Schumacher v. Cooper

• Decision Date: 19 April 1994
• Docket Number: Civ. A. No. 2:91-3436-18.
• Parties: Kevin SCHUMACHER and Toni Schumacher v. James D. COOPER, III.
• Court: U.S. District Court — District of South Carolina

850 F. Supp. 438

Kevin SCHUMACHER and Toni Schumacher v. James D. COOPER, III.

Civ. A. No. 2:91-3436-18.

United States District Court, D. South Carolina, Charleston Division.

April 19, 1994.

COPYRIGHT MATERIAL OMITTED

Mark Tanenbaum, Charleston, SC, for plaintiff.

Edward Pritchard, Charleston, SC, for defendant.

ORDER

NORTON, District Judge.

I. INTRODUCTION

Plaintiffs, Kevin and Toni Schumacher, bring this admiralty action, pursuant to Rule 9(h) of the Federal Rules of Civil Procedure. Plaintiff Kevin Schumacher, while attending a 4th of July celebration on Lake Marion, was struck and injured by a pontoon boat owned and being operated by Defendant, James D. Cooper, III. Plaintiffs allege that Defendant was negligent and reckless in the operation of his boat and that he violated the Inland Rules of Navigation.

This case was tried before this Tribunal, sitting without a jury, on December 13 and 14, 1993. Having considered the testimony and the exhibits admitted at trial and the pre-trial and post-trial briefs submitted to the Court by the parties, this Court now makes the following Findings of Fact and Conclusions of Law in accordance with Rule 52(a) of the Federal Rules of Civil Procedure.

II. FINDINGS OF FACT

1. On July 4, 1991, Plaintiff Kevin Schumacher ("Plaintiff"), attended a July 4th party at Lake Marion, South Carolina, such being part of the navigable waters of the United States.

2. Plaintiff went to an area referred to as the beach near Mill Creek Landing, where people can play and swim. This area is a cove with cliffs or bluffs on each side and a log floating in the water.

3. This was the first time that Plaintiff Kevin Schumacher had been to Mill Creek Landing.

4. During the course of the day, there were as many as 50 men, women, and children at an informal beach "party," most of whom were swimming and playing in the water at various times.

5. There were also boats passing this area in a nearby channel of the lake and other boats that were entering and leaving the cove area for periods of time. There was also a house boat anchored just outside of the cove in the channel area.

6. Defendant James D. Cooper, III testified that at the time of the incident he was the owner of a twenty-eight foot Sanpan Pontoon Boat, equipped with a ninety horsepower Johnson outboard motor, which he was operating on Lake Marion in conjunction with the July 4th celebration.

7. Defendant had purchased this boat in the spring of 1990. He had owned other boats, but this boat was the first of its size and the first pontoon boat he had owned.

8. Henry N. Helgesen, Captain, U.S. Coast Guard (Retired) was called by Plaintiff as an expert in the field of safe operation of a vessel. Captain Helgesen began studying the navigational rules at age 17 and graduated from the Merchant Marine Academy in 1945. He then served in the U.S. Coast Guard mainly in a safety and regulatory capacity until 1982, enforcing the rules and regulations of navigation and marine safety. Captain Helgesen has been a consultant in marine safety and regulations since his retirement from the U.S. Coast Guard.

9. Captain Helgesen testified, and I so find, that there were a number of obstructions on the boat which hindered Defendant's sight and ability to keep a proper lookout. These included the sofas located on the boat, the tubular railing with the three-foot solid aluminum panel around the boat, a ladder to the sun deck, and a depth finder or fish finder. Captain Helgesen personally inspected the boat in a re-enactment conducted by Defendant and viewed a video re-enactment made by Defendant of the incident. The Court personally inspected the boat at the conclusion of the trial.

10. Captain Helgesen testified, and I so find, that when the driver is seated there is a blind spot from the driver's seat forward over the bow, measuring sixty feet from the operator's seat or forty feet beyond the bow. The driver's seat is twenty feet astern of the bow.

11. Defendant arrived at the beach with his boat shortly before 10:00 a.m.

12. Plaintiff and most of the other people in the area were swimming and playing in the water throughout the course of the day. Most, if not all, of the adults, including Plaintiff and Defendant, were drinking alcoholic beverages.

13. Shortly after Plaintiff arrived, Defendant took his boat out for the second ride of the day. Plaintiff accompanied Defendant on the boat to purchase gas for the boat and more beer for the party participants.

14. In the early afternoon, Defendant decided to go for a third boat ride.

15. There were numerous swimmers in the immediate area of the beach. Defendant testified that he knew he needed to keep a lookout for kids, swimmers, logs, and boats. He further testified that Plaintiff appeared to be very intoxicated, that he was stumbling, and that his speech was slurred the entire time Plaintiff was at the beach.

16. Defendant testified that although he knew that from where he sat to operate the boat he could not see in forward of the bow for a substantial distance, he did not request any of his passengers to assist him by keeping a forward lookout on this third trip of the day.

17. Defendant testified, and I so find, that as he backed from the shore he focused his attention towards the rear of the boat and only glanced around in other directions until he put the boat in forward gear. Only then did he begin to look forward.

18. Plaintiff testified, and I so find, that after Defendant's boat was approximately 10-15 feet from the shore, he began swimming towards the log. He then decided that he wanted to go on the boat with the others and began to swim directly towards the bow of the boat intending to climb aboard. Just as he reached the boat, Defendant put it in gear and began to move forward. Unfortunately Defendant could not see Plaintiff because Plaintiff was in Defendant's forty foot blind spot. Plaintiff was unable to climb aboard and became trapped underneath the boat. In an effort to avoid injury, he caught one of the C-bars underneath and tried to make his way to the front of the boat so as to climb aboard and out of harm's way.

19. As the boat accelerated, Plaintiff was unable to hold on. He tried to dive away from the boat, but the propeller hit him, leaving Plaintiff with a mangled leg and back.

20. Plaintiff further testified, and I so find, that when Defendant put the boat in forward gear, Plaintiff realized he was trapped under the boat and in danger and he tried to get Defendant's attention by yelling.

21. Defendant testified, as did Christine Altman, a passenger on the boat on this trip, that, because of the noise of the engine and the blaring of Defendant's stereo system, neither of them heard Plaintiff yell.

22. Plaintiff and William Goodman, an eyewitness and friend of Defendant's, both testified that Plaintiff was swimming on top of the water, in a free-style manner, when he approached the boat, and that he was easily visible. Mr. Goodman further testified that the log was 20 yards (sixty feet) from the boat when Plaintiff began to swim towards it and there were other swimmers around the log. From this, it must be concluded that Plaintiff was visible to the seated Defendant for at least twenty feet before he moved into Defendant's blind spot. In the video reenactment, the swimmer representing Plaintiff can be seen swimming from the log towards the bow of the boat before disappearing into the seated operator's blind spot. If Defendant had posted a forward lookout, Plaintiff could have been seen during the entire sixty-foot distance.

23. Mr. Goodman, who was standing in the water, testified that when he realized Defendant did not see Plaintiff, he began waving his arms and yelling in an effort to warn Defendant and the passengers of the impending catastrophe. His efforts were to no avail because Mr. Goodman nor Plaintiff could be heard by anyone on Defendant's boat because the radio was blasting the cacophonous rhythms of rock and roll.

24. Christine Altman, the passenger, saw Mr. Goodman waving his arms, but could not hear him and did not know why he was waving at the boat.

25. Captain Helgesen testified that because Defendant remained seated he was unable to keep a proper lookout in front of the vessel. When Defendant did look forward, he was unable to see for forty feet in front of the vessel.

26. Captain Helgesen further opined that one would not always need a bow lookout in this boat but that under the circumstances prevailing at the time of this incident a bow lookout was necessary. Given the number of other boats, the children and adults swimming in the area, and the other distractions, a separate bow lookout was necessary before starting forward. Captain Helgesen testified that a seated operator could not have maintained a satisfactory lookout by sight because of the possibility that someone could have been in the water within the blind spot.

27. In the re-enactment video and on a re-enactment trip, Defendant played the radio at the volume at which it had been set at the time of the injury. Based on these re-enactments, Captain Helgesen testified that Defendant was unable to hear people calling out because the stereo was blaring loud music, which overpowered any other sounds, including that of the engine. For these reasons, neither Plaintiff's nor Mr. Goodman's cries for help were heard.

28. Both Plaintiff and Defendant had been drinking on the day of the accident. Plaintiff's blood alcohol level was drawn by the Medical University of South Carolina (MUSC) on the evening of July 4, 1991 and was found to be 0.18%. Additionally, traces of cocaine were found in Plaintiff's urine. It is excruciatingly clear that Plaintiff was highly intoxicated at the time of his accident. Plaintiff admitted drinking six to seven beers and snorting three to four lines of cocaine on the night of July 3 and into the early morning hours of July 4. He further admitted that h...