LESLIE E. KOBAYASHI, United States District Judge.
This matter came on for evidentiary hearing before the Court on March 29, 2001. Kevin H.S. Yuen appeared on behalf of Plaintiffs Diana Lynn Olivieri and Ralph Olivieri (hereinafter collectively referred to as "Plaintiffs", and individually as "Diana" and "Ralph", respectively). Dennis Niles appeared on behalf of Defendants UFO Chuting of Hawaii, Inc., Luakini Marine, Inc. and Sea View Adventure Cruises, Inc. (hereinafter collectively referred to as "Defendants").
Pursuant to Complaint For Exoneration From Or Limitation of Liability filed on August 6, 1999, Defendants requested relief under the Limitation of Liability Act, 46 U.S.C. § 181, et seq, and Rule F of the Supplemental Rules for Certain Admiralty and Maritime Claims, Federal Rules of Civil Procedure.
On August 6, 1999, Defendants filed with the Court a pleading entitled Ad Interim Stipulation for Value wherein Defendants [Limitation Plaintiffs therein], as principal, and Reliance Insurance Company, a corporation authorized to act as surety and stipulator in the U.S. District Court for the District of Hawaii, agreed to undertake the sum of $124,616, together with interest thereon at 6% per annum from the date of the stipulation, which amount was security for all claims and prospective claims in the limitation proceeding.
On August 9, 1999, this Court, pursuant to Order Approving Ad Interim Stipulation For Value, Directing Issuance of Notice, And Restraining Suits, approved, among other matters, the Ad Interim Stipulation for Value, with surety, deposited by Limitation Plaintiffs in the sum of $124,616.00, as security for the amount of value of Limitation Plaintiffs' interest in the vessel.
On September 13, 1999, Plaintiffs filed a Counterclaim against Limitation Plaintiffs alleging negligence by Limitation Plaintiffs which was a legal cause of injuries and damages to Plaintiffs.
The Court, having considered the pleadings filed herein and the testimony at the hearing, and having an opportunity to judge the credibility of the witnesses, to examine Exhibits 40, 46, 47, 51, 60, 61 and 72 which were received into evidence, and to consider the representations of counsel makes the following Findings of Fact and Conclusions of Law and Order pursuant to Rule 52 of the Federal Rules of Civil Procedure.
Any finding of fact that should more properly be deemed a conclusion of law and any conclusion of law that should more properly be deemed a finding of fact shall be so construed.
I. FINDINGS OF FACT
1. This action arises out of a boating accident that occurred on February 3, 1999 ("subject accident"), and involves an admiralty or maritime claim within the meaning of Rule 9(h), Federal Rules of Civil Procedure.
2. At all times pertinent hereto, Plaintiffs were residents of North Carolina.
3. At all times pertinent hereto, Defendants were owners, for the purposes of LOLA, and/or operators of that certain hard-hulled sea skiff known as the Whale Express, Official Number D 988-878, and were engaged in the operation of the Vessel in the coastwise trade.
4. On February 3, 1999, Plaintiff Diana Olivieri, while a passenger aboard the Whale Express for the purpose of a whale watching excursion originating from and terminating at Lahaina Harbor, Island and County of Maui, State of Hawai'i, suffered a fracture of her L-2 vertebrae, among other injuries, for which she and her husband seek the recovery of damages.
5. During the course of the whale watching cruise, the Whale Express encountered a series of larger than normal waves. At the time, Diana was seated in the bow of the vessel gripping onto the railing in back of her. On the last of these waves, because of the movement of the vessel, Diana was caused to be thrown into the air from her seat and fell hard on the bench seat in a sitting position. In falling back down, Diana suffered an injury to her back and legs. She fell to the deck on her knees striking her left leg against the console.
6. The Court finds, based upon the evidence in the record, that the operator of the Whale Express failed to respond appropriately to sea conditions.
7. After the Whale Express returned to Lahaina Harbor, an ambulance transported Diana to Maui Memorial Hospital in Wailuku.
8. At the Emergency Room of Maui Memorial Hospital, David M. Nelson, M.D., examined Diana and ordered X-rays. X-rays of the lumbar spine showed a 10 degree lordosis of L1 through L3, and a 10-12 degree left lateral scoliosis between L1 and L3. Dr. Nelson formed the impression of acute lumbar fracture. Diana was given an injection of Demerol and Phenergan, and Valium, and prescribed Vicodin. Dr. Nelson advised Plaintiffs against travel and recommended that Diana be confined to bed.
9. Following Diana's discharge from the hospital, Plaintiffs returned to their hotel room at the Royal Lahaina Resort in Kaanapali where Diana was confined to her bed.
10. On February 12, 1999, Diana was examined by Kenneth T. Kaan, M.D., due to continued complaints of severe low back pain. Dr. Kaan's impression was that there was some possible evidence of structural instability and that surgery would be recommended if there was progressive deformity at the fracture site.
11. On February 18, 1999, Plaintiffs returned to North Carolina. Upon arrival in Greenville, North Carolina, Diana was taken to the Emergency Room of Pitt County Memorial Hospital. Diana was examined by Leanna J. Fogelman, M.D., who recorded complaints of low back pain, without radiation, and right arm numbness. Dr. Fogelman recorded the history of the boating incident. X-rays of the lumbar spine were ordered which reflected a complex fracture involving L2 with loss of height towards the right and of the central vertebrae and slight dorsal displacement of bone centrally and to the right narrowing the central canal by 2-3 mm.
12. Diana was referred to Deanna M. Boyette, M.D., and Scot E. Reeg, M.D., both of whom were orthopedic physicians. Dr. Reeg was a spine care specialist. Dr. Boyette recommended surgery but after Dr. Reeg reviewed her x-rays and discussed options with Diana it was determined that she would continue with bed rest and medications. Diana was kept on a strict regimen of bed rest, with bathroom privileges only, and was not allowed to sit up for several months.
13. Diana has continued under the care of Scot E. Reeg, M.D. Dr. Reeg diagnosed the injury of Diana to be an L2 compression fracture.
14. Dr. Reeg opined, based upon reasonable medical probability, that the cause of the lumbar fracture was the boating incident of February 3, 1999, that the fracture was primarily of the vertebral body where excessive loads were applied on the vertebrae and it collapsed along the front margin, and that in addition to the fracture there was also soft tissue injury involving the paraspinal muscles, the ligaments, and the tendons which help support the spine. Dr. Reeg's treatment of Diana included prescribing the use of a brace that would fit around her torso to support the spine. He recommended against return to work and modification of her activities. Diana was also prescribed medications including Percocet and Vicoprofen, both of which were narcotic medications intended to relieve her pain.
Diana remained off of work because of her injury from the date of her injury through the end of April 1999. At the time, Diana was employed as a manager of Heilig-Meyers Furniture Store in Plymouth, North Carolina. She was earning approximately $1,300 bi-weekly.
15. Dr. Reeg's prognosis for Diana's injury is that she is likely to have some pain to some degree on a fluctuating basis in the lower back for years to come. It is unlikely that Diana will return to being pain free in the lumbar area and her condition is likely permanent. Dr. Reeg determined that Diana had suffered a permanent impairment as a result of her lumbar fracture which equates to a 12% impairment of the whole person based upon the American Medical Association Guidelines to the Evaluation of Permanent Impairment (5th Edition).
16. As a result of the fracture, Diana developed a scoliosis of the spine (i.e., an abnormal curve to the spine when viewed from the front) because of the collapse of the vertebrae. This is a condition that is permanent.
17. Diana is predisposed to lifting injuries due to her spinal fracture; she is also predisposed to early degenerative changes in the areas immediately surrounding the fracture. Dr. Reeg has advised modification of activities so that she does not place any excessive demands on her back, avoidance of lifting objects of weight on a repetitive basis, avoidance of repeated bending or twisting. Dr. Reeg anticipates use of analgesics from time to time. He has prescribed Elavil and Ultram for her pain.
18. On August 30, 2000, Diana was examined by John Gregg Hardy, M.D., a neurologist, on a referral from Diana's family physician, Jignasa Patel, M.D., because of numbness and other sensory problems in her left foot.
19. Following his examination and history taking, Dr. Hardy formed the impression that Diana had suffered a partial crush injury to the peroneal nerve resulting in partial loss of function in the sensory branch which Dr. Hardy established as being caused by her boating incident of February 3, 1999. Dr. Hardy further determined that Diana had most likely suffered a permanent loss of sensation in that area of her foot.
20. On March 20, 2001, Diana was examined by Peter E. Diamond, M.D., a physician retained by Defendants, who formed a diagnosis of L2 compression fracture with mild left lumbar scoliosis and no evidence of lumbar radiculopathy. Dr. Diamond determined that the care provided by Dr. Reeg had been appropriate. Dr. Diamond's treatment recommendations were consistent with those of Dr. Reeg. He recommended that Diana undergo a program of physical therapy. He also confirmed that there are restrictions on her activities due to pain and/or muscle spasms.
21. Diana testified to the presence of constant pain in her back which worsens with certain activities. She described a "ball" like sensation in her back which is present a majority of the time. She has hypersensitivity to touch in the area of the fracture. Pain is worsened with cold or wet weather, and increases with any forward leaning positions. She has difficulty in sitting for long periods. She is unable to do any heavy lifting, including grocery bags. She is barely able to lift a gallon of milk, and is unable to lift it above her waist. In performing simple household activities, like cooking, washing dishes, and laundry, she has encountered increased pain when she bends over or forward. She has had exacerbations of her pain by removing items from the oven or laundry from a dryer, or lifting a telephone book from a night stand. She is unable to perform her gardening activities. Due to the vibrations, she is unable to operate her riding lawnmower. She is unable to sleep or rest on her stomach due to increased pain. She has had limited marital relations with her husband due to pain. Activities with her daughter have also been limited because of her fracture. She has attempted to exercise but is limited to walking. An attempt to exercise using a stationary bicycle resulted in increased pain because of the forward leaning position required in bicycling.
22. Ralph has suffered emotional distress due to the injuries to Diana. He received psychological care and treatment from Victor Mallenbaum, Ph.D., for anxiety and panic attacks for a period following the incident. He has witnessed the problems that Diana has encountered due to the constant pain. He has seen family activities reduced because of Diana's inability to participate. He has experienced an increase in the type of duties and activities he has had to do at home because of her injuries. His marital relations with Diana, including sexual relations, have been considerably reduced due to her back fracture and her continuing pain symptoms.
23. The Court finds that general damages in the amount of $95,000 is fair and reasonable compensation for the pain and suffering, loss of enjoyment of life, limitation of activities, emotional distress and mental anguish, among other factors, experienced by Plaintiffs in the past, and reasonably probable to be incurred in the future.
II. CONCLUSIONS OF LAW
1. This Court has jurisdiction of this action pursuant to 28 U.S.C. § 1333.
2. The liability of Defendants is limited to the amount or value of their interest in the Whale Express and her passage money after the incident in accordance with the Limitation of Liability Act, 46 U.S.C.A. § 181 et seq., and they are entitled to be discharge from further liability in excess thereof.
3. Under Hawaii law, a cause of action for negligence requires proof of the following elements: (a) a duty, or obligation, recognized by law, requiring the defendant to conform to a certain standard of conduct for the protection of others against unreasonable risks; (b) a failure on the defendant's part to conform to the standard required, i.e., a breach of the duty; (c) a reasonably close causal connection between the conduct and the resulting injury; and (d) actual loss or damage resulting to the interests of another. Knodle v. Waikiki Gateway Hotel, Inc., 69 Haw. 376, 384-385 (1987).
4. A negligent act or conduct is a legal cause of harm to another if such act or conduct was a substantial factor in bringing about the harm.Mitchell v. Branch and Hardy, 45 Haw. 128, 132 (1961).
5. Under Hawaii law, vessels must at all times be operated with due care for the rights and safety of others. See Hawaii Administrative Rules ("HAR") §§ 13-244-1, 13-244-7, 13-244-8.
6. The Court finds and concludes that, on February 3, 1999, Defendants were negligent in the operation of the Whale Express which negligence was a legal cause of the injuries and damages suffered by Plaintiffs.
7. A personal injury plaintiff may recover damages for all natural and proximate consequences of a defendant's wrongful act or omission. Dunbar v. Thompson, 79 Haw. 306, 315 (1995). General damages include past and future physical or mental pain and suffering, mental anguish, inconvenience, disfigurement and loss of enjoyment of life. Dunbar v. Thompson, supra; Bachran v. Morishige, 52 Haw. 61, 68 (1970); Hawaii Revised Statutes ("HRS") § 663-8.5. In deciding the amount of general damages to award, the trier of fact must consider the nature of the injuries and disfigurement, the extent to which they are permanent and the likelihood that the pain and suffering is reasonably probable to continue in the future. Restatement (Second) of Torts § 901, comment a.
8. Plaintiffs have established by a preponderance of the evidence that they are entitled to general damages in the amount of $95,000.00, based upon the nature of the injuries to Diana, the permanence of her injuries, the restrictions upon her daily, social and work activities, the impact of her injuries upon her family, her loss of enjoyment of life and the likelihood that her pain and suffering is reasonably probable to continue in the future.
III. ORDER
Based upon the evidence adduced in the evidentiary hearing, and the Findings of Fact and the Conclusions of Law stated herein, it is hereby ORDERED, ADJUDGED AND DECREED that judgment be entered on behalf of Limitation Defendants/Counterclaim Plaintiffs DIANA LYNN OLIVIERI and RALPH OLIVIERI as follows:
General Damages $95,000.00
TOTAL JUDGMENT for Plaintiffs $95,000.00
Accordingly, it is ORDERED that judgment be entered for Limitation Defendants/ Counterclaim Plaintiffs DIANA LYNN OLIVIERI and RALPH OLIVIERI against Limitation Plaintiffs/Counterclaim Defendants UFO Chuting of Hawaii, Inc., Luakini Marine, Inc. and Sea View Adventure Cruises, Inc., in the sum of Ninety-Five Thousand Dollars ($95,000.00). Prejudgment interest shall not be awarded.
IT IS SO ORDERED.