Vann v. Willie

Gilbert, C. J., delivered the opinion of the Court. The Chesapeake Bay and its tributaries are described in a well-known television commercial as “The Land of Pleasant Living.” * 1 It sometimes happens, however, as the instant case evidences, that living in the Bay area can be not so pleasant. The skeletal scenario of this appeal is relatively uncomplicated. The record discloses that late on the afternoon of August 16, 1973, Alton Vann, Sr. (Vann), the appellant, launched himself on his daily swim in a placid ⁵¹ part of Bush River.

Vann’s swim was abruptly halted when he was struck by a motorboat. The collision resulted in injury to Vann’s head and right arm. While the plot line is simplicity itself, the details of the narrative lead to considerable complication. Although the offending motorboat was the property of H.E. Koontz Creamery, Inc., (Koontz), it was kept at Bush River for the use and enjoyment of Koontz’s trusted executive employees.

Immediately prior to the injury of Vann, the boat was used by one such employee, appellee, Wilbur Willie (Willie), for water-skiing. Willie had just released the tow line so as to “drop off” near shore when the boat, piloted by Willie’s son-in-law, Richard Varnedoe 2 (Varnedoe), struck Vann. During the three-year period preceding the collision, Willie and through him, Varnedoe had access to the boat and used it. Neither Willie nor Varnedoe ever received more than cursory instructions on operating the boat.

Neither had boating experience prior to 1969 or 1970, and they were not familiar with water safety regulations. Furthermore, neither Willie nor his son-in-law ever availed himself of any courses on boating procedure or safety. 3 The main stage prop in this drama was an Aristocraft 66 fiberglass boat approximately sixteen (16) feet in length and powered by a sixty (60) horsepower outboard motor. At full throttle, the boat was capable of a land speed equivalent to twenty-five (25) to thirty (30) miles per hour. As with any stereotype villain, the vessel bore an identifying scar.

Stretching from the top to the bottom of the windshield, just to the right of the helm, forming a jagged line about one-quarter (V*) of an inch wide was a crack. A storm or accident caused the fracture in the windshield sometime in 1969 or 1970. When the crack occurred and continuing thereafter, George C. Oursler, president of Koontz, and another employee, rejected the idea of replacing the windshield. Instead, they had the crack secured by bolts, ⁵² nuts, and washers.

The washers were described in1 Vann’s brief as being the size of quarters, and they were three (3) or four (4) inches apart, in the right front of the pilot. 4 Oursler testified that the method of repair he chose left the windshield stronger and better able to withstand the bumping action that comes from propelling the boat at high speeds over the wave motion of the water. The scene now shifts to Alton Vann who, as we have previously noted, was, at the time of the incident, taking his daily late afternoon swim. Vann was habituated to following a set course at approximately the same time each day. Oursler had observed Vann’s swimming on about a dozen prior occasions, but he never warned Vann to stay away from in front of the Koontz property, 5 nor did he alert guests at the Koontz beach house as to Vann’s recurrent jaunts.

On the day of the happening of the impact giving rise to this litigation, Vann chose to swim a slow crawl, 6 a stroke in which he brought one arm and then the other out of the water, with his face submerged on the stroke with his right arm but turned out of the water in order to breathe when he raised his left arm. His kick was a flutter under water. While swimming, Vann noticed a boat on the same side of the river on which he was swimming, but he paid no attention. He did not check again to see what course the vessel was following, although he did occasionally look up to get his bearings.

Vann told the jury that he never heard the sound of the boat motor. The record shows that both Vann and Varnedoe were oblivious to the sight and sound of Mrs. Varnedoe, Mrs. Willie and Mrs. Haas (Mr. Haas was at that time the observer in the boat), 7 frantically waving and yelling in an ⁵³ attempt to alert Vann and Varnedoe that they were in danger of hitting each other. Varnedoe said that he noticed his wife running along the pier gesturing and calling out, but he did not think her behavior particularly unusual. The women saw that the boat and the swimmer were on a collision course with the distance between them rapidly closing.

The parties could not agree, however, on whether the swimmer was out beyond “the safety point.” 8 In any event, their attempts to signal the parties amounted, in the end, to a charade with both boat and swimmer being stumped as to its meaning. Ignorant of the Maryland Agency Rules and Regulations, Title 08, Department of Natural Resources, Rule 08.04.22 9 mandating that when water-skiing the towing boat must not be within one hundred (100) feet from shore, piers, bridges, people in the water, or passing other boats, Varnedoe operated the boat as close as twenty-five (25) to forty (40) feet from piers north of the Koontz property. Rule 08.04.22 contains an exception not applicable to the case sub judice, and that is that it is permissible for “a person . . . [to] begin skiing on land or shore.” After Willie had released the tow line, Varnedoe cut back on the throttle, put the gear shift in neutral, and turned sharply to starboard, i.e., toward the center of the river. While in the midst of the starboard turn, Varnedoe felt “a bump.” He had not seen anyone in the water, nor did he realize that he had struck Vann until the boat stopped and he heard a yell.

Varnedoe then saw Vann and jumped overboard so as to assist Vann in making his way to shore. ⁵⁴ An ambulance was called and Vann was transported to the hospital. Subsequently, Vann brought suit against Varnedoe, Willie and Koontz. After a series of pleadings and demurrers, the case finally went to trial before Judge Edward D. Higinbothom and a jury in the Circuit Court for Harford County on Vann’s fourth amended declaration. At the close of the evidence presented by Vann, Judge Higinbothom directed a verdict in favor of all defendants. 10 On appeal to this Court, Vann raises seven (7) issues for our review.

He asserts: “1. The evidence of the condition of the windshield of this boat as it had remained for several years with the irregular crack held together by a number of nuts, bolts, and large washers was sufficient to submit to the jury the question whether it was unsafe for proper vision and lookout through that part of the windshield. 2. Maritime Law does apply to this collision and operation of this boat on the navigable waters of the Bush River, so that the jury could have found that the Appellee Koontz provided an unsea worthy boat and/or crew. 3. Also, if question 1 is answered affirmatively, there was sufficient evidence to submit to the jury the negligence of the Appellees, or at least the Appellee Koontz, for negligent entrustment of an unsafe boat to Varnedoe. 4.

There was also sufficient evidence to submit the negligence of the Appellees, or at least the Appellee Koontz, to the jyry for negligent entrustment of this boat to those not properly trained to operate it. 5. There was evidence from which the jury could find that the Appellee Willie was liable for the ⁵⁵ negligence of Varnedoe as bailee from Koontz in charge of this boat. The Trial Court erred in excluding the testimony of the Appellee Willie at the District Court hearing on the charge against Varnedoe that ‘It is certainly our fault that we could not see him.’ and later ‘It’s no excuse why we did not see him.’ 6. The Trial Court erred in sustaining Demurrers to the Fourth Amended Declaration claim for punitive damages against Koontz arising out of negligent entrustment of this boat with the cracked, repaired windshield to those not trained in the safe operation of a boat.” 7.

Issues one (1) through six (6) are all interwoven with a common thread, namely, an attempt by Vann to reach Koontz on the theory of negligent entrustment. In order to do so, Vann asserts that the mere allowing of the use of the boat with its cracked windshield was negligent. He then couples to that hypothesis that Varnedoe was an inexperienced boat operator, completely lacking in training. Vann stresses that Varnedoe received no schooling on boat safety or the watermen’s “rules of the road.” Our review of the record discloses that despite the valiant effort of Vann’s counsel to elicit testimony that the crack in the windshield prevented Varnedoe from seeing Vann in the water, his effort fell short of the mark.

Of the four witnesses who testified regarding the cracked windshield, not one of them said that the crack or the bolts and washers materially impaired the vision of the operator. Vann’s attorney sought to have the trial court and this Court take judicial notice “that an object right in one’s line of vision a couple feet away distorts vision beyond.” To bolster his contention, he seeks to have us employ “[a] simple test of holding a pencil or coin at arm’s length from the eyes.” Such a test, he says “reveals two images of that object, if the viewer is looking beyond the object, or, upon looking at the object, reveals two images of the background.” Counsel then asserts that, “The testimony ⁵⁶ was that the head of the pilot was 2 or 3 feet from the windshield. Thus, the operator attempting to keep a lookout through the windshield to the water beyond would see 2 images of each large [quarter size] washer and the crack as he looked through that area of the windshield.. . .” We do not know of any rule of evidence which would permit us to conduct experiments and then take judicial notice of the result. Furthermore, the entire windshield was quite expansive in comparison to the area of the crack, and there would appear to be nothing that impaired vision through the uncracked portion of the windshield.

Even with respect to the cracked area, the washers were four (4) or five (5) inches apart, so that there was no unbroken obstruction to vision. More important, however, is the uncontradicted testimony of witnesses produced by Vann that the crack in the windshield did not materially interfere with their ability to see through the windshield. That a similar crack in the windshield of a Koontz truck would require replacement, Md. Ann. Code Art. 66V2, §§ 11-1104 (c) and (d) (Repl. Vol. 1970), does not mean that the crack in the windshield of the boat also requires that the boat windshield must be replaced.

The legislature has not seen fit to address itself to that subject and the rules and regulations of the Department of Natural Resources do not prescribe replacement of a cracked windshield. 11 ⁵⁷ Aside from the “simple test” regarding the pencil, Vann urges that we hold that a photograph, depicting the vessel with its cracked windshield secured by bolts and washers, was sufficient evidence to take the case to the jury. Patently, he invokes the Chinese proverb that, “One picture is worth more than ten thousand words.” The difficulty with Vann’s position is that the “live” witnesses called by Vann said that the cracked windshield did not materially interfere with their vision, and Vann may not use the photograph so as to impeach his own witnesses and simultaneously create a jury issue. Thus, negligent entrustment, 12 which is grounded on the loaning of a defective chattel was not proven because the “defect” in the chattel was not proven. We note that while Varnedoe was not schooled in boating safety or operation, 13 he did successfully run the boat for three (3) years, apparently without incident.

The fact that he did not receive formal training in boat operation does not, ⁵⁸ under existing law, give rise to a rational inference that his ability to operate the boat was somehow so wanting as to involve “unreasonable risk of physical harm to himself and others.” 2 Restatement (Second) of Torts § 390 (1965). We' turn now to a discussion of whether the law of admiralty applies to a collision between a sixteen (16) foot pleasure craft and a swimmer. We do so, because, if it does apply, the standard for measuring the unseaworthiness of the Koontz vessel would be quite different than that of ordinary negligence. 14 Traditionally, admiralty jurisdiction has encompassed “all waters, salt or fresh, with or without tides, natural or artificial, which are in fact navigable in interstate or foreign water commerce, whether or not the particular body of water is wholly within a state, and whether or not the occurrence or transaction that is the subject matter of the suit is confined to one state.” Gilmore & Black, Admiralty 29 (1957); Note, Pleasure-Boating and the Admiralty Jurisdiction, 10 Stan. L. Rev. 724 , 725 (1958).

See also Note, Admiralty Jurisdiction Over Pleasure Craft Torts, 36 Md. L. Rev. 212 , n. 2 (1976). This definition has been applied to actions involving boats and adequately embraces bodies of water such as Bush River. Id. Historically, the determinative test of admiralty jurisdiction has been a simple locality test.

The Plymouth, 70 U. S. (3 Wall.) 20 , 18 L. Ed. 125 (1866). 15 The Plymouth ⁵⁹ was interpreted by many to mean that if the tort was committed on navigable waters it was within the admiralty jurisdiction. See Victory Carriers, Inc. v. Law, 404 U. S. 202, 205-06 , 92 S. Ct. 418, 421-22 , 30 L.Ed.2d 383, 387-88 (1971), and cases cited therein, rehearing denied, 404 U. S. 1064 , 92 S. Ct. 731 , 30 L.Ed.2d 753 (1971). Recently, however, the Supreme Court decided that its language in Plymouth does not mean what it seems to say, 16 and that there is nothing magical about navigable waters.

The locality test is not the sole determinant of maritime