Your Summer Recreation May Have Legal Ramifications

Cecil C. Kuhne III

Vacation endeavors seem so deliciously straightforward.

Set up the BBQ grill. Go hunting. Head to the lake. These popular outdoor activities are among the many vacation pursuits practiced every summer by millions of zealous advocates across the country. With so many people participating in this playful arena, here are three cases to consider before you plan your next vacation.

Beware the BBQ

One fine summer day, John Fragala performed his civic duty by volunteering at a cookout sponsored by the Moose Lodge in Rayville, Louisiana. The proceeds raised were to benefit a little league baseball team. The city owned two massive, metal barbecue pits that it lent to nonprofit groups in the area. It should be noted that these were no diminutive grills—each was more than eight feet long and equipped with four heavy doors.

In the course of cooking, Fragala raised one of the doors and placed his right hand into the grill to turn some of the chickens inside. At that very moment, the lid fell abruptly on his hand, fracturing the middle finger and causing severe ligament damage.

Fragala filed a lawsuit for damages against the city, alleging the accident was due to the defective design, construction, and maintenance of the barbecue pit.

At trial, Fragala attempted to prove that the design of the barbecue pit was defective in that the lids, once opened, were unstable and could easily fall, thereby causing injury. He also sought to show that the city of Rayville was aware of this dangerous propensity by presenting a witness who saw one of the lids drop on his uncle several years earlier. Fragala also questioned the mayor of Rayville about an incident in which the mayor himself was cooking on one of the city’s barbecue pits when the lid fell shut and injured his head.

To bolster his case at trial, Fragala presented the testimony of a mechanical engineer who testified that the lids of the barbecue pits weighed approximately 45 pounds each, excluding trim, handles, and smoke stacks. He stated that the opened lids were designed to rest against metal stops, but did so only a few degrees beyond the point at which the lid was balanced vertically on its hinge. The engineer concluded that the barbecue pit doors were clearly defective.

Fragala then offered evidence to show that the city of Rayville had actual or constructive notice of the defect. To do so, he called the mayor of Rayville, who stated that some eight years ago the lid of one of the barbecue pits did fall on his head. But on cross-examination, the mayor admitted that he did not lift the lid all the way back against the metal stop and that the accident was really caused by his own negligence. The mayor also testified that the barbecue pits had been owned by the city for years and that no one else had complained about them.

Fragala then presented the testimony of Ronnie Sanford, an actual witness to the accident. Sanford related that six or seven years prior to the accident, he saw a lid on one of the barbecue pits close shut on his uncle. Curiously enough, Sanford’s uncle was not called to the stand to testify, nor was it shown that he ever reported the accident to city officials.

At the close of the plaintiff’s evidence, the city moved for dismissal of the suit. The trial court—agreeing that the plaintiff had failed to adequately establish his case—granted the defendant’s motion. In the court’s view, the fatal flaw in the plaintiff’s case was the lack of proving notice by the city of a defect in the barbecue pit, along with the observation that the brief testimony of a few prior accidents was inadequate to do so. The plaintiff appealed, but in the end, the appellate court ruled that the trial court had properly acted within its discretion.

The message of the court to Mr. Fragala was crystal clear—the next time you decide to barbecue chicken for the little league, you might want to consider wearing one of their baseball mitts. Fragala v. City of Rayville 557 So. 2d 1118 (La. 1990).

The Hazards of Hunting

The broad, mud-filled waters of the lower Mississippi River are amply dotted with hundreds of thick, vegetated islands. Many of them are notoriously full of wild game, making them prime targets for the trigger-happy aspirations of hunters. For those so inclined, these environs are ideal for stalking deer, and in the Deep South, such ritual outings approach the level of a cultural pastime.

A hunter by the name of Allen Kelly, along with his three sons, desperately wanted to take advantage of these near-ideal hunting conditions, and the four men had their eyes set on a remote and privately owned strip of land called Woodstock Island. Situated in the middle of the Mississippi River, Woodstock had an enviable reputation for hunting greatness. Unfortunately, the Kellys did not have permission to hunt the island, as those privileges were reserved for members of an exclusive, private hunting club.

Clad in camouflage and possessed of all the necessary weapons for a foray in the woods, the four Kellys quietly slipped across the sweeping river toward the dense banks of the island in their motorized, 15-foot, galvanized-aluminum boat. In store lay a day of trespassing at the very least, and if they were as lucky as they hoped, some successful poaching of the massive deer that reportedly inhabited these reaches. Little did the Kellys know that they themselves would soon become the objects of gunfire.

On the day in question, J.C. Smith and a hunting club member named Bledsoe were relaxing at the rustic clubhouse, enjoying the beautiful weather and perhaps an adult beverage or two. Another club member, who just happened to be approaching the island in his small airplane, sighted the Kellys’ boat tied to shore. In an era before cell phones, he wanted to contact Smith and Bledsoe about this unfortunate development, so he dropped from his plane a plastic tube containing a note that informed his colleagues of the suspected trespassers. Smith and Bledsoe immediately headed toward the poachers. The Kellys, now acutely aware that they had been caught in flagrante, scurried toward their small boat in an attempt to flee the island.

As Smith and Bledsoe arrived at the dock, the Kellys’ craft was already in the water, speeding away as quickly as it could under its heavy load. It is undisputed that gunfire eventually ensued, but who actually initiated the altercation is a point where the parties’ stories diverge. Smith and Bledsoe claimed that they politely asked the Kellys to return to the island in order to establish their identity, and that the Kellys responded in an unfriendly way by shooting at them. The Kellys, however, contended it was Smith and Bledsoe who fired the first shots. The lower court believed the Kellys.

In any event, a solid rifle shot from shore was eventually fired across the bow of the Kellys’ boat to signal it to stop. It continued on. The gunners lowered their sights and then fired into the water beside the boat. It throttled away at full speed. The next rounds were apparently fired into the boat, where they solidly struck two of the men inside. The poachers, having suffered serious casualties, then dispatched a few rounds toward the bank in a show of self-defense.

Almost six years later (the court explained that they “had difficulty finding competent counsel”), Allen Kelly and his son, Garland, filed suit for their injuries in federal district court, basing subject matter jurisdiction on the federal courts’ original jurisdiction over admiralty cases. After a nonjury trial, the district court concluded that despite the Kellys’ status as trespassers, the defendants were jointly and severally liable to Allen Kelly for $69,772.40 and to Garland Kelly for $2,593.96.

On appeal, defendants challenged the district court’s exercise of subject matter jurisdiction on the grounds of admiralty. The Fifth Circuit found that the stretch of the Mississippi River where the Kellys were injured was in fact navigable. However, the court determined that admiralty jurisdiction did not arise solely from the fact that the Kellys’ injury occurred on navigable waters while they were inside a boat. Those facts may have been persuasive in granting maritime jurisdiction, but the court also deemed important that the party most seriously injured in the gunfire exchange was the pilot of the boat—the person responsible for safe navigation of the river. The Fifth Circuit also found important the mere fact that the vehicle involved was a boat (not an automobile or an airplane), and that its function was transportation across navigable waters—a traditional role of watercraft. In addition, the other instrumentalities involved—firearms—and the injuries they caused, were deemed not so inherently indigenous to land as to preclude a maritime connection. Moreover, upholding admiralty jurisdiction did not distort long-evolved principles of maritime law. Admiralty has traditionally been concerned with furnishing remedies for those injured while traveling navigable waters.

The court also concluded that public policy militated toward granting admiralty jurisdiction. Rifle fire directed at a vessel, even a small one, on a major commercial artery, and injuring the pilot, presented sufficient danger to maritime commerce for the federal courts of admiralty to assume jurisdiction and furnish remedies to those aboard the vessel and injured by that conduct.

And so, oddly enough, the shoot-out at the O.K. Corral suddenly became . . . a maritime tort. Kelly v. Smith, 485 F.2d 520 (5th Cir. 1973).

A Disaster on the Lake

This is the story of a boating excursion that started out well, but ended badly. Emogene Stull was a 20-year-old secretary employed by the Pentagon. One fine Sunday afternoon she and several others were invited by a friend named Long to cruise down the Potomac.

Mr. Long was no stranger to fast boats. He operated a marina and boat maintenance company, and he owned a 20-foot Century Coronado cruiser with a 250-horsepower engine. He had also recently installed a 230-horsepower engine into a boat owned by Robert Engle—an 18-foot Chris-Craft that had originally been equipped with an engine half that size.

After the installation, Long took Engle’s boat on a number of practice runs, and one of the testing techniques required turning the boat at high speed and crossing its own wake. Long admitted that at one point he momentarily lost control of the boat, so he warned Engle to “feel the new engine out” before running it full out.

On that fateful Sunday afternoon, Long and Engle and their respective passengers decided to race down the river. The two boats were destined for a dining rendezvous at Sweden Point. The day was clear and sunny, but the water was a bit choppy with small three-to-five-inch waves. As they got underway, the boats were moving along briskly at between 30 and 35 miles an hour, and at times they were actually bouncing out of the water.

When the accident occurred, Engle’s boat was in the front, and a motorboat had passed him going the other direction, leaving waves bigger than anything he had encountered since leaving Washington. Engle’s boat crossed the wake, spun wildly out of control, and then promptly overturned. Fearing a collision, Long turned his boat abruptly to the right, causing Ms. Stull, who was adroitly perched on the bow, to fall overboard. The bottom of Engle’s capsized boat collided with the gunwale of Long’s boat.

Ms. Stull remained in the water a long time, where she discovered that her left thumb had been lacerated and was bleeding profusely. Later medical diagnosis revealed that a digital nerve and tendon had been severed, and emergency surgery was performed. A subsequent operation was necessary to remove a tumor produced by the growth of nerve tissue. Stull eventually made some two dozen visits to her doctors, pursued physical therapy, purchased numerous drugs, and lost more than 300 hours of work. According to her surgeon, Stull suffered a permanent 17 percent disability in her thumb and a permanent 25 percent loss of function in her left hand, which apparently caused her difficulty at work and in the ordinary tasks of life.

Stull sued Engle, and the district judge concluded that Engle’s negligence was the sole proximate cause of Stull’s injury and promptly awarded her damages of $21,000.

On appeal, the appellate court held that Engle’s lack of experience in handling his boat formed a sufficient basis for a finding of negligence.

As for the finding that Long was not a contributor to the accident, Engle did not argue that Long was proceeding at too high a rate of speed, that he was following Engle too closely, or that he was not keeping a proper lookout. Engle asserted instead that Long was negligent as a matter of law by hesitating for two or three seconds before turning and by failing to cut his throttle. The court found no evidence that these measures would have avoided the accident.

The last issue before the court was damages. The court was sympathetic to defendant’s argument that a cut on a thumb did not merit an award of $21,000, but the court explained that there was no controlling “rule of thumb” (did the court intend that pun?). Given the evidence that the injury would cause Stull persistent and acute pain for the remainder of her life, the court said it could not hold that the damages were excessive as a matter of law.

To the court, the moral of the case was clear: avoid boats with new, oversized engines in even the mildest chop—especially when the driver is trying to impress young women in swimsuits. Engle v. Stull, 377 F.2d 930 (D.C. Cir. 1967).

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Cecil C. Kuhne III

Cecil C. Kuhne III is an attorney at Norton Rose Fulbright US LLP in Dallas, Texas.