writing sample - response to msj

Author: Myers, Jennifer

January 22, 2015

Judge Brian Price

1

Cause No. 14-11959-C

RALPH STARMER and LINDA

STARMER, individually and as

next friends of SHEILA STARMER,

deceased, and JOHN DONOVAN

and LINDA DONOVAN,

individually and as next friends of

STACY DONOVAN, deceased

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IN THE DISTRICT COURT

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Plaintiffs §

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v. § 68th JUDICIAL DISTRICT

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STEVEN DONOVAN and

CHARLES DUNCAN, JR.

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Defendants § DALLAS COUNTY, TEXAS

PLAINTIFFS RALPH STARMER AND LINDA STARMER’S RESPONSE TO

DEFENDANT DONOVAN’S MOTION FOR SUMMARY JUDGMENT

TO THE HONORABLE JUDGE PRICE:

Plaintiffs Ralph and Linda Starmer, individually and as next friends of

Sheila Starmer, deceased, file this Response to Defendant Donovan’s Motion

for Summary Judgment, asking the Court to deny that motion for the

following reasons.

I. BACKGROUND OF THE CASE

1. Ralph and Linda Starmer, individually and as next friends of Sheila

Starmer, deceased, filed a negligence action against Steven Donovan for his

actions surrounding the September 1, 2012 boating collision in which Sheila

lost her life.


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2. Sheila Starmer, then fifteen years old, spent Labor Day weekend of

2012 at Lake Texoma with friends. On Saturday, September 1, 2012, she

spent the day with Steven Donovan, Stacy Donovan, and Shannon Sherrard

at an island in Lake Texoma called Treasure Island, waterskiing and

picnicking. After spending the day at the island, Sherrard needed to call his

parents to tell them when he would be home, so the four teens went back to

the Tanglewood development to use the telephone at the Donovan’s lakeside

vacation home. The Tanglewood development is off of the area of Lake

Texoma known as Buzzard’s Bay.

3. Steven Donovan requires vision correction. However, he was not

wearing glasses on September 1, 2012. Nor was he wearing contact lenses, as

he had a habit of not wearing contacts when he would be waterskiing.

4. The teenagers needed to get home. As it was getting dark, Steven

Donovan, then fifteen years old, piloted a boat containing the four of them out

of Buzzard’s Bay. The boat was headed out of Buzzard’s Bay back to Treasure

Island, traveling along the left-hand side of Buzzard’s Bay.

5. The Donovan boat is a 2008 model Taylor SJ, eighteen feet in length.

The Taylor SJ is a type of jet ski boat that operates based on water

propulsion: water is forced through a pump at the back of the boat, and the

boat travels in the opposite direction. The Taylor SJ has no propellers. Its

design causes the boat to sit very low in the water. The lighting on the boat is

a simple push-pull on-off: all lights are either lit or not, depending on


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whether the switch is pushed in or pulled out. When the boat planes, there is

a blind spot for the driver for a few feet in front of the boat.

6. The boat’s seating was arranged similarly to an automobile’s. Steven

Donovan sat in the front on the left side in the captain’s chair, Sheila

Starmer sat to his right at the front of the deck, Shannon Sherrard sat

behind Steven, and Stacy Donovan sat behind Sheila.

7. Steven Donovan was in a hurry to get back. He stepped on the gas;

at one-quarter throttle, the boat was going 20 miles per hour. The boat had

hit such a speed that it began planing, a condition where the front point of

the boat lifts several degrees higher above the water than normal. This

created a blind spot in front of Steven.

8. At the same time, as it was getting dark, Charles Duncan, Jr. was

piloting his boat from the eastern tip of Treasure Island toward Loe’s

Highpoint, the marina where his houseboat was docked. During the day,

Duncan had consumed several alcoholic beverages—he had begun drinking at

eleven o’clock that morning and had continued drinking through at least

eight o’clock that evening. Duncan requires corrective lenses, and he was

wearing glasses while on his course towards Loe’s. Duncan’s boat at this

point had hit such a speed that it began planing.

9. At around 9:15 P.M. on Saturday, September 1, 2012, the sun had

set and it was full dark. The boats were on a collision course, set to crash as

both boats came around opposite sides of a jut of land marking the entrance


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to both Buzzard’s Bay and Loe’s Highpoint. As the boats approached each

other, they were neither directly head-on nor directly perpendicular, but

somewhere in-between; the Donovan boat’s vector was about 135 degrees

from the Duncan boat’s vector. The Donovan boat was traveling at 20 miles

per hour; the Duncan boat was traveling at 40 miles per hour. There was

very slight wind, and the water conditions were normal. Aside from being

dark, the night was clear. Visibility was around 10 miles.

10. Boaters are expected to follow certain rules of conduct on bodies of

water: the rules of the road. The rules of the road work the same on lakes as

they do with automobiles. Boats are expected to stay on the “right-hand side”

of the body of water, just as automobiles are expected to stay on the right-

hand side of the road. When approaching head-on, boats are expected to pass

left-to-left. If a boat wishes to pass another, the faster boat is expected to pass

the slower boat on the right-hand side. At a perpendicular intersection, boats

are expected to yield to the boat to the right. Slower boats have privilege over

faster boats, because slower boats are less maneuverable.

11. In addition, this was Labor Day weekend of 2012. Lake Texoma

was busier than usual: Memorial Day, Fourth of July, and Labor Day are the

three busiest times on the lake. Labor Day is busier than most, as September

marks the end of the boating season and boaters want to have a last hurrah.

Lake Texoma, in particular the Loe’s Highpoint area, was crowded with

boaters, most of them from out of town. Both Steven Donovan and Charles


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Duncan, Jr. are from Dallas, not the Lake Texoma area; they have to

specifically bring their boats to Lake Texoma. Because of how busy the

holiday weekend is, and because of the influx of out-of-towners and

inexperienced boaters, the rules of the road become even more important to

follow to avoid crashes and collisions.

12. Steven Donovan noticed the Duncan boat five seconds before the

collision. At this point, Steven had three choices: go left to pass the boat

head-on right-to-right in direct opposition to the rules of the road; go right

and step on the gas to become the privileged boat at a perpendicular

intersection; or go straight and attempt to stop before the point at which the

boats would collide. Steven chose to turn the Donovan boat to the left, defying

the rules of the road.

13. The crash took place around the breakwater. The breakwater is a

partition between the harbors and the lake proper: inside the breakwater, the

speed limit for boats is five miles per hour, to keep the boats from creating

excessive wakes and damaging other boats. However, both boats were

traveling well in excess of five miles per hour.

14. At the point around the breakwater where the boats collided,

Steven Donovan was piloting his boat on the left-hand side of Buzzard’s Bay,

in direct opposition to the rules of the road. Charles Duncan, Jr. stayed close

to the shoreline, which created a blind spot as he rounded the jut of land that

demarcated Buzzard’s Bay from Lake Texoma proper.


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Judge Brian Price

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15. The front of Duncan’s boat collided with the right side of Donovan’s

boat. Because Duncan’s boat was twice as long, much heavier, and had more

momentum, Duncan’s boat actually traveled over the top of Donovan’s boat,

so much so that the Duncan boat’s propellers, situated in the midline of the

bottom of the boat, chopped rhythmic gashes in the right side of the Donovan

boat’s hull.

16. The collision was brutal. The right-hand side of the Donovan boat

bore the brunt of the crash, and the girls sitting on that side of the boat

sustained the worst injuries. Sheila Starmer’s spine was snapped—her body

simply could not withstand the extreme weight and size of the Duncan boat

bearing down on her. As the Donovan boat was towed into Loe’s, she was

slumped over and could not pull her body straight, even with assistance from

Shannon Sherrard. Sheila was pronounced dead once the Donovan boat

arrived at Loe’s and once emergency medical technicians had the first

opportunity to render assistance to the teenagers.

II. SUMMARY JUDGMENT GROUNDS

17. Steven Donovan filed his Motion for Summary Judgment on

Monday, January 5, 2015. His motion alleges that the Starmers cannot

establish breach of a duty or causation. Both are essential elements of the

Starmers’ negligence claim against him.

18. In reply, the Starmers file this Response to Steven Donovan’s

Motion for Summary Judgment. The evidence as it stands creates a genuine


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Judge Brian Price

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issue of material fact for both breach and causation. Because of this, the

factual elements will survive summary judgment and go to the jury.

III. THE SUMMARY JUDGMENT EVIDENCE

19. In responding to Steven Donovan’s Motion for Summary Judgment,

the Starmers rely on portions of the deposition of Sammy Brown, included as

Appendix A. The Starmers also rely on portions of Oscar Taylor’s deposition,

which is Appendix B to this motion. Steven Donovan’s deposition also

contains statements which raise genuine issues of material fact; the relevant

portions are contained in Appendix C. Finally, relevant portions of Francis

Harkrider’s deposition, included as Appendix D, contain statements which

raise genuine issues of material fact.

20. In addition, the Starmers rely on Exhibit A, a United States Coast

Guard publication, which is attached to this response as Appendix E. They

also rely on Starmer Exhibit #001, which Francis Harkrider created during

his deposition; it is attached to this response in Appendix F. Appendix G,

containing Exhibit B, and Appendix H, containing Exhibit C, support the

Starmers’ procedural argument.

IV. THE SUMMARY JUDGMENT STANDARD

21. To prevail on a traditional summary judgment motion, the movant

bears the burden of proving that no genuine issues of material fact exist and

that it is entitled to judgment as a matter of law. See Tex. R. Civ. P. 166a(c).

“A defendant who conclusively negates at least one of the essential elements


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Judge Brian Price

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of each of the plaintiff's causes of action . . . is entitled to summary

judgment.” Cathey v. Booth, 900 S.W.2d 339, 341 (Tex. 1995). Thus, it is

Steven Donovan’s burden to conclusively negate at least one of the essential

elements of the Starmers’ negligence cause of action against him.

22. Assuming this burden is met, and only if it is, the burden shifts to

the Starmers to present evidence raising a genuine issue of material fact as

to Steven Donovan’s claims. See Ayeni v. State, 440 S.W.3d 707, 709 (Tex.

App.—Austin 2013, no pet.). In this response, the Starmers take up the

burden of presenting evidence raising a genuine issue of material fact on

breach and causation. Because the Starmers’ evidence raises a fact issue,

summary judgment is not appropriate. Id.

V. ARGUMENT AND AUTHORITIES

23. Steven Donovan owed Sheila Starmer a duty of reasonable care. He

breached that duty on the night of September 1, 2012, by participating in the

boat collision that is at issue in this case. In addition, the type of collision

that occurred, and the harm resulting from it, was reasonably foreseeable,

thus showing that Donovan’s conduct was a proximate cause of Sheila’s

death.

A. Steven Donovan Owed Sheila Starmer a Duty of Reasonable Care.

24. “The existence of a duty is a question of law for the court to decide

from the particular facts of the case.” Golden Spread Council, Inc. No. 562 of

Boy Scouts of Am. v. Akins, 926 S.W.2d 287, 289 (Tex. 1996). “If there is no


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Judge Brian Price

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duty, there cannot be negligence liability,” because a negligence cause of

action rests on a breach of duty. Thapar v. Zezulka, 994 S.W.2d 635, 637

(Tex. 1999). While duty is a question of law and Steven Donovan attacks only

breach, the Starmers must provide a genuine issue of material fact that

Steven Donovan had a duty to Sheila Starmer, as his passenger, to exercise

ordinary care in operating his boat.

1. All Factors Determining Existence of a Duty Weigh in Favor

of Placing Steven Donovan Under a Duty.

25. In determining whether Steven Donovan was under a duty, several

interrelated factors combine, including the risk, foreseeability, and likelihood

of injury weighed against the social utility of Donovan’s conduct, the

magnitude of the burden of guarding against the injury, and the

consequences of placing the burden on Donovan. See Greater Houston

Transp. Co. v. Phillips, 801 S.W.2d 523, 525 (Tex. 1990). “Of all these factors,

foreseeability of the risk is the foremost and dominant consideration.” Id.

(internal quotations removed).

26. Sammy Brown, a game warden, testified that there is a likely and

foreseeable risk of boating collisions when boaters do not meet the standard

of care for proper boating conduct. See Brown Dep. 537-50, 579-94, Dec. 9,

2014. The standard of care is in place for safety reasons, creating a social

utility in following the rules; there is little to no social utility in breaking

those rules. See Brown Dep. 537-38. Because Steven Donovan was one of the


January 22, 2015

Judge Brian Price

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drivers of the boats involved in the collision at issue in this case, he was in

the best position to prevent injury to himself, his passengers, and other

boaters from operating his boat. Finally, the consequence of placing this

burden on Steven Donovan is to hold boat drivers accountable for the

consequences of their actions. All these factors weigh in favor of placing

Steven Donovan under a duty of care to Sheila Starmer.

2. Steven Donovan Was Under an Obligation to Follow the

Standard of Care Found in the Texas Water Safety Act.

27. In addition to establishing a duty, the Starmers must also establish

a standard of care by which to judge Steven Donovan’s conduct. “Whether or

not a breach has occurred is determined by comparison to the applicable

standard of care.” Harris v. Ebby Halliday Real Estate, Inc., 345 S.W.3d 756,

759 (Tex. App.—El Paso 2011, no pet.). The Texas Water Safety Act, found in

Chapter 31 of the Texas Parks and Wildlife Code, contains the standard of

care applicable to a boating collision like the one at issue in this case.

28. One statute in the Texas Water Safety Act restates the common-

law duty of an operator to act with reasonable care. See Tex. Parks & Wild.

Code Ann. § 31.094 (Vernon). Another statute states that the Coast Guard’s

Inland Rules—the “rules of the road” for bodies of water—apply to all public

water in the state. See Tex. Parks & Wild. Code Ann. § 31.093 (Vernon).

Because of this, the Coast Guard’s Inland Rules, or the “rules of the road,”

constitute the standard of care in this case.


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Judge Brian Price

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29. The Coast Guard promulgates its “rules of the road” in official

publications. See generally App. E Ex. A. Boats are expected to pass port-to-

port, or left-to-left—the same as on roads with cars. Id. at 4. Passing

starboard-to-starboard, or right-to-right, should be done only “when

necessary.” Id. When passing starboard-to-starboard, boats need to signal

their intent with two short blasts, waiting for the other boat’s confirmation of

two short blasts before performing the maneuver. Id. In a crossing situation,

the boat to which right-of-way is yielded is expected to “maintain its course

and speed.” Id. at 5. Under § 31.093 of the Texas Parks and Wildlife Code,

Steven Donovan is expected to follow these “rules of the road” when accepting

responsibility as the operator of a jet boat—that is, he operates under this

standard of care.

30. The Texas Water Safety Act also provides a specific statutory duty

to operate one’s vessel at a “reasonable and prudent” speed. See Tex. Parks &

Wild. Code Ann. § 31.095 (Vernon). A “reasonable and prudent” speed is the

speed which “will permit [the boat’s operator], in the exercise of reasonable

care, to bring the boat to a stop within the assured clear distance ahead.” Id.

The principles in sections 31.094 and 31.095 combine in another statute:

No person may operate a vessel . . . on the water of

this state in wilful or wanton disregard of the

rights or safety of others or without due caution or

circumspection, and at a speed or in a manner that

endangers, or is likely to endanger, a person or

property.


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Tex. Parks & Wild. Code Ann. § 31.096 (Vernon). As a vessel operator, Steven

Donovan falls under these provisions. These statutes provide another

standard of care for Donovan’s conduct.

B. Steven Donovan Breached His Duty of Care to Sheila Starmer by

Not Operating Within the Standards of Care Provided in the Texas

Water Safety Act.

31. To establish breach of duty, the Starmers must show either that

Steven Donovan did something an ordinarily prudent person exercising

ordinary care would not have done under those circumstances, or that Steven

Donovan failed to do that which an ordinarily prudent person would have

done in the exercise of ordinary care. See Caldwell v. Curioni, 125 S.W.3d

784, 793 (Tex. App.—Dallas 2004, pet. denied). Steven Donovan breached his

duty of care to Sheila Starmer because he violated more than one standard of

care described in the Texas Water Safety Act. Not only did Donovan violate

the “rules of the road” that he is required to follow under Texas Parks and

Wildlife Code § 31.093, Donovan also operated his boat at an unsafe speed as

forbidden by Texas Parks and Wildlife Code § 31.096.

1. Steven Donovan Breached the Standard of Care in Not

Following the “Rules of the Road.”

32. In ¶ 29 of Steven Donovan’s Motion for Summary Judgment,

Donovan admits that he swerved to avoid a collision. The boats were angled

similarly to the figure on page 5 of Exhibit A under Crossing Situation

(Navigation Rule 15), with the blue boat representing the original vector of


January 22, 2015

Judge Brian Price

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Duncan’s boat and the green boat representing the original vector of

Donovan’s boat. According to the rules of the road, Donovan should have

continued straight. See Ex. A at 5; Taylor Dep. 142-43, 289-90, Dec. 5, 2014.

33. Instead, Donovan swerved to the left. See ¶ 29 of Steven Donovan’s

Motion for Summary Judgment; see also S. Donovan Dep. 446-47, Nov. 25,

2014. The Duncan and Donovan boats thus passed right-to-right. See Brown

Dep. 469-76. Although discovery has not yet ended and not all potential

witnesses have been deposed, no evidence currently suggests that either

driver signaled his intent using a boat horn.

34. The Starmers have therefore produced some evidence that Steven

Donovan did not follow the “rules of the road” on September 1, 2012, leading

up to the collision. This evidence is enough to raise a fact issue on whether

Steven Donovan breached the standard of care found in the Coast Guard

Inland Rules as published in Exhibit A. Because there is a fact issue,

summary judgment on this theory of breach of duty is improper.

2. Steven Donovan Breached the Standard of Care When He Did

Not Operate His Vessel at a “Reasonable and Prudent” Speed.

35. Under the Texas Parks and Wildlife Code, local authorities have

the ability to set speed limits and no-wake zones on particular areas of

navigable waters. See Tex. Parks and Wild. Code Ann. § 31.095(b) (Vernon).

On Lake Texoma, near Loe’s Highport and Buzzard’s Bay where the collision

resulting in this lawsuit occurred, there is a series of five-mile-per-hour buoys


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Judge Brian Price

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demarcating the harbor from the rest of Lake Texoma. See Harkrider Dep.

299-300, Dec. 4, 2014; see also Starmer Exhibit #001. Steven Donovan said he

was going twenty miles per hour when the bats collided. See S. Donovan Dep.

440-43. However, the boat crash took place inside the buoys. See Starmer

Exhibit #001. Therefore, Steven Donovan was speeding, going four times the

legal speed limit inside the five-mile-per-hour buoys. Speeding this recklessly

violates the Texas Parks and Wildlife Code. See Tex. Parks and Wild. Code

Ann. §§ 31.095, 31.096 (Vernon). By not following this standard of care,

Steven Donovan breached his duty to Sheila Starmer.

C. In Breaching These Duties of Care to Sheila Starmer, Steven

Donovan Was a Proximate Cause of the Collision at Issue in This Case.

36. To establish causation, the Starmers must prove that Steven

Donovan’s conduct caused an event and that this event caused the Starmers

to suffer compensable injuries. Burroughs Wellcome Co. v. Crye, 907 S.W.2d

497, 499 (Tex. 1995). In a negligence case, causation consists of two elements:

cause in fact and foreseeability. See Travis v. City of Mesquite, 830 S.W.2d

94, 98 (Tex. 1992). Therefore, the Starmers must show that Steven Donovan’s

breach of the standards of care creates a genuine issue of material fact of

whether that breach caused Sheila Starmer’s death.

1. Steven Donovan’s Conduct Was a Cause-in-Fact of Sheila

Starmer’s Death.

37. “‘Cause in fact’ means that the act or omission was a substantial

factor in bringing about the injury, and without it harm would not have


January 22, 2015

Judge Brian Price

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occurred.” Id. In Travis, the plaintiff sued the City of Mesquite because the

City’s police officers chased Adkins’s vehicle; Adkins’s vehicle then collided

with Travis’s vehicle. Id. at 96. During the summary-judgment phase, Travis

produced evidence that “raise[d] the inference that Adkins drove down the

access road at an excessive speed because of the police decision to give chase.”

Id. at 98. This evidence, therefore, raised a genuine issue of material fact that

the police officers were the but-for cause, or cause-in-fact, of the collision. Id.

38. In the instant case, Steven Donovan drove his boat at four times

the speed limit. See S. Donovan Dep. 440-43. Because of this, he had only five

seconds to see Duncan’s boat. Id. at 444-45. Because he had such a limited

time to react, Steven Donovan made a decision which violated the “rules of

the road:” he turned left so that his boat would pass right-to-right with

Duncan’s boat. See Brown Dep. 469-76. And because the boats passed each

other right-to-right, the passengers on the right side of Donovan’s boat died

in the collision. This is evidence enough to raise a genuine issue of material

fact that Steven Donovan’s conduct was a cause-in-fact of the collision, and

therefore of the injuries for which the Starmers seek recovery. See Travis,

830 S.W.2d at 98.

2. Steven Donovan’s Conduct Was a Proximate Cause of Sheila

Starmer’s Death.

39. “Foreseeability” means that Steven Donovan, as a person of

ordinary intelligence, should have anticipated the dangers that his negligent


January 22, 2015

Judge Brian Price

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act created for others. Id. Foreseeability of the risk is also the prime factor in

determining whether Steven Donovan’s conduct was negligent. See Greater

Houston Transp. Co., 801 S.W.2d at 525. Sammy Brown, who has been a

game warden for 23 years, testified that boaters violating the Texas Water

Safety Act anticipate causing collisions in which people can get seriously hurt

or even die. See Brown Dep. 27-28, 589-94. This deposition testimony raises a

genuine issue of material fact that Steven Donovan’s breach of the standards

of care in the Texas Water Safety Act was a foreseeable cause, or proximate

cause, of Sheila Starmer’s death and the Starmers’ injuries.

VI. ADDITIONAL GROUNDS FOR RELIEF

40. Steven Donovan’s Motion for Summary Judgment was untimely.

The Practice Court Rules provide that motions for summary judgment should

be submitted by 5:00 P.M. three days before the summary judgment hearing.

See P.C. Rule 6.3(c)(7)(a). The summary judgment hearing was scheduled in

December for Wednesday, January 7, 2015 at 7:00 P.M. by agreement of the

parties. See App. G Ex. B. P.C. Time technically did not run during the

Christmas holiday period. See P.C. Rule 7.6(a)(2)(ii). The deadline for Steven

Donovan’s Motion for Summary Judgment, therefore, was technically on

Friday, December 19 by 5:00 P.M. Even invoking a rule of leniency and

counting back three literal calendar days from the date of the hearing, Steven

Donovan’s Motion for Summary Judgment would have been due on Sunday,

January 4 at 5:00 P.M.


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Judge Brian Price

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41. Instead, Steven Donovan’s motion for summary judgment was

submitted Monday, January 5 at 1:14 P.M. See App. H Ex. C. By any

measure, this is an untimely filing. “Late-filed motions will not be accepted

and are deemed denied.” P.C. Rule 7.13(b)(4) ¶ 2. Because of this, the Court

should deny Steven Donovan’s Motion for Summary Judgment.

VII. CONCLUSION AND REQUEST FOR RELIEF

For these reasons, the Starmers respectfully request the Court to deny

Steven Donovan’s Motion for Summary Judgment.

January 22, 2015 Respectfully submitted,

Jennifer Myers

Jennifer Myers

Myers & Associates, P.C.

Attorney for Plaintiffs

1001 Franklin Avenue, Suite C

Waco, Texas 76701

[email protected]

(254) 987-6543


January 22, 2015

Judge Brian Price

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CERTIFICATE OF SERVICE

I certify that on January 22, 2015, I served a copy of Plaintiffs Ralph Starmer

and Linda Starmer’s Response to Defendant Donovan’s Motion for Summary

Judgment on William Price and Ashley Holcomb, attorneys for Jeff Donovan

and Linda Donovan, Laura Gardner and Meredith Sullivan, attorneys for

Steven Donovan, and Scott Nyitray and Paul Serafy, attorneys for Charles

Duncan, Jr., as listed below, by electronic service, and the electronic

transmission was reported as complete. My e-mail address is

[email protected].

William Price

Ashley Holcomb

Price & Holcomb, P.C.

9917 Houston Drive, Suite 101

Waco, Texas 76712

[email protected]

[email protected]

Attorneys for Plaintiffs Jeff Donovan and Linda Donovan

Laura Gardner

Meredith Sullivan

Gardner & Sullivan, PLLC

1114 University Parks Drive

Waco, Texas 76706

[email protected]

[email protected]

Attorneys for Defendant Steven Donovan

Scott Nyitray

Paul Serafy

Nyitray & Serafy, PLLC

3434 Austin Avenue, Suite 202

Waco, Texas 76706

[email protected]

[email protected]

Attorneys for Defendant Charles Duncan, Jr.

Jennifer Myers

Jennifer Myers


January 22, 2015

Judge Brian Price

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APPENDIX A

DEPOSITION OF SAMMY BROWN

27 Bill Price: Okay. Uhm, alright. Now, how long have you been in game

ward?

28 Sammy Brown: For 23 years.

* * *

469 Ms. Holocomb: And where did you believe that Mr. Duncans boat was

located... Mr. Dunovan’s boat was located in regards to Mr. Duncan’s boat?

470 Sammy Brown: On the right hand side

471 Ms. Holocomb: So so then it you do believe that Mr. Dunovan’s boat was

on the right hand side of Mr. Duncan’s boat?

472 Sammy Brown: When?

473 Ms. Holocomb: When they collide.

474 Sammy Brown: When the damage was done to the boat.

475 Ms. Holocomb: So when they collide it?

476 Sammy Brown: Uh at some point during the collision yes.

* * *

537 Ms. Holocomb: Um and just the general um reason for all this rules is

safety.

538 Sammy Brown: Yes

539 Ms. Holocomb: Because if this rules aren’t followed things happened.

540 Sammy Brown: Then can yes

541 Ms. Holocomb: Collisions happened

542 Sammy Brown: They can yes

543 Ms. Holocomb: Would you agree with me that if boaters don’t follow this

general safety guidelines that it’s for seeable that the boating

collision could occur.


545 Ms. Holocomb: And when boating collisions occur, injuries can also occur.

546 Sammy Brown: Yes they can.

547 Ms. Holocomb: Deaths can also occur

548 Sammy Brown: Yes they can

549 Ms. Holocomb: So would you agree with me Sammy Brown that if this

basic boating safety guidelines are not followed and it’s for seeable that

death could occur.


* * *

579 Ms. Holocomb: Uh just a few more questions about uh some of these rules

(UNINTELLIGIBLE) um it would be bad for someone who needs vision

correction to drive without wearing glasses or contacts right?


581 Ms. Holocomb: Um it’s for seeable that something really bad will


January 22, 2015

Judge Brian Price

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happened like an accident if you do that right?


583 Ms. Holocomb: Uh

584 Ms. Holocomb: (UNINTELLIGIBLE) to formally question.

585 Ms. Holocomb: Some (UNINTELLIGIBLE) seriously hurt right?

586 Sammy Brown: They could.

587 Ms. Holocomb: And seriously hurt means like dying?

588 Sammy Brown: That could happen as well

589 Ms. Holocomb: And it’s also that for someone who know 4 times the speed

limit at 5 mile per hour or more right?

590 Sammy Brown: Is that, is bad yes.

591 Ms. Holocomb: And because that you could foresee that someone could

get it to an accident is that?

592 Sammy Brown: You could foresee that.

593 Woman: And someone could get seriously hurt or even die in an accident

594 Sammy Brown: It could


January 22, 2015

Judge Brian Price

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APPENDIX B

DEPOSITION OF OSCAR TAYLOR

142 Atty Sullivan: And in your opinion what could Mr. Donovan have done

differently?

143 Mr. Taylor: Well basically he, he had 3 options uh when he saw the

other boat uh he could either turn left um go straight or stop or turn

right and so ultimately he turn he decided to turn left.

* * *

289 Atty Jennifer: And uh you said that uh Donovan should have uh maybe

increase powers that up to get away from the accident? Then why do you

have that opinion?

290 Mr. Taylor: Well if, if he could have speed up he could have gotten in

front of uh Mr. Duncan’s boat and pass it um before the collision

happen.


January 22, 2015

Judge Brian Price

22

APPENDIX C

DEPOSITION OF STEVEN DONOVAN

440 Scott: How fast do you traveling do you recall

441 Steven: Oh I mean obviously within the lake so I’m going less around

5 mmm probably a little less and then you know maybe like 15 or 20

mile in hour

442 Scott: And you know that from ________________.

443 Steven: Mmm yeah I mean in a I don't stare at him cause I’m looking

for traffic and its dark mmm but you know its what felt normal so be

around 15 to 20

444 Scott: And when did you first see Mr. Dunkin boat

445 Steven: It was nearly right before the accident happen I mean it was

a pretty split second decision I mean if I had to put a figure on

and be somewhere around 5 6 second but I mean it was just right

there

446 Scott: And what did you do as soon as you saw Mr. Dunkin boats

447 Steven: I immediately turn left mmm to try to avoid the collision


January 22, 2015

Judge Brian Price

23

APPENDIX D

DEPOSITION OF FRANCIS HARKRIDER

299 Myers: I have a few questions actually. Um, with this black pen could

you do me a favor and mark where the break water is, where the 5 mile

an hour booies are?

300 Francis: I would say that they're in, in that area.


January 22, 2015

Judge Brian Price

24

APPENDIX E

EXHIBIT A

Exhibit A is attached to the e-mail serving this response on the parties as

Exhibit A.pdf.

APPENDIX F

STARMER EXHIBIT #001

Starmer Exhibit #001 is attached to the e-mail serving this response on the

parties as 001 Starmer Exhibit.pdf.

APPENDIX G

EXHIBIT B

Exhibit B is attached to the e-mail serving this response on the parties as

Exhibit B.pdf.

APPENDIX H

EXHIBIT C

Exhibit C is attached to the e-mail serving this response on the parties as

Exhibit C.pdf.

writing sample - response to msj

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