McDonnell v. Flaharty
| Citation | 636 F.2d 184 |
| Decision Date | 04 November 1980 |
| Docket Number | No. 80-1026,80-1026 |
| Parties | Julia McDONNELL, Administratrix of the Estate of Patrick J. McDonnell and Julia McDonnell in her own right, Plaintiff-Appellant, v. James FLAHARTY and Patricia Flaharty, Defendants-Appellees. . Heard |
| Court | U.S. Court of Appeals — Seventh Circuit |
John W. Peck, II, Arnold, Pa., for plaintiff-appellant.
James P. Fenton, Fort Wayne, Ind., for defendants-appellees.
Before FAIRCHILD, Chief Judge, WISDOM, Senior Circuit Judge, * and CUMMINGS, Circuit Judge.
In this diversity case, plaintiff Julia McDonnell appeals from an order of the district court granting defendant James Flaharty's motion for summary judgment in his favor on plaintiff's wrongful death claim. We affirm.
On September 10, 1976, plaintiff's husband, Patrick McDonnell, a resident of Pennsylvania, traveled with several other men to Indiana to attend a Notre Dame football game. That evening, while a social guest at defendants' lakeside cottage, McDonnell went for a pleasure cruise along with several other guests on a pontoon boat belonging to defendant James Flaharty. During the cruise, the boat capsized when most of the passengers moved to one side of the boat. All the passengers were thrown into the water. McDonnell, who had been operating the boat at the time of the incident, became trapped under the boat and drowned.
On December 8, 1977, plaintiff brought this action against James Flaharty and his wife Patricia, alleging that defendants had acted "negligently, carelessly, recklessly, wantonly and illegally" regarding the use and operation of the boat, thereby causing McDonnell's death. The complaint contained two counts, one a wrongful death claim and the other a "survival action."
On October 23, 1979, defendants moved for summary judgment in their favor on both counts. The record contains a certificate by defendants' counsel showing service on plaintiff by mail on the same date. Plaintiff failed to file a response to defendants' motion within the time prescribed by local court rule, and on November 15 District Judge Eschbach entered an order granting the motion.
Judgment was entered on the "survival action" in favor of both defendants on the ground that Indiana law does not recognize such an action. Judgment was entered on the wrongful death claim in favor of defendant Patricia Flaharty on the ground that uncontroverted evidence showed her to have been neither present at the time of the accident nor an owner of the boat in question. Judgment was entered on the wrongful death claim in favor of defendant James Flaharty on the grounds that Indiana law required him only to refrain from willfully, wantonly or intentionally injuring social guest passengers on his boat and that plaintiff had failed to present any evidence to controvert James Flaharty's sworn statement that he had not acted willfully or intentionally to injure decedent.
On November 15, the same date that judgment had already been entered in favor of defendants, plaintiff filed an answer to defendants' October 23 motion for summary judgment in which she argued that summary judgment was inappropriate because there existed disputed issues of fact as to whether Patrick McDonnell's death was caused by James Flaharty's "negligent, reckless, careless, wanton and unlawful conduct" (App. 9). As the district judge later explained, her supporting affidavit was not based on any personal knowledge as required by Rule 56(e) of the Federal Rules of Civil Procedure and in any event did not show any willful, wanton or intentional act by James Flaharty (App. 39). In the supporting memorandum she acknowledged that the proper standard of care was the same as owed an Indiana guest automobile passenger, viz. no wanton conduct by defendant (App. 9).
On November 26, plaintiff filed a Request for Reconsideration of defendants' summary judgment motion, claiming that her November 15 response was timely in that defendants had failed to serve her with a copy of their October 23 motion until November 5. Plaintiff also filed at that time a Supplemental Answer supported by a memorandum in which she reversed herself as to the applicability of the Indiana guest statute to this case (App. 25, 38). Then she argued that if willful or wanton misconduct was required, a disputed issue of fact existed as to whether James Flaharty had so acted with respect to the events leading to Patrick McDonnell's death. In supporting affidavits, three men who had also been passengers on the boat at the time of the incident stated that defendant James Flaharty did not instruct the passengers concerning any defects of the boat or its operation, did not advise them regarding life-saving equipment, and did not warn them where to stand, what to do in an emergency, or what would be unsafe movements around the boat (App. at 29-32). However, the affidavits did not show that he injured decedent willfully, wantonly or intentionally.
Finding that plaintiff's November 15 and November 26 responses, even if timely, did not establish the existence of a disputed issue of material fact, Judge Eschbach on November 30 denied the request for reconsideration. On appeal, plaintiff argues only that the district court erred in granting summary judgment against her in favor of defendant James Flaharty on the wrongful death claim. The judgments against her in favor of both defendants on the "survival action" and in favor of defendant Patricia Flaharty on the wrongful death claim are therefore not in issue here, and any objection thereto has been waived.
Plaintiff's first contention is that the district court erred in holding that under Indiana law a boat owner is liable with respect to his social guest passengers only for injuries caused by his willful, wanton or intentional misconduct. We disagree.
The Indiana courts have apparently never squarely addressed the precise issue presented here. But it has long been the rule in Indiana that the duty of care owed by a real-property owner to his social guests requires only that the host refrain from willfully, wantonly or intentionally injuring his social guests. Swanson v. Shroat, 169 Ind.App. 80, 345 N.E.2d 872 (1976); Pierce v. Walters, 152 Ind.App. 321, 283 N.E.2d 560 (1972); Fort Wayne National Bank v. Doctor, 149 Ind.App. 365, 272 N.E.2d 876 (1971).
Although the Indiana appellate court in Munson v. Rupker, ...
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