Est of Robt Thomas v. Amer River Transp ( 2009 )

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 09a0032n.06
Filed: January 15, 2009
Nos. 07-5467, 07-5468
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
JESSE HURD, :
:
Plaintiff-Appellant/Cross-Appellee, :
: ON APPEAL FROM THE
v. : UNITED STATES DISTRICT COURT
: FOR THE WESTERN DISTRICT OF
: TENNESSEE, WESTERN DIVISION
AMERICAN RIVER TRANSPORTATION :
CO.; KENNY WELCH, :
:
Defendants-Appellees/Cross-Appellants.:
BEFORE: BOGGS, Chief Judge; and CLAY, Circuit Judge; BERTELSMAN, District
Judge.*
BERTELSMAN, District Judge:
Plaintiff-appellant Jesse Hurd appeals the district court’s “Order of Judgment and the
Order Denying Motion for Judgment as a Matter of Law, In the Alternative, Motion for New
Trial and Motion for Additeur [sic] of the Plaintiff’s [D]amages.”1 The defendants-appellees
cross-appeal arguing that the trial court erred: 1) in ruling defendant Welch was negligent as a
matter of law; 2) in making certain evidentiary rulings; and 3) in denying their motion for costs.
*
The Honorable William O. Bertelsman, United States District Judge for the Eastern
District of Kentucky, sitting by designation.
1
This characterization of the district court’s entry is taken from Hurd’s notice of appeal.
(JA 103).
1
With respect to the issues raised by Hurd’s appeal, we hold that sufficient evidence existed to
support the trial court’s decision to submit the issue of comparative negligence to the jury and
that it did not err in denying the motion for a new trial or in instructing the jury. Therefore, we
affirm the district court on these issues. With respect to the issues raised by the defendants’
cross-appeal, we affirm the district court’s denial of costs and dismiss for lack of jurisdiction the
remaining issues regarding the claims of the Estate of Robert Thomas, Jr.
The evidence established that Hurd had a ski boat in his possession that was in need of
repair. Hurd hired Robert Thomas, Jr. to perform the needed repairs. After Thomas performed
some initial work, the two men took the boat out on McKellar Lake for a test run. The boat’s
engine stopped working, and the boat had to be pulled back to shore by another boat. After
Thomas performed some additional repairs, the men took the boat out on the Mississippi River
for another test run. Despite their prior experience at McKellar Lake, the men did not equip the
boat with a backup starter or trolling motor, oars or paddles, a marine radio, warning flags, or an
air horn. Nor did they take a cell phone with them.
Approximately 15-20 minutes after the boat was launched into the river, the engine
stopped running. Hurd testified that, although they were adrift in the river, he did not perceive
any immediate danger because he looked around and did not see anything troublesome. At the
time, however, the M/V COOPERATIVE ENTERPRISE, a tow boat, was heading upriver
pushing 35 empty barges, five across and seven deep.
Defendant Kenny Welch, who was operating the tow boat, testified that, when he first
noticed Hurd’s ski boat, it was not in his direct path and he did not consider its presence unusual.
Welch did not notice anything about the boat or its occupants that indicated that they were in
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distress. As Welch got closer, he noticed the ski boat had moved into the barges’ path. Welch
put his tow boat in reverse to slow the momentum of the barges and tried to radio the plaintiffs,
but received no response. Welch also blasted his danger signal and observed the boat through
binoculars, but its occupants did not seem alarmed. Welch testified that he had previously
experienced boats drifting near the barges but then they sped away as the barges neared. The ski
boat drifted in front of the barges. Prior to the boat’s making contact with the lead barge, the
plaintiffs jumped, with only Hurd wearing a life jacket.
Nearby, the Spencer family was fishing in their boat. Mr. Spencer, being a former tow
boat operator, testified that he was not initially concerned for the plaintiffs’ safety because they
did not appear to be in distress and he had in the past observed boaters drifting near a barge and
speeding away. Upon hearing the danger horn, Mr. Spencer tried to assist the plaintiffs. He saw
the plaintiffs jump, tried to rescue both, but was only successful in rescuing Hurd. Mr. Thomas
drowned.
Hurd and the Estate of Robert Thomas, Jr. filed separate suits in the United States District
Court for the Western District of Tennessee, based on diversity as well as admiralty and maritime
jurisdiction, which the district court consolidated. Eventually, the matter proceeded to a jury
trial. The first jury was unable to return a verdict on either claim, resulting in a mistrial. After
the mistrial, the district court ruled that the defendants were negligent as a matter of law by not
yielding the right of way to the disabled boat. At the conclusion of a second trial, the jury
returned a verdict finding that Hurd was fifty-percent at fault as were the defendants, and finding
damages in the amount of $60,000. The second jury could not reach a verdict on Thomas’s
claims and the court entered a mistrial in his case and severed the cases.
3
Pursuant to Tennessee law, Hurd could not recover any damages because the jury found
Hurd and the defendants equally at fault. McIntyre v. Balentine, 833 S.W.2d 52, 57 (Tenn.
1992). Hurd filed a motion for judgment as a matter of law or, in the alternative, motion for a
new trial, arguing that there was no evidence from which the jury could have found he was
negligent. The district court disagreed and denied the motion, entering judgment pursuant to the
jury’s verdict for the defendants.
We hold that the evidence presented at trial was sufficient to support the jury’s verdict
that Hurd was fifty-percent at fault.2 The issue was one of fact and there was evidence from
which the jury could reasonably find that: 1) given Hurd’s experience on McKellar Lake, he did
not properly equip the boat; 2) he did not wave his arms or otherwise alert others that the boat
was in distress; and 3) the Mississippi River was not an appropriate place to test the boat.
Accordingly, we hold that the issue of comparative fault was properly submitted to the jury, and
that the district court did not err in concluding that the jury’s verdict was not against the weight
of the evidence. Thus, the district court did not abuse its discretion in denying Hurd’s motion for
a new trial.
We also hold that Hurd waived, except for plain error, his challenge to the jury
instructions because he failed to object at trial. Fed. R. Civ. P. 51(d). The district court timely
remedied the copying error that occurred in the first set of instructions and the instructions were
2
We disagree with Hurd that the jury acted inconsistently in finding him fifty-percent
negligent while being unable to reach a verdict on Thomas’s case. The factual issues in
Thomas’s case were significantly different from Hurd’s given the fact Thomas did not wear a life
jacket. Thomas was also more experienced in boating on the Mississippi River than Hurd.
Further, the failure to reach a verdict regarding one of the plaintiffs cannot be inconsistent
because there was no verdict. See United States v. Sasser, 974 F.2d 1544, 1560-61 (10th Cir.
1992). Cf. United States v. Shipp, 359 F.2d 185, 189 (6th Cir. 1966).
4
adequate under the facts of this case. Therefore, we hold that Hurd’s claims lack merit.
As to the defendants’ cross-appeal, we hold that the district court did not abuse its
discretion in denying defendants’ motion for costs under Federal Rule of Civil Procedure
54(d)(1).3 As the district court noted, the jury found both parties fifty-percent at fault and
awarded monetary damages to Hurd. This was a “close and difficult case” and one with which
the district court was very familiar, having conducted a previous trial wherein the jury was
unable to reach a verdict. Knology, Inc. v. Insight Communications Co., 460 F.3d 722, 728-29
(6th Cir. 2006). There is also no evidence that Hurd did not act in good faith. The district court
concluded that each party should bear his/its own costs. We hold that the district court did not
abuse its discretion in not awarding costs to the defendants.
We do not have jurisdiction over the defendants’ remaining issues4 because, based on our
decision regarding Hurd’s claims, these issues will impact only the retrial of the claims of the
Estate of Robert Thomas, Jr. Not only is the Estate of Robert Thomas, Jr. not a party before this
court, but these issues are not the subject of a final appealable order. Therefore, we have no
jurisdiction over the remaining issues raised in the cross-appeal.
3
Federal Rule of Civil Procedure 54(d)(1) provides, in relevant part:
(d) Costs; Attorney's Fees.
(1) Costs Other Than Attorney's Fees. Unless a federal statute, these rules, or a court
order provides otherwise, costs--other than attorney's fees--should be allowed to the
prevailing party.
See also 28 U.S.C. § 1920.
4
The defendants also assert in their cross-appeal that the trial court erred in: 1) ruling that
the defendants were negligent as a matter of law; 2) ruling that Mr. Spencer could not testify as
an expert; and 3) admonishing the jury to view Mrs. Spencer’s testimony with greater suspicion
because she had talked to her husband about his experience testifying before she testified.
5
For the reasons discussed above, the judgment of the district court is AFFIRMED.
6