United States District Court, W.D. Arkansas, Fayetteville Division
CATHLEEN FEEHAN, as Special Administratrix of the Estate of William Michael Feehan PLAINTIFF
BULL SHOALS LANDING, INC. d/b/a Bull Shoals Lake Boat Dock and Bull Shoals Lake Boat Dock and Marina; BULL SHOALS WHITE RIVER LANDING, INC.; SETH FOX; STEVEN EASTWOLD; RICKY EASTWOLD; CYNTHIA EASTWOLD; KEVIN EASTWOLD; DEANA EASTWOLD; and RYAN EASTWOLD DEFENDANTS/THIRD PARTY PLAINTIFFS
JAMES E. HARVEY THIRD PARTY DEFENDANT
MEMORANDUM OPINION AND ORDER
TIMOTHY L. BROOKS UNITED STATES DISTRICT JUDGE
before the Court is Third Party Defendant James E.
Harvey's Motion to Dismiss (Doc. 17), which seeks
dismissal of the Third Party Complaint (Doc. 11) filed by
Bull Shoals Landing, Inc. d/b/a Bull Shoals Lake Boat Dock
and Bull Shoals Lake Boat Dock and Marina (“Bull Shoals
Landing”) against Harvey. On September 7, 2016, the
Court held a hearing on the Motion to Dismiss and took the
matter under advisement. For the following reasons, the
Motion is GRANTED.
27, 2013, Harvey rented a Swift Deck boat called “HECK
OF A DECK” from Bull Shoals Landing. When Harvey rented
the boat, he signed a rental agreement in which he
acknowledged and agreed to the following:
I do hereby release BULL SHOALS LANDING, INC. and its agents
from any responsibility for any accidents or injuries that
may occur, either directly, or indirectly, to my passengers,
during the time that the rented vessel is in my possession.
I also understand that I am personally responsible for any
damages, actual, punitive, or otherwise, to any persons or
property that may occur while this vessel is in my
possession, and I understand that I will pay any charges
assessed by BULL SHOALS LANDING, INC. for damages or losses
that may occur while this vessel is in my possession; as well
as any attorney or collection fees involved in the collection
I have inspected the vessel in question and have made note of
any prior and existing damages to said vessel. I understand
that BULL SHOALS LANDING, INC.'S insurance will not
extend to cover myself or my passengers and that I must have
my own liability insurance.
I have been informed and advised that the law requires that
each vessel have, at all times, one Coast Guard approved life
preserver for each passenger on the vessel, including the
driver; that anyone under the age of twelve years is required
by law to wear said life preserver at all times. My signature
on this agreement acknowledges the issuance of one life
preserver per person and one paddle. I understand that any
loss or damage to this equipment is my responsibility and do
hereby assume responsibility for same, as assessed by BULL
SHOALS LANDING, INC.
I do hereby certify that the driver's license listed
above is a valid one and that it belongs to me. My signature
on this agreement also certifies as valid, the number of all
passengers, including the driver, on said vessel.
I understand that the rental fee is for the time specified
and that failure to return vessel at the specified time will
result in additional charges to be determined. OPTIONAL: The
security deposit is a part of this agreement, and will serve
as security for the safe and sound return of said vessel.
Harvey rented the boat and began operating the vessel on Bull
Shoals Lake, tragic events ensued. According to the Complaint
(Doc. 1), William Feehan, an eight-year-old boy who was one
of Harvey's passengers, was riding in a float being
pulled behind the rented boat. At the time, the boat was
being operated by William's father. The Complaint alleges
that while William was riding on the float, the boat
unexpectedly veered hard to the right and caught William in
the propeller, leading to his untimely death.
mother, Cathleen Feehan, as Special Administratrix of his
estate, brought a lawsuit against Bull Shoals Landing and
others alleging that the boat had a defect which left it
unreasonably dangerous, and that Defendants' negligence
in maintaining, assembling, and testing the boat proximately
caused William's death. Bull Shoals Landing answered the
Complaint by denying liability and asserting a Third Party
Complaint against Harvey. (Doc. 11). Ms. Feehan subsequently
settled the claims she brought against all Defendants in the
original Complaint. See Order of Dismissal, Doc. 36.
Now the only matter pending before the Court is Bull Shoals
Landing's Third Party Complaint and Harvey's Motion
to Dismiss it.
Third Party Complaint alleges that Harvey indemnified Bull
Shoals Landing for any responsibility it may have had for
liability associated with the vessel. The Third Party
Complaint on its face also seems to plead a negligence claim
against Harvey, as it states that William's death
resulted "from the negligent, careless, and/or reckless
conduct of . . . . Harvey." Id. at p. 11.
However, when the Court questioned Bull Shoal's
Landing's attorney on this point during oral argument on
the Motion to Dismiss, he averred that the only cause of
action that was intended in the Third Party Complaint was for
indemnification, and not negligence. The Court memorialized
this understanding by the ...