United States District Court, D. South Carolina, Charleston Division
ORDER AND OPINION
Richard Mark Gergel United States District Court Judge
the Court is Defendants' Motion for Summary Judgment
(Dkt. No. 34). For the reasons set forth below, the motion is
action arises out of a 2006 Mako Marine 234 ("the
Boat") that capsized in July 2015. Plaintiff Keith
Brian Judy purchased the Boat approximately ten days before
the accident on July 2, 2015 from Robert Youmans, a prior
owner of the Boat. (Dkt. No. 34-3 at 16.) A few days after
purchasing the Boat, Plaintiff took the Boat out on Lake
Santee, where the Boat's battery running a radio for
music died. (Id. at 18.) Plaintiff stated he
recharged the Boat's batteries after the battery died,
though did not take other corrective action. (Id. at
date of the incident, a few days later, Plaintiff and two
passengers launched the Boat in Mt. Pleasant, South Carolina.
(Dkt. Nos. 34-3 at 20 - 21, 29, 32; 34-5 at 3.) It was the
first time Plaintiff had taken the Boat into the ocean. (Dkt.
No. 34-3 at 20.) The batteries died when Plaintiff and his
passengers were approximately 20 - 25 miles offshore.
(Id. at 60 - 61.) After the batteries died, the
bilge-pump did not work without power and Plaintiff does not
recall seeing the bilge pumps working. (Id. at 27,
44.) Further, the Boat's VHF radio was unable to reach
anyone and Plaintiff had no emergency radio or other
emergency communication device. (Id. at 31, 45, 48.)
The boat ultimately took on water and capsized, at which
point Plaintiff and his passengers floated in the ocean for
22 hours before being rescued by the Coast Guard.
(Id. at 57; 34-5.)
now move for summary judgment, arguing that Plaintiff has
failed to create any dispute of material fact that Defendants
caused the Boat to capsize. (Dkt. No. 34-1.) Plaintiff
opposes summary judgment, and Defendants filed a reply. (Dkt.
Nos. 35, 36.) Additionally, Defendants moved to strike an
affidavit by Neil Haynes, Plaintiffs expert, filed with
Plaintiffs response to summary judgment, arguing the
affidavit contradicts Haynes' report and testimony. (Dkt.
No. 37.) Plaintiff opposes the motion, and Defendants filed a
reply. (Dkt. Nos. 38, 39.)
prevail on a motion for summary judgment, the movant must
demonstrate that there is no genuine issue of any material
fact and that the movant is entitled to judgment as a matter
of law. Fed.R.Civ.P. 56(a). The party seeking summary
judgment has the burden of identifying the portions of the
"pleadings, depositions, answers to interrogatories, any
admissions on file, together with the affidavits, if any,
which show there is no genuine issue as to any material fact
and that the moving party is entitled to judgment as a matter
of law." Celotex Corp. v. Catrett, 477 U.S.
317, 322 (1986). The Court will construe all inferences and
ambiguities against the movant and in favor of the non-moving
party. U.S. v. Diebold, Inc., 369 U.S. 654, 655
(1962). The existence of a mere scintilla of evidence in
support of the non-moving party's position is
insufficient to withstand a motion for summary judgment.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252
(1986). However, an issue of material fact is genuine if the
evidence is such that a reasonable jury could return a
verdict in favor of the non-movant. Id. at 257.
the moving party has carried its burden under Rule 56(c), its
opponent must do more than simply show that there is some
metaphysical doubt as to the material facts."
Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,
475 U.S. 574, 586 (1986). "In the language of the Rule,
the nonmoving party must come forward with 'specific
facts showing that there is a genuine issue for
trial.'" Id. at 587. "Where the record
taken as a whole could not lead a rational trier of fact to
find for the non-moving party, there is no 'genuine issue
for trial.'" Id. (quoting First
Nat 7 Bank of Ariz. v. Cities Serv. Co., 391
U.S. 253, 289 (1968)).
brings three products liability claims against Defendants:
negligence, strict liability and breach of warranty. (Dkt.
No. 5.) Plaintiff alleges, generally, that his injuries were
proximately caused by Defendants' defective manufacture,
design and warnings contained on the Boat. (Id.)
Plaintiff asserts his claims under admiralty law.
(Id. at ¶ 5.) As the alleged tort occurred in
navigable waters, Plaintiffs tort claims for negligence and
strict liability fall under admiralty law. See Mahony v.
Lowcountry Boatworks, LLC, 465 F.Supp.2d 547, 550
(D.S.C. 2006) ("The traditional test for admiralty tort
jurisdiction asked only whether the tort occurred on
navigable waters. If it did, admiralty jurisdiction followed;
if it did not, admiralty jurisdiction did not exist.")
quoting Jerome B. Grubart, Inc. v. Great Lakes Dredge
& Dock Co., 513 U.S. 527, 531-32, 115 S.Ct. 1043
(1995); Ace Am. Ins. Co. v. Grand Banks Yachts,
Ltd., 587 F.Supp.2d 697, 700 (D. Md. 2008) (applying
admiralty law to negligence and strict liability actions).
However, breach of warranty claims are tried under the
Court's diversity jurisdiction and therefore state law
applies. See E. River S.S. Corp. v. Transamerica Delaval,
Inc., 476 U.S. 858, 872, 106 S.Ct. 2295, 2303 (1986)
("Since contracts relating to the construction of or
supply of materials to a ship are not within the admiralty
jurisdiction...neither are warranty claims grounded in such
contracts.... State law would govern the actions.")
(citations omitted). It is undisputed that the Boat was
purchased in South Carolina. (See Dkt. Nos. 34-3 at
16, 19, 52; 34-4 at 3.) Therefore, South Carolina law applies
to the breach of warranty claim.
under any of these claims a plaintiff must be able to present
evidence that there was some defect and that the alleged
defect was the cause of the damages. See Dandridge v.
Crane Co., No. 2:12-CV-00484-DCN, 2016 WL 319938, at *2
(D.S.C. Jan. 27, 2016) (citing standards for negligence and
strict liability, "[u]nder maritime law, a manufacturer
is liable for 'harm caused by a product sold in a
defective condition unreasonably dangerous.' ...
"Under any theory of product liability, plaintiff must
establish causation with respect to each defendant
manufacturer."); Evergreen Int'l, S.A. v.
Norfolk Dredging Co., 531 F.3d 302, 308 (4th Cir. 2008)
("The elements of a maritime negligence cause of action
are essentially the same as land-based negligence under the
common law, free of 'inappropriate common law
concepts.'") (citations omitted); First State
Sav. & Loan v. Phelps, 299 S.C. 441, 448, 385 S.E.2d
821, 825 (1989) (holding for breach of express warranty,
plaintiff must show: " the existence of the warranty,
 its breach by the failure of the goods to conform to the
warranted description, and  damages proximately cause by
the breach."); Brooks v. GAF Materials Corp.,
41 F.Supp.3d 474, 482 (D.S.C. 2014) ("To recover for
breach of the implied warranty of merchantability, a
plaintiff must prove (1) a merchant sold goods; (2) the goods
were not 'merchantable' at the time of sale; (3) the
plaintiff or his property were injured by such goods; (4) the
defect or other condition amounting to a breach of the
implied warranty of merchantability proximately caused the
injury; and (5) the plaintiff so injured gave timely notice
to the seller.").
however, Plaintiff has failed to present any non-speculative
testimony or record evidence indicating that there was a
defect or that the alleged defect proximately caused
Plaintiffs injuries here. The sole evidence presented by
Plaintiff regarding the existence of a defect and its
proximate cause of the injuries here comes from Neil Haynes,
Plaintiffs expert. (Dkt. Nos. 34-2; 35-2.) Haynes'
opinion focuses on the alleged lack of a watertight seal on
the fish boxes in the Boat, which allegedly permitted water
to accumulate in the bilge. (Dkt. No. 35-2 at 6.)
Haynes was unable to testify or opine to more than a
"possibility" that any defect actually existed with
the Boat. (See Dkt. No. 34-2 at 31 - 31, "Q:
So, in your opinion, it's a possibility that those gaps
occurred because of the application procedure... A: It's
a possibility"; "Q: Is it fair to say that, at
least in terms of engineering probability or certainty, that
you don't know when those gaps happened or why? A: I do
not."). In one telling exchange, Haynes acknowledged
that he ...