Boating Negligence

Plaintiff slips on cup left on ladder of pleasure craft owned by plaintiff''s father - Fractured tibia.

Monmouth County

The male plaintiff, age 40 at trial, who was a guest on the 35 foot pleasure craft owned by the defendant, his father, contended that a cup was left on the ladder used to ascend/descend the boat''s fly bridge. The plaintiff maintained that after remaining on the fly bridge for some 20 minutes he descended the ladder whereupon he slipped on the cup and fell approximately five feet. The plaintiff contended that the defendant was aware that individuals would at times use the ladder as a shelf and that he should have inspected the area, especially since he knew the plaintiff was on the fly bridge and would be using the ladder to descend.

The defendant argued to the Court that principles of the duties owed by a landowner should apply and that the defendant could not be liable to the plaintiff licensee because the alleged negligence did not involve a failure to warn of a known, hidden hazard. The plaintiff argued that this standard should not apply to a boat. The plaintiff maintained that under Cerciello vs. MacConchie, 282 NJ Super 436 (App Div 1995), the situation was analogous to the duty of reasonable care owed by the owner of a motor vehicle and that the defendant could be liable on the basis of constructive notice. The Court concurred and so instructed the jury.

The defendant vigorously denied negligence and maintained that he takes pride in maintaining his boat in good condition. The defendant also contended that the plaintiff was comparatively negligent. The plaintiff presented a retired Coast Guard captain who testified, over objection that his testimony would impinge on the common knowledge of the jury, that the configuration of the boat and ladder would render it very difficult for the plaintiff to see the cup as he was descending from the fly bridge. The expert''s testimony was limited to the issue of comparative negligence.

The plaintiff maintained that he suffered a compound comminuted tibia fracture which required an open reduction and the insertion of hardware through the knee. The plaintiff contended that although the fracture healed well, he will permanently suffer pain and stiffness in the knee. The plaintiff contended that he has been forced to give up favored activities of water skiing and is restricted in the extent to which he can continue a favored activity of repairing cars because of his difficulties bending. The plaintiff also contended that the jury should consider that although the physicians had estimated he would miss ten months or more from his factory job, he returned in two months and was clearly not a malingerer.

The parties stipulated to approximately $19,000 in lost wages and unpaid medical bills. The jury found the defendant 100% negligent and awarded $120,000. Approximately $19,000 in special damages were added to the award.

REFERENCE

Plaintiff''s liability expert: Capt. Hubert T. Bloomquist from Brick. Plaintiff''s orthopedic surgeon Robert Dennis from Seaview orthopedics, Neptune.

Miagas vs. Migas. Docket no. L-4341-96: Judge Robert O''Hagan, 8-23-99.

Attorney for plaintiff: Robert M. Anderson of Hanna & Anderson in Manasquan; Attorney for defendant: William T. Hilliard of Purcell Ries Shannon Mulcahy & O''Neill in Bedminster.