A passenger of a recreational vessel was injured when the vessel encountered the wake of a passing yacht in Perdido Pass in southeastern Alabama. Impact with the wake lifted the passenger up into the air from her seat and fractured her spine. The passenger filed suit against the recreational vessel’s driver and the driver’s insurer in Louisiana state court.
Two notable facts were undisputed:
(1) the driver initially failed to gauge the speed of the approaching yacht; and
(2) the driver warned the passengers to hold on while they crossed the yacht’s wake.
The case went to trial without a jury.
The defense hired a navigational expert who testified that the driver’s speed of 4-5 knots when negotiating the wake was standard practice and correct. The expert opined that going all stop before negotiating the wake would have been risky because some speed is needed to maintain control. Additionally, he testified that suddenly going all stop would have been unsafe with respect to other vessels in the highly trafficked area of Perdido Pass.
The plaintiff’s navigational expert disagreed and opined that the driver’s action violated several Inland Navigation Rules including Rule 5 (Lookout), 6 (Safe Speed), 8 (Action to Avoid Collision), 9 (Narrow channel) and 16 (Action by Give-way vessel).
The trial judge adopted the defense's expert testimony and rejected the plaintiff's expert testimony. It issued a written decision finding that the driver was not negligent. So the plaintiff lost her case and recovered nothing.
The passenger appealed and raised several assignments of error including:
The trial court failed to recognize that the driver owed the passenger a duty under the Inland Navigation Rules.
The trial court failed to apply the Pennsylvania Rule against the driver which, if applied, would have required the driver to prove that the violations of the Inland Navigation Rules were not the cause of the accident.
The trial court failed to give the passenger the “guest passenger presumption.”
The trial court improperly discounted the passenger’s testimony concerning the driver’s consumption of alcohol.
With respect to No. 1 (failure to apply Inland Navigation Rules), the appellate court found that the trial court’s decision to rely on the defense's navigational expert opinions was appropriate and not reversible error.
With respect to No. 2 (failure to apply the Pennsylvania Rule), the appellate court noted that the threshold question when applying the Pennsylvania Rule is whether there was a statutory violation. The appellate court found that the trial court’s decision that there was no statutory violation was appropriate and not reversible error. Accordingly, the trial court’s refusal to apply the Pennsylvania Rule against the driver was likewise appropriate and not reversible error.
With respect to No. 3 (failure to apply the Guest Passenger Presumption), the appellate court found that the Guest Passenger Presumption did not apply in the case because the trial court never determined that the passenger was contributorily negligent. Under Louisiana law, the Guest Passenger Presumption only applies in cases where the passenger’s contributory negligence is at issue.
With respect to No. 4 (the driver’s alleged consumption of alcohol), the appellate court found that the trial court’s refusal to find that alcohol consumption contributed to the incident was appropriate and not reversible error.
In sum, the appellate court found that the trial court’s findings were supported by some evidence and not manifestly erroneous. So, the passenger lost her case on appeal too.
Here is a PDF of the decision:
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