Louisiana Fourth Circuit Court of Appeals Affirms Judgment for Operator of Recreational Vessel in Personal Injury Suit

Prange v. Posey, 2023 La. App. LEXIS 348 *; 2022-0702 (La.App.4 Cir. 02/28/23); 2023 WL 2335924 (Feb. 28, 2023) 

            The Louisiana Court of Appeal for the Fourth Circuit recently affirmed a judgment in favor of the defendants Posey, who owned the vessel, and Forly, the operator. Suit was also filed against Progressive Paloverde Insurance Company.[1] The plaintiff, Posey, was a passenger on the vessel and was injured when the operator encountered a large wake produced by a large yacht in Perdido Bay, Alabama.[2] Posey was on the bow of the vessel and fractured her spine. After a three-day trial, the trial judge issued judgment in favor of the defendants and concluded that the defendants owed no duty under General Maritime Law to the claimant.[3]

            The appeal panel consisted of Judges Lobrano, Johnson and Ervin-Knott. Judge Johnson wrote the opinion affirming the trial court in which Judge Ervin-Knott joined. Judge Lobrano wrote a concurring opinion.

            Judge Johnson addressed each of the five assignments of error in order and concluded that in finding that the defendants did not breach the standard of reasonable care was not clearly erroneous.[4]The trial court was correct in its determination that there was no breach of the duty of reasonable care.[5]The trial judge relied more heavily on the testimony of the defendants’ expert and rejected much of the testimony of the plaintiff’s expert.[6] This does not constitute manifest error.[7]

            Prange asserted that the defendants violated the Inland Navigational Rules of the Road which raised the presumptions of the Pennsylvania Rule.[8] This presumption requires the violation of a statutory rule which was not the case.[9] The trial court was correct in finding there was no statutory violation and thus correct in not applying the Pennsylvania Rule.[10]

            Next, the appeal court addressed the guest passenger presumption and that the trial court applied the assumption of risk doctrine to deny recovery.[11] The claimant also “mischaracterized” the trial court’s analysis as an application of the assumption of risk doctrine.[12] The trial judge took into consideration the claimant’s knowledge of the boating to assess whether the defendants breached a duty of care and found they did not.[13]

            In concurring, Judge Lobrano stated that the trial court suggests the plaintiff assumed the risk finding the claimant “should have been aware of the conditions in Perdido Pass.”[14] He opines that Louisiana abandoned assumption of risk in its comparative fault tort regime.[15] (However, as noted by Judge Johnson, federal maritime law applies to the instant suit.[16] Assumption of risk is not a defense under the comparative fault regime of federal maritime law.)[17] In any event, Judge Lobrano concluded that the injury was foreseeable.[18]

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[1] 2023 La. App. LEXIS 348 *1.

[2] Id. at *2.

[3] Id. at *3-4.

[4] Id. at *13.

[5] Id. 

[6] Id. Judge Johnson noted that the trial judge “express[ed} concerns as to the accuracy and reliability of Captain Casey's testimony.”

[7] Id. 

[8] Id. at *14.

[9] Id. 

[10] Id. at *15.

[11] Id.

[12] Id. at *16.

[13] Id. at *17.

[14] Id. at *24.

[15] Id. 

[16] Id. at *6.

[17] See: Schoenbaum, ADMIRALTY AND MARITIME LAW, §§ 4, 12, 13, 14 (West, 5th ed. 2001).

[18] Op. cit. at *23.