Gabrielle Prange v. Ernest Posey, Progressive Security Insurance Company, David Forly, Abc Insurance Copmany & Xyz Insurance Company

GABRIELLE PRANGE * NO. 2022-CA-0702

VERSUS * COURT OF APPEAL

ERNEST POSEY, * FOURTH CIRCUIT
PROGRESSIVE SECURITY
INSURANCE COMPANY, * STATE OF LOUISIANA
DAVID FORLY, ABC
INSURANCE COPMANY & *
XYZ INSURANCE COMPANY
*
*******

JCL LOBRANO, J., CONCURS IN THE RESULT AND ASSIGNS REASONS

I respectfully concur in the affirmation of the district court’s judgment.

While I agree with the result, I find that the district court erred in finding that the

passenger of the 2002 Aquasport motorboat, Plaintiff Gabrielle Prange, “should

have been aware of the conditions of the Perdido Pass and what she needed to do

with respect to her own safety.” The district court’s reasoning suggests that Prange

assumed the risk of being on the boat, even though Louisiana abandoned the

assumption of the risk doctrine for its comparative fault regime. See Doe v.

McKesson, 21-00929, p. 13 (La. 3/25/22), 339 So.3d 524, 535 (citing Murray v.

Ramada Inns, Inc., 521 So.2d 1123, 1132 (La. 1988)). Moreover, it is unnecessary

to assess Prange’s fault, if any, as I find that the Defendants were not negligent

because Prange’s injury was not reasonably foreseeable.

The duty rests on the owner or operator of the boat to exercise reasonable

care for the safety of the guest passengers and to avoid exposing them

unreasonably to danger. See Wall v. Progressive Barge Line, Inc., 97-0665, p. 10

(La. App. 4 Cir. 10/29/97), 703 So.2d 681, 688; Day v. Touchard, Inc., 97-1180, p.

10 (La. App. 5 Cir. 5/27/98), 712 So.2d 1072, 1076-77 (citing Kermarec v.

Compagnie Generale Transatlantique, 358 U.S. 625, 630, 79 S.Ct. 406, 409, 3

L.Ed.2d 550 (1959); Stephens v. Pacific Employers Ins. Co., 525 So.2d 288, 291

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(La. App. 1st Cir. 1988)). The scope of the owner or operator’s duty, however, is

restricted to the reasonably foreseeable consequences of their conduct. The

resulting harm to the complaining party must be reasonably foreseeable. Populis v.

State Dep't of Transportation & Dev., 16-655, 16-656, 16-657, 16-658, p. 14 (La.

App. 5 Cir. 5/31/17), 222 So.3d 975, 985; Scharfenstein v. Avena Shipping of

Cyprus, 13-497, p. 19 (La. App. 5 Cir. 12/12/13), 131 So.3d 256, 269. In maritime

torts, a harm is not foreseeable unless it “might have been anticipated by a

reasonably thoughtful person, as a probable result of the act or omission…”

Scharfenstein, 13-497, p. 21, 131 So.3d at 270 (emphasis added)(quoting In re

Great Lakes Dredge & Dock Co. LLC, 624 F.3d 201, 211-12 (5th Cir.

2010)(stating that a defendant must have “knowledge of a danger, not merely

possible, but probable”)(internal quotations omitted)).

The boat owner, Defendant Ernest Posey, and the operator, Defendant David

Forly, had the duty to assess the risk of danger to the passengers when it was

decided to navigate the boat through Perdido Pass toward the Gulf of Mexico on a

busy summer afternoon. I find that there was insufficient evidence to prove that the

wake from the yacht, which was the proximate cause of Prange’s injuries, was

reasonably foreseeable by the owner or operator of the boat prior to navigating

Perdido Pass. If there were sufficient evidence of the foreseeability of dangerous

wakes or rough waters associated with Perdido Pass, then the owner or operator of

the boat would be negligent in failing to instruct Prange to move from the bow of

the boat to a safer location on the boat while navigating Perdido Pass. An owner

and operator of a boat owe to passengers the duty of exercising reasonable care

under the circumstances of each case. Day, 97-1180, p. 10, 712 So.2d at 1076-77.

Although they may make a reasonable decision to undertake a trip through Perdido

Pass, if it was shown that the risk of danger to the passengers was greater due to

the dangerous nature of Perdido Pass, then consequently, the duty of the owner or

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operator to attend to the comfort and safety of the passengers would have been,

quite reasonably, heightened. However, no such showing was made at the trial in

this matter, and the elements of negligence were not satisfied on these facts.

Accordingly, I concur in the result.

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