JUDGMENT FINDING BOATER NEGLIGENT BASED ON FAILURE TO PASS FROM PORT TO PORT IN VIOLATION OF CONNECTICUT LAW WAS AFFIRMED ON OTHER GROUNDS, ALTHOUGH IT WAS ERROR TO BASE NEGLIGENCE FINDING ON FAILURE SINCE COMPLAINT DID NOT MENTION THE CONNECTICUT LAW, OR
RICHARD W. MICHALSKI ET AL. v. ROBERT HINZ
APPELLATE COURT OF CONNECTICUT
100 Conn. App. 389; 2007 Conn. App. LEXIS 136
April 10, 2007, Officially Released
PROCEDURAL POSTURE:The Superior Court in the Judicial District of Danbury (Connecticut) found defendant boater negligent and denied his motion for a judgment of dismissal. A motion to assess costs filed by plaintiffs, a fisherman and a passenger, was denied. The boater's motion for review was granted and an articulation was ordered. After the trial court entered a supplemental decision, all parties appealed. The appeals were consolidated.
OVERVIEW: The boater argued that a negligence finding was improperly based on his failure to pass from port to port. The appellate court held that the failure to pass from port to port was not pleaded, either with a reference to Conn. Gen. Stat. § 15-131(1) or a factual allegation. The boater was not notified that § 15-131(1) was at issue. Plaintiffs could not recover for negligence from the failure to pass port to port. The fisherman did not claim a variance between the pleadings and the evidence. Plaintiffs did not claim a § 15-131(1) violation, or inform the trial court or the boater that they were pursuing such an allegation. The finding that the boater did not sound his horn was not clearly erroneous. The failure violated Connecticut boating regulations and was a basis for a negligence finding. The horn violation was not based on the federal inland navigation rules. The doctrine of error in extremis did not apply as defendant was negligent. Had he sounded his horn, the collision might have been avoided. Expert testimony was not required. When the motion for a judgment of dismissal was filed, expert testimony had been admitted. Finally, the failure to award plaintiffs costs was in error.
OUTCOME: The judgment was reversed only as to the denial of plaintiffs' motion for costs. The case was remanded to the trial court for further proceedings regarding the award of costs. Otherwise, the judgment was affirmed.
