A federal judge has sided with a plaintiff in a negligence case, awarding a little more than $115,000 to the plaintiff after she was struck during a sailboat race by an opposing boat.
The action arose out of a July 2002 accident during a sailboat race off Jetties Beach in Nantucket.
Defendant Donncha Kiely was at the helm of a Hunter 140 sailboat, when she jibed the boat during the race. The tip of the boom struck plaintiff Julianne Marie Evans, a passenger sitting port side in a nearby Hunter 140 sailboat. Defendant Ronan O’Siochru was at the helm of the sailboat in which Evans was the only other occupant.
Evans sought recovery from Kiely and O’Siochru for negligence under general maritime law. The defendants, both instructors at Nantucket Community Sailing, Inc., argued that Evans was comparatively negligent in her failure to pay attention, keep a lookout for herself and/or notice Kiely’s nearby boat. In December 2005, the parties entered into a stipulation that: “the only claims . . . that are being presented in this litigation are for the loss of taste and loss of smell;” that “there will be no claims . . . for loss of earning capacity, either past or future;” and that “medical expenses” are limited to “expenses that are related to loss of smell and taste.”
Relevant here, the court accepted the testimony of a physician who gave specific tests relative to the nature and depth of the plaintiff’s injury–the loss of taste and smell. The court became convinced that “the loss was proximately caused by the accident and not by plaintiff’s hypothyroidism. As for the parties’ negligence, (Kiely’s) conduct in undertaking a jibe and misjudging the distance between the boom and plaintiff amounted to negligence contrary to 33 U.S.C.S. foll. 30 R. 17. (O’Siochru) was negligent by failing to take early or substantial action to avoid a collision contrary to 33 U.S.C.S. foll. 30 R. 16. Both defendants were at fault for failing to maintain a proper distance between the sailboats.
“The plaintiff was at fault for not paying attention; if she had acted with reasonable care, she would have seen the boom and moved in time to avoid it hitting her neck. Fault was apportioned as follows: (O’Siochru), 35 percent; (Kielys), 25 percent; and plaintiff, 40 percent. Damages totaling $150,000 adequately and fully compensated plaintiff for her loss of taste and smell. The court was not persuaded that the activities and substitution of trial counsel warranted a denial of prejudgment interest.”
Julianne Marie Evans v. Nantucket Community Sailing, INC., a Massachusetts Corporation, Ronan O’Siochru and Donncha Kiely; D. Mass.; CIVIL ACTION NO. 05-10088-MBB; 2008 U.S. Dist. LEXIS 85628; 10/22/08
Attorneys of Record: (for plaintiff) Alan L. Cantor, David P. Angueira, Edward M. Swartz, LEAD ATTORNEYS, Swartz & Swartz, Boston, MA; Constance L. Rudnick, LEAD ATTORNEY, Marielise Kelly, Richard A. Gargiulo, Gargiulo, Rudnick & Gargiulo, Boston, MA; Steven D. Miller, LEAD ATTORNEY, Plantation, FL; Jeffrey A. Miller, Boca Raton, FL. (for defendants)
Terence G. Kenneally, Thomas J Muzyka, LEAD ATTORNEYS, Clinton & Muzyka, P.C., Boston, MA; Thomas J Muzyka, LEAD ATTORNEY, Terence G. Kenneally, Clinton & Muzyka, P.C., Boston, MA.