Killary v. Burlington-Lake Champlain Chamber of Commerce, Inc.

• Decision Date: 07 November 1962
• Docket Number: No. 370,BURLINGTON-LAKE,370
• Citation: Killary v. Burlington-Lake Champlain Chamber of Commerce, Inc., 123 Vt. 256, 186 A.2d 170 (Vt. 1962)
• Parties: John KILLARY v.CHAMPLAIN CHAMBER OF COMMERCE, INC.
• Court: Vermont Supreme Court

Page 170

186 A.2d 170

123 Vt. 256

John KILLARY v.BURLINGTON-LAKE CHAMPLAIN CHAMBER OF COMMERCE, INC.

No. 370.

Supreme Court of Vermont.

Nov. 7, 1962.

Joseph C. McNeil and Bernard J. Leddy, Burlington, for plaintiff.

Edmunds, Austin & Wick, Burlington for defendant.

Before HULBURD, C. J., and HOLDEN, SHANGRAW, BARNEY and SMITH, JJ.

SMITH, Justice.

This is an action in tort.Trial in the Chittenden County Court resulted in verdict and judgment for the plaintiff.The questions presented by this appeal are: (1) claimed error on the part of the lower court in submitting the case to the jury, and (2), error on the part of the lower court in permitting the jury to see colored slides of the face of the plaintiff showing the injuries received from the accident, and pictures taken during the various phases of the operation performed on plaintiff's face.

The factual situation presented is an unusual and interesting one involving injuries received by a contender in a boat race while participating in a Waterama, so-called, sponsored by the defendant Chamber of Commerce, and held in Burlington Harbor on Lake Champlain, August 3, 1958.

The defendant, Burlington-Lake Champlain Chamber of Commerce, Inc., is a nonprofit organization of business and professional men in the Burlington area.Its nine hundred members pay annual dues of $30 and like other organizations of this type, the purpose of the organization is to further the economic welfare of its members.

A project of this defendant for some years had been conducting a Waterama in Burlington Harbor.The Waterama of 1958, which lasted for four days, was similar to others held in the past and included such events as water skiing and inboard and outboard motor boat races.The plaintiff was a participant in the outboard motor racing and received the injuries he complains of while a contestant in one of such races.

Lake Champlain extends in a generally northerly-southerly direction.Burlington is on the easterly shore of the Lake, and its harbor is created in part by a breakwater, located westerly in the Lake some little distance from the Burlington shoreline.This breakwater extends rather erratically northerly and southerly.The events of the Waterama were held in the waters of the Lake between the breakwater and the Burlington shoreline.

The course for the outboard race was about 3100 feet in length, parallel with the shoreline and the breakwater, and rectangular in shape.Two buoys were placed about thirty to forty yards apart, at the north and the south end of the course, and the racers had to round such buoys at the end of each straight leg of the course.

Burlington Harbor is a public one.It is used by numerous pleasure boats as well as by ferries crossing Lake Champlain to the New York shore.A municipal dock, known as the Salt Dock, extends into the Harbor at a point which was just easterly of the northerly end of the race course.Just north of the Salt Dock and between it and the dock of the Champlain Transportation Company, is a slip.On the south side of the Lake Transportation dock were gas tanks so that boats entering the slip could be fueled up.At the time of the Waterama in question, this was the only place in the harbor where boatmen could have gas and oil delivered into their various crafts.

Northerly, along the harbor front, from the Champlain Transportation dock were other structures and docks, including the Coast Guard basin and a Marina Center.The Marina Center is located at a point which was approximately opposite, and easterly, of the northeastern buoy marking the racing course.

In preparation for the Waterama, the defendant Chamber of Commerce had set up various committees to take care of various details in both the planning and the operation of the Waterama.An outboard racing committee set off the racing course previously described, and general arrangements for the safety of both spectators and participants in the Waterama were in charge of a safety committee.

The safety provisions included obtaining permission from the United States Coast Guard to hold the racing events, together with an agreement from the officer in charge to furnish one large and one small vessel to patrol the course.The safety committee also arranged for seven other boats to patrol the courts.The committee anticipated that two hundred and forty craft of various sorts would be present for the racing events and that proper patrolling of the racing area was necessary to prevent boats using the area from interfering with the racing contestants and endangering their safety.

The plaintiff was a veteran of outboard racing.He paid an entry fee to participate in the racing events and was informed of the measures that had been taken for the protection of the racing participants.The boat he was to drive in the race was about ten feet three inches in length, built of wood and plywood, and powered by a 20 cubic inch racing outboard motor, with a 20-24 H.P. rating.The top speed of such a boat was from 45 to 50 m.p.h. and when running at top speed little more than one foot of the bottom of the craft was in actual contact with the water.The boat was driven by the driver while in a kneeling position.

There had been a number of races prior to the one in which the plaintiff participated.The precautionary and protective measures taken by the defendant to protect the southerly ene of the racing course from being endangered by the presence of other than the racing boats during the contests was by means of patrol boats.

A large Coast Guard vessel, a tug-type craft of some sixty-eight feet, patrolled the north end of the breakwater, while a smaller vessel of the Coast Guard, dinghy powered by an outboard motor, patrolled the area in the vicinity of the southwest buoy.

The boat of Colonel Delorme, the Harbormaster, was stationed at the Salt Dock, and the traffic in and out of the slip between the Salt Dock and the dock of the Champlain Transportation Company was controlled by this gentleman.A cruiser, owned by a Mr. Duba, was stationed some two hundred yards from the south end of the racing course.These patrol boats were all present by reason of the request of the defendant.

The plaintiff, who had arrived at the scene of the Waterama early in the day, noticed the patrolling boats and testified he relied upon them for his protection.

The starting point for the races was opposite the Marina Center.The boats would race northerly, round the northeast and northwest buoys, then proceed southerly on the western side of the rectangular course, round the southwest and southeast buoys and then head northerly on the eastern side of the rectangle.This course would be repeated until the boats had completed the number of laps around the course that constituted the racing distance.

At the starting time of the race in which the plaintiff was to participate, the sun was bright, the air clear, and there was a six-inch chop on the lake waters, making for ideal boat racing conditions.Trophies were awarded to race winners by the defendant Chamber of Commerce and each contestant was expected to put forth his best efforts to win.Unknown to the plaintiff, and presumably the other contestants in this race, was that the protection which had previously been extended to the racing course had become non-existent at the starting time for this particular race.

The Coast Guard boats, in answer to a distress call from some distant part of Lake Champlain, were already some three miles north on the Lake.Mr. Duba had taken his boat southerly on the Lake to a point approximately half a mile from where it had originally been stationed.The Harbormaster, Col. Delorme, was at the Marina Center, talking with officials of the Chamber of Commerce, and not on the Salt Dock controlling the boat traffic in and out of the slip.None of these absent patrols had been replaced.

The race in which the plaintiff was injured had six entrants, including the plaintiff, and the race consisted of several laps around the course.Upon the commencement of the last lap two of the contestants were far in the lead of the plaintiff, one boat was well to his rear, and the boat of the plaintiff was slightly ahead, and in the middle of the remaining three boats, so close together that 'a twenty-foot circle would have taken us all in.'

As he approached the southern turn of the course, the plaintiff noticed a boat coming from the direction of the slip or Salt Dock, heading in a westerly direction toward the racing course.

As the boats raced south on the westerly leg of the course the plaintiff noticed a spectator boat heading toward the southerly part of the course from the east.Other evidence indicated that the boat, one of good size, came from the slip next to the Salt dock and despite the warning shouts of spectators, continued on a southerly course at a high rate of speed, either between or just outside of the southern buoys marking the racing course.The identity of the boat and its owner were never established.

This spectator boat left behind it a wake from its passage some three feet in height.Just as the plaintiff's racing boat rounded the southwest buoy it came into contact with the wake.The wake caused the boat to be thrown violently sideways, and into the path of a competing boat driven by a Mr. Pepper.The Pepper boat passed directly over the boat of the plaintiff.It tossed the plaintiff into the air ahead of it so that the plaintiff fell again in the direct course of the Pepper boat, and it ran directly over him.Many of the severe injuries received by the plaintiff to his face and body were undisputably caused by the whirling propellor of the Pepper boat as it passed over him.

The first exceptions briefed by the defendant are to the failure of the trial court to direct a verdict in its favor in accordance with its motions at the close of the evidence of the plaintiff, and properly renewed at the...