## Facts

- The United States Coast Guard maintained a large navigational aid in Wrangell Narrows near Petersburg, Alaska.
- The aid sank and disappeared in the channel.
- The Coast Guard conducted dragging operations and issued a written notice to mariners stating the aid was not present above the contour of the natural bottom.
- Otness’s vessel later collided with the submerged aid and was damaged.
- Otness sued the United States under the Federal Tort Claims Act, alleging the Coast Guard negligently searched for and reported the hazard.
- The court’s liability findings included that no efforts were made to locate the structure from October 23, 1957, to January 7, 1958, supporting a finding that the United States breached its duty of due care.
- After the evidence closed at trial, Otness moved to amend the complaint under Rule 15(b) to allege the Coast Guard’s conduct was willful, wanton, or reckless, rather than merely negligent.

## Issues

1. Whether Rule 15(b) permits a post-evidence amendment adding a willful, wanton, or reckless misconduct theory when the change would prejudice the opposing party.
2. Whether the United States expressly or impliedly consented to trying an issue of willful, wanton, or reckless misconduct so that the pleadings could be amended to conform to the evidence.

## Decision

- The court denied the motion to amend under Rule 15(b).
- The court found the amendment would prejudice the United States because it defended the case as one of ordinary negligence and pleaded contributory negligence on that basis.
- The court found no express or implied consent by the United States to try a heightened-culpability claim.
- The court concluded the evidence did not support a finding of willful, wanton, or reckless conduct.

## Legal Principles

- Under Rule 15(b), an amendment to conform pleadings to the evidence is appropriate only when the new issue was tried by the parties’ express or implied consent.
- A late amendment may be denied when it would materially alter the opposing party’s theory of defense or applicable burdens and thereby cause prejudice.
- Evidence relevant to negligence does not, by itself, establish that a willful/wanton/reckless issue was tried by consent.
- When a proposed amendment asserts a heightened culpability theory unsupported by the record, it is not a proper Rule 15(b) conforming amendment.

## Conclusion

The court refused to allow the plaintiff to recast an ordinary negligence FTCA case into one alleging willful, wanton, or reckless misconduct after the close of evidence because the United States did not consent to litigating that issue, the record did not support it, and the shift would prejudice the government’s contributory-negligence defense.


Otness v. United States, 23 F.R.D. 279 (D. Alaska Terr. 1959)