Evans v. Nantucket Community Sailing, Inc.
| Decision Date | 22 October 2008 |
| Docket Number | Civil Action No. 05-10088-MBB. |
| Citation | 582 F.Supp.2d 121 |
| Parties | Julianne Marie EVANS, Plaintiff, v. NANTUCKET COMMUNITY SAILING, INC., a Massachusetts Corporation, Ronan O'Siochru and Donncha Kiely, Defendants. |
| Court | U.S. District Court — District of Massachusetts |
Alan L. Cantor, David P. Angueira, Edward M. Swartz, Swartz & Swartz, Constance L. Rudnick, Marielise Kelly, Richard A. Gargiulo, Gargiulo, Rudnick & Gargiulo, Boston, MA, Steven D. Miller, Plantation, FL, Jeffrey A. Miller, Boca Raton, FL, for Plaintiff.
Thomas J. Muzyka, Terence G. Kenneally, Clinton & Muzyka P.C., Boston, MA, for Defendants.
This action arises out of a July 2002 accident during a sailboat race off Jetties Beach in Nantucket. Defendant Donncha Kiely ("Kiely"), at the helm of a Hunter 140 sailboat, jibed the boat during the race. The tip of the boom struck plaintiff Julianne Marie Evans ("Evans"), a passenger sitting port side in a nearby Hunter 140 sailboat. Defendant Ronan O'Siochru ("O'Siochru") was at the helm of the sailboat in which Evans was the only other occupant.
Evans seeks recovery from Kiely and O'Siochru ("defendants") for negligence under general maritime law.1 Defendants, both instructors at Nantucket Community Sailing, Inc. ("NCS"),2 submit 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;" "there will be no claims . . . for loss of earning capacity, either past or future;" and "medical expenses" are limited to "expenses that are related to loss of smell and taste."3 (Docket Entry # 61, Ex. D).
During a four day bench trial, this court heard the testimony of Evans, defendants and the following witnesses: (1) Alan Richard Hirsch, M.D., F.A.C.P. ("Dr. Hirsch"), a board certified neurologist and psychiatrist testifying on Evans' behalf; (2) Janice Chamberlain ("Chamberlain"), Evans' twin sister; (3) Robert I. Henkin, M.D., Ph.D. ("Dr. Henkin"), a professor in the departments of neurology and pediatrics at Georgetown University testifying for defendants and the Director of the Center for Molecular Nutrition and Sensory Disorders, Taste and Smell Clinic, a research organization which also treats patients;4 (4) Julia Anderson ("Anderson"), a personal friend of Evans; and (5) Michael K. Ackland, M.D. ("Dr. Ackland"), an orthopedic surgeon. With the parties having filed proposed findings, the matter is ripe for review.
Evans, a Florida resident who was 39 years old at the time of the accident, grew up in Michigan. She lived there until the age of 22 at which point she moved to Florida. In 1976 or 1977, she was diagnosed as having Charcot-Marie-Tooth disease ("CMT"), a nerve disorder affecting the circulation in her feet.5 Thereafter she underwent a series of operations until the age of 22.
In Michigan, she lived on a lake where her father was president of a sailing club. From age six to 12, she sailed all day long for six summers. She usually sailed sun fishes, which have one sail, and less frequently catamarans or snipes.6 To compare a sun fish to a Hunter 140, the latter is one to two feet longer, has two sails (a mainsail and a jib) and a seating area along both sides of the boat. After age 12, Evans sailed once as a passenger in a boat in Florida in 1985 prior to the July 5, 2002 accident.
Before the accident, Evans pursued an interest in gardening to the extent of obtaining a master gardening certificate in 2002. The certificate is in effect for a one year period. At some point in 2002, she opened a home and garden design company. Before July 5, 2002, she worked on gardening projects for clients in the Florida climate which she described as subtropical and therefore suitable to flowers and plants with significant smells. Although she enjoyed gardening and her sense of smell played a role in her design of scent gardens prior to the accident, she did not cultivate a scent garden in either of the two places she lived in Florida.
In 1998, Evans obtained a real estate license and sold commercial real estate. In 1995 or 1997, she also began selling high end luxury homes. Oftentimes, she entertained real estate clients by taking them out to dinner and enjoyed selecting fine wines.
In addition to gardening, she enjoyed cooking as a hobby prior to the accident particularly during holidays and with her sister who lived in Connecticut. Before the accident, she also entertained at home by cooking approximately three times a month. She did not, however, take cooking classes and she ate at restaurants several times a week when she "didn't feel like cooking."7 The accident did not affect her ability to pursue other hobbies such as tennis, swimming, skiing and racquet ball.8 On direct, she testified that her loss of taste has affected her entire life because she can no longer enjoy going out to dinner, tasting food, smelling the grass when she mows the lawn or smelling a baby or a man.
After her mother died in February 2002, Evans decided to spend the summer in her favorite place, Nantucket, where she had visited for one or two weeks during the summer from 1997 to 2001. She arrived at the island on or about June 18, 2002.
On July 5, 2002, Evans read an article in a Nantucket paper about sunset sailing races and a barbecue offered by NCS at Jetties Beach for the summer with the first night that evening. Sunset that day was 8:17 p.m. The Inquirer and Mirror newspaper that week carried two notices about the races, one appearing in the sports section stating that the activities began at 5:30 p.m. and the other appearing in the island calendar section noting that the event began at 8:00 p.m. (Ex. 1 & A). Evans testified to seeing only the notice with the 8:00 p.m. start time.
NCS engaged in the informal racing activities on Friday evenings to generate community interest in racing and NSC instructors often took part in the races. Participants either brought their own boats or used boats provided by NCS. They typically brought their own food and NCS provided a grill.
After reading the notice, Evans telephoned the NCS number and inquired about joining the club and getting sailing lessons before she joined. As a result of the conversation, Evans went down to Jetties Beach at 5:00 p.m. in pursuit of a sailing lesson. The first person she spoke to was Darragh Connolly ("Connolly"), who Evans described as the person in charge of the club. She told Connolly that she had not sailed in 20 years.
Connolly, O'Siochru's supervisor, then approached O'Siochru, who was on the beach rigging a Hunter 140 in preparation for the race. Connolly asked O'Siochru, who already had a crew for the race, if he could take out Evans instead. Connolly also informed O'Siochru that Evans had prior sailing experience. Evans then came down from the office and Connolly introduced her to O'Siochru. O'Siochru asked Evans various questions about her sailing experience such as how often she had sailed and the kind of boats she had sailed. He therefore knew that Evans had sailed in sun fishes but, to his knowledge, had never applied for sailing lessons at NCS.
O'Siochru never gave sailing lessons after 5:30 or 6:00 p.m. He also never used Hunter 140s for sailing lessons because they were awkward and inefficient for such a use. He explained that Hunter 140s are difficult for a teacher at the helm to change places with a student in order to teach the student how to steer. Evans never asked O'Siochru for a sailing lesson on July 5, 2002, and never asked O'Siochru to return to shore prior to the accident.
At around 6:05 p.m., O'Siochru pushed the Hunter 140 into the water with Evans on board and the two sailed together jibing and tacking in preparation for an informal race. Evans told O'Siochru that she had sailed on sun fishes before and the principles of both tacking and jibing are exactly the same for the two boats. They sailed for an estimated ten to 20 minutes before the race and 20 to 30 minutes before the accident. Wind speed was approximately ten knots in a direction coming from the water onto the shore.9 O'Siochru controlled the mainsheet and tiller while Evans took hold of the jib. During that time, O'Siochru noticed that Evans "was not as mobile" on the boat and could not move from side to side of the boat as he had expected. Evans explained to O'Siochru that she had problems with her legs. She could nevertheless move and did move from side to side whenever O'Siochru asked her to move.
During the estimated 15 minute period before the race began, O'Siochru told Evans how to jibe and how to work with the direction of the wind. She appeared fully capable of handling the jib and adequately responded to all of O'Siochru's commands. Notwithstanding Evans' testimony to the contrary, the jib, which was usually in a cleat, was not difficult to hold. In fact, the seven and eight year old children O'Siochru instructed never had any difficulty holding the sheet for a jibe. O'Siochru also told Evans to keep her head down as the boom went across whenever they were tacking or jibing. Evans had no difficulty positioning herself on the rail of the boat. She never outwardly indicated to O'Siochru that she could not handle the jib.
There was no meeting among race participants before the race or any agreement about what rules would apply to the informal race. O'Siochru testified that, "racing rules follow the same as maritime rules to avoid collisions at sea."
The race began at an imaginary, 30 meter starting line drawn between a committee boat belonging to NCS and a course buoy.10 At all times before the accident, Evans...
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