Superior Court of Pennsylvania Affirms Jury Verdict in Favor of Both Sailboat Owner and Operator in Traumatic Head Injury Case

By:  Matthew S. Marrone

            On June 24, 2008, the Superior Court of Pennsylvania affirmed the March 23, 2007 jury verdict entered in the Court of Common Pleas of Chester County, Pennsylvania, in favor of both defendants (represented by the author) on the issue of negligence in the case of Lepone v. Brown, Docket No.: 2261-EDA-2007.  In rendering its 20-page opinion, the Superior Court interpreted several navigational rules and issues which were directly relevant to the claims and defenses in the case. 

                On July 18, 2003 the plaintiff, Joseph Lepone, was a passenger aboard the defendants’ 37-foot sailboat (“COURAGE”) during a trip in the Chesapeake Bay from Havre de Grace to Baltimore, Maryland.  Aboard the vessel were the owner (O. Hampton Brown, III), his wife (Susan Brown), their two young children, and the plaintiff.  Mr. Lepone had been a family friend of the Browns for about ten years prior to this trip, and had previously sailed this same trip on the COURAGE on about a half dozen occasions.  Immediately prior to the accident it was a hot, sunny day with no wind, and the water was flat.  The COURAGE was operating under power, traveling at approximately three knots.  Mrs. Brown was at the helm, and Mr. Brown and their two children were in the cabin and cockpit.  Mr. Lepone – 77 years old at the time – was sitting in a portable chair at the bow of the sailboat with his feet propped up on the lifeline and his eyes closed. 

            Mrs. Brown noticed a large power cruiser approximately 75 feet long about 200 yards off her port bow.  When she first observed the vessel (“DESTINY”), it was not traveling at a high rate of speed, was not creating a wake, and was going to cross in front of COURAGE far enough ahead so as not to pose any danger.  As the two boats closed to where DESTINY was approximately 50 yards off her port bow, she noticed it had changed course and speed.  DESTINY had veered toward its starboard, was traveling at a much greater speed and creating a significant wake, and was now going to cross much more closely in front of COURAGE.  Mrs. Brown called out to Mr. Lepone, who did not hear her because his hearing was impaired.  She steered into the wake to avoid “rolling” the sailboat and throwing Mr. Lepone overboard.  Unfortunately Mr. Lepone still fell out of his chair and onto the deck of the boat.  As the boat continued to pitch up and down from the wake, he tried to stand up but slipped, fell, and smashed his face on the deck.

            A few weeks later Mr. Lepone developed headaches and a CT scan revealed a massive subdural hematoma.  He underwent a craniotomy and multiple evacuations to remove the blood from his brain.  He had a seizure from the bleeding and very nearly died.  Mr. Lepone spent several weeks in the hospital, followed by several more in an in-patient skilled nursing facility.  After many months of therapy he regained a significant amount of his speech and cognitive abilities, but never returned to normal.  Plaintiff’s settlement demand throughout the case – including trial and jury deliberations – was the full amount of defendants’ $500,000 insurance policy limit.  Prior to jury selection defendants offered $200,000, which was rejected.

            At trial plaintiff pursued two main theories of liability against the defendants:  1) defendant Susan Brown failed to maintain a proper look-out while at the helm, in violation of Rule 5 of the Inland Navigational Rules, 33 U.S.C. § 2001 et seq.; and 2) both defendants allowed him to improperly “bow ride,” which is a dangerous activity. 

            The defendants claimed Susan Brown did maintain a proper look-out and there was nothing she could have done to avoid the unanticipated actions of DESTINY.  They further contended DESTINY – not COURAGE – violated the Navigational Rules, specifically Rule 15 which governs crossing situations and required DESTINY (the “give-way” vessel) to permit COURAGE (the “stand-on” vessel) to cross in front of it.  (Efforts made by the defendants prior to trial to locate the owner/operator of DESTINY were unsuccessful, as no home port was observed.)  The defendants additionally claimed there is no true definition of “bow riding,” and asserted there was nothing unreasonably dangerous about permitting Mr. Lepone to sit at the bow under the conditions present, particularly in view of his prior experience on the COURAGE and the fact he failed to protect himself by having his eyes closed.  After a one-week trial and two-hour deliberation, the jury agreed with the defendants and found them not negligent. 

            On appeal, plaintiff primarily challenged the jury’s finding that Susan Brown maintained a proper look-out and was not negligent.  During cross-examination of Mrs. Brown at trial, plaintiff’s counsel elicited (mistaken) testimony from her that ten minutes elapsed between the time she first observed DESTINY and the time COURAGE encountered the wake.  Plaintiff argued on appeal this testimony mandated a finding of negligence, and that the jury’s verdict was erroneous.  Defendants responded that Mrs. Brown’s testimony regarding time and distance was equivocal at best, and there was sufficient evidence at trial for the jury to conclude she was not negligent.  

            After a very lively oral argument at which the three-judge Superior Court panel took an extraordinary interest in the case, the court agreed with the defendants and found  1) plaintiff failed to establish reversible error; 2) the evidence of record permitted a reasonable juror to conclude Susan Brown was not negligent; and 3) the trial court’s handling of the relevant evidentiary issues was appropriate.  The jury verdict and Superior Court decision are notable because they demonstrate both jurors and judges with no boating experience were able to put aside sympathy in deciding a case involving very unfortunate circumstances, grasp maritime concepts and navigational rules, and render correct decisions on the facts presented.