11th Circuit revives fishermen’s negligence suit against Tennessee Valley Authority

Two fishermen suffered serious injuries in 2020 when they crashed into a duck blind they say was virtually invisible in the dark.ATLANTA (CN) — Two Alabama fishermen who were seriously injured when their boat crashed into a hidden duck blind can pursue their negligence lawsuit against the Tennessee Valley Authority but not the federal government, an 11th Circuit panel unanimously decided Thursday.The three-judge appellate panel ruled the Tennessee Valley Authority Act does not prevent fishermen Carter Gilliam and Schrade Jones from suing the Tennessee Valley Authority, a federally owned corporation. However, the panel refused to revive the pair’s claims against the government.“The TVA may be sued under the TVA Act’s sue-and-be-sued clause,” U.S. Circuit Judge Embry Kidd wrote on behalf of the panel.Gilliam and Jones were knocked unconscious and suffered multiple broken bones while bowfishing one summer night in 2020 when their 16-foot boat crashed into an unmarked duck blind in Guntersville Lake, the largest lake in Alabama.The fishermen say the duck blind — which was privately owned but located only feet from the main channel marked for commercial boat traffic — had no reflective materials or buoys and was virtually invisible in the dark. They claim the government and the TVA negligently failed to remove, warn of or mark the duck blind in the 16 years it had existed.In tossing out the case last year, U.S. District Judge Liles C. Burke ruled the plaintiffs’ claims fell under an exception to the Suits in Admiralty Act, a law that otherwise allows individuals to sue the government for negligence in maritime actions. The government’s decision not to mark or remove the duck blind fell squarely into the type of decisionmaking shielded by the discretionary function exception to the Suits in Admiralty Act, the Donald Trump appointee found.Kidd determined the panel was bound by prior 11th Circuit decisions to agree, whether the current judges like it or not.“No matter how right plaintiffs may be about how wrong Williams is, our precedent remains firm unless this court, sitting en banc, changes it or the [U.S.] Supreme Court overrules it,” the Joe Biden appointee wrote, referring to the 11th Circuit’s 1984 decision in *Williams v. United States.*In that case, the appellate court ruled the Suits in Admiralty Act contains an exception that shields the government from liability for discretionary decisions.Governmental decisions about whether to remove or warn of obstructions in waterways involve policy-related considerations, like navigational traffic patterns, prior accidents and environmental or political risks — “the type of decisions the discretionary function exception is designed to shield,” wrote Kidd.Even though the government conceded it was unaware of the duck blind’s existence, the failure to remove it or post warnings was within the government’s decisionmaking authority, the panel found.“Although plaintiffs point to defendants’ ignorance of the duck blind as proof that their failure to act was not grounded in policy, the question is not whether the policies were actually considered but whether the nature of the challenged conduct is susceptible to policy analysis,” Kidd explained.In a separate concurring opinion joined by Barack Obama-appointed U.S. Circuit Judge Robin Rosenbaum, Kidd suggested the 11th Circuit should revisit the case in a hearing with all its active judges to consider “the continuing viability” of the Williamsdecision.Attorney Taylor Rouse of Ryan & Rouse, who represents the plaintiffs, expressed mixed feelings on the decision Thursday.“We are obviously very happy with the 11th Circuit’s ruling today as to our claims against the TVA. And although the court’s decision on our claims against the United States does not come as a surprise, we are encouraged by the invitation to file for rehearing en banc to address the clear error established by prior decisions,” Rouse told Courthouse News. “We are weighing all of our options and will continue to work for our clients.”A spokesperson for the Tennessee Valley Authority did not immediately respond to a request for comment Thursday afternoon.Kidd and Rosenbaum were joined on the panel by Senior U.S. Circuit Judge Charles Wilson, a Bill Clinton appointee. The appellate court sent the case back to Alabama federal court for further proceedings.Subscribe to our free newslettersOur weekly newsletter Closing Arguments offers the latest about ongoing trials, major litigation and rulings in courthouses around the U.S. and the world, while the monthly Under the Lights dishes the legal dirt from Hollywood, sports, Big Tech and the arts.Additional Reads