Colross v. Imperato
| Decision Date | 28 June 2022 |
| Docket Number | Civil Action 19-14573 (ZNQ) (DEA) |
| Parties | LINDA A. COLROSS, Plaintiff, v. JOHN IMPERATO in personam, and the recreational vessel MIDNIGHT RIDER II, its engines, tackle and appurtenances, etc., in rem, Defendants. |
| Court | U.S. District Court — District of New Jersey |
LINDA A. COLROSS, Plaintiff,
v.
JOHN IMPERATO in personam, and the recreational vessel MIDNIGHT RIDER II, its engines, tackle and appurtenances, etc., in rem, Defendants.
Civil Action No. 19-14573 (ZNQ) (DEA)
United States District Court, D. New Jersey
June 28, 2022
NOT FOR PUBLICATION
OPINION
ZAHID N. QURAISHI, UNITED STATES DISTRICT JUDGE
This is a personal injury suit within the Court's admiralty jurisdiction[1] arising out of a boating accident which occurred on the navigable waters off the coast of Long Beach Island, New Jersey. On July 1, 2019, Linda A. Colross (“Plaintiff”) filed this suit against John Imperato (“Defendant.”) (“Compl.” ECF No. 1.) Shortly after, Plaintiff filed her amended complaint in which she alleges Defendant negligently operated the vessel, violating several statutes regarding the safe navigation of vessels and causing her injuries. (See generally Am. Compl., ECF No. 8.)
A bench trial was held on February 15, March 1-2, and May 4, 2022. Following the trial, the parties submitted proposed findings of fact and conclusions of law to the Court. (ECF Nos. 51, 52.) The Court, having fully considered the testimonial, video, photographic, and documentary evidence presented and admitted at trial, the arguments of counsel and the applicable law, makes
the following findings of fact and conclusions of law pursuant to Rule 52 of the Federal Rules of Civil Procedure[2].
I. STIPULATED FACTS[3]
1. On July 15, 2017, the Plaintiff, Linda A. Colross, was a passenger aboard the vessel, MIDNIGHT.
2. Linda Colross was a paralegal at the time of the accident, but is now retired.
3. At the time of the accident Linda Colross and John Imperato were in a relationship.
4. At the time of the accident, MIDNIGHT was being operated on the navigable waters of the intracoastal waterway.
5. The Defendant, John Imperato, owned, managed, operated and otherwise controlled the subject vessel, MIDNIGHT.
6. On July 15, 2017, including Plaintiff and Defendant there were a total of 6 persons on the vessel.
7. The voyage originated from the Spray Beach Yacht Club on Long Beach Island, New Jersey, at around noon that day with the primary destination being Motts Creek Inn; the vessel was then to return to Spray Beach Yacht Club.
8. Visibility was virtually unlimited.
9. Linda Colross holds a New Jersey boating safety certificate, has boated from an early age, and owned her own boat.
10. The defendant did not see any vessel that could have created a wake.
11. Linda A. Colross was injured during the subject voyage.
12. David Wilkes, T. Sean Kelly, Jaclyn Ward, and Laurie Imperato were also passengers on the vessel on July 15, 2017.
II. ISSUES FOR TRIAL
1. Whether Defendant is liable for the injuries Plaintiff suffered during the boating accident on July 15,2017?
2. Whether Plaintiff is entitled to damages for the injuries suffered, and in what amount?
III FINDINGS OF FACT
A. Defendant's boating experience
1. Defendant is a certi fied recreational boat operator who has been boating since around 1997. (Tr. 18:17-19; 23:1-12.)
2. Defendant is an experienced boater, and he frequently takes his boat out for operation. (Tr. 106:13-17.) The Court finds Defendant, for approximately the past twenty-three years, has operated his boat on average 150 to 200 hours a season. (AZ) Plaintiff also had boating experience and was familiar with boats. (Tr. 55:3-9). Plaintiff testified that she had a boating certificate, that she previously owned a boat, and even lived on a boat during some summer seasons as a child. (A/.)
3. Defendant is familiar with the waterways along Long Beach Island, the Intracoastal Waterway (“ICW”), and the Great Bay. (Tr. 107:6-11; Def's Proposed Findings of Fact and Conclusions of Law 2:10, ECF No. 52.) Defendant testified that he has navigated this path from Long Beach Island to the Great Bay where Mott Creek Inn is located for more (han forty to fifty times over the years. (Tr. 107:7-10.)
B. The July 15,2017, Accident
4. Prior to the July 15, 2017, accident, the parties were in a long-term relationship and took hundreds of trips together on Defendant's boat. (Tr. 106:13-17.)
5. On the date of the accident, July 15, 2017, Defendant planned to depart from Spray Beach Yacht Club in Long Beach Island and arrive at Motts Creek Inn for lunch with Plaintiff and others. (Tr. 79:15-18; Def's Proposed Findings of Fact and Conclusions of Law 2:9.) As highlighted in the stipulated facts, the other passengers present included: (1) David Wilkes, Plaintiff's son, (2) Laurie Imperato, Defendant's daughter, (3) Sean Kelly, a friend of David Wilkes and Laurie Imperato, and (4) Jacqueline Ward. (Pl.'s Proposed Findings of Fact and Conclusions of Law 3:13-15; 3:18, ECF No. 51.) At the time of the accident, Plaintiff was seated on the port cockpit seat. (Pl.'s Ex. 12; Pl.'s Proposed Findings of Fact and Conclusions of Law 3:17.)
6. Defendant navigated his boat on the ICW past the southern tip of Long Beach Island. (Tr. 110:1-5.) A nautical chart showed the water around the ICW has a width of at least 300 yards and depth ranging from twenty-five to forty-four feet. (Pl.'s Ex. 2A-C.)
7. Defendant was operating his boat at a speed between twenty-two through twenty-five miles per hour. (Tr. 115:19-21; Def.'s Proposed Findings of Fact and Conclusions of Law 3:16.)
8. Initially Plaintiff was not concerned with Defendant's navigation of the vessel, but she became concerned when the vessel began to head toward the shoals[4]and outside the channel. (Tr. 66:24-25; 67:6-9.) David Wilkes, a passenger and Plaintiffs son, credibly testified and corroborated Plaintiffs testimony here. (Tr. 81:18-19.) Wilkes testified that although he could not see directly in front of him, he could see the red channel marker,
where it should have been on the right, and that MIDNIGHT was outside the channel. (Tr. 82:1-6.) Sean Kelly also credibly testified that Defendant was out of the channel. (Tr. 93:4-7.) In light of these testimonies and contrary to Defendant's testimony[5], the Court finds that Defendant was out of the channel.
9. After becoming concerned, approximately three times, Plaintiff verbally alerted Defendant that he was veering toward the shoal. (Tr. 57:21-22.) With each warning, Plaintiff became agitated. (Tr. 113:7-8.)
10. Defendant responded to the previous two warnings stating he had things under control and testifying that he was not concerned. (Tr. 113:1-3) However, by the time Plaintiff issued the third warning, Defendant became distracted and looked down at his GPS. (Tr. 113:9 12.) Defendant even testified that he began to doubt whether his navigational route was correct as a result of Plaintiffs repeated verbal warnings. (Id.)
11. As he did this, Defendant veered towards a channel marker which he did not see until the last minute because he was looking down at the GPS. (Tr. 58:10-25.) As Defendant was looking down at his GPS, he was again alerted by Plaintiff. (Tr. 59:23-25.) This time her warning was even louder, and she was quite literally yelling profanities at Defendant to notify him that he was out of the channel. (Tr. 93:13-16.) While Defendant continued to look down at the GPS, Plaintiff and other passengers noticed a fishing boat speedily approaching their direction. (Tr. 59:10-15; 83:1-6; 94:12-14.)
12. The fishing boat created a large wake. (Tr. 59:23-25; 60:8-13; 83:15-17.) The wake was about two to three feet high. (Tr. 83:18-19; Def.'s Proposed Findings of Fact and Conclusions of Law 5:34.) Seconds before hitting the wake Defendant looked up and away
from his GPS but it was too late, and Defendant did not have enough time to react or evade, (Tr. 113:18-22.) As a result, Defendant did not see the wake causing the boat to collide with it and leading to the accident. (Tr. 120:14-18.) Sean Kelly testified that the impact of the wake was forceful, knocking him down and aggravating his preexisting knee injury. (Tr. 96:16-25; 97:1-6.) Plaintiff also landed on her tailbone as a result of the wake's impact. (Tr. 61:1-4.) Plaintiff was immediately in pain from the impact. (Tr. 259:14-18.)
13. The time between when Defendant looked down at the GPS and when the accident occurred spanned seconds. (Tr. 95:7-10; Def.'s Proposed Findings of Fact and Conclusions of Law 4:26.) The parties and witnesses all testified that between five to thirty seconds elapsed during this period. (Tr. 50:24-25; 68:8-11; 83:6; 95:9-12; 96:1-2.)
14. Prior to hitting the wake, Defendant did not initially reduce the boat's speed and continued to operate MIDNIGHT at the speed it had been traveling. (Tr. 60:16-19;98:l 1-12.) However, after the boat hit the second wake, Defendant slowed down. (Tr, 17:23-24; 86:18-20; 98:12-14.) Defendant testified that he could have been convinced to slow down, but he did not. (Tr. 17:20-25.)
C. Plaintiffs injuries
1. Plaintiff's T9 compression fracture diagnosis
15. As a result of the accident, the Court finds Plaintiff suffered injuries.
16. In July of 2017, approximately a week following the accident, Plaintiff had an initial consultation with Dr. Natacha S, Falcon (“Dr. Falcon”)[6]. (Tr. 156:2-4.) Dr. Falcon, an internal spine specialist with approximately fifteen years of experience, primarily treats injuries related to cervical, thoracic, lumbar or any pain ailments. (Tr. 153:1 -4; 154:22-24.)
Dr. Falcon, who is board certified in physical medicine and rehabilitation, is licensed to practice in New Jersey. (Tr. 153:8-10.)
17. Dr. Falcon testified that she diagnosed Plaintiff with a T9 (thoracic spinal vertebrae) compression fracture which resulted from the accident. (Pl.'s Ex. 24; Pl.'s Proposed Findings of Fact and Conclusions of Law 23:222.) Dr. Falcon testified that based upon her personal examination of Plaintiff, Plaintiff had pain on palpation over the area...
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