United States District Court, N.D. Ohio, Western Division
G. Carr, Sr. U.S. District Judge
a case within this court's admiralty jurisdiction in
which the jury returned a verdict for the defendant, Linda
Grimsby-the owner and operator of a pleasure craft in which
plaintiff, Nancy Buccina, was a bow seat passenger. The suit
arises from personal injuries Ms. Buccina suffered after
being forcibly lifted from the boat when it struck a
three-foot wake/wave despite defendant's efforts to
reduce from “planing” to “idle” speed
and swerve to avoid hitting the wake/wave head on.
is the plaintiffs' motion for a new trial under
Fed.R.Civ.P. 59(a) and/or a Motion for Judgment
Notwithstanding the Verdict under Fed.R.Civ.P. 50(a). (Doc.
reasons that follow, I grant the motion.
accident occurred on June 10, 2012, as Ms. Grimsby was
operating her seventeen-foot boat downstream on the Maumee
River towards Lake Erie. A Ms. Marie Roy was also a
passenger. According to plaintiffs, the Maumee River was
crowded with boat traffic that particular day, and as traffic
became congested, the boats created choppy wakes/waves as
high as two feet. As the defendant's boat neared the
lake, the number of vessels and the wakes/waves it
encountered grew increasingly larger.
further allege that at a certain point on the Maumee River,
defendant encountered an area where multiple larger vessels
were creating wakes/waves directly ahead of their boat's
path. Suddenly, according to plaintiff, the boat
“struck a wave or wake and pitched violently downward
which caused Plaintiff Buccina to be thrown up from the seat
in the open bow seating area.” (Doc. 1, ¶ 12).
Then, “[w]hile in motion, the Pleasure Boat pitched
upward as Plaintiff Buccina was coming back down due to
gravity.” (Id.). As a result, Nancy's
buttocks compressed against the pleasure boat's bow seat,
resulting in her injuries.
before striking the wake/wave, defendant claims she turned
the boat slightly and slowed down, but despite her efforts,
she could not avoid striking it.
significance to the pending motion and, specifically, to the
issue of liability, is the boat's speed. The parties'
estimates of the boat's speed vary, with Ms. Buccina and
Ms. Roy estimating it to have been in excess of twenty miles
per hour and defendant contending her speed was less. Ms. Roy
testified that shortly before the accident, she told
defendant to be careful. Defendant maintained speed as the
boat approached the wake/wave. In other words, defendant did
not slow down to idle speed as the boat approached the
the impact, Ms. Buccina said she needed medical treatment, so
defendant drove the boat to the Toledo Coast Guard station.
On-duty Coast Guard personnel helped Ms. Buccina out of the
boat, onto a gurney, and into an ambulance, after which she
was taken to the hospital for treatment.
Buccina and her husband, Scot Buccina, filed their complaint
on November 3, 2014, claiming that defendant's negligent
operation of the boat caused their damages. Specifically,
plaintiffs assert claims of negligence, negligence per
se, gross negligence, reckless misconduct, and loss of
December, 2016, I held a jury trial. The jury concluded
defendant was not negligent in her operation of the boat and,
therefore, not liable for plaintiffs'
now seek a new trial on the basis that: 1) I made errors of
law by refusing to apply specific Inland Navigation Rules, to
give a negligence per se instruction, and allow
admission of negligent navigation; 2) the jury's verdict
is against the manifest weight of the evidence; and 3)
defense counsel included an improper argument during closing
review of the parties' briefs, the transcript,
my own recollection and notes, I conclude that the jury's
verdict is against the weight of the evidence, and,
accordingly, I grant the plaintiffs' motion for a new
motion for a new trial under Federal Rule of Civil Procedure
59 may be granted “when a jury has reached a
‘seriously erroneous result' as evidenced by: (1)
the verdict being against the weight of the evidence; (2) the
damages being excessive; or (3) the trial being unfair to the
moving party in some fashion, i.e., the proceedings
being influenced by prejudice or bias.” Holmes v.
City of Massillon, 78 F.3d 1041, 1045-46 (6th Cir.
trial judge, my authority to grant a new trial pursuant to
Rule 59(a) “is large.” Gasperini v. Ctr. for
the Humanities, Inc., 518 U.S. 415, 433 (1996); see
also Id. (“‘The trial judge in the federal
system, ' we have reaffirmed, ‘has . . . discretion
to grant a new trial if the verdict appears to [the judge] to
be against the weight of the evidence.'”) (quoting
Byrd v. Blue Ridge Rural Elec. Coop., Inc., 356 U.S.
525, 540 (1958)). In the Sixth Circuit, “the
disposition of a motion for a new trial is committed to the
sound discretion of the trial judge.” Luck v.
Baltimore & Ohio R.R. Co., 510 F.2d 663, 668 (6th
ruling on a Rule 59 motion, I must view all contested facts
in favor of upholding the jury's verdict and avoid
completely making credibility assessments or weighing the
evidence. E.g., Reeves v. Sanderson Plumbing Prods.,
Inc., 530 U.S. 133, 150-51 (2000).
this case arises within this Court's admiralty
jurisdiction, substantive maritime law applies. E. River
S.S. Corp. v. Transamerica Delaval, Inc., 476 U.S. 858,
elements of a negligence claim under maritime law mirror the
elements of a common law negligence claim-duty, breach,
causation, and damages. Hartley v. St. Paul Fire &
Marine Ins. Co., 118 F. App'x 914, 919 (6th Cir.
2004) (“[U]nder the general maritime law, the elements
of negligence are generally the same as a common law
negligence action, i.e. duty, breach, causation and
damages.”); see also In re: Inland Marine Serv.,
Inc. v. Estates of Stack, 183 F.Supp.3d 844, 851 (S.D.
Ohio 2016); Cornucopia Cruise Line, Inc. v. Cummings
Marine, Inc., 2012 WL 786836, *5 (W. D. Tenn.)
(“‘[N]egligence is an actionable wrong under
general maritime law, ' and its elements are
‘essentially the same as land-based negligence under
common law.'”) (quoting Withhart v. Otto
Candies, L.L.C., 431 F.3d 840, 842 (5th Cir. 2005)).
plaintiffs needed to establish: 1) the existence of a duty of
care owed by defendant to Ms. Buccina; 2) a breach of that
duty by defendant; 3) a causal connection between the breach
and the resulting injury; and 4) damages. In re: Inland
Marine Serv., Inc., supra, 183 F.Supp.3d at 851.
the Inland Navigation Rules, 33 C.F.R. § 83.01 et
seq., “apply to all vessels upon the inland waters
of the United States.” 33 C.F.R. § 83.01(a). The
Rules “impose a duty of care on vessel owners and
operators to operate such vessels under the ‘rule of
good seamenship' and in a safe and seaworthy
manner.” In re: Inland Marine Serv., Inc.,
supra, 183 F.Supp.3d at 851 (internal citation omitted).
persuaded, on the basis of the undisputed facts and testimony
presented at trial, that the jury could reach only one
result, and that is not the result it reached on the issue of
as evidenced by my instruction to the jury, there is no
dispute that defendant owed a duty as a matter of law to Ms.
Buccina-as well as the other passenger-to operate her boat
safely. See, e.g., Kermarec v. Compagnie Generale
Transatlantique, 358 U.S. 625 (1959).
the only remaining issue with respect to the jury's
verdict is whether defendant breached that legal duty-namely,
whether she operated the boat safely (i.e., with due
regard for foreseeable risks)-which I discuss next.
plaintiffs emphasize, “[f]oreseeability is the alpha
and omega of this motion and fatal to Defendant's
opposition and the jury's verdict.” (Doc. 134, 11).
essential question when determining breach-“‘does
not require that the negligent person should have been able
to foresee the injury in the precise form in which it in fact
occurred.'” Adams v. CSX Transp., Inc.,
899 F.2d 536, 540 (6th Cir. 1990) (quoting Green v. River
Terminal Ry. Co., 763 F.2d 805, 808 (6th Cir. 1985)
(internal citation omitted)). Instead, “[a] harm is a
foreseeable consequence of an act or omission if it
‘might have been anticipated by a reasonably thoughtful
person, as a probable result of the act or
omission.'” Cornucopia Cruise Line, Inc.,
supra, 2012 WL at *5 (quoting Great Lakes Dredge
& Dock Co. LLC v. La. State, 624 F.3d 201, 211-12
(5th Cir. 2010) (internal citation omitted)).
the jury reached a seriously erroneous result with respect to
breach-namely, whether defendant should have foreseen or
anticipated the harm caused by the boat's impact with the
wake/wave. To conclude that defendant was not
negligent in her operation of the boat, the jury must have
concluded that a reasonable person in defendant's
position would not have foreseen this consequence-the impact
and plaintiff's injury-as a probable result of her
operation of the pleasure boat at planing speed despite the
water conditions (i.e., the number of other vessels
in the water and the increased wakes/waves formed directly in
the pleasure boat's path) and the warnings of her
passengers. Based on the testimony at trial, this conclusion
is against the manifest weight of the evidence, thus
warranting a new trial.
defendant knew that a wake/wave similar to that which the
pleasure boat struck was foreseeable based on the knowledge
she gained from boating safety courses. At trial, defendant
testified about several boating safety courses taught by the
Coast Guard and the Oakland County Police Department. Those
courses discussed safety protocol and provided instruction on
maintaining safe speed and approaching wakes/waves at
appropriate speeds and angles to avoid potential harm.
of these boating safety courses shows defendant was aware of
the potential harms that could result when encountering a
wake/wave at a high speed. Specifically, defendant testified:
Q. Did the course that you took on boating safety did they
teach you that you shouldn't encounter a wake or a ...