Evans v. Nantucket Cmty. Sailing, Inc., 2008 U.S. Dist. LEXIS 85628 (D. Mass. Oct. 22, 2008).

Terra Bowling, J.D.

The United States District Court for the District of Massachusetts recently held that a passenger struck by a boom during a sailboat race, an injury that resulted in her loss of taste and smell, was partially liable for her injuries due to her failure to pay attention during the race.

The Race
Julianne Evans had grown up sailing sunfish sailboats in Michigan every summer until the age of 12. Evans’ interest in sailing was renewed more than twenty-five years later during a summer in Nantucket when she learned of weekly sunset sailing races hosted by a local sailing club, Nantucket Community Sailing (NCS). On the night of the first races of the summer, Evans went to Jetties Beach to inquire about joining the club and getting sailing lessons. At the club, Evans was placed on a Hunter 140 sailboat with one of the club’s instructor’s, Ronan O’Siochru, shortly before the races began.
   For fifteen minutes prior to the race, O’Siochru worked with Evans on basic sailing skills, noting that she seemed capable and comfortable on the boat. The race began without incident and O’Siochru and Evans’ boat sailed unimpeded for twenty minutes. During the fifth leg of the race, however, as Evans’ boat approached a buoy marking the course, another sailboat manned by an NCS instructor, Donncha Kiely, was on the same path. Under general maritime laws, Kiely’s boat had the right of way and O’Siochru was required to yield. As both instructors performed a series of maneuvers to avoid a collision, the boats came within a couple of feet of each other. During this time, Evans remained with her back to the instructors, oblivious to their communication. As the boats neared each other Kiely gave a command indicating that his “boom”1 would come across the boat in Evans’ direction. Had Evans been paying attention, she could have moved her head out of the way of the boom. She did not, however, and the boom struck the upper part of Evans’ neck. Evans was taken to a hospital where an X-ray and a CT scan showed no evidence of fracture or trauma. She was discharged, complaining of neck pain.

Injuries
Over the next several months, Evans noted that she had lost her sense of taste and smell. However, due to other, more pressing medical issues, she did not bring the problem to the attention of a doctor for several months. In 2004, upon seeing a specialist for taste and smell disorders, she learned that her loss of the sense of taste and smell was permanent. Evans then brought suit against both O’Siochru and Kiely.
   Evans saw the defendants’ expert, Dr. Robert Henkin who diagnosed Evans with a smell disorder and hypothyroidism, a condition that can cause a loss of smell and taste. A third doctor diagnosed Evans with varying taste and smell disorders. In light of the doctors’ testimony that taste and smell disorders are a common side effect of head injuries and other causative evidence, including testimony that Evans ate a soap labeled as chocolate after the accident, the court found that Evans’ taste and smell disorders were proximately caused by the head injury she received during the sailboat race and not hypothyroidism.

Negligence
While Evans claimed that the instructors were negligent under general maritime law, the instructors claimed that Evans was comparatively negligent for failing to pay attention during the race and not moving out of the way before the boom struck her neck. The court had to apportion negligence for Evans’ injuries.         
   The court found that both instructors were partially negligent for their violation of navigational rules. The court found that Kiely was negligent for misjudging the distance between the boom and Evans and that O’Siochuru was negligent for failing to take early or substantial action to avoid the collision. The court found that both instructors were at fault for failing to maintain a proper distance between the racing sailboats.
     However, the court agreed that Evans was partially at fault for failing to pay attention during the race. The court noted that Evans was not paying attention to the communications between O’Siochru or Kiely during the incident. Given Evans’ past sailing experience and ability, the court reasoned that Evans should have noticed the proximity of the other boat and taken precautions to protect herself. The court found that because Evans did not act with reasonable care to avoid injury, her negligence was a contributory, proximate cause of the injuries.
    The court next had to apportion fault. The court noted that neither of the helmsmen were acting prudently by racing in close proximity, however, the court found that, as the helmsman of the yielding vessel, O’Siochru had a duty to take early and substantial action to avoid a collision and apportioned his fault at 35%. Kiely’s was 25%.
   The court found that Evans fault was “significant,” noting her testimony that she was not paying attention “at all” to the “chit chatting” between the helmsmen. The court found her 40% liable for her injuries.

Conclusion
Finally, the court assessed damages. The court found that damages of $150,000 would adequately compensate Evans for her injuries, noting the “loss has affected her enjoyment of gardening, eating, particularly in restaurants, entertaining at home by cooking, whether with her sister or others, babies and men.”2
    Due to Evans’ negligence, her damages of $150,000 were reduced by 40%, for a total of $75,000. The court also awarded Evans prejudgment interest of over $15,000.

Endnotes
1. A boom is a horizontal part of the boat attached to the mainsail. In this case, the boom extended three feet beyond the boat.
2. Evans v. Nantucket Cmty. Sailing, Inc., 2008 U.S. Dist. LEXIS 85628 at *22 (D. Mass. Oct. 22, 2008).