Matthews v. Howell

CATHELL, Judge. Marcia Ault, appellant, the personal representative of the estate of Kimberly Matthews, decedent, and Lawrence Matthews, appellant, the father and next friend of Brittany and Travis Matthews, the children of Kimberly Matthews, brought two claims against Stephen Howell, appellee, in the Circuit Court for Anne Arundel County. The first claim was a survivors’ action alleging negligence and the second claim alleged Ms. Matthews’ wrongful death. Because the allegations in the complaint involved Ms. Matthews’ drowning while a guest on a boat captained by appellee, appellants relied on maritime law which is applicable under the “saving to suitors” clause of the Judiciary Act of 1789, codified in 28 U.S.C. § 1333 (1) (1994). 1 This appeal generally involves whether the circuit court should have applied maritime law.

The circuit court ruled it should not and granted summary judgment to ¹⁵⁷ appellee. We hold that the circuit court should have applied maritime law and, accordingly, reverse. I. Background Appellee, who operated a mortgage company, visited Robert and Deborah Parks, personal friends, on September 18, 1996, to take pictures of their home. Ms. Matthews, a friend of Ms. Parks, was visiting the Parks home.

Appellee invited all three to join him that evening on his boat, a 38-foot, 1984 Wellcraft. Scarab. All four met at Oak Grove Marina on the South River, from which they eventually boated to Cantler’s Riverside Inn on Mill Creek. They arrived around 9 to 9:30 p.m., and stayed until approximately 11 to 11:30 p.m., watching the Baltimore Orioles game.

During that time, all four consumed a variety of alcoholic drinks. En route back to Oak Grove Marina, appellee operated the boat from the helm on the starboard (right) side, while Ms. Parks and Ms. Matthews were standing on deck. Ms. Parks stood on the port (left) side, while Ms. Matthews stood in the middle. Mr. Parks went below to light a cigarette.

By now, the conditions had worsened: the wind had increased, the water had gotten choppy, and it was dark. While traversing the Chesapeake Bay near Greenbury Point, the boat had been traveling at a planing speed of about forty knots. At some point, appellee abruptly throttled back thereby slowing the boat. He then announced to Ms. Matthews that he wanted to take a quick swim, and dove into the Bay, jumping from the seat at the helm.

Appellee and the witnesses differ on whether the boat engines were still engaged and, if so, whether the boat was in gear or drifting in neutral. 2 The boat ¹⁵⁸ apparently was not anchored. Appellee did not ask anyone to take the helm or to post watch. No one knows how or why, but Ms. Matthews went into the water immediately after appellee. Ms. Parks apparently was not paying attention when Ms. Matthews hit the water.

Mr. Parks was still below deck and appellee was already in the water and did not see Ms. Matthews dive or fall in after him. Some evidence in the record indicates that Ms. Matthews may have said earlier in the evening that she would like to take a swim. Other evidence, included in a report prepared by appellant’s proposed expert witness, indicates that she may have fallen into the Bay, perhaps because of the shift in the boat’s plane after appellee dove into the water. Either way, as soon as Ms. Matthews hit the water, she began to panic.

All three witnesses were deposed prior to the trial court’s award of summary judgment. Their versions of what happened after Ms. Matthews went into the water differ. In his deposition, appellee claimed that, after he jumped into the Bay, he attempted to board the boat by stepping on the “trim tab” on the stern (rear) of the boat. It was at this point that he heard a splash and Ms. Matthews scream for help.

Appel-lee claims that Ms. Matthews was about twenty feet from the boat. He stated that he tried to rescue Ms. Matthews, but, in her state of panic, she resisted. Ms. Parks threw him and Ms. Matthews a life jacket, but she missed and the wind blew it away. Ms. Parks then jumped in the water in an attempt to save the other two.

Mr. Parks came from down below and began to maneuver the boat toward the three in the water. Appellee claims that he dragged Ms. Matthews and Ms. Parks to the port side of the boat. He grabbed a cleat with his left hand, while facing toward the stern. He shouted to Mr. Parks to put the boat in neutral, but it continued to move and appellee could not hold on to the cleat.

He also stated that he grabbed a spotlight hanging from the port side of the boat, which was plugged into a lighter at the starboard helm, but the spotlight cord ripped out of the lighter and sank into the water. Eventually, he was separated from the women and ¹⁵⁹ drifted away before being rescued by Mr. Parks. He and Mr. Parks then recovered Ms. Parks from the water. Ms. Parks, in her deposition, stated that Ms. Matthews was about five feet from the boat when she heard her scream.

She too described throwing the only life jacket she could find to Ms. Matthews, which the wind blew away. Ms. Parks then jumped into the water. After her husband brought the boat astern toward the swimmers, Ms. Parks claims that she and Ms. Matthews were on the starboard side of the boat, separated from appellee, who was on the port side. Contrary to appellee’s claim that he grabbed the spotlight on the port side and ripped it out, Ms. Parks stated that she grabbed the spotlight and it ripped out, leaving her and Ms. Matthews to drift.

Her statements also differ in that she claims her husband pulled appellee out of the water at that point. Although not specifically asked about the matter, Ms. Parks did not describe any attempt by appellee to rescue Ms. Matthews. Mr. Parks deposition reflects that he did not see either alleged rescue attempt. After helping appellee and Ms. Parks into the boat, Mr. Parks called 911 on appellee’s cellular phone at 11:55 p.m.

A United States Coast Guard boat arrived at 12:38 a.m., on September 19, followed by a Maryland Department of Natural Resources boat at 1:10 a.m., and a helicopter, all of whi.ch conducted a search for Ms. Matthews. The search was unsuccessful. Two days later, on September 21, 1996, after receiving a call from a passing boater, the Department of Natural Resources recovered Ms. Matthews’ body, which was fully clothed, including her boots. An autopsy revealed that the cause of death was drowning.

Appellants subsequently brought suit against appellee in the Circuit Court for Anne Arundel County, alleging that maritime law applied pursuant to the “saving to suitors” clause of 28 U.S.C. § 1333 (1). Two claims were brought: (1) a surviv- or’s claim alleging appellee’s negligence in a number of matters, and (2) a wrongful death claim based on the same alleged ¹⁶⁰ acts. 3 Appellee subsequently moved for summary judgment, which the circuit court granted, ruling that (1) appellee was not negligent in his operation of the boat; (2) maritime law did not apply; (3) appellee had no duty to rescue Ms. Matthews under Maryland law; and (4) appellee owed Ms. Matthews no other duty of care under Maryland law and did not proximately cause her death. Appellants filed a timely appeal to the Court of Special Appeals, and we granted a writ of certiorari on our motion prior to proceedings before the lower appellate court. They present two issues to this Court: I. Did the trial court err in refusing to apply federal maritime law to the wrongful death and survivorship negligence claims against the owner/operator of a pleasure boat arising out of a drowning of a guest in the navigable waters of the United States?

II

Did the trial court err in its factual findings and in concluding that no genuine issue as to any material fact existed and that as a matter of law the owner of a pleasure craft owed no duty to his guest under Maryland law? ¹⁶¹ II. Standard of Review The purpose of the summary judgment procedure is not to try the case or to decide the factual disputes, but to decide whether there is an issue of fact, which is sufficiently material to be tried. See Goodwich v. Sinai Hosp. of Baltimore, Inc., 343 Md. 185, 205-06 , 680 A.2d 1067, 1077 (1996); Coffey v. Derby Steel Co., 291 Md. 241, 247 , 434 A.2d 564, 567-68 (1981); Berkey v. Delia, 287 Md. 302, 304 , 413 A.2d 170, 171 (1980). In reviewing the grant of a summary judgment motion, we are concerned with whether a dispute of material fact exists and, if not, whether the movant is entitled to judgment as a matter of law.

Hartford, Ins. Co. v. Manor Inn of Bethesda, Inc., 335 Md. 135, 144 , 642 A.2d 219, 224 (1994); Gross v. Sussex, Inc., 332 Md. 247, 255 , 630 A.2d 1156, 1160 (1993); Beatty v. Trailmaster, 330 Md. 726, 737 , 625 A.2d 1005, 1011 (1993); Arnold Developer, Inc. v. Collins, 318 Md. 259, 262 , 567 A.2d 949, 951 (1990); Bachmann v. Glazer & Glazer, Inc., 316 Md. 405, 408 , 559 A.2d 365, 366 (1989); King v. Bankerd, 303 Md. 98, 110-11 , 492 A.2d 608, 614 (1985) (citations omitted). “A material fact is a fact the resolution of which will somehow affect the outcome of the case.” King, 303 Md. at 111 , 492 A.2d at 614 (citing Lynx, Inc. v. Ordnance Prods., Inc., 273 Md. 1, 8 , 327 A.2d 502, 509 (1974)). “[A] dispute as to facts relating to grounds upon which the decision is not rested is not a dispute with respect to a material fact and such dispute does not prevent the entry of summary judgment.” Salisbury Beauty Schools v. State Bd. of Cosmetologists, 268 Md. 32, 40 , 300 A.2d 367, 374 (1973). Once the moving party has provided the court with sufficient grounds for summary judgment, the nonmoving party must produce sufficient evidence to the trial court that a genuine dispute to a material fact exists. See, e.g., Hoffman Chevrolet, Inc. v. Washington County Nat’l Sav.

Bank, 297 Md. 691, 712 , 467 A.2d 758, 769 (1983). The trial court, in accordance with Maryland Rule 2-501(e), shall grant a motion for summary judgment “if the motion and response show that there is no genuine dispute as ¹⁶² to any material fact and that [the moving party] is entitled to judgment as a matter of law.” This Court also has stated that “[t]he standard of review for a grant of summary judgment is whether the trial court was legally correct.” . Goodwich, 343 Md. at 204 , 680 A.2d at 1076 ; see also King v. Board of Educ. of Prince George’s County, 354 Md. 369, 376 , 731 A.2d 460, 464 (1999); Murphy v. Merzbacher, 346 Md. 525, 530-31 , 697 A.2d 861, 864 (1997); Hartford Ins. Co., 335 Md. at 144 , 642 A.2d at 224 ; Gross, 332 Md. at 255 , 630 A.2d at 1160 ; Heat & Power Corp. v. Air Prods. & Chems., Inc., 320 Md. 584, 592 , 578 A.2d 1202, 1206 (1990) (citations omitted).

We review the trial court’s legal conclusions in a summary judgment order de novo. See Green v. H & R Block, Inc., 355 Md. 488, 502 , 735 A.2d 1039, 1047 (1999); Calomiris v. Woods, 353 Md. 425, 434 , 727 A.2d 358, 362 (1999).

III

When is Maritime Law Applicable? Originally, maritime or admiralty law was applicable when any claim arose upon the navigable waters of the United States. See The Plymouth, 70 U.S. (3 Wall) 20, 36, 18 L.Ed. 125 (1866) (“Every species of tort, however occurring, and whether on board a vessel or not, if upon the high seas or navigable waters, is of admiralty cognizance.”). That longstanding rule changed, however, with the United States Supreme Court’s decision in Executive Jet Aviation, Inc. v. City of Cleveland, 409 U.S. 249 , 93 S.Ct. 493 , 34 L.Ed.2d 454 (1972).

Executive Jet Aviation involved an aviation claim, in which a plane taking off from a runway at a municipal airport, hit a flock of birds, lost engine power, and crashed into Lake Erie, sinking to its bottom. The plaintiffs in that case sought damages under traditional maritime jurisdiction. The Supreme Court, finding the exercise of maritime jurisdiction over a plane crash to be too tenuous, established a “nexus” test whereby, to exercise maritime jurisdiction, a court must find, not only that the action accrued upon or in navigable waters, but that the incident alleged in the claim bears a “significant relationship to traditional maritime activity.” Id. at 268 , 93 ¹⁶³ S.Ct. at 504, 34 L.Ed.2d 454 . In reaching that new test, the Supreme Court reasoned: This locality test ... was established and grew up in an era when it was difficult to conceive of a tortious occurrence on navigable waters other than in connection with a waterborne vessel....

But it is the perverse and casuistic borderline situations that have demonstrated some of the problems with the locality test of maritime tort jurisdiction.... Other serious difficulties with the locality test are illustrated by cases where the maritime locality of the tort is clear, but where the invocation of admiralty jurisdiction seems almost absurd. If a swimmer at a public beach is injured by another swimmer or by a submerged object on the bottom, or if a piece of machinery sustains water damage from being dropped into a harbor by a land-based crane, a literal application of the locality test invokes not only the jurisdiction of the federal courts, but the full panoply of the substantive admiralty law as well.... [Some] courts ... have held in such situations that a maritime locality is not sufficient to bring the tort within federal admiralty jurisdiction, but that there must also be a maritime nexus.... ... More recently, commentators have actively criticized the rule of locality as the sole criterion for admiralty jurisdiction, and have recommended adoption of a maritime relationship requirement as well.

Id. at 254-57 , 93 S.Ct. at 497-99 , 34 L.Ed.2d 454 . The Supreme Court also noted that “another indictment of [the locality] test is to be found in the number of times the federal courts and the Congress, in the interests of justice, have had to create exceptions to it in the converse situation—ie., when the tort has no maritime locality, but does bear a relationship to maritime service, commerce, or navigation.” Id. at 259 , 93 S.Ct. at 500 , 34 L.Ed.2d 454 . This included applying the doctrine of seaworthiness and the Jones Act, 46 U.S.C. App. § 688 (1994), which regulated injuries to seamen, to land- ¹⁶⁴ based acts conducted for the purpose of maritime commerce. The Court also noted the “Extension of Admiralty Jurisdiction Act,” 46 U.S.C. § 740 , which allows maritime jurisdiction when a waterborne vessel causes damage to a person or thing on land.

These various exceptions to the locality rule led the Court to believe that “reliance on the relationship of the wrong to traditional maritime activity is often more sensible and more consonant with the purposes of maritime law than is a purely mechanical application of the locality test.” Id. at 261 , 93 S.Ct. at 501 , 34 L.Ed.2d 454 . Ultimately, the Court held that [i]t is far more consistent with the history and purpose of admiralty to require also that the wrong bear a significant relationship to traditional maritime activity. We hold that unless such a relationship exists, claims arising from airplane accidents are not cognizable in admiralty in the absence of legislation to the contrary. Id. at 268 , 93 S.Ct. at 504 , 34 L.Ed.2d 454 .

Ten years later, the Supreme Court discussed maritime jurisdiction again in Foremost Insurance Co. v. Richardson, 457 U.S. 668 , 102 S.Ct. 2654 , 73 L.Ed.2d 300 (1982), a case in which two pleasure boats collided, resulting in the death of a passenger in one of the boats. The Court held that the collision was actionable under federal maritime jurisdiction. Id. at 674 , 102 S.Ct. at 2658 , 73 L.Ed.2d 300 . In doing so, the Court rejected the insurer’s argument that the traditional maritime activity involved in the claim has to be commercial in nature.

The Court stated: [Tjhere is no requirement that “the maritime activity be an exclusively commercial one.” ... ... This argument is premised on the faulty assumption that, absent this relationship with commercial activity, the need for uniform rules to govern conduct and liability disappears, and “federalism” concerns dictate that these torts be litigated in the state courts. ... This [federal] interest can be fully vindicated only if all operators of vessels on navigable waters are subject to ¹⁶⁵ uniform rules of conduct.... For example, if these two boats collided at the mouth of the St. Lawrence Seaway, there would be a substantial effect on maritime commerce, without regard to whether either boat was actively, or had been previously, engaged in commercial activity.

Furthermore, admiralty law has traditionally been concerned with the conduct alleged to have caused this collision by virtue of its “navigational rules—rules that govern the manner and direction those vessels may rightly move upon the waters.” The potential disruptive impact of a collision between boats on navigable waters, when coupled with the traditional concern that admiralty law holds for navigation, compels the conclusion that this collision between two pleasure boats on navigable waters has a significant relationship with maritime commerce. Id. at 674-75 , 102 S.Ct. at 2658 , 73 L.Ed.2d 300 (citation omitted) (footnote omitted). Thus, the Court held that “[b]e-cause the ‘wrong’ here involves the negligent operation of a vessel on navigable waters, ... it has a sufficient nexus to traditional maritime activity to sustain admiralty jurisdiction. ...” Id. at 674 , 102 S.Ct. at 2658 , 73 L.Ed.2d 300 . The Court recognized that its holding was made “(i]n light of the need for uniform rules governing navigation, the potential impact on maritime commerce when two vessels collide on navigable waters, and the uncertainty and confusion that would necessarily accompany a jurisdictional test tied to the commercial use of a given boat....” Id. at 677 , 102 S.Ct. at 2659 , 73 L.Ed.2d 300 .

The next major Supreme Court case discussing maritime jurisdiction was Sisson v. Ruby, 497 U.S. 358 , 110 S.Ct. 2892 , 111 L.Ed.2d 292 (1990). Sisson involved a fire that started on a yacht moored at a marina on Lake Michigan, which destroyed the yacht, and damaged the marina and several other boats nearby. The Sisson Court noted that Foremost Insurance had created two essential prongs to the “nexus” test: (1) that the incident caused a “potential hazard to maritime commerce” and (2) that the actions surrounding the incident bore a “substantial relationship to traditional maritime activi ¹⁶⁶ ty.” Id. at 362 , 110 S.Ct. at 2895-96 , 111 L.Ed.2d 292 . Regarding the “potential hazard” element, the Court reasoned: Certainly, such a fire has a potentially disruptive impact on maritime commerce, as it can spread to nearby commercial vessels or make the marina inaccessible to such vessels.... ...

We determine the potential impact of a given type of incident by examining its general character. The jurisdictional inquiry does not turn on the actual effects on maritime commerce of the fire on Sisson’s vessel; nor does it turn on the particular facts of the incident in this case, such as the source of the fire or the specific location of the yacht at the marina, that may have rendered the fire on the Ultorian more or less likely to disrupt commercial activity. Rather, a court must assess the general features of the type of incident involved to determine whether such an incident is likely to disrupt commercial activity. Here, the general features—a fire on a vessel docked at a marina on navigable waters—plainly satisfy the requirement of potential disruption to commercial maritime activity.

Id. at 362-63 , 110 -S. Ct. at 2896, 111 L.Ed.2d 292 (third emphasis added). The Court then discussed the second element that the alleged incidents substantially relate to a traditional maritime activity: Our cases have made clear that the relevant “activity” is defined not by the particular circumstances of the incident, but by the general conduct from which the incident arose.... Were courts required to focus more particularly on the causes of the harm, they would have to decide to some extent the merits of the causation issue to answer the legally and analytically antecedent jurisdictional question. Thus, in this case, we need not ascertain the precise cause of the fire to determine what “activity” Sisson was engaged in; rather, the relevant activity was the storage and maintenance of a vessel at a marina on navigable waters. ...

Moreover, a narrow focus on navigation would not serve the federal policies that underlie our jurisdictional ¹⁶⁷ test. The fundamental interest giving rise to maritime jurisdiction is “the protection of maritime commerce,” and we have said that that interest cannot be fully vindicated unless “all operators of vessels on navigable waters are subject to uniform rules of conduct”. The need for uniform rules of maritime conduct and liability is not limited to navigation, but extends at least to any other activities traditionally undertaken by vessels, commercial or noncommercial. Id. at 364-67 , 110 S.Ct. at 2897-98 , 111 L.Ed.2d 292 (second emphasis added) (citations omitted) (footnote omitted).

Thus, in Foremost Insurance and Sisson , the Supreme Court recognized that examining an incident for the purposes of maritime jurisdiction is not to be done by subjecting the minutia of a case to the “potential hazard” and “traditional maritime activity” tests; rather, the “general” aspects of the case are to be reviewed under the two prongs. At the same time, those tests are to be defined somewhat liberally. A “potential hazard” to maritime commerce need not include an actual hazard in the case at hand. The “potential hazard” can also be hypothetical, though not fantastical.

A “traditional maritime activity” may include any maritime-related activity, not just marine navigation. In its most recent discussion of maritime jurisdiction, Jerome B. Grubart, Inc. v. Great Lakes Dredge & Dock Co., 513 U.S. 527 , 115 S.Ct. 1043 , 130 L.Ed.2d 1024 (1995), the Supreme Court applied the “nexus” test in this more liberal manner. In that case, the Court reviewed whether maritime jurisdiction applied to a construction accident in the Chicago River, which caused several downtown Chicago buildings to flood. The tortfeasor, Great Lakes Dredge & Dock, had contracted with the City of Chicago to replace pilings around the piers of several bridges spanning the river.

The impact from driving the pilings into the riverbed apparently caused structural damage to a City-owned freight tunnel running underneath the river, which subsequently caused the flooding. The Court reviewed the facts under the rationale of Sisson : ¹⁶⁸ The first Sisson test turns ... on a description of the incident at an intermediate level of possible generality. To speak of the incident as “fire” would have been too general to differentiate cases; at the other extreme, to have described the fire as damaging nothing but pleasure boats and their tie-up facilities would have ignored, among other things, the capacity of pleasure boats to endanger commercial shipping that happened to be nearby. We rejected both extremes and instead asked whether the incident could be seen within a class of incidents that posed more than a fanciful risk to commercial shipping.

Following Sisson , the “general features” of the incident at issue here may be described as damage by a vessel in navigable water to an underwater structure. So characterized, there is little question that this is the kind of incident that has a “potentially disruptive impact on maritime commerce.” As it actually turned out in this suit, damaging a structure beneath the riverbed could lead to a disruption in the water course itself; and, again as it actually happened, damaging a structure so situated could lead to restrictions on the navigational use of the waterway during required repairs. Id. at 588-39, 115 S.Ct. at 1051 , 130 L.Ed.2d 1024 (citation omitted). Regarding the second Sisson test, the Court held that “the ‘activity giving rise to the incident’ in this suit, should be characterized as repair or maintenance work on a navigable waterway performed from a vessel.

Described in this way, there is no question that the activity is substantially related to traditional maritime activity....” Id. at 540, 115 S.Ct. at 1051 , 130 L.Ed.2d 1024 (citation omitted). IY. Is Maritime Law Applicable in this Case? The parties do not dispute, as they cannot, that the Chesapeake Bay is a navigable waterway of the United States.

Thus, the “locality” test for the application of federal maritime law is satisfied. The trial court below did not address the first prong of the “nexus” test, i.e., whether the incident surrounding the drowning created a potential hazard to maritime ¹⁶⁹ commerce. Appellee does not challenge appellants’ argument that the potential hazard test applies. Noting this, in addition to the facts of the case, we conclude that the “potential hazard” test has been satisfied.

During the incident, appellee had stopped his boat in the middle of a major shipping waterway, the Chesapeake Bay. His boat remained adrift in that waterway while Mr. Parks rescued him and Ms. Parks, which, according to the depositions, took approximately twenty minutes. The parties remained adrift in the area while search parties arrived. Those search parties in turn spent a great amount of time scouring the area of the navigable waterway for Ms. Matthews.

Although there is no evidence of any actual disruption of maritime commerce, travel by any other vessel through that portion of the Chesapeake Bay would have been restricted by the search effort. See Polly v. Estate of Carlson, 859 F.Supp. 270, 272 (E.D.Mich.1994) (“That men were overboard in an emergency situation by itself is likely to disrupt commercial activity; this event ordinarily occasions both air and sea searches and rescue operations. Similarly, leaving a vessel to float unmanned in open water has the potential to disrupt commercial navigation.” (citations omitted)). Moreover, the search effort by the Coast Guard and the Maryland Department of Natural Resources Police for a person who has gone overboard from a vessel is a traditional maritime activity, in and of itself, as the maritime history of the country, i.e., its lifesaving stations and rescue activities, indicates.

The dispute in this case thus revolves around whether appellee’s actions, or omissions, were “substantially related to a traditional maritime activity” under the second “nexus” test. We note initially that appellee argues that this test does not apply because he “was not engaged in commercial shipping at the time of the accident.” While this may be true in fact, it is clearly incorrect, if not disingenuous, to analyze the case in purely commercial terms after Foremost Insurance and Sis-son. See also Yamaha Motor Corp. v. Calhoun, 516 U.S. 199, 206 , 116 S.Ct. 619, 623 , 133 L.Ed.2d 578 (1996) (noting that admiralty jurisdiction existed when a jet skier was killed after ¹⁷⁰ striking another vessel). As those cases point out, the need for uniform rules of maritime conduct, and the potential to disrupt others involved in commercial