United States Court of Appeals
For the First Circuit
No. 02-2239
KOORKIN D. MAGARIAN AND FRANCES MAGARIAN,
Plaintiffs, Appellants,
v.
ARTHUR CRAIG HAWKINS,
Defendant, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. William G. Young, U.S. District Judge]
Before
Selya, Circuit Judge,
Stahl, Senior Circuit Judge,
and Lynch, Circuit Judge.
Michael G. Sarli, with whom Gidley, Sarli & Marusak, LLP, was
on brief for appellants.
Mark A. Darling, with whom Mark R. Freitas and Cogavin &
Waystack, were on brief, for appellee.
February 28, 2003
STAHL, Senior Circuit Judge. This case involves an
unfortunate boating accident, in which plaintiff-appellant Koorkin
Magarian ("Magarian") severely injured his eye while trying to
board defendant-appellee Arthur Hawkins's ("Hawkins") boat.
Magarian sued Hawkins, alleging that Hawkins was negligent by
failing to provide a reasonable means to board his boat, and his
wife, plaintiff-appellant Frances Magarian, brought a loss of
consortium claim. Following the close of discovery and on the eve
of trial, the district court orally granted Hawkins's motion for
summary judgment on the ground that Hawkins's conduct was not
negligent. The Magarians (hereinafter "Magarian") appealed this
decision. We affirm.
I
We review a grant of summary judgment de novo and view
the facts in the light most favorable to the nonmoving party,
Magarian, drawing all reasonable inferences in Magarian's favor.
LeBlanc v. Great Am. Ins. Co., 6 F.3d 836, 841-42 (1st Cir. 1993).1
During the Memorial Day weekend of 2000, Magarian, who was seventy-
eight years old at the time, and his wife, both Florida citizens
and residents, were visiting their son Dean and his family at their
home in Vermont. Hawkins, a Massachusetts citizen and resident,
1
We are well aware of the summary judgment principles outlined
in our numerous cases and find no need to recite them here. See,
e.g., LeBlanc, 6 F.3d at 841-42 (outlining summary judgment
paradigm).
-2-
and his fiancée, Dean's sister-in-law, also visited Dean's family
that weekend, bringing along a 19.5 foot open-bow pleasure boat.
On May 28, Magarian, Dean, Dean's son, and Hawkins towed the boat
to Lake Saint Catherine in Vermont for a day of recreational
boating.
After launching his boat into the water from a public
ramp, Hawkins beached it on shore, with the bow resting on the sand
and the stern remaining in the water, so that the boat was
perpendicular to the shoreline. Hawkins did this because there
were no public docking facilities for boarding on the lake.2
Hawkins then jumped out of the boat.
Magarian, dressed in long pants, socks, and sneakers,
approached the boat and asked Hawkins how he should get in, to
which Hawkins responded, "grab the rail and pull yourself in." A
railing ran along either side of the top of the bow back to about
the midway point of the boat. However, the railings did not meet
at the point of the bow, leaving a gap between the two rails. The
record is not clear as to where on Magarian's body the railing was
positioned at the time of the accident. At one point, Magarian
testified that the bow was "around waist high, chest high, waist
high," but when asked where the railing located on his body, he
2
While there is evidence that a dock was located nearby, that
dock had "no trespassing" signs and was cordoned off with rope.
Magarian does not claim that Hawkins should have ignored the "no
trespassing" signs and used the dock.
-3-
responded that he did not know whether it was above or below his
waist. In any event, without further question or discussion,
Magarian grabbed the starboard side railing with his left hand and
the port side with his right, and attempted to pull himself into
the boat.3 He suddenly fell forward into the boat, however,
seriously injuring his eye, which ultimately had to be removed due
to the severity of the injury. Magarian does not know why he fell
so suddenly.
This was not Magarian's first time on a boat. He
testified that, for a period of six years, he had been fishing once
a week on a boat of similar size--between eighteen and twenty feet.
On a couple of occasions, when the boat was brought onto shore with
the bow resting on the sand, he boarded the boat by "walk[ing] out
to the water about a foot or two and . . . just pull[ing] [himself]
into the boat . . . ." According to Magarian, he never had trouble
getting into the boat in this manner because he was not afraid of
getting his feet wet. When asked at his deposition why he
attempted to get into Hawkins's boat over the point of the bow,
however, Magarian explained that he "had to do it the way [Hawkins]
told [him] to do it," that he "took it for granted that [it] was
the only way to get into the boat," and that "[i]t was the only way
3
He indicated that he had intended to grab the railing from
the point of the bow and to pull himself back toward the stern a
little, then grab further back on the railing and pull himself
further down, inching himself along until he could drop his legs
into the boat.
-4-
to get in unless [he] got [his] feet wet." He also testified that
it might have been possible to get in by climbing over the side of
the boat after taking off his sneakers and socks, and rolling up
his pants, but that he "never gave it a thought" at the time.
II
Under Massachusetts law,4 Magarian must establish that
Hawkins owed him a duty of care and that he breached that duty (the
element of negligence), which actually and proximately caused his
injury. See Davis v. Westwood, 420 Mass. 739, 742-43 (1995);
Bennett v. Eagle Brook County Store, Inc., 408 Mass. 355, 358-59
(1990). The parties agree that Hawkins owed Magarian a duty to
exercise that degree of care that a reasonably prudent boat
owner/operator would exercise under similar circumstances.5 See
Bennett, 408 Mass. at 358-59; Toubiana v. Priestly, 402 Mass. 84,
88 (1988). Naturally, Magarian maintains that Hawkins breached
4
The parties stipulated that Massachusetts law governs the
dispute, and the district court likewise used that law to reach its
result. While a federal court sitting in diversity must apply the
forum state's choice-of-law rules, Klaxon Co. v. Stentor Elec. Mfg.
Co., 313 U.S. 487, 496 (1941), the court may accept the parties'
agreement as to the choice of law without independent analysis of
the governing rules. James L. Miniter Ins. Agency, Inc. v. Ohio
Indem. Co., 112 F.3d 1240, 1245 (1st Cir. 1997) (citing Borden v.
Paul Revere Life Ins. Co., 935 F.2d 370, 375 (1st Cir. 1991)). We
do so here.
5
In his brief, Magarian seemed to argue that Hawkins might
have owed him a higher degree of care, such as that owed by a
common carrier. At oral argument, however, he abjured that
argument and agreed that Hawkins's duty was one to exercise that
degree of care that a reasonably prudent boat owner/operator would
exercise under similar circumstances.
-5-
that duty. Although the question of breach is ordinarily for the
trier of fact, it may be appropriately withdrawn where the evidence
and the reasonable inferences drawn therefrom lead to but one
reasoned conclusion. Mullin v. Pine Manor College, 389 Mass. 47,
56 (1983); Leavitt v. Mizner, 404 Mass. 81, 88-92 (1989). Our
review of the briefs and the record convinces us that this is such
a case: a fair-minded jury could not reasonably conclude that
Hawkins's conduct was unreasonable under the circumstances.
Magarian does not claim that instructing a passenger to
board the boat by grabbing the bow railing and climbing in is
itself an unreasonable practice in general, nor is there any
evidence in the record suggesting that it is. Indeed, Hawkins's
expert witness, Richard d'Entremont, a retired Coast Guard officer
who based his opinion on his observations of recreational boating
made over twenty-six years with the Coast Guard, opined that this
is the ordinary and customary practice to board a boat. Cf.
Corthell v. Great Atlantic & Pacific Tea Co., 291 Mass. 242, 243-44
(1935) (conformity to custom is evidence that supports an inference
of reasonable care, but is not dispositive); but see Breault v.
Ford Motor Co., 364 Mass. 352, 356 (1973) ("If one does what others
do in like circumstances, the inference that he is conforming to
the community standard of reasonable conduct may be so strong in
particular circumstances as to establish the individual was not
negligent."). Instead, Magarian claims that instructing him to
-6-
follow this practice was unreasonable under the circumstances
solely because he was seventy-eight years old at the time. He
conclusorily asserts that a reasonable boat owner would have
recognized that a man in his seventies was physically incapable of
grabbing the bow railing and climbing into the boat, and thus
should have provided an alternative means to board the boat. We
disagree.
The record evidence does not disclose that Hawkins had
any indication that Magarian was physically unable to board the
boat by grabbing the railing and climbing into the boat. Magarian
was certainly the person in the best position to know his own
physical capabilities, and he said nothing about his ability. In
fact, he testified that, at the time of the accident, he felt
physically able to get in from the bow without assistance, and that
he never indicated to Hawkins that he preferred an alternative
means to board the boat. Moreover, there is nothing in Hawkins's
instruction--"grab the rail and pull yourself in"--indicating that
Magarian was not to grab the railing further down toward the stern
where the boat and railing were lower in relation to his body.
Instead, without discussion, Magarian chose to grab the railing at
the point of the bow and attempted to board the boat. We simply
cannot find anything in the record that would allow a jury
reasonably to conclude that Hawkins's conduct was unreasonable
under the circumstances.
-7-
Magarian attempts to cast doubt on the reasonableness of
Hawkins's conduct by alleging that safer alternative means of
boarding the boat were available. First, he points out that the
boat was equipped with a swim ladder bolted to the stern, and
argues that Hawkins should have informed him of the ladder rather
than instructing him to climb in over the railing. We are
unconvinced. To begin, the evidence in the record does not suggest
that this was the intended purpose of the swim ladder, or that
using the swim ladder under the circumstances would have been
safer. In any case, Magarian failed to adduce, in an affidavit or
otherwise, any evidence supporting a reasonable inference that he
would have used, or at least considered using, the swim ladder had
he known of its presence. Indeed, insofar as the record supports
any reasonable inference, it is that Magarian would not have used
the swim ladder. Magarian was fully clothed, in long pants, socks,
and sneakers; yet in order to reach the swim ladder, he would have
had to wade in three to four feet of water, which was waist high or
greater. He also testified that one of the reasons that he
followed Hawkins's instructions was that "[i]t was the only way to
get in unless [he] got [his] feet wet." It is not lost on us that
Magarian had at least six years of boating experience and, on
previous occasions, had entered over the side of a boat similarly
positioned, yet on this occasion he chose to keep his feet dry by
attempting to climb over the point of the bow.
-8-
Magarian also maintains that a genuine issue of material
fact exists as to whether a reasonable boat owner would have
provided equipment designed to assist passengers in boarding a boat
beached in this particular fashion. He relies entirely upon his
expert's report, which asserts in a conclusory and perfunctory
manner that a reasonable boat owner would have considered, among
other things, "devices available to assist the passenger in
boarding the boat, and the cost to provide such devices." The
report went on to state that "[t]hese devices include, but are not
limited to, . . . a rope or other type of ladder that can be
attached to the side or bow of the boat . . ., or any type of step
that can be placed on the ground next to the boat . . . ."
Finally, the expert stated that it was his opinion that Hawkins's
"instructions and failure to provide . . . a safe means to board
his boat was unreasonable and negligent . . . ."
Evidence showing either that other boat owners
customarily use such devices or that such devices in fact exist may
have called into question the reasonableness of instructing
Magarian to climb in without their aid, but Magarian failed to
provide such evidence. Beyond these speculative and conclusory
remarks by Magarian's expert, there is no factual evidence
disclosing that any device or equipment intended to assist
passengers in boarding a beached boat exists, is commercially
available, or is used by boat operators in general. Moreover,
-9-
there is no evidence that the devices described would have provided
a safer means to board Hawkins's boat on the day in question.
Essentially, we are invited to allow a jury to speculate whether a
reasonable boat owner would have provided hypothetical devices or
equipment to board Hawkins's boat, a course we decline to take.6
In the end, Magarian only has his expert's conclusory
statement that Hawkins's instructions and failure to provide
hypothetical equipment was unreasonable and negligent under the
circumstances. But "conclusory allegations, improbable inferences,
and unsupported speculation" are insufficient to defeat summary
judgment. LeBlanc, 6 F.3d at 842. This principle applies with
equal force to expert opinions. Hayes v. Douglas Dynamics, Inc.,
8 F.3d 88, 92 (1st Cir. 1993) ("Where an expert presents 'nothing
but conclusions--no facts, no hint of an inferential process, no
discussion of hypotheses considered and rejected,' such testimony
will be insufficient to defeat a motion for summary judgment.")
(internal quotation marks and citations omitted). In other words,
an "expert opinion must be more than a conclusory assertion about
ultimate legal issues." Id.
6
Our holding is, of course, limited to the facts of this case.
We offer no opinion as to whether a different result would attach
had Magarian adduced evidence showing the existence of such
equipment. Cf. The T.J. Hooper, 60 F.2d 737, 740 (2d Cir. 1932)
(L. Hand, J.) ("A whole calling may have unduly lagged in the
adoption of new and available devices.").
-10-
Given that Magarian failed to adduce sufficient evidence
supporting a reasonable inference that Hawkins breached his duty of
care under the circumstances, we affirm. Costs to appellee.
-11-