De Sole v. U.S., 89-2471

• Citation: 947 F.2d 1169
• Decision Date: 21 November 1991
• Docket Number: No. 89-2471,89-2471
• Parties: Domenico De SOLE, Plaintiff-Appellant, v. UNITED STATES of America, Defendant-Appellee, Chesapeake Bay Yacht Racing Association, United States Yacht Racing Union, Incorporated, Amici Curiae.
• Court: United States Courts of Appeals. United States Court of Appeals (4th Circuit)

Page 1169

947 F.2d 1169

1992 A.M.C. 242

Domenico De SOLE, Plaintiff-Appellant, v. UNITED STATES of America, Defendant-Appellee,

Chesapeake Bay Yacht Racing Association, United States Yacht

Racing Union, Incorporated, Amici Curiae.

No. 89-2471.

United States Court of Appeals, Fourth Circuit.

Argued April 2, 1990.

Decided Oct. 29, 1991.

As Amended Nov. 21, 1991.

Allan Abbott Tuttle, argued, Patton, Boggs & Blow, Washington, D.C., for plaintiff-appellant.

Stephen P. Kling, argued, Crummey & King, Annapolis, for amici curiae.

Kevin Patrick McMahon, Civ. Div., U.S. Dept. of Justice, Washington, D.C., argued (Stuart M. Gerson, Asst. Atty. Gen., Civ. Div., U.S. Dept. of Justice, Washington, D.C., Breckinridge L. Willcox, U.S. Atty., and Ethan L. Bauman, Asst. U.S. Atty., Baltimore, Md., on brief), for defendant-appellee.

Before WIDENER and MURNAGHAN, Circuit Judges, and SMITH, District Judge for the Eastern District of Virginia, sitting by designation.

OPINION

MURNAGHAN, Circuit Judge:

Domenico De Sole filed an action in admiralty under the Suits in Admiralty Act, 46 U.S.C.App. § 741 et seq., and the Public Vessels Act, 46 U.S.C.App. § 781 et seq., seeking to recover for damages to his racing yacht, CIRO. The damages, allegedly $41,600.05 worth, were caused by a collision with the United States Navy yacht, CINNABAR, at the finish line of the Chesapeake Bay Yacht Racing Association's 1988 Spring Race, Event # 301 on April 23, 1988.

After De Sole filed his complaint, the Navy moved to dismiss under Federal Rule of Civil Procedure 12(b)(6). The Navy maintained that the plaintiff, in entering the yacht race, had assumed the risk of collision and consequently had failed to state a claim upon which relief could be granted. After briefing, but without a hearing, the district court granted the Navy's motion. De Sole has appealed and we now remand.

We note that, although the dissent implies that the opinion attempts to negate the yacht racing world's alleged decision to forgo damages for race collisions, the amici curiae, the Chesapeake Bay Yacht Racing Association, Inc. ("CBYRA") and the United States Yacht Racing Union, Inc. ("USYRU"), have represented to the court that if the decision below is upheld their sport will be disrupted:

[t]he court below, without any knowledge or understanding of the sport upon which it cavalierly passed judgment, and without any evidence upon which to make a reasoned assessment, issued a decision which, without exaggeration, carries real potential to rip the sport of sailboat racing asunder.

Brief of Amicus Curiae at 21. We have every hope that the dearth of information on sailing in the present record, which has resulted in a certain frustration, evidenced in footnotes throughout our opinion and the dissent, will be rectified upon a hearing on remand.

I.

The court, in deciding a 12(b)(6) motion, must take all wellpleaded material allegations of the complaint as admitted and view them in the light most favorable to the plaintiff. Jenkins v. McKeithen, 395 U.S. 411, 421, 89 S.Ct. 1843, 1848, 23 L.Ed.2d 404 (1969). "[A] rule 12(b)(6) motion should be granted only in very limited circumstances." Rogers v. Jefferson-Pilot Life Ins. Co., 883 F.2d 324, 235 (4th Cir.1989). All of the specifics of the collision are from De Sole's complaint. We confront, in assumption of the risk, an affirmative defense. See W. Page Keeton, Prosser and Keeton on the Law of Torts, § 65, at 451 (5th ed. 1984 & Supp.1988). Hence, the district court's ruling on a 12(b)(6) motion for the defendant must have been one of law, of universal application and regardless of factual variation, that assumption of the risk was present and controlled.

The CINNABAR is owned by the United States and is used as a sailing training vessel at the United States Naval Academy's Robert Crown Sailing Center in Annapolis, Maryland. At the finish line of the race, the CINNABAR, crewed by midshipmen, struck the CIRO. At a protest hearing five days later, the Race Committee of the United States Naval Academy Sailing Squadron at the Robert Crown Sailing Center absolved CIRO of any fault in the collision and disqualified CINNABAR on the grounds that it had violated Rule 37.2 of the International Yacht Racing Rules ("IYRR"). That rule requires that a yacht clear astern keep clear of a yacht clear ahead. According to the complaint, the Navy sailing director relieved the master of the CINNABAR, a midshipman, for his negligent navigation of the CINNABAR.

In accordance with the apparent tradition that the losing party to a protest pays the damages, the Navy requested that De Sole have a marine surveyor appraise the damages. De Sole submitted the appraisal by marine surveyor to the Navy pursuant to federal regulations. However, the Navy subsequently refused to pay for the damages. ¹

II.

In granting the 12(b)(6) motion, District Judge Norman P. Ramsey found controlling analogy in cases involving other sporting events such as a horse race. See, e.g., Turcotte v. Fell, 68 N.Y.2d 432, 502 N.E.2d 964, 510 N.Y.S.2d 49 (1986). The district court held that the assumption of risk doctrine applied as a bar to any recovery by De Sole. In doing so the judge also found persuasive a case involving property damage which occurred during a motorboat race on navigable waters, Dunion v. Kaiser, 124 F.Supp. 41 (E.D.Pa.1954). The Dunion case is the only case that either party, the amici, or we have found that has held that a sporting event in which admiralty jurisdiction is invoked triggers the assumption of risk doctrine. ²

The government contends that assumption of risk does have a place in admiralty law. The government does concede that there is no assumption of risk defense available in the context of a seaman's injury. Socony-Vacuum Oil Co. v. Smith, 305 U.S. 424, 59 S.Ct. 262, 83 L.Ed. 265 (1939). Assumption of risk has been rejected as well in the context of a recreational boating accident involving personal injury. Skidmore v. Grueninger, 506 F.2d 716 (5th Cir.1975). The doctrine has been barred in admiralty cases involving commercial collisions, United States v. Reliable Transfer Co., Inc., 421 U.S. 397, 95 S.Ct. 1708, 44 L.Ed.2d 251 (1975), as well as in a recent case involving faulty repairs to a private yacht. Edward Leasing Corp. v. Uhlig & Assoc., Inc., 785 F.2d 877 (11th Cir.1986).

Nevertheless, the government distinguishes the above-discussed cases as well as numerous others by pointing out that those authorities involve personal injuries or property damage not in the context of a sailboat race. In addition to the lone Dunion opinion, the government has relied upon cases involving other sporting activities which have held that a participant assumes the risks of a sport that are obvious and foreseeable. See Novak v. Lamar Ins. Co., 488 So.2d 739 (La.App.), cert. denied, 491 So.2d 23 (La.1986) (no liability imposed for injuries sustained by softball player where defendant did not act with a wanton or reckless lack of concern for others); Kabella v. Bouschelle, 100 N.M. 461, 672 P.2d 290 (N.M.Ct.App.1983) (football); Kuehner v. Green, 436 So.2d 78 (Fla.1983) (karate); Huckaby v. Confederate Motor Speedway, Inc., 276 S.C. 629, 281 S.E.2d 223 (1981) (automobile racing).

Acknowledging that admiralty employs a system of comparative fault, the government nevertheless endeavors to show how the assumption of risk doctrine also can be reconciled with such a doctrine. Again, it illustrates that attempted reconciliation by referring to sports cases in comparative negligence jurisdictions. See Gauvin v. Clark, 404 Mass. 450, 537 N.E.2d 94 (1989) (hockey; no cause of action for mere negligence during sport, the duty of care owed by players is to refrain from willful, wanton and reckless conduct); Ordway v. Superior Court, 198 Cal.App.3d 98, 243 Cal.Rptr. 536 (1988) (horse racing; in action brought by jockey for injuries suffered in collision during a race, reasonable implied assumption of risk is a complete defense within California's comparative negligence system); Hanson v. Kynast, 38 Ohio App.3d 58, 526 N.E.2d 327 (1987) (lacrosse; notwithstanding comparative negligence scheme, in athletic competition there is no liability for actions which fall short of an intentional tort); Turcotte v. Fell, 68 N.Y.2d 432, 510 N.Y.S.2d 49, 502 N.E.2d 964 (1986) (horse racing; consent to risks inherent in the contest mitigates duty of jockey to refrain from carelessness or merely negligent violations of the rules and no cause of action therefore will be allowed, even under New York's comparative fault statute).

De Sole points out that, even assuming arguendo that sports law doctrines are applicable, the district court should still be reversed. He quotes the Restatement (Second) of Torts § 50 comment b (1969):

Taking part in a game manifests a willingness to submit to such bodily contacts or restrictions of liberty as are permitted by its rules or usages. Participating in such a game does not manifest consent to contacts which are prohibited by rules or usages of the game if such rules or usages are designed to protect the participants and not merely to secure the better playing of the game as a test of skill.

Because the Navy's own Race Committee has found the Navy's yacht to have violated during the race a well-known rule of universal application, De Sole argues that a strong case of negligence per se is made out on the part of the violator. De Sole cannot be said to have consented to a contact clearly prohibited by the rule, which does not cease to apply in a sailboat race. The rule manifestly concerns participant protection and is not concerned with increased sports proficiency.

De Sole further points out that the sports cases cited by the district court concern sports which "by [their] own nature, [are] sports posing great peril to its participants." Santiago v. Clark, 444 F.Supp. 1077, 1079 (N.D.W.Va.1978) (horse racing). ³ De Sole distinguishes sailboat...