TORTS (waterways, directed verdict, cause of action): Kelley v. Poore (COA 12/18/2009)

Kelley v. Poore
2008-CA-002409 12/18/2009 2009 WL 4877707

Opinion by Chief Judge Combs; Judge Moore and Senior Judge Lambert concurred. The Court affirmed a jury verdict and judgment dismissing appellant’s personal injury claim, which was filed following a collision between appellee’s fishing boat and a personal watercraft operated by appellant. The Court first held that the trial court did not err by refusing to grant a directed verdict against appellee based on his failure to keep a proper lookout when the evidence allowed the jury to reasonably find that appellee consistently maintained a proper lookout but that appellant failed to keep a proper lookout, failed to yield the right-of-way, and approached appellee’s vessel so suddenly that he did not have sufficient time to react before the collision.

The Court next held that the trial court did not err by failing to instruct the jury on the federal rules of the waterway as they related to an overtaking vessel’s intention to overtake. There was no testimony that the fishing boat was overtaking or intended to overtake the personal watercraft and therefore, it was not unreasonable for the court to reject complex and technical proposed instructions defining appellee’s duties as to overtaking the personal watercraft in favor of an instruction adequately explaining appellee’s general duty. The Court finally held that the trial court did not err by denying a motion in limine to exclude evidence indicating that appellant was an inexperienced boater along with evidence to suggest that appellee was a practiced one. The challenged evidence concerned the nature and quality of the parties’ experience, not evidence of their character excludable pursuant to KRE 404(a).

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