Hargus v. Ferocious & Impetuous, LLC
| Decision Date | 30 September 2015 |
| Docket Number | Civil No. 2013-111 |
| Parties | GREG HARGUS, Plaintiff, v. FEROCIOUS AND IMPETUOUS, LLC d/b/a ONE LOVE CHARTERS, KYLE COLEMAN, JOSEPH TRATTNER, the ST. THOMAS SPORT AND SOCIAL CLUB, LLC and the M/V ONE LOVE, a twenty-six (26) foot 1998 Stamas CC, bearing U.S. Virgin Islands Vessel Registration Number: VI 3333-TC, with twin Yamaha 150 horsepower engines and her apparel, appurtenances, etc., in rem, Defendants. |
| Court | U.S. District Court — Virgin Islands |
This admiralty action arises out of injuries plaintiff suffered during a May 19, 2012 boating excursion when the boat captain threw an object at and struck plaintiff in the head ("the May 2012 incident"). A bench trial was held on February 24, 2015 and February 25, 2015.1 Following the trial the parties submitted proposed findings of fact and conclusions of law to the Court. [DEs243, 248]. The Court, having fully considered the testimonial 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.
1. Greg Hargus is a resident of St. Thomas, U.S. Virgin Islands.
2. Ferocious and Impetuous, LLC d/b/a One Love Charters ("One Love") is a limited liability company operating on St. Thomas, U.S. Virgin Islands, which provides boat rentals to individuals and groups.
3. Joseph Trattner and Brent Hazzard organized One Love in November 2011, and were co-managing members.
4. Joseph Trattner is currently the sole managing member of One Love.
5. One Love owns the vessel M/V One Love ("the Vessel").
6. Kyle Coleman is a former boat captain who, during the relevant time period, captained boats for One Love and for other companies.
7. Operators of the Vessel were limited to individuals selected by One Love and approved by One Love's insurer.
8. In November 2011, Coleman captained a parasailing vessel that was involved in an accident that resulted in the death of one passenger and injuries to another passenger (the "parasailing incident").
9. In December 2011, One Love asked its insurance carrier to add Coleman as an operator of the Vessel.
10. When One Love first requested approval of Coleman as an authorized operator in December 2011, Coleman did not possess a valid captain's license and Trattner was aware of Coleman's involvement in the parasailing incident.
11. The form One Love submitted to its insurer seeking approval of Coleman as an operator did not list the parasailing incident as a "loss."
12. Before One Love used Coleman as a captain, One Love did not ask Coleman about his prior driving or boating record, conduct any kind of sea trial, or perform a background check on him.
13. At the time of the May 2012 incident, Coleman held a valid 100 ton captain's license, which had been issued to him on December 20, 2011.
14. No criminal charges were pending against Coleman concerning the parasailing incident either at the time Coleman began acting as a captain for the Vessel or at the time of the May 2012 incident.
15. While a captain is out on the Vessel, One Love does not have any involvement with or control over the captain.
16. At the conclusion of trips for One Love, Coleman was responsible for collecting the boat rental, fuel cost and captain's fees from all passengers. Coleman also was responsible for refueling the Vessel and removing any trash from it and scrubbing it down.
17. Boat rentals could be paid on a credit card but the captain had to receive his pay in cash from the passengers. If a trip included six passengers or fewer, One Love paid the captain by check.
18. On May 19, 2012, a group of individuals rented the Vessel from One Love to travel to various places throughout the U.S. Virgin Islands.
19. Coleman captained the Vessel.
20. Coleman had the passengers sign a "waiver" prior to departure.
21. That afternoon, Coleman anchored the Vessel in Cruz Bay, St. John.
22. While in Cruz Bay, Coleman, who was standing on the beach about 25 feet from the anchored Vessel, witnessed two passengers on the beach throwing beer cans at plaintiff, who remained on the Vessel.
23. Coleman joined them and threw an empty plastic insulated coffee cup at plaintiff.2
24. The coffee cup hit plaintiff's temple on the left side of his head.
25. No passenger, including plaintiff, reported an injury, nor did anyone express concern for plaintiff's wellbeing.
26. At the conclusion of the charter, Coleman collected the boat rental, fuel and captain's fees from all passengers, including plaintiff. Coleman also removed any debris from the Vessel and scrubbed it down.
27. After being struck, plaintiff was in pain, and he experienced headaches and vision problems, including while driving home.
28. Plaintiff did not lose consciousness.
29. Prior to the May 2012 incident, plaintiff had a history of 10 to 12 prior head injuries or concussions.
30. Plaintiff sought medical treatment from Mark Livingston, M.D., on May 21, 2012.
31. Dr. Livingston noted plaintiff's history of previous concussions and he performed a "focused neurological exam" that yielded "normal" results.
32. Dr. Livingston diagnosed plaintiff with a contusion and a mild concussion with no loss of consciousness. He found no obvious signs of physical injury and did not prescribe any medication. He authorized plaintiff to return to work that day without any restrictions.
33. Although suffering from headaches, some of which he described as "massive," and experiencing memory issues and moodiness for some months, plaintiff did not seek additional medical treatment for his head injury until thirteen months later.
34. James Nelson, M.D., an expert in the fields of Neurology and Internal Medicine, saw plaintiff on June 25, 2013, for complaints of headaches, mood swings and neck pain.
35. Dr. Nelson performed an electromyogram ("EMG"), which revealed a pinched nerve in the neck.
36. Dr. Nelson prescribed plaintiff Fioricet for his headaches and physical therapy for his neck.
37. Dr. Nelson performed an EEG on plaintiff on July 1, 2013, which showed "localized slowing in the left temple area."
38. Carolyn Jones, M.D., a family physician who has treated plaintiff since 2009, saw plaintiff for the first time after the May 2012 incident on August 22, 2013, for a "chief complaint of headaches," which "presents quickly if hot and with mild[] dehydration."
39. Dr. Jones saw no physical signs of head injury, and diagnosed plaintiff as having headaches, head injury and memory loss.
40. Dr. Jones referred plaintiff to Insight Psychological Services, LLC ("Insight") for neuropsychological testing.
41. Dr. Jones ordered an MRI, which came back negative.
42. On September 26, 2013, plaintiff saw Dr. Nelson for a third and last time.
43. Dr. Nelson referred plaintiff to Insight for a Cognistat evaluation.
44. On October 3, 2013, plaintiff saw Kirstyn Livingston, a mental health therapist with Insight, for a Cognistat and Attention Deficit Hyperactivity Disorder ("ADHD") evaluation, and various psychological assessments.
45. Plaintiff's cognistat scores fell in the "average range," except memory which showed "mild impairment;" however, it was not possible to determine when plaintiff's symptoms began.
46. Other testing indicated it was "likely [plaintiff] had ADD or ADHD."
47. Ms. Livingston recommended "additional neurological testing and followup . . . and psychotherapy."
48. When plaintiff again saw Dr. Jones in October 2013, she recommended that plaintiff receive "aggressive neuro-psych therapy," and that he consider further evaluation.
49. Dr. Jones does not know the cause of plaintiff's complaints.
50. Plaintiff has not undergone further evaluation as recommended by Drs. Nelson or Jones.3
51. Plaintiff was self-employed (as a welder in years 2008, 2009 and 2011, and as a farmer in 2010) for the years 2008 through 2011. His tax returns for this time period indicate an average net loss of $4,740.14 from these occupations.
52. In 2012, plaintiff was employed by V.I. Ecotours doing maintenance and tours and had gross earnings of $10,663.72. He also had miscellaneous income in the amount of $1500.00.
53. Plaintiff terminated his employment with V.I. Ecotours "around January" 2013.
54. Since early 2013, plaintiff has performed the occasional welding job, and he still owns equipment for welding.
55. Plaintiff earned "very little" in 2013, and "maybe" $300.00 in 2014.
56. Plaintiff is presently unemployed.
57. Plaintiff has training and skills in the fields of carpentry, electrical, plumbing, construction, and automotive and heavy equipment mechanics.
58. According to Dr. Nelson, plaintiff has a chronic condition requiring the following future medical care:
59. Dr. Nelson charges $500 and $200 for an EEG and office visit, respectively.
Plaintiff's amended complaint alleges the following causes of action: (1) maritime lien against the Vessel; (2) direct negligence against One Love and Trattner; (3) negligent entrustment against One Love and Trattner; (4) negligence against Coleman; (5) vicarious liability against One Love and Trattner.5
The elements of maritime negligence are essentially the same as those for common law negligence. See Norfolk Shipbuilding & Drydock Corp. v. Garris, 532 U.S. 811, 815 (2001) (...
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