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Feehan v. Bull Shoals Landing, Inc.

United States District Court, W.D. Arkansas, Fayetteville Division

November 29, 2016

CATHLEEN FEEHAN, as Special Administratrix of the Estate of William Michael Feehan PLAINTIFF
v.
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
v.
JAMES E. HARVEY THIRD PARTY DEFENDANT

          MEMORANDUM OPINION AND ORDER

          TIMOTHY L. BROOKS UNITED STATES DISTRICT JUDGE

         Currently 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.

         I. BACKGROUND

         On July 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 of same.
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.

(Doc. 11-1).

         After 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.

         William's 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.

         The 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 ...


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