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CHOAT v. KAWASAKI MOTORS CORP.2/23/1996
On Application for Rehearing
The opinion of May 27, 1994, is withdrawn and the following is substituted therefor.
Thomasine Choat appeals from an adverse summary judgment in her action seeking damages for the alleged wrongful death of her daughter, Connie Johnson. We reverse and remand.
The evidence suggests the following: On July 15, 1991, 18-year-old Connie Johnson and her friend Lania Moore were relaxing on inflatable floats approximately 50 feet from the shoreline of a slough in Wilson Lake, an impoundment of the Tennessee River. In the same slough, 13-year-old Michael Fields was operating a "Kawasaki Jet Ski." Michael made a number of "playful" passes close to the floats in order to "splash" the girls. Brief of Appellee, at 4. On one of the passes, the Jet Ski struck Connie in the head. She fell from her float and disappeared beneath the surface. A diver subsequently located Connie's body in approximately 22 feet of water and retrieved it from the bottom of the slough. At the time of Connie's death, she was unmarried and had no dependents.
On April 23, 1992, Thomasine Choat filed a wrongful death action against Kawasaki Motors Corporation, Kawasaki Heavy Industries, Ltd., and Kawasaki Motors Manufacturing Corporation, U.S.A. ("collectively referred to as Kawasaki"), and a number of individual defendants. Her claims against Kawasaki sought damages based on allegations of negligence, wantonness, and liability under the Alabama Extended Manufacturer's Liability Doctrine. Kawasaki moved for a summary judgment, contending that the claims were subject to admiralty jurisdiction and arguing that under maritime law nondependents may not recover in a wrongful death action punitive damages or damages for loss of society. The trial court entered a summary judgment in favor of Kawasaki, and Choat appealed. On appeal, Choat contends (1) that maritime law does not apply to her action, and, alternatively, (2) that its application does not supersede the remedies provided by the Alabama Wrongful Death Act, Ala. Code 1975, ยง 6-5-391.
I. Jurisdiction
Admiralty jurisdiction would be proper in this case if the incident of which Choat complains meets two criteria set forth by the United States Supreme Court. First, the type of incident involved must "potential[ly affect] maritime commerce." Sisson v. Ruby, 497 U.S. 358, 363, 110 S.Ct. 2892, 2896, 111 L.Ed.2d 292 (1990). Second, the type of activity involved must bear " 'a substantial relationship to traditional maritime activity.' " Id. at 362, 110 S.Ct. at 2895 (quoting Foremost Insurance Co. v. Richardson, 457 U.S. 668, 675 n. 5, 102 S.Ct. 2654, 2658 n. 5, 73 L.Ed.2d 300 (1982)).
A. Potential Effect
To determine the "potential effect on maritime commerce," we must imagine an incident of the same general character as the incident under consideration as having occurred, not in the location in which it actually occurred, but in the busiest conceivable sea lane. From that premise, we must then postulate the possible effect on commercial
shipping of the occurrence in that latter location. Sisson, 497 U.S. at 363, 110 S.Ct. at 2896 ("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"); Price v. Price, 929 F.2d 131, 135 (4th Cir. 1991) (under Foremost and Sisson, "we must project more generally the composite genre of the tort or its essential elements and determine whether traditional maritime commerce will be affected"). Thus, in Foremost, the Court held that a collision on the Amite River in Louisiana between an "eighteen foot pleasure boat" towing a water skier and
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