F/V Carolyn Jean, Inc. v. Schmitt ex rel. Estate of Schmitt

Timothy Schmitt, a crewman, died when the fishing vessel BARBAROSSA disappeared in the Bering Sea. His estate appeals an order granting summary judgment in favor of the BARBAROSSA’s owner, F/V Carolyn Jean, Inc. (“Carolyn Jean”), on the issue of whether Schmitt endured pre-death pain and suffering. This presents us with a close question of the kind one could expect on a law school exam. We hold that the evidence, when viewed in favor of the estate, supports the claim that Schmitt was conscious for at least some period of time after he suffered the injuries which resulted in his death, and therefore we reverse and remand the case for trial.

Jurisdiction in the district court was proper under 28 U.S.C. § 1333 . 28 U.S.C. § 1291 gives us jurisdiction over this timely appeal. The district court’s grant of summary judgment is reviewed de novo. Fuller v. Golden Age Fisheries, 14 F.3d 1405 (9th Cir.1994).

FACTS

Timothy Schmitt was a crewman on the BARBAROSSA, a fishing vessel participat *885 ing in the opilio crab harvest in the Bering Sea. At about 11:00 on the night of February 9, 1991, the BARBAROSSA departed from St. George Island. Approximately two hours later, three…