Opinion
No. CV-04-0084038S
July 27, 2005
MEMORANDUM OF DECISION
On July 5, 2002, the plaintiff Lisa Grinberg (Grinberg) was a passenger, along with several other individuals, on a watercraft that was being operated by the defendant Steven McCorvie Wham (Wham) on the Housatonic River in Milford, Connecticut. Grinberg brought suit against Wham alleging that she was injured on that date as a result of Wham's negligent operation of the watercraft. On July 20, 2005, the parties waived their right to a jury trial and tried the issue of negligence, as alleged in paragraph 5 of the one-count complaint, to the court. The court reserved decision after hearing evidence, either live or by way of deposition, from all the individuals who were present on the boat on the day of the incident.
The plaintiff is also known as "Lisi" Grinberg and was referred to by that name during the course of the trial.
At plaintiff's request, the court sequestered the two non-party witnesses who were present, Jesahna Avery Wham and Elizabeth Kosakowska.
I.
Certain facts were undisputed by all the witnesses. In 2002, Grinberg was a friend of Jesahana Avery Wham (Avery), known as Avery, the defendant's sister. Avery invited Grinberg, Grinberg's then boyfriend David Hofflich (David), and two women friends, Elizabeth Kosakowska (Elizabeth) and Sherry Kay Sloboda (Sherry Kay), all New Yorkers, to spend a portion of the July 4th week-end in Connecticut. On July 5, 2002, at around noon, the five of them went to Milford, Connecticut where Wham resided and moored his boat, a 1997 Four Winds Horizon, which was a 24' sport boat, operated by a single inboard-outboard engine, with an open bow. It was their intent to motor out of the Housatonic River into Long Island Sound in order to enjoy the beautiful July day. They had no specific destination. Grinberg sat in the front of the boat where there was a seating area that permitted her to stretch her legs out in front of her and place her back against the side of the boat. Wham was operating the boat. They left the marina where Wham's boat was moored and proceeded down the river. They stopped at a location called Knapp's Landing to gas up the boat and then proceeded toward Long Island Sound. Shortly thereafter, the boat passed over one or more wakes. Thereafter, Grinberg yelled out in pain. She was attended to by David and others on the boat, the trip was aborted and they returned to the marina where they had started out earlier that afternoon so that Grinberg could attend to her injury.
There is, however, a remarkable divergence of memory as to the cause of the wake or wakes over which all agree the boat passed. Grinberg maintains that, after they left Knapp's Landing, Wham was operating the boat at a high rate of speed and generated two wakes over which the boat passed as it was proceeding straight out the river toward the open water. She maintains that she yelled to Wham to slow the boat down both before and after the boat passed over the first wake, but that he failed to do so. She maintains that when the boat passed over the second wake she flew up from her seat and then slammed back down in a sitting position, experiencing immediate pain. The five other individuals on the boat, however, all recalled that a boat passing too fast in the opposite direction was the cause of the wake or wakes. While their recollections may have differed as to the size and color of the boat going in the opposite direction, there is no doubt that it was this boat, passing to the left of Wham's boat, and not Wham's boat, that generated the wake or wakes over which Wham's boat proceeded.
II.
The question before the court is whether the plaintiff has proven, by a fair preponderance of the evidence, that Wham was negligent in the operation of his boat as it proceeded over the wake or wakes in the manner alleged in paragraph 5 of the complaint: failing to keep a proper lookout, failing to keep and operate the boat under proper control, operating the boat at an unreasonable rate of speed, and failing to slow the boat down or heed requests that he reduce its speed. In order to satisfy the burden of proof on the essential element of negligence by a fair preponderance of the evidence, the credible evidence presented must induce "in the mind of the trier a reasonable belief that that it was more probable than otherwise that the facts involved in that element were true." Busker v. United Illuminating Co., 156 Conn. 456, 458, 242 A.2d. 708 (1968); C. Tait, Tait's Handbook of Connecticut Evidence (3d Ed. 2001), § 3.5.1, p. 140. There was no evidence presented that Wham failed to observe the approaching boat, as plaintiff's counsel conceded in closing argument. Thus, there is no evidence to support the specification that Wham failed to keep a proper lookout. The other specifications of negligence will be considered in order.
The court concludes that the plaintiff has failed to prove, by a fair preponderance of the evidence, that Wham did not keep the boat under proper control. In reaching this conclusion, the court must rely solely on the evidence presented and the reasonable inferences the court may draw from that evidence. The credible evidence establishes that Wham was operating the boat at a low rate of speed and observing the "no wake" zone requirement that the boat proceed at approximately 6 m.p.h. When he first observed the approaching boat Wham had no reason to believe it would create a wake that his boat could not handle. He had few options because he was at a point in the river where the channel was narrow and, as a result, he was unable to move his boat to the right as the approaching boat passed him approximately twenty feet to his left. If he had tried to turn the boat that maneuver might have caused his passengers to bounce. He could not slow his boat because he was already proceeding at the slowest speed. He could have accelerated the boat slightly, an acceptable method for passing over a wake, and he may, in fact, have done that because doing so could make the ride somewhat less bouncy. David recalled that the boat and its passengers were bouncing, although Avery, Elizabeth and Sherry Kay recalled that the drinks they were holding did not spill when the boat crossed over the wakes. David believed that Wham did accelerate to go over the wakes, which he recalled happening in quick succession as "1, 2, 3," with no more than two seconds elapsing between the first and second and second and third bounce. According to David, the passengers would be jostled whether you proceeded over a wake gently or with some acceleration. Whether Wham actually accelerated or maintained his speed to cross over the wake of the approaching boat, the evidence supports the conclusion that has kept the boat under reasonable control.
While a trial court, sitting as the finder of fact, is "free to apply its common knowledge and experience" to draw inferences from established facts, Tianti v. William Raveis Real Estate, Inc., 231 Conn. 690, 702, 651 A.2d. 1286 (1995), the operation of watercraft is beyond the court's common knowledge and experience. There was no expert evidence introduced as to the proper manner of operating a watercraft over a wake. However, the court can and does rely on the testimony of the defendant Wham, a licensed boat operator and owner for eleven years and the testimony of David Hofflich, who had considerable experience on and around boats.
The court concludes that the plaintiff has failed to prove, by a fair preponderance of the evidence, that Wham was operating the boat at an unreasonable rate of speed. Grinberg is the only witness who maintains that Wham was going too fast. Although David recalled that Wham accelerated to go over the wake and that he thought Wham should not have done so, he conceded that it is acceptable to speed up to go over a wake. The credible evidence supports the conclusion that Wham was operating the boat at a reasonable rate of speed and observing the posted "no wake" speed requirement.
Counsel argued that the court could draw an inference of unreasonable speed from the fact that Grinberg came off her seat and suffered a compression fracture at T-11. There was no evidence presented, however, as to the mechanics of that injury and the requested inference is beyond the court's common knowledge.
Having concluded that Wham was operating the boat at reasonable rate of speed, the court must conclude that the final specification of negligence, which alleges that "the defendant failed to slow the watercraft down to an appropriate rate of speed despite repeated requests from the plaintiff and others that he reduce the speed," cannot be established as a ground for liability. The court has no reason not to believe Grinberg when she claims that she yelled out to Wham to slow the boat down around the time the boat first encountered the wake. Her testimony was somewhat corroborated by David's recollection that after the boat had already passed over the second of three wakes he heard someone say "slow down." Nonetheless, even if Wham had been asked to slow the boat down at the time he encountered the wake, there was neither sufficient time for him to do so nor is there any reason to believe that slowing down from an already reasonable rate of speed would have prevented Grinberg from being jostled by the wake.
III.
It is unfortunate for the plaintiff that what was intended to be an enjoyable boating excursion on a beautiful day in July turned out differently for her. Nonetheless, the law does not impose on a defendant any responsibility for causing an injury without evidence of his negligence. Accordingly, based on the court's conclusion that the defendant's negligence has not been established by a fair preponderance of the evidence, judgment shall enter in favor of the defendant on the complaint.
LINDA K. LAGER, JUDGE