                       United States Court of Appeals
                         FOR THE EIGHTH CIRCUIT
                                 ___________

                                 No. 97-1152
                                 ___________

Mark C. Leach, Special Administrator  *
of the Estate of Penny N. Leach,      *
Deceased,                             *
                                      *
     Appellant,                       * Appeal from the United States
                                      * District Court for the Western
     v.                               * District of Arkansas.
                                      *
Mountain Lake, Doing Business as      *
Mountain Harbor Resort, Inc., an      *
Arkansas Corporation,                 *
                                      *
     Appellee,                        *
                                      *
     and                              *
                                      *
Waco Manufacturing, Inc., an          *
Arkansas Corporation,                 *
                                      *
     Defendant.                       *
                                 ___________

                           Submitted: June 13, 1997

                                Filed: July 25, 1997
                                 ___________

Before McMILLIAN, BOWMAN, and MORRIS SHEPPARD ARNOLD, Circuit
      Judges.
                         ___________
MORRIS SHEPPARD ARNOLD, Circuit Judge.

       The plaintiff in a diversity action appeals from the trial court's grant of
summary judgment to the defendant on two claims and from the judgment entered on
the jury's verdict for the defendant on the remaining claim. We affirm the judgments
of the trial court.1

                                              I.
       The facts of this case, although tragic, are simple. One spring afternoon, the
decedent, a friend, and their five children rented a boat on Lake Ouachita from a marina
owned and operated by the defendant. When the party rented the boat, the weather
seemed calm. The National Weather Service ("NWS"), however, had issued what is
called a Lake Wind Advisory earlier that day that warned of strong afternoon winds on
the lakes in the area. Although the marina had a radio that received NWS broadcasts,
it was the practice of the marina's personnel neither to monitor the broadcasts nor to
acquire weather information and pass it on to its customers. The marina, therefore, did
not inform the boating party about the wind advisory.

       During the outing, one of the children fell into the water when a strong gust of
wind rocked the boat. The child had been sitting on the edge of the boat dangling her
feet in the water, and was not wearing a life jacket. The decedent, who also was not
wearing a life jacket, dived into the water to save the child. The friend attempted
unsuccessfully to throw life jackets to the two and to steer the boat so that she could
reach them. The friend then jumped into the water herself and rescued the child, but
could not find the decedent, who drowned.




      1
      The Honorable Jimm Larry Hendren, United States District Judge for the
Western District of Arkansas.

                                          -2-
        The decedent's estate sued the marina, alleging that the defendant was negligent
in failing to advise the party of the NWS advisory and the temperature of the water, in
failing to equip the boat with safety equipment specifically required by an Arkansas
statute, and in failing to equip the boat properly (because it lacked certain other safety
equipment). The trial court granted summary judgment to the defendant on the first and
third claims, and a jury found in favor of the defendant on the second. This appeal
followed.

                                              II.
       The plaintiff maintains that the marina owed the boaters the duty of ordinary
care, and that the question of whether that duty encompassed a duty to acquire and
disseminate information about the weather to boaters was one of fact for the jury to
decide. We believe that the trial court's thorough and well-reasoned opinion
demonstrates both why that question is one of law and why the marina had no such
duty to acquire and pass on weather information. As the trial court explained, there is
no generalized tort action for the failure to use ordinary care. One must act carefully
in performing one's duties, but if there is no duty owed to a particular plaintiff, the issue
of ordinary care simply does not arise.

      Relying on the analysis in First Electric Cooperative Corp. v. Pinson,
642 S.W.2d 301, 303-04 (Ark. 1982), the trial court thus reasoned that the real issue
was not whether the marina owed the boaters a duty of ordinary care, but rather
whether there was a legal duty on its part to acquire and transmit information about
potentially hazardous weather conditions. To survive summary judgment, therefore,
the trial court believed that the plaintiff had to show that the marina had a duty, under
the law, to advise the boaters of weather information. The trial court noted that,
contrary to the plaintiff's assertions, that decision was one of law to be made by the
court and that it was not for the jury simply to decide whether, under the facts of the
case, the marina exercised ordinary care when it did not inform the boaters of the
weather conditions.

                                            -3-
            After noting that it had found no statute, rule, regulation, or case law
suggesting that the bailor of a boat has a legal duty to advise bailees of weather
information, the trial court, relying on the discussion in Prosser and Keeton on the Law
of Torts about when the law creates a liability for nonfeasance based on a special
relation between the parties, held that the question of whether to impose the kind of
duty that the plaintiff seeks to have recognized here was best left to the legislature. See
W. Keeton, D. Dobbs, R. Keeton, and D. Owen, Prosser and Keeton on the Law of
Torts § 56 at 373-85 (W. Keeton ed., 5th ed. 1984). The trial court further noted that,
even if the matter was one for the court, it perceived no such justification, and then
demonstrated, with examples, that such a duty to warn of the weather would be rather
unwieldy in practice. The trial court noted, too, that weather information is readily
available to those who rent boats (should they choose to seek it), that boaters can
themselves observe weather and sea changes and ascertain water temperature, and that
the ability of boaters to do this is not in any way dependent upon what marinas do or
do not tell them. The trial court therefore concluded that the defendant did not have a
duty to warn the boaters of potentially adverse weather conditions. We are persuaded
by the thorough reasoning of the trial court, and note also that its conclusion comports
with what little case law there is that addresses the issue. See Craine v. United States,
722 F.2d 1523, 1525 (11th Cir. 1984) (bailor of boat had no duty to warn of dangers
of operating a boat in a rapid current or near a dam), and Alberti's Administratrix v.
Nash, 282 S.W.2d 853, 855 (Ky. 1955) (bailor of boat had no duty to warn of choppy
waters on lake).

       The plaintiff also claims that the defendant failed to equip the boat properly, for
two reasons. First, the plaintiff asserts that the boat was improperly equipped because
it lacked certain equipment not required by law, such as a boat hook, ropes, and ring
life buoy. Providing such rescue equipment, the argument runs, was necessary to
satisfy the marina's duty of ordinary care even though it was not required by statute.
The trial court, noting that the relevant state regulatory agency had not determined that
such equipment was necessary to promote navigational safety, expressed a reluctance

                                           -4-
to impose a duty in navigational matters unrecognized by those in charge of
navigational policy. The trial court accordingly granted summary judgment on this
claim to the defendant. We agree with the trial court's reasoning and conclusion that
duty or ordinary care with respect to the proper equipment of boats imposes no
requirements beyond those enumerated in the pertinent statutes and regulations.

        The plaintiff's final claim is that the defendant failed properly to equip the boat
because it lacked a certain flotation device required by statute. That issue, along with
that of the decedent's negligence, went to the jury, which returned a verdict in favor of
the defendant. Because we uphold the trial court's grant of summary judgment to the
defendant on the issues discussed above, we need not address the plaintiff's contention
that the erroneous grant of summary judgment kept the jury from considering evidence
relevant to the other claims in assessing the relative fault of the parties.

                                          III.
      For the foregoing reasons, we affirm the judgment of the trial court in its entirety.

      A true copy.

             Attest:

                 CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.




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