By Doyice Cotten
This post examines another important issue in the Witkowski v. Niagara Jet Boat Adventures, LLC, 2020 case – Gross Negligence or Ordinary Negligence.
In the jet boat case, the Witkowski’s took a jet boat ride and Sarah Witkowski suffered injury. The reader is referred back to last week’s post for the facts of the case.
The final issue addressed in the case was the allegation that Niagara Jet was grossly negligent.
The trial judge stated that a reasonable fact finder could conclude that the defendant was grossly negligent for seating three people on the bench. He denied summary judgment for the defendant.
The defendant argues that a reasonable fact finder could not find that Niagara Jet was grossly negligent. Some reasons given were:
- plaintiff Sarah Witkowski never felt in danger;
- she actually requested the seating arrangement that the plaintiffs now claim was grossly negligent;
- plaintiff Scott Witkowski later said that his family would take the trip again
- Scott asked for free tickets; and
- the plaintiffs’ children sat “comfortably” and had “fun” during the trip.
In addition, the defendant observed that the “plaintiffs did not allege gross negligence in their original complaint” and added that allegation only after the waiver issue was raised “in a transparent effort to avoid summary judgment” (arguing that if there truly were evidence of gross negligence, the “plaintiffs would have made such allegations in their initial complaint—not after being reminded about the release”).
The court, in regard to the amended plea by the plaintiff, stated:
But none of that is of any moment. Whether or not the plaintiffs should have thought of it earlier, the claim of gross negligence was raised in the amended complaint and is now a part of this lawsuit. (“[A]n amended complaint ordinarily supersedes the original and renders it of no legal effect.”).
As to the arguments of the defendants, the judge stated:
And the fact that the plaintiffs may have wanted the seating arrangement that they now claim was dangerous and that they enjoyed the thrill ride matters not one whit. The plaintiffs offered evidence that the defendant’s owner said that the seating arrangement was dangerous and that his staff knew just that. And they offered an expert opinion to that effect as well. The defendant’s denial of the alleged statement of its owner and disagreement with the plaintiffs’ expert only create issues of fact for the jury.
The Court agreed with the trial judge’s recommendation that the defendant’s motion for summary judgment be denied.
Risk Management Takeaway
The reader should note that two factors contributed to the decision of the court that a reasonable juror could find the the defendant was grossly negligent: 1) the fact that there was a rule against seating three persons on a bench seat and the crew knew it was dangerous; 2) plaintiff provided an expert witness. Both constitute evidence of gross negligence; one can’t just CLAIM gross negligence and offer no evidence.