Turner v. United States , 2:09–CV–37–BO.

869 F.Supp.2d 685

Susan C. TURNER, individually and as Administratrix of the Estate of Roger W. Turner, Jr., Plaintiff,

v.UNITED STATES of America and United States Coast Guard, Defendants.

No. 2:09–CV–37–BO.

United States District Court,

E.D. North Carolina,

Northern Division.

June 8, 2012.

Cynthia M. Currin, Crisp, Page & Currin, LLP, Raleigh, NC, for Plaintiff.

Douglas M. Hottle, Bruce A. Ross, U.S. Dept. of Justice, Washington, DC, for Defendants.

ORDER

TERRENCE WILLIAM BOYLE, District Judge.

This matter is before the Court on the United States' Motion for Summary Judgment[DE 133]. Plaintiff responded on May 1, 2012 [DE 137] and again on May 4, 2012 [DE 147]. The United States replied on May 18, 2012 [DE 151] and the motion is now ripe for adjudication. Because there is no genuine dispute as to any material fact and Defendants are entitled to judgment as a matter of law, the Motion for Summary Judgment is GRANTED.

BACKGROUND

This case arises from a tragic set of facts. Plaintiff Susan C. Turner brought this personal injury action brought under the Suits in Admiralty Act, 46 U.S.C. §§ 30901–30918 (“SIAA”), for injuries she sustained after she fell from her boat into the Albemarle Sound. Ms. Turner and her husband, Roger W. Turner, Jr., were returning from a Fourth of July party in their boat when Ms. Turner fell overboard, at around 9:00 p.m. on July 4, 2007. Soon thereafter, Ms, Turner lost sight of her husband in their boat. She eventually came ashore twelve hours later, around 9:20 a.m. on July 5, 2007. Mr. Turner, already deceased, was discovered on the morning of July 7, 2007.

Ms. Turner alleges that the United States Coast Guard was negligent in its handling of the search for the Turners, resulting in physical and psychological injuries to Ms. Turner. The facts relevant to this motion, as established in affidavits provided by the parties, are as follows:

On July 4, 2007, Mr. and Ms. Turner boarded their private twenty-foot long Maycraft boat from their home on the Little River, which was next door to Mr. Turner's father's home. Mr. Roger Turner, Sr., in discussing his son's holiday plans, had learned that the Turners would either be going to the Pasquotank River, the Perquimans River, or Mann's Harbor. In fact, they traveled to a party at the home of Mr. and Ms. Lonnie Bunch on the Perquimans River that night. Mr. Roger Turner, Sr. became concerned when his son and daughter-in-law did not return by 9:30 p.m. and attempted calling their cell phones, beginning at around 10:45 p.m. They did not answer. He continued calling, without success, until around 12:45 a.m. on July 5. At that time, he called 911 and spoke with a representative of the Pasquotank County Sheriff's Office. That office relayed the information given by Mr. Turner, Sr. to the Coast Guard's District 5 command center which, in turn, relayed the information to the command center at Coast Guard Sector North Carolina, at about 1:00 a.m. on July 5.

The Coast Guard called Mr. Turner, Sr. to obtain additional information. During that call, Mr. Turner, Sr. informed the Command Duty Officer, Chief Petty Officer Sudsberry, that his son had indicated that the Turners might be going to the Perquimans River, the Pasquotank River, or to Mann's Harbor. He also mentioned the possibility that the Turners had gone to a friend's cabin at another location. Later that morning, Chief Sudsberry called Mr. Turner, Sr. to inform him that the lack of specific information about the Turners' whereabouts and the current lack of available search assets resulted in a decision that the Coast Guard should not, at that time, initiate an active search for the Turners' overdue boat.

At around 1:00 a.m., a helicopter that was engaged in a search for an overdue jet ski was headed up the Pasquotank River to Elizabeth City to refuel. The Sector Command Duty Officer directed the helicopter crew to look for the Turners' boat as it flew over the Pasquotank River. The helicopter crew did not see any evidence of the Turners or their boat on the Pasquotank River,

At around 8:30 a.m. on July 5, Mr. Lonnie Bunch, the host of the Fourth of July party attended by the Turners before the accident, received a call from a friend indicating that the Coast Guard was making calls to try to locate the Turners' boat. Mr. Bunch took his own boat up the Perquimans River to look for the Turners. At approximately 9:00 a.m., he discovered the Turners' boat on Reed Point. The boat was empty and the lights, GPS, depth finder, and radio on. The engine was off, the throttle was in neutral, and two cell phones, a wallet, and Ms. Turner's purse were in the console. Mr. Bunch called a friend to notify the Coast Guard that the Turners' boat had been found without anyone on board. Upon learning this information, the Coast Guard Sector North Carolina Command Duty Officer reclassified the incident from a “possible overdue” to an “overdue distress” case and launched air and sea assets to search for the Turners. Ms. Turner came ashore shortly thereafter, at around 9:20 a.m. on July 5, 2007 in Hertford, North Carolina. By her account, she had remained afloat in the Perquimans River and Albemarle Sound by swimming, treading water, and holding on to crab pot buoys. Mr. Turner was found, deceased, at the water's edge in Hertford on the morning of July 7, 2007.

DISCUSSION

Standard of Review

Federal Rule of Civil Procedure 56 provides that summary judgment shall be granted if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247–48, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). The Court must view the facts and draw reasonable inferences in a light most favorable to the nonmoving party. Matsushita Elec. Indus., Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). The moving party bears the initial burden to show the court that there is no genuine issue concerning any material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The non-moving party must then show that there is “evidence from which a jury might return a verdict in his favor.” Anderson, 477 U.S. at 257, 106 S.Ct. 2505.¹

In order to establish a prima facie case for maritime negligence, a plaintiff must establish that (1) the government owed her a duty of care, (2) the government breached that duty, and (3) the government's breach of duty was a proximate cause of the plaintiff's injuries. McMellon v. United States, 338 F.3d 287, 293 (4th Cir.2003)( McMellon I ),vacated en banc on other grounds,387 F.3d 329 (4th Cir.2004)( McMellon II ). In its motion for summary judgment, the United States argues that Ms. Turner is unable to establish a prima facie negligence case because (1) the United States owed no duty to search for Ms. Turner; and (2) when the Coast Guard did initiate a search for Ms. Turner (July 5 at 10:00 a.m., when the Turners' boat was discovered without anyone on board), she was already safely ashore. Even if the Coast Guard initiated a search before 10:00 a.m. on July 5, the United States argues that there is no evidence that it acted recklessly or wantonly, or that its actions worsened Ms. Turner's condition. It also argues that the United States would not be liable for its discretionary decisions as to when to initiate a search, how many search assets and personnel to commit, or the methods and procedures used in search and rescue.

I. The Coast Guard Does Not Have A Duty To Undertake A Rescue.

The United States is immune from suit, except insofar as it has consented to be sued through waiver of its sovereign immunity. United States v. Sherwood, 312 U.S. 584, 586, 61 S.Ct. 767, 85 L.Ed. 1058 (1941). The Suits in Admiralty Act (“SIAA”), 46 U.S.C. §§ 30901–30918, is the exclusive waiver of sovereign immunity for maritime torts that do not involve public vessels. Sagan v. United States, 342 F.3d 493, 497 (6th Cir.2003). In order for a suit to fall within this waiver of sovereign immunity, a plaintiff must show that the United States would be liable under maritime tort law for the same conduct. Sagan, 342 F.3d at 497–98. Further, the United States cannot be held to a different standard than a private person. McMellon II, 387 F.3d at 340. In other words, contrary to Ms. Turner's assertions, federal agency guidance and internal government manuals cannot create duties of care to the public. See, e.g., Thompson v. United States, 592 F.2d 1104, 1110 (9th Cir.1979).

The Suits in Admiralty Act incorporates a discretionary function exception that mirrors the scope of the discretionary function exception set forth in the Federal Tort Claims Act, 28 U.S.C. § 1346(b), §§ 2671–2680. McMellon II, 387 F.3d at 349. The Federal Tort Claims Act's discretionary function exception provides that its waiver of sovereign immunity does not apply to:

Any claim based upon an act or omission of an employee of the Government, exercising due care, in the execution of a statute or regulation, whether or not such statute or regulation be valid, or based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a federal agency, or an employee of the Government, whether or not the discretion involved be abused.

28 U.S.C. § 2680(a). The discretionary function applies if the challenged conduct (1) involved “an element of judgment or choice” and (2) was “grounded in social, economic, or political policy.” United States v. S.A. Empresa de Viacao Rio Grandense, 467 U.S. 797, 813–14, 104 S.Ct. 2755, 81 L.Ed.2d 660 (1984). When an agent's challenged decision falls within the discretionary function exception, a court must dismiss the claims for lack of subject matter jurisdiction. Indem. Ins. Co. of N. Am. v. United States, 569 F.3d 175, 180 (4th Cir.2009). In such a case, subject matter jurisdiction is...