Podgurski v. Town of North Hempstead
Filing
58
MEMORANDUM OF DECISION AND ORDER - After a review of the record in this case and the precedents, for all the injuries and the pain and suffering sustained by Thomas Podgurski to the present date, the Court awards the sum of $125,000. For the p ain and suffering to be suffered by Thomas Podgurski in the future, the Court awards the sum of $125,000. In addition, the Court awards to the plaintiff future medical expenses in the sum of $45,000. In sum, after the reduction in the award based on the Courts finding of 50% contributory negligence, the net award is as follows: Past pain and suffering $ 62,500; Future pain and suffering 62,500; Future medical expenses 22,500; Total: $147,500. The Clerk of the Court is di rected to enter judgment in favor of the plaintiff Thomas Podgurski against the defendant Meyran Marine Services, Inc., in the sum of $147,500. The Clerk is thereafter directed to close this case. Ordered by Senior Judge Arthur D. Spatt on 11/14/2011. (Coleman, Laurie)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
--------------------------------------------------------------x
THOMAS PODGURSKI,
Plaintiff,
- against -
MEMORANDUM OF
DECISION AND ORDER
CV 10-2316 (ADS)
TOWN OF NORTH HEMPSTEAD and
MEYRAN MARINE SERVICES, INC.,
Defendants.
---------------------------------------------------------------x
APPEARANCES:
BENNETT GIULIANO MCDONNELL & PERRONE
Attorneys for the Plaintiff
494 Eighth Avenue, 7th Floor
New York, New York 10001
By:
Nicholas P. Giuliano, Esq.
Joseph J. Perrone, Esq., of Counsel
TISDALE LAW OFFICES
Attorneys for the Defendants
60 East 42nd Street, Suite 1638
New York, New York 10165
By:
Thomas L. Tisdale, Esq.
Timothy J. Nast, Esq., of Counsel
SPATT, District Judge.
As the Court commented in other maritime cases, never before have water-based
recreational activities been so popular. Each spring, summer and fall, oceans, rivers, lakes and
bays of the United States team with recreational watercraft. These craft have to come to rest in
various manners in docks and at anchor, and affixing to moorings in the water. This case
involves a mooring and the boat operator’s attempt to disengage his sailboat from that mooring.
While doing so, his right middle finger was severely injured when it was caught in a carabiner on
a shackle on the mooring ball. The critical issue in this case is clear. Was the injury caused in
any manner by the negligence of the mooring service company or the Town of North Hempstead
in not properly preparing the mooring for the acceptance of the vessel, or was it caused by the
negligence of the plaintiff as a result of lack of care on his part, or was the injury caused by the
negligence of both the defendants and the plaintiff.
I. THE TRIAL
A. The Plaintiff’s Case
This case involves an injury to the right middle finger of the plaintiff Thomas Podgurski
(the “plaintiff” or “Podgurski”) in an incident that occurred on May 23, 2009 between 1:00 pm
and 2:00 pm. The plaintiff was going to take himself and his sailing partner out for a sail and
was attempting to disengage his boat from the mooring. The plaintiff’s boat is a 33 foot Dakota
based catamaran sailing vessel. This was not his customary mooring. It was a transient mooring
assigned to him by Matthew Meyran (“Matt Meyran”), an employee and the owner of the
defendant Meyran Marine Services, Inc. (“Meyran Marine”).
The plaintiff Thomas Podgurski resides in Port Washington and is a co-owner of an
insurance agency. One of his hobbies is sailing and fishing. He owned this 33 foot twin engine
catamaran sailboat called the Girlcat. In the sailing season starting in mid-May, the plaintiff
keeps the Girlcat at the Town of North Hempstead (“Town”) mooring areas in Manhasset Bay on
the north shore of Long Island. The plaintiff applied for a town mooring permit for the 2009
boating season and paid the fee for the permit. He was advised by the Town that if he needed to
have his mooring installed, he was to call Matt Meyran, the owner of the defendant Meyran
Marine. Meyran Marine is a designated provider of services for mooring for the Town of North
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Hempstead. Matt Meyran is also the owner of the Port Washington Water Taxi, which has a
launch service that transports clients to and from the town dock and their boats.
The plaintiff owned moorings from 2003 through 2009. All of the moorings were
installed by Meyran Marine. For the 2009 season, the plaintiff launched the Girlcat boat on May
14, 2009. The day before he spoke to Matt Meyran when he observed that his mooring was not
in the water. Matt Meyran directed him to mooring number 7. The full name of the mooring is
“Thompson Commercial Mooring number 7.” The plaintiff was told that he could use mooring
number 7 until his own mooring was available. After the plaintiff launched the Girlcat on May
14th, from Tom’s Point Marina, he sailed for a few hours and then tied up his vessel at mooring
number 7. He spoke to Matt Meyran who picked him up at the mooring. The plaintiff told Matt
Meyran that it was very difficult to pick up the chain. It was very heavy and he bent his boat
back lifting the chain. He asked Matt Meyran to put a “pickup” on the mooring so it would be
easier to use. Matt Meyran said “don’t worry, I’m going to get your mooring done right away.”
The plaintiff was asked what a mooring typically consists of. He responded:
A.
It typically is comprised of the anchor, the chain or two different types of chain
that come up to the mooring ball, a shackle on the end of that chain, and then a
pennant line, and then a pickup with a float or a stick or something to make it
accessible.
Q.
Was the mooring - - commercial mooring number 7 that Meyran sent you to for
your use on May 14, 2009 complete?
A.
No.
It only had the items described up to the shackle. There was no
pennant and no pickup.
Tr. at 51, 52.*
* Tr.
refers to the trial transcript.
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When he returned to mooring number 7 on May 14, 2009, the plaintiff used his boat hook
to engage the shackle and lift the heavy chain. The boat hook broke but he clipped on his
carabiner. A carabiner is a metal instrument which is a polished spring-loaded clip used to attach
lines. There was no pennant line and no pickup at mooring number 7. The top of the mooring
ball at number 7 had a shackle but no swivel or pennant line. The shackle was directly in contact
with the mooring ball. In his water taxi ride with Matt Meyran on May 14th the plaintiff
described his difficulty with the chain and he told him about putting a vertical piece of conduit on
top of the mooring ball. The plaintiff then sent a photograph of this type of conduit to Matt
Meyran. (See plaintiff’s Exhibit 21).
The plaintiff next used his boat on Sunday, May 17th. His regular mooring was still not
in place and he again went by water taxi to mooring number 7. As before, the mooring had no
pennant or pickup. It was a “light air day”. The carabiner was still annexed. From his boat, he
picked up the line hand over hand, and reached and grabbed the shackle and disengaged the
carabiner. He held the shackle by putting his middle finger of his right hand through the shackle
to support the weight of the shackle and disengaged the clip. As stated above, the mooring had a
shackle but no swivel. He then went for a sail. Podgurski returned from the sailing trip on May
17th in the late afternoon and tied up at the same mooring. He took the water taxi to return to the
shore and again asked the driver “to at least put a pennant on the mooring I was using until such
time as he would put down my regular mooring.” (Tr. at 68, 69).
The plaintiff next went to his boat on May 23, 2009, on Memorial Day weekend. He
expected his own mooring to be available. At the very least, if he had to continue to use mooring
number 7, he expected that there would be a pennant or a pickup on the mooring. When the
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plaintiff arrived at commercial mooring number 7 on May 23rd where his boat was moored, it
had not changed in any way. It had the same equipment; meaning, no pennant or pickup on it.
The sailing conditions that day were a little breezier than on the prior occasions. The wind was
blowing at about 15 knots. The plaintiff described what happened when he attempted to unhitch
his boat from mooring number 7 on May 23, 2009:
Q.
Did you attempt to unhitch your boat from the mooring on May 23, 2009?
A.
Yes, I did.
Q.
What happened when you tried?
A.
Well, I picked up the line with the chain following. I grasped the shackle. And
this is the first time I confronted that the carabiner had worked its way around to
the pin and because the opening in the carabiner wasn’t wide enough to disengage
the pin portion, I had to wiggle it back around to the boat portion. And I was
struggling with that for a little while. And then it started to tighten up. And I
actually was holding it by my second joint of my finger, and I felt it tightening up,
and I was unable to hold that way. And as I tried to let go of it, my finger got
caught between the carabiner and the shackle. My finger was crushed and
bleeding as I pulled away.
Tr. at 70, 71.
The injured finger was the middle finger of his right hand. The plaintiff stated that for the
period he owned the Girlcat from 2006 to May 23, 2009, he had no experience using a mooring
without a pennant other than commercial number 7. His regular mooring, at DW61 had a
pennant line attached to the mooring. (See plaintiff’s Exhibits 7 and 10). Notably, his regular
mooring ball, DW61 has a shackle, a swivel and a pennant line attached to it.
After the injury, the plaintiff’s finger was dangling by a thread of skin and flesh. He put
the finger back in place and covered and wrapped it with eight inch line and applied a tourniquet
to stop the bleeding. His companion called for help. A harbor control boat took him to the dock
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where two ambulances were waiting. He was taken to North Shore Hospital where he was under
the care of Dr. Jacob Cohen-Kashi, a plastic surgeon who performed an operation on his finger.
In the operation, a cure nail was inserted to put the two separate pieces of his finger together.
The plaintiff passed out from the pain. He was discharged from the hospital later that same day.
After his surgery, the plaintiff was treated by Dr. Cohen-Kashi. He was also seen for an
opinion by Dr. Tuckman, a hand specialist. The pin in his finger was removed by Dr. CohenKashi in July 2009. He was also treated by Dr. Shatzer, a pain specialist, Dr. Gertstein in
Manhattan and Dr. David Benatar. Asked to describe the present condition of the middle finger
of his right hand, Podgurski responded:
A.
I cannot bend the tip digit more than I could six months ago. It is inflexible.
There has been improvement in the second joint. That has more flexibility. I drop
things due to the sensitivity and weakness of the hand, even though I have been
concentrating in the - - at the direction of The Hand Therapy Center and the
doctors to use it much more, which I have been.
I have a constant pain when I move it around during the day, and I
occasionally take aspirin. I don’t like to take painkillers.
But the biggest problem with the pain is it wakes me at night. And
frequently it cramps up in my arm. And sometimes it is like when you get a
charley-horse in your toe or something, it is very painful.
I can’t play guitar, and haven’t played professionally. I have a distinct
mental discipline over my finger, and that finger doesn’t do what I want it to do.
Q.
How long have you played guitar?
A.
Since I was 11 years old, so 40 years.
Q.
Have you ever played professionally?
A.
Yes, I played professionally for several years. I composed music, copy wrote six
songs out of about 20 that we used to perform. And as that career didn’t work out
for the rest of my life I played guitar. Not as a performer or anything, but for
myself. I find it very meditative.
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I play at the end of the day and find I get myself very centered, where
instead of having a drink at the end of a tough day, I find that to be the best thing
that used to seminute (sic).
Tr. at 91, 92.
On cross-examination, Podgurski testified that he purchased the Dakota 33 catamaran in
2006 for $119,000. His boat is still maintained in Manhasset Bay. He has been sailing recently.
He has seen only one mooring ball without a pennant, and he was advised not to connect to it.
Podgurski was questioned in detail about how his boat was connected to the Thompson
commercial mooring number 7. On the May 14th mooring connection, the plaintiff discovered
when he connected his carabiner onto the shackle that it would not fit over the pin and that it
could only go through the bow of the shackle. The pin was too thick to fit into the carabiner. So
that, as of May 14th, the fact that the plaintiff knew there was only one place to get his carabiner
on the shackle, and only one place to remove it is of importance. On May 14th the plaintiff also
knew that tying his carabiner to the shackle was difficult.
Q.
As of May the 14th, you knew that there was only one place that you could get
your carabiner on the shackle and one place to get if off; is that correct?
A.
Yes, for the one time that I expected to be connected to that shackle.
Q.
And on May the 14th - - sorry, between May the 14th and May the 23rd, did you
ever tell Mr. Meyran or anybody at Port Washington Water Taxi or Meyran
Marine that you had only one place to tie into that shackle, and that tying your
carabiner to that shackle was difficult?
A.
I repeatedly told them it was a struggle to pick it up because it was so heavy.
Q.
Correct. You told them it was heavy?
A.
Yes.
Tr. at 114, 115.
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The plaintiff was questioned as to whether, instead of disconnecting his carabiner, which
he struggled with on May 23rd, he could have just untied his line and dropped it into the water.
The plaintiff conceded that it was easy to untie a knot on the line, but instead he elected to take
off the carabiner. In fact, the plaintiff said “Untying the line never crossed my mind.” (Tr. at
118).
When asked about the May 23rd incident, the plaintiff responded that the Port
Washington taxi took him to his boat at the mooring. The winds were blowing at 15 to 20 knots
with two feet of chop in the water. On the boat, he stood on the bow near the cross beam facing
forward. Ms. Arlene Dubin was at the helm in the aft portion in the cockpit where the engines
are contained. The wind was blowing hard and the engines were running. From where she was
standing, Ms. Dubin could not see the mooring ball which was directly in front of him, even
though her job was to try to position him over the mooring ball. There was about 10 to 12 feet of
mooring line out to the mooring ball. As Ms. Dubin drove the boat forward, he pulled the slack
line until the mooring ball was close to him. He pulled the mooring line up until he got to the
chain. At that time the mooring line was slack. He then grabbed the shackle which was affixed
to the mooring ball. There was no pressure on the carabiner because the mooring line was slack.
The Thompson number 7 mooring ball did not have a swivel on it. The carabiner was on top of
the pin of the shackle. At that point, the plaintiff’s middle finger on his right hand was crushed.
In the cross-examination with regard to the injuries and damages, the plaintiff testified
that he was back on his boat about a month after the accident. However, Arlene did all the work
on the boat. The plaintiff took a pre-planned boat trip to New England for a couple of weeks.
Both he and Arlene did the mooring. He used his left hand. The plaintiff last saw Dr. Cohen8
Kashi on January 19, 2010. He tried to play his guitar without success. In 2010 he took another
summer trip. Also, Matt Meyran advised him that his pennant on his mooring was run over by a
boat. He did not observe that occurrence.
In 2010, after January 19th, the plaintiff did not see any doctors in relation to his finger.
He did resume seeing Dr. Cohen-Kashi in March of 2011.
On redirect examination, the plaintiff testified that prior to 2009 Meyran Marine never
installed a mooring for him without a permanent pickup. He then again described how the injury
occurred.
Q.
Would you show the Court with the chain and shackle and carabiner how you
were attempting to disengage on the day of the accident, May 23, 2009?
A.
I will hold this with my other hand.
I grabbed - - after I picked up the line and this was here, I grabbed the
shackle like this.
My primary finger was my lead finger. The other fingers were in there.
And I attempted to control the weight.
I don’t have a good grip with this so I’m doing this with the other hand.
So I had it like a fist, and that is my strongest grip. And I was attempting
to work this around. And as I indicated, it didn’t slip as easily as this.
Of course, I was prying and wiggling it and I couldn’t do it. It tightened
up. And as I was trying to pull my finger away from the shackle is when my
finger got caught under the carabiner.
Q.
What do you estimate the - - when you pulled the shackle through the hole in the
mooring, and you pulled the shackle in the chain up to hold it, what do you
estimate the weight of that load to be?
A.
I would say it was 60 or 70 pounds.
THE COURT:
The weight of what?
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THE WITNESS:
The weight of the chain as I was holding it to
disengage the carabiner.
THE COURT:
How much?
THE WITNESS:
60 or 70 pounds, your Honor.
Q.
As you felt the chain and the shackle start to become tight, did that weight see to
increase?
A.
Oh, absolutely it increased.
MR. TISDALE:
Objection, your Honor, leading.
THE COURT:
It is close, but I will allow it. A good leading
question is: It increased, did it not? But, did it
increase? I will allow it.
THE WITNESS:
As I felt it increase, I tried to hurry to unclip.
Tr. at 151, 152.
Prior to his accident, on seven occasions, the plaintiff asked Meyran Marine, or an
employee of the Port Washington Water Taxi to install his regular mooring. However, Podgurski
also testified that Matt Meyran’s work was generally good.
In his deposition Matt Meyran was questioned as to why some moorings have lines and
buoys on them and number seven did not. His response was that they tried to put a minimal of
lines on the moorings until they are being used, because they get run over. However, Matt
Meyran also testified in his deposition that once he assigned a transient mooring for someone to
use, “it should have a line and a buoy on it.” (Tr. at 157, 158).
Matt Meyran was called as a witness in the plaintiff’s case. He testified that he is the sole
owner of Meyran Marine Services, Inc. and Port Washington Water Taxi Co. Meyran Marine
lifts and services moorings. It also does some dock work, marine service diving and other
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services for boats. Meyran Marine operates in the geographic area between Kings Point and
Matinecock Point and between Little Neck Bay and Hempstead Harbor. It includes the area of
Manhasset Bay, where the Town of North Hempstead mooring fields are located.
In evidence were two mooring lease agreements between Meyran Marine and the Town
of North Hempstead covering both transient moorings and deep water draft moorings. (Pltf’s
Exhs. 23 and 24). Also introduced was a mooring inspector’s license for Matthew Meyran which
permits him to inspect moorings in the Town of North Hempstead waters. (Pltf’s Exh. 25).
The Meyran Marine Services notebook (Pltf’s Ex. 35) indicates that on April 3, 2009,
Tom Podgurski paid $200 for mooring DW61 for the 2009 season. In May 2009, Meyran Marine
was the owner of Thompson commercial mooring number 7. Meyran Marine was responsible for
the installation, maintenance and up-keep of mooring number 7. The Town of North Hempstead
has regulations with regard to moorings. Matt Meyran testified that when Meyran Marine supply
moorings they also include pennants. The pennant is installed with a shackle through the
thimble, sometimes directly to the top of the mooring chain and sometimes with a swivel on top.
A thimble is to prevent chafing of the line. When he installs a pennant, it is expected that the
pennant will last the whole year. Often a pickup buoy is attached to the end of the pennant line.
Matt Meyran was not sure if the Town of North Hempstead requires the mooring to have
pennant lines on them. However, he stated that “Often we put pennants on transient moorings
that are used frequently.” (Tr. at 178). They do not use a pennant line in all situations.
Q.
In all cases it has a pennant line assigned to a customer for use?
A.
No.
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Q.
There are times when you design a customer a transient mooring without a
pennant line on it?
A.
Yes.
Tr. at 179.
Matt Meyran had discussions with Podgurski concerning where he should put his boat in
the water. He did not remember saying anything about a pennant for the mooring assigned to the
plaintiff. However, Matt Meyran conceded that it would be easier to use a mooring that had a
pennant assigned to it.
Q.
Did you tell Mr. Podgurski that the mooring he was assigned - - Thompson
commercial mooring number 7 didn’t have a pennant on it?
A.
I don’t remember saying that it didn’t have a pennant or not. I said that he can use
that mooring.
Q.
For a customer, is it harder or easier to use a mooring that has a pennant on it
compared to the one that does not?
A.
Depending on how it is set up, it would probably be easier if a pennant was on it.
Tr. at 181.
If someone was on the deck of a boat four feet over the water, he wouldn’t be able to
reach the mooring ball, which was 12 to 15 inches out of the water, except by leaning over the
deck. In the period of 2006 to 2008, when the plaintiff had the Girlcat boat, there were years
when mooring DW61 was not in the water and he was referred to a temporary mooring. At that
time the temporary mooring had a pennant line attached. Significantly, other than mooring
number 7, Matt Meyran never assigned Podgurski to use a mooring that did not have a pennant
line.
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Q.
When you put that 250 pound temporary mooring in for his use, would that
mooring consist of an anchor, the two-part chain and the mooring ball that we
discussed so far?
A.
Yes.
Q.
Did it also have a pennant line attached?
A.
At that time it did.
Q.
Other than commercial mooring number 7, at any time prior to May of 2009 had
you ever assigned Mr. Podgurski to use a mooring that did not have a pennant
line?
A.
No.
Q.
And I believe we discussed this yesterday, but in your discussions with Mr.
Podgurski for his use of commercial mooring number 7 in May of 2009, you did
not inform him that the mooring - - commercial mooring number 7 lacked a
pennant line; is that correct?
A.
No, I didn’t inform him that it lacked a pennant line.
Tr. at 258, 59.
On May 23, 2009, the Town of North Hempstead had not issued a permit for the use of
commercial mooring number 7. According to Matt Meyran, occasionally the bay constable will
inspect the mooring and allow Meyran Marine Services to put a mooring into operation without a
permit. However, Matt Meyran doesn’t recall whether there were any such discussions with
regard to the seven commercial moorings including Thompson commercial mooring number 7
for the year 2009. Also, he never received anything in writing from the Town of North
Hempstead permitting Meyran Marine Services to use mooring number 7 for the year 2009.
Matt Meyran was shown a photograph of five of the Thompson commercial moorings.
(Pltf’s Ex. 32). Thompson commercial moorings 3, 4 and 5 all have pennant lines on them. He
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can’t tell if there are pennant lines on commercial moorings 6 or 7. However, Matt Meyran
indicated that they did not have pennant lines on them. Interestingly, Matt Meyran conceded that
the Town of North Hempstead had a practice of first assigning people to the commercial
moorings that had the pennants attached to them. However, the Town did assign boats to one of
the transient moorings that did not have a pennant.
Prior to 2009, Thompson commercial moorings were in place and were operated by
Meyran Marine Services. At that time there were no permits issued. However, the
Knickerbocker Yacht Club, an adjacent land area, did have permits from the Town for these
moorings. In 2008, Meyran Marine Services had a verbal agreement with a Mr. Thompson
concerning his commercial moorings. If these moorings were not being used full time by him,
then Meyran Marine Services would be able to use them for whatever they were needed. While
Matt Meyran testified at a deposition that the commercial moorings should be set up with a
pickup line, he stated that this was the set up when permanent boats would use the moorings and
not when it was to be a temporary mooring, as occurred in this situation.
On cross-examination by his own counsel, Matt Meyran testified that he had an
agreement with Mr. Thompson, that Meyran Marine Services and the Town of North Hempstead
could use the moorings as “transient overflow moorings.” In 2009, Matt Meyran had
conversations with the bay constables about using the Thompson moorings for overflows in the
transient field. They thought it was a good idea, so that the boats would not go into the shore or
shallow areas and can be guided down the main channel. Thompson moorings numbers 1
through 7 are in the channel. This precipitated a relevant discussion involving the use of
pennants in areas near the main channel.
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Q.
And did you have discussions with the bay constable and others about why having
those moorings in place was a good idea?
A.
Yes.
Q.
And what was that?
A.
They thought it was good to have the moorings along the mooring field so that
people can be guided down the main channel and not into the shore or shallow
areas and go around.
Q.
And are Thompson numbers 1 through 7 on the channel?
A.
Yes.
Q.
The fact that Thompson 1 through 7 are on the channel, does that present any
particular problems insofar as pennants are concerned when those moorings are
vacant?
A.
Yes. We tried to limit putting pennants on those moorings because they can get
run over by other boat owners.
Q.
And have you had experience with that?
A.
Yes.
Q.
And what has happened in those instances?
A.
I have seen boat owners run over the pennants. I have seen shafts pulled out of
boats nearly sinking them. I have seen shafts pulled sideways, and then also seen
in rough weather people catching them between the rudder and causing damage.
Q.
In fact, can it catch on rudders on sailboats?
A.
Yes.
Q.
And that could be the - - it could leave the sailboat rudderless?
A.
It could leave the sailboat sterning to the wind, and if the weather was rough, it
also could remove the rudder on sailboats that were smaller depending on the
conditions of the seas.
Tr. at 273, 274.
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Matt Meyran testified that he did not think that any of the Thompson moorings 1 through
7 had permanent pennants on them. He stated that he did not need them because they would get
dirty with barnacles on them so that anyone picking up the line could cut their hands. Or, the
pennant line remaining in the water “could get run over by a boat causing damage to the boat.”
(Tr. at 275). Matt Meyran testified that the Thompson moorings 6 and 7 never had a pennant on
them. He explained that “it was definitely safer not having a pennant on that line when the
mooring was not getting used.” (Tr. at 278). Also, he explained later that moorings 6 and 7 are
in a main channel where the main traffic rounds the buoy, inferring that a pennant in those areas
would more likely be run over by boats using the main channel.
Matt Meyran testified that if the plaintiff had kept his boat on Thompson commercial
mooring number 7 for the entire period of the summer season to September “it would have been
a permanent mooring,” in which event he would have had a pennant line.
Q.
Mr. Meyran, my question was: Is the only thing that changed Mr. Podgurski
being on commercial mooring number 7, his stay there being temporary from it
being permanent as you just described, is whether you stuck a pennant on it or
not?
A.
Yes.
Q.
And so whether you rigged commercial mooring number 7 in a manner consistent
with your agreement with Mr. Thompson is solely a matter of whether you chose
to put a pennant on it?
A.
Yes.
Q.
Would you agree with me that a mooring, for virtually all the customers that
Meyran Marine Services has, with a pennant line on it is easier to use and safer to
use than one without a pennant on it?
A.
A line with a pennant and loop is easier to use.
Tr. at 287, 288.
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Meyran Marine Services uses one man to install pennants in addition to Matt Meyran,
who is experienced in installing pennants. Surprisingly, Matt Meyran testified that it takes only
five minutes to install a pennant.
Q.
And approximately how long does that process of screwing the shackle, putting
the thimble into the shackle, putting the pin back into the shackle, and seasoning
the shackle?
A.
Five minutes.
Q.
So you could have at any time before Mr. Podgurski got his vessel to the location
of Thompson mooring number 7 taken five minutes of your time, or your other
employee’s time, and made that mooring safer by placing a pennant on it?
A.
If Mr. Podgurski gave us enough allowance to do that, when the day he called was
a busy Saturday, umm, and not allowing us to put that line on the mooring before
he got there.
Q.
And I just wanted to refresh your recollection a little bit.
The question was that the vessel ran on May 14th, which was a Thursday,
2009. And you testified that you did not dispute that he contacted you on May
13th, which was a Wednesday.
What was the pressing business on May 13th, or May 14th, before he got
there in the afternoon, that would not have permitted Meyran Marine Services for
the five minutes it would have taken to install that pennant line?
A.
I don’t remember hearing from him the day before. I remember hearing from him
that day that he was coming in, the boat was in the water and he was on his way
over. That’s what I recall.
And I was on the work boat at the time, but we didn’t have the pennant
line available at the time.
He got to the mooring ahead of us, snapped into it, the way he usually
snaps into the top of a line or whatever he snaps into, and used his pennant line on
that mooring.
Tr. at 289, 290.
17
In colloquy with counsel on July 25, 2011, the Court asked the defendants’ attorney
Thomas L. Tisdale to define a “pennant.” He responded: “A pennant is that line, any line, that
connects a boat to a mooring.” (Tr. at 307, 308).
Claudio Norman Crivici was called by the plaintiff as a maritime expert. He is a 1985
graduate of SUNY New York Maritime School also known as Fort Schuyler. Upon graduation,
he fulfilled the requirements to be awarded a United States Coast Guard Third Mate’s license.
He also graduated with an Ensign’s commission in the United States Navy. This would permit
him to operate in a master’s position, as a captain of a vessel with limited tonnage. Crivici has
been a marine surveyor since 1985. His regular duty is to inspect vessels, ranging from yachts to
large ships. He inspects damaged vessels and forensically determines what caused the damage.
He also performs general inspections of vessels to make them safer. He also makes inspections
for marinas, shipyards, yacht clubs and other operations. His company was engaged by different
municipalities to review moorings and mooring safety, and the capabilities to withstand storms.
He has investigated the reason for vessels who broke free from moorings and for the failure of
moorings.
On a personal level, he has been an avid boater his entire life. He has had his own boat
on moorings on the north shore of Long Island, mostly in the Huntington and Centerport harbors.
For a brief period in the late 1980s he did moor a vessel right off the Manhasset Yacht Club. He
also worked with a company that installed and maintained moorings in harbors on the north
shore. He also removed moorings at the end of the winter.
Crivici was retained by the plaintiff’s counsel to do an evaluation. He did a full
evaluation in that he met with the plaintiff on his vessel and inspected the vessel and had the
18
plaintiff demonstrate how his injury occurred. He described the mooring ball at number 7. There
is a tube through the center of the mooring ball to allow a chain to come up through the bottom
of the mooring ball to the swivel which is attached to the shackle. A complete mooring system
would include a mushroom anchor on the bottom, a bottom chain, an upper chain, a float, to a
swivel and then a shackle and a pennant and then a pennant pickup buoy.
Crivici was shown a photograph of number 7 mooring. (Pltf’s Ex. 19). He stated that it
would not be a complete mooring because the pennant was missing as was the pickup buoy and a
pickup line. He pointed to a photograph of another similar mooring taken on the same day (Pltf’s
Ex. 22) which was equipped with a pennant and a pickup float. Crivici estimates that he has
been to between fifty and one hundred mooring fields. During those occasions he has been
directed to use transient moorings and other moorings. He never used a mooring that did not
have a pennant line or a float or pickup on it.
Q.
Can you estimate for us approximately how many mooring fields you have been
to?
A.
Fifty to a hundred.
Q.
On those occasions, were you ever directed to use a transient mooring or one of
the other moorings?
A.
Yes, I have been.
Q.
On any of those visits, were you ever directed to a mooring that did not have a
pennant line or a float on it?
A.
I have not.
Q.
Are you aware of any mooring - - commercial or recreational mooring fields that
are used by the recreational boating public that equip their moorings so they - such that they don’t have a pennant or a pickup on it?
19
A.
All the moorings have to have a pennant to attach to the mooring. I have only
seen those set up as we discussed previously.
Q.
When you say “as we discussed previously,” you mean with the pennant?
A.
Equipped with the pennant, yes. A soft line that can be attached to the vessel.
Tr. at 339, 340.
Crivici testified that he works for a company that installs moorings in the Town of
Huntington. The moorings installation was “loosely administered” by the harbor master. The
moorings were equipped with pennants and pickups. Crivici was questioned about the purpose
of the pennant and the pickup and he responded in the following manner:
Q.
And when those moorings were set up for customer usage, did they have pennants
for pickups - - and pickups?
A.
The moorings were equipped with pennants and pickups.
Q.
What is the purpose of the pennant and pickup?
A.
The purpose of a pennant and pickup is to facilitate safe use of the mooring
ground tackle, the ground tackle referencing the chain and anchor, the float. It is
the ability to pick up a mooring repeatedly in a safe fashion. And that is one of
the reasons why you want a pennant.
It also expands the circumference of the area where the mooring ball is, to
allow a safe pickup without requiring lifting a heavy object.
Tr. at 340, 341.
In his field inspection Crivici measured the freeboard of the plaintiff’s boat to the
waterline to be approximately 45 inches. This would make it very difficult for someone on the
boat to lean over to the mooring to unshackle the vessel. Offered in evidence as plaintiff’s
exhibit 58 was a pickup buoy with a line. This device further facilitates the easy picking up of
the pennant. In his own travels, Crivici has maintained a sailboat on a mooring for 15 years.
20
When he has traveled to other areas he often used a transient or rental mooring and “the pennant
is always on the mooring.” (Tr. at 355).
Q.
Do you have experience in either renting permanent moorings or transient
moorings?
A.
I maintained my sailboat on a mooring I owned for 15 years. That mooring was
either installed by myself or a master commercial operator.
When I traveled to other areas, I often used a transient or rental mooring to
moor my vessel.
Q.
When you would hire a commercial operator to set up a boat mooring or did it
yourself, did it include a pennant line?
A.
Yes. The pennant is always on the mooring.
Q.
And how about - - you indicated when you went to various transient moorings.
A.
That’s correct.
When I was visiting other harbors or a restaurant that would be on the
water, there are transient moorings that you can use, either by direction or for a
fee, and they were always equipped with a pendant. (sic)
Tr. at 355, 356.
A portion of the Meyran deposition – previously introduced in this trial – was read to
Crivici and he agreed.
Q.
Would it be fair to say that once you assign a transient mooring for someone to
use it, it should have a line and a buoy on it?
A.
Yes.
Q.
Would you agree with that statement?
A.
That a transient mooring should have a pennant on it?
Q.
Yes.
21
A.
Yes, I do agree with that.
Tr. at 356.
A major point of the Crivici testimony were his opinions as a maritime expert in this
field.
Q.
Do you have an opinion as to whether a transient mooring without a pennant on it
is defective or dangerous?
A.
I believe a mooring that does not have a pennant on it should not be offered up for
service.
Q.
And you read Mr. Podgurski’s testimony, even his trial testimony given here, and
he indicated that the mooring he was assigned to by Mr. Meyran did not have a
pennant on it when he arrived to use it on May 14, 2009. Is that correct?
A.
That is what was reported, yes.
Q.
And do you have an opinion as to whether, on May 14, 2009, when he was
assigned that mooring, whether it was suitable for his use?
A.
I do not believe that the mooring was suitable for its intended purpose at that
point.
Q.
Can you tell us why it was unsuitable for its use?
A.
The mooring was not equipped with a pennant or a pickup.
Q.
Are you familiar with the operation of installing a pennant line on a mooring?
A.
Yes, I am.
Q.
Have you seen Mr. Meyran’s testimony where he indicated it takes approximately
five minutes?
A.
Yes, I did.
Q.
Do you have any reason to disagree with that?
A.
No, I don’t.
Tr. at 357, 358.
22
Crivici also testified that installing a pennant is not a complicated job and can be done
while the vessel is tied to the mooring. In his opinion, after May 14, 2009 and before May 23,
2009, Meyran Marine could have added a shackle and pennant to the mooring number 7 “without
interrupting or even having to untie Mr. Podgurski’s vessel.” (Tr. at 358).
Further with regard to the plaintiff’s efforts to untie the vessel on May 23rd, Crivici stated
that, with the weather conditions on May 23rd including a wind of 15 to 20 knots, “with the
methodology that the vessel was tied up at the time of the casualty, it was substantially more
complicated.” (Tr. at 359). He described the attempt to unfasten the plaintiff’s vessel on May
23rd under the conditions then existing.
Q.
Would you tell us what your opinions were concerning your investigation into
how the accident happened?
A.
Simply that I believed that for the mooring to have been safely utilized, it should
have been equipped with a pennant and a pickup.
It was also my opinion that the ability for an average sailor to be able to
pick up and rig it was probably beyond most sailors’ normal routines and probably
within - - not within a lot of sailors’ capabilities.
Tr. at 362.
Crivici testified that he was never assigned by a maritime commercial operator to use a
mooring that did not have a pennant. It should not have been assigned to the plaintiff. The
plaintiff also had the same experiences. Prior to this occurrence, he was never assigned to a
mooring without a pennant. Also, on the day he did his inspection, Crivici had the opportunity to
pull the mooring chain up to the deck of the plaintiff’s vessel, and he estimated the weight to be
over 60 pounds. That is a fairly heavy load to handle. Having a pennant and a pickup line
“actually facilitates in the ability to pick up a mooring safely and repeatedly.” (Tr. at 366, 367).
23
Crivici described in graphic detail what the plaintiff had to do to try to detach the vessel from the
mooring without a pennant.
A.
So, he had to release the carabiner from the shackle, and obviously the mooring
ball was well below the deck or the crossbeam on the vessel. So, he either had to
do it from a small vessel, to get down closer to the water, or by doing it on his
vessel, he had to get away to lift the carabiner to a point where he can safely lift it
in his hand - - with his hand.
Q.
Was that, the method he had to undergo to release his vessel from the mooring, in
your opinion, safer and easier than if it had a pennant line, or more difficult and
more dangerous?
A.
It was definitely more difficult and dangerous, because it required now a lifting
procedure and a releasing procedure directly from the mooring ball versus just
simply releasing a pennant and a pickup buoy from the deck of the vessel and just
letting them drop into the water safely.
Tr. at 367, 368.
The final question on his direct testimony summarizes Crivici’s opinion in this matter.
Q.
Do you have an opinion as to whether Mr. Podgurski would have been injured in
the manner he was on May 23, 2009, if the mooring had had a proper pennant
installed by Meyran Marine Services?
A.
I firmly believe he would not have been injured in the same way or any way.
Tr. at 373.
On cross-examination it was brought out that Crivici was not licensed to be a harbor
master, mooring inspector or a bay constable. However, it was also brought out that he had
installed several hundred moorings. At this time, he installs his own mooring each year. He has
also examined a vessel that was damaged because it ran over a pennant line. He stated that
running over a mooring pennant can cause serious damage to a boat. Crivici doesn’t see the
pennant in the water as a danger unless it is in the channel.
In his cross-examination of Crivici, counsel for the defendants went through the acts of
the plaintiff at the time of the injury. The boat was driven up to the mooring ball and the
24
mooring line was pulled up and caused to be slackened. At that point the line got heavier and
heavier because the boat was pulling away or changing its direction. There was a vertical and a
horizontal component. As the boat drifted back there is more chain that gets pulled off the
bottom and the plaintiff was lifting more weight. At this time, the plaintiff was trying to take the
carabiner off the shackle. It was Crivici’s understanding that it was at this point that his finger
got caught between the shackle and the chain.
In fact, in his report in his findings and opinions, Crivici stated: “It was during this
awkward maneuver that the plaintiff’s right middle finger became caught in the shackle/chain
resulting in injury.” (Tr. at 411). This opinion was rendered by Crivici based on the deposition
he read and the demonstration which Podgurski provided. Crivici also testified that it “was not a
good maneuver to put your body into” and “not a good place to put your finger.” (Tr. at 412).
Crivici completed that thought by saying “a properly trained sailor should not have tried to secure
a chain with their finger” (Tr. at 412) and “a properly trained individual would not have put their
finger inside the shackle.” (Tr. at 421).
Mallory Nathan is a Senior Bay Constable of the Town of North Hempstead. He
appeared pursuant to a subpoena. He works for the Department of Public Safety which is
responsible for the public waterways and structures in the Town of North Hempstead. It is his
obligation for the Town of North Hempstead to enforce the Town local laws including § 42-11
entitled “Moorings” and the provision that says:
(4) The Director Harbor and Marine Enforcement, in conjunction with the
Commissioner of Planning, shall establish minimum mooring tackle guidelines.
All mooring tackle shall be subject to periodic inspection in accordance with § 425H.
25
Nathan was shown a document entitled “Town of North Hempstead Town Dock Mooring
Ground Tackle Regulations and Requirements.” (Pltf’s Ex. 60). He stated that he never saw this
document before. He was also shown another document entitled “Mooring Tackle Guidelines.”
(Pltf’s Ex. 61). Nathan did recognize this document as “the guidelines for mooring tackle.”
Referring back to the Town local law, there is a provision that states:
(3) All moorings shall be placed and maintained in accordance with federal, state
and town procedures.
Nathan explained that the Town issues permits for moorings. The plaintiff’s mooring
permit was issued by the Park Department, which also issued a permit for John Thompson for
commercial mooring number 7. (Pltf’s Ex. 33). Also, part of the Moorings Regulations is a
regulation which states that: “Upon the expiration of a permit, any mooring and all mooring
tackle shall be removed by the owner.”
By reason of the fact that the permit in evidence, plaintiff’s Exhibit 33, was issued on
August 17, 2009, after this occurrence, Nathan testified that no one had a valid permit between
January 1, 2009 and August 16, 2009. However, even if there was no valid permit for the subject
mooring on May 23, 2009, the date of this occurrence, a non-permitted mooring could be used.
This was because the mooring upheld the integrity of the channel. Notwithstanding his opinion
on non-permitted use, Nathan conceded that “according to the regulations, the mooring should
not have been used.” (Tr. at 437). The regulation he referred to was § 42-11 subdivision A(1)
which provides that “No person shall place or use any mooring . . . in the waterways of the Town,
without obtaining a permit under this chapter from the Town Clerk and paying the required
permit fee.” Nathan did not authorize Meyran Marine to use mooring number seven for its
26
operation. He does not know if anyone else had given such authorization.
With regard to the Mooring Tackle Guidelines, (Pltf’s Ex. 61), Nathan testified that
“These are strictly guidelines,” not regulations. (Tr. at 438). However, he explained that the
guidelines are essentially the minimum requirements for mooring in Manhasset Bay.
Significantly, the “Minimum Mooring Tackle Specifications” in the guidelines include a pennant.
Of importance, Nathan testified that the mooring installed in Manhasset Bay should have a
pennant.
Q.
Also within the chart, it details the pennant diameter.
A.
I see that.
Q.
And so, would you expect that at a minimum, any of the moorings installed in
Manhasset Bay would have the appropriate size mushroom, ground chain, riding
chain and pennant diameter as part of the mooring? Is that correct?
A.
Yes.
Q.
Would you expect the mooring to have anything else with it?
A.
Besides the anchor, the two types of chain, a mooring ball, a pennant, the
appropriate shackles. That’s all you would need.
Q.
So all those items would be part of a proper mooring in the Town of North
Hempstead, Manhasset Bay?
A.
Yes.
Tr. at 441.
In 2009, the Town of North Hempstead did not have a dock master. The Town dock falls
under the jurisdiction of the Parks and Recreation Department of the Town, under the Deputy
Commissioner. He is familiar with the operation of the Town transient moorings. They are on a
first come/first serve basis. They are free for 48 hour use. The boats can tie up to a transient
27
mooring without charge and can have the mooring for 48 hours, and, in fact, can stay longer.
Nathan was asked to describe the making of a transient mooring. He responded that a transient
mooring consists of “A mushroom anchor with adequate chain and a mooring ball.” (Tr. at 443).
When he was specifically asked if they also had a pennant and a pickup float, he stated, “Some
do, and some do not.” (Tr. at 444). He also stated that if the boater doesn’t feel comfortable, he
could have a pennant put on. Nathan was questioned as to who would install the pennants.
Q.
So, if they ask to have a pennant put on, you would do that immediately?
A.
Well, we will have Port Washington water taxi, Meyran Marine Services, do that.
We have the pennants available and go out and attach the pennant, if the boater
doesn’t feel comfortable putting the line through or attaching their own lines.
There are different reasons to want to do that. Some boats have very high
freeboard. It is not convenient. They may not feel they have the skill necessary
to, you know, get the - - to the mooring to do that. It is really a personal
preference.
Q.
If a boater asked to have a pennant line placed on it, how quickly would you, as
the bay constable for the Town of North Hempstead, expect them to install that
pennant?
A.
Almost immediately, while they wait.
Q.
So, if someone asked for a pennant and it wasn’t installed three days or a week
later, that would not be within the arrangements that you have with Meyran
Marine Services for the installation of the pennant on transient moorings?
MR. TISDALE:
Objection, your Honor.
Talking about arrangement with Meyran Marine Services.
THE COURT:
A.
Overruled.
I don’t believe we have any, like, arrangements stated, like, on paper. This is a
common sense kind of thing. If people need a pennant, please put a pennant on
for them, and he will do so.
28
Q.
Now, you were talking a little earlier about the different mooring arrangements for
boats, and some would be - - would feel more comfortable with a pennant and
some would not.
Does some of that have to do with the size of the vessel?
A.
It would have to do with the freeboard of the vessel. You have short boats with a
large freeboard, and you also have large boats with small freeboard. It all depends
on the preference of the operator.
Tr. at 444-46.
Nathan actually helped people use transient moorings without a pennant. He said: “Pass
me your line. Stick it through the shackle. I hand it back to them and everything is good.” (Tr.
at 447). Of importance, Nathan also discussed the question of the height of the freeboard of the
vessel as a factor when there is no pennant.
Q.
Mr. Nathan, we were discussing a little earlier whether the freeboard of the vessel
connecting with the mooring ball without a pennant is a factor.
A.
Absolutely.
Q.
Would you agree that the higher the freeboard, the harder it is to connect to a
mooring without a pennant?
A.
Yes.
Q.
Is it also fair to say that the freeboard becomes a significant impediment when,
from the level of the freeboard, the person on board the vessel can no longer reach
the mooring ball by just reaching down, even when laying on the deck?
A.
If they tried to attach their own line from the bow of the boat and there is a high
freeboard, it can be difficult.
Usually, a boat with a high freeboard in the bow would have an area that is
accessible or closer to the water on another part of the boat.
Q.
And if you had an area of the vessel - - all the areas of the vessel are higher than a
person can reach the mooring ball, without a pickup line on it, would the free - would it be an impediment to reach it without the pennant line?
29
A.
Yes.
Tr. at 449, 450.
On cross-examination, Nathan testified that some of the transient moorings do not have
pennants on them. Pennants have a tendency to get dirty. Also different kinds of “things” will
grow on the line and you can cut yourself on barnacles, and it becomes a “filthy mess.” (Tr. at
452). According to Nathan: “It is not an ideal situation to have a pennant in the water for a
length of time without being used.” (Tr. at 452). When asked about safety conditions, Nathan
responded that: “The only safety conditions are with the other boats actually going on that line
and bringing it into their running gear and perhaps foul the prop or causing damage to a shaft or
an outdrive or a rudder.” (Tr. at 452).
Nathan himself maintains seven boats in Manhasset Bay, including his own boats and the
patrol boats and work boats of the Town. Occasionally he moors his boats on the Town mooring.
In particular, one of the boats is exclusively on a mooring. That mooring is not equipped with a
pennant. He attaches that boat to the mooring by running a line through the top shackle and
attaching it to two cleats on the vessel.
While his office does not have anything to do with the issuing of permits for the
moorings, he gets a copy of the permit after the fact. When asked about the Thompson moorings,
one through seven, Nathan stated that he wanted them there.
Q.
You were aware that Thompson moorings one through seven were in place in
2009, and I think you said you wanted them there?
A.
Yes. We actually - - I advocated to the Town to allow them to stay in the water.
Q.
And you were aware some had pennants on them and some did not?
30
A.
I did not even think about the pennants. I can mentally see the moorings, but I do
not know whether they had pennants on them.
Tr. at 455.
At this point in the trial the plaintiff rested.
While the attorney for the defendants did commence making motions at the end of the
plaintiff’s case, those motions were withdrawn.
B. The Defendants’ Case
In his second appearance, Matt Meyran testified on behalf of the defendants. Matt
Meyran had considerable maritime experience and various licenses, including one for a mooring
inspector. Matt Meyran also had extensive work experience on the waterfront including various
yacht clubs in North Hempstead and Port Washington. In 1996, he started his own marine
business with Meyran Marine Services and the Port Washington Water Taxi. The primary
business of Meyran Marine Services is hauling and setting moorings. The business of the Port
Washington Water Taxi is to provide a launch service to and from vessels in Manhasset Bay and
to harbor towns around the bay. In 2009, there were six to seven mooring inspectors in the Town
of North Hempstead. Also, in 2009 there were approximately 800 moorings in Manhasset Bay.
Meyran Marine had some involvement in 80% of the moorings. Meyran Marine would haul and
set the moorings on top of the float for the various yacht clubs and for individuals persons and
associations in Manhasset Bay. At the town dock, the company rented approximately 80
moorings in 2009.
Of the 80 moorings Meyran Marine rented in 2009, 20 to 30 used carabiners. Matt
Meyran described how the carabiner was used in the mooring process. In his description, he
31
mentioned that the carabiner was spliced on the pennant. Introduced in evidence as defendants’
Exhibit AQ, is a 12 foot pennant with a thimble spliced into it and a loop spliced on the other
end. A thimble is a steel loop that is spliced at the end of the pennant line. Matt Meyran stated
his understanding of what is a “pennant.”
A.
A pennant is that line that would go from the top of a mooring ball, or even
underneath the mooring ball, to a boat by either a cleat or snap, or somehow tied
up to the boat.
Tr. at 494.
When the plaintiff used his regular mooring at DW61, he would snap his pennant line
into the top of the pennant line that was on DW61 to make one continuous pennant. Matt
Meyran produced a shackle in court. It was a Chicago brand five-eighths shackle from his
inventory. He uses the shackle on top of the mooring balls. This was the kind of shackle that
was on the top of Thompson mooring number 7. During the regular season he begins to start
working on the moorings in March. After the boats are launched for the season either the marina
or the owner would place them on the moorings. Matt Meyran testified that at the beginning of
the season when he begins setting the moorings in place, “sometimes” he puts pennants on them.
Q.
At the beginning of the season when you begin launching pennants - - I’m sorry.
At the beginning of the season when you begin launching moorings, or
setting moorings in place, do you put pennants on them?
A.
Sometimes.
Q.
On what occasion do you put some on and some not?
A.
Usually on the existing AW line we would put pennants on a couple of the
moorings when we would know that boats are being launched early, so that the
marina or yacht club would come over and drop a boat on one of those moorings.
32
Q.
Otherwise, when do you put pennants on them?
A.
Either when the owner calls us and says they are coming out and want a pennant.
They also make a dish that you can throw the line on the top of.
Tr. at 497.
DW61, the plaintiff’s regular mooring requires a special permit from the Town of North
Hempstead. The plaintiff’s boat is 33 feet long and requires a 300 pound mooring, rather than
the usual 250 pound mooring. Its mooring goes in later because of its larger swinging radius.
“. . . [w]e have to wait for the other moorings to be installed to allow for the swinging radius so
his boat doesn’t hit others.” (Tr. at 498, 499). There are no other 33 foot boats in the Town of
North Hempstead dock area within Manhasset Bay. Outside that area in the deep water draft area
there are boats over 30 feet long. These deep water draft moorings are charged $1,500 for the
season, which includes the mooring, the launch service, parking for the season and any
maintenance on the mooring.
For the moorings within the town dock area, the boat owner is not required to use the
services of Meyran Marine. The boat owner has the obligation to obtain a permit to use the
mooring. Matt Meyran’s company does not receive any compensation from the Town; its
compensation is from the boat owners. As to the installation of pennants it is easier to put the
pennant on the mooring in the beginning than it is later. The explanation Matt Meyran gave for
not always placing a pennant on a mooring is that it is not always safe, with regard to being run
over by other boats and causing barnacles to form.
In 2009, Meyran Marine had entered into an agreement with Thompson. In the agreement
Thompson was given permits for the moorings involved and Meyran Marine would install the
33
moorings, after which Thompson would try to sell the moorings. Meyran Marine would receive
$750 for the mooring, the launch service and the service of the moorings. Thompson would then
charge the boat owner, “anything he would like.” (Tr. at 506). However, as to the Thompson
moorings, if he was unable to find a seasonal tenant, Meyran Marine could use the moorings as it
saw fit. With respect to responsibility, if any, in this case, the Court notes that Meyran Marine
placed Thompson 1 through 7 moorings. By May 2009, Thompson had not yet received the
permits for his moorings. He was still in negotiation with the Town with regard to the permits.
In this regard, of importance in this case, Meyran Marine applied the mooring balls to the top of
the chains. Also, in agreement with the Town, Meyran Marine could use the Thompson
moorings as an overflow in the transient mooring field. If Meyran Marine put overflow
customers on these moorings, there was no additional compensation to Meyran Marine except for
the use of its water taxi.
On May 14, 2009, there was no other mooring in the town dock area that could have been
safely used by the plaintiff’s boat. This was because of the larger swinging radius of the
Podgurski boat. At DW61, his regular mooring, he had a heavier 300 pound mooring. However,
the DW61 mooring was not available and the plaintiff was assigned to Thompson mooring
number 7, which was the closest to the town dock area. He needed to place the other boats in
moorings first, so he could determine the swinging radius. Matt Meyran testified that, at the
time, mooring number 7 did not have a pennant on it, “because it wasn’t used full time.” (Tr. at
514). The plaintiff did not object to using mooring number 7. The plaintiff did use mooring
number 7 on May 17th and attached his boat by his own pennant line. He had no problem using
his own line as a pennant annexed to the mooring.
As a mooring inspector, Matt Meyran was not aware of any regulations that require
34
pennants to be affixed to moorings at all times. Other catamarans affix themselves to moorings
in a number of ways. Sometimes they will have a pennant line that is split into a bridle;
sometimes with loops on either ends of the bridle; sometimes they want swivels or thimbles on
either end; sometimes they are tied to the top of the mooring ball; and sometimes they are put on
with a large stainless steel carabiner slip with a four inch throat (opening). The carabiner at issue
in this case, which was used on May 23rd, “looks like a five-eighths or a three quarter inch
throat.” (Tr. at 518). In addition, on a material subject, Matt Meyran testified that not all his
transient mooring customers have pennants on their moorings, although some of them do have
pennants annexed to their moorings.
Today, six of the Thompson mooring lines 1 through 7 are occupied by a boat rental
company. As to those six moorings “there is a pennant line from the top of the ball to the boat.”
(Tr. at 519). The one empty mooring does not have a pennant on it. There are a number of ways
in which boats are affixed to moorings when there isn’t a pennant on the mooring. Matt Meyran
described different ways that you can put a pennant on a mooring, using the shackle on the top of
the mooring. Also, in his experience as a mooring inspector, attaching a carabiner to the shackle
was an acceptable mooring arrangement.
Prior to May 23rd, Matt Meyran did not know how the plaintiff was letting go of the
mooring or releasing his boat from the mooring. The plaintiff never mentioned that he had any
difficulty getting his carabiner over that shackle. Matt Meyran described another type of
carabiner which was used for moorings. As he stated previously, this carabiner had a larger
throat, could handle a heavier boat and was easier to snap onto shackles. As an experienced
mooring inspector and mooring installer, in Matt Meyran’s opinion it was “not a good idea” for
35
an experienced sailor to put his finger in the shackle and keep it there while the chain was on a
heavy load, “because you could get hurt.” (Tr. at 533). He also gave an opinion, based on his
experience, that a pickup buoy does not assist in letting go of a mooring, “it actually gets in the
way.” (Tr. at 534).
About a month after the accident, Podgurski asked for his regular DW61 mooring. Matt
Meyran then went out and got his DW61 mooring and placed it in the water. Matt Meyran
concluded his direct testimony in the defendants’ case by estimating that he has hauled, replaced
or set thousands of moorings without a prior claim or complaint.
On cross-examination Matt Meyran testified about his agreements with the Town of
North Hempstead, under which Meyran Marine was to be paid for its services in installing
transient moorings for the Town’s use. It no longer receives any compensation from the Town.
In evidence is a white rope, approximately 25 feet long with a 3/4 inch diameter, (Dfts’
Ex. AQ), which is exactly the same line that is on the Podgurski mooring. This mooring line or
pennant meets the requirements of the Town mooring guidelines for a 300 pound mushroom.
Thompson mooring number 7 has a 300 pound mushroom and the mooring line in evidence
would have been a sufficient pennant line for that mooring. On May 14, 2009, Meyran Marine
possessed extra pennant lines similar to defendants’ Exhibit AQ. So that if Meyran Marine
wanted to, it could have installed such a pennant line on Thompson commercial number 7.
However, a pennant line in the water is subject to fouling with growths. Sometimes the boat
owner would clean the moorings and sometimes they will call in advance and ask Meyran Marine
to clean them. Cleaning the pennant line is more work than installing the pennant line.
However, Matt Meyran stated that the company does not have an obligation to keep the pennant
36
line cleaned. A pennant line cost approximately $45 to $50 in a finished state; the line itself is
about $20 to $25. It is included in the price when a customer rents a mooring from Meyran
Marine if they want a pennant line.
Podgurski owns the DW61 mooring. He pays Meyran Marine $200 per year for hauling,
setting and maintenance on his mooring ball and chain. It took him about an hour to install the
DW61 mooring. When boat owners obtained permits from the Town, they received written
notice that if they need to have their mooring installed, call Matt Meyran. (Pltf’s Ex. 5). Of
importance in this case, Matt Meyran testified that when he installed the mooring for Podgurski
he always included a pennant line.
Q.
My question actually had nothing to do with whether it is the exact same mooring
or not.
My question is: When you installed the mooring for Mr. Podgurski, did
you always include a pennant line?
A.
Yes.
Q.
And you knew every year you always installed, and going to 2008, 2009, 2010,
when you went to install DW61, it would include the anchor, the chain, the
mooring ball, the necessary shackles and a pennant line for him to use?
A.
Yes.
Q.
And so you knew that his boat was set up to use a mooring in that configuration?
A.
Yes.
Q.
And on May 13th or 14th of 2009, whether it was the day before, as Mr.
Podgurski testified, or the day of the bringing his boat into the facility as you
testified, you knew that on all prior occasions his use of moorings in the Town of
North Hempstead, his mooring always had a pennant line?
A.
Yes.
37
*
*
*
*
*
Q.
And the issue is whether you told him specifically that there was no pennant on
the mooring in the conversation you had with him.
A.
I’m sorry, I don’t recall.
Tr. at 554-556.
Matt Meyran uses work boats for his mooring work. The freeboard in the stern of the
work boat is two and a half feet, which is “considerably” less than the approximate four feet of
the Podgurski catamaran. Also, for a boat that has three and a half feet or higher of freeboard,
having a pennant line makes the mooring easier to use than if it does not have a pennant line. In
addition, of importance in the Court’s view, Matt Meyran testified that he never saw anyone use
the Manhasset Bay moorings without a pennant.
Q.
Did you ever see somebody use the Manhasset Bay moorings without a pennant
on them?
A.
I can’t say that I had.
Q.
Would you agree with me that for a boat that has three and a half feet or higher of
freeboard, having a pennant line makes the mooring easier to use than if it does
not have a pennant line on them?
A.
Yes.
Tr. at 562.
Manhasset Bay is approximately two and a half miles long and a mile and a half wide.
When asked to compare his maritime license with that of the plaintiff’s expert Claudio Crivici,
Matt Meyran conceded that: “He put his time in and his would be superior.” (Tr. at 563). Matt
Meyran also testified that one person operating alone can install a 300 pound mooring. Adding a
few other facts of interest, Matt Meyran stated that the Town of North Hempstead assigns a
38
particular boat to a particular mooring spot. However, Podgurski owns the mooring equipment at
DW61, including the 300 pound mooring given to him by Matt Meyran in exchange for a 150
pound mooring.
Both sides rested.
No motions were made by either party at the end of the entire case.
II. DISCUSSION
A. The Liability Standards
This case is controlled by admiralty law because the incident occurred on navigable water
and had a substantial connection to traditional maritime activities. See Yamaka Motor Corp. v.
Calhoun, 516 U.S. 199, 206, 116 S.Ct. 619, 133 L.Ed.2d 578 (1996); Moore v. Matthews, 445 F.
Supp. 2d 516, 521-22 (D. Md. 2006). As far back as 1866, the rule has been that “Every species
of tort, innocent occurring, and whether on board a vessel or not, if upon the high seas or
navigable waters, is of admiralty cognizance.” The Plymouth, 3 Wall. 20, 36, 18 L.Ed. 125
(1866). See also Foremost Insurance Company v. Richardson, 457 U.S. 668, 672, 102 S.Ct.
2654, 2657, 73 L.Ed.2d 300 (1982) (“if the wrong occurred on navigable waters, the action is
within admiralty jurisdiction”). In deciding when an activity bears a substantial relation to
“traditional maritime activity,” the Supreme Court has held that even a boat docked for storage
and maintenance was engaged in traditional maritime activity. In Matter of the Complaint of
Delmarine, Inc., 520 F.Supp.2d 422, 429, (E.D.N.Y. 2007) it was stated that “it is difficult to
conceive of anything that a boat could do in the water which would not qualify as a traditional
maritime activity.”
A tort claim involving a boat used for pleasure purposes on navigable waters comes
within the admiralty jurisdiction of the federal courts. See Wahlistrom v. Kawasaki Hearing
39
Industries, Ltd., 4 F.3d 1084, 1086 (2d Cir. 1993). The rule as stated by the Supreme Court in
Sesson v. Ruby, 497 U.S. at 675, is as follows:
“. . . when a ‘potential hazard to maritime commerce arises out of activity
that bears a substantial relationship to traditional maritime activity, as does the
navigation of boats in this case, admiralty jurisdiction is appropriate.’” (quoting
from Foremost Ins. Co. v. Richardson, 457 U.S. 668, 675, 107 S.Ct. 2654, 2658,
N.J. 73 L.E.2d 300 (1902).
The rules as stated in Moore v. Matthews, 445 F. Supp. 2d at 522 are clear and accurate:
To prevail on their negligence claims, plaintiffs must establish the
existence of a duty, a breach of that duty, and an injury proximately resulting from
the breach of that duty. Schumacher v. Cooper, 850 F.Supp. 438, 447 (D.S.C.
1994). See also Thomas J. Schoenbaum, Admirality and Maritime Law § 5-2 (4th
ed. 2001).
*
*
*
*
*
When two or more parties have contributed by their fault to cause damages
in a maritime collision such damages will be allocated among the parties
proportionally to the comparative degree of fault. See United States v. Reliable
Transfer Co., Inc., 421 U.S. 397, 95 S.Ct. 1703, 44 L.Ed.2d 251 (1975). As a
result, contributory negligence is not a complete bar to the plaintiff’s recovery, but
merely mitigates damages. Id.; Exxon Co., U.S.A. v. Sofec, Inc., 517 U.S. 830,
837, 116 S.Ct. 1813, 135 L.Ed.2d 113 (1996); Stolt Achievement, Ltd. v. Dredge
B.D. Lindholm, 447 F.3d 360 (5th Cir. 2006); Double Eagle Marine, Inc., 208
F.Supp.2d 1250 (S.D. Ala. 2002); Hogge v. SS Yorkimar, 434 F.Supp. 715 (D.
Md. 1977). See also Thomas J. Schoenbaum, Admiralty & General Maritime Law
§ 5-5 (4th ed. 2001).
Under the facts in this case, “Negligence under admiralty law is simply the failure to use
reasonable care under the circumstances.” Moore v. Matthews, 445 F.Supp.2d at 522; National
Shipping Co. Of Saudi Arabia v. Moran Mid-Atlantic Corp., 924 F.Supp. 1436, 1450 (E.D. Va.
1996) (citing 8 Benedict on Admiralty § 3.02[B][4]). Also, when two parties have contributed
by their fault to cause damages in a maritime case, such damages must be allocated between the
parties proportionate to their comparative degree of fault. United States v. Reliable Transfer Co.,
40
421 U.S. 397, 65 S.Ct. 1708, 44 L.Ed.2d 251 (1975). Contributory negligence is not a complete
bar to a plaintiff’s recovery, but merely mitigates damages. Exxon Co. v. Sofec Inc., 517 U.S.
830, 837, 116 S.Ct. 1813, 135 L.Ed.2d 113 (1996); Stolt Achievement Ltd. v. Dredge B.E.
Lindholm, 447 F.3d 360 (5th Cir. 2006).
In this case, the plaintiff Thomas Podgurski has the initial burden of proving negligence
on the part of the defendants.
B. As to the Liability of the Defendant Meyran Marine Services Inc.
The facts in this case are relatively simple and substantially undisputed. The plaintiff
owned moorings for 2003 through 2009. All of these moorings were installed by the defendant
Meyran Marine. When the plaintiff was ready to launch his boat, the Girlcat, on May 14, 2009,
he was told by Matt Meyran that his regular mooring was not in the water and was directed by
Matt Meyran to use the Thompson Commercial mooring number 7. Matt Meyran picked him up
at the mooring and he told Matt Meyran that it was very difficult picking up the heavy chain. He
asked Matt Meyran to put a “pickup” on the mooring so it would be easier to use. According to
the plaintiff, Matt Meyran responded, “don’t worry I’m going to get your mooring done right
away.” In his testimony, Matt Meyran stated that he doesn’t remember saying anything about a
pennant for the mooring assigned to the plaintiff. The Court notes that Matt Meyran did not deny
saying that he will “get the plaintiff’s mooring done.”
On May 23, 2009, when the plaintiff arrived at commercial mooring number 7, where his
boat was moored, it still had no pennant or pickup on it. It was when the plaintiff attempted to
untie his boat from mooring number 7 on May 23rd, when the middle finger of his right hand
“got caught between the carabiner and the shackle and his finger was crushed.” The plaintiff
41
further testified that prior to 2009, Meyran Marine never installed a mooring for him without a
permanent pickup.
There is no doubt that Meyran Marine was responsible for the installation, maintenance
and upkeep of mooring number 7. Their obligation was to install and maintain the mooring with
reasonable maritime care. Matt Meyran testified that when Meyran Marine supplies a mooring
they also include pennants. The pennant is installed with a shackle sometimes directly to the top
of the mooring chain and sometimes with a swivel on top.
Significantly, Matt Meyran testified that “it would probably be easier (to use a mooring)
if a pennant was on it.” (Tr. at 181). Also, other than mooring number 7, Matt Meyran never
assigned Podgurski to a mooring that did not have a pennant line. Apparently Meyran Marine
had a verbal agreement with Mr. Thompson to use his moorings as “transient overflow
moorings,” if not being used by him. Matt Meyran also testified that after plaintiff kept his boat
on the Thompson commercial mooring number 7 for the entire period of the summer season it
would have had a pennant line and again, he testified “A line with a pennant and loop is easier to
use.” (Tr. at 288).
It was not difficult to install a pennant on the mooring. In fact, Matt Meyran testified that
it takes only five minutes. So that in five minutes, with little effort and expense, the mooring
could be made safer. With reasonable certainty, if the pennant had been installed, the plaintiff
would have suffered no injury.
The plaintiff’s maritime expert Claudio Norman Crivici testified that mooring number 7
was not a “complete mooring” because the pennant was missing as was the pickup buoy and a
pickup line. In the fifty to one hundred mooring fields he has visited, including transient
42
moorings, he was never directed to a mooring that did not have a pennant line or a float on it.
According to Crivici, “All the moorings have to have a pennant to attach to the mooring.” (Tr. at
340). “. . . the pennant is always on the mooring.” (Tr. at 355, 356). He stated that, “The
purpose of a pennant and pickup is to facilitate safe use of the mooring ground tackle . . . It is this
ability to pick up a mooring repeatedly in a safe fashion.” (Tr. at 340, 344).
Further, Crivici testified that he did not believe “that the mooring was suitable for its
intended purpose at that point . . ..” (Tr. at 357, 358). Also, he described the method that the
plaintiff was using to release his vessel from the mooring as “. . . definitely more difficult and
dangerous, because it required now a lifting procedure and releasing procedure directly from the
mooring ball versus just simply releasing a pennant and a pickup buoy from the deck of the
vessel and just lifting them down into the water safely.” (Tr. at 367, 368). Finally, Crivici
testified that he firmly believed if there was a pennant on the mooring, that Podgurski would not
have been injured in any way. (Tr. at 373).
Of importance, Senior Bay Constable Mallory Nathan testified that the “minimum
mooring tackle specifications” in the Town of North Hempstead Mooring Tackle Guidelines
include a requirement for a pennant. The specifications detail the diameter of the pennant. Also,
he testified that the inclusion of a pennant would be part of a proper mooring in Manhasset Bay
in the Town of North Hempstead. (Tr. at 441). He also testified that some transient moorings
have pennants and some do not. However, if the boater doesn’t feel comfortable attaching his
own lines or some boats have a very high freeboard, a pennant will be attached. The pennants
are attached by Meyran Marine and they could be installed “almost immediately, while they
wait.” (Tr. at 444). Nathan emphasized that the height of the freeboard of the vessel is an
43
important factor when there is no pennant. The higher the freeboard – and the plaintiff’s boat
had a freeboard of four feet – the harder it is to connect to the mooring without a pennant because
the person on board the vessel can no longer reach the mooring ball by just reaching down from
the deck.
In the defendants’ case, Matt Meyran testified that when the plaintiff used his regular
mooring at DW61, he would snap his boat’s pennant line into the top of the pennant line on
DW61 to make one continuous pennant. Matt Meyran explained that Meyran Marine does not
receive compensation from the Town; its compensation is from the boat owners. Matt Meyran
also testified that on May 19, 2009, there was no other mooring in the town dock area that could
have been safely used by the plaintiff’s boat because of the larger swinging radius of the
Podgurski boat.
Matt Meyran testified that today, six of the Thompson mooring lines 1 through 7 have a
pennant line from the top of the mooring ball to the boat. One empty mooring does not have a
pennant line on it. Also, on May 14, 2009 Meyran Marine possessed extra pennant lines. So that
if Meyran Marine wanted to it could have installed such a pennant line on Thompson
Commercial mooring number 7. Incidentally, the cost of the pennant is included in the price
when a customer rents a mooring from Meyran Marine. Also of importance in this case, Matt
Meyran testified that when he installed the plaintiff’s regular mooring, he always included a
pennant line. (Tr. at 554-56). He also stated that “on all prior occasions . . . his mooring always
had a pennant line.” Why then was it not included in the temporary mooring number 7?
Further, Matt Meyran testified that for a boat that has three and a half feet or higher of
freeboard, “having a pennant line makes the mooring easier to use than if it does not have a
44
pennant.” (Tr. at 562). The Podgurski catamaran has a freeboard of approximately four feet.
Under the analysis, it should have had a pennant. Concluding his testimony, Matt Meyran stated
that he never saw anyone use the Manhasset Bay moorings without a pennant. (Tr. at 562).
The Court finds that the plaintiff Thomas Podgurski has established by a preponderance
of the evidence in this case, that a cause of his injury to the middle finger of his right hand,
sustained on May 23, 2009, at the Thompson Commercial Mooring number 7, was the
negligence of the defendant Meyran Marine Services, Inc. The defendant Meyran Marine
Services had a duty to exercise reasonable care when it permitted the plaintiff to use the number
7 mooring and when it set up the mooring. The defendant Meyran Marine failed to use
reasonable care under the circumstances of this case. The defendant Meyran Marine violated the
duty of reasonable care owed to its customer, resulting in the injury sustained in this case.
C. As to the Liability of the Defendant Town of North Hempstead
Matt Meyran testified that he had discussions with the Town Bay Constable with regard
to the seven commercial moorings including number 7. However, he never received anything in
writing from the Town of North Hempstead permitting Meyran Marine to use mooring number 7
for the year 2009. Nevertheless, the bay constable thought it was a good idea to use these
moorings.
Senior Bay Constable Mallory Nathan of the Town of North Hempstead testified that the
Town issues permits for moorings in Manhasset Bay. The permit for Thompson Commercial
mooring number 7 was issued on August 17, 2009, after these occurrences. Therefore, at the
time of the occurrences, there was no permit for mooring 7 from the Town.
The plaintiff rented the mooring at issue from Meyran Marine, not the Town of North
45
Hempstead. As to his permanent mooring, DW61, Podgurski owns this mooring and pays
Meyran Marine $200 per year for hauling, set up and maintenance of his mooring ball and chain.
When boat owners obtain a permit from the Town, they receive written notice that Meyran
Marine will install the mooring. The Town has nothing to do with the installation or
maintenance of the mooring as issue in this case.
The Court finds that the plaintiff has failed to prove that the defendant Town of North
Hempstead violated any duty owed to the plaintiff or that the Town was negligent in any manner
with regard to the injury sustained by the plaintiff. Therefore, judgment is granted in favor of the
defendant Town of Hempstead dismissing the complaint against the Town.
D. As to Contributory Negligence on the Part of the Plaintiff
A major player in demonstrating contributory negligence on the part of the plaintiff was
his own expert, Claudio Norman Crivici. He described the plaintiff’s attempt to unfasten the
vessel as an “awkward maneuver” and that “it was not a good maneuver to put your body into”
and “not a good place to put your finger.” (Tr. at 412). He also testified that “a properly trained
sailor should not have tried to secure a chain with their finger,” (Tr. at 412) and “a properly
trained individual would not have put that finger under the shackle.” (Tr. at 421).
Also Matt Meyran testified, as an experienced mooring inspector and mooring installer,
that it was “not a good idea” for an experienced sailor to put his finger in the shackle and keep it
there while the chain was on a heavy load, “because you could get hurt.” (Tr. at 533).
The Court finds that the defendants have established, by a preponderance of the evidence,
that the incident that caused the injury to the plaintiff Thomas Podgurski, was, in part, caused by
his own contributory negligence. The defendants have established that the plaintiff did not
46
exercise sufficient care for his own protection. See e.g. Werner v. Ellen Ritter, 282 A.D.2d 525,
526, 723 N.Y.S.2d 216, 217 (2d Dept. 2001) (The plaintiff was negligent when he was injured
when he and a co-worker attempted to extract plaintiff’s lodged vehicle and the plaintiff placed
his hand beneath the bumper and tried to lift it.)
E. As to Apportionment of Liability
The Court having found that Meyran Marine, the entity that provided the mooring to the
plaintiff and set up the mooring, and the plaintiff, the injured party, were both negligent which
combined to cause this occurrence. The Court will now determine the question of
apportionment.
In apportioning, the Court must weigh the relative degree of fault as between the plaintiff
and Meyran Marine and determine as between those parties what part of the total fault shall be
apportioned to each by way of a percentage of fault for each. In making that determination, the
Court will consider the duties owed by each of these parties and the question of whether the
conduct of that party deviated from the duty that he and it owed, and weigh the relative degree of
fault for each, expressed as a percentage of the total fault of both parties. Weighing all the facts
and circumstances, the Court must consider the total negligence, that is, the negligence of both
the plaintiff and the defendant Meyran Marine which contributed to causing this occurrence and
determine what percentage of negligence is chargeable to each.
After reviewing the facts and the law, the Court apportions the liability of the plaintiff
and the defendant Meyran Marine as follows:
47
Percentage of total fault apportioned to the defendant
Meyran Marine Services Inc.
50%
Percentage of total fault apportioned to the plaintiff
Thomas Podgurski
50%
F. The Injuries
The plaintiff testified that when he tried to let go of the carabiner, his middle finger of his
right hand got caught between the carabiner and the shackle and his finer was “crushed and
bleeding.” (Tr. at 70). His finger was dangling by a thread of skin and flesh. He put his finger
back in place and covered it and applied a tourniquet to stop the bleeding. The plaintiff was
taken by ambulance to the North Shore Hospital where Dr. Cohen-Kashi, a plastic surgeon,
performed an operation in which a nail was inserted to put the two separate pieces of his finger
together. The plaintiff passed out from the pain. He was discharged from the hospital later that
same day.
Subsequently, the plaintiff was treated by Dr. Cohen-Kashi, Dr. Tuckman, a hand
specialist, Dr. Shatzer, a pain specialist, Dr. Gerstein in Manhattan and Dr. David Benatar. As to
the present condition of the finger, the plaintiff testified that he cannot bend the tip digit of the
finger, because it is inflexible. The hand itself is sensitive and weak and he drops things. He has
constant pain when he moves the finger. The pain wakes him up at night. Frequently he gets
cramps up his right arm. The plaintiff has played the guitar from the time he was eleven years of
age, including playing professionally. After this injury he testified that he cannot play the guitar
because his finger “doesn’t do what I want it to do.” (Tr. at 92), although there is a contrary
statement in Dr. Cohen-Kashi’s notes.
48
Dr. David Benatar testified at the trial. He is a board certified orthopedic surgeon. Dr.
Benatar was retained by an attorney for the plaintiff to examine the plaintiff. He performed the
examination on March 24, 2011. He diagnosed the plaintiff’s initial injury as a crush injury with
a fracture of the right middle finger with an open reduction. The injury was treated by open
reduction surgery with internal fixation by insertion of a metal pin. In addition, there was a
laceration and injury to the nail bed. The examination by Dr. Benatar on March 24, 2011
revealed that the finger nail was significantly deformed, in that it was “clumped” or coming
down over the tip of the finger. The nail was discolored yellow and the shape was abnormal.
The finger itself was tender to touch and stimulation of the finger caused pain. There was
decreased sensation and sensory loss with regard to the proximinal surface of the finger. The top
of the finger and the side of the hand was painful. The whole surface of the finger was
“decreased and painful, like up the long finger.” (Tr. at 402). The distant phalanx, the last bone
past the last knuckle was enlarged and angulated toward the thumb, namely, held in an abnormal
flex position.
In addition, there was a significant decrease in sensation and strength in the finger, which
affected the overall grip and strength of the right hand. The plaintiff was unable to close his
finger to his palm, even with pushing. This condition was permanent. There were also scars
from the laceration and the surgery. In Dr. Benatar’s opinion, this injury would prevent the
plaintiff from playing the guitar. Dr. Benatar sent the plaintiff for a test to confirm or measure
the loss of sensation in the finger. He explained the results of the test, as follows:
Q.
Why did you want Mr. Podgurski to undergo the West test?
A.
The sensation on the palmer surface of the digit was poor. And he is able to put
his finger on a hot plate and not knowing it is burned until it is too late. And that
is something he needs to know. Because if he needs to protect the digit and to be
careful of not exposing himself, he should be award. He had not had the test prior
49
to my sending him.
Q.
Did you receive the results of the West test?
A.
Yes.
Q.
What did those results tell you?
A.
On the palmer surface of his hand, the hand part you put down on something, he
had what is called purple sensation, and that means that he has diminished
protective sensation. And he also had red areas, which is the worst, and that is
loss of protective sensation, meaning literally putting your finger on a hot pan or
oil, etcetera, you would not know it.
He had one small area of blue, which was diminished to light touch. In
other words, he would feel something burning, but soft touch he would not.
So the digit was at risk, particularly on the palmer surface.
Q.
Did the West test confirm your observation that Mr. Podgurski had a loss (of)
sensation in the middle finger of his right-hand?
A.
Completely.
Q.
What effect does that type of loss of sensation have on the use of the hand or
finger?
A.
I think the best way to explain that is an analogy.
A lot of people suffering carpel tunnel syndrome tell you if they grab a
mug, they would drop it, they can’t feel it and not putting any force.
The same thing here; if you can’t feel something, you don’t know how
much pressure to apply. So even holding a pencil, something with no weight, you
drop it because you are not actually looking at it to see you are touching it. So
that sort of use with his hand he can’t do without looking. If he is not looking at
it, he can’t see that he is holding it. So it affects that function.
Tr. at 211, 212.
The fracture was reduced by the insertion of a kirschner wire or a k wire as it is generally
called. The k wire was drilled into the bone by a power drill, and remained in the plaintiff’s
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finger. After approximately six weeks, the k wire was removed by a wrench that pulled the wire
out of the finger.
Dr. Benatar took x-rays of the plaintiff’s hand on March 24, 2011. They revealed that the
plaintiff’s finger tip is abnormal in that it is angled almost 40 degrees and the joint space is
“basically obliterated.” (Tr. at 218). Also, “the amount of arthritis that occurred in the 22 month
period was dramatic. He has virtually no joint left here . . ..” (Tr. at 219).
Dr. Benatar was asked about the plaintiff’s prognosis. He responded that, in terms of that
digit the progress was poor. The plaintiff will require treatment for that digit in the future with
occupational therapy; medication; a steroid shot to try to decrease the pain; and “ultimately, the
treatment of choice is a fusion.” (Tr. at 219). A fusion is to connect two bones together. In this
case, it is to connect the middle phalanx to the distal phalanx and hold them in place with a
metallic fixation. While this fusion helps the pain, the finger joint cannot move again. “It is
connected permanently. So it will be that the joint doesn’t move.” (Tr. at 220). The purpose of
the fusion is the relief of pain.
Dr. Benatar was asked to estimate the cost of future treatment, including fusion. In
addition to the costs of medication, occupational therapy is about $75 to $100 a visit or $1,200 a
month. Steroid injections could be “possibly three or four hundred dollars.” (Tr. at 221). Repeat
x-rays are about $100 a set. The real cost is the surgery. The surgeon’s fee is $3,000 to $5,000,
and the hospital cost would exceed $10,000. With the medical services required after surgery,
including physician services, and medication, the surgery “greatly exceeds $25,000 . . . (and) a
realistic cost in today’s society is $40,000 to $50,000.” (Tr. at 222). Dr. Benatar testified that
with a reasonable degree of medical certainty, the incident of May 23, 2009 caused the injury to
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the plaintiff and will require the fusion.
Q.
Dr. Benatar, can you state with a reasonable degree of medical certainty the cause
of the injuries you described to Mr. Podgurski’s right middle finger and his hand?
A.
Yes. The injury that occurred on May 23, 2009 is the cause of all this.
Q.
Can you state with a reasonable degree of medical certainty that the future
treatment you have described for us will be required by Mr. Podgurski?
A.
He will require - - I wouldn’t expect it to be very long before he needs the fusion.
Tr, at 222, 223.
On cross-examination it was elicited from Dr. Benatar that hand surgery is a sub-subspecialty, and he is not a hand surgeon specialist. Thirty to forty percent of his practice was in
spinal surgery and he last operated in 2003 or 2004 or 2005. He did most of his hand surgery in
training and not much in practice. In addition only five to ten percent of his testimony in court
involved injuries to hands and fingers.
In addition, it was elicited from Dr. Benatar that the plaintiff saw Dr. Tuckman on June
18, 2009, within one month of the occurrence. Dr. Tuckman placed him in a splint,
recommended a course of occupational therapy and he told the plaintiff to return within one
month for new x-rays. However, the plaintiff never returned to Dr. Tuckman. According to the
records, the plaintiff did not participate in occupational therapy or physical therapy in 2009 and
2010, and only began such treatment in March of 2011.
A review of the record of Dr. Cohen-Kashi revealed a report of a June 24, 2009 visit. At
that time, the plaintiff was planning a sailing trip, while taking bectrin, an antibiotic. In a July
17, 2009 report from Dr. Cohen-Kashi, it indicates that a pin infection was resolved; that the
fixation point had good alignment; and not much callous was noted. Also the July 17, 2009 entry
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indicates that the doctor discussed the possibility of malunion with the patient which, according
to Dr. Benatar is what he ended up with. While the report says “follow up in four weeks,” the
plaintiff did not visit Dr. Cohen-Kashi again until January 19, 2010, some six months later. In
the report of the January 19, 2010 visit, Dr. Cohen-Kashi indicates that the patient is doing well;
returned to playing guitar; and his sensation of two different stimuli is good. Also, at the end of
the January 19, 2010 report it indicates “resume normal activity.”
It was also adduced from Dr. Benatar that tenderness and pain is always subjective. Also,
range of motion and grip is a subjective response. In addition, between the last visit to Dr.
Cohen-Kashi on January 19, 2010 and March of 2011, there were no references in any medical
records relating to the complaints the plaintiff gave Dr. Benatar.
In their case, the defendants did not produce a medical witness.
G. The Damages
The plaintiff Thomas Podgurski sustained a serious and permanent injury to the middle
finger of his right hand. Also, there is competent medical evidence that he will need surgery in
the nature of a fusion operation, which may obviate certain pain but will cause a permanent
stiffening of the middle finger. In addition, of importance in the measure of damages in this case,
there is no evidence of any loss of earnings. Also, strangely, there is little evidence of medical
expenses, other than an estimate of $40,000 to $50,000 for the future treatment and fusion
surgery.
As to damages, a review of the precedentis is always helpful. The review revealed a
number of cases where the plaintiff’s finger or fingers were actually amputated. Happily, this did
not occur in this case. However, there are some cases that are instructive. The Court will try to
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review appellate cases reviewing damages, rather than jury verdicts, which are subject to review.
1. Conley v. City of New York, 40 A.D.3d 1024, 837 N.Y.S.2d 702 (2d Dept. 2007).
The plaintiff suffered a comminuted fracture to the distal radius of her right hand which required
surgery including insertion of a metal plate and screws; with permanent traumatic arthritis. Held,
the court set past pain and suffering of $125,000 and future pain and suffering of $75,000.
2. Biejanov v. Jeno David Guttman, 31 A.D.2d 710, 826 N.Y.S.2d 111 (2d Dept. 2006).
A four year old plaintiff sustained a fracture to his thumb and left index finger and permanent
damage to the ulnar nerve. Subsequent to surgery, he could not fully straighten his left index
finger and lost partial feeling in his third finger. The reduced jury verdict of $250,000 for past
pain and suffering and $350,000 for future pain and suffering was affirmed.
3. Allende v. New York City Health & Hospital Corp., 228 A.D.2d 229, 694 N.Y.S.2d
18 (1st Dept. 1996) (reversed as to liability by the Court of Appeals). Two fingers were partially
amputated. The index finger and middle finger of the plaintiff’s dominant hand were partially
amputated. The court affirmed $250,000 for past pain and suffering and $500,000 for future pain
and suffering for a total of $750,000 with regard to a plaintiff with a 30.7 year life expectancy.
4. Fields v. City University of New York, 216 A.D.2d 87, 628 N.Y.S.2d 76 (1st Dept.
1995). An injury to the non-dominant hand of a 14 year old girl who sustained an amputation of
a third of her ring finger and decreased sensation in two of her other fingers, with pain, loss of
function, nerve damage and unattractive deformity, all of which was uncontradicted. The court
affirmed an award of $400,000 for past and future pain and suffering.
5. Widawski v. United Beef Packers, 183 A.D.2d 444, 585 N.Y.S. 2d 1013 (1st Dept.
1992). The plaintiff sustained a severed ulnar nerve of his dominant right hand. Held, “The
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jury’s award of $100,000 and $187,000 (over 25 years) for past and future pain and suffering,
respectively, as well as $500 for past medical expenses and $2,500 for future medical expenses,
does not deviate materially from what would be reasonable compensation.”
After a review of the record in this case and the precedents, for all the injuries and the
pain and suffering sustained by Thomas Podgurski to the present date, the Court awards the sum
of $125,000. For the pain and suffering to be suffered by Thomas Podgurski in the future, the
Court awards the sum of $125,000. In addition, the Court awards to the plaintiff future medical
expenses in the sum of $45,000.
In sum, after the reduction in the award based on the Court’s finding of 50% contributory
negligence, the net award is as follows:
Past pain and suffering
Future pain and suffering
Future medical expenses
Total:
$ 62,500
62,500
22,500
$147,500
The Clerk of the Court is directed to enter judgment in favor of the plaintiff Thomas
Podgurski against the defendant Meyran Marine Services, Inc., in the sum of $147,500.
The Clerk is thereafter directed to close this case.
SO ORDERED.
Dated: Central Islip, New York
November 14, 2011
/s/ Arthur D. Spatt
ARTHUR D. SPATT
United States District Judge
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