The opinion of the court was delivered by: Spatt, District Judge.
MEMORANDUM OF DECISION AND ORDER
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.
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 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?
It only had the items described up to the shackle. There was no pennant and no pickup.
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 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?
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.
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 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. Cohen-Kashi 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.
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).
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?
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. Cohen- 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?
THE WITNESS: The weight of the chain as I was holding it to disengage the carabiner.
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 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?
Q. There are times when you design a customer a transient mooring without a pennant line on it?
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.
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?
Q. Did it also have a pennant line attached?
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?
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 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.
Q. And did you have discussions with the bay constable and others about why having those moorings in place was a good idea?
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?
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?
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?
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.
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?
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?
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 ...