Matheny v. Tennessee Valley Authority

• Decision Date: 06 December 2007
• Docket Number: No. 3:06-0565.,3:06-0565.
• Citation: 523 F.Supp.2d 697
• Parties: Becky MATHENY, individually and as Surviving Spouse of Ronald Matheny, Deceased, Plaintiff, v. The TENNESSEE VALLEY AUTHORITY, Defendant/Third-Party Plaintiff/Counter-Defendant. v. Thomas Lawrence and Johnna Lawrence, Third-Party Defendant/Counter-Plaintiff and Counter-Plaintiff.
• Court: U.S. District Court — Middle District of Tennessee

523 F.Supp.2d 697

Becky MATHENY, individually and as Surviving Spouse of Ronald Matheny, Deceased, Plaintiff, v. The TENNESSEE VALLEY AUTHORITY, Defendant/Third-Party Plaintiff/Counter-Defendant. v. Thomas Lawrence and Johnna Lawrence, Third-Party Defendant/Counter-Plaintiff and Counter-Plaintiff.

No. 3:06-0565.

United States District Court, M.D. Tennessee, Nashville Division.

December 6, 2007.

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Jonathan R. Perry, The Perry Firm, Franklin, TN, Kristen V. Dyer, Philip Norman Elbert, Neal & Harwell, Nashville, TN, for Plaintiff.

Thomas A. Robins, Edwin W. Small, Jared E. Mitchem, Tennessee Valley Authority, Knoxville, TN, Maureen, H. Dunn, Office of the General Counsel Tennessee Valley Authority, Knoxville, TN, for Defendants.

Mark M. Mizell, Franklin, TN, for Counter Plaintiff.

MEMORANDUM

ALETA A. TRAUGER, District Judge.

A bench trial was held on claims for negligence, negligent supervision and entrustment, and loss of consortium arising from a boating accident that occurred on the Cumberland River. In accordance with Rule 52 of the Federal Rules of Civil Procedure, the court enters judgment for the plaintiff and for the counter-plaintiffs and sets forth herein its findings of fact and conclusions of law.

BACKGROUND

The plaintiff, Becky Matheny, is the widow of Ronald Matheny, who drowned on June 5, 2005, when a small boat in which he was fishing capsized in the Cumberland River.¹ Third-party defendant and counter-plaintiff Thomas "Steve" Lawrence, Mr. Matheny's cousin, was the owner and pilot of the fishing boat in question. The fishing boat capsized when it was swamped by the wake of a tug boat, The Patricia H., owned by defendant Tennessee Valley Authority ("TVA") and operated by pilot Jeff Rails, a TVA employee. Mr. Lawrence was successfully rescued by pilot Rails and his crew. Mr. Matheny, however, drowned before he could be rescued.

I. Pre-Collision Events

Mr. Lawrence and Mr. Matheny decided, on the spur of the moment, to go fishing in the Cumberland River at approximately 2:30 p.m. on June 5, 2005, a Sunday. The two men habitually fished for catfish in the area of the Cumberland River abutting the Cumberland City Steam Plant, in Cumberland City, Tennessee, because very large catfish can be found in that area. TVA operates the Cumberland City Steam Plant and, pursuant to its operation, floats coal barges on the banks of the river and uses tugboats to push the barges to different locations on the banks and on the island situated in the middle of the river. In addition, a private company, Ingram Barge Co., utilizes towboat fleets to move large groups of coal barges down-river to the plant.

Mr. Lawrence and Mr. Matheny planned to fish in the Cumberland River until approximately midnight or 1:00 a.m. They loaded two coolers into the boat — one of which contained a twelve-pack of Mountain Dew and the other, empty and intended for storing the fish that were caught — and drove to the Cumberland Plant, which had a dock that was open to the public. Mr. Lawrence's boat, which he had purchased used approximately one year earlier, was a 1981 Phantom. The Phantom fishing boat was constructed of fiberglass and measured 14 feet, 10 inches in length. The boat had a freeboard — that is, the distance from the waterline to the uppermost portion of the side of the boat, when the boat is set in water — of roughly 1 to 1.5 feet when moored. When moving, it rode high in the water, such that it had a freeboard of 2 to 2.5 feet. Mr. Lawrence spent a significant amount of time fishing in this boat at the Cumberland Plant and at other areas known to attract large catfish, and he had taken his children and mother out in the boat without incident.

The engine was in good working condition. In addition, the boat contained a fully operational bilge pump and a trolling motor with a weak battery. The trolling motor was not used on the day in question. The boat contained no food or alcohol. Mr. Lawrence had two good-quality life vests as well as two poor-quality ones. The poor-quality life vests were sometimes tied to the boat to serve as bumpers.

The Cumberland Plant was roughly forty minutes away from Mr. Lawrence's home, and the two men arrived at their destination at 5:30 p.m. When they embarked onto the river, Mr. Lawrence sat at the back of the boat near the steering wheel, and Mr. Matheny sat at the front of the boat on a seat situated on the upper deck. This was not a pedestal seat but one that was situated flush against the deck, with Mr. Matheny's feet resting on the lower deck. Because it was flush against the upper deck, Mr. Matheny's seat was higher than Mr. Lawrence's; however, it did not extend above the top edges of the sides of the boat. The life vests were on the deck and in reach of the two men.

The two men fished in the lower channel between the islands and the steam plant. This channel is 400 feet wide. Conditions on the river were very mild. There was little wind and little current. The Phantom boat did not encounter any other fishing vessels, though fishing is common in the channel. Mr. Lawrence and Mr. Matheny tied off the boat to the skimmer wall, which is located close to the river-bank, just upstream from a group of six barges. The barges were 200 feet long and 35 feet wide. After a period of time, another set of eight barges were moved into place just upstream from the boat by a private tug operated by Ingram Barge Co. Mr. Lawrence alleged at trial that, at this time, he moved the boat downstream to the group of six barges, and tied the boat off to the outside of one of the barges. Subsequently, Mr. Lawrence and Mr. Matheny decided to move the boat a second time to a location nearer to the islands. Moving away from the barges, the two men saw the Patricia H, for the first time, creating a high wake.

Captain Rails is a licensed pilot, having worked for TVA for 7 years and for Ingram Barge Co. before that. He worked the 12-hour night shift, operating the Patricia H., a highly maneuverable flat-front tugboat. The Patricia H. weighs 95 tons when loaded with fuel and gear. The boat has two engines, each with 500 horsepower. The registered dimensions of the boat are 52.5 feet × 22 feet × 8 feet. The tower of the boat is 25 to 30 feet above the deck and the deck is 7.5 feet above the water. The boat creates a wake at a 45 degree angle and also creates turbulence from the prop engines.

The Patricia H. does not contain a working RPM gauge or any other instrument that allows the pilot to determine how fast he is going. Instead, the pilot and crew estimate the speed by noting the mile markers. The terminology used by the crew for speed is "slow walk," "medium walk," and "fast walk." The crew — on the day in question, Craig Welker and Dwayne Van Z ant — report the speed to the captain from the deck. However, the crew only stands on the deck when the boat is pushing a barge. When the boat is traveling without a barge, or "light boat," the crew remains inside the cabin, and Captain Rails estimates the speed himself by referring to the mile markers and listening to the engines.

Captain Rails' job is to push loaded coal barges to the unloader and then to move the empty barges back to a position adjacent to the island, from which they are eventually sent to be re-filled with coal. On June 5, 2005, Captain Ralls arrived at the plant at 7:00 p.m., spent fifteen minutes getting pre job instruction from the coal tower foreman, then met with his crew. Soon thereafter, at roughly 7:25, Captain Balls, Mr. Welker and Mr. Van Zant had boarded the tugboat and set upon the evening's work.

First, the Patricia H. traveled downstream to the group of six barges, next to which, against the skimmer wall, Mr. Lawrence had moored his boat. During this trip, Captain Rails saw the fishing boat tied against the skimmer wall, between the two groups of barges. Mr. Van Zant also saw the boat in this location.

During this first trip, the Patricia H. passed the location of the fishing boat without incident. The Patricia H. pushed one of the barges — specifically, the barge on the outside corner, farthest from the fishing boat — from this group of six to the unloader, which was upstream. Captain Balls testified that it takes approximately fifteen minutes to go and get a barge, bring it to the unloading area, and move another empty barge away from the unloader. The crew of the Patricia H. performed this function, taking an empty barge to the group of barges across the channel, next to the island, and then made a second trip to the downstream group of barges, passing the fishing boat a second time. The Patricia H. was headed towards the barge on the outside, upstream corner of the group, closest to where the fishing boat had been located on the first trip.

Captain Rails testified that, during this second trip, once again, he saw the fishing boat. Once again, the fishing boat was located in between the two groups of barges. However, the boat had untied from the wall and was moving out of this make-shift harbor, towards the open part of the channel. Captain Rails testified that the boat turned, facing upstream, and that he watched the boat as it cleared his stern. Some time after he passed the boat, Captain Balls heard the screams of the men in the water and, at that time, realized that the fishing boat had capsized.

II. The Accident

Mr. Lawrence's boat capsized when it encountered the wake of the Patricia H. on the tug boat's second trip downstream. There were no other boats in the area and no other conditions existed that could have caused the fishing boat to capsize. Likewise, the evidence at trial does not support a finding that the accident was caused in any way by a defect in the fishing boat itself., Although the precise speed of the Patricia H. and the size of the wake — at best, estimated by the parties at the time of the accident — cannot be...