PITTSBURGH – A defendant named in a lawsuit surrounding a motorboat propeller accident which seriously wounded a Florida man, has answered the complaint and denied liability for the subject events in question.
Trevor Manko of Key Largo, Fla. first filed suit in the Allegheny County Court of Common Pleas on Sept. 29 versus Steven Penrod of Pittsburgh, plus Mark Huckabee and Leigh Huckabee of Venetia.
“The events herein complained of occurred on or about Aug. 29, 2021, at approximately 5 p.m., on the Monongahela River, near Roscoe, Pennsylvania. On said date and time, defendant Steven Penrod, was the operator of a 2019 Super Air Nautique G23. The aforementioned motorboat is believed to be a 23-foot open motorboat with gas engine and propeller, capable of delivering at least 450 horsepower and 465 foot-pounds of torque,” the suit said.
“At all times material hereto, it is believed, and therefore averred, that the motorboat was owned by defendants Mark Huckabee and Leigh Huckabee. At all times material hereto, defendant Steven Penrod, was operating the motorboat under the direction and supervision and with the permission and consent of its owners. It is believed, and therefore averred, that prior to the event complained of herein, defendant Steven Penrod, had consumed alcoholic beverages, including beer and tequila.”
The suit added that defendant Steven Penrod “had consumed sufficient alcohol such that he was intoxicated and/or was rendered incapable of safely operating or being in actual physical control of the movement of the motorboat.”
“On said date, there were approximately nine passengers on the motorboat, including the plaintiff Trevor Manko, defendant Steven Penrod, defendants Leigh Huckabee and defendant Mark Huckabee, two other adult passengers and three minor-children. At all times material hereto, defendants Leigh Huckabee and Mark Huckabee were in such a position that she could observe the actions of the operator and the passengers of the motorboat and communicate with them. Immediately prior to the incident complained of herein, defendant Mark Huckabee, was attempting to wake surf in the wake of the motorboat,” the suit stated.
“Plaintiff Trevor Manko and other passengers were instructed to position themselves in the bow section of the motorboat to redistribute the weight thereon. It is believed and therefore averred that repositioning the weight of the boat impacts the type of wake created and permits different wake surfing maneuvers to be executed. While plaintiff Trevor Manko was in the bow section of the motorboat, defendant Steven Penrod, suddenly and without warning, operated the motorboat in such a negligent, careless and reckless manner that caused the plaintiff to be thrown from the motorboat and into the water. While plaintiff Trevor Manko was in the water, defendant Steven Penrod, negligently, carelessly and recklessly continued to operate the motorboat and its propeller, causing the plaintiff to be run over and struck with the propeller.”
Among the injuries the plaintiff suffered were the following: Open navicular fracture of the left foot; displaced fracture of left navicular bone extending to articular surface of midtarsal joint; large laceration of the left foot with degloving; large laceration to the left tibia; rupture of extensor tendons, left ankle and foot; procedures for open reduction left navicular fracture; irrigation and sharp excisional debridement left foot open fractures, left mid-tibia wound, skin to bone; and complex layered closure left foot and leg traumatic wounds, 20 cm total; left percutaneous Achilles lengthening procedure with first metatarsophalangeal arthrodesis with calcaneal autograft and extensor hallucis longus transfer and procedure for Achilles reconstruction.
The Huckabee defendants filed preliminary objections in the case on Nov. 17, seeking to strike implications that are integral to demanding punitive damages and any reference to vicarious liability.
“The allegations of plaintiff’s complaint simply assert that Penrod consumed alcohol prior to the accident at issue without setting forth allegations as to the Huckabees’ knowledge of Penrod’s consumption. There are no allegations in plaintiff’s complaint indicating that the Huckabees were present when Penrod consumed this alcohol or witnessed Penrod’s alcohol consumption or any allegations as to the amount of consumption by Penrod. Further, there are no allegations as to the timeline between Penrod’s alleged consumption of alcohol and the accident at issue in this case. Lastly, there are no allegations indicating that Penrod’s alleged consumption of alcohol rendered him visibly intoxicated so as to provide the Huckabees with a reason to know of Penrod’s alleged impairment,” per the objections.
“A fair reading of plaintiff’s complaint simply indicates that Penrod allegedly consumed alcohol at some point in time prior to the accident at issue and that the Huckabees should have known of Penrod’s alcohol consumption. Plaintiff has failed to set forth specific allegations as to Huckabees’ actual knowledge of Penrod’s alleged alcohol consumption. Further, plaintiff has failed to set forth specific allegations as to why the Huckabees should have known of Penrod’s alleged alcohol consumption prior to the incident and their knowledge as to the effect of this alleged consumption on Penrod’s ability to operate the motorboat at issue. As set forth above, punitive damages are reserved for cases in which a defendant’s conduct is so outrageous to warrant punishment. Here, plaintiff’s complaint fails to set forth sufficient allegations supporting a finding of such outrageous conduct on the part of the Huckabees so as to warrant an award of punitive damages against them. Accordingly, plaintiff’s claims for punitive damages, and the associated supporting allegations, must be stricken with prejudice.”
The objections continued that that the plaintiff cannot hold the Huckabees vicariously liable for the actions of Penrod simply because he was operating their motorboat at the time of the incident – and instead, the plaintiff “must allege specific facts of an agency relationship between Penrod and the Huckabees before vicarious liability can attach.”
Defendant Penrod also filed preliminary objections on Nov. 18, seeking that all allegations pertaining to “reckless” conduct or “recklessness” of any kind (which would open the door to punitive damages, if proven) should be stricken.
On Jan. 27, Allegheny County Court of Common Pleas Judge Alan D. Hertzberg overruled all of the defendants’ preliminary objections.
“It is hereby ordered, adjudged and decreed that defendants Mark Huckabee, Leigh Huckabee and Steven Penrod’s preliminary objections to plaintiff’s complaint are overruled and stricken. Defendants Mark Huckabee, Leigh Huckabee and Steven Penrod are ordered to file an answer to plaintiff’s complaint within 20 days,” Hertzberg said.
UPDATE
Defendant Penrod filed an answer and new matter on Feb. 22, which denied liability for the events at issue.
“Any allegation contained in the complaint that was not specifically admitted is hereby denied. Plaintiff is not entitled to any relief claimed in his complaint, including in the Wherefore clauses. Plaintiff has failed to state a claim against Penrod upon which any relief may be granted. Depending on the facts adduced during discovery, plaintiff’s claims should be barred or reduced based upon the applicable theories of assumption of the risk, contributory negligence and/or comparative negligence. Depending on the facts adduced during discovery, plaintiff’s recovery should be barred or reduced based upon the applicable theories of payment, release and/or accord and satisfaction,” the answer stated.
“Depending on the facts adduced during discovery, plaintiff’s claims should be barred or reduced based upon the applicable statutes of limitation and/or repose. Depending on the facts adduced during discovery, plaintiff’s claims should be barred or reduced based upon the equitable doctrines of laches, waiver, estoppel and/or unclean hands. Depending on the facts adduced during discovery, plaintiff’s claims should be barred or reduced by their failure to mitigate his claimed injuries and/or damages. Depending on the facts adduced during discovery, plaintiff’s claims should be barred or reduced to the extent that his injuries and/or damages were caused or contributed to by one or more pre-existing conditions for which Penrod is not liable. Depending on the facts adduced during discovery, plaintiff’s injuries and/or damages, if any, were caused or contributed to by persons or entities other than Penrod and over whom Penrod had no right or duty to exercise control, and for whom Penrod cannot be held liable. Depending on the facts adduced during discovery, plaintiff’s claims should be barred or reduced due to his failure to join all necessary and/or indispensable parties as defendants to this case.”
For multiple counts of negligence, carelessness and recklessness, the plaintiff is seeking damages in excess of arbitration limits of Allegheny County, plus punitive damages, court costs, attorney’s fees and any other relief this Honorable Court deems appropriate.
The plaintiff is represented by Lawrence E. Gurrera II of Gurrera Law, in Pittsburgh.
The defendants are represented by Stuart H. Sostmann and James P. Cullen of Marshall Dennehey Warner Coleman & Goggin, plus William B. Pentecost Jr. and Kenneth B. Danielsen of Cipriani & Werner, also in Pittsburgh.
Allegheny County Court of Common Pleas case GD-22-012418
From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nick.malfitano@therecordinc.com