Faust v. South Carolina State Highway Dept., Civ. A. No. 78-776

Citation527 F. Supp. 1021
Decision Date11 December 1981
Docket NumberCiv. A. No. 78-776,78-778 and 78-780.
CourtUnited States District Courts. 4th Circuit. United States District Court of South Carolina
PartiesAlean Hester FAUST, Administratrix of the Estate of Charles Lonnie Faust, Deceased, Plaintiff, v. SOUTH CAROLINA STATE HIGHWAY DEPARTMENT, Defendant, and United States of America, Defendant and Third Party Plaintiff. Tommy BENNETT, Plaintiff, v. SOUTH CAROLINA STATE HIGHWAY DEPARTMENT, Defendant, and United States of America, Defendant and Third Party Plaintiff. Curtis L. MULDROW, Plaintiff, v. SOUTH CAROLINA STATE HIGHWAY DEPARTMENT, and United States of America, Defendant and Third Party Plaintiff.

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James C. Rushton, III, William P. Hatfield, Reginald C. Brown, Jr., and Peter D. Hyman, Florence, S. C., Hal Strange and Douglas L. Hinds, Georgetown, S. C., for plaintiff Faust.

D. A. Brockinton, Jr., Brockinton, Brockinton & Smith, P. A., Charleston, S. C., for plaintiffs Bennett and Muldrow.

Ellison D. Smith, IV, Charleston, S. C., Victor S. Evans, Deputy Atty. Gen., Columbia, S. C., for defendant S. C. State Hwy. Dept. Heidi Solomon, Asst. U. S. Atty., Charleston, S. C., Rosemary Denson, Torts Branch, U. S. Dept. of Justice, Washington, D. C., for defendant U. S. A.

HAWKINS, District Judge.

These cases consolidated for trial and heard by this court during its term beginning November 16, 1981, in Georgetown, South Carolina, arose as a result of an accident which occurred at the South Island Ferry in Georgetown, South Carolina, on December 11, 1977. Charles Lonnie Faust, the decedent, Tommy Bennett and Curtis L. Muldrow had been fishing in the waters of Winyah Bay and were attempting to return to the landing from which they had launched their boat when they collided with the guide cable of the South Island Ferry. The collision caused the death of decedent Faust and personal injuries to Bennett and Muldrow. Following the collision the plaintiffs brought these actions against the South Carolina State Highway Department, now known as the South Carolina Department of Highways and Public Transportation, the owner and operator of the ferry, and the United States of America as joint tort feasors. The defendants answered denying liability and at the same time asserting cross-claims against each other for contribution and counterclaims against the estate of the owner and operator of the boat, Charles Lonnie Faust. Having heard the testimony, studied the exhibits, and having fully reviewed all the evidence, the court makes the following findings of fact and conclusions of law:

I — FINDINGS OF FACT

A. Background

1. Prior to 1900, as part of the construction of the Intracoastal Waterway in Georgetown County, the United States Corps of Engineers (hereinafter referred to as "Corps") dug a canal from Winyah Bay to the Santee Delta. This canal, known as the Estherville-Minim Canal, runs generally in a north-south direction and separates South Island from the rest of Georgetown County. After construction of the canal, access from the mainland to South Island was afforded by the construction of a wooden bridge which has long since been destroyed. Thereafter, beginning approximately in 1920, access to South Island was available by ferry provided by Georgetown County, said ferry being located one (1) mile from the waters of Winyah Bay.

2. In 1940, the South Carolina General Assembly shifted the burden of and responsibility for the operation of the ferry from Georgetown County to the South Carolina Highway Department (hereinafter referred to as "Highway Department") with the passage of a statute, now embodied in § 57-15-140 of the 1976 Code of Laws of South Carolina, as amended, which incorporated the ferry and its approaches into the South Carolina Highway System as a portion of State Highway No. 716. The statute further directed the Highway Department to maintain and operate the ferry.

3. The Intracoastal Waterway is a part of the navigable waters of the United States and is a highway for barge and pleasure boat traffic. Since its construction, the Corps has dredged and maintained the waterway which is approximately 300 feet wide.

During its years of operation since 1940, the ferry operated at the South Island crossing has been a cable operated ferry. As an integral part of the cable operated ferry, there was a 5/8 " steel cable which was used as a guide cable to stabilize the ferry during crossings.

4. It appears that no known records are kept as to the number of boats that pass through this portion of the waterway during a given period of time; however, the majority of vessels are pleasure boats and tow vessels. Construction by Georgetown County of a boat landing adjacent to the ferry has resulted in a tremendous increase in traffic by local fishermen and other boaters in the area of the ferry within recent years.

5. From 1955 to 1975, approximately forty (40) accidents involving the ferry occurred. Most of the accidents were minor, and most involved pleasure boats colliding with the guide cable. For the years 1971 to 1975, the South Carolina Department of Marine and Wildlife Resources investigated seven accidents involving collisions between boats and the guide cable, and forwarded the United States Coast Guard (hereinafter referred to as "Coast Guard") copies of their reports. The Coast Guard for that same period investigated five accidents (two of which were also investigated by the South Carolina Department of Marine and Wildlife Resources).

6. On October 9, 1974, John W. Fulton (hereinafter referred to as "Fulton") was killed, after nearly being decapitated, when his boat struck the guide cable for the South Island Ferry. The only other passenger in the boat, Carol Feaga (hereinafter referred to as "Feaga") was seriously injured. Fulton had been traveling from his home in Maryland south on the Intracoastal Waterway to Florida.

7. At the time of the October 1974 death of Fulton, the ferry warning system consisted of 4' × 6' signs upstream and downstream of the cable. The signs were on both sides of the channel and simply stated, "Caution-Ferry Crossing-.10 mile". The signs failed to inform boaters of the dangers posed by the cable when the ferry was in operation. Five red flashing lights were on the ferry boat, and a siren could be sounded by the operator from the island side. Use of the siren was not available once the ferry commenced a trip.

8. On November 21, 1974, Coast Guard Commander M. J. Stewart, the Marine Safety Officer responsible for the South Carolina Zone wrote District Engineer Catoe (hereinafter referred to as "Catoe"), who was responsible for all maintenance, construction and engineering activities in his district of the Highway Department and advised him of his concern for the hazards represented by the cable ferry crossing at South Island. He stated that the cable was the primary hazard and recommended some temporary modifications until such time as the cable could be removed. Among his recommendations were that the guide cable be modified so that it could be lowered to the bottom of the water from both sides of the waterway; that four (4) additional signs be installed with legends clearly indicating the danger of the cable and that passage should not be attempted while the lights on the ferry were flashing; that these signs should be located five hundred (500) feet north and south from the present signs; and that the guide cable be installed in a lower position that would likely result, if it were struck by a boat, in damage to the vessel's hull but less likelihood of injuries to individuals. He also recommended that the state should consider a self-propelled ferry or at least consider the use of a cable ferry without a guide cable and advised Catoe that ferries of this type were being operated by the State of Louisiana. He further suggested that Catoe contact officials in that state concerning the operation of such ferries.

9. On November 20, 1974, a letter of similar import had been sent by Commander Stewart to the Commander of the Seventh Coast Guard District in Miami, Florida, calling to his attention the dangers presented by the operation of the cable ferry and regarding changes similar to those made in his letter to Catoe.

10. On November 21, 1974, Catoe, by way of memorandum to the State Highway Engineer of the Highway Department, indicated that strobe lights were to be placed on both sides of the waterway to operate when the ferry was in operation and a switch was to be installed on the mainland side of the waterway to allow the guide cable to be lowered in case it was necessary due to an approaching boat.

11. On December 5, 1974, the State Highway Engineer by way of memo to Catoe approved, among other matters, the installation of the red strobe lights and the switch to allow the lowering of the guide cable from the mainland side of the waterway. Catoe was also instructed to comply with the terms of Commander Stewart's letter dated November 20, 1974, and to also give consideration to the recommendations contained in Commander Stewart's letter of November 21, 1974.

12. On October 9, 1975, suit was filed in the United States District Court, District of South Carolina, Charleston Division, by the Administrator of the estate of John W. Fulton and by Carol Feaga individually against the United States of America and the South Carolina State Highway Department for damages occasioned by the wrongful death of Fulton and for the injuries sustained by Feaga.

13. On April 1, 1977, the Honorable Sol Blatt, Jr., U. S. District Judge, after concluding the trial of the Fulton and Feaga cases wrote a letter to Paul W. Cobb, Chief Highway Commissioner of the Highway Department and advised him that he felt that the South Island Ferry, even after the addition of safety features which had been installed after the Fulton death, still constituted a dangerous hazard that was likely to result in...

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3 cases
  • Faust v. South Carolina State Highway Dept.
    • United States
    • U.S. Court of Appeals — Fourth Circuit
    • December 13, 1983
    ...paid for by the Highway department out of funds that were on hand before December 11, 1977. In its opinion, Faust v. South Carolina Highway Department, 527 F.Supp. 1021 (D.S.C.1981), the district court followed a path of reasoning which, although it included reference to principles of the c......
  • Caldarera v. Eastern Airlines, Inc.
    • United States
    • U.S. Court of Appeals — Fifth Circuit
    • May 27, 1983
    ...States, 537 F.Supp. 147 (D.Or.1982) (widow received $100,000 for loss of husband's society and companionship); Faust v. South Carolina Hwy. Dept., 527 F.Supp. 1021 (D.S.C.1981) (widow received $60,000 for loss of husband's love, affection, care, attention, companionship, comfort, and protec......
  • Ray v. Lesniak
    • United States
    • U.S. District Court — District of South Carolina
    • February 22, 2018
    ...present value discounts employing a discount rate of five percent to damages for future medical care. See Faust v. S.C. State Highway Dep't, 527 F.Supp. 1021, 1036 (D.S.C. 1981), rev'd on other grounds, 721 F.2d 934 (4th Cir. 1983) ("I find that he is entitled to be properly compensated for......

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