147 See Barnebey, 473 P.3d at 682.

Regarding the subsection (a)(1) offense, Vitus argues that Plaintiff cannot produce admissible evidence that Mr. Dewitt was "under the influence" of alcohol within the meaning of AS 28.35.030(a)(1) when he grounded the skiff.¹⁴⁸ The undisputed evidence shows that Mr. Dewitt consumed one beer before he and Plaintiff left Dillingham for the JACKIE M to retrieve Mr. Dewitt's wallet.¹⁴⁹ Plaintiff states that it is "unknown the exact quantity of alcohol [Mr. Dewitt] consumed" on October 19, 2018, but does not allege that she observed him drinking any alcohol, beyond the single beer at the bar, prior to the grounding.¹⁵⁰ Plaintiff argues that circumstantial evidence may be considered on a motion for summary judgment, and a reasonable juror could infer from the circumstantial evidence in this case that Mr. Dewitt was under the influence of alcohol while operating the skiff.¹⁵¹

148 Docket 46 at 10–12.

149 Docket 49 at 11–12; Docket 49-6 at 6; Docket 49-7 at 5, 8.

150 Docket 49 at 4; see also Docket 49-6; Docket 49-13.

151 Docket 49 at 12.

Plaintiff puts forth several facts that have no bearing on Mr. Dewitt's level of intoxication during the skiff ride, such as Mr. Dewitt's alcohol consumption a week before the grounding, the weather on the night of October 19, 2018, the fact that the skiff had no lighting or seating, the fact that Mr. Dewitt "freaked out" after the grounding and delayed contacting his crew, and Mr. Dewitt's alcohol consumption after the grounding.¹⁵² These facts are not material to the issue of whether Mr. Dewitt was under the influence of alcohol while operating the skiff on the night of October 19, 2018, and thus cannot create a triable issue regarding Plaintiff's negligence per se claim.

152 Id. at 12–13.

The handful of facts that are relevant to Mr. Dewitt's level of intoxication on October 19, 2018, do not save Plaintiff's claim. Plaintiff alleges Mr. Dewitt had a half-empty bottle of liquor on his person after the grounding.¹⁵³ Plaintiff attested that she smelled alcohol on Mr. Dewitt's breath prior to the grounding.¹⁵⁴ A JACKIE M crew member stated he believed Mr. Dewitt and Plaintiff to be in "party mode" prior to the grounding; the same crew member testified later that he did not mean consuming alcohol.¹⁵⁵ Finally, Vitus's CEO emailed its CSO after the grounding asking if Vitus needed to report to the Coast Guard if Mr. Dewitt was fired for drinking while operating the skiff.¹⁵⁶ Taking these allegations as true and construing all inferences in Plaintiff's favor, Plaintiff has failed to raise a genuine issue of material fact as to whether Mr. Dewitt violated AS 28.35.030(a)(1). A violation would require Plaintiff to offer proof of a level of impairment that rendered Mr. Dewitt incapable of operating the skiff with the caution of a reasonably prudent person not under the influence.¹⁵⁷ Plaintiff smelling alcohol on Mr. Dewitt's breath does not allow a jury to permissibly infer the level of Mr. Dewitt's intoxication while operating the skiff. Plaintiff does not offer evidence that Mr. Dewitt drank more than a single beer prior to the grounding. As Vitus points out, Plaintiff also does not offer any evidence that anyone who interacted with Mr. Dewitt on the night of the grounding believed he was under the influence.¹⁵⁸ Plaintiff herself testified that Mr. Dewitt did not seem intoxicated that evening.¹⁵⁹

153 Docket 49 at 12; Docket 49-6 at 8; Docket 49-13 at 5.

154 Docket 49-13 at 4.

155 Docket 49 at 5; Docket 49-5 at 4.

156 Docket 49 at 7; Docket 49-17.

157 See Molina v. State , 186 P.3d 28, 29 (Alaska Ct. App. 2008) (quoting Gundersen v. Anchorage , 762 P.2d 104, 114–15 n.7 (Alaska Ct. App. 1988) ).

158 Docket 46 at 11; Docket 49-2 at 4.

159 Docket 49-6 at 9; Docket 49-13 at 3.

As no reasonable jury could conclude, based on Plaintiff's evidence, that Mr. Dewitt was "under the influence of alcohol" within the meaning of AS 28.35.030 on the night of October 19, 2018, Plaintiff has failed to raise a triable issue regarding an essential element of a negligence per se claim—the violation of a statute.¹⁶⁰ Summary judgment is therefore GRANTED as to Count I Negligence Per Se.

160 Meyer v. ARG Enterprises, Inc. , No. 3:05-cv-000239 TMB, 2007 WL 9718459, at *1 (D. Alaska Sept. 28, 2007) (applying Alaska law and quoting Ardinger v. Hummell , 982 P.2d 727, 733–34 (Alaska 1999) ).

2. Negligent entrustment

"Maritime law recognizes the tort of negligent entrustment."¹⁶¹ Federal maritime law applies the standard for negligent entrustment set forth in the RESTATEMENT (SECOND) OF TORTS § 390 (1965), which states:

161 In re Fun Time Boat Rental & Storage, LLC , 431 F. Supp. 2d 993, 1001 (D. Ariz. 2006) (citing Churchill v. F/V Fjord , 892 F.2d 763, 771 (9th Cir. 1988), cert. denied , 497 U.S. 1025, 110 S.Ct. 3273, 111 L.Ed.2d 783 (1990) ).

One who supplies directly or through a third person a chattel for the use of another whom the supplier knows or has reason to know, to be likely because of his youth, inexperience, or otherwise, to use it in a manner involving unreasonable risk of physical harm to himself and others whom the supplier should expect to share in or be endangered by its use, is subject to liability for physical harm resulting to them.¹⁶²

162 Churchill , 892 F.2d at 771. Both parties agree that the standard set forth in the Restatement (Second) of Torts § 390 (1965) governs Plaintiff's negligent entrustment claim. The application of maritime law and Alaska law thus leads to the same result with respect to this claim. See Nelson v. Progressive Cas. Ins. Co. , 162 P.3d 1228, 1232 (Alaska 2007) ("Alaska recognizes the common law tort of negligent entrustment and follows the definition in the Restatement (Second) of Torts § 390 (1965).").

To prevail on a theory of negligent entrustment, Plaintiff must show that Vitus supplied the skiff to Mr. Dewitt, and Vitus must have known, or should have known, that Mr. Dewitt would be likely to use the skiff in a dangerous manner.¹⁶³ Vitus contends that this case is similar to Churchill v. F/V Fjord , in which the Ninth Circuit upheld the district court's grant of summary judgment on a negligent entrustment claim arising out of a collision of two skiffs.¹⁶⁴ In Churchill , the son of a shipowner, who was also a ship crewmember, used the ship's skiff without permission to go to a party and, while under the influence of alcohol and possibly marijuana, struck another skiff, injuring its passengers.¹⁶⁵ The Ninth Circuit found that (a) the evidence supported the conclusion that the shipowner did not "supply" the skiff to his son when the son did not have permission to use it; and (b) the shipowner had no reason to believe his son would operate the skiff without permission or in a harmful manner.¹⁶⁶ Here, the undisputed evidence indicates that Mr. Dewitt's use of the skiff on October 19, 2018, was contrary to Vitus policy prohibiting use of the skiff for personal reasons.¹⁶⁷ Vitus asserts that Mr. Dewitt was aware of this policy, and there is no evidence suggesting that Vitus should have known Mr. Dewitt would use the skiff against company policy or in an unsafe manner.¹⁶⁸ On the contrary, Vitus presents evidence that Mr. Dewitt was a seasoned captain with years of training and experience operating watercraft, including skiffs, on Alaskan waterways.¹⁶⁹

163 Churchill , 892 F.2d at 771.

164 Id.

165 Id. at 766.

166 Id. at 771.

167 Docket 47-7 at 3; Docket 49-19 at 1.

168 Docket 46 at 16.

169 Id. at 13; Docket 47-2 at 4; Docket 49-2 at 5.

In opposition, Plaintiff asserts that Vitus "permitted the crew, including Mr. Dewitt, to frequently use the skiff to travel to and from Dillingham after dark[,]" and that there is "a genuine dispute of material fact regarding whether the crew's use of the skiff after dark was habitual."¹⁷⁰ Plaintiff cites the testimony of Deckhand Jonathan Russo, in which he indicated that he had used the skiff after dark, and the testimony of Engineer Scott Edwards, in which he testified it was "unusual" for a captain to drive a skiff in the dark on a waterway in western Alaska.¹⁷¹ This testimony cannot save Plaintiff's claim from summary judgment. The JACKIE M crew's habitual use of the skiff at night is not a "material fact" as it has little bearing on whether Vitus entrusted the skiff to Mr. DeWitt knowing or having reason to know that he would use it "in a manner involving unreasonable risk of physical harm to himself and others."¹⁷² Plaintiff does not assert that any operation of a skiff in the dark inherently involves a risk of harm to others. Further, it is uncontested that Mr. Dewitt's use of the skiff on the night of October 19, 2018 was unauthorized.¹⁷³ Without authorization, Vitus cannot be said to have supplied the skiff to Mr. Dewitt to use to transport Plaintiff from the JACKIE M to Dillingham.¹⁷⁴ Plaintiff also does not assert that Mr. Dewitt had a history of using the skiff for personal reasons, operating the skiff while intoxicated, or operating the skiff carelessly. Plaintiff asserts that this Court should not apply Churchill , arguing it is distinguishable because this case involves a captain's, as opposed to a crewmember's, unauthorized use of a skiff.¹⁷⁵ Plaintiff does not elaborate on why this distinction is consequential or how it absolves her from offering evidence supporting a prima facie cause of action for negligent entrustment. Accordingly, construing all evidence in Plaintiff's favor, Plaintiff has failed to present evidence that would allow a reasonable jury to decide in her favor on her negligent entrustment claim. Summary judgment is GRANTED as to Count III Negligent Entrustment.

170 Docket 49 at 18–19.

171 Id. at 19; Docket 49-3 at 5; Docket 49-5 at 7.

172 Restatement (Second) of Torts § 390 (1965).

173 Docket 47-7 at 3; Docket 49-19.

174 See Churchill v. F/V Fjord , 892 F.2d 763, 771 (9th Cir. 1988), cert. denied , 497 U.S. 1025, 110 S.Ct. 3273, 111 L.Ed.2d 783 (1990).

175 Docket 49 at 19.

3. Negligent hiring, training, and supervision

Under federal maritime law, an employer may be held liable for negligent hiring if (a) its employee "was incompetent or unfit to perform the work for which it was hired"; (b) "the employer knew or reasonably should have known of the particular incompetence or unfitness"; and (c) "the incompetence or unfitness" proximately caused plaintiff's injury.¹⁷⁶ Vitus asserts that there is no evidence that Vitus was on notice that Mr. Dewitt would violate company policy by using the skiff in an unauthorized manner when it hired him.¹⁷⁷ In her opposition, Plaintiff fails to adduce any evidence supporting her negligent hiring claim, indicating instead that "[Plaintiff] is no longer pursuing her claim for negligent hiring."¹⁷⁸ While Plaintiff's "abandonment" of this claim is procedurally inelegant—Plaintiff did not move to amend her complaint under Federal Rule of Civil Procedure 15 —the Court finds that summary judgment is a proper means of disposal of this claim.¹⁷⁹ Vitus carried its burden to show there was no genuine dispute of material fact regarding Plaintiff's negligent hiring claim and Plaintiff did not show otherwise. Summary judgment is therefore GRANTED as to Plaintiff's negligent hiring claim.

176 See Smolnikar v. Royal Caribbean Cruises Ltd. , 787 F. Supp. 2d 1308, 1318 (S.D. Fla. 2011) (applying federal maritime law) ; Mann v. Carnival Corp. , 385 F. Supp. 3d 1278, 1287 (S.D. Fla. 2019), report and recommendation adopted , No. 18-21364-Civ-Scola, 2019 WL 2254963 (S.D. Fla. May 8, 2019) (same).

177 Docket 46 at 20.

178 Docket 49 at 20 n.124.

179 Long v. Pend Oreille Cty. Sheriff's Dep't , 269 F. App'x 749, 751 (9th Cir. 2008) ("Appellants abandoned their false arrest claim by failing to raise it in their opposition to summary judgment"); see also Santos v. TWC Admin. LLC , No. CV 13-04799 MMM, 2014 WL 12558274, at *9 (C.D. Cal. Nov. 3, 2014) ("The failure of a plaintiff to offer evidence or argument concerning a specific claim in opposition to a motion for summary judgment constitutes abandonment of the claim, and summary judgment is properly entered in the defendant's favor on the claim as a result.")

As for Plaintiff's negligent supervision and negligent training claims, both theories are recognized under federal maritime law.¹⁸⁰ Under federal maritime law, negligent supervision "occurs when, during the course of employment, the employer becomes aware or should have become aware of problems with an employee that indicated his unfitness, and the employer fails to take further actions such as investigating, discharge, or reassignment."¹⁸¹ Plaintiff "must allege that (1) the employer received actual or constructive notice of an employee's unfitness, and (2) the employer did not investigate or take corrective action such as discharge or reassignment."¹⁸² Vitus asserts that there is no evidence that Vitus was on notice of Mr. Dewitt's unfitness, let alone that it failed to investigate further.¹⁸³ In opposition, Plaintiff conflates negligent training and negligent supervision, and does not discuss negligent supervision individually.¹⁸⁴ As Plaintiff offers no evidence of facts specific to negligent supervision showing the existence of a genuine issue for trial,¹⁸⁵ summary judgment is GRANTED on Plaintiff's negligent supervision claim.

180 See Reed v. Royal Caribbean Cruises, Ltd. , No. 19-24668-CIV-LENARD, 2021 WL 2592914, at *9 (S.D. Fla. Apr. 23, 2021) (applying federal maritime law).

181 Id. ; see also Anderson v. Ahluwalia , No. 21-60793-CIV-SINGHAL, 587 F.Supp.3d 1179, 1190-91 (S.D. Fla. Feb. 28, 2022) (same).

182 Reed , 2021 WL 2592914, at *9 (applying federal maritime law).

183 Docket 46 at 20–21.

184 See Docket 49 at 19–24.

185 See Quashen v. Carnival Corp. , No. 1:20-cv-22299-KMM, 576 F.Supp.3d 1275, 1305-06 (S.D. Fla. Dec. 17, 2021) (applying maritime law and granting summary judgment where "Plaintiff has attempted to ‘wrap up’ her negligent supervision and training claims with her negligent maintenance claim.")

Negligent training occurs when an employer "was negligent in the implementation or operation of [a] training program" and the negligence causes plaintiff's injury.¹⁸⁶ Plaintiff argues that Vitus negligently failed to train its crewmembers on appropriate reporting of noncompliance with company policy and, as a result, no JACKIE M crewmembers reported Mr. Dewitt's personal use of the skiff prior to the grounding.¹⁸⁷ Vitus argues that Plaintiff cannot raise a genuine dispute of material fact as to the causal relationship between Vitus's purported negligent training and Plaintiff's injuries.¹⁸⁸

186 Reed, 2021 WL 2592914, at *9 (applying federal maritime law) ; Diaz v. Carnival Corp. , 555 F. Supp. 3d 1302, 1310 (S.D. Fla. 2021) (applying federal maritime law).

187 Docket 49 at 23–24.

188 Docket 50 at 10–12.

To support her position, Plaintiff points to a portion of Deckhand Russo's testimony indicating that he did not recall receiving training on Vitus's policy prohibiting use of the skiff for personal reasons.¹⁸⁹ Plaintiff also asserts that First Mate Hoyt Ogle and Engineer Edwards received no training whatsoever from Vitus in 2018.¹⁹⁰ From these facts, Plaintiff asserts that "Defendant had a duty to train its crew to report noncompliance of company policy" and, had the crew been trained, they would have reported Mr. Dewitt's conduct to Vitus before he left the JACKIE M for Dillingham with Plaintiff.¹⁹¹ In this scenario, Plaintiff argues, Vitus could have tested Mr. Dewitt's saliva for alcohol and "could have deemed Capt. DeWitt incapacitated and transferred authority to take command of the JACKIE M to First Mate Ogle."¹⁹² Vitus argues that this line of argument invites the Court to speculate what might have happened if a noncompliance report was sent to Vitus in the few moments that Mr. Dewitt and Plaintiff were aboard the JACKIE M before they left for Dillingham.¹⁹³ The Court agrees.

189 Docket 49 at 22; Docket 49-3 at 6–7.

190 Docket 49 at 22.

191 Id. at 23.

192 Id.

193 Docket 50 at 12.

Plaintiff does not argue that, under Vitus's policies, the JACKIE M crew members were supposed to prevent others from violating company policy.¹⁹⁴ Taking as true that Vitus failed to train its crew about submitting noncompliance reports, or who should receive these reports, Plaintiff does not adduce any evidence indicating that the timely submission of a noncompliance report would have changed the resulting sequence of events. While Plaintiff, as the nonmoving party, is entitled to have all justifiable inferences drawn in her favor, "such ‘inferences are limited to those upon which a reasonable jury might return a verdict.’ "¹⁹⁵ Beyond describing a chain of purely hypothetical events, Plaintiff has failed to raise an issue of fact such that a jury could conclude that Vitus's negligent failure to implement training caused Plaintiff's injuries.

194 See Quashen v. Carnival Corp. , No. 1:20-cv-22299-KMM, 576 F.Supp.3d 1275, 1305-06 (S.D. Fla. Dec. 17, 2021) (applying maritime law and noting that principles of general maritime law "counsel[ ] strongly against finding evidence to support negligent training based on procedures that do not exist.").

195 Miller v. Baxter Healthcare Corp. , 165 F. App'x 550, 551 (9th Cir. 2006) (quoting Triton Energy Corp. v. Square D Co. , 68 F.3d 1216, 1220 (9th Cir. 1995) ).

Further, evidence suggesting that employees besides Mr. Dewitt were not aware of Vitus's policy prohibiting personal use of the skiff is inconsequential. The evidence shows Mr. Dewitt was aware that having a passenger in the skiff for personal reasons was against Vitus policy and chose to act contrary to policy on the night of October 18, 2019.¹⁹⁶ The evidence thus supports the contention that an individual employee's decision not to follow company policy, rather than negligent training, was the cause of Plaintiff's injuries.

196 Docket 47-2 at 11–12, 15; Docket 49-7 at 7.

Finally, Plaintiff's assertions that Mr. Dewitt's use of the skiff after dark supports her negligent training claim is unavailing. Vitus did not have a policy prohibiting use of the skiff after dark or offer training to that effect. Failure to have or implement certain risk management procedures and safety standards is not a recognized breach of a duty under federal maritime law.¹⁹⁷ Because Plaintiff has failed to carry her burden to raise a genuine dispute as to an essential element of her negligent training claim—causation—summary judgment is GRANTED as to Plaintiff's claim for negligent training.

197 Quashen , 576 F.Supp.3d at 1304-05 (citing Diaz v. Carnival Corp. , 555 F. Supp. 3d 1302, 1311–12 (S.D. Fla. 2021) ).

4. Vicarious liability

In Count V of the Complaint, Plaintiff alleges that Vitus is vicariously liable for Mr. Dewitt's negligence.¹⁹⁸ Federal maritime law "embraces the principles of the law of agency."¹⁹⁹ Both Vitus and Plaintiff cite the RESTATEMENT (SECOND) OF AGENCY when discussing Plaintiff's vicarious liability claim.²⁰⁰ The RESTATEMENT (SECOND) OF AGENCY was superseded by the RESTATEMENT (THIRD) OF AGENCY in 2006.²⁰¹ The Court therefore will apply agency law as articulated in the RESTATEMENT (THIRD) OF AGENCY in assessing Plaintiff's vicarious liability claim.²⁰²

198 Docket 1 at 6.

199 W. Challenger, LLC v. DNV GL Grp. , No. C16-0915-JCC, 2017 WL 6611701, at *3 (W.D. Wash. Dec. 27, 2017) (quoting Stevens Tech. Servs., Inc. v. S.S. Brooklyn , 885 F.2d 584, 589 (9th Cir. 1989) ), aff'd sub nom. W. Challenger, LLC v. Seymour , 765 F. App'x 369 (9th Cir. 2019).

200 See Docket 46 at 21–22; Docket 49 at 24–32; Docket 50 at 14–20.

201 Schmidt v. Burlington N. & Santa Fe Ry. Co. , 605 F.3d 686, 690 n.3 (9th Cir. 2010).

202 See Espinoza v. Princess Cruise Lines, Ltd. , No. 2:17-cv-08412-FLA (JEMx), 581 F.Supp.3d 1201, 1221-23 (C.D. Cal. Jan. 25, 2022) (citing the Restatement (Third) of Agency in maritime case); W. Challenger , 2017 WL 6611701, at *3 (same); Perry v. HAL Antillen NV , No. C12-0850JLR, 2013 WL 2099499, at *30 n.28 (W.D. Wash. May 14, 2013) (same).

As a preliminary matter, Plaintiff's cause of action for vicarious liability in her Complaint states "Defendant Vitus's vicarious liability stems from theories of respondeat superior, aided-in-agency and non-delegable duty."²⁰³ Plaintiff's vicarious liability theories are something of a moving target and appear to have shifted as this matter progressed. In opposing Vitus's Motion for Partial Summary Judgment, Plaintiff maintains that Vitus is liable under a theory of respondeat superior.²⁰⁴ However, in her opposition, Plaintiff appears to have abandoned her non-delegable duty and aided-in-agency theories in favor of arguing that Vitus itself was negligent or reckless or that Captain Dewitt was acting with apparent authority.²⁰⁵ The Court notes that neither theory is specifically pled in Plaintiff's Complaint.²⁰⁶ While aided-in-agency and apparent authority are similar claims, the allegation that Vitus itself was negligent or reckless is an entirely new theory of relief. In her Complaint, Plaintiff does not allege a direct claim for general negligence against Vitus or otherwise preview a theory that Vitus's own negligence caused Plaintiff's injuries.²⁰⁷ Nevertheless, because the Court favors deciding cases on their merits, and because Vitus has had the opportunity to respond to Plaintiff's new arguments, the Court will address Plaintiff's new theories of liability.²⁰⁸ The Court is, however, constrained to note that "summary judgment is not a procedural second chance to flesh out inadequate pleadings."²⁰⁹

203 Docket 1 at 6.

204 Docket 49 at 24–25.

205 See id. at 26–32.

206 See Docket 1.

207 See id.

208 See Bargen v. Dep't of Def. , 623 F. Supp. 290, 293 (D. Nev. 1985).

209 Wasco Prods., Inc. v. Southwall Techs., Inc. , 435 F.3d 989, 992 (9th Cir. 2006) (quoting Fleming v. Lind-Waldock & Co. , 922 F.2d 20, 24 (1st Cir. 1990) ); see also Patel v. City of Long Beach , 564 F. App'x 881, 882 (9th Cir. 2014).

(a) Respondeat superior

"General maritime law recognizes typical respondeat superior principles," under which a principal may be held vicariously liable for the torts of its agent acting within the scope of employment.²¹⁰ The RESTATEMENT (THIRD) OF AGENCY § 7.07 defines the scope of employment as follows:

210 Espinoza v. Princess Cruise Lines, Ltd. , No. 2:17-cv-08412-FLA (JEMx), 581 F.Supp.3d 1201, 1221-22 (C.D. Cal. Jan. 25, 2022) ; see Franza v. Royal Caribbean Cruises, Ltd. , 772 F.3d 1225, 1234 (11th Cir. 2014) ; Stoot v. D & D Catering Serv., Inc. , 807 F.2d 1197, 1198–99 (5th Cir. 1987) ; see also Restatement (Third) of Agency § 2.04 (2006).

[a]n employee acts within the scope of employment when performing work assigned by the employer or engaging in a course of conduct subject to the employer's control. An employee's act is not within the scope of employment when it occurs within an independent course of conduct not intended by the employee to serve any purpose of the employer.²¹¹

211 Restatement (Third) of Agency § 7.07 (2006).

Vitus asserts that there is there is no evidence that Mr. Dewitt intended to serve any purpose of Vitus when he used the skiff to transport Plaintiff on October 19, 2018.²¹² Vitus cites portions of Mr. Dewitt's testimony to demonstrate that Mr. Dewitt used the skiff for "personal reasons," not for Vitus's benefit.²¹³ Moreover, it is uncontested that Mr. Dewitt's actions violated Vitus's policy against personal use of the skiff.²¹⁴

212 Docket 46 at 22.

213 Id. ; Docket 47-2 at 11.

214 Docket 49 at 23; Docket 49-7 at 7.

The sole piece of evidence Plaintiff relies on to create an issue of material fact regarding the scope of employment is Captain James T. Cushman's expert report, in which he stated that the idea that:

Captain Dewitt was not ‘on duty’ when he decided to take the skiff on his personal junket ... [t]hereby somehow not responsible for his actions as a VITUS ENERGY, LLC employee ... is a completely alien thought to anything I've encountered in any of my 5 commands while in the Coast Guard, as well as countless jobs as Captain/Master of vessels within the civilian community!! The Captain, while his/her license is ‘on the board’ is inescapably responsible and accountable 24/7 – whether ashore or afloat. While the Captain may ‘clock on and off’ for reasons of pay, he/she is still responsible and accountable for the vessel and all aboard – as well as the vessel and crew adherence to all applicable rules, laws, company policies, protocols, etc. ‘On the sea there is law older than the country, and wiser in it's worth – with responsibility goes authority, and with them both goes accountability. ’²¹⁵

215 Docket 49-15 at 10 (emphasis in the original).

Based on this opinion, Plaintiff concludes that Mr. Dewitt was "still on duty, [so] his use of the skiff was within the scope of his employment."²¹⁶

216 Docket 49 at 26.

Captain Cushman appears to be opining on whether Mr. Dewitt is personally responsible, as Captain of the JACKIE M, for his actions.²¹⁷ Mr. Dewitt is not a party to this action. The question of his personal liability for his actions therefore is not pertinent to this case and does not create a triable issue. Plaintiff asserts that Captain Cushman's opinion that Mr. Dewitt was "on duty" on the night of the grounding means that his use of the skiff was within the scope of his employment.²¹⁸ Plaintiff's argument ignores the applicable legal test for the scope of an agent's employment under the general agency principles incorporated in maritime law. The means for ascertaining whether an employee is "on duty" or "off duty" are not the same as the standard for determining whether an employee's actions are within the scope of her employment.²¹⁹ There is no principle of agency law excepting captains of vessels from the scope of employment inquiry. Offering an expert opinion that Mr. Dewitt was perpetually "on duty" does not raise a factual dispute such that a reasonable jury, applying general agency principles, could conclude that Mr. Dewitt was acting within the scope of his employment when he violated company policy for personal reasons.²²⁰ Because Plaintiff does not offer specific facts suggesting that Mr. Dewitt was performing work assigned by Vitus or was engaging in conduct over which Vitus had control, the Court concludes Mr. Dewitt was not acting within the scope of his employment as a matter of law.²²¹ Summary Judgment is therefore GRANTED as to Plaintiff's theory of liability based on respondeat superior.

217 As Vitus noted in its reply brief, Captain Cushman testified that he was not offering an opinion on vicarious liability. See Docket 50 at 13 (citing Docket 40-6 at 63–64).

218 Docket 49 at 26.

219 Courts applying the Restatement approach have considered whether an employee is "on duty" at all times in the scope of employment inquiry but have not found this issue dispositive in the analysis. See Kashin v. Kent , 457 F.3d 1033, 1041 (9th Cir. 2006) (finding foreign service officer was within scope of duty not solely because the Department of State considered him "on duty 24/7, but because he was "(1) engaged in a business act; (2) under the control of the Department of State; (3) acting in furtherance of the Department of State's interest;" and (4) he "subjectively believed he was acting within the scope of employment.").

220 See In re Complaint of McLinn, 744 F.2d 677, 683–84 (9th Cir. 1984) (citing the Restatement (Second) of Agency and affirming district court's finding that fishermen was not acting within the scope of his employment as a matter of law because "he was using the skiff for his own, not his master's, business."); see also Favorito v. Pannell , 27 F.3d 716, 722 (1st Cir. 1994) (citing the Restatement (Second) of Agency and holding that yacht owner could not be liable under respondeat superior when engineer "was on a frolic and banter of his own, actuated by no employer mission whatever and in direct violation of Captain Percy's explicit instructions not to use the tender and not to bring guests aboard the [yacht].").

221 Restatement (Third) of Agency § 7.07 (2006).

(b) Vicarious liability outside the scope of employment

In opposing summary judgment, Plaintiff argues that, even if the Court finds Mr. Dewitt was not acting within the scope of his employment, Vitus may be vicariously liable because "[i]n limited circumstances, agency principles impose liability on employers even where employees commit torts outside the scope of employment."²²² Plaintiff cites (1) the RESTATEMENT (SECOND) OF AGENCY § 219(2)(b), which provides that a principal can be subject to liability for the actions of an agent when "the master was negligent or reckless," and (2) § 219(2)(d), which imposes vicarious liability when "the servant purported to act or to speak on behalf of the principal and there was reliance upon apparent authority, or he was aided in accomplishing the tort by the existence of the agency relation."²²³

222 Docket 49 at 26.

223 Id. (citing Restatement (Second) of Agency § 219(2) (1958) ).

(c) Negligence and recklessness

The RESTATEMENT (SECOND) OF AGENCY § 219(2)(b) provides that an employer is subject to liability for the torts of its employees if the employer itself was negligent or reckless, even if the employee is acting outside the scope of his or her employment.²²⁴ The corresponding section in the RESTATEMENT (THIRD) OF AGENCY states that "[a] principal who conducts an activity through an agent is subject to liability for harm to a third party caused by the agent's conduct if the harm was caused by the principal's negligence in selecting, training, retaining, supervising, or otherwise controlling the agent."²²⁵ Plaintiff argues that a reasonable juror could find that Vitus was reckless "when it had no policy which prohibited use of the skiff after dark, failed to train its crewmembers that it was unsafe to use the skiff after dark, failed to provide seating for the skiff, and/or failed to provide lighting for the skiff for after dark use."²²⁶

224 Docket 49 at 26–27 (citing Restatement (Second) of Agency § 219(2) (1958) ).

225 Restatement (Third) of Agency § 7.05(1) (2006).

226 Docket 49 at 28.

Under the RESTATEMENT (THIRD) OF AGENCY , Plaintiff's arguments are largely duplicative of those she advanced in support of her negligent hiring, training, and supervision claim, and they suffer from the same defects. "Liability under [ RESTATEMENT (THIRD) OF AGENCY § 7.05(1) ] ... requires some nexus or causal connection between the principal's negligence in selecting or controlling an actor, the actor's employment or work, and the harm suffered by the third party."²²⁷ Plaintiff's allegations have little to do with Vitus's selection or control of Mr. Dewitt.

227 Restatement (Third) of Agency § 7.05(1) cmt. c (2006).

Even under the RESTATEMENT (SECOND) OF AGENCY , Plaintiff's evidence is insufficient to survive summary judgment. To hold Vitus liable for Mr. Dewitt's actions outside the scope of employment, Plaintiff would have to offer evidence supporting all elements of a cause of action for negligence.²²⁸ Plaintiff alludes to Vitus's failure to have a policy prohibiting use of the skiff after dark and its failure to equip the skiff with seating or lighting at various points in her opposition, but fails to offer evidence that Vitus had a duty to do so or that Vitus's failure to do so caused her injuries. The Court notes that Plaintiff's arguments appear as an attempt to shoehorn Plaintiff's cause of action for vicarious liability into a claim for direct negligence against Vitus, when the Complaint contains no such claim and when Plaintiff has failed to offer evidence that Plaintiff's injuries were proximately caused by a breach of a duty Vitus owed to her.²²⁹ Vitus's Motion for Summary Judgment based on liability for Vitus's own negligence under RESTATEMENT (THIRD) OF AGENCY § 7.05(1) therefore is GRANTED .

228 Restatement (Second) of Agency §§ 213 cmt. a, 219(2)(b) (1958).

229 See Quashen v. Carnival Corp. , No. 1:20-cv-22299-KMM, 576 F.Supp.3d 1275, 1298-99 (S.D. Fla. Dec. 17, 2021).

(d) Apparent authority

The RESTATEMENT (THIRD) OF AGENCY defines apparent authority as "the power held by an agent or other actor to affect a principal's legal relations with third parties when a third party reasonably believes the actor has authority to act on behalf of the principal and that belief is traceable to the principal's manifestations."²³⁰ A principal may "make a manifestation by placing an agent in a defined position in an organization or by placing an agent in charge of a transaction or situation."²³¹ Third parties who interact with the agent occupying a certain position will "naturally and reasonably assume that the agent has authority to do acts consistent with the agent's position or role unless they have notice of facts suggesting that this may not be so."²³² The issue of apparent authority is "generally one of fact for the jury."²³³

230 Restatement (Third) of Agency § 2.03 (2006).

231 Restatement (Third) of Agency § 3.03, cmt. b (2006).

232 Id.

233 Perry v. HAL Antillen NV , No. C12-0850JLR, 2013 WL 2099499, at *30 n.28 (W.D. Wash. May 14, 2013) (citing NLRB v. Donkin's Inn, Inc. , 532 F.2d 138, 140 (9th Cir. 1976) ).

Plaintiff asserts that Vitus endowed Mr. Dewitt with apparent authority by hiring him as the captain of the JACKIE M.²³⁴ Plaintiff submitted an affidavit with her opposition in which she states that "the company had hired [Mr. Dewitt] to be their tugboat captain. Because of all this, I relied on Kevin's skill and experience to keep me safe in the skiff."²³⁵ Plaintiff also asserts that she believed in Mr. Dewitt's "company authority" to use the skiff because she observed that Mr. Dewitt had authority over the crew and "they deferred to him as their captain."²³⁶ Finally, Plaintiff argues that the crewmembers' failure to question Mr. Dewitt's use of the skiff on October 19, 2018, was a "ratification" of his authority through silence.²³⁷

234 Docket 49 at 30; Docket 49-1.

235 Docket 49-13 at 3; see also Docket 49 at 31.

236 Docket 49-13 at 1–3.

237 Docket 49 at 31.

Plaintiff has raised a triable issue regarding the apparent authority inherent in the position of ship captain. Vitus gave Mr. Dewitt the title of captain and Plaintiff offers evidence that she relied on this title to assume that Mr. Dewitt had authority to use the skiff on the night of October 19, 2018. The Court cannot determine, as a matter of law, that Plaintiff's belief that Mr. Dewitt, as captain of the JACKIE M, had broad authority to use the skiff for personal reasons was unreasonable. Vitus, citing the RESTATEMENT (SECOND) OF AGENCY , contends that Plaintiff cannot establish an apparent agency theory as a matter of law because "[n]o reasonable juror could view the evidence and determine that when [Mr.] Dewitt met [Plaintiff] at the bar on October 19 for a date, he did so for Vitus and with Vitus' consent."²³⁸ However, this argument ignores the fact that apparent authority can stem from an employee's position within an organization and the authority reasonably associated with that position.²³⁹ The reasonableness of Plaintiff's assumption that, by nature of his title as the captain of the JACKIE M, Mr. Dewitt had Vitus's consent to utilize company instrumentalities—even for non-business purposes—is a factual matter that the jury ultimately must determine.²⁴⁰

238 Docket 50 at 19 (emphasis in the original).

239 Restatement (Third) of Agency § 3.03, cmt. b (2006).

240 See Espinoza v. Princess Cruise Lines, Ltd. , No. 2:17-cv-08412-FLA (JEMx), 581 F.Supp.3d 1201, 1223-24 (C.D. Cal. Jan. 25, 2022) (holding apparent authority was a question for the jury).

The apparent authority inquiry is circumscribed by the requirement that a third party's reasonable belief that an agent has authority to act on the principal's behalf must be traceable to the principal itself.²⁴¹ Plaintiff presents no authority to support the proposition that an employee's subordinates within an organization may clothe that employee with apparent authority. Therefore, the actions and inactions of the JACKIE M crewmembers, without evidence that Vitus directed their conduct, are not manifestations that are traceable to Vitus itself.²⁴²

241 Restatement (Third) of Agency § 2.03, cmt. c (2006) ("A belief that results solely from the statements or other conduct of the agent, unsupported by any manifestations traceable to the principal, does not create apparent authority ....").

242 Restatement (Third) of Agency § 3.03, cmt. c (2006) ("More commonly, and less formally, superior agents authorize subordinate coagents ... A superior agent's authority to authorize may itself have been conferred by the organization's governing body or by a higher superior agent."); see also Pierson v. United States, 527 F.2d 459, 463 (9th Cir. 1975) (finding that apparent authority was a factual question when employee's superior within an organization knew of employee's conduct and did not prohibit it).

Plaintiff's arguments regarding the crewmembers' "ratification" of Mr. Dewitt's actions also fail to support her theory of apparent authority. While Plaintiff is correct that a principal may ratify an act by failing to object to it, Plaintiff cites no support for the position that agents can ratify an act on behalf of their principal.²⁴³ The evidence shows that Vitus fired Mr. Dewitt after the grounding for "[o]perating the skiff for personal use, bringing an unauthorized person on-board the vessel and putting an unauthorized person in the skiff."²⁴⁴ Plaintiff offers no evidence indicating that Vitus executives knew of Mr. Dewitt's actions and failed to object or assented to those actions after the fact.²⁴⁵ Summary judgment is therefore DENIED IN PART as to Plaintiff's theory of apparent agency. Vitus is entitled to summary judgment on Plaintiff's theory that Mr. Dewitt's apparent authority stemmed from the representations or silence of the JACKIE M crewmembers. Summary judgment is denied as to Plaintiff's theory that Vitus can be liable for Mr. Dewitt's negligence under a theory of apparent authority due to his position as captain of the JACKIE M.

243 Restatement (Third) of Agency § 4.01, cmt. b (2006) ("The sole requirement for ratification is a manifestation of assent or other conduct indicative of consent by the principal.")

244 Docket 46 at 17; Docket 47-6 at 6.

245 Restatement (Third) of Agency § 4.01, cmt. b (2006) ("The principal is not bound by a ratification made without knowledge of material facts about the agent's act unless the principal chose to ratify with awareness that such knowledge was lacking.")

5. Punitive damages

Plaintiff asserts she is entitled to punitive damages based on (a) Vitus's own conduct and (b) the conduct of Mr. Dewitt.²⁴⁶ For Plaintiff's claim based on Vitus's own negligence, the general maritime law provides that punitive damages may be imposed for direct "conduct which manifests ‘reckless or callous disregard’ for the rights of others or for conduct which shows ‘gross negligence or actual malice or criminal indifference.’ "²⁴⁷ Here, Plaintiff brings forth no additional evidence indicating there is triable issue as to whether Vitus is liable for punitive damages based on its own conduct. Plaintiff merely rehashes her previously advanced arguments regarding Vitus's liability for negligence and posits that these facts can support a jury issue as to whether Vitus acted willfully, recklessly, maliciously, or with gross negligence.²⁴⁸ As described supra , Plaintiff has failed to bring forth evidence sufficient to create a triable issue as to Vitus's direct negligence—the same evidence thus fails to support her claim for punitive damages. Construing all inferences in Plaintiff's favor, a reasonable jury could not conclude that Plaintiff was entitled to punitive damages for Vitus's conduct.²⁴⁹

246 Docket 49 at 32–34.

247 Churchill v. F/V Fjord , 892 F.2d 763, 772 (9th Cir. 1988) (quoting Protectus Alpha Nav. Co. v. N. Pacific Grain Growers, Inc. , 767 F.2d 1379, 1385 (9th Cir. 1985) ).

248 Docket 49 at 33–34.

249 Churchill , 892 F.2d at 772 (affirming district court's finding that, notwithstanding defendant's intoxication while operating a watercraft, "he did not act with a ‘reckless or callous disregard for the rights of others’ or with ‘gross negligence or actual malice or criminal indifference.’ ")

Regarding Plaintiff's claim for punitive damages based on the conduct of Mr. Dewitt, courts are divided over the standard by which a shipowner can be held vicariously liable in punitive damages for the conduct of its agent under maritime law.²⁵⁰ The Ninth Circuit has adopted the approach articulated in the RESTATEMENT (SECOND) OF TORTS § 909, which states:

250 See Exxon Shipping Co. v. Baker, 554 U.S. 471, 484, 128 S.Ct. 2605, 171 L.Ed.2d 570 (2008) (refusing to resolve circuit split and leaving the Ninth Circuit's Restatement approach undisturbed).

Punitive damages can properly be awarded against a master or other principal because of an act by an agent if, but only if, (a) the principal or a managerial agent authorized the doing and the manner of the act, or (b) the agent was unfit and the principal or a managerial agent was reckless in employing or retaining him, or (c) the agent was employed in a managerial capacity and was acting in the scope of employment, or (d) the principal or a managerial agent of the principal ratified or approved the act.²⁵¹

251 Id. ; Restatement (Second) of Torts § 909 (1979).

This standard requires the Court to retread familiar territory. Plaintiff has not offered evidence that Vitus authorized Mr. Dewitt's excursion with Plaintiff. To the contrary, as previously stated, the evidence establishes that Vitus had a company policy prohibiting the personal use of the skiff.²⁵² Plaintiff also does not present evidence that Mr. Dewitt was unfit and that Vitus was reckless in employing him.²⁵³ Mr. Dewitt, as the Captain of the JACKIE M, was indisputably "employed in a managerial capacity,"²⁵⁴ but, as described supra , he was not acting in the scope of that employment when he transported Ms. Garcia in the skiff for purely personal reasons. Finally, Plaintiff offers no evidence that Vitus ratified or approved Mr. Dewitt's conduct—the unauthorized actions of subordinate employees cannot amount to ratification by the principal.²⁵⁵ As such, punitive damages are unavailable to Plaintiff. Summary judgment therefore is GRANTED as to Count VI Punitive Damages.

252 Docket 49-19.

253 See Docket 49 at 32–34.

254 In re Exxon Valdez , No. A89-0095-CV (HRH), 1995 WL 527990, at *4 (D. Alaska Jan. 27, 1995) ("In the case at bar, it cannot be disputed seriously that the captain of a supertanker acts in a managerial capacity").

255 See Restatement (Third) of Agency § 4.01, cmt. b (2006).

IV. CONCLUSION

For the foregoing reasons, Vitus's Motion for Partial Summary Judgment and Partial Judgment on the Pleadings is GRANTED IN PART . Plaintiff is left with a path to recovery, albeit a narrow one. Under the terms of this Order, Plaintiff has one remaining viable theory of liability: that Vitus is vicariously liable for Mr. Dewitt's negligence, as pled in Count II of the Complaint, under a theory of apparent authority by nature of his position as captain of the JACKIE M.

IT IS SO ORDERED this 6th day of June, 2022, at Anchorage, Alaska.