Choat v. Kawasaki Motors Corp.

• Decision Date: 23 February 1996
• Citation: 675 So.2d 879
• Parties: Thomasine CHOAT, as mother of Connie Michelle Johnson, a minor, deceased v. KAWASAKI MOTORS CORPORATION, a U.S. Corporation, et al. 1920544.
• Court: Alabama Supreme Court

Page 879

675 So.2d 879

1996 A.M.C. 2064

Thomasine CHOAT, as mother of Connie Michelle Johnson, a minor, deceased v. KAWASAKI MOTORS CORPORATION, a U.S. Corporation, et al.

1920544.

Supreme Court of Alabama.

Feb. 23, 1996.

R. Ben Hogan, III, James R. Pratt, III, and Pamela D. Beard of Hogan, Smith, Alspaugh, Samples & Pratt, P.C., Birmingham, and William R. Hovater, Tuscumbia, for Appellant.

W. Stancil Starnes of Starnes & Atchison, Birmingham, Robert E. Jones, III of Jones & Trousdale, Florence, and Richard A. Mueller of Coburn & Croft, St. Louis, Missouri, for Kawasaki Motors Corp., U.S.A., Kawasaki Heavy Industries, Inc. and Kawasaki Motors Mfg. Corp., U.S.A.

Bruce J. McKee of Hare, Wynn, Newell & Newton, Birmingham, and Jack Drake of Drake & Pierce, Tuscaloosa, for Amicus Curiae Alabama Trial Lawyers Ass'n, in support of appellant's application for rehearing.

On Application for Rehearing

COOK, Justice.

The opinion of May 27, 1994, is withdrawn and the following is substituted therefor.

Thomasine Choat appeals from an adverse summary judgment in her action seeking damages for the alleged wrongful death of her daughter, Connie Johnson. We reverse and remand.

The evidence suggests the following: On July 15, 1991, 18-year-old Connie Johnson and her friend Lania Moore were relaxing on inflatable floats approximately 50 feet from the shoreline of a slough in Wilson Lake, an impoundment of the Tennessee River. In the same slough, 13-year-old Michael Fields was operating a "Kawasaki Jet Ski." Michael made a number of "playful" passes close to the floats in order to "splash" the girls. Brief of Appellee, at 4. On one of the passes, the Jet Ski struck Connie in the head. She fell from her float and disappeared beneath the surface. A diver subsequently located Connie's body in approximately 22 feet of water and retrieved it from the bottom of the slough. At the time of Connie's death, she was unmarried and had no dependents.

On April 23, 1992, Thomasine Choat filed a wrongful death action against Kawasaki Motors Corporation, Kawasaki Heavy Industries, Ltd., and Kawasaki Motors Manufacturing Corporation, U.S.A. ("collectively referred to as Kawasaki"), and a number of individual defendants. ¹ Her claims against Kawasaki sought damages based on allegations of negligence, wantonness, and liability under the Alabama Extended Manufacturer's Liability Doctrine. Kawasaki moved for a summary judgment, contending that the claims were subject to admiralty jurisdiction and arguing that under maritime law nondependents may not recover in a wrongful death action punitive damages or damages for loss of society. The trial court entered a summary judgment in favor of Kawasaki, and Choat appealed. On appeal, Choat contends (1) that maritime law does not apply to her action, and, alternatively, (2) that its application does not supersede the remedies provided by the Alabama Wrongful Death Act, Ala.Code 1975, § 6-5-391.

I. Jurisdiction

Admiralty jurisdiction would be proper in this case if the incident of which Choat complains meets two criteria set forth by the United States Supreme Court. First, the type of incident involved must "potential[ly affect] maritime commerce." Sisson v. Ruby, 497 U.S. 358, 363, 110 S.Ct. 2892, 2896, 111 L.Ed.2d 292 (1990). Second, the type of activity involved must bear " 'a substantial relationship to traditional maritime activity.' " Id. at 362, 110 S.Ct. at 2895 (quoting Foremost Insurance Co. v. Richardson, 457 U.S. 668, 675 n. 5, 102 S.Ct. 2654, 2658 n. 5, 73 L.Ed.2d 300 (1982)).

A. Potential Effect

To determine the "potential effect on maritime commerce," we must imagine an incident of the same general character as the incident under consideration as having occurred, not in the location in which it actually occurred, but in the busiest conceivable sea lane. From that premise, we must then postulate the possible effect on commercial shipping of the occurrence in that latter location. Sisson, 497 U.S. at 363, 110 S.Ct. at 2896 ("a court must assess the general features of the type of incident involved to determine whether such an incident is likely to disrupt commercial activity"); Price v. Price, 929 F.2d 131, 135 (4th Cir.1991) (under Foremost and Sisson, "we must project more generally the composite genre of the tort or its essential elements and determine whether traditional maritime commerce will be affected"). Thus, in Foremost, the Court held that a collision on the Amite River in Louisiana between an "eighteen foot pleasure boat" towing a water skier and a "sixteen-foot 'bass boat' " potentially interfered with maritime commerce, notwithstanding the facts that neither vessel had ever been engaged in commercial maritime activity and that the situs of the accident had been "seldom, if ever, used for commercial activity." Foremost Insurance Co. v. Richardson, 457 U.S. 668, 678, 102 S.Ct. 2654, 2660, 73 L.Ed.2d 300 (1982) (Powell, J., dissenting). The Foremost Court, as Sisson later more fully explained, "supported [its] finding of potential disruption ... with a description of the likely effects of a collision at the mouth of the St. Lawrence Seaway, ... an area heavily traveled by commercial vessels." Sisson, 497 U.S. at 363, 110 S.Ct. at 2896 (emphasis added). In Sisson itself, the Supreme Court held that an action based on fire damage to a Lake Michigan marina and to vessels docked therein invoked admiralty jurisdiction, notwithstanding the facts that the vessel in which the fire originated was a "56-foot pleasure yacht," id., at 360, 110 S.Ct. at 2894, and that no commercial vessels were docked at the marina at the time of the fire. Id. at 363, 110 S.Ct. at 2896. Because, the Court noted, fire poses a perennial danger to commercial vessels, the genre of the occurrence involved in Sisson--"fire on a vessel docked at a marina on navigable waters"--constituted a "potential hazard to maritime commerce." Id. at 362-63, 110 S.Ct. at 2895.

Under these principles, we must conclude that the incident of which Choat complains--a fatal collision on navigable water--potentially affects maritime commerce. Were an incident of this genre to occur "at the mouth of the St. Lawrence Seaway," Foremost, 457 U.S. at 675, 102 S.Ct. at 2658, emergency personnel could be called to rescue victims or to retrieve casualties. Such rescue activities could interrupt commercial shipping. See Complaint of Bird, 794 F.Supp. 575, 579 (D.S.C.1992) ("commotion" conceivably arising from attempts to rescue a "[man overboard] in a crowded seaway would potentially have an impact on maritime commerce"); Sinclair v. Soniform, Inc., 935 F.2d 599, 602 (3d Cir.1991) ("possibility that commercial vessels would be diverted to respond" to distress signals to aid a diver suffering from "decompression sickness" potentially affected maritime commerce). Thus, because the occurrence of an incident of this general character potentially affects maritime commerce, the first criterion of the jurisdictional analysis is met.

B. Substantial Relationship

"Operating a vessel is a traditional maritime activity." Lipworth v. Kawasaki Motors Corp., U.S.A., 592 So.2d 1151, 1153 (Fla.Dist.Ct.App.), cert. denied, 506 U.S. 974, 113 S.Ct. 465, 121 L.Ed.2d 373 (1992). Therefore, in connection with the second step of the jurisdictional inquiry, the parties have devoted considerable attention to the question whether a Jet Ski is a "vessel." This question has not been unanimously resolved, and at least one court has answered the question in the negative.

In Complaint of Roffe, 724 F.Supp. 9, 10-11 n. 2 (D.P.R.1989), the operator of a "WaveJammer" that she had rented from Roffe, was killed when she collided with a yacht. Id. at 9. Roffe began an action pursuant to the Limitation of Liability Act of 1851, 46 U.S.C.App. § 183, seeking to limit his liability to $2500, the cost of the WaveJammer. 724 F.Supp. at 9. Reasoning that the application of the Act to "pleasure crafts," and, in particular, to the relatively inexpensive WaveJammer, would often inadequately compensate for serious injuries or death, the court held that the Act did not apply to "pleasure crafts." Id. at 10. As an alternative basis for excluding the owner of the WaveJammer from the application of the Act, the court stated: "[W]e decline to rule that the WaveJammer, one of a new breed of aquatic motorbikes, is a vessel within the meaning of the statute. As described in the literature submitted by the petitioner ..., it is a vehicle characterized as a personal watercraft designed for only one rider." Id. at 10-11 n. 2 (emphasis in original).

Complaint of Roffe, however, did not involve the jurisdictional question involved in this case, that is, whether admiralty jurisdiction was proper. In our view, the rationale for defining such machines as nonvessels for purposes of the Limitation of Liability Act is entirely separate from, and probably inapplicable to, the question whether such devices are vessels for jurisdictional purposes. Nevertheless, at least one court has concluded that a Jet Ski is a "vessel," even for purposes of the Limitation of Liability Act. Keys Jet Ski, Inc. v. Kays, 893 F.2d 1225 (11th Cir.1990) (collision involving a Jet Ski and a motorboat).

More on point are Wahlstrom v. Kawasaki Heavy Industries, Ltd., 800 F.Supp. 1061 (D.Conn.1992) (Jet Ski collided with a motorboat), vacated on other grounds, 4 F.3d 1084 (2d Cir.1993), cert. denied, 510 U.S. 1114, 114 S.Ct. 1060, 127 L.Ed.2d 380 (1994), and Lipworth v. Kawasaki Motors Corp., U.S.A., 592 So.2d 1151 (Fla.Dist.Ct.App.) (Jet Ski collided with a dock), cert. denied, 506 U.S. 974, 113 S.Ct. 465, 121 L.Ed.2d 373 (1992). Both of those cases, like this case, involved products liability claims against Kawasaki. Both courts regarded Jet Skis as vessels and held that maritime law applied. Wahlstrom concluded that "the operation of a motorized Jet Ski, like [the operation of] a small motor boat, sufficiently implicates...