Cynthia Sue Reber Courtney Brianne Reber, by and Through Cynthia Sue Reber, Guardian Ad Litem v. United States , 951 F.2d 961 ( 1991 )

HUG, Circuit Judge:

Cynthia Reber and her daughter (the “Rebers”) brought a wrongful death action against the United States. The Rebers alleged that either an overhead military shell or an unexploded military ordnance on the sea floor caused the destruction of the Cindy Fay, a fishing vessel, thereby causing the death of Boyd Reber. The United States answered the Rebers’ allegations, denying any responsibility for Reber's death. After a bench trial, the district court entered judgment for the United States, holding that the Rebers failed to prove by a preponderance of the evidence that the destruction of the Cindy Fay was caused by an underwater explosion or an overhead shell.

FACTS

Boyd Reber was an experienced commercial fisherman who fished the waters off San Clemente Island. On February 21, 1986, Reber and Frank Germano, his sole crewman, departed San Pedro, California on board the Cindy Fay bound for a commercial fishing trip to San Clemente Island. San Clemente Island is a United States Naval Reservation where missile testing, artillery practice, and shore bombardment exercises have been conducted for more than 40 years. The areas in which these activities are conducted are subject to various restrictions and mariners are generally notified when and where the military activities will occur.

Reber had an arrangement with his wife, Cindy, where he would call her by radio at least every 72 hours while he was at sea. On February 23 at 7:00 p.m., Reber called Cindy to report that all was going well. He also informed Cindy that he would be fishing alone on the west side of the island and might not be able to call again within the 72 hours. This was the last contact Cindy had with Reber.

Reber's body, along with some wreckage, was found off Mail Point, on the western side of San Clemente, by Paul Donohoe, another fisherman, shortly after 8:00 a.m. on March 2, 1986. Reber was not wearing a life preserver, survival suit, or a slicker when found. The following day, Frank Germano’s body was sighted on shore south of Mail Point. Germano did not have either a life preserver or a slicker on. There was also a significant amount of vessel wreckage and fishing gear in the area.

Both Reber and Germano were taken to the San Diego Coroner’s office. Dr. John Eisele, a pathologist, performed autopsies on both decedents. Although Reber’s autopsy revealed a fractured nose, broken bones above his eyes, and severe lacerations in his forehead, the cause of death was listed as salt-water drowning, which Eisele estimated had occurred less than a week prior to March 2. Likewise, Germa-no’s autopsy revealed severe lacerations across his forehead, a three-inch laceration in his chin, multiple rib fractures, and internal damage on the left side of his torso, indicating a blunt impact to the left side of his body. There were also lacerations on his left lung and liver, which were listed as the cause of death.

Between February 24 and 27, 1986, the Navy conducted three bombardment exercises at San Clemente Island. At trial, the Rebers presented extensive evidence relating to the Navy’s operations in the water off San Clemente Island during the period of time surrounding the discovery of Boyd Reber’s body. The Rebers contend that either a bomb or similar type of explosive on the ocean floor was detonated during the net retrieval operation of the Cindy Fay or that a five-inch shell from a destroyer engaged in shore bombardment exercises overshot the target area and landed in the water and exploded directly under or in very close proximity to the Cindy Fay.

Both parties introduced a great deal of expert testimony at trial to support their respective theories of what caused the destruction of the Cindy Fay and the resulting deaths. The Rebers’ experts attempted to develop the case that there had been an underwater explosion. Their experts included Mr. Joseph Hrzina, an engineer with some experience in calculating the force of explosions, and Mr. Craig Ploss, who has a Bachelor of Arts degree in political science and experience and training in underwater explosives. The Government’s expert was Dr. Robert D. Short, who has a Bachelor’s degree in Civil Engineering and a Doctor of Engineering from the University of California at Berkeley in Naval Architecture and Engineering Mechanics.

Through Dr. Short’s testimony, the Government presented extensive and detailed evidence refuting the Rebers’ theory of an underwater explosion. This testimony included evidence regarding the type of damage sustained by the Cindy Fay, the type of injuries sustained by the decedents, and the location of loose objects from the vessel. The district court, after reviewing Dr. Short’s experience record, concluded that he was “quite an impressive expert with respect to underwater explosions.”

After evaluating all the evidence presented through expert testimony, the district court found that the Rebers’ experts failed to prove by a preponderance of the evidence that an underwater explosion caused the loss of the Cindy Fay.

DISCUSSION

I.

We review findings of causation, or lack thereof, for clear error. Churchill v. The F/V Fjord, 892 F.2d 763, 770 (9th Cir.1988), cert. denied, — U.S. —, 110 S.Ct. 3273, 111 L.Ed.2d 783 (1990).

Here, conflicting testimony existed from the Rebers’ and the Government’s experts as to the cause of the Cindy Fay’s destruction. The Rebers’ expert claimed that an underwater explosion caused the loss. In contrast, the Government expert noted that the widespread distribution of the wreckage militated against an underwater explosion, as did the equal bending of the propeller blades and the damage done to vertical posts. Therefore, the Government expert opined that an underwater explosion was not the cause of the destruction of the Cindy Fay.

The district court listened to numerous witnesses and took into account the investigative report, which noted the lack of powder burns of any sort on the wreckage. The court based its conclusion on the total sum of evidence and testimony and found that the Rebers failed to show by a preponderance of the evidence that an underwater explosion was the cause of the loss.

At trial, the Rebers relied on the doctrine of res ipsa loquitur, and they contend on appeal that the district court did not give appropriate consideration to that doctrine. Res ipsa loquitur acts as a form of circumstantial evidence that permits an inference of negligence to be drawn from a set of proven facts. Ashland v. Ling-Temco-Vought, Inc., 711 F.2d 1431, 1437 (9th Cir.1983).¹ It is important to note that res ipsa loquitur does not create a presumption that a defendant’s negligence caused the injury, rather it is only an inference that the fact finder may accept or reject in considering the whole of the evidence. Id. at 1441. Usually, the importance of the doctrine is that when the elements necessary to invoke the doctrine have been proved, that is enough to avoid a directed verdict or a summary judgment— it becomes a question of fact for the fact finder.

Here, the district judge in this bench trial did not specifically mention the doctrine of res ipsa loquitur, but he did consider the circumstantial evidence presented by the Rebers and the inference that an underwater explosion caused the accident. He simply did not find it persuasive enough to carry the plaintiff’s burden of proof.

The district judge weighed the circumstantial evidence and the inferences to be drawn therefrom in light of the testimony of the experts. Tracing through the elements of res ipsa loquitur would have placed the case in no different posture. The district judge would still have been left to weigh the circumstantial evidence along with the testimony of the experts and other evidence produced at the trial.

The court’s conclusion is a plausible view of the evidence; we cannot find that the district court was clearly erroneous. See Anderson v. City of Bessemer City, 470 U.S. 564, 573-74, 105 S.Ct. 1504, 1511-12, 84 L.Ed.2d 518 (1985) (“If the district court’s account of the evidence is plausible in light of the record viewed in its entirety, the court of appeals may not reverse it even though convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently.”).

II.

The Rebers contend that the district court must be reversed because a military ordnance explosion is the only reasonable explanation for the destruction of the Cindy Fay, even if they are unable to prove by a preponderance of the evidence that such an explosion occurred. The Rebers have the burden of proving that the military’s negligence was the cause of Reber’s death. See Northern Fishing & Trading Co. v. Grabowski, 477 F.2d 1267, 1271 (9th Cir.) (claimant must establish that the defendant was negligent and that the negligence was the proximate cause of the loss), cert. denied, 414 U.S. 1079, 94 S.Ct. 597, 38 L.Ed.2d 485 (1973). The burden is not on the Government to prove what caused the death. Nor is the burden on the Government to prove a negative, i.e., that they did not cause the death.

The Rebers, to prevail, had to establish that the military was negligent (in overshooting a shell or in leaving an unexploded ordnance on the sea bottom), and that this military negligence caused the death of Reber. The district judge, who heard the witnesses and viewed the evidence, found the Rebers did not meet that burden. At the appellate stage, based on a cold record, we cannot say that finding was clearly erroneous.

III.

The Rebers also contend that the district court’s oral opinion did not constitute sufficient compliance with Fed. R.Civ.P. 52(a). Rule 52(a), however, states that: “It will be sufficient if the findings of fact and conclusions of law are stated orally and recorded in open court....” See also Vance v. American Hawaii Cruises, Inc., 789 F.2d 790, 792 (9th Cir.1986) (findings satisfy the function of Rule 52 if they provide an ample basis for appellate review).

Here, the basis for the district court’s factual findings was sufficiently stated in the oral opinion. In short, the court indicated that it placed its reliance on the Government’s expert testimony that an underwater explosion or an overhead shell did not cause the loss. Therefore, we find that the district court complied with Rule 52(a).

AFFIRMED.

1 . It is generally stated that to invoke the doctrine of res ipsa loquitur the following three elements must be established: (1) an injury-producing event of a kind that ordinarily does not occur in the absence of someone’s negligence; (2) the event must be caused by an agency or instrumentality within the exclusive control of the defendant; and (3) the event must not have been due to any voluntary action or contribution on the part of the plaintiff.