Some of you might say I don’t write enough about legal things; that I pitter on about this and that when the reason you turned the page was to read a sodium-laced legal tidbit. Fine. Here you go.
Picture a recreational boat with eight people aboard. Courts aren’t particularly good journalists and so there are always facts missing you don’t need for the legal decision, but they’d be nice to know. I’m assuming it was a bowrider-style boat. Use your mind’s eye to fill in the rest. A fellow we’ll call Frank was steering and the boat was owned by, say, the Underhills, and Betty as we’ll call her was riding in the bow. Got it?
As far as we can tell from what the Court tells us, it was a peach of day in this coastal region. Betty is probably grinning wide because they’d been to the pool, beach, restaurant and had just finished a stint of knee boarding. Maybe it was Frank or Betty or just the force of the moment that somehow had them deciding to take the boat into the ocean for a spin which meant they had to go through an inlet to exit. Betty, I’m guessing, is sitting with her back to the bow looking aft with that grin still wide not realizing maybe that a large yacht is passing them. A big yacht, probably going too fast and definitely throwing a wake. Frank it seems does his best to get the bow of the boat oriented in a way to lessen the wake, but who knows. Betty rises up with the bow, the bow drops and Betty lands heavily, fracturing her spine.
Some time thereafter Betty sues the owners of the boat she was riding aboard (the Underhills) and sues Frank who was driving. It seems she was seeking to establish fault through a claim of negligence – that is, a claim based on the idea you owed me a duty of reasonable care which you breached.
Things did not go well for Betty at trial. She lost. t was a bench trial with the Court deciding both the law and the facts. The Court found that Frank hadn’t breached his duty of care. The Court liked the testimony that Frank was operating at a reasonable speed, that Frank saw the wake and that Frank took action to minimize the effect of the wake. On appeal, Betty didn’t do any better. She lost. The Appeals Court upheld the trial court’s findings.
What’s the takeaway? The maritime lawyer you hire makes a big difference in the outcome. I’m not kidding. Justice isn’t just blind; she can be downright feeble and you need a lawyer who brings a coherent and strong presentation. Reading the tea leaves (and it’s just an opinion) but Betty’s lawyer was either outgunned or just out to lunch. For instance, IMO Betty’s expert seemed super inexperienced and it didn’t seem like there was a good theory of what Frank did wrong.
The lack of a good theory could be because Betty’s lawyer took a crappy deposition of Frank. It could be her attorney didn’t sink the shiv in Frank during the deposition by chasing him down about the timing of when he first saw the yacht (to establish time to turn around and totally avoid the wake); Frank’s expectation of large wakes in that inlet; what Frank did to minimize the risk to his passengers in light of knowing he’d likely encounter large wakes and on and on. I love these depositions because they can be devastating and provide large caliber ammunition on which your expert witness can build his or her testimony.
And what about the Underhills? Had they properly equipped the boat? I can’t tell from the decision what happened to the claims against them; maybe there wasn’t enough evidence developed to keep them in as defendants. Again, I’d like to have taken their deposition because I’d like to know what they did or didn’t do knowing the boat might be taken through the dangerous (that seems an appropriate word) inlet. And what about warnings? Should Betty have been allowed to ride in the bow? I’d like to look at the boat’s operating manual to see what it says. I’d do a boat inspection and look for a warning sticker.
I have this feeling that decent maritime personal injury claims should rarely be lost on the facts. If you know the maritime law and know something about boating and are willing to put the energy in to win, success is at hand. Still, aside from Betty losing, what happened or didn’t happen behind the scenes is largely speculative on my part. It could be that Betty’s claim was prepared beautifully and the facts just didn’t fall her way. That can happen.
We see vessel wake injuries in this office. They can be life-altering injuries, changing a person’s baseline forever. All too often we see boat operators as reckless, indifferent and totally capable of having controlled the situation in a way where our clients would not have suffered injury. I wish we’d been able to help Betty.
Underway and making way. ■
John K. Fulweiler, Esq. is a Proctor-in-Admiralty representing individuals and small businesses in maritime matters including personal injury claims throughout the East and Gulf Coasts and with his office in Newport, Rhode Island. He can be reached at 1-800-383-MAYDAY (6293) or email@example.com, or visit his website at saltwaterlaw.com.