Craig v. Kaplan

SHINN, P. J. The present action is for personal injuries suffered by plaintiff when she fell overboard from the roof of the cabin of a motor cruiser while it was anchored off Catalina Island. The defendants are Kaplan, the owner of the boat, and one Sperry who, previous to the day of the accident, had served as skipper.1 Motions of defendants for non-suit were granted and plaintiff appeals.

The facts of the case are undisputed. The rule that a nonsuit can be granted only when the evidence of the plaintiff is legally insufficient to support a judgment in his favor is understood by all lawyers and requires no elaboration or citation of authority.

Kaplan owned a 42-foot motor cruiser (Nora Kate III) ; he chartered it to a party of 10 for a four-day cruise to Catalina Island; he provided the services of Sperry as skipper for limited duty and charged $125 a day for the boat and $25 per day for the services of Sperry. These services consisted of taking the boat and party from Alamitos Bay to Newport Beach and instructing members of the party in what they should know in order to operate the boat on the cruise to the island. As had been agreed, Sperry left the boat at Newport Beach and it was turned over to be operated by two members of the party who had had motorboat experience. There was no question as to the terms of the charter. Full control of the boat was surrendered to the party when Sperry left; plaintiff does not contend otherwise.

The channel was crossed and the boat lay at anchor near the island shore when the accident occurred. The boat had two cabins, a forward 10 x 40 foot trunk cabin and a main cabin which was about 40 inches higher. The roof of the main cabin was fairly flat and surfaced with non-skid material; at the rear were two 12- to 15-foot poles which were used to hold trolling fishing lines. Plaintiff, who had been sunbathing on the roof, stood erect looking toward the shore and holding onto one of the poles; a large boat went by and in a couple of seconds the Nora Kate III rolled sharply; plaintiff lost her balance and fell, striking the rail and landing in the water.

Plaintiff’s arguments accuse Kaplan and Sperry of negligence in the following particulars: it was the duty of Kaplan to have railings around the cabin roof which would protect persons from falling overboard; both Kaplan and Sperry should have warned the members of the party that sunbathing should be confined to the trunk cabin, of the danger [583]of being on the roof of the main cabin and generally of “danger areas, places to sunbathe and matters of that nature. ’ ’