Youngberg v. McKeough, 082313 FED6, 12-1988

Docket Nº:12-1988
Opinion Judge:COLE, Circuit Judge.
Party Name:ALEXIS YOUNGBERG, Plaintiff-Appellant, v. MICHAEL MCKEOUGH, JACK MCKEOUGH, the ESTATE OF ROBERT JACK JEROVSEK and JACK L. JEROVSEK as personal representative of the ESTATE OF ROBERT JACK JEROVSEK, Defendants-Appellees.
Judge Panel:BEFORE: COLE and DONALD, Circuit Judges; MARBLEY, District Judge.
Case Date:August 23, 2013
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit

ALEXIS YOUNGBERG, Plaintiff-Appellant,

v.

MICHAEL MCKEOUGH, JACK MCKEOUGH, the ESTATE OF ROBERT JACK JEROVSEK and JACK L. JEROVSEK as personal representative of the ESTATE OF ROBERT JACK JEROVSEK, Defendants-Appellees.

No. 12-1988

United States Court of Appeals, Sixth Circuit

August 23, 2013

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION

ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF MICHIGAN

BEFORE: COLE and DONALD, Circuit Judges; MARBLEY, District Judge.[*]

OPINION

COLE, Circuit Judge.

This appeal arises out of a personal injury action after a watercraft collision in 2009. Jack McKeough took several friends out on his parents' Mastercraft wake boat on Spring Lake in Michigan. They met up with several other friends, including Alexis Youngberg and Robby Jerovsek, who were riding a Sea-Doo personal watercraft, which Robby drove. The afternoon ended in tragedy when the Mastercraft ran over the back of the Sea-Doo, killing Robby and severing Alexis Youngberg's leg. Ms. Youngberg brought a personal injury suit in diversity alleging negligence against Jack McKeough, his parents, and Jack Jerovsek ("Jerovsek"), Robby Jerovsek's father, and personal representative of Robby's estate. At trial, a jury awarded Ms. Youngberg $4.6 million for Jack's negligent driving. During the trial, however, the district court dismissed her remaining claims pursuant to Defendant's motion for partial summary judgment and judgment as a matter of law. See Fed. R. Civ. P. 56, 50. The dismissed claims included claims against Jack's parents for negligent entrustment and supervision and a claim against Jerovsek for Robby's negligence. Ms. Youngberg now appeals these judgments as well as various evidentiary rulings. For the following reasons, we affirm the judgment of the district court.

I.

On the evening of September 5, 2009, then-fourteen-year-old Jack took four teenage friends out on his parents' Mastercraft motorboat on Spring Lake with the permission of his father, Michael McKeough. Before heading out, Jack and his friends met up with fifteen-year-old Robby Jerovsek, sixteen-year-old Alexis Youngberg and twenty-three year-old Kaitlin Van Dam, at the McKeough's boat dock. Robby drove a three-person Sea-Doo personal watercraft with Ms. Youngberg seated directly behind him and Kaitlin seated on the back. The Sea-Doo was owned by Ms. Youngberg's father Mark Youngberg. It was a sunny, clear day, the lake was calm, and there was little boat traffic on the water.

After leaving the dock, Jack drove the MasterCraft at "full throttle, " traveling at approximately 50 miles per hour. The Sea-Doo initially drove at a similar speed, moving in excess of 50 miles per hour. The speed limit on the lake was 55 miles per hour. Minutes later, the Sea-Doo slowed to an idle speed of 5 miles per hour as the MasterCraft approached it from behind. Jack was distracted by a catalogue behind him and averted his attention from the waters ahead of him. Jack turned to face forward just in time to see his boat hit the Sea-Doo squarely in the stern and run over the top of it. The MasterCraft did not slow down as it collided with the Sea-Doo. Robby was killed in the accident and Ms. Youngberg's left leg was severed below the knee.

In September 2010, Ms. Youngberg1 filed an action in the United States District Court for the Western District of Michigan, alleging negligence on the part of Jack McKeough. She also alleged a cause of action against Michael McKeough, Jack's father, as the owner of the MasterCraft boat, based on a Michigan statute that makes a boat owner liable for any injury caused by the negligent operation of his or her boat. See Mich. Comp. Laws § 324.80157. The complaint additionally alleged that both of Jack's parents, Michael and Nina McKeough ("the McKeoughs"), were liable under Michigan law for negligent entrustment and negligent supervision of their son. Finally, Ms. Youngberg alleged a negligence claim against Jerovsek as the personal representative of Robby's estate. Ms. Youngberg's claims against Jerovsek were predicated on the theory that Robby's sudden slowing of the Sea-Doo violated several Inland Navigational Rules ("INR").

Jerovsek filed a cross-claim against Jack McKeough and his parents, a counter-claim against Ms. Youngberg and a third-party claim against Mark Youngberg.

Prior to trial, Jack admitted liability for negligent operation of the MasterCraft and Mr. McKeough admitted liability under Michigan law as owner of the MasterCraft. The district court granted the McKeoughs judgment as a matter of law on Ms. Youngberg's negligent entrustment and negligent supervision claims. The jury awarded Ms. Youngberg $4.6 million for Jack and Mr. McKeough's negligence.

The district court dismissed a number of Ms. Youngberg's claims against Jerovsek before trial. In particular, the court granted a cross-motion for partial summary judgment for Jerovsek, holding that Ms. Youngberg could not show that Robby was obligated to maintain his course and speed as a vessel being overtaken under INR 17(a)(1), 33 U.S.C. § 2017(a)(1); 33 C.F.R. § 83.17(a)(1). With regard to the claims presented to the jury, Jerovsek was found not liable.

Jerovsek's claims against Ms. Youngberg and her father were dismissed before trial. His cross-claim against Jack and the McKeoughs was resolved with a $6 million consent judgment.

Ms. Youngberg now brings a timely appeal on several grounds. She argues that: (1) the district court erred by granting partial summary judgment to Jerovsek; (2) the district court erred in granting judgment as a matter of law on her claims of negligent entrustment and negligent supervision against the McKeoughs; (3) the district court erred in excluding testimony relevant to the negligent entrustment and negligent supervision claims; and (4) the district court erred by excluding expert testimony on the negligent entrustment and negligent supervision claims. We address these claim in turn.

II.

Ms. Youngberg first argues that the district court erred by granting partial summary judgment to Jerovsek. The district court held that, as a matter of law, Ms. Youngberg could not show that Robby had violated INR 17(a)(1). We review an order granting summary judgment de novo. Tysinger v. Police Dep't of City of Zanesville, 463 F.3d 569, 572 (6th Cir. 2006). Summary judgment is proper "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a). On summary judgment, we view the facts and draw all reasonable inferences in the light most favorable to the non-moving party. Tysinger, 463 F.3d at 572. A genuine dispute is one "based on evidence upon which a reasonable jury could return a verdict in favor of the non-moving party." Id.

The INRs are federally established rules which "apply to all vessels upon the inland waters of the United States." 33 U.S.C. § 2001; 33 C.F.R. § 83.01(a); see also Matheny v. Tenn. Valley Auth., 557 F.3d 311, 317 n.3 (6th Cir. 2009). We interpret the INRs according to the most reasonable and natural reading of the language. See Gonzales v. Oregon, 546 U.S. 243, 285 (2006) (interpreting a federal regulation according to the most "reasonable" and "natural" interpretation); United States v. Parrett, 530 F.3d 422, 429 (6th Cir. 2008) ("The statutory-interpretation analysis begins by examining the language of the statute itself to determine if its meaning is plain." (internal quotation marks omitted)).2

INR 17(a) provides:

(a) Stand-on vessel to keep course and speed; action allowed when give-way vessel fails to take appropriate action.

(1) Where one of two vessels is to keep out of the way, the other shall keep her course and speed.

33 C.F.R. § 83.17(a); see also 33 U.S.C. § 2017(a). INR 13(a) provides that "any vessel overtaking any other shall keep out of the way of the vessel being overtaken." 33 U.S.C. § 2013(a); 33 C.F.R. § 83.13(a). Ms. Youngberg argues that Robby violated INR17(a)(1) by slowing the Sea-Doo, allowing it to be overtaken by the MasterCraft, and that this issue should have gone to the jury.

In response Jerovsek contends, and the district court held, that INR 17(a)(1) was not violated because Jack did not signal before overtaking the Sea-Doo. Under INR 34(c):

(c) Overtaking situations. When in sight of one another:

(1) A power-driven vessel intending to overtake another power-driven vessel shall indicate her intention by the following signals on her whistle: one short blast to mean "I intend to overtake you on your starboard side"; two short blasts to mean "I intend to overtake you on your port side"; and

(2) The power-driven vessel about to be overtaken shall, if in agreement, sound a similar sound signal. If in doubt she shall sound the danger signal prescribed in paragraph (d).

33 U.S.C. § 2034(c); 33 C.F.R. § 83.34(c). Jerovsek argues that because a signal was never sounded, Robby's duty to maintain his course and speed as a vessel being overtaken never arose.

As a preliminary matter, most questions of fact have been resolved by the jury and therefore, the question before us on appeal is narrow. At trial, the jury found that Robby was not liable for not providing an adequate lookout, INR 5, 33 U.S.C. § 2005; 33 C.F.R. § 83.05; not liable for failing to maintain a safe speed under INR 6, 33 U.S.C. § 2006; 33 C.F.R. § 83.06; not liable for failing to determine if there was a risk of collision under INR 7, 33 U.S.C. § 2007; 33 C.F.R. § 83.07; and...

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