KDME, INC. v. BUCCI, ET AL.

$1,200,000+ bench verdict in a personal injury case involving maritime matters, where the claimants (a group of vacationing girls) claimed that KDME, Inc. was grossly negligent in the rental of the motorboat to them.

Claimant's Medical Expert Witnesses:
Patrick Stubgen, M.D., CORNELL UNIVERSITY
Robert Tornambe, M.D., MADISON PLASTIC SURGERY PC
Chris Morrison, PH.D., NYU MEDICAL CENTER
Joyce Pere, M.D.

Petitioner's Medical Expert Witnesses: Mark Kalish, M.D.

Claimant's Techical Expert Witnesses:
Alison Osinski: Aquatics and Safety Expert
Richard Hornick: Human Factors Expert
Roy Scott Hickman, Ph.D., P.E.: Failure Analysis/ Accident Reconstruction Expert
Roberta Spoon, CPA: Economist

Date, Time and Place of Incident(s): August 25, 2004 at approximately 2:00 pm, Mission Bay, San Diego

Facts and Background:  
In late-August, 2004, four teenagers from New York traveled to San Diego for a summer vacation. Janine Bucci, Samantha Bucci, Alexandra Bucci, and Kim Doros (the “Group”) were excited to enjoy San Diego’s beaches and outdoor activities. During their stay, the Group decided to spend a beautiful afternoon boating in Mission Bay.

On August 25, 2004, the Group arrived at Seaforth and inquired about renting a powerboat. Janine Bucci immediately advised Seaforth that no member of the Group had any experience operating a powerboat. The four girls, ranging in age from 16 to 19, were nervous and sought assurance that they would be capable of safely operating a powerboat. Seaforth’s rental counter staff, Nicole Earls, age 22, and Dock Manager, Ronald Greathouse, age 22, insisted that if the Group could “drive a car”, they could “drive a boat”. And thereafter recommended and selected for the girls a 17 foot Bayliner powerboat with a 50 horsepower outboard engine. Seaforth should never have rented the boat to the Group without a skipper.

Shockingly, Seaforth felt that a brief verbal lecture was sufficient education and instruction for four young tourists with absolutely no experience operating a powerboat. During a discussion lasting less than 15 minutes, Mr. Greathouse described places to avoid on Mission Bay and the use of the ignition switch; steering wheel; the throttle positions of forward, neutral, and reverse; and the anchor; and the emergency flag. Aside from the cursory verbal instruction, Seaforth took no steps to ensure the Group’s ability to safely and competently operate the powerboat.

Rather than providing adequate instruction, Mr. Greathouse was more interested in “flirting” with the bikini clad teenagers than providing them with proper instruction on how to operate the powerboat. While waiting for the inner tube that Mr. Greathouse suggested the Group rent, he asked them what plans they had made for the evening and discussed the Group’s social plans.

When Mr. Greathouse presented an innertube and towline to the Group, Janine Bucci explained her unfamiliarity with connecting the towline to the boat. In fact, no member of the Group knew how to rig the towline. Thus, Janine Bucci asked Mr. Greathouse to perform the task. He then stepped into the powerboat and clipped two ends of the towline to separate metal “rings” located on opposite sides of the outboard motor, near the waterline. Although he attached the towline to the metal “rings” and placed the innertube and towline in the powerboat, Mr. Greathouse failed to advise the Group that the towline should be deployed to form a “Y” configuration.

Instead, he directed Seaforth’s customers to deploy the innertube and towline by merely throwing the equipment in the water. And this is exactly what they did. Ironically, this comports with the supposed instructions Mr. Greathouse provided to the Group to make sure and feed the line out so that it does not get caught in the propeller. Further, Mr. Greathouse also advised that two persons could ride the innertube at the same time, a blatant disregard of the warning on the inner tube itself. Relying on this instruction and the false assurance that boats are no different than cars, the Group motored away for a two-hour excursion.

Shortly after their cruise began, the engine “died” and the powerboat began to drift. After the Group’s repeated unsuccessful attempts to restart the engine, Janine Bucci telephoned Seaforth, explained the difficulties, and requested assistance. Following an attempt to “troubleshoot”, a Seaforth employee replied that help would soon arrive. As time passed, the powerboat began drifting towards rocks along the shoreline, and members of the Group became nauseous from the rocking. No one from Seaforth ever showed.

After the call, Janine Bucci attempted to deploy the anchor. As it was about to descend into the bay, the Group discovered that the anchor line was not attached to the powerboat. Because she did not know –and was not instructed by Seaforth– how or where to secure the anchor line to the powerboat, Janine Bucci retrieved the anchor before it was lost. The Group began to realize that help from Seaforth would never arrive.

Finally, Mr. Greathouse returned the Group’s call for help. It was during this phone call that Kimberly Doros was able to restart the engine. The Group relayed their frustrations and were told to come back to Seaforth to exchange their boat for a new one. However, the Group assumed their request for a refund would receive as much attention as their calls for help. Determined to at least get their “money’s-worth”, the Group decided to use the innertube on the return route to the Seaforth marina.

As instructed by Mr. Greathouse, one of the girls simply tossed the innertube in the water. They were cognizant to keep the towline away from the propeller. Janine and Samantha Bucci boarded the innertube as Kim Doros assumed control of the powerboat. Alexandra Bucci positioned herself to serve as the innertube observer. When innertubing began, both ends of the towline were still attached to the rear of the powerboat, as those ends were attached at Seaforth’s dock by Mr. Greathouse. However, once deployed, no segment of the towline was emanating from the starboard (right) side of the outboard motor. Instead, the towline was emanating only from the port (left) side of the outboard motor.

Shortly after the innertubing began, the engine “died” once more, but was quickly restarted. By now, the Group was becoming accustomed to the mechanical interruptions. As the innertubing continued, Alexandra feared that the towline would be snagged by the propeller of the outboard motor. Therefore, the powerboat was stopped long enough for Alexandra to reverse the configuration of the towline by lifting the towline above, and over, the outboard motor. Alexandra made the adjustment without disconnecting the port or starboard segment of the towline.In fact, the port and starboard segments of the towline remained attached to the metal “rings” as those ends were first connected by Mr. Greathouse.

After this adjustment, the innertubing continued for several minutes. However, nothing prepared them for the tragedy that would ensue with this next start of the engine.

When Kim Doros shifted the throttle handle “forward”, the powerboat rapidly accelerated and banked sharply to the left. Despite rigorous effort, Ms. Doros was physically incapable of either shifting to neutral or turning the steering wheel. The powerboat circled uncontrollably and struck Janine and Samantha Bucci as they attempted to lunge from the innertube. Both teenagers were struck by the vessel’s hull, but Janine was cleaved by the churning propeller.

Emergency personnel responded shortly thereafter and pulled Janine from the water with two skull fractures, a jaw fracture, two fractured cervical vertebrae, and horrifying lacerations to her neck, shoulder, and arm.

Unbeknownst to the Group, the bridle/towline had become impinged in the steering mechanism of the boat. As a result, the cable that actuates the forward and reverse gears was damaged and the fuel line leading from the transom of the vessel to the motor had been broken. The boat was unable to be steered.

Simple instruction, demonstration, and a pictograph illustrating the correct deployment of the towline would have prevented this tragedy. That essential information, however, was not communicated to the Group. Given the high risk of injury and death involved in powerboating, Seaforth’s gross disregard of the standard of care during the entire interaction with the Group, commencing with the rental instruction, ultimately resulted in permanent injuries to Janine Bucci.

Claimant's Contentions, Allegations:
Claimants claimed that KDME, Inc. was grossly negligent in the rental of the motorboat to the girls. Throughout Janine and Samantha Bucci’s rental experience, Seaforth severely departed from the standard of care in every aspect. When the Group quickly advised Seaforth that they had no experience operating powerboats, Seaforth’s employee specifically assured the Group, “If you can drive a car, you can drive a boat.” Although such glib remarks may be appropriate at amusement park rides, greater attention is needed before releasing first-time boaters on the crowded waters of Mission Bay. After further discussion, the Group again stressed their lack of experience. However, Seaforth allayed their concern and handed Janine Bucci the keys to a powerful powerboat. SEAFORTH NEVER SHOULD HAVE RENTED THE BOAT TO THE GROUP WITHOUT A SKIPPER.

Despite having rented the boat to the Group, the Group was not properly instructed regarding safe operation of the boat, bridle, towline, innertube, or other equipment. Most significant to this incident, Seaforth utterly failed to instruct the Group regarding the “Y” configuration of the bridle and towline. Yet, Seaforth insouciantly dispatched the Group to Mission Bay in a powerboat capable of speeds exceeding 30 mph.

Injuries and/or Damages:
Janine Bucci suffered scalp, shoulder/deltoid, hand and neck lacerations, a skull fracture, a left acromion [part of the shoulder blade] fracture, mandibular and molar fractures, and C3-4 transverse fractures at the vertebral foramen [openings through which the spinal nerve root and spinal nerve sheath pass].

Samantha Bucci suffered head contusions, left leg pain and numbness (particularly in her left foot), low back pain, headache to the left side, left elbow and left shoulder pain, and neck pain.

Defense:
KDME, Inc. claimed that Seaforth did not fall below the standard of care in the rental of small pleasure boats to the general public. They further claimed that Seaforth provided proper instruction to Janine Bucci and that it was her responsibility to instruct the other girls. Finally, KDME, Inc. claims that the girls themselves were negligent in the operation of the boat.

Notes:
During the liability phase of the trial, Judge Gonzalez found that the Buccis established gross negligence by a preponderance of the evidence. Thus, KDME's petition for limitation of liability was denied with prejudice. During the damage portion of the trial, Judge Gonzalez awarded Janine Bucci the amount of $1,123,092.00 and Samantha Bucci the amount of $69,769.12.

Specials:
Janine Bucci: $120,773.00- past medical expenses; $469,252.00- future medical expenses
Samantha Bucci: $17,442,28- past medical expenses

Verdict or Award: Bench Verdict totaling $1,200,000+

Length of Trial: Limitation of liability portion- three days; Damage Portion- one and one half days

Attorney for Claimant: Kevin Quinn, Partner; Alyson Taub, Associate

Attorney for Petitioner:
DANIEL KENNEY, ESQ., KEVIN WARREN, ESQ., HARRINGTON, FOXX, DUBROW & CANTER, LLP
1055 West Seventh Street, 29th Floor, Los Angeles, CA 90017, (213) 489-3222

Individual Defendants: KDME, Inc. dba Seaforth Boat Rentals