Gale storm, Individual and trustee, et al v. Sleeping giant shipping, Inc.

1. Gale storm, Individual and trustee, et alv.Sleeping giant shipping, Inc. Torrie J. Schneider

2. Case Summary This year’s problem is a civil case. Civil cases are lawsuits between individuals and/or companies. The Plaintiff is Gale Storm, acting individually and in her capacity as her deceased son’s estate’s trustee. The Defendant is Sleeping Giant Shipping, owner of the SS Edmund Fitzgerald.

3. Summary of Facts • SS Edmund Fitzgerald sailed from Superior, WI on November 9, 1975 at 2:20 p.m. • SS Anderson sailed from Two Harbors, MN on November 9, 1975 ahead of the Fitzgerald. • The Fitzgerald was loaded with 26,000 tons of taconite pellets bound for Michigan. • Gale Storm issued a gale warning at 2:39 p.m. • Early morning hours of November 10, the Fitzgerald overtakes the Anderson. • 3:15 p.m. the Fitzgerald nears “Six Fathoms Shoals”. • 3:30 p.m. Capt. McKay radios that he sustained topside damage. • 4:10 p.m. the Fitzgerald loses both radars and requests for help from the Anderson.

4. Summary of facts, cont. • 4:39 p.m. the Whitefish Bay beacon and light are out. • 5:30-6:00 p.m. Capt. McKay yells that nobody should be on deck. • Before 7:00 p.m. the Anderson is hit by two huge waves, damaging the starboard lifeboat. • 7:10 p.m. Capt. McKay indicates they are “holding [their] own”. • Fitzgerald enters the squall. • 7:25 p.m. the squall clears and the Fitzgerald is gone, no longer visible visually or on radar to the Anderson. • In September, SGS put out memorandum promising bonuses tied to increased tonnage hauled by the close of the season.

5. Summary of facts, cont. • Inspection of the Fitzgerald on October 31, 1975 resulted in a letter sent to SGS on November 4, 1975 indicating that there were problems with the hatches, hatch end girder, and hatch coamer. • NTSB concluded that the Fitzgerald sank due to structural defects in the hatches, as noted by the Coast Guard; ineffective hatch closures before sailing; forces imposed on the hatch covers by heavy waves; and the impact of the vessel striking the bottom of the lake, causing the hatch covers to collapse.

6. Claim The Plaintiff alleges that Sleeping Giant Shipping was negligent in their supervision, maintenance, and operation of SS Edmund Fitzgerald. The Defendant contends that the sinking of the SS Edmund Fitzgerald was an Act of God.

7. Elements • Negligence • Duty • Breach • Causation • Damages* * Damages are not at issue in this case.

8. Elements, cont. • Duty • The existence of a duty or obligation imposed upon the defendant to do, or not do, something to conform to a legally recognized standard of conduct for the protection of others against unreasonable risks. • Storm alleges that SGS was obligated to transport product and personnel in a reasonable manner, to take precautions reasonably likely under the circumstances to avoid the damages normally present in crossing the Great Lakes.

9. Elements, cont. • Breach • A failure to conform to the required standard • Storm alleges that SGS failed to meet that obligation by failing to act reasonably

10. Elements, cont. • Causation • Proximate cause or a causal connection between the conduct and the resulting injury • There can be more than one proximate or direct cause of an event • Storm alleges that SGS’s failure to act reasonably was the proximate cause of loss of life and/or property and that failure caused injury to Storm

11. Definitions • Direct Cause • A cause that had a substantial part in bringing about the event • Immediate cause of an event (Black’s Law Dictionary)

12. Definitions, cont. • Concurring Cause • There may be more than one direct cause • If the effects of the negligence of each of two or more persons OR • If the effects of the negligence of a person and a force of nature • Work at about the same time to cause the event. • If this occurs, each may be a direct cause of the event.

13. Definitions, cont. • Superseding Cause • A cause is not direct when there is a superseding cause • A cause is superseding when four conditions are present: • It happened after the original negligence; and • It did not happen because of the original negligence; and • It changed the natural course of events by making the result different from what it would have been; and • The original wrongdoer could not have reasonably anticipated this event.

14. Definitions, cont. • Act of God • Defense to a claim of negligence • Independent, intervening force • Independent intervening force • Some cause, which intervenes between the defendant’s negligent act and the injuries sustained • Both the force and the result must be unforeseeable

15. Burdens of Proof • Preponderance of the Evidence • More probable than not, i.e. 51% • Clear and Convincing • Highly probable • Beyond a Reasonable Doubt • Reasonable Doubt = honest and reasonable uncertainty as to Defendant’s guilt

16. Plaintiff • Must prove every element of each offense by a preponderance of the evidence. • Some elements may be uncontested • Spend the most time on elements that are contested

17. Defense • Typical defenses: • Deny breach (Negligence) • Deny causation (Act of God) • Only need to show that one element of the offense has not been proven • Spend the most time on the elements that have not been proved

18. Witnesses • Plaintiff Witnesses • Gale Storm • Mother of Wilder Storm, deceased • Plaintiff • Meteorologist • Issued gale warning • Jan Olson • Engineer, NTSB • Observed Coast Guard Inspection of Fitzgerald • Determined Fitzgerald was not seaworthy • Concluded that collapse of hatches caused ship to strike bottom • Slip Mahoney • Loading crew • Former SGS employee • Observed hatch covers improperly tightened • Observed Tracy Peterson not where he/she claimed to be

19. Witnesses, cont. • Defense Witnesses • Giffy O’Brien • President and CEO of SGS • Received Coast Guard letter • Issued bonuses memorandum • Uncle of Coast Guard Lieutenant • Stacy Clark • First Mate aboard SS Anderson • Charted the path of Fitzgerald and communicated with Captain McKay • Observed Fitzgerald close to six fathoms • Concluded that it was an Act of God • Tracy Peterson • Expert • Structural Engineer, SGS • Supervised maintenance over the years • Observed loading process on November 9 • Concluded that it was an Act of God

20. Exhibits • Exhibit 1 • Memorandum from O’Brien regarding bonuses • Exhibit 2 • Coast Guard Inspection Letter • Exhibit 3 • Official Log of Fitzgerald/Anderson • Exhibit 4 • Map • Exhibit 5 • Schematic of SGS Vessels • Exhibit 6 • View of Bow portion of SGS Vessels • Exhibit 7 • NTSB Marine Accident Report