Case Document 1 Filed 02/07/18 Page 1 of 9 IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF ALABAMA JANE BROWN, on behalf of herself and as Personal Representative and Executrix of the Estate of Jimmie Charles Brown Plaintiffs, CIVIL ACTION NO: vs. FAIRHOPE YACHT CLUB Defendant. COMPLAINT Statement of the Parties 1. Plaintiff, Jane Brown, is the widow of Jimmie Charles Brown and the Personal Representative and Executrix of the Estate of Jimmie Charles Brown. She is an adult resident of Mobile, Mobile County, Alabama. 2. Defendant Fairhope Yacht Club (?the Yacht Club?) is an Alabama Domestic Non-Profit Corporation, with its principle place of business located at 101 Volanta Avenue, Fairhope, Alabama 36532, and mailing address of P. O. Box 1327, Fairhope, Alabama 36533? 1327. 3. This Court has subject matter jurisdiction over this case under the General Maritime Law of the United States, as the facts and circumstances giving rise to Plaintiffs? causes of action occurred in navigable waters and bear a substantial relationship to traditional maritime activity. Statement of the Facts 4. On April 25, 2015, the Defendant sponsored and hosted a boat race that began in Case Document 1 Filed 02/07/18 Page 2 of 9 Baldwin County, Alabama, and concluded in Mobile County, Alabama, at Dauphin Island. 5. In the months leading up to the race, the Yacht Club?s Race Committee, the group responsible for the planning and safe conduct of the race, chose not to develop any form of safety plan to respond to emergencies that might arise during the race, nor did the Committee create any weather plan to inform its decision-making in the event of severe weather. 6. The Yacht Club also applied to the United States Coast Guard for a permit to conduct the 2015 Dauphin Island Race. In its application, the Yacht Club represented to the USCG that no unusual hazards to participants would be introduced into the Regatta Area. While the Yacht Club listed no vessels it was providing for safety purposes on its USCG permit application, it represented that its deemed its patrol adequate for safety purposes, and requested no Coast Guard or Coast Guard Auxiliary Patrol. 7. In issuing a permit to the Yacht Club, the USCG made it clear that the Yacht Club is responsible for the safe conduct of the event, including, but not limited to, instruction to and quali?cation of participants, safety equipment inspections, and rescue and ?rst aid facilities. The Coast Guard also instructed the Yacht Club that it ?must be constantly aware of weather forecasts and conditions so that unsafe conditions can be identified and responded to, including termination of the event if necessary to ensure safety of all participants.? The Coast Guard permit specifically stated that: ?This permit is issued on the condition that the sponsor furnish a suf?cient number of rescue vessels to provide adequate safety for all participants. These vessels must be adequately identi?ed as Event Committee Boats. They are direct representatives of the sponsor who is responsible for briefing and coordinating each vessel?s operation ensuring positive control for the event.? 8. On the night before the boat race, the Yacht Club hosted a party from 5:00 pm to Case Document 1 Filed 02/07/18 Page 3 of 9 1 1:00 pm for race participants at which alcohol was provided. The Yacht Club incentivized race participants with trophies and winner?s lists that are prestigious in the yachting community. The Yacht Club also solicited sponsorships for the race that placed pressures on the Yacht Club to not cancel the race. 9. The National Oceanic and Atmospheric Administration?s (NOAA) weather forecast issued on April 24. 2015 at 6:11 pm indicated that severe thunderstorms were possibly headed towards the Mobile Bay area. 10. On the morning of the race, April 25, 2015, weather forecast at 3:48 am indicated severe thunderstorms possible near the Mobile Bay area. The National Weather Service in Mobile, AL also issued severe thunderstorm warnings for Mobile and Baldwin Counties the morning of the yacht race. The Yacht Club then hosted a breakfast event from 7:30 am to 8:30 am for race participants at which alcohol was provided and/or encouraged. The race was scheduled to begin at 9:30 am. 11. At approximately 7:44 am on the day of the race, the Yacht Club caused a cancellation notice to be posted on its website for about 30 minutes stating that the race had been cancelled due to inclement weather. The cancellation notice was removed at the direction of the Yacht Club at about 8:10 am. 12. Prior to the start of the race, all participants were informed that the Yacht Club would communicate with race participants on Channel 68 of the VHF radio band. 13. Due to the Yacht Club?s original decision to cancel the race, the start time was delayed. The Yacht Club also ordered a restart of the already delayed race that further delayed the of?cial start. The race began at 11:00 am instead of the originally scheduled 9:30 am start time. In all, approximately 476 people were on board 117 boats when the yacht race began after Lo.) Case Document 1 Filed 02/07/18 Page 4 of 9 the restart. 14. At about 1:35 pm, the Storm Prediction Center posted another severe thunderstorm watch for the area including Mobile Bay. 15. At about 2:21 pm the National Weather Service in Mobile issued another severe thunderstorm warning for Mobile County as a line of storms began to approach from the western border of Alabama. 16. At approximately 2:30 pm the United States Coast Guard called the Race Committee aboard the Race Committee Boat at the ?nish line via telephone and advised that potentially severe weather was incoming. Sometime shortly thereafter, the USCG made a VHF radio transmission to the Race Committee Boat stating that it was ?on station? nearby. 17. At about 2:47 pm the National Weather Service issued a second severe thunderstorm warning, this one for the Baldwin County area. 18. At about 3:10 pm the storm entered Mobile Bay from the west. 19. As a result of the delays, most of the boats in the race were still in Mobile Bay at 3: 10 pm. 20. At about 3:15 pm Middle Bay Lighthouse recorded a wind gust of 73 MPH, which is one MPH under hurricane strength. 21. In addition to the land warnings, marine warnings were also issued. 22. As the deadly storm entered Mobile Bay, the Yacht Club?s Principal Race Of?cer, Anne Fitzpatrick, and Race Committee Co-Chairman, John Hirsch, occupied a forty-eight (48) foot motor yacht positioned at the ?nish line near Dauphin Island. This vessel, owned and/or controlled by Mr. Hirsch and/or Ms. Fitzpatrick as representatives of the Yacht Club, was capable of safely rendering assistance to nearby boats in danger of sinking. However, despite Case Document 1 Filed 02/07/18 Page 5 of 9 their awareness of the danger faced by nearby race participants, Ms. Fitzpatrick and Mr. Hirsch chose not to participate in any rescue efforts until the storm had passed. 23. During the storm, the boat carrying J.C. Brown capsized in the Mobile County side of Mobile Bay, and he drowned. A total of ten (10) boats sank during the yacht race, putting forty (40) people into the water, six (6) of whom, like J.C. Brown, lost their lives. 24. .C. Brown?s body was never recovered. COUNT ONE Wrongful Death/Negligence 25. Plaintiffs Jane Brown realleges paragraphs one through twenty-four of the Complaint. 26. At the aforementioned time and place, Defendant Fairhope Yacht Club sponsored a yacht race and had a duty to exercise due care for race participants. The Yacht Club negligently chose to reverse its decision to cancel the race due to the threat of inclement weather. 27. The negligent decision by the Yacht Club to cancel and then resume the race resulted in a delay of one and a half (1 V2) hours in the start of the race, which caused the boat occupied by J.C. Brown to be positioned directly in the path of the storm, on the Mobile County side of Mobile Bay. 28. By not cancelling or suspending the race when severe weather was possible, and then imminent, because of its own concerns to satisfy its obligations to sponsors and others, the Yacht Club continued to negligently induce and incentivize race participants to race in extremely dangerous severe weather. 29. During the race, the Defendant also negligently failed to warn the race participants of the approaching severe weather system of which it was aware. 30. The Yacht Club also negligently or willfully violated its USCG permit by not Case Document 1 Filed 02/07/18 Page 6 of 9 providing for suf?cient safety and rescue boats, by failing to be constantly aware of weather forecasts and conditions so that unsafe conditions could be identi?ed, by not communicating with participants regarding unsafe conditions, and by not terminating the event to ensure the safety of all participants. 31. These actions were a breach of the Yacht Club?s duty to exercise reasonable or due care as identi?ed in the applicable USCG permit and the US Sailing Association?s Race Management Handbook. As a proximate consequence of the negligence of Defendant airhOpe Yacht Club, J.C. Brown was killed. COUNT TWO Failure to Provide Assistance at Sea 32. Plaintiff Jane Brown realleges paragraphs one through thirty-one of the Complaint. 33. When the storm entered Mobile Bay, John Hirsch and Anne Randy Fitzpatrick, as the skippers or persons in charge of the Yacht Club Race Committee Boat anchored at the ?nish line, bore a duty under 46 U.S.C.A. 2304 to render assistance to nearby vessels, including the one occupied by .C. Brown. Mr. Hirsch and Ms. Fitzpatrick were aware or should have been aware, in their capacity as Race Of?cials, of the general location of these vessels and the imminent danger faced by their occupants. Moreover, they understood that the Race Committee vessel, a 48-foot Hatteras motor yacht, and its ten (10) occupants, were capable of safely rendering assistance to the stranded race participants, including .C. Brown. Nonetheless, they chose to do nothing and waited not only until the storm passed, but the scheduled end time of the race, nearly two hours after the storm passed, before joining rescue efforts already underway. 34. Mr. Hirsch?s and Ms. Fitzpatrick?s deliberate inaction was a breach of their duty to render assistance to J.C. Brown under 46 U.S.C.A. 2304. As a proximate consequence, J.C. Case Document 1 Filed 02/07/18 Page 7 of 9 Brown died, and his body was never recovered. 35. Furthermore, because Mr. Hirsch and Ms. Fitzpatrick were, at all relevant times, acting in their capacity not only as the Yacht Club?s Of?cers, but also as the Co-Chairmen of its Race Committee, the Yacht Club is vicariously liable for their actions. COUNT THREE Wanton or Gross Negligence 36. Plaintiff Jane Brown realleges paragraphs one through thirty-?ve of the Complaint. 37. At the aforementioned time and place, Defendant Fairhope Yacht Club wantonly disregarded its duty to warn the race participants, in particular the Skipper of the boat occupied by J.C. Brown, of the severe weather alerts being issued by the various news and weather outlets, and directly by the USCG, as well as to act by cancelling the yacht race. 38. The Yacht Club?s decisions placed its own interests above the safety of race participants despite the knowledge of severe and dangerous conditions, and without regard to its obligations under its USCG permit and as a member of US Sailing Association sponsoring such a race, evidencing the Yacht Club?s wantonness. 39. As a proximate consequence of the wantonness or gross negligence of Defendant FairhOpe Yacht Club, .C. Brown was killed, and his body was never recovered. DAMAGES 40. As a direct and proximate result of the negligent, grossly negligent and wanton conduct of Defendant Fairhope Yacht Club, Plaintiff Jane Brown suffered injury, specifically: a. She has been deprived of the support she would have been provided by her deceased husband, J.C. Brown, in an amount to be proved at trial but no less than $500.000.00, plus prejudgment interest; b. She has been deprived of the value of services that her husband, J.C. Brown, customarily performed for her; Case Document 1 Filed 02/07/18 Page 8 of 9 c. She has been deprived of the love, affection. care, attention. companionship. comfort, and protection of her husband, .C. Brown; d. She was required to expend $700.00 for .C. Brown?s memorial expenses, and $800 for a burial plot that ended up being unnecessary because J.C. Brown?s was never recovered; and, e. She has also expended in excess of $3,000 to have .C. Brown declared legally dead because his body was never recovered. 41. As a direct and proximate result of the negligent, grossly negligent and wanton conduct of Defendant Fairhope Yacht Club, .C. Brown suffered severe pain and suffering and mental anguish from the time he became aware of his imminent death to the point at which he died. Plaintiff prays for an award of such pain and suffering damages in an amount to be determined at trial. 42 As a direct and proximate result of the grossly negligent and wanton conduct of Defendant airhope Yacht Club, Plaintiff prays for an award of punitive damages against Fairhope Yacht Club in an amount to be determined at trial. 43. WHEREFORE. PREMISES CONSIDERED, Plaintiff Jane Brown demands judgment against Defendant airhope Yacht Club in such amount of compensatory and punitive damages as the Court may award. as well as her costs, attorney?s fees and prej udgment interest. ReSpectfully submitted, this the g??tday of February, 2018. JANE BROWN By: James J. Crongever. Jr. James J. Crongeyer, Jr., AL Bar 9725?067] H. Ruston Comley (PH Application to be ?led) WATKINS EAGER PLLC 400 East Capitol Street Post Of?ce Box 650 Jackson, Mississippi 39205-0650 Phone: 601-965-1900 Fax: 601-965-1901 icrongeyer@watkinseager.com Case Document 1 Filed 02/07/18 Page 9 of 9 H. Lanier Brown. 11 (BR0067) WATKINS EAGER PLLC Lakeshore Park Plaza Of?ce Building 2204 Lakeshore Drive, Suite 114 Birmingham, Alabama 35209 Phone: (205) 598-2100 Fax: (205) 449-1750 lbrown@watkinseager.com Omar L. Nelson (PHV Application to be ?led) GIBBS TRAVIS PLLC 1400 Meadowbrook Road, Suite 100 Jackson, Mississippi 3921 1 Phone: 601-487-2640 Fax: 601-366-4295 Case Document 1-1 Filed 02/07/18 Page 1 of 1 JS 44 (Rev. can 7) provided by local rules ofcourt. This form. approved by the Judicial Con erence ofthe CIVIL COVER SHEET The .15 44 civil cover sheet and the information contained herein neither re lace nor supplement the ?lin and service oi?pleadings or other papers as re uired by law, except as purpose of initiating the civil docket sheet. INSTRUCTIONS ON NEXT PAGE OF THIS nited States in 1974. 15 required for the use ofthe Ierk ofCourt for the 1. PLAINTIFFS Brown. Jane County of Residence ol'First Listed Plaintiff Mobile US. CASES) DEFENDANTS (C) Attorneys {li?rrm Name. Address. and Telephone Ntrritber} James J. Crongeyer. Jr.. Esq.. WATKINS 8- EAGER PLLC. Post Of?ce Box 650. Jackson. MS 39205-0650; (601) 965-1900: H. Lanier Brown. ll. Esq.. WATKINS 8: EAGER PLLC 2204 Lakeshoro Drive. Suite 114. Birmingham. AL 35209; (205) 598-2100 NOTE: Attorneys {If Known) Fairhope Yacht Club County of Residence of First Listed Defendant Baldwin (IN US. CASES ONLY) IN LAND CONDEMNATION CASES, USE THE LOCATION OF THE TRACT OF LAND INVOLVED. Allen E. Graham, Esq.. PHELPS DUNBAR LLP. E. Barrett Hails. Esq.. PHELPS DUNBAR LLP. Post Of?ce Box 2727. Mobile. AL 36652-2727; (251) 432-4481 II. BASIS OF JURISDICTION {Place an in One Box Only) 13 U.S. PIaintiiT Ci 2 US. Government Defendant IV. NATURE OF Eta Federal Question (l is. (Em?ermnenr Not a Party Cl 4 Diversity (indicate (I'rllzens?lrip (gfl?arlles' in lieu: lrrt'e an in One Box Only (For Diversity faxes ()nljj CITIZENSHIP 0F PRINCIPAL PARTIES (Place an in One Plaintiff and ()ne Hoxjiir Defendant) PTF DEF PTF DEF Citizen ofThis State 1 El 1 Incorporated or Principal Place Cl 4 4 of Business in This State Citizen of Another State CI 2 2 Incorporated and Principal Place CI 5 5 of Business In Another State Citizen or Subject ofa Ci 3 CI 3 Foreign Nation [3 6 CI 6 Foreign Countrv I co?BAC'f .. . .4- Latvi?m Cl 110 Insurance PERSONAL INJURY PERSONAL INJURY 120 Marine El 310 Airplane Cl 365 Personal Injury - Cl 130 Miller Act [1 315 Airplane Product Product Liability CI 140 Negotiable instrument Liability Cl 367 Health Carol [3 [50 Recovery oi'Overpayinent 320 Assault, Libel Pharmaceutical 6: Enforcement Slander Personal injury El 151 Medicare Act 330 Federal Employers' Product Liability Cl 152 Recovery of Defaulted Liability [3 363 Asbestos Personal Student Loans (Excludes Veterans) i3 340 Marine Cl 345 Marine Product injury Product Liability 153 Recovery Liability PERSONAL PROPERTY of Veteran's Bene?ts CI 350 Motor Vehicle CI 370 Other Fraud CI 160 Stockholders' Suits CI 355 Motor Vehicle El 371 Truth in Lending Cl 190 Other Contract Product Liability 380 Other Personal 0 195 Contract Product Liability CI 360 Other Personal Property Damage Cl 1% Franchise injury 385 Property Damage 362 Personal injury - Product Liability Medical Malpractice I . REAL mommy .- .: - is. 9:1: semen; . [3 210 Land Condemnation 440 Other Civil Rights Habeas Corpus: Cl 230 Foreclosure 441 Voting 463 Alien Detainee 230 Rent Lease Ejectment 442 Employment CI 510 Motions to Vacate Cl 240 Torts to Land 443 Housing} Sentence Cl 245 Ton Product Liability Accommodations Cl 530 General CI 290 All Other Real Property Cl 445 Amer. - CI 535 Death Penalty Employment Cl 446 Amer. - Other Cl 443 Education Other: CI 540 Mandamus 8: Other CI 550 Civil Rights Cl 555 Prison Condition CI 560 Civil Detainee - Conditions of Con?nement 625 Drug Related Seizure of Property 21 USC 881 CI 690 Other 710 Fair Labor Standards Act El 720 LaborlManagcment Relations CI 740 Railway Labor Act CI 751 Family and Medical Leave Act Cl 790 Other Labor Litigation Cl 791 Employee Retirement Income Security Act WGEXTIORMPM 462 Naturalization Application Cl 465 Other immigration Actions iiai?l??ii?? .. I Click here for: CI 422 Appeal 28 USC 15 423 Withdrawal 28 USC 157 CI 820 Copyrights Ci 330 Patent Cl 335 Patent - Abbreviated New Drug Applica Cl 840 Trademark 861 HIA {1395?} El 862 Black Lung (923] CI 363 864 58113 Title XVI E1 865 (405(g)} 870 Taxe (U.S. Piainti or Defendant) Cl 371 iRS?Third Party 26 USC 7609 'Wdeni ature of Suit 8 . ?131:9 . CI 375 False Claims Act Cl 376 Qui Tam (31 USC 3729(3)) CI 400 State Reapportionment Code Descritions. 410 AntiiJ?uSI tion ff CI 430 Banks and Banking Cl 450 Commerce Cl 460 Deportation 470 Racketeer influenced and Corrupt Organizations 480 Consumer Credit 490 CabielSat TV [3 850 Securitieleotnmoditiesl Exchange CI 890 Other Statutory Actions CI 891 Agricultural Acts El 893 Environmental Matters El 895 Freedom ofini'onnation Act Cl 896 Arbitration Cl 899 Administrative Procedure Act/Review or Appeal of Agency Decision 950 Constitutionality of State Statutes V. 0 RI I (Place an Hex (Jolt-7 Xi Original Proceeding VI. CAUSE OF ACTION v11. REQUESTED IN COMPLAINT: CI 2 Removed from State Court 3 Remanded from Appellate Court D4 Reinstated or Reopened (specify) Cite the U.S. Civil Statute under which you are ?ling {Do not cite jurisdictional statutes unless diversity): 0 5 Transferred from Another District CI 6 Multidistrict Litigation- Transfer 3 Muitidistrict Litigation - Direct File 28 USC Section 1333 Brief description of cause: Maritime wrongful deatthegligenoelvtlantonness Cl CHECK IF THIS iS A CLASS ACTION UNDER RULE 23, Vin. RELATED IF ANY (See JUDGE $1.5 million CHECK YES only if demanded in complaint: JURY DEMAND: DOCKET NUMBER El Yes DATE I g, FOR OFFICE USE ONLY AMOUNT APPLYING .. . .- JUDGE James J. Crongeyer. Jr. MAG, JUDGE