              Case: 12-10674    Date Filed: 04/19/2013   Page: 1 of 11


                                                              [DO NOT PUBLISH]

                IN THE UNITED STATES COURT OF APPEALS

                        FOR THE ELEVENTH CIRCUIT
                          ________________________

                                 No. 12-10674
                           ________________________

                       D.C. Docket No. 1:06-cv-20861-PCH

DWIGHT JOHANNES DOWNS,

                                                                 Plaintiff - Appellee,

                                       versus

UNITED STATES ARMY CORPS OF ENGINEERS,

                                                             Defendant - Appellant.
                           ________________________

                   Appeal from the United States District Court
                       for the Southern District of Florida
                         ________________________

                                  (April 19, 2013)

Before TJOFLAT, PRYOR and FAY, Circuit Judges.

PER CURIAM:

      The main issue in this appeal is whether Dwight Johannes Downs can

establish that the United States Army Corps of Engineers was negligent under

Florida law when it allowed rocks to be included in the fill material for a beach

renourishment project. After staying up all night drinking alcoholic beverages,
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Downs dove in shallow ocean waters on Miami Beach. Downs’s head struck a

rock, and he suffered a burst fracture of a vertebra in his neck, which rendered him

a quadriplegic. Downs sued the Corps under the Federal Tort Claims Act, 28

U.S.C. §§ 1346(b), 2671–2680, and alleged that the rock that he struck had been

negligently placed on the beach by the Corps. The district court entered a

judgment in Downs’s favor for $1,977,820.69. But Downs introduced neither

expert testimony necessary to prove a professional standard of care under Florida

law nor evidence to support a finding of causation in fact. We reverse the

judgment in favor of Downs and render a judgment in favor of the Corps.

                                 I. BACKGROUND

      Dwight Johannes Downs spent the evening of April 7, 2003, drinking beer

with his friend Darrell Drapeau. Downs and Drapeau stayed up all night, and

Downs consumed ten to twelve beers and a Hennessy Cognac. In the early

morning hours of April 8, Downs and Drapeau went to the area of Miami Beach

between 72nd and 73rd Streets. Downs consumed two or three more beers at the

beach before he entered the ocean and dove head first into the water. Downs’s

head struck a rock, and the impact burst a vertebra in his neck and rendered him a

quadriplegic.

      The portion of the beach where Downs broke his neck was part of the Dade

County Beach Erosion Control and Hurricane Protection Project. That project

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involved dredging fill material from offshore locations and adding that material to

portions of Miami Beach. Congress approved the project to be completed in

accordance with the recommendations of the United States Army Corps of

Engineers. In 1972, the Corps and Miami Dade County entered a local cooperation

agreement that defined the responsibilities for both parties for the project. The

agreement provided that the “parties mutually agree that only suitable material will

be used for project beach fill, such suitable material being defined as non-rocky,

sandy material similar to that of the existing beach.”

      The Corps divided initial construction on the project in five phases. The

portion of the beach where Downs was injured was part of the second phase. The

Corps awarded the contract for this portion of the project to Construction

Aggregates Corporation in 1978. The terms of the contract and later modifications

required Construction Aggregates to remove all rocks larger than two inches in

diameter from the top twelve inches of beach fill. Construction Aggregates

completed initial construction on the second phase of the project in 1980. The

Corps has performed periodic maintenance on the project since then.

      Downs sued the United States for negligence under the Federal Tort Claims

Act. He alleged that the Corps negligently designed and constructed the project

when it allowed large rocks to be included in the fill material during the beach




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renourishment. He also alleged that the Corps negligently failed to prevent the

exposure of rocks through erosion.

      The Corps moved for a summary judgment on the ground that Downs’s

claim was barred under the discretionary function exception to the Federal Tort

Claims Act. The district court ruled that the language of the Cooperation

Agreement did not establish a fixed or readily ascertainable standard and granted a

summary judgment in favor of the Corps. We reversed that summary judgment

and remanded for the district court to determine whether the requirement that

“non-rocky material similar to that of the existing beach” provided a definite or

readily ascertainable standard in the light of parol evidence. See Downs v. United

States, 333 Fed. App’x 403, 413 & n.6 (11th Cir. 2009).

      On remand, the district court conducted an evidentiary hearing and found

that “non-rocky, sandy material similar to that of the existing beach” referred to a

“material consisting almost exclusively of sand (as defined by the Corps’ soil

classification system), with only a small percentage of interspersed gravel no larger

than one or two inches in diameter.” The district court concluded that this term

provided a fixed or readily ascertainable standard and that the Corps was not

immune from suit under the discretionary function exception to the Federal Tort

Claims Act.




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       The Corps then moved for a summary judgment or a judgment on the

pleadings on the grounds that Downs’s suit was barred by the Florida Statute of

Repose, Fla. Stat. § 95.11, and that the Corps did not owe Downs a duty to

maintain or warn. Downs withdrew his duty to warn claim, and the district court

held a partial trial on whether the Florida Statute of Repose barred Downs’s

complaint. The district court ruled that the running of the statute of repose had not

begun because performance of the Cooperation Agreement was ongoing. The

district court also concluded that the Corps owed a duty to maintain because

control, not ownership, determines whether a party owes that duty under Florida

law.

       The district court then held a bench trial on liability. At the trial, Dr. James

Funk, an expert in biomechanical engineering for the government, testified that

only a dive at a deep vertical angle would have generated enough force for a

collision with a rock the same size as the rocks found in the area where Downs

dove to cause a burst fracture and that, even if Downs had not collided with a rock,

a collision with the ocean floor after a deep vertical dive would have caused a burst

fracture. Downs introduced written testimony of an expert in biomechanical

engineering, Dr. Richard Stalnaker, who testified that Downs must have collided

with a rock to suffer a burst fracture, but his opinion assumed that Downs dove at a

flat angle. Dr. Stalnaker also testified that Downs would not have suffered a burst

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fracture if his body had not been properly aligned. The district court credited Dr.

Funk’s testimony and found that it was likely that Downs dove into the ocean at a

deep diagonal angle and struck his head on a large rock. The district court also

found that it was likely that the rock had been placed on the beach as part of the

renourishment project and had been exposed by erosion. The district court found

that the Corps had breached a duty to Downs and that this breach was the cause of

Downs’s injuries because his injuries were foreseeable. The district court allocated

50 percent of the liability to Downs, 15 percent of the liability to Miami-Dade

County, 15 percent of the liability to the Corps, 10 percent of the liability to

Florida, and 10 percent of the liability to the City of Miami Beach. After a bench

trial on damages, the district court entered a judgment against the Corps for

$1,977,820.69.

                          II. STANDARDS OF REVIEW

      Two standards of review govern this appeal. We review the legal

conclusions of the district court de novo, and the factual findings of the district

court for clear error. Cohen v. United States, 151 F.3d 1338, 1340 (11th Cir.

1998). The application of the discretionary function exception to the Federal Tort

Claims Act is a legal issue that we review de novo. Id.

                                 III. DISCUSSION




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      The Corps argues that the district court lacked jurisdiction because the

Cooperation Agreement failed to establish a sufficiently definite standard, but we

agree with the district court that the Cooperation Agreement provided a specific

mandatory standard. The district court had subject-matter jurisdiction over this

matter.

      Although we disagree with the Corps on the issue of jurisdiction, we agree

with the alternative argument of the Corps that Downs failed to prove that the

Corps acted negligently under Florida law. “The Federal Tort Claims Act []

authorizes private tort actions against the United States ‘under circumstances

where the United States, if a private person, would be liable . . . in accordance with

the law of the place where the act or omission occurred.’” United States v. Olson,

546 U.S. 43, 44–45, 126 S. Ct. 510, 511 (2005) (quoting 28 U.S.C. § 1346(b)(1)).

To prevail on his claim of negligence under Florida law, Downs had to prove that

the Corps owed him a duty, that the Corps breached that duty, and that the breach

caused Downs’s injuries. See Moransais v. Heathman, 744 So. 2d 973, 975 n.3

(Fla. 1999). Downs failed to introduce substantial evidence that the Corps both

owed him a duty and caused his injuries.

      Downs failed to introduce any evidence of the standard of care among

engineers. The duty owed by a professional is “a duty to perform the requested

services in accordance with the standard of care used by similar professionals in

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the community under similar circumstances.” Id. at 975–76. “Expert testimony is

required to define the standard of care when the subject matter is beyond the

understanding of the average juror.” Ins. Co. of the W. v. Island Dream Homes,

Inc., 679 F.3d 1295, 1298 (11th Cir. 2012) (applying Florida law). In the absence

of expert testimony about the standard of care among engineers, we cannot

conclude that the Corps violated a standard of care.

      Even if Downs could establish that the Corps owed him a duty, Downs’s

claim of negligence would still fail because he failed to prove that the Corps

caused his injury. Florida law required Downs to prove that the breach of duty was

the proximate cause of his injury. See Stahl v. Metro. Dade Cnty., 438 So. 2d 14,

17 (Fla. Dist. Ct. App. 1983). “To constitute proximate cause there must be such a

. . . [relationship] between the negligent act and the injury that it can reasonably be

said [that] but for the act the injury would not have occurred.” Sardell v. Malanio,

202 So. 2d 746, 747 (Fla. 1967) (internal quotation marks and alteration omitted).

The record does not support the finding that Downs’s collision with a rock was the

but-for cause of his injury.

      Nothing in the record supports a finding that a collision with a rock was

necessary for Downs to suffer a burst fracture from a mostly vertical dive. The

district court found that Downs dove into the ocean at a deep diagonal angle, and

the district court credited the testimony of Dr. Funk that only a mostly vertical dive

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could have caused Downs’s injury. But Dr. Funk also testified that “if you take the

rock away, the same neck injury would occur” because of a collision with the

ocean floor. Dr. Funk explained that the mass of the ocean floor “provides the

resistance to generate the force [that] breaks the neck.” The district court

recognized that Dr. Funk’s testimony meant that “Downs could have suffered the

burst fracture that he did because gravity and ‘the greatest rock of all,’ the Earth,

provide[d] additional ‘force and momentum.’” This testimony about the

consequence of a deep diagonal dive was unrebutted. Downs’s expert, Dr.

Stalnaker, testified that a collision with a rock was necessary to cause a burst

fracture, but Dr. Stalnaker’s analysis assumed that Downs dove into the ocean at a

flat angle. Dr. Stalnaker did not testify about whether Downs’s head would have

had to collide with a rock for him to suffer a burst fracture if he dove into the water

at a mostly vertical angle.

      Downs argues that Dr. Stalnaker’s testimony relied only on the alignment of

Downs’s body not the angle of the dive, but we disagree. Although Dr. Stalnaker

testified that proper body alignment was necessary for Downs to suffer a burst

fracture, he also testified that his analysis assumed that Downs dove at a flat angle.

Dr. Stalnaker’s testimony cannot support a finding that Downs would not have

suffered his injury if he had not collided with a rock because the district court

found that Downs dove at a deep vertical angle.

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                              IV. CONCLUSION

      We REVERSE the judgment in favor of Downs and RENDER a judgment

in favor of the Corps.

      REVERSED and RENDERED.




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FAY, Circuit Judge, specially concurring:

      I concur in the result of the majority opinion and that portion dealing with

causation.




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