Opinion
No. CV 07 5003023
January 13, 2009
MEMORANDUM OF DECISION ON PLAINTIFF'S MOTION TO SET ASDE JUDGMENT
This vigorously contested case was tried to the court on November 18, 2008, when after the presentation of the plaintiff's case and upon motion of the defendant the court entered judgment for the defendant on the basis that the plaintiff had failed to make out a prima facia case.
Thereupon, the plaintiff on November 25, 2008, filed a Motion requesting the court to reconsider and set aside the previous decision. The defendant filed an objection to the motion on December 15, 2008. Both parties filed memoranda in support of their respective claims. A hearing was held in this court on the motion at which both parties were well represented by counsel and had an opportunity to advance their respective claims.
This is a case where the relevant evidence offered by the plaintiff established that the plaintiff was a passenger in a boat operated by the defendant when the boat encountered a substantial wake created by a passing ferry which caused the boat to move abruptly which, in turn, caused the plaintiff to rise off her seat and return abruptly with resulting injuries. Except for an explanation of how the incident happened there was no evidence as to how the defendant deviated from any standard of conduct or did anything which a reasonably prudent person would not have done under the circumstances. There was no credible testimony, either expert or otherwise, as to an alternative appropriate way for a boat operator to address a large wake encountered while boating. The plaintiff appears to be relying on a general duty to keep passengers "safe."
The defendant offers the argument that expert testimony may be required to establish an appropriate duty of a boat operator; but, whether expert or not there was no evidence as to any other procedure which should have been followed by the defendant.
The court concludes that the defendant boat operator is not an insurer. The defendant did not create the wake which caused his boat to move abruptly. The plaintiff did not sue the operator of the boat which created the wake in this situation.
The motion to set aside is denied.