                 NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                            File Name: 08a0520n.06
                             Filed: August 22, 2008

                                        Nos. 07-3039/07-3040

                           UNITED STATES COURT OF APPEALS
                                FOR THE SIXTH CIRCUIT


BARBARA ROGERS and JULIAN                           )
ROGERS, as owners of the M/V Maggie                 )
Lou, for exoneration from or limitation of          )
liability,                                          )   ON APPEAL FROM THE UNITED
                                                    )   STATES DISTRICT COURT FOR THE
        Plaintiffs-Appellees/                       )   NORTHERN DISTRICT OF OHIO.
        Cross-Appellants,                           )
                                                    )
v.                                                  )
                                                    )
DIANE LILLY, administratrix of the estate           )
of Robert C. Lilly,                                 )
                                                    )
        Defendant-Appellant/                        )
        Cross-Appellee.


Before: COLE, GIBBONS, and ROGERS, Circuit Judges.

        JULIA SMITH GIBBONS, Circuit Judge. Plaintiffs-appellees Barbara and Julian Rogers

(“the Rogerses”), filed the instant maritime action seeking exoneration from liability, or,

alternatively, limitation of liability, pursuant to 46 U.S.C. App. § 183, for any claims arising out of

the drowning death of Robert C. Lilly in Lake Erie.            Defendant-appellant Diane A. Lilly,

administratrix for the estate of Robert Lilly, appeals the district court’s grant of summary judgment

in favor of the Rogerses, which fully exonerated them from liability. In a cross-appeal, the Rogerses

argue that the district court erred in failing to strike certain hearsay statements and an expert report.



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Rogers, et al. v. Lilly, 07-2039/07-3040

For the reasons set forth below, we affirm the judgment of the district court with respect to Diane

Lilly’s appeal. Additionally, we dismiss the Rogerses’ cross-appeal for lack of jurisdiction.

                                                  I.

       Barbara Rogers and her son, Julian Rogers, own the Maggie Lou, a 1992 33' Carver pleasure

vessel. On September 1, 2002, the Maggie Lou was docked at the Intercity Yacht Club in Cleveland,

Ohio, to which both Barbara and Julian belonged. The Maggie Lou was assigned to slip 38 along

“A Dock” at the Yacht Club. The vessel was docked such that its rear, from which a swim platform

protruded, was adjacent to A Dock. A smaller “finger dock,” perpendicular to the larger A Dock,

extended alongside the boat, where the embarkation/disembarkation point was situated.

       The Yacht Club held its annual clam bake on September 1. Barbara Rogers invited several

friends to this event, including Loretta Childs. Julian Rogers did not attend. Robert Lilly, a friend

of Childs, arrived at the Yacht Club around 8:00 p.m. that evening, after the dinner was over.

Between 8:45 and 9:00 p.m., Barbara Rogers brought Childs and Lilly, as well as some other friends,

to the Maggie Lou. At approximately 9:45 p.m., Barbara Rogers left the boat to drive a friend home.

Only Childs and Lilly remained on the boat, as Lilly was not yet ready to leave.

       Around 11:15 to 11:30 p.m., Lilly and Childs decided to leave the boat. According to Childs’

deposition testimony, when Lilly prepared to get off the boat, Childs asked Lilly if he wanted a soda.

Childs turned away to get the soda and then heard a splash. After Childs heard the splash, she called

out for Lilly and disembarked from the boat. Childs yelled for help, and, after several minutes, she

saw Lilly floating in the water at the rear of the boat. Two Yacht Club members, Ernest Shawver

and Kendrick Melton, attempted to save Lilly or pull him from the water but were unsuccessful.


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Rogers, et al. v. Lilly, 07-2039/07-3040

Cleveland Fire Department employees recovered Lilly’s body at 11:50 p.m., and Lilly was taken to

a hospital, where he was pronounced dead upon arrival.

        At the time of the incident, Shawver was on his boat, located approximately three finger

docks away from the Maggie Lou. At a deposition, Shawver testified that he saw Lilly walking on

A Dock just before Lilly fell into the water. Shawver noted that a lady on the Rogerses’ boat was

speaking to Lilly, and Shawver heard Lilly replying to the lady. Shawver turned away and then heard

a splash. Upon hearing the splash, Shawver looked up, but he did not see Lilly. Shawver heard

Childs’ screams and ran out to the dock. Shawver saw Lilly flailing in the water near the Maggie

Lou’s swim platform—which is on rear of the boat, adjacent to A Dock—and reached for his arm;

however, he was unable to pull Lilly from the water. Shawver did not give a witness statement at

the scene.

        Officers from the Ohio Department of Natural Resources (“ODNR”) arrived on the scene of

the accident shortly after it occurred. Officer James Sapio of the ODNR, who arrived approximately

ten to fifteen minutes before Lilly’s body was pulled from the water, spoke with Childs at the scene.

Sapio’s “Investigative Action” report states: “While at the scene, a witness came forward and stated

that she was on the boat with the victim and that when he was stepping off the boat, he slipped and

fell into the water.” The report identifies the witness as Loretta Childs and lists her date of birth, her

social security number, and her phone number. Sapio also later testified at a deposition that Childs

stated that Lilly had fallen off the boat. Sapio noted that this was significant, for, if Lilly had fallen

off the dock rather than the boat, the Cleveland Police Department, not the ODNR, would have

jurisdiction over the accident. Childs, however, repeatedly asserted in later deposition testimony that


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Rogers, et al. v. Lilly, 07-2039/07-3040

she had “no idea” from what location Lilly fell into the water, as she had turned away to get Lilly a

soda.

        Officer Sapio left the scene by 12:18 a.m., and another ODNR officer, James Gorman,

arrived shortly thereafter. Gorman testified that, upon his arrival at the scene, park rangers informed

him that Lilly “had fallen off of either the dock or the boat, they were unsure at that time.” Gorman

explained that they could not find any witnesses who had actually seen Lilly fall. He stated, “We

have no idea if he fell from the boat, the steps or the dock.” Gorman also noted that he spoke with

Childs either that night or the next morning, and she indicated that she had not actually seen Lilly

exit the boat, as she had gone to get him something to drink. Gorman’s records indicate, in various

places, that Lilly “fell from boat,” “slipped off dock or boat while exiting,” and “fell between boat

and the dock into the water.”

        James Wilson, a maritime expert witness relied upon by Diane Lilly, concluded, based on

the official reports of ODNR and the Cleveland police, that Lilly fell from the Maggie Lou into the

water at the embarkation/disembarkation location (which is adjacent to the finger dock). Wilson also

opined that the Maggie Lou was improperly moored and that this improper mooring caused Robert

Lilly’s fall.

        Diane Lilly commenced a wrongful death action against Barbara and Julian Rogers in Ohio

state court on August 30, 2004. On October 22, 2004, the Rogerses initiated the instant limitation

of liability action in federal district court. Accordingly, on November 17, 2004, the district court,

pursuant to 46 U.S.C. App. § 185 (current version at 46 U.S.C. § 30511), enjoined Diane Lilly from

proceeding further in the state court action. The Rogerses filed a motion for summary judgment on


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Rogers, et al. v. Lilly, 07-2039/07-3040

October 13, 2005, seeking exoneration from liability on the ground that there was no evidence from

which to conclude that any negligence on their part proximately caused Robert Lilly’s fall. In turn,

Diane Lilly filed a cross-motion for summary judgment and a motion to dismiss pursuant to Federal

Rule of Civil Procedure 12(b)(6). The Rogerses subsequently filed a reply memorandum as well as

a motion to strike. The Rogerses’ motion sought to strike: (1) all statements of Loretta Childs

contained in the reports of the ODNR and the Cleveland Police Department; (2) the testimony of

Officers Gorman and Sapio regarding any statements made by Loretta Childs; (3) the affidavit and

report of Diane Lilly’s expert, James Wilson, as well as all references therein to reports of the ODNR

and the Cleveland Police Department, and all photographs of the Maggie Lou taken by the Cleveland

Police Department. Diane Lilly filed a brief in opposition to the motion to strike.

       On November 17, 2006, the district court granted summary judgment in favor of the Rogerses

and exonerated them from all liability arising out of Robert Lilly’s death. Explaining that “there is

no actual evidence, whether direct or circumstantial, that [Lilly] fell from the boat,” the court

concluded that there was no genuine issue of material fact as to proximate causation. Additionally,

with respect to the motion to strike—which asserted that all references to Childs’ statements were

hearsay—the court determined that it “need not reach the hearsay issue because, as concluded above,

the content of such documents is insufficient to create a genuine issue of material fact on causation.”

The court accordingly denied the Rogerses’ motion to strike as moot.1




       1
         The district court also denied Diane Lilly’s Rule 12(b)(6) motion to dismiss for failure to
state a claim. Lilly does not appeal this determination.

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Rogers, et al. v. Lilly, 07-2039/07-3040

          Diane Lilly filed a timely notice of appeal on December 14, 2006. On December 27, 2006,

the Rogerses filed a cross-appeal from the district court’s denial of their motion to strike as moot.

                                                 II.

          We review a district court’s grant of summary judgment de novo.2 Michael v. Caterpillar

Fin. Servs. Corp., 496 F.3d 584, 593 (6th Cir. 2007). Summary judgment will be affirmed if “the

pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no

genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law.”

Fed. R. Civ. P. 56(c). If “a reasonable jury could return a verdict for the nonmoving party,” summary

judgment for the moving party is inappropriate. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248

(1986).


          2
          The Rogerses contend that we should apply a clearly erroneous standard of review to the
district court’s grant of summary judgment. This argument is meritless. The First Circuit cases cited
by the Rogerses in support of this proposition applied a clearly erroneous standard of review based
on “[c]ircuit precedent” in “unique” situations presenting “special circumstances.” See Equal
Employment Opportunity Comm’n v. Steamship Clerks Union, Local 1066, 48 F.3d 594, 603 & n.8
(1st Cir. 1995). According to First Circuit precedent, clearly erroneous review may be applied in
non-jury cases when “the parties [] decide that the pre-trial record establishes all the necessary
grounds upon which a judge may enter a final ruling on one or all of the issues in dispute,” thus, “in
essence, skipping trial and proceeding directly to judgment, submitting the case as stated.”
Garcia-Ayala v. Lederle Parenterals, Inc., 212 F.3d 638, 644 (1st Cir. 2000). In the instant case,
however, there is no evidence that the parties intended to “willingly forego[] their right to a full
trial.” Id. at 644 n.5 (quoting Acuff-Rose Music, Inc. v. Jostens, Inc., 155 F.3d 140, 143 (2d Cir.
1998)). To the contrary, there is ample evidence that the parties explicitly consented only to a Rule
56 summary judgment determination. Both parties’ district court briefs cited the summary judgment
standard, as did the district court’s opinion.

        The Rogerses, moreover, fail to cite any Sixth Circuit precedent adopting the clearly
erroneous standard of review that they urge the panel to utilize. Indeed, this court has previously
used the de novo standard in reviewing a district court’s grant of summary judgment in a maritime
limitation of liability action. See Clinton River Cruise Co. v. DeLaCruz, 213 F. App’x 428, 430 (6th
Cir. 2007).

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Rogers, et al. v. Lilly, 07-2039/07-3040

       In reviewing the decision of the district court, we draw all justifiable inferences in favor of

the non-moving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).

However, the non-moving party “must do more than simply show that there is some metaphysical

doubt as to the material facts.” Id. at 586. In ruling on a motion for summary judgment, “[t]he

judge may not make credibility determinations or weigh the evidence.” Adams v. Metiva, 31 F.3d

375, 379 (6th Cir. 1994) (citing Anderson, 477 U.S. at 255).

                                                 III.

       The Rogerses filed the instant case pursuant to the Limitation of Liability Act, 46 U.S.C.

App. §§ 183-189 (2005) (current version at 46 U.S.C. § 30501 et seq.). This statute, enacted in

1851, limits the liability of a ship owner to the value of the owner’s interest in a vessel and the

vessel’s freight, if the maritime accident at issue occurred without “privity or knowledge” of the

owner. 46 U.S.C. App. § 183(a); In re Muer, 146 F.3d 410, 414 (6th Cir. 1998). Moreover, “a ship

owner is entitled to exoneration if he, his vessel, and crew are found to be completely free of fault.”

In re Cleveland Tankers, Inc., 67 F.3d 1200, 1203 (6th Cir. 1995). This court has held that the

limitation of liability provisions of the statute apply to pleasure vessels. In re Young, 872 F.2d 176,

176 (6th Cir. 1989).

       The evaluation of a claim under the Limitation of Liability Act involves a two-step inquiry.

In re Muer, 146 F.3d at 415-16; see also In re Cleveland Tankers, Inc., 67 F.3d at 1203. First, the

court must determine what acts of negligence or unseaworthiness caused the accident. In re Muer,

146 F.3d at 415.       The person claiming to be injured—here, Lilly—carries the burden of

demonstrating negligence. In re Cleveland Tankers, Inc., 67 F.3d at 1203. If the allegedly injured


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Rogers, et al. v. Lilly, 07-2039/07-3040

claimant fails to establish negligence, then the ship owner is entitled to exoneration. Id. However,

if the claimant establishes negligence, the burden then shifts to the ship owner to prove lack of

knowledge or privity. Id. Upon satisfying this burden, the ship owner is entitled to limitation of

liability. Id.

        In an admiralty proceeding, a negligence claim consists of essentially the same elements as

common law negligence claim. Ginop v. A 1984 Bayliner 27' Cabin Cruiser, 242 F. Supp. 2d 482,

485 (E.D. Mich. 2003) (citing Pearce v. United States, 261 F.3d 643, 647-48 (6th Cir. 2001)). Thus,

the claimant must demonstrate: (1) the existence of a duty of care owed by the ship owner to the

claimant; (2) a breach of that duty; (3) a causal connection between the breach and the resulting

injury, or proximate cause; and (4) actual damages. Id. In the instant action, the district court

determined that the Rogerses owed a duty of care to their guests. Additionally, the court concluded

that Diane Lilly’s proffered expert report created a justiciable issue as to whether the vessel was

moored properly—i.e., whether the Rogerses had breached their duty of care. As to proximate

causation, however, the court found no genuine issue of material fact. The court explained, “there

is no actual evidence, whether direct or circumstantial, that the decedent fell from the boat,” rather

than the dock. Accordingly, the district court granted summary judgment to the Rogerses, thereby

exonerating them from any liability arising from Robert Lilly’s death. It is upon the issue of

proximate causation that Diane Lilly’s appeal rests.

        On appeal, Diane Lilly argues that there was, in fact, sufficient evidence on the issue of

causation to create a genuine issue of material fact, thereby precluding summary judgment. To

support this claim, Diane Lilly points to several pieces of evidence in the record: (1) Officer Sapio’s


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Rogers, et al. v. Lilly, 07-2039/07-3040

testimony that, shortly after the incident, Childs told him that Robert Lilly fell into the water when

he was stepping off the boat; (2) Sapio’s ODNR report recording Childs’ statement; (3) Officer

Gorman’s testimony that Childs told him Robert Lilly fell into the water while getting off the boat;

and (4) Gorman’s ODNR report recording this statement. We note that a significant portion of Diane

Lilly’s brief is devoted to arguments concerning the admissibility of these pieces of evidence.

Although the parties addressed the evidentiary issues in various briefs to the district court, the court

declined to reach the merits of these issues in its opinion granting summary judgment. Rather, the

district court concluded that, even without reaching the question of admissibility, the evidence

presented was “insufficient to create a genuine issue of material fact on causation.”

        Like the district court, we conclude that the evidence in the record does not create a genuine

issue of material fact as to the element of causation—i.e., as to whether Robert Lilly fell from the

dock or from the Maggie Lou.3 “The mere existence of a scintilla of evidence in support of [the

non-moving party’s] position [is] insufficient” to create a genuine issue of material fact precluding

summary judgment. Anderson, 477 U.S. at 252. In the instant case, Childs testified repeatedly at

her deposition that she did not know the location from which Lilly fell, as she had turned away to

get a soda. Shawver, the only other witness in the vicinity of the accident, testified at deposition that

he saw Lilly on A Dock, speaking to Childs on the boat; subsequently, after Shawver had looked


        3
         Because we conclude that the evidence is insufficient to create a genuine issue of material
fact, we need not resolve the issues concerning admissibility of the evidence. If, however, we had
concluded that a fact issue existed based on the questioned evidence, then we would have had to
resolve the issues of admissibility. See Smoot v. United Transp. Union, 246 F.3d 633, 649 (6th Cir.
2001) (“[I]t is well settled that only admissible evidence may be considered by the trial court in
ruling on a motion for summary judgment.” (quoting Wiley v. United States, 20 F.3d 222, 226 (6th
Cir. 1994))).

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Rogers, et al. v. Lilly, 07-2039/07-3040

away, he heard a splash. Childs’ and Shawver’s deposition testimony, then, permit us to draw only

one conclusion: Robert Lilly fell from A Dock, rather than from the Maggie Lou.

        This conclusion is consistent with an additional fact provided in Shawver’s testimony:

Shawver found Lilly flailing in the water in the area between A Dock and the swim platform. And

as the district court noted, the pictures of the Maggie Lou included in the record indicate that there

was more space into which a person could fall between the swim platform and A Dock than there

was between the finger dock and the boat—the disembarkation location, from which Diane Lilly

alleges that Robert Lilly fell. As the district court observed, “Diane Lilly offers no explanation based

on this evidence as to how Robert Lilly . . . could have gotten behind the boat from where she alleges

he fell.”

        We are not persuaded by Diane Lilly’s contention that the hearsay statements allegedly made

by Childs shortly after the incident, and recorded by Officers Sapio and Gorman, permit the inference

that Robert Lilly fell from the boat or while disembarking from the boat. Sapio’s investigative report

states that, according to Childs’ statement made at the scene, Lilly fell “when he was stepping off

the boat.” During a deposition, Sapio testified that Childs said Lilly fell when “they were coming

ashore stepping off onto the dock,” although later Sapio agreed that Lilly “fell from the boat.”

Gorman’s reports and testimony are even less helpful to Diane Lilly. Gorman’s reports indicate, in

various places, that Lilly “fell from boat,” “slipped off dock or boat while exiting,” and “fell between

boat and the dock into the water.” Gorman testified that the park rangers at the scene could not find

any witnesses who had actually seen Lilly fall; he stated, “We have no idea if he fell from the boat,

the steps or the dock.” Furthermore, Gorman noted that he interviewed Childs either the night of


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Rogers, et al. v. Lilly, 07-2039/07-3040

the incident or the next morning, and she indicated that she had not actually seen Lilly exit the boat,

as she had turned away to get him something to drink.

        This evidence is, at best, inconclusive, particularly since it does not indicate that Childs said

she saw Lilly fall from the boat. If the officers in fact accurately reported Childs’ statements, Childs

may have been making an assumption or unsupported conclusion about the place from which Lilly

fell. Indeed, Childs herself repeatedly asserted in her own deposition testimony that she did not see

Lilly’s fall. Quite simply, Childs’ statements, as reported by Sapio and Gorman, do not permit an

inference that Robert Lilly fell from the boat, rather than from the dock. Conversely, Shawver’s

testimony does allow an inference to be drawn: that Robert Lilly fell from A Dock, rather than from

the boat.

        Nor does the expert testimony offered by Diane Lilly advance her position. According to

Diane Lilly’s expert, James Wilson, the Maggie Lou was improperly moored; in his report, Wilson

explained that the absence of a properly adjusted dock line or a failure to cross the dock lines (which

moor the boat to the dock) would result in either the bow’s or the stern’s moving further from the

dock than the other end of the vessel. Even assuming this improper mooring, however, Diane Lilly

has provided no evidence that it had anything to do with Robert Lilly’s fall. Indeed, as noted above,

Lilly was found struggling in the water behind the boat, not at the embarkation/disembarkation

point—which suggests that he did not fall from the embarkation/disembarkation point, contrary to

the assertion of Wilson’s expert report. The evidence provided by Diane Lilly permits only

speculation about how the accident happened and does not permit an inference that improper

mooring caused Robert Lilly to fall from the boat at the embarkation/disembarkation point.


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Rogers, et al. v. Lilly, 07-2039/07-3040

        Thus, we conclude that the evidence is “so one-sided that [the Rogerses] must prevail as a

matter of law.” Anderson, 477 U.S. at 252. Accordingly, like the district court, we need not reach

the question of the admissibility of Childs’ hearsay statements and Wilson’s expert report.

                                                  IV.

        The Rogerses cross-appeal the judgment of the district court, which exonerated them from

all liability. The cross-appeal, which arises out of the district court’s denial of the Rogerses’ motion

to strike as moot, presents two issues: (1) whether the district court erred in failing to strike those

portions of the investigators’ reports attributed to Childs; and (2) whether the district court erred in

failing to strike Diane Lilly’s expert report and opinion. Because, however, the Rogerses prevailed

in all respects before the district court, we lack jurisdiction over the cross-appeal. See ASARCO, Inc.

v. Sec’y of Labor, 206 F.3d 720, 722 (6th Cir. 2000) (“It is a well settled principle that a prevailing

party cannot appeal an unfavorable aspect of a decision in its favor.”).

                                                  V.

        For the foregoing reasons, we affirm the judgment of the district court with respect to Diane

Lilly’s appeal. The Rogerses’ cross-appeal is dismissed for lack of jurisdiction.




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Rogers, et al. v. Lilly, 07-2039/07-3040

       COLE, Circuit Judge, dissenting. Because there are crucial discrepancies between the

parties’ versions of what happened on the Maggie Lou—creating a textbook “genuine issue of

material fact”—I believe summary judgment is inappropriate. I respectfully dissent.

       As the majority notes, the question in this case is one of proximate cause: whether the

Rogerses’ alleged negligence proximately caused Robert Lilly to fall to his death. In other words,

the critical issue is whether Lilly fell from the boat, for which the Rogerses would be liable if the

boat was moored improperly, or whether Lilly fell from the dock, for which the Rogerses would not

be liable. Assuming without deciding, as did the majority and the district court, that the proffered

evidence is admissible, I cannot agree that “it is so one-sided that one party must prevail as a matter

of law.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251 (1986). Indeed this is a classic case in

which the “evidence presents a sufficient disagreement to require submission to a jury.” Id.

       First, Officer Sapio’s report states, “While at the scene, a witness [Childs] came forward and

stated that she was on the boat with the victim and that when he was stepping off the boat, he slipped

and fell into the water.” Not only did Sapio later testify in depositions that Childs made this

statement immediately after the accident and before Lilly’s body had been recovered, but Sapio also

had reason to inquire carefully into and record this information: as an officer of the Ohio Department

of Natural Resources (“ODNR”), he would only have jurisdiction over the matter if Lilly fell from

the boat; if Lilly instead fell from the dock, the Cleveland Police Department would have

jurisdiction. Second, Officer Gorman, a member of ODNR’s Watercraft Division, reported that Lilly

“fell from the boat.” Third, the Watercraft Division investigation report, which notably labels the




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Rogers, et al. v. Lilly, 07-2039/07-3040

incident as a “Fall Overboard,” concluded, “As [Lilly] attempted to step on the dock he fell between

[the] boat and the dock into the water.”

        To be certain, this evidence is not undisputed. Shawver testified that he saw Lilly on the

dock and then heard a splash, leading to the conclusion that Lilly fell from the dock. In addition,

Childs testified at her deposition that she did not in fact know the location from which Lilly fell

despite telling the investigative officers on the scene that Lilly had fallen as he was stepping off the

boat. And there is testimony that Lilly was found in the water in the area between the dock and the

boat, and not between the boat and the point of disembarkment; yet, this is only a difference of

several feet, which Lilly could have traveled during his struggle.

        In sum, although there is ample evidence from which a jury could conclude that Lilly fell

from the dock, there is also considerable evidence that he fell from the boat. But, drawing all facts

and reasonable inferences therefrom in the light most favorable to Lilly, as we must, I cannot agree

that there is only one permissible conclusion. Indeed, to come to only one conclusion, in the face

of this conflicting evidence, the district court must have weighed the evidence and made credibility

determinations, functions which are solely within the province of the jury. Anderson, 477 U.S. at

255.

        Because this case presents genuine issues of material fact, only suitable for a jury to decide,

I would hold that the Rogerses are not entitled to summary judgment, and would remand to the

district court so that it may decide the evidentiary issues in the first instance.




                                                   14
