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Garcia v. United States

United States District Court, S.D. Texas, Brownsville Division

August 15, 2019

FRANCISCO ORTEGA GARCIA, et al., Plaintiffs,
UNITED STATES OF AMERICA, et al., Defendants.


          Rolando Olvera, United States District Judge

         Before the Court is the "Magistrate Judge's Report and Recommendation" ("R&R") (Docket No. 221) in the above-captioned case. This case arises from the death of Patricia Guadalupe Garcia Cervantes ("Cervantes"). See Docket No. 22. Francisco Ortega Garcia ("Plaintiff) filed this suit in several capacities: individually, as Cervantes's surviving spouse, successor to Cervantes's estate, and as next friend of V.S.O.G., Cervantes's minor child (collectively "Plaintiffs"). The R&R recommended the Court dismiss all of Plaintiffs' claims.[1] See Docket No. 221. Plaintiffs timely objected to the R&R. See Docket No. 228. The United States of America ("Government"); Mercury Marine, a division of Brunswick Corporation ("Mercury Marine"); and Safe Boats International LLC ("Safe Boats") (collectively "Defendants") timely responded to Plaintiffs' objections. See Docket Nos. 231, 237, and 238.


         On the evening of April 23, 2015, Cervantes and Galindo Ruiz-Hernandez[3] ("Ruiz-Hernandez") tried to swim across the Brownsville Ship Channel ("Channel"), to enter the United States from Mexico. That night, the United States Coast Guard ("USCG") embarked on a "United States Coast Guard Law Enforcement Vessel" ("Vessel") manufactured by Safe Boats and powered by three engines manufactured by Mercury Marine.

         The evening's weather conditions allowed for six-mile visibility. Thus, after scanning the water ahead of the Vessel and finding no ships or objects in the water, the USCG accelerated the Vessel to "come up to plane".[4] The Vessel then struck Cervantes as she tried to cross the Channel.[5]Cervantes died following the impact.

         II. LEGAL STANDARD[6]

         A federal court acts as a federal "common law court" when exercising admiralty jurisdiction. See Exxon Shipping Co. v. Baker, 554 U.S. 471, 507 (2008). "In formulating federal maritime law, the federal courts may examine, among other sources, judicial opinions, legislation, treatises, and scholarly writings." Air and Liquid Systems Corp. v. DeVries, 139 S.Ct. 986, 992 (2019).


         A. Plaintiffs' Negligence-Based Claims

         i. Claims Against the Government

         A maritime negligence claim requires: (1) the defendant owed a duty to the plaintiff, (2) the defendant breached the duty, (3) the plaintiff sustained damages, and (4) the defendant's wrongful conduct caused the plaintiffs damages. Withhart v. Otto Candies, LLC, 431 F.3d 840, 842 (5th Cir. 2005). Courts determine the threshold element of duty predominately by the "foreseeability of the harm suffered by the complaining party." Consol. Aluminum Corp. v. CF. Bean Corp., 833 F.2d 65, 67 (5th Cir. 1987). A harm is foreseeable if "harm of a general sort to persons of a general class might have been anticipated by a reasonably thoughtful person, as a probable result" of a defendant's conduct. Id. at 68.

         Plaintiffs failed to identify what duty the Government owed Cervantes-an undocumented alien ("UDA") swimming in the Channel at night trying to avoid detection. Although aware of the possibility that a UDA might use the Channel as a crossing point, before Cervantes, no USCG member interviewed by Plaintiffs had ever encountered a UDA swimming across the Channel at night. See Docket No. 112 Ex. 2 at 14. The Government did not owe Cervantes a duty unless the USCG had actual knowledge about the probability of hitting Cervantes as she swam across the Channel. See Republic of France v. United States, 290 F.2d 395, 401 (5th Cir. 1961).

         Again, Ruiz-Hernandez was the smuggler trying to transport Cervantes across the Channel. Plaintiffs incorrectly rely on language in his case before the Fifth Circuit which states that "it was reasonably foreseeable that a person swimming across a high-traffic ship channel in the dark of night would be struck by a passing ship" to allege that the Government owed a duty to Cervantes. United States v. Ruiz-Hernandez, 890 F.3d 202, 211 (5th Cir. 2019); see also Docket No. 237 at 4. However, Ruiz-Hernandez did not contemplate foreseeability from the perspective of a boat navigating through a "high-traffic ship channel in the dark of night." See Id. The Fifth Circuit's decision and above stated language was limited in scope to the foreseeability issue from the perspective of a human smuggler directing UDAs to swim across the "high traffic" Channel. See Id. Thus, Ruiz-Hernandez does not apply here.

         For these reasons, Plaintiffs failed to establish the Government owed Cervantes a duty and failed to allege prima facie claim of negligence. Thus, Plaintiffs' ...

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