UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

CARROLL FELTON,
Plaintiff-Appellant,

v.                                                                   No. 98-1256

GEORGE F. FELTON, JR.,
Defendant-Appellee.

Appeal from the United States District Court
for the District of Maryland, at Baltimore.
Frederic N. Smalkin, District Judge.
(CA-97-1955-S)

Argued: January 25, 1999

Decided: June 11, 1999

Before ERVIN, NIEMEYER, and KING, Circuit Judges.

_________________________________________________________________

Affirmed by unpublished opinion. Judge Niemeyer wrote the opinion,
in which Judge Ervin and Judge King joined.

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COUNSEL

ARGUED: Thomas Joseph Dolina, BODIE, NAGLE, DOLINA,
SMITH & HOBBS, P.A., Towson, Maryland; Dwight Charles Stone,
Baltimore, Maryland, for Appellant. Michael Sean DeBaugh, LORD
& WHIP, P.A., Baltimore, Maryland, for Appellee. ON BRIEF: J.
Paul Mullen, LORD & WHIP, P.A., Baltimore, Maryland, for Appel-
lee.

_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

_________________________________________________________________

OPINION

NIEMEYER, Circuit Judge:

Carroll Felton filed this negligence action in admiralty against her
estranged husband, George Felton, for back injuries that Carroll sus-
tained while riding as a passenger in George's boat on the Chesa-
peake Bay in Maryland. The district court entered summary judgment
in favor of George, concluding that Carroll failed to offer sufficient,
admissible evidence to demonstrate that George was negligent, either
in operating his boat at an excessive rate of speed or in choosing to
undertake and to continue the voyage in adverse weather conditions.
We affirm.

I

On June 26, 1994, George and Carroll Felton left Anchor Bay
Marina in the Middle River section of Baltimore County for a day trip
across the Chesapeake Bay and back aboard George's newly-
acquired, 22-foot cabin cruiser. The Feltons were married at the time
but had been living apart for approximately 18 months.1 While the
Feltons dined across the bay at Mears Marina in Kent County, a
severe thunderstorm arose, causing George to postpone the return leg
of the voyage until the next morning.

When the Feltons awoke at dawn, the weather was"windy" and
"misting," with "relatively calm" water in the sheltered cove at Mears
Marina. Carroll told her husband that she did not wish to cross the bay
because she "was afraid it would be rough," but George decided to
undertake the 40-minute return voyage that morning because the radio
weather forecast had predicted an afternoon storm. Carroll did not
attempt to secure an alternate mode of transportation back.
_________________________________________________________________
1 The record is unclear as to whether they subsequently reconciled and
resumed living together prior to this appeal.

                    2
George had many years of experience operating powerboats,
including successful completion of a Coast Guard boating education
course. Carroll, on the other hand, had ridden in boats but did not
know how to operate one and, in fact, had dropped out of the boating
education course George had completed because she"wasn't inter-
ested."

As George navigated the boat out of the Mears Marina, Carroll sat
on a cushioned seat next to her husband in the back of the boat. When
the Feltons entered the bay, they encountered what Carroll character-
ized as "rough water," which prevented her from seeking shelter in
the cabin compartment. According to Carroll, George refused her
requests to discontinue the voyage and to slow down.

Approximately 15 minutes into the trip, as Carroll bounced up and
down on her seat, she heard and felt her back "snap." Upon arrival at
Anchor Bay, she was removed from the boat by paramedics. She was
eventually diagnosed with a compressed disc and a compression frac-
ture in her back.

Nearly three years later, on June 16, 1997, Carroll sued her hus-
band in admiralty, alleging negligence and unseaworthiness. The dis-
trict court granted George's motion for summary judgment,
concluding that "there is utterly no competent evidence offered that
makes out a triable case of negligence." Noting that Carroll admitted
to having no training or experience in operating boats and "no idea
of boat speeds," the district court found her testimony as to excessive
boat speed inadmissible under Federal Rule of Evidence 701, which
requires lay witness opinion testimony to be rationally based on the
perception of the witness. The district court also determined that Car-
roll, whose opposition to summary judgment was supported only by
her own deposition testimony, had failed to introduce evidence that
George's decisions to undertake and to continue the voyage were
"outside the realm of ordinarily pendent seamanship."2

The district court also denied Carroll's Rule 59(e) motion to alter
or amend the judgment, which she based on a new legal theory, and
_________________________________________________________________
2 Carroll does not appeal the grant of summary judgment to George on
her unseaworthiness claim.

                    3
some marine weather forecasts that she obtained for the Chesapeake
Bay area for the date of her injury. Observing that boat passengers
can bounce up and down in the absence of negligent boat operation,
the court rejected Carroll's first-time reliance on a res ipsa loquitur
theory. In addition, the court concluded that, even considering Car-
roll's submission of previously unproduced documents regarding
weather forecasts for the general vicinity of the accident, Carroll had
failed to produce sufficient evidence of negligence by George Felton.

II

In reviewing the district court's order granting summary judgment
to the defendant, we must "scrutinize[ ] the plaintiff's case to deter-
mine whether the plaintiff has proffered sufficient proof, in the form
of admissible evidence, that could carry the burden of proof of [her]
claim at trial." Mitchell v. Data General Corp., 12 F.3d 1310, 1316
(4th Cir. 1993). In response to a properly supported motion for sum-
mary judgment, the nonmoving party may not simply rest on her
pleadings or on conclusory allegations but must"set forth specific
facts showing that there is a genuine issue for trial." Fed. R. Civ. P.
56(e). In addition, only facts that would be admissible at trial may
defeat summary judgment. See id.; see also Mitchell, 12 F.3d at 1316.

To prevail in a negligence action in admiralty, a plaintiff must
demonstrate that the boat owner breached the duty of"exercising rea-
sonable care under the circumstances" that he owes to boat passen-
gers. Kermarec v. Compagnie Generale Transatlantique, 358 U.S.
625, 632 (1959). The district court properly concluded, in light of this
framework, that Carroll failed to introduce sufficient, admissible evi-
dence to avoid summary judgment.

First, as to Carroll's contention that George was negligent in oper-
ating the boat at an excessive rate of speed, the only evidence sup-
porting this allegation is Carroll's own conclusory deposition
testimony that he was traveling "[f]aster than I would have wanted to
be on a boat going. I have no idea of boat speeds, but it was fast, very
fast. . . . He was going too fast as far as I was concerned." The district
court did not err in concluding that this testimony was inadmissible
under Federal Rule of Evidence 701, and therefore insufficient to
defeat summary judgment. Federal Rule of Evidence 701 provides

                     4
that a lay witness' testimony in the form of opinions or inferences is
only admissible if it is "rationally based on the perception of the wit-
ness." In other words, lay opinion testimony is inadmissible absent an
adequate factual foundation demonstrating a rational link between the
witness' observations and her ultimate testimonial conclusions. See
United States v. Leak, 123 F.3d 787, 795 (4th Cir. 1997) (disregarding
lay witness opinion testimony for lack of "specific factual support for
[the witness'] belief"); see also Asplundh Mfg. Div. v. Benton Harbor
Eng'g, 57 F.3d 1190, 1198 (3d Cir. 1995) (explaining that the rational
basis prong of Rule 701 requires the lay witness' opinion to be
"grounded either in experience or specialized knowledge"); United
States v. Fowler, 932 F.2d 306, 312 (4th Cir. 1991) (permitting lay
witness opinion testimony only after an "adequate foundation" was
laid).

Without explicitly contesting the district court's conclusion that her
testimony as to excessive speed is inadmissible under Rule 701, Car-
roll argues that, through her prior experience as a passenger in boats
piloted by George, she "has acquired a sense of the reasonable speed
at which a small boat should travel" and that she can "competently
opine that George was traveling too fast in light of the weather." We
disagree.

Carroll identified no rational basis for her conclusion that George
was going too fast. She admitted that she had no training, education,
or interest in the operation of boats. In fact, when asked to estimate
the speed of the boat at the time her back was injured, she could only
say that it was "[f]aster than I would have wanted . . . too fast as far
as I was concerned." Carroll was also unable to specify the proper
boat speed, stating only that George should have been going "[j]ust
slower than whatever he was." Finally, the only reason Carroll identi-
fied for her conclusion that George was going too fast was that she
"can't imagine speeding through rough water." Thus, the only dis-
cernible basis for Carroll's testimony is her fear of riding in rough
water. Her bare assertion that her husband was going faster than she
preferred is precisely the kind of unsupported assertion that is prop-
erly excluded under Rule 701. And because Carroll introduced no
other evidence aside from her own deposition testimony, the district
court's entry of summary judgment was appropriate.

                    5
Next, Carroll maintains that the district court erred in requiring her
to use expert testimony to prove that George's actions fell below the
standard of care.3 Carroll's argument focuses on the district court's
statement that

          [g]iven the absence of any testimony by an expert establish-
          ing that Mr. Felton's operation of the boat deviated from the
          standard of care, and given Ms. Felton's self-confessed
          ignorance of seamanship, see Fed. R. Evid. 701, 702, there
          is not sufficient evidence upon which a reasonable trier of
          fact could conclude, by a preponderance, that Mr. Felton
          negligently operated the boat.

It is true that expert testimony is not necessary to establish negligence
"where the negligence and harmful results are sufficiently obvious as
to lie within common knowledge." Fitzgerald v. Manning, 679 F.2d
341, 350 (4th Cir. 1982) (internal quotation marks and citation omit-
ted). Nevertheless, this principle cannot make Carroll's case. The dis-
trict court did not mandate expert testimony to establish a breach of
the duty of care. Rather, the district court's statement merely reflects
the practical reality that the lack of both expert testimony and lay tes-
timony -- because Carroll's own testimony was inadmissible for lack
of a rational basis -- was fatal to Carroll's case.

Although Carroll need not have submitted expert testimony to
demonstrate that George's actions were unreasonable, she neverthe-
less failed to carry her burden to "set forth specific facts showing that
there is a genuine issue for trial." Fed. R. Civ. P. 56(e). Apart from
expert testimony, there are numerous types of evidence that Carroll
could have introduced in opposition to summary judgment to show
_________________________________________________________________
3 Carroll erroneously asserts that the district court failed to address her
claim that George was negligent not only in operating the boat at an
excessive speed, but also in deciding to undertake the voyage in the first
place and in refusing to turn back once the trip was underway. However,
after resolving the speed issue, the district court explicitly addressed
"other alleged lapses on Mr. Felton's operation of the boat" and con-
cluded that Carroll had failed to offer any evidence that George's "deci-
sions and actions were outside the realm of ordinarily pendent
seamanship."

                     6
that George was negligent in going too fast or in crossing the bay at
all. For example, regarding negligence through excessive speed, Car-
roll could have compared George's speed that day to the speeds of
other boats she saw, or she could have pointed to objective limitations
of the boat at that speed. And regarding negligence in venturing out
and not turning back, Carroll could have stated whether she saw other
boats on the water that day or whether George knew about and
ignored Coast Guard advisories or warnings. Carroll could have sub-
mitted additional evidence to establish the severity of the actual
weather conditions, such as testimony from the harbor master at
Mears Marina or weather reports recording conditions in the relevant
area of the bay. Instead, Carroll chose to rely solely on her own depo-
sition testimony giving subjective impressions.

Finally, we review a district court's decision to deny Carroll's Rule
59(e) motion to alter or amend the judgment for abuse of discretion.
See Pacific Ins. Co. v. American Nat'l Fire Ins. Co., 148 F.3d 396,
402 (4th Cir. 1998). We have recognized three grounds for amending
an earlier judgment, none of which properly apply here: "(1) to
accommodate an intervening change in controlling law; (2) to account
for new evidence not available at trial; or (3) to correct a clear error
of law or prevent manifest injustice." Hutchinson v. Staton, 994 F.2d
1076, 1081 (4th Cir. 1993).

We have made clear that such motions are not to be used "to raise
arguments which could have been raised prior to the issuance of the
judgment," nor "to argue a case under a novel legal theory that the
party had the ability to address in the first instance." Pacific Ins. Co.,
148 F.3d at 403. Based on this principle, the district court need not
even have considered Carroll's attempt to advance the doctrine of res
ipsa loquitur for the first time in her motion to alter or amend. In any
case, the district court did not abuse its discretion in rejecting the
applicability of the doctrine. See Estate of Larkins v. Farrell Lines,
Inc., 806 F.2d 510, 512 (4th Cir. 1986) (noting that "[t]he mere hap-
pening of an accident . . . does not give rise to a res ipsa inference
of negligence or breach of duty under . . . general maritime law").

In addition, Carroll's submission of an affidavit and various
weather forecasts does not qualify as new evidence appropriately
introduced in a Rule 59(e) motion because this evidence could have

                     7
been, but was not, presented in opposition to summary judgment. See
Small v. Hunt, 98 F.3d 789, 798 (4th Cir. 1996) (requiring a party
seeking to present new evidence in a Rule 59(e) motion to "produce
a legitimate justification for not presenting the evidence during the
earlier proceeding" (internal quotation marks and citation omitted)).
In any case, the weather forecasts did not purport to describe actual
conditions; they were merely forecasts. And in this case, they forecast
an average of 2-foot waves for the Chesapeake Bay north of the Poto-
mac River with 20 knots of wind and showers. There was no evidence
that a 22-foot cabin cruiser should not reasonably be on the water
under such conditions.

For the reasons stated, the judgment of the district court on the
motion for summary judgment and its ruling on the motion to alter or
amend the judgment are

AFFIRMED.

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