Judge: Michael E. Whitaker, Case: 21STCV18666, Date: 2022-09-30 Tentative Ruling

Case Number: 21STCV18666    Hearing Date: September 30, 2022    Dept: 32

PLEASE NOTE:   Parties are encouraged to meet and confer concerning this tentative ruling to determine if a resolution may be reached.  If the parties are unable to reach a resolution and a party intends to submit on this tentative ruling, the party must send an email to the Court at sscdept32@lacourt.org indicating that party’s intention to submit.  The email shall include the case number, date and time of the hearing, counsel’s contact information (if applicable), and the identity of the party submitting on this tentative ruling.  If the Court does not receive an email indicating the parties are submitting on this tentative ruling and there are no appearances at the hearing, the Court may place the motion off calendar or adopt the tentative ruling as the order of the Court.  If all parties do not submit on this tentative ruling, they should arrange to appear in-person or remotely (which is highly encouraged).  Further, after the Court has posted/issued a tentative ruling, the Court has the inherent authority to prohibit the withdrawal of the subject motion and adopt the tentative ruling as the order of the Court. 

TENTATIVE RULING

MOVING PAPERS:

1. Notice of Motion and Motion for Summary Judgment
2. Memorandum of Points and Authorities
3. Separate Statement of Undisputed Material Facts
4. Declaration of Andre M. Picciurro
5. Declaration of Richard L. Oefinger
6. Declaration of Captain Sigifredo Aguirre

OPPOSITION PAPERS:

1. Memorandum of Points and Authorities in Opposition to Motion for Summary Judgment
2. Response to Separate Statement of Allegedly Undisputed Facts
3. Declaration of Amanda Royce-Lambert
4. Declaration of Christian Foster
5. Declaration of Kristine Foster
6. Declaration of Joseph A. Derie
7. Declaration of Arnold I. Berschler

REPLY PAPERS:

1. Reply in Support of Motion for Summary Judgment
2. Supplemental Declaration of Andre M. Picciurro[1]
3. Objections to Declaration of Amanda Royce-Lambert
4. Objections to Declaration of Christian Foster
5. Objections to Declaration of Kristine Foster
6. Objections to Declaration of Joseph A. Derie

BACKGROUND

Plaintiff Amanda Royce-Lambert (“Plaintiff”) sued Defendant (Doe 1) Del Mar Sportfishing, Inc. (“Defendant”) based on injuries Plaintiff alleges she sustained while a passenger on a boat, New Del Mar.  Plaintiff was a passenger on board the New Del Mar for a whale watching voyage.  (Complaint, ¶¶ 9-10, 16-19.)  Defendant moves for summary judgment on Plaintiffs’ complaint which asserts a single cause of action for negligence.  Plaintiff opposes the motion and Defendant replies to the opposition.    

LEGAL STANDARDS – SUMMARY JUDGMENT

“[T]he party moving for summary judgment bears the burden of persuasion that there is no triable issue of material fact and that he is entitled to judgment as a matter of law[.] There is a triable issue of material fact if, and only if, the evidence would allow a reasonable trier of fact to find the underlying fact in favor of the party opposing the motion in accordance with the applicable standard of proof.”  (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.)  “[T]he party moving for summary judgment bears an initial burden of production to make a prima facie showing of the nonexistence of any triable issue of material fact; if he carries his burden of production, he causes a shift, and the opposing party is then subjected to a burden of production of his own to make a prima facie showing of the existence of a triable issue of material fact.”  (Ibid.) 

“On a summary judgment motion, the court must therefore consider what inferences favoring the opposing party a factfinder could reasonably draw from the evidence. While viewing the evidence in this manner, the court must bear in mind that its primary function is to identify issues rather than to determine issues.  Only when the inferences are indisputable may the court decide the issues as a matter of law. If the evidence is in conflict, the factual issues must be resolved by trial.”  (Binder v. Aetna Life Ins. Co. (1999) 75 Cal.App.4th 832, 839 [cleaned up].)  Further, “the trial court may not weigh the evidence in the manner of a factfinder to determine whose version is more likely true.  Nor may the trial court grant summary judgment based on the court's evaluation of credibility.”  (Id. at p. 840 [cleaned up]; see also Weiss v. People ex rel. Department of Transportation (2020) 9 Cal.5th 840, 864 [“Courts deciding motions for summary judgment or summary adjudication may not weigh the evidence but must instead view it in the light most favorable to the opposing party and draw all reasonable inferences in favor of that party”].) 

EVIDENCE 

            With respect to Defendant’s objections to the Declaration of Plaintiff, the Court rules as follows:

1. Sustained as to 2^nd and 3^rd sentence of paragraph 2 only
2. Sustained
3. Sustained
4. Sustained

            With respect to Defendant’s objections to the Declaration of Christian Foster, the Court rules as follows:

1. Overruled
2. Sustained
3. Sustained
4. Overruled

            With respect to Defendant’s objections to the Declaration of Kristine Foster, the Court rules as follows:

1. Sustained
2. Overruled
3. Sustained
4. Sustained
5. Overruled

            With respect to Defendant’s objections to the Declaration of Joseph A. Derie, the Court rules as follows:

1. Sustained
2. Sustained
3. Sustained
4. Sustained
5. Overruled
6. Sustained
7. Sustained
8. Overruled
9. Overruled
10. Sustained as to “This is custom and practice in the small commercial passenger vessel operations field such as the MV New Del Mar is in.” 
11. Overruled
12. Sustained

DISCUSSION

1. PRIMARY ASSUMPTION OF THE RISK

    

               “As a general rule, persons have a duty to use due care to avoid injury to others, and may be held liable if their careless conduct injures another person.”  (Knight v. Jewett (1992) 3 Cal.4th 296, 315.)  “In the sports setting, however, conditions or conduct that otherwise might be viewed as dangerous often are an integral part of the sport itself.”  (Ibid.)  And “[g]enerally, the participation in an active sport is governed by primary assumption of the risk, and a defendant owes no duty of care to protect a plaintiff against risks inherent in the sport.”  (Staten v. Superior Court (1996) 45 Cal.App.4th 1628, 1632.) 

    

               Yet the doctrine of assumption of risk “[i]s not a total bar in admiralty actions.”  (Gemp v. United States (6th Cir. 1982) 684 F.2d 404, 408–409; see also Barber v. Marina Sailing, Inc., (1995) 36 Cal.App.4th 558, 571 [“the general rule in federal maritime law precludes the assumption of risk defense”].)  In Barber v. Marina Sailing, Inc., the court of appeal noted that “[n]umerous federal cases have held in a variety of contexts that assumption of the risk is not permitted as an affirmative defense in admiralty law. Instead, it is deemed a species of contributory negligence which may diminish a plaintiff's recovery in proportion to his share of comparative fault but will not bar recovery in whole.”  (Barber v. Marina Sailing, Inc., supra, 36 Cal.App.4th at p. 568.) 

    

               Here, Defendant argued that Plaintiff’s complaint is barred by the Doctrine of Primary Assumption of Risk.  However, based upon the authorities cited above, Defendant’s argument is without merit and fails as a matter of law. 

    

2. NEGLIGENCE

    

   “To state a cause of action for negligence, a plaintiff must establish the defendant owed a legal duty of care. Generally speaking, all persons have a duty to take reasonable care in their activities to avoid causing injury, though particular policy considerations may weigh in favor of limiting that duty in certain circumstances.”  (Brown v. USA Taekwondo (2021) 11 Cal.5th 204, 209 (hereafter “Brown”).)  In general, “[e]veryone is responsible, not only for the result of his or her willful acts, but also for an injury occasioned to another by his or her want of ordinary care or skill in the management of his or her property or person, except so far as the latter has, willfully or by want of ordinary care, brought the injury upon himself or herself.”  (Civ. Code, § 1714.)  Section 1714 “establishes the default rule that each person has a duty to exercise, in his or her activities, reasonable care for the safety of others.”  (Brown, supra, 11 Cal.5th at p. 214.) 

    

   Further, “It is a settled principle of maritime law that a shipowner owes the duty of exercising reasonable care towards those lawfully aboard the vessel who are not members of the crew.”  (Kermarec v. Compagnie Generale Transatlantique (1959) 358 U.S. 625, 630.)  And “a shipowner is not an insurer of its passengers’ safety.  There thus must be some failure to exercise due care before liability may be imposed.”  (Monteleone v. Bahama Cruise Line, Inc. (2d Cir. 1988) 838 F.2d 63, 65, citations omitted.)[2] 

    

   1. DEFENDANT’S EVIDENCE

       

                  Defendant advances the Declaration of Sigifredo Aguirre (“Aguirre”) who is an employee of Defendant and was the Captain of the New Del Mar at the time of the subject incident.  (Declaration of Sigifredo Aguirre, ¶ 2.)  Aguirre declares in pertinent part as follows:

       

• It is my custom and habit to give the same passenger safety orientation speech to all passengers aboard NEW DEL MAR within two to five minutes from the outset of all voyages. I give this safety orientation aboard NEW DEL MAR shortly after the boat is underway, and while the boat is still in the Marina Del Rey harbor. This is because I know that the passenger safety orientation will be communicated to all passengers on the boat, and providing this orientation earlier is not practicable at the immediate outset of the voyage due to the noise generated by the bow thrusters used to push the boat away from its berth. Once the bow thrusters are shut down and there is no longer any bow thruster noise, I provide the passenger safety orientation speech from the boat's wheelhouse and over NEW DEL MAR's Public Announcement (PA) system.

• My routine passenger safety orientation speech is substantially similar, if not identical, each time I deliver it. I first inform the passengers as to the location of the exits, lifejackets, life rings, and life rafts, then I introduce the crew and discuss their ability to help passengers as needed, and then I inform the passengers as to location of the galley and the rental of fishing rods. I conclude the passenger safety orientation by stating: "Please keep in mind that this boat is a moving platform and is constantly moving over the water. When moving about the boat, please use all handrails provided, and do not run or jump."

• I recall giving the above passenger safety orientation shortly after 6:00 pm on July 20, 2019, once NEW DEL MAR was underway and still in the Marina Del Rey Harbor.

• I estimate that on approximately one-quarter of the voyages I have served as Captain aboard NEW DEL MAR, I have given a second announcement when NEW DEL MAR is passing the breakwater when there is some choppiness to the water or seabreeze. In this second announcement, I state: "Please be reminded that the boat is a moving platform, subject to movement of the waters and winds. Please use all handrails provided and do not run or jump."

• I recall giving this second announcement right before NEW DEL MAR reached the breakwater and entered the open ocean on July 20, 2019, due to some choppiness of the water and light seabreeze and as I observed several children on the boat that evening.

• Within a few minutes after giving this second announcement aboard NEW DEL MAR on July 20, 2019, I was told that a passenger fell and was injured. I later learned that this passenger was plaintiff Amanda Royce-Lambert.

• At the time I learned about the passenger injury on NEW DEL MAR on July 20, 2019, and based on the location of the boat at that time, I can state with absolute certainty that NEW DEL MAR was not traveling more than seven knots (and was likely traveling at five or six knots). I know this because I learned about the passenger injury shortly after NEW DEL MAR passed the breakwater, and later came to understand that plaintiff testified at her deposition that she was injured shortly after NEW DEL MAR passed the breakwater. I recall that July 20, 2019 was a Saturday, and the Marina Del Rey harbor was busy at and around 6:00 pm with kayakers and other small craft operators (some of whom are presumably less experienced) leaving and entering the harbor; this requires that I operate NEW DEL MAR at a safely slow speed. It is my habit and custom to navigate NEW DEL MAR out of the harbor and into the open ocean at speeds of no more than seven knots.

(Declaration of Sigifredo Aguirre, ¶¶ 3-9.)  

            Defendant also advances excerpts from Plaintiff’s deposition.  Plaintiff testified that she assumed that the New Del Mar was to traverse the open ocean.  (Declaration of Andre M. Picciurro, Exhibit C.)  And as the New Del Mar was heading out, Plaintiff stated in part:  “I did not see huge waves.  I definitely saw choppy, and, like, not – it wasn’t smooth.  The waters – there was, like – I don’t know what the ocean, like, what it would be called.  I’m not familiar.  I’m sorry.   . . .  It was not smooth.  It was – there was almost rolling-type water.  Like, if you’re out in the ocean and you’re riding the waves, like, you know what I’m saying.”  (Ibid.)  Plaintiff also testified that “[t]he winds were picking up.  I don’t know of a sudden gust of wind, but it was windy.”  (Ibid.)  Plaintiff knew that boats bob to some extent on the ocean.  (Ibid.)  In addition, Plaintiff testified that the New Del Mar hit two bumps and on the second bump, “we were launched into the – what felt like being launched into the air,” causing her to fall onto the deck and incur injuries.  (Ibid.)   

Defendant’s evidence is sufficient to meet its burdens of persuasion and production to show that Plaintiff will be unable to establish that Defendant breached the standard of due care (including a failure to warn) and that Defendant’s breach of the standard of due care caused or contributed to Plaintiff’s harm.  Thus, Defendant has shifted the burden to Plaintiff to raise triable issues of material fact as to whether Defendant breached the standard of due care (failure to warn) and that Defendant’s breach of the standard of due care caused or contributed to Plaintiff’s injuries.  

1. PLAINTIFF’S EVIDENCE

    

               In opposition Plaintiff advances her deposition testimony.  Plaintiff claims that she has experience with boats the size of the New Del Mar when she was a child.  (Declaration of Arnold I. Berschler, Exhibit 5.)  Plaintiff testified that the captain did not give a safety orientation speech before leaving the dock and does not recall hearing an announcement over the boat’s “PA system” before she fell onto the deck of the New Del Mar.  (Ibid.) 

    

               Plaintiff also advances the declaration of Christian Foster who states as follows:

    

• Before July 20, 2019, I had gone on fishing excursions on the NEW DEL MAR and on the sport fishing vessel SPITFIRE many times, mostly aboard the SPITFIRE, aboard which I would go fishing once a week for a couple of years.

• I was the person who organized the fishing excursion aboard the NEW DEL MAR of July 20, 2019 by checking the website for Marina Del Rey Sportfishing to be sure there was an evening trip for that date. This is the same website I would check regarding the SPITFIRE when I first went fishing aboard it.

• Before July 20, 2019, when I went fishing through Marina Del Rey Sportfishing into the open ocean coming out of Marina Del Rey Harbor, when there was going to be rough ocean water, the captain would have all customers move either to the stern deck or into the galley, and not merely along the side decks, before the vessel would clear the harbor’s breakwater (wave barrier).

• During the voyage in question on July 20, 2019, I was inside the NEW DEL MAR’s galley when the vessel was clearing the breakwater. After it cleared that area and was in open ocean, I felt two very heavy wave strikes close in time. The second was harder than the first.  . . .  At the same time, my wife, Kristine Foster, who was outside near the starboard galley doorway, called for me to go forward to check on Amanda Royce Lambert (“Amanda”) and her son, Mikey, and on Taryn, all of whom had been on the bow.

• I helped Amanda stay stable on the deck while Kristine, who had come forward after me, went toward the steering station to get the Captain to slow or stop for Amanda’s sake.

• I did not hear any warning or advice about the NEW DEL MAR approaching rough seas from either of the two crew in the galley or from the loudspeaker at any time during the voyage up through the time I arrived upon the bow deck and saw Amanda on the deck.

(Declaration of Christian Foster, ¶¶ 2-7.)  Further, Plaintiff advances the Declaration of Kristine Foster who states in pertinent part:

• On July 20, 2019, Chris, our daughter Tayrn Foster (then age 7), Tristan and I boarded the NEW DEL MAR at Gate 52 in Marina Del Rey to fish. We were joined by Amanda, Ritchie and Amanda’s younger son, Mikey.

• The vessel proceeded away from Gate 52 ( EXHIBIT D, Purple arrow) and through the protected waters (Approximate route shown by the black line on EXHIBIT D.) up to the wave barrier (EXHIBIT D red arrow) without turbulent wave or strong wind impact to it. See the water in EXHIBIT A, while we were underway in protected waters.

• Before the vessel had gotten to the wave barrier, I saw Amanda going forward with Tayrn and Mikey forward toward the lavatory; then I saw the three walk toward the bow along the starboard deck. When these three reached the bow deck, they turned to their left (toward port), and I lost sight of them because he superstructure blocked my view. See, EXHIBIT C.

• As the NEW DEL MAR came to the wave barrier, the vessel made a right hand turn to go northerly toward the open ocean. (See, approximate route on EXHIBIT D.)  As it did so, it picked up speed in that it's bow raised out of the water in a manner similar that I had experienced before on other ocean fishing excursions.

• Almost immediately after coming to open water, I felt the seas become rough and the wind became strong. The vessel began moving up and down vigorously with some rolling. All of a sudden, the vessel hit a very big wave. The vessel went up then come down very hard. As it did this up/down, I felt as if I was going to go airborne and I held on; however, I lost my balance but did not fall to the deck.

• Chris had come close to me just before the big wave hit. I asked him to go to the bow to check on the children and Amanda. I saw him go forward along the starboard side and when he got past the superstructure, he said, “She’s down,” meaning Amanda. I came forward and saw Amanda down.

• At no time as the NEW DEL MAR was approaching close to or passing the wave barrier or entering into the open ocean did I hear any announcement from the Captain or crew about any danger or need to get secure either over any loudspeaker or direct communication.

(Declaration of Kristine Foster, ¶¶ 4, 7-10, 12-13.) 

            Plaintiff also advances excerpts from the deposition of Aguirre in which he stated that the wind speed during the subject voyage was no more than 15 knots.  (Declaration of Arnold I. Berschler, Exhibit 4.)  As such the wind was a “moderate breeze” which creates on the water “small waves 1-4 ft. becoming longer, numerous whitecaps.”  (Ibid., Exhibit 6.)  Moreover, Aguirre acknowledges that the reporting by the United States Coast Guard is an accurate description of the subject incident.  That report states in pertinent part: 

On July 20, 2019, at approximately 18:30, a female passenger onboard the U.S. inspected passenger vessel NEW DEL MAR broke her left tibia and fibula after falling while the vessel was underway. The passenger was on the bow of the vessel when a wave struck the bow, sending the passenger into the air and back down onto the vessel's deck. The result of the impact with the deck caused the injury. A landside medical team met the vessel at their berth and the passenger was taken to a hospital for further treatment. As a result of its investigation, the Coast Guard has determined that the initiating event for this casualty was the injury to the passenger. The causal factor that contributed to this incident was the large waves, which caused the vessel to thrust the passenger into the air.

(Ibid., Exhibit 4, emphasis added.) 

            In addition, Plaintiff proffers the declaration of Joseph A. Derie (“Derie”), who is a Certified Marine Investigator, a retired United States Coast Guard officer and a current licensed officer with the United States Merchant Marine.  (Declaration of Joseph A. Derie, ¶ 1.)  Derie reviewed the following in order to craft his declaration and form his opinions:  (i.) Photographs, Defendant’s Bates numbers DMSI000001, DMSI000002; (ii.) Notice Of Motion And Motion For Summary Judgment By Defendant; (iii.) Declaration Of Capt. Sigifredo Aguirre In Support Of Motion For Summary Judgment; (iv.) Declaration Of André M. Picciurro In Support Of Motion For Summary Judgment; (v.) Declaration Of Richard L. Oefinger In Support Of Motion For Summary Judgment; (vi.) Memorandum In Support Of Del Mar Sportfishing, Inc.’s Motion For Summary Judgment; (vii.) Deposition of Amanda Royce-Lambert; (viii.) USCG form 2692 signed by Captain Sigifredo Aguirre; (xi.) Declaration Of Kristine Foster In Opposition To Motion For Summary Judgment; (x.) Declaration Of Amanda Royce Lambert In Opposition To Motion For Summary Judgment; (xi.) U.S. Coast Guard, Certificate of Inspection, also Certificate of Documentation: MV New Del Mar; (xii.) Declaration Of Christian Foster In Opposition To Motion For Summary Judgment; (xiii.) U.S. Coast Guard, Investigation Activity Report: NEW DEL MAR Personnel Casualty; (xiv.) Deposition of Capt. Sigifredo Aguirre; (xv.) Deposition of Nick Garcia.  (Declaration of Joseph A. Derie, ¶ 2.)  As such, Derie states and opines as follows:

• Ms. Royce-Lambert suffered a broken right lower leg about the time the vessel, whilst travelling North, left the shelter of the Marina Del Ray breakwater. (Marked as "wave mound" on some maps. Also referred to as a wave barrier.") Due to the waves breaking on the end of the breakwater, and subsequently meeting the waves coming in from north of the breakwater, turbulent seas can be expected. Passenger Kristine Foster's declaration, at paragraph 10, alleges that as the vessel cleared the breakwater shelter, the wind picked up strength and the seas became rough. Passenger Christian Foster’s declaration, at paragraphs 5 and 6 alleges that he felt two " heavy" waves strike the vessel close in time, then he quickly went to the bow deck, saw Ms. Royce Lambert upon the deck and the bow was pitching (up and down motion) and rolling (side to side motion) . . . .  There is no dispute that the seas picked up, as is normal, when leaving the protection of the breakwater. Captain Aguirre’s declaration concedes such when he alleges that near the breakwater he gave a second warning to passengers about sea conditions. The condition at the time of Ms. Royce-Lambert’s injury accident was turbulent seas. Ms. Royce Lambert's deposition testimony and the declarations of Christian and Kristine Foster are that a large wave or waves struck the vessel and caused Ms. Royce-Lambert to be launched into the air and fall and break her leg. Kristine Foster declared at paragraph 10 that the wave-hit in question made her feel as If she might be elevated off the deck and she lost balance.

• The MV New Del Mar's foredeck is a small area bounded by the port (left looking forward) and starboard bulwarks (The extension of a ship's side above the level of a weather deck.) and the forward pilothouse bulkhead. At the stem is the anchor winch on its mount and a bin with the anchor chain. This further narrows the useable foredeck area. Ms. Royce Lamber testified that sea spray came onto the foredeck before the wave-hit in question. (Royce, at pp. 31, 32) Kristine Foster alleges that there were several passengers on the foredeck in addition to her daughter Taryn, Mikey Lambert and Ms. Royce-Lambert. (Foster, para. 5.) With several passengers at the bulwarks as was the case when the incident happened, sea spray and a wet deck, moving across the deck to go aft as Ms. Royce-Lambert and the children were attempting can be difficult, presented challenges to her and the children’s safety.

• The vessel’s captain, Sigifredo Aguirre, stated deposed that he gave an initial safety briefing, as required by the USCG, prior to getting underway, and that he gave a second safety briefing prior to passing the end of the breakwater. He stated that that was his normal routine. There is evidence that some passengers did not hear the second announcement and that announcements over the loud speaker on that day were garbled. (Royce, p. 26; Kristine Foster, para. 13; Christian Foster, para. 7.)

• With regards to the safety announcements, there is no mention of advising passengers of the “three points of contact” rule. (Aguirre deposition, p. 75) That is that a person moving around a vessel should always have three points of contact with the vessel – two hands and one foot or one hand and both feet.  . . .  My opinion is that the owner of the MV New Del Mar was negligent in not requiring this in the "safety speech" to passengers and Captain Aguirre also was negligent in not starting the three points of contact caution to passengers. It is unknown why the MV New Del Mar does not include this common safety advice in their announcements.

• I was aboard the vessel on 25 May 2022 when it followed the same course and exited the northern breakwater channel as was done on the day of the accident.

• On 25 May 2022, the seas were moderate, about 1-foot or so, with some wind. While on the foredeck I was surprised how much it moved in two dimensions (pitching and rolling) on that vessel. I don’t remember ever being on a vessel that size whose foredeck moved as much as it did. This movement affected my balance.

• Ms. Royce-Lambert was thrown into the air when the vessel was struck by a wave. Ms. Kristine Foster, a passenger situated further aft on the vessel also felt the wave and lost her balance. Ms. Foster is an experienced fishing vessel passenger and stated that the wave was much harder than any she had experienced when on similar fishing vessels sailing out of San Luis Obispo, California.  There is no evidence presented to me that either Ms. Royce-Lambert, or her children were conducting themselves recklessly. Furthermore, neither the USCG Incident Report nor the USCG Form 2692 that was completed by the captain mentioned reckless conduct. Captain Aguirre erred when completing the USCG Form 2692 in which he states that the Royce-Lambert fall and injury was not a serious incident as defined by 46 CFR 4.03-2 Serious marine incidents. 46 CFR 4.03-2((a)(2) defines serious marine incident as “An injury to a crewmember, passenger, or other person which requires professional medical treatment beyond first aid, and, in the case of a person employed on board a vessel in commercial service, which renders the individual unfit to perform routine vessel duties” (italics added).

• I inspected the vessel’s wheelhouse and stood at the steering station. The view of the foredeck from the wheel is limited and more limited from the steering station chair ("captain's chair"). Captain Aguirre testified he is 5' (page 46) and that when he drove the vessel past the breakwater he was seated or standing (pages 70, 82-83). The person standing at the wheel has to move forward, if they are tall enough, or otherwise stand on their tiptoes to see most of the passengers on the foredeck. It is significant that Capt. Aguirre, who was at the wheel, did not know about the accident, even though the deckhand, Mr. Garcia, stated that he heard a loud thud when Ms. Royce-Lambert hit the deck. Capt. Aguirre became aware of the incident when someone entered the wheelhouse and informed him of it. This lack of a proper view of the foredeck is a safety concern because the person at the wheel does not know how many persons there are on deck, where they are and how the seas are affecting them. In my opinion, assuming for the sake of argument without conceding the truth of Captain Aguirre's declaration (in paragraph 7), that as he drove into the open ocean, there had been some "choppiness of the water and light seabreeze"; even under such conditions, that conduct was negligent for Captain Aguirre to drive the vessel into the open ocean without first checking on exactly who was on the foredeck, where they were and whether they were holding on. This is a practice I have seen done throughout my career at sea, especially when the operator knows there will be persons who have no experience or there are youngsters present.   

(Declaration of Joseph A. Derie, ¶¶ 5, 7-14.)

Plaintiff’s evidence is sufficient to meet Plaintiff’s burden of production to make a prima facie showing of the existence of a triable issue of material fact whether Defendant breached the standard of due care (including a failure to warn) and whether Defendant’s breach of the standard of due care caused or contributed to Plaintiff’s injuries.  In particular, Plaintiff’s evidence adequately disputes Defendant’s Undisputed Material Facts Nos. 9, 10, 12, 13 and 18.   

CONCLUSION AND ORDER

In considering the competent evidence proffered by Plaintiff and Defendant, and viewing said evidence most favorably to Plaintiff, the Court finds that there are triable issues of material fact regarding Defendant’s Undisputed Materials Facts Nos. 9, 10, 12, 13 and 18.   

The Court finds that Plaintiff has met her burden of production that there are triable issue of material fact and that Defendant is not entitled to judgment as a matter of law.  Stated differently, the Court cannot determine as a matter of law that Defendant did not breach its duty of due care and Defendant’s breach of its duty of due care did not cause or contribute to Plaintiff’s harm. 

Therefore, the Court denies Defendant’s motion for summary judgment.  The Clerk of the Court shall provide notice of the Court’s ruling.