Boating deaths result in lawsuits

By Kelly Holleran | Sep 17, 2009

CHARLESTON – The drowning deaths of two young children and their aunt has created a battle of lawsuits between survivors of the boating accident and owners of the towboat that collided with the personal watercraft on which the children and their aunt were riding.

The boating accident, which was front page news for days after it happened, occurred during the late night and early morning hours of June 22 and June 23, 2007.

Jill and Michael Fisher, their two children –- 16-month-old Jesse Fisher and four-year-old Samantha Fisher -– and Jill's sister and brother-in-law –- Jennifer and Roger D. Poston Jr. -– were cruising down the Ohio River in Michael Fisher's 1986 Bayliner 1600 Capri Caddy when the collision occurred at about 2 a.m., according to the complaint.

As a result of the collision, Michael Fisher's boat began to sink, causing Jesse and Samantha Fisher and Jill Poston to drown, the suit states.

Although all parties named in the lawsuits agree on the drowning deaths, blame for the deaths is being thrown in different directions.

In their three separate complaints, all filed June 22 in Kanawha Circuit Court, Jill Fisher and Roger Poston Jr. blame SMI, who owned the towboat, and Davis, the boat's pilot, for the collision.

"At the time of the subject collision, the Defendants were operating their craft –- the MV Derek Taylor –- in a negligent manner," the suit states.

At the time of the collision, SMI was working in cooperation with Shelly to haul materials down the river, the complaint says. Because it possessed a duty to assure that the boat used to haul materials was being operated in a safe manner, Jill Fisher and Roger Poston say Shelly is also to blame for the collision.

But in their answer to Jill Fisher's and Roger Poston Jr.'s complaints and in their counter-complaints, the defendants fault Michael and Jill Fisher for the collision.

At some time prior to midnight on June 22, 2007, the Fishers launched Michael Fisher's Bayliner from a dock at Ravenswood Boat Landing, the defendants claim.

"The passengers on the Bayliner proceeded upriver with Michael Fisher operating his boat, when they stopped, partied and fished for awhile before proceeding further upriver where they encountered heavy fog and restricted visibility," the defendants' answer states. "On information and belief, Shelly alleges that, upon encountering the fog, Michael Fisher and the other adult passengers on the Bayliner became disoriented and, in an effort to locate the bank, shut off the engine of the Bayliner and began shining strong lights in an attempt to locate the bank, but resulting only in decreasing the night vision of the passengers and Michael Fisher."

At the same time as Michael Fisher was attempting to locate the bank, Davis was piloting the towboat and its two loaded sand barges, a crane barge, a flat deck barge and a smaller towboat north on the Ohio River near mile 216.

"As the Towboat was slowing down and navigating toward the right descending bank to tie off in anticipation of heavy fog, the Bayliner moved into the path of the Towboat and its Tow, resulting in a collision with the Tow," the answer states.

When the collision occurred, Jesse and Samantha Fisher were asleep in the cabin area of the Bayliner, unattended and without personal flotation devices, the defendants claim in their answer. Jennifer Poston, who did not know how to swim, also did not have on a personal flotation device, according to the answer.

By allegedly failing to provide personal flotation devices for her children and sister, by negligently neglecting their children while under the influence of alcohol, fatigue and/or drugs and by failing to keep a proper lookout, the defendants say Michael and Jill Fisher are responsible for the drowning deaths of their children and sister.
In their counter-complaints against the estate of Michael Fisher and Jill Fisher, the defendants allege Michael and Jill Fisher were guilty of negligence.

In her second complaint, Jill Fisher accuses the defendants of being responsible for her husband's shooting death that occurred more than two months after the boating accident.

Michael Fisher was killed by a West Virginia state trooper on Sept. 1, 2007, after the trooper responded to a report of gun fire at Michael and Jill Fisher's house, according to the complaint.

"Upon arriving at the scene, the state trooper was confronted by plaintiff's decedent who was brandishing a fire arm, refused to drop the fire arm and advanced on the trooper who shot and killed him in self-defense," the suit states. "Plaintiff believes and, therefore, alleges that her decedent intended to kill himself and did so by failing to heed the commands of the state trooper and advancing on him, thus causing the state trooper to kill him."

At the time he was killed, Michael Fisher was in "a highly distraught frame of mind" because of the collision and because he witnessed his children and sister-in-law drown, the complaint says.

However, the defendants claim they are not responsible for Michael Fisher's death.

"Upon information and belief, investigative reports on the shooting reflect that Michael S. Fisher was advancing toward the police officer in an intoxicated state with a large caliber pistol in hand after having been ordered by the officer to lay down the weapon," the defendants' answers state. "At the time of the confrontation, Michael S. Fisher had failed to appear in the Magistrate Court of Jackson County to answer three misdemeanor charges of negligent operation of a boat resulting in death arising out of the June 23, 2007 Collision and he was in unlawful possession of the pistol having previously been convicted of domestic battery."

Even right after the incident, Jill Fisher made widespread public comments that Michael Fisher had dropped his gun and was murdered by the state trooper, the defendants claim.

In each of the suits, Jill Fisher and Roger Poston are seeking an unspecified judgment.

In their answer to the complaints, the defendants are asking the complaints to be dismissed with prejudice, which would force Jill Fisher and Roger Poston to pay for court costs. In their counter-complaints, the defending companies and Davis are seeking a judgment in their favor commensurate with the percentage of fault attributable to each adult occupant if Jill Fisher and Roger Poston obtain a judgment in any sum.

Because complete diversity of citizenship exists between Jill Fisher and Roger Poston and the defending companies and pilot, the defendants removed all three cases to U.S. District Court. In addition, Jill Fisher and Roger Poston are seeking judgments worth more than $75,000, the defendants say.

Jill Fisher and Roger Poston will be represented by Jonathan R. Mani, Bernard E. Layne III and Damon L. Ellis of Mani, Ellis and Layne in Charleston, by Anthony Majestro and J.C. Powell of Powell and Majestro in Charleston and by John E. Sutter and Lynnette Marshall of The Sutter Law Firm in Charleston.

In her lawsuit blaming the defendants for her husband's death, Jill Fisher will be represented by Larry O. Ford and Letisha R. Bika of Charleston.

The defendants will be represented by John R. Hoblitzell and Erin K. Jones of Kay, Casto and Chaney in Charleston and by E. Spivey Gault of Gault, Marshall and Box in Paducah, Ky.

U.S. District Court case numbers: 2:09-902, 2:09-903, 2:09-906

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