Cioban-Leontiy v. Silverthorn – houseboat case: part 1
About 12 people took a 4 night houseboat rental Lake Shasta (California) in the summer of 2015. The 56 foot 2001 Waterway Houseboat (Canadian manufacturer) Mirage was powered by a Volvo Penta stern drive.
Note – this is Part 1 of this post, Part 2 is our commentary on events on this page.
The houseboat was rented from Silverthorn Resort.
The very basics of the event on the afternoon of 30 May 2015 were:
- The rental houseboat was being operated from the upper deck
- A lady’s hat blew off
- Olga Cioban was on top the roof above the second desk and became aware the other lady’s hat blew off
- Olga Cioban went down the ladder to the lower deck and jumped in from the swim platform to retrieve the hat
- Meanwhile, apparently unaware someone had jumped in at the stern, the boat operator shifted the boat to reverse from the upper deck OR the boat was already moving slowly in reverse.
- Olga Cioban reported being pulled into the propeller
- Olga Cioban received severe cuts to her feet and legs
- Olga Cioban was taken by ambulance to Mercy Hospital in Redding, California
Since the accident, Olga Cioban married the person operating the boat at that time, Mr. Leonity, and is now referred to in some court documents as Olga Cioban-Leontiy.
Case Moved to Federal Court
The case started in California State Court. Notice of Adverse Party of Removal Federal Court (PACER Document #1-6, pages 2 and 3) by Volvo Penta says the case should moved to Federal Court and it later was.
Captain John C. Timmel of Starboard Ten, Inc. Maritime Forensic Services served as expert for the Defense. Captain Timmel has lengthy experience on the water in recreational boats and professionally in piloting larger vessels.
Captain John Timmel found:
Silverthorn reported only 2 propeller strikes in 42 years of operation. The second one happened just a few weeks after this one. Silverthorn’s manager, Mr. Michael Reha, says he is only aware of one other propeller accident and thinks it was in the early 1990s.
Silverthorn’s manager said the average speed of a houseboat was about 5 to 6 knots.
The Operations Manager at Holiday Harbor reported they had a propeller accident a couple years ago due to a woman bow riding. (per our comments later, it was not a houseboat).
The manager of Shasta Marina reported they had not had a propeller accident in 23 years of operation.
Neither facility used propeller guards or ladder interlock switches.
Captain Timmel noted the operators manual for the Mirage houseboat provided instructions under starting the boat in bold underlined type to “Make sure there are no swimmers in the water.” At the close of the section the manual states, “Remember – no swimming while motor is running!”
Captain Timmel reports the operator said he was going in reverse at idle speed. The operator said Ms. Cioban would not have been able to tell the boat was backing up because it was going so slow.
Ms. Cioban knew she was not supposed to jump in if the vessel was running per page 16 of her deposition as reported by Captain Timmel’s rebutal of Plaintiff’s expert.
Dr. Alison Osinski served as Plaintiff’s Expert. Dr. Osinski has long owned recreational boats and has a long, broad background in aquatic safety in many settings.
Dr. Oskinski spoke generally from her broad experiences vs. getting into the nitty gritty details of this case.
Her report states: “This horrific accident would never have happened if Silverthorn had equipped their rental houseboats with prop guards, virtual prop guards, or swim ladder switches. These products provide safety solutions to eliminate hazards associated with propeller strikes, and reboarding accidents caused by inadvertent engine starts or propellers in close proximity to swim ladders.”
Dr. Oskinski said Silverthorn failed to comply with the safety standards of the rental houseboat community. She went on to say Silverthorn personnel failed to provide and describe any safety features of the houseboat or necessary safety practices to be followed during the pre-trip inspection and orientation given to the group. In her report she said there was no evidence at that time that Silverthorn personnel provided any information regarding safety of using the houseboat to the those on board or warned of any dangers.
Dr. Oskinski went on to describe the Standard of Care at rental houseboat companies and how Silverthorn’s procedures were deficient.
Plaintiff Life Care Plan Expert
Plaintiff also had a life care plan expert evaluate the injured lady’s status and estimate costs associated with this accident for the rest of Olga Cioban-Leontiy’s life. This expert and their report was tossed from the case. Per PACER, the expert was hired just a few days before the report was due. The newly hired expert was unable to visit with the physician that attended to Olga Cioban during the accident within those few days. The court said the report was not complete without interviewing the doctor and time was up.
Some Additional Challenges
The case included some discussion of Lake Shasta being under control of the National Park Service and the National Forest Service. Defense says Shasta is navigable water which they said changed some of the legal aspects of the case.
Plaintiff’s original claim was against Silverthorn Resort Associates, Twin Anchors Marine, Volvo Penta, and Does 1 though 50. Plaintiff Causes of Action included Strict Product Liability, Product Negligence, and Negligence.
Plaintiff’s first amended claim switched the boat manufacturer from Twin Anchors Marine to Waterway Houseboat Builders. The wrong boat builder had initially been identified.
The official case name then became:
Silverthorn Resort Associates LP, Waterway Houseboat Builders, Volvo Penta of the Americas LLC
U.S. District Court for the Eastern District of California
Case # 2:17-CV-01626-MCE-CMK
Attorneys in the case:
For the Plaintiff – Ashley R. Amerio. Amerio Law Firm, PC. Roseville, California.
For Silverthorn – David J. Billings & David R. Hunt. Anderson, McPharlin & Conners LLP. Los Angeles, California.
For Volvo Penta – Alan Paul Gustafson, Jr. & Jackeline Rodriguez, PH & Jay D. O’Sullivan, PHV
from multiple locations of Quintairos, Prieto, Wood & Boyer, PA, plus Jocelyn Ann Julian of Lewis Brisbois Bisgaard & Smith. Los Angeles, California.
As the case went on, several defendants cross sued other defendants in an effort to minimize their losses in the event they were found guilty. This added considerable complexity to the case.
Adding more complexity, some cross suits included the individual that signed for the boat and the individual operating the boat at the time of the accident: Mr. Gaiduchik and Mr. Leontiy.
Good Faith Settlement With Volvo Penta
In early July 2018 Plaintiff announced a Good Faith settlement with Volvo Penta. In the Good Faith settlement, PACER Document # 51 Page 4 of 8 states, “The issue in this good faith determination is whether the propeller was dangerous and/or defective. Plaintiff’s investigation has discovered that Plaintiff’s claim against VOLVO is not viable, and should be dismissed.” The good faith agreement was basically that both sides would absorb their own costs and attorney fees.
This document (PACER Document #51) goes on to state on pages 4 and 5, “Plaintiff counsel’s research has revealed (through documentation and discussion with an attorney who has handles such cases) that VOLVO is very likely to prevail in the litigation. Propeller guard cases have been regularly litigated, and comparative negligence is usually an issue in the litigation.”
Silverthorn opposed the Good Faith settlement between Volvo Penta and Plaintiff because Silverthorn feared they would still be stuck with product liability claims and no longer have the opportunity to try to lay part of the responsibility on Volvo Penta. Silverthorn said they would approve the settlement if Plaintiffs claim were re-written removing them from any product liability responsibilities.
In the Good Faith document (PACER Document #51) Plaintiff lawyers talk about the Federal Boating Safety Act of 1971 and how it federally preempted propeller guard claims. Plaintiff’s attorneys then discuss the Sprietsma v. Mercury Marine decision by the U.S. Supreme Court in December 2002 in the bolded comment on page 5. They say, “It is therefore clear that VOLVO had no duty to equip its propellers with guards to provide personal injury protection. It appears there is no liability as to VOLVO.”
The Stern Drive Engine Sounded Like the Generator
Olga Cioban said she knew not to jump in when the engine powering the propeller was running. When another lady’s hat blew off, Ms. Cioban came down the ladder and jumped in at the stern from the swim platform to retrieve the hat. Before she jumped she heard what she thought was the generator running, not the boat motor running.
Motion to Exclude Osinski as Expert Witness
It is common for both sides of a case to try to exclude the other side’s expert witnesses. As mentioned earlier, the Life Planner expert for Plaintiff was excluded due to not interviewing the physician that cared for Ms. Cioban during her recovery.
As to Dr. Osinski, defense claimed that during her deposition, her opinions were based on insufficient facts and data. Both sides went back and forth a few times filing documents explaining their positions. Then the Judge denied the motion to exclude Dr. Osinski. The Judge said it seemed clear Dr. Osinski is qualified to testify to aquatic safety in general. The defense would be free to examine her credibility with respect to the specific issues in this case before the jury.
Waterways Houseboat Builders Dismissed
PACER Document #50 says Waterways Houseboat Builders was dismissed from the case June 7, 2018 because they were a Canadian company that was no longer in business.
Second Amended Plaintiff Complaint
Plaintiff’s 2nd amended claim dropped their product liability claims including propeller guards, swim ladder interlocks, and virtual propeller guards from the list of alternatives. The second amended claim is primarily focused on rental training and warnings.
Claims Made by the Defense
The defense said:
1. We provided training to two individuals including explaining when they needed a lookout at the stern and about the hazard of propellers. Those taking the training initialed it. (A long line was drawn vertically through the list of check boxes)
2. Mr. Gaiduchik signed the lease and agreed he was fully responsible for the vessel. Mr. Gaiduchchik agreed he was not to allow anyone else to operate the vessel except those specifically authorized on the lease agreement.
Very basically, Silverthorn says we told them to use a lookout, we told them about the hazard of propellers. The two individuals we trained initialed the training sheet. They did not use a lookout at the stern, Ms. Cioban was injured by the propeller. We are not responsible.
Defense Moved to Dismiss Plaintiff’s Second Amended Complaint
Defense (now just Silverthorn) said there are not enough facts to support a “strict liability” claim by Plaintiff because Volvo and Waterway Houseboat Builders are no longer in the case.
The path after some judges orders is best described by legal professionals.
As of 13 May 2019, looks to us like negligence as described in Part 2 of Plaintiff’s Second Amended Claim is now the only thing left on the table.