DINENNO, SR. v. LUCKY FIN WATER SPORTS, LLC et al
Filing
99
OPINION. Signed by Judge Joseph E. Irenas on 11/4/2011. (drw, )
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
STEVEN DINENNO, SR., guardian
ad litem for Anthony Dinenno,
a minor,
HONORABLE JOSEPH E. IRENAS
Plaintiff,
CIVIL ACTION NO. 08-5903
(JEI/JS)
v.
OPINION PURSUANT TO FED. R.
CIV. P. 52(a)(1)
LUCKY FIN WATER SPORTS, LLC;
MARC M. ROY, JR.; and GEORGE
R. DJUKANOVIC, JR.,
Defendants.
APPEARANCES:
WESTMORELAND VESPER & QUATTRONE, P.A.
By: Thomas J. Vesper, Esq.
Bayport One– Suite 500
8025 Black Horse Pike
West Atlantic City, New Jersey 08401
Counsel for Plaintiff
MCGIVNEY & KLUGER, P.C.
By: Gary J. Intoccia, Esq.
23 Vreeland Road, Suite 220
Florham Park, New Jersey 07932
Counsel for Defendant Lucky Finn Water Sports, LLC
IRENAS, Senior District Judge:
This is a personal injury suit within this Court’s admiralty
jurisdiction1 arising out of a collision between two waverunners
in navigable waters off the coast of Wildwood, New Jersey.
Plaintiff alleges that Defendants’ negligence-- the negligence of
1
See 28 U.S.C. § 1333.
1
the waverunner operators, Defendants Marc M. Roy, Jr. and George
R. Djukanovic, Jr., and the negligence of Defendant Lucky Fin
Water Sports, LLC, the rental company which owned and rented the
waverunners-- caused the accident in which Anthony DiNenno’s leg
was severely broken.
Lucky Fin is the only appearing Defendant
at this time.2
A bench trial as to liability only3 was held on October 1719, 2011.
The Court now issues this Opinion in accordance with
Federal Rule of Civil Procedure 52(a)(1).4
Section I contains
the relevant procedural history of the case.
Section II contains
stipulated and uncontested facts (subsection A) and facts found
by the Court (subsection B).
law.
Section III contains conclusions of
Section IV briefly states the ultimate disposition of the
2
Default has been entered on Lucky Fin’s crossclaims for
indemnification and contribution against Defendants Roy and
Djukanovic, but no default has been entered against those
Defendants on Plaintiff’s claims.
Despite his non-appearance in this suit, Defendant Roy was
deposed, and his deposition transcript was entered into evidence
at trial (Exhibit No. P-9). Similarly, Defendant Djukanovic, who
is presently incarcerated (on unrelated charges), was deposed
shortly before trial and testified by videoconference at the
trial.
3
On September 22, 2011, with the consent of the appearing
parties, the Court entered an Order bifurcating the trial of this
case into a liability portion and damages portion.
4
“In an action tried on the facts without a jury . . . the
court must find the facts specifically and state its conclusions
of law separately. The findings may . . . appear in an opinion
or memorandum of decision filed by the court.” Fed. R. Civ. P.
52(a)(1).
2
trial.
I.
Plaintiff’s Complaint contains three negligence counts, one
against each Defendant.
Count 1 is entitled “Defendant Lucky Fin
Water Sports, LLC’s negligent entrustment of the . . .
waverunners.”
However the allegations contained in Count 1
encompass more than just negligent entrustment.
Specifically,
Count 1 alleges that Lucky Fin
breached [its] dut[y]
respects, among others:
of
care
in
the
following
(a)
By negligently entrusting the operation of the
Waverunner (sic) to Defendants [Roy] and/or
[Djukanovic];
(b)
By the negligent failure to train and/or
negligent training of [Roy] in the safe and
proper operation of the Waverunner;
(c)
By the negligent failure to supervise and/or
negligent supervision of [Roy’s] operation of the
Waverunner
. . .
(g)
By
negligently
operating
an
unsafe
and
unseaworthy Waverunner which, among other things
had an inadequately trained and inexperienced
crew and operators and whose operators and pilots
were knowingly allowed to operate the Waverunner
while impaired by the consumption of alcoholic
beverages5;
5
Despite the Complaint’s allegation, Plaintiff has never
argued that alcohol played any role in the accident. Witnesses
testified that neither Roy nor Djukanovic (nor their passengers)
consumed any alcohol on the day of the accident. (Ex. P-10, Von
3
(h)
By negligently failing to give proper and
thorough
instructions
on
safety
and safe
operation of a Waverunner;
(i)
And in such other and further respects as shall
become known during the course of discovery and
trial.
(Compl. ¶ 20)
Count 2 and Count 3 allege the “unseamanlike” acts and
negligence of Roy and Djukanovic respectively, asserting that
both men were negligent, careless, and reckless in operating the
waverunners.
(Compl. ¶¶ 33, 37)
Despite the Complaint’s breadth of factual allegations and
legal theories of liability against Lucky Fin, by the time this
case had progressed through discovery, Lucky Fin’s unsuccessful
summary judgment motion6, and the final pretrial conference,
Plaintiff’s claims against Lucky Fin had significantly narrowed.
Most notably, the Joint Final Pretrial Order does not
include a negligent entrustment claim against Lucky Fin.
The
Order provides in relevant part, under the heading of
“Plaintiff’s Contended Facts”:
Plaintiffs (sic) intend to prove the
contested facts with regard to liability:
following
Plaintiff will prove that Defendant Lucky Fin had
Deck Dep. 16:23-25; Ex. P-5, A. Nicoletti Dep. 27:10-18; Ex. P-6,
D. Nicoletti Dep. 15:15-19; Ex. P-8, M. Hughes Dep. 112:2-9; Ex.
P-9, Roy Dep. 66:13-25)
6
See Dinenno v. Lucky Fin Water Sports, No. 08-5903, 2011
U.S. Dist. LEXIS 16604 (D.N.J. Feb. 17, 2011).
4
a duty of care to properly supervise and safeguard its
Waverunner users and enforce its own safe boating
“Rules of the Road” within its Waverunner area; and
The Defendant’s employees breached their duty of
care to supervise and enforce [sic] and thereby were
a proximate cause for the Waverunner collision and the
injuries to Plaintiff[;]
Defendant also had a duty to properly instruct
its Waverunner operators;
Defendant breached this duty and as a direct
result caused the subject Waverunner collision and the
injuries to Plaintiff [sic][;]
Defendant also had a duty to maintain a safe and
organized Waverunner riding area;
Defendant breached this duty and as a direct
result caused the Waverunner collision and injuries to
Plaintiff [sic][;]
Plaintiff’s Maritime Expert, Andrew Lippi,
Esquire opined on July 31, 2010 that insofar as
Defendant Lucky Fin there was:
i.
ii.
Negligent Instruction;
Inadequate, unsafe and
riding area;
iii. Negligent supervision;
unorganized
And, that as a direct result of the negligent
rental, instruction and supervision Defendant Lucky
Fin was a substantial cause for [sic] the subject
collision.
(Final Pretrial Order, p. 3-4)
Plaintiff’s trial brief also does not argue negligent
entrustment.
Plaintiff’s brief clearly states, “[t]his case
involves negligent supervision, failure to warn and instruction
by Waverunner Rental Operator, Luck Fin Water Sports, LLC.”
(Plaintiff’s Trial Brief, p. 2)
5
Thus, this case proceeded to trial, and it did not appear
that Plaintiff intended to pursue any independent negligent
entrustment theory of liability.
But then, on the last day of
trial, Plaintiff re-called as a rebuttal witness his marine
expert, Mr. Lippi, who thereupon opined that the waverunners
Lucky Fin rented were too powerful to be safely operated by
inexperienced riders.7
Such testimony notwithstanding, the Court concludes that
Plaintiff has waived the negligent entrustment claim.
The final
pretrial order “controls the course of the action unless the
court modifies it,” Fed. R. Civ. P. 16(d), and the court may
modify it “only to prevent manifest injustice.”
16(e).
Fed. R. Civ. P.
The Third Circuit has observed, “[i]t is, of course,
established law that a pretrial order when entered limits the
issues for trial and in substance takes the place of pleadings
covered by the pretrial order.”
Basista v. Weir, 340 F.2d 74, 85
(3d Cir. 1965).8
7
Mr. Lippi had included this opinion in one sentence of
his expert report. However, as noted above, Plaintiff did not
include this in the final pretrial order, even though Mr. Lippi’s
other opinions regarding Lucky Fin’s asserted lack of care were
expressly included in the order.
8
See also United States v. 84,615 in United States
Currency, 379 F.3d 496, 499 (8th Cir. 2004) (“The Pretrial Order
supersedes all previous pleadings and controls the subsequent
course of action unless modified by a subsequent order. . . . A
party may be barred from advancing theories that are not
identified in the Pretrial Order.”) (internal citations and
quotations omitted); Rios v. Bigler, 67 F.3d 1543, 1549 (10th
6
In Petree v. Victor Fluid Power, Inc., the Third Circuit
held that the district court did not abuse its discretion in
refusing to allow the plaintiff in a products liability suit to
amend the pretrial order to include negligent failure to warn as
a theory of liability.
831 F.2d 1191 (3d Cir. 1987).
The
complaint pled both strict liability and negligence claims.
at 1192.
Id.
However, at the pretrial conference, plaintiff’s
counsel stated that “he would proceed under a theory of strict
liability alone,” and accordingly, the pretrial order did not
include a negligence theory.
Id.
“Nevertheless, counsel for the
plaintiff briefed the issue for trial,” Id., and “immediately
prior to trial,” plaintiff’s counsel moved to amend the pretrial
order to add a theory of negligent failure to warn.
Id. at 1193.
In affirming the district court’s denial of the motion to
amend, the Third Circuit, relying on Fed. R. Civ. P. 16(e),
Cir. 1995) (“The district court has discretion to exclude from
trial issues and claims not set forth in the pretrial order.”);
Gorlikowski v. Tolbert, 52 F.3d 1439, 1443-44 (7th Cir. 1995)
(“Because the parties rely on the pretrial conference to inform
them precisely what is in controversy, the pretrial order is
treated as superseding the pleadings and establishes the issues
to be considered at trial.”) (internal citations and quotations
omitted); Canal Ins. Co. v. First Gen. Ins. Co., 889 F.2d 604,
609 (5th Cir. 1989) (“Pretrial orders control the course of
actions and ‘shall be modified only to prevent manifest
injustice.’ Fed.R.Civ.P. 16(e). This court consistently enforces
this rule. If a claim is omitted from the order, it is
waived.”); Pierce County Hotel Employees & Restaurant Employees
Health Trust v. Elks Lodge, B.P.O.E. No. 1450, 827 F.2d 1324,
1329 (9th Cir. 1987) (“Issues not preserved in the pretrial order
are eliminated from the action.”).
7
explained,
[t]he finality of the pretrial order contributes
substantially to the orderly and efficient trial of a
case. . . . The plaintiff has offered no compelling
reason why the proposed theory of liability was not
disclosed at the pretrial conference. Therefore, we
find no abuse of discretion in the district court’s
refusal to grant plaintiff’s eleventh hour motion to
amend the pretrial order.
Petree, 831 F.2d at 1194.
The same result obtains in this case.
even clearer than Petree.
Indeed, this case is
Here, Plaintiff’s negligent
entrustment claim was not included in the trial brief, and
Plaintiff never moved to amend the final pretrial order.
Plaintiff merely presented rebuttal expert testimony concerning
negligent entrustment.
Such action cannot revive a claim that
was extinguished by its exclusion from the final pretrial order.
Thus, the Court holds that the negligent entrustment claim is
waived, and the Court will make no findings of fact or
conclusions of law with respect to that claim.9
II.
A. Stipulated facts10
9
Alternatively, the Court concludes that Mr. Lippi’s very
limited testimony concerning the power of the waverunners is
insufficient evidence to sustain Plaintiff’s burden of proof with
regard to the negligent entrustment claim.
10
All stipulated facts are taken from the Joint Final
Pretrial Order, p. 3.
8
1.
On Thursday afternoon, August 30, 2007, Anthony DiNenno
was a passenger aboard a 2006 Yamaha VX110 Waverunner being
operated by Defendant George R. Djukanovic, Jr. (hereafter
“Djukanovic”) in Wildwood, Cape May County, New Jersey.
2.
Defendant Lucky Fin was the owner and commercial renter
of the 2006 Yamaha VX110 being operated by Djukanovic and the
2005 Yamaha VX110 being operated by Defendant Marc M. Roy, Jr.
(hereafter “Roy”).
3.
Defendant Lucky Fin was required to instruct renters on
the operation of waverunners in compliance with the applicable
sections of the New Jersey Administrative Code.11
4.
Defendant Lucky Fin provided rules and instruction as
conveyed under the applicable New Jersey Administrative Code.
5.
On August 30, 2007 at the time of the accident,
Defendant Lucky Fin had David Reynolds and Patrick Busk12
supervising the delineated waverunner area for safe operations of
waverunners.
6.
A collision between Djukanovic and Roy’s waverunners
occurred on August 30, 2007.
7.
As a result of this waverunner collision, Anthony
DiNenno was injured.
11
See N.J.A.C. 13:64-3.1.
12
Testimony at trial established that Reynolds and Busk
are co-owners of Lucky Fin.
9
B. Findings of Fact
1.
Defendant Lucky Fin rented waverunners13 for use in a
riding area within Richardson Sound which was approved and
designated by the New Jersey State Police.
2.
The square-shaped riding area measured approximately
880 yards by 880 yards, with large spherical buoys demarcating
each corner.
3.
The riding area was not directly accessible by shore;
Lucky Fin operated a pontoon boat to ferry renters from the onshore rental office to the floating dock bordering the riding
area where the waverunners were stationed.
4.
At the rental office, Djukanovic and Roy each signed a
Lease Agreement which states in relevant part,
Lessee at lessee’s expense is completely responsible
for any of the following claims asserted by the lessor
upon return of the watercraft:
. . .
Disobeying any of the following riding rules in which
the Lessee will assume the responsibility to enforce
upon the watercraft and its passengers:
1)
Reduce Speed; No Wake; 5 MPH Speed Limit.
a) When following supervisors to and from
13
Witnesses at trial used the terms “waverunner” and “jet
ski” interchangeably. The Court uses the term “waverunner”
because (a) that is the name of the particular Yamaha personal
watercraft used in this case; and (b) Plaintiff’s expert, Mr.
Lippi, testified that jet skis were a less powerful, less userfriendly, precursor personal watercraft to the waverunners that
were used in this case.
10
designated riding area.
b) When passing other jet skis, waverunners
or boats within 100 feet.
c) When passing docks or anchored boats.
d) When within 100 yards of shore.
e) Before making a turn.
2)
Reckless, careless, dangerous operation of
the
unit
will
terminate
your
ride
immediately by a supervisor without refund
or deposit.
3)
Watercraft allowed only in designated riding
area.
4)
Wear Personal Flotation Device at all times
while riding.
5)
Do not ride near other boats, docks, or
people in water.
6)
Watch out for other boats and jet skiers.
7)
Report any damage to attendant.
8)
Maintain at least 200 feet
watercraft above idle speed.
from
all
I have received and understand the instructions in
safe boating, covering the United States Coast Guard
navigation
rules,
equipment
requirements,
and
operation of a Personal Water Craft [sic], and
starting the engine, operation of controls, leaving
and returning to dock, rules of the road and local and
state laws.
. . .
I AGREE TO ALL ABOVE DESCRIBED CONDITIONS AND RULES IN
ACCORDANCE WITH THIS LEASE.
(Exs. D-3, D-4; caps and bold in originals).
5.
Neither Djukanovic nor Roy had operated any type of
11
waverunner prior to the day of the accident.
6.
During the one-hour rental period, five waverunners
were being operated in the designated riding area: the waverunner
operated by (1) Djukanovic with his passenger Anthony DiNenno;
(2) Roy with his passenger Brian VonDeck; (3) Mark Hughes with
his passenger Robert Hughes, Jr.; (4) Anthony Nicoletti with his
passenger Doreen Nicoletti; and (5) David Reynolds.
Reynolds was
supervising the renters.
7.
In addition to the written instructions contained in
the Lease Agreement, Reynolds gave verbal safety instructions to
all eight renters as a group as they stood on the floating dock.
8.
Reynolds’ verbal instructions included, inter alia:
C
C
do not follow directly behind another waverunner;
C
scan the water at all times, particularly when
slowing down or turning;
C
overtaking (i.e., passing) situations between
waverunners should not occur because waverunners
should stay 300 feet away from each other;
C
9.
maintain a 300 foot distance between waverunners;
there are no brakes to slow down the vehicles;
they take 300 feet to slow down to idling speed
from full throttle;
each person has a whistle, which should be used in
emergencies as a distress signal indicating that
the person blowing the whistle needs help.
Reynolds did not instruct the riders that he would use
his whistle to alert them about their operation of the
waverunner.
Nor did he intend to use his whistle for that
12
purpose.
Lucky Fin does not use a sound signal of any kind to
get renters’ attention.14
10.
The United States Coast Guard requires all waverunner
operators and passengers to wear personal flotation devices
(e.g., life jackets) and to have a whistle.
11.
No one used their whistle for any purpose during the
rental period.
12.
The collision occurred during the second half of the
rental period.
13.
Prior to the collision, Reynolds reprimanded Roy for
riding too close to the Nicolettis’ waverunner, which was idling
in the water.
Roy’s actions violated Reynolds’ verbal
instruction to maintain 300 feet between waverunners.
14.
Reynolds reprimanded Roy by driving towards Roy and
using hand gestures.
When Reynold got closer, he told Roy to
keep away from other waverunners.
15.
Later, Reynolds again observed Roy violating his
instructions.
This time, Roy was closer than 300 feet from
Djukanovic’s waverunner and was following directly behind
Djukanovic.
14
At trial Plaintiff’s counsel referenced deposition
testimony by Erica Busk, Patrick Busk’s wife, that Lucky Fin used
whistles to signal to renters that their time was up. Mrs. Busk
did not testify at trial and her deposition transcript was not
entered into evidence. Therefore, there was no actual evidence
of this asserted fact presented at trial.
13
16.
Upon observing the violations, Reynolds, who was more
than 70-80 yards away at the time, began to pilot his waverunner
towards Roy, with the intention of stopping Roy from following
directly behind Djukanovic.
17.
As Reynolds was approaching Roy, Roy was closing the
distance between his waverunner and Djukanovic’s waverunner.
18.
Before Reynolds was able to get close enough to give a
visible signal to Roy, Djukanovic turned left.
19.
turning.
Djukanovic did not look behind his waverunner before
Neither Djukanovic, nor his passenger Anthony DiNenno,
saw Roy’s waverunner approaching them at any time prior to the
actual collision.
20.
The collision occurred as Djukanovic was turning left.
21.
After the accident, Roy pleaded guilty to operating the
waverunner at an unsafe speed.
Djukanovic was not charged with
any violation of law.
22.
The collision resulted from (a) Roy’s failure to
maintain a safe distance from Djukanovic; (b) Roy riding directly
behind Djuaknovic; and (c) Djukanovic’s failure to look behind
himself before turning.
23.
Reynolds could not have prevented the collision with
any type of signal (visual or auditory) because it was not
foreseeable that a collision would occur until Djukanovic turned
left.
While Reynolds did observe Roy violating the rules several
14
seconds prior to the collision, it did not appear that a
collision would occur until just moments before it actually
occurred.
By the time it was apparent that a collision would
occur, Roy would not have been able to avoid the collision even
if Reynolds had signaled, because Roy was going too fast in
relation to his distance from Djukanovic.
III.
1.
As this suit “involves a watercraft collision on
navigable waters it falls within admiralty’s domain.
With
admiralty jurisdiction . . . comes the application of substantive
admiralty law.
The exercise of admiralty jurisdiction, however,
does not result in automatic displacement of state law.”
Yamaha
Motor Corp. v. Calhoun, 516 U.S. 199, 205 (1996) (internal
citations and quotations omitted); see generally Jerome B.
Grubart v. Great Lakes Dredge & Dock Co., 513 U.S. 527, 546
(1995) (“federal admiralty courts sometimes do apply state
law.”).
The Court need not wade into the murky waters clouding
the answer as to when, or under what circumstances, federal
maritime tort common law15 may displace New Jersey’s common law
of negligence.
The parties have assumed that New Jersey law
15
No federal statute governs Plaintiff’s claims in this
case. Federal maritime law recognizes a cause of action for
“negligent breach of a general maritime duty of care.” Norfolk
Shipbuilding & Drydock Corp. v. Garris, 532 U.S. 811, 812 (2001).
15
applies, and the Court discerns no conflict between New Jersey’s
common law of negligence and the federal maritime law of
negligence as applied to the facts of this case.
Applying New
Jersey common law to the issue of Lucky Fin’s liability is not
“completely incompatible with modern admiralty policy and
practice,” Pope & Talbot, Inc. v. Hawn, 346 U.S. 406, 409 (1953);
nor does the application of New Jersey law make “inroads on [the]
harmonious system” that is “uniform federal maritime law.”
Romero v. International Terminal Operating Co., 358 U.S. 354, 373
(1959).
Accordingly, the Court applies New Jersey law to the
issue of Lucky Fin’s liability.
2.
“In order to sustain a common law cause of action in
negligence, a plaintiff must prove four core elements: (1) a duty
of care, (2) a breach of that duty, (3) proximate cause, and (4)
actual damages.”
Brunson v. Affinity Federal Credit Union, 199
N.J. 381, 400 (2009) (internal citations and quotations omitted).
3.
Plaintiff first argues that Lucky Fin breached its duty
of care by providing inadequate and incomplete safety
instructions to the renters.
In particular, Plaintiff’s counsel
argues that Lucky Fin did not properly instruct Roy and the rest
of the group on how to “overtake” (i.e., pass) another
waverunner.
Even assuming, however, that Lucky Fin breached its
duty of reasonable care in this regard, the Court concludes that
Plaintiff has not proven by a preponderance of the evidence that
16
the asserted breach was the proximate cause of the collision.
Even if Roy had been instructed on how to properly pass another
waverunner, that knowledge would not have helped him avoid the
collision because the collision resulted from: (a) Roy’s failure
to heed the instructions that were given regarding safe distance
(maintain 300 foot distance) and positioning (do not follow
directly behind another waverunner), and (b) Djukanovic’s failure
to keep a proper lookout, which was also covered in Lucky Fin’s
instructions.
4.
Plaintiff also argues that Lucky Fin breached its duty
of care by failing to use an auditory signal (specifically a
whistle) to warn Roy of the impending collision with Djukanovic.
This argument fails for similar reasons as the first argument.
Even if the Court assumes that failing to employ a sound device
as a warning system was a departure from the ordinary standard of
care in the industry, blowing a whistle would not have prevented
the collision.
When Reynolds first observed Roy closing the gap,
the situation was not emergent.
It only became emergent-- i.e.,
it only became apparent that a collision was likely to occur-when Djukanovic began to turn, which only occurred seconds before
the crash.
Had Reynold blew his whistle at that point, Roy would
not have had enough time or distance to avoid the crash.
Therefore, Plaintiff has failed to prove proximate cause.
5.
Lastly, the Complaint and Final Pretrial Order assert
17
that Lucky Fin breached its duty of care because the riding area
was too small and unorganized, particularly for inexperienced
riders.16
Plaintiff argues that Lucky Fin should have required
riders to “make a circular rotation in the riding area” thereby
adding “predictability” to the riding area.
Report)
(Ex. P-13– Lippi
This theory also fails for lack of causation.
Nothing
in the evidence suggests that riding in a circular motion would
have prevented Roy from operating his waverunner too close to,
and directly behind Djukanovic.
Indeed, it would seem that such
a situation might be even more likely to occur if riders were
required to follow one after the other in a single designated
circular path.
6.
Thus the Court concludes that Plaintiff has failed to
carry his burden of proof with regard to proximate cause, and
therefore has failed to prove by a preponderance of the evidence
that Lucky Fin was negligent.
Accordingly, the Court concludes
that Lucky Fin’s liability is 0%.
7.
As to the apportionment of liability17 between Lucky
Fin’s non-appearing Co-Defendants, Roy and Djukanovic, the Court
16
Plaintiff did not directly address this aspect of his
case in his trial brief nor during the trial, however, it was
included in the Complaint, Final Pretrial Order, and Plaintiff’s
expert, Mr. Lippi, addresses it in his report which was admitted
into evidence as Exhibit P-13.
17
Comparative negligence is the rule in both federal
admiralty law, see Pope & Talbot, Inc. v. Hawn, 346 U.S. 406, 409
(1953), and New Jersey law, see N.J.S.A. 2A:15-5.2(a)(2).
18
concludes that Roy breached his duty of care by failing to obey
Lucky Fin’s instructions regarding distance and positioning of
his waverunner and that his failure proximately caused Anthony
DiNenno’s injuries.
8.
Roy’s fault is 80%.
The Court concludes that Djukanovic also breached his
duty of care by failing to look behind him before making the left
turn (in contravention of Lucky Fin’s instruction), and that his
failure proximately caused Anthony DiNenno’s injuries.
Djukanovic’s fault is 20%.
IV.
For the reasons stated above, the Court concludes that
Defendant Lucky Fin was not negligent and therefore is not liable
to Plaintiff.
As a result of this conclusion, the Court will
also dismiss as moot Lucky Fin’s crossclaims against Defendants
Roy and Djukanovic.
An appropriate Judgment and separate Order
accompany this Opinion.
Dated: November 4, 2011
s/ Joseph E. Irenas
JOSEPH E. IRENAS, S.U.S.D.J.
19
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