The lawsuit stemmed from an incident that happened around mid-afternoon on Aug. 27, 2007. The defendant, Bangha Bandu Baidya, while operating a speed boat, drove over the plaintiff, Pedro Pangelinan Pinaula, who was then fishing in the waters off Micro Beach.
The plaintiff said because of this incident he “suffered both physical and emotional injury, including shaking, difficulty walking, persistent pain and numbness in his left arm and hand, interference with sleep, loss of strength, and mobility of his left arm and hand, and a chronic fear of boats and of the sea.”
Senior Judge WM. Fremming Nielsen, however, ruled that Pinaula and Baidya, “acted in a manner that fell below the standard of a reasonable person.”
Nielsen said the submission of Pinaula’s motion to “offer evidence after the court made an oral ruling” in the case, “is untimely and will not be considered because the defendant did not have the opportunity to review or refute the evidence and the evidence is offered following a decision in the case.”
The court said Pinaula relied on his white cooler to mark his position for boats without another type of marker, and this “falls below the standard of due care.”
Baidya, while piloting the boat, also “displayed a moment or two of inattention which led to him running over Mr. Pinaula,” the court said.
Nielsen conducted the bench trial on Dec. 6 and 7.
Joseph E. Horey, Pinaula’s attorney, asked the court “to take note that the blue-and-white alpha flag (or ‘A’ flag) is an internationally recognized signal for a diver below, including in Australia, a top scuba destination.
Horey said although in the U.S. “the alpha flag is more generally used for a vessel carrying divers, with the divers themselves using the red-and-white flag, the alpha flag is officially authorized in at least three states for non-vessel use by divers.”
According to Horey, “such broad and official recognition and use of a blue-and-white flag for the very purpose of identification and protection of divers in the water indicates that [Pinaula’s] own white [cooler] and blue boogie board are not inherently inferior to a red-and-white dive flag for boaters and protect his own safety.”
The court should amend its finding of contributory negligence and allow Pinaula to recover the full amount of the damages found by the court to have been incurred by him, Horrey said.
The judge ordered Baidya and his employer, Seahorse Inc., to pay Pinaula $3,600 in damages, but the plaintiff’s remaining claims were dismissed with prejudice.
Attorney Richard W. Pierce represented the defendant.
