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Tew v. Fairhope Yacht Club

United States District Court, S.D. Alabama, Southern Division

May 22, 2018

ANGELINA A. TEW on behalf of herself and as Personal Representative and Administratrix of the Estate of Adam Dean Clark, Plaintiff,



         This cause is before the Magistrate Judge for issuance of a report and recommendation, pursuant to 28 U.S.C. § 636(b)(1)(B) and S.D. Ala. GenLR 72(a)(2)(S), on Defendant Fairhope Yacht Club's motion to dismiss with prejudice (Doc. 5), Plaintiff's response in opposition (Doc. 18), and Defendant's reply (Doc. 19). Based upon the contents of these pleadings and of the Complaint (Doc. 1), and consistent with the report and recommendation already entered in Brown v. Fairhope Yacht Club, 18-0061-CG-MU, the Magistrate Judge RECOMMENDS that the Defendant's motion to dismiss with prejudice (Doc. 5) be DENIED.


         On April 13, 2018, Plaintiff Angelina A. Tew ("Plaintiff' or "Tew"), on behalf of herself and as Personal Representative and Administratrix of the Estate of Adam Dean Clark, filed a complaint in this Court against Defendant Fairhope Yacht Club ("Defendant" or "FYC"). (Doc. 1). In her complaint, Tew asserts claims against FYC for the wrongful death of her son. (Id. at 6-8.) Defendant FYC filed the instant motion to dismiss all claims with prejudice on April 17, 2018. (Doc. 5.) Plaintiff filed her response and brief in opposition on May 1, 2018 (Doc. 18), and Defendant its reply on May 15, 2018 (Doc. 19). Briefing has closed (see Doc. 14), so this motion is now ripe for a decision.

         For consideration of this motion to dismiss, Plaintiff's factual allegations have been accepted as true and viewed in the light most favorable to her, see Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009). A summary of those allegations follows.

         On April 25, 2015, Defendant FYC sponsored and hosted the 2015 Dauphin Island Race, a boat race that began in Baldwin County, Alabama, and concluded at Dauphin Island in Mobile County, Alabama. (See Doc. 1, at ¶¶ 4 & 6). In the months leading up to the race, FYC's Race Committee, the group responsible for the planning and safe conduct of the race, chose not to develop any form of safety plan to respond to emergencies that might arise during the race, nor did it create any weather plan to inform its decision-making in the event of severe weather. (Id. at ¶ 5). Before the race, FYC applied to the United States Coast Guard ("USCG" or "Coast Guard") for a permit to conduct the race. (Id. at ¶ 6). In its application, FYC represented to the USCG that no unusual hazards to participants would be introduced into the Regatta Area. (Id.). And while FYC listed no specific vessels it would provide to ensure a safe race, it represented that it deemed its patrol adequate for safety purposes and requested no Coast Guard or Coast Guard Auxiliary Patrol. (Id.)

         The USCG issued the permit and made it clear that FYC was responsible for the safe conduct of the event, including, but not limited to, instruction to and qualification of participants, safety equipment inspections, and rescue and first aid facilities. (Id. at ¶ 7). The Coast Guard also instructed FYC that it "must be constantly aware of weather forecasts and conditions so that unsafe conditions can be identified and responded to, including termination of the event if necessary to ensure safety of all participants." (Id.). The USCG permit specifically stated that: "This permit is issued on the condition that the sponsor furnish a sufficient number of rescue vessels to provide adequate safety for all participants. These vessels must be adequately identified as Event Committee Boats. They are direct representatives of the sponsor who is responsible for briefing and coordinating each vessel 's operation ensuring positive control for the event." (Id.).

         FYC's Principal Race Officer and current Commodore, Anne Fitzpatrick, has previously testified that the FYC is a member of the United States Sailing Association and looks to that entity for guidance. (Id. at ¶ 8). That Association's Race Management Handbook reads, in relevant measure, as follows: "If foul weather threatens, or there is any reason to suspect that the weather will deteriorate-for example, lightning or a heavy squall-making conditions unsafe for sailing or for your operations, the prudent and practical thing to do is abandon the race. . . . [I]n deciding to postpone, shorten, or abandon for foul weather, the race committee's job is to exercise good judgment, not win a popularity contest. Make your decisions based on consideration of all competitors, especially the least experienced or least capable competitors. Don't worry if conditions moderate later and make you look overcautious. Your concern is the safety of participants." (Id.)[1]

         The evening before the race, at 6:11 p.m., the National Oceanic and Atmospheric Administration ("NOAA") issued a weather forecast indicating that severe thunderstorms were possibly headed towards the Mobile Bay area. (Id. at ¶ 10). On the morning of the race, April 25, 2015, at 3:48 a.m., the NOAA's weather forecast indicated severe thunderstorms possible near the Mobile Bay area. (Id. at ¶ 11). The National Weather Service ("NWS") in Mobile also issued severe thunderstorm warnings for Mobile and Baldwin Counties on the morning of the race. (Id.). FYC hosted a breakfast event from 7:30 a.m. to 8:30 a.m. for race participants. (Id.). The race was originally scheduled to begin at 9:30 a.m. (id.); however, at approximately 7:44 a.m. on race day, FYC caused a cancellation notice to be posted on its website for about 30 minutes. The notice stated that the race had been cancelled due to inclement weather (id. at ¶ 12). The cancellation notice was removed at the direction of FYC at about 8:10 a.m. (Id.)[2].

         Before the start of the race, all participants were informed that FYC would communicate with them on Channel 68 of the VHF radio band, as well as by means of flags. (Id. at ¶ 13). Due to FYC's original decision to cancel the race, the start time of the race was delayed and FTC also ordered a restart of the already delayed race that further delayed the official start. (Id. at ¶ 14). The race ultimately began at 11:00 a.m., instead of the originally scheduled 9:30 a.m. start time. (Id.). In all, approximately 476 people were on board 117 boats when the race began after the restart. (Id.).

         At about 1:35 p.m., the Storm Prediction Center posted another severe thunderstorm watch for the Mobile Bay area. (Id. at ¶ 15). At approximately 2:21 p.m., the NWS in Mobile issued another severe thunderstorm warning for Mobile County as a line of storms approached from the western border of Alabama. (Id. at ¶ 16). Around 2:30 p.m., the USCG contacted the FYC's Race Committee aboard the Race Committee Boat at the finish line by phone and advised that potentially severe weather was incoming. (Id. at ¶ 17). Shortly thereafter, the USCG made a VHF radio transmission to the Race Committee Boat stating that it was "on station" nearby. (Id.). At about 2:47 p.m., the NWS issued a second severe thunderstorm warning, this one for the Baldwin County area. (Id. at ¶ 18). At around 3:10 p.m., the storm entered Mobile Bay from the west. (Id. at ¶ 19). As a result of the delayed start, most of the boats in the race were still in Mobile Bay at 3:10 p.m. (Id. at ¶ 20). At approximately 3:15 p.m., Middle Bay Lighthouse recorded a wind gust of 73 MPH, which is one MPH under hurricane strength. (Id. at ¶ 21). Authorities issued marine warnings in addition to land warnings. (Id. at ¶ 22).

         As the deadly storm entered Mobile Bay, Fitzpatrick, FYC's Principal Race Officer, and Race Committee Co-Chairman, John Hirsch, occupied a forty-eight (48) foot motor yacht positioned at the finish line near Dauphin Island. (Id. at ¶ 23). This vessel, owned and/or controlled by Hirsch and/or Fitzpatrick, as representatives of FYC, was capable of safely rendering assistance to nearby boats in danger of sinking. (Id.). However, despite their awareness and warning as to the danger nearby race participants faced, Fitzpatrick and Hirsch chose not to share weather warnings on VHF Channel 68 and chose not to participate in any rescue efforts until the race's scheduled finish time, almost two hours after the storm hit. (Id.; see Id. at ¶ 13). During the storm, the boat carrying Plaintiff's decedent, Adam Clark, capsized on the Mobile County side of Mobile Bay, and Clark drowned. (Id. at ¶ 24). A total of ten (10) boats sank during the race, putting forty (40) people into the water, six (6) of whom, like Adam Clark, lost their lives. (Id.). A total of half the boats in FYC's race fleet were unable to finish the race. (Id.).

         Count One of Plaintiff's Complaint asserts a cause of action for negligence. (Doc. 1, at 6-7). Plaintiff alleges that Defendant sponsored a yacht race and had a duty to exercise due care for race participants. (Id. at ¶ 26). Plaintiff further alleges that FYC's decision to reverse its initial decision to cancel the race due to the threat of inclement weather was negligent, and that its negligence in this regard caused the boat occupied by Adam Clark to be positioned directly in the path of the storm. (Id. at ¶¶ 26-27). Plaintiff also alleges that Defendant negligently induced and incentivized race participants to race in extremely dangerous severe weather, negligently failed to warn the race participants of the approaching severe weather system despite the call from the USCG, and negligently or willfully violated its USCG permit when it failed to provide for sufficient safety and rescue boats, failed to be constantly aware of weather forecasts and conditions so that unsafe conditions could be identified, failed to communicate with participants regarding unsafe conditions, and failed to terminate the event to ensure the safety of all participants. (Id. at ¶¶ 28-30). Plaintiff avers that these actions by FYC constitute breaches of its duty to exercise reasonable or due care as identified in the USCG permit and the United States Sailing Association's Race Management Handbook and, further, that as a proximate consequence, Adam Clark was killed. (Id. at ¶31).

         In Count Two, Plaintiff asserts a cause of action against Defendant FYC for failure to provide assistance at sea as required by 46 U.S.C. § 2304. (Doc. 1, at 7-8). Tew alleges that the co-chairs of FYC's race committee, who were anchored at the finish line aboard a 48-foot motor yacht, were aware or should have been aware of the general location of Clark's vessel and the imminent danger he and the other occupants of the vessel faced and deliberately failed to render assistance to them. Plaintiff Tew alleges further that FYC race representatives were capable of safely rendering assistance to the stranded race participants but chose to do nothing until two hours after the storm had passed, at the scheduled end time of the race, though rescue efforts by other was well underway. (Id. at ΒΆ 33). Plaintiff avers ...

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