The opinion of the court was delivered by: Irma E. Gonzalez, Chief Judge United States District Court
MEMORANDUM DECISION AND ORDER
The above-entitled matter came before the Court for trial without a jury on December 19 and 20, 2007. Daniel E. Kenney, Esq. of Harrington, Foxx, Dubrow, and Canter appeared on behalf of KDME, Inc. d/b/a Seaforth Boat Rentals ("KDME" or "Petitioner"). Kevin F. Quinn, Esq. and Alyson B. Taub, Esq. of Thorsnes, Bartolotta, and McGuire appeared on behalf of Janine and Samantha Bucci ("Claimants"). This memorandum decision constitutes the Court's findings of fact and conclusions of law.
This is an admiralty action arising out of a recreational boating accident in Mission Bay, San Diego, in which Janine Bucci and Samantha Bucci sustained injury.
In a Pretrial Order, which the Court signed on June 7, 2007, the parties admitted to certain facts requiring no proof at trial. The Court incorporates by reference the facts admitted by the parties and set forth in the Pretrial Order. The Court's findings of fact are based upon those facts admitted in the Pretrial Order and the testimony and evidence presented at trial.
This Court has admiralty jurisdiction pursuant to 46 U.S.C. § 181 et seq., 28 U.S.C. § 1333, and Federal Rule of Civil Procedure F. The Court also has diversity jurisdiction pursuant to 28 U.S.C. § 1332. Venue is proper pursuant to 46 U.S.C. § 181 et seq. and Federal Rule of Civil Procedure F(9) because the subject vessel is located in San Diego.
On August 25, 2004, Janine Bucci ("Janine") rented a 16 foot Bayliner and an inner tube from Petitioner KDME, Inc., dba Seaforth Boat Rentals ("KDME") for recreational activity in Mission Bay. Janine was accompanied on the boating trip by Samantha Bucci ("Samantha"), Alexandra Bucci and Kim Doros.
Sometime after leaving the dock, Doros took the helm of the boat while Janine and Samantha attempted to ride the deployed inner tube. Because the towline of the inner tube was deployed incorrectly, it wedged in the outboard motor of the boat and locked the steering mechanism. As a result, the boat made a sharp left turn, striking Janine and Samantha. After being knocked off the inner tube and while in the water, Janine was also impacted by the spinning propeller of the boat.
Janine suffered fractures to her skull, teeth, and jaw, and lacerations to her neck, shoulder, and arm. Immediately after the accident, she was taken to the University of California San Diego ("USCD") Medical Center and admitted to the trauma bay for her various injuries. Janine spent six days in the hospital recovering from the accident and resulting surgery to treat and close her neck, shoulder, head, and hand injuries before being discharged and allowed to return to New York with her family.
Samantha's injuries were not as extensive, but she suffered head contusions and injuries to her left arm and leg. She was taken to University of San Diego Hospital in Hillcrest where she was treated for pain on her left side and subjected to additional tests. Samantha was discharged the next day, and spent a few days recuperating before traveling back home to New York. Samantha did not require extensive medical care upon her return from San Diego.
Janine Returns Home and To School
After returning home, Janine stayed in bed most of the time, except for appointments with doctors continuing treatment for her injuries. During September and October of 2004, Janine attended numerous appointments to, among other things, remove sutures from her wounds, treat and manage her jaw pain, give x-rays, perform physical rehabilitation, and treat neck and back pain associated with her injuries. During this time period, she was referred to Dr. Patrick Stubgen for a consultation related to her shoulder weakness. At around the same time, Janine returned to school at the University of Rhode Island in the fall of 2004 with a reduced course load.
Back at college, Janine achieved grades comparable, though slightly lower than her pre-accident freshman year. She also held a leadership position in her sorority, serving as Vice-President.
Despite these positive signs, Janine testified at trial that she felt compelled to discontinue her studies at Rhode Island before her junior year. She explained that it was becoming too difficult to continue the numerous required trips back home for doctors appointments related to the treatment of her injuries. She transferred to a college near her parents home for her junior year and completed her studies there in December 2007.
At trial, Janine described her current condition now nearly three and one-half years following the accident. She reported continuing physical pain in the form of headaches and neck pain. She testified about being unable to exercise as she had in the past, because she cannot do sit-ups or handle weights greater than one or two pound in weight. She also described feeling anxious and afraid, especially with regard to the safety of her family. She testified that she experiences great anxiety when any of her brothers leave the house. She also explained that she has great difficulty sleeping and is disturbed every night by nightmares involving death to her friends and family which consistently wake her from sleep between 3 a.m. and 5 a.m.
Janine also displayed physical scars from the accident. She has a prominent scar on her left shoulder blade, another on top of her shoulder, and others appear along the length of her left upper arm and on her neck. She also has scars on both hands. In addition to scarring, Janine exhibits a concave depression in her left shoulder. She testified about her feelings of self-consciousness regarding the scars and the concave depression in her shoulder and she has sought the services of a plastic surgeon, Dr. Robert M. Tornambe, M.D. to help reform and rehabilitate the appearance of her arm.
Currently, Janine works two different jobs for a total of approximately 25 total hours per week. She serves as a sales associate at a female clothing store, working approximately 16 hours per week. She also works at Avon products, alongside her mother, where she spends approximately 8-9 hours a week. While she explained that she is forced to take time from work on occasion for doctor's appointments, she reported no negative reviews of her job performance.
Janine's Psychological Treatment
In 2005, Janine's neurologist, Dr. Stubgen, referred her to clinical neuropsychologist, Dr. Christina Morrison, for attention and memory complaints. Janine met Dr. Morrison on July 5, 2005. After meeting Janine and talking with her about her symptoms, Dr. Morrison administered several standard psychological tests to assess general intellectual functioning. At trial, Dr. Morrison testified regarding the results of that testing. She noted that Janine performed poorly on measures that were highly dependent on visual spatial processing skills and also performed poorly on measures involving problem solving. In addition, based on a personal interview, Dr. Morrison identified ...