United States District Court, S.D. Alabama, Southern Division
ANGELINA A. TEW on behalf of herself and as Personal Representative and Administratrix of the Estate of Adam Dean Clark, Plaintiff,
FAIRHOPE YACHT CLUB, Defendant.
REPORT AND RECOMMENDATION
BRADLEY MURRAY, UNITED STATES MAGISTRATE JUDGE.
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
BACKGROUND AND COMPLAINT ALLEGATIONS
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
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.
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.)
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
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
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.
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.).
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).
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.).
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).
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 ¶
33). Plaintiff avers ...