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Lee v. Elbaum3/10/1993
ranted her motion for a new trial. Specifically, Appellant contends that the following undisputed evidence of Defendant's negligence was presented to the jury:
1. Defendant "admitted that he was traveling more than 5 knots per hour within 200 feet of Decedent," which the HAR on boating prohibit;
2. Defendant failed to render aid to Decedent as required by HAR ยง 19-73-1; and
3. Defendant turned his boat to the right upon spotting Decedent to the left of his boat's path and caused his propellers to swing toward Decedent instead of away from him.
On appeal, a denial of a motion for new trial is reviewed for abuse of discretion, Harkins v. Ikeda, 57 Haw. 378, 380, 557 P.2d 788, 790 (1976), which we find absent from this case.
Regarding Appellant's allegation that Defendant was speeding within 200 feet of Decedent, there is also evidence on the record that Defendant did not strike Decedent, was not aware that Decedent was snorkeling in the water ahead of his boat, and acted reasonably in piloting his boat.
Turning to Appellant's second contention, the evidence indicates that Decedent died of "craniocerebral injuries due to trauma," rather than drowning, and, therefore, Defendant's duty to render aid would not be relevant. Furthermore, the evidence indicates that Defendant did notify the Coast Guard about the accident, attempted to summon help from boaters in the area, and did not attempt to pull Decedent's body out of the water because: (1) he was almost seventy years of age and the sides of his boat were too high to properly lift a body out of the water; (2) the "swim step" on the boat, which was closer to the water and which he could possibly have stepped on to recover the body, was in the back of the boat, and he was afraid to back the boat into Decedent's body and risk hitting the body with the propellers; and (3) there was blood in the water, and he was concerned that sharks might be attracted to the area.
Finally, we disagree with Appellant's contention that the undisputed evidence at trial was that Defendant turned his boat the wrong way upon sighting Decedent. First of all, such evidence would be irrelevant if the jury believed Defendant's adamant testimony that his boat never struck Decedent. Moreover, Defendant testified that he " the throttle spinning hard to the right" because "it seemed the most prudent thing to do at the time because it gave us the most area to stay away from the person who was out there." 3/11/91 Transcript at 167-68. He also testified that the design of the boat enabled him to safely make the turn. Finally, although Mr. Don Vehon, Appellant's expert, testified that students are taught in Coast Guard School to turn their boat toward an object in front of their boats to avoid hitting it with the boat's propellers, he also admitted, on cross-examination, that this action might result in hitting the object with the boat's hull rather than the engine.
In light of the evidence, we cannot conclude that the trial court abused its discretion in denying Appellant's motion for a new trial.
Conclusion
Accordingly, we conclude that the record does not support Appellant's contentions that the trial court committed reversible errors regarding the admission and exclusion of certain evidence and the reading of certain jury instructions over Appellant's objections. We also conclude that the trial court did not abuse its discretion in denying Appellant a new trial.
Affirmed.
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