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Magistrate’s recommendation challenged in jet boat lawsuit

Defense wants ‘new arguments’ excluded

By: Bennett Loudon//June 6, 2018

Magistrate’s recommendation challenged in jet boat lawsuit

Defense wants ‘new arguments’ excluded

By: Bennett Loudon//June 6, 2018//

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A recent report by a federal magistrate judge in the case of a woman who claims she was seriously injured during a Niagara River jet boat ride in 2016 has triggered an objection from the plaintiff.

According to the complaint, Sarah Witkowski was injured in July 2016 during a ride with her husband, Scott, and their sons.

Attorneys for the defendant, Niagara Jet Adventures, filed a motion for summary judgment, which was argued in December.

On June 1, Magistrate Judge Jeremiah J. McCarthy filed a nine-page report to U.S. District Court Judge Lawrence J. Vilardo recommending the dismissal of a negligence claim, but not a claim of willful and reckless behavior.

According to court documents, Scott Witkowski got a call from Chris Bohnenkamp, the owner of Niagara Jet Adventures, the day after the accident. During the call, Bohnenkamp told Witkowski that the staff should not have put three people — Witkowski, his wife, and son — in a seat together, and he acknowledged that Sarah Witkowski had no way to brace herself.

Bohnenkamp denies that he said those things, but the Witkowskis argued that there is an issue of fact regarding possible recklessness.

“I agree,” McCarthy wrote. “If the jury finds that Niagara Jet Adventures’ staff knew that it was improper to seat three people in a seat but nevertheless allowed that to occur, they could conceivably conclude that such action was grossly negligent or reckless.”

The Witkowskis are represented by Buffalo attorney Christopher J. O’Brien and Houston lawyer Michael Patrick Doyle.

O’Brien submitted objections to McCarthy’s report, claiming the release negligence claim should remain intact.

On Tuesday, James E. Mercante, an attorney representing Niagara Jet Adventures, filed a letter to Vilardo responding to O’Brien’s filing.

The objection to McCarthy’s report “raises new law and new arguments, in violation of the local rules and Magistrate Judge McCarthy’s warning that new arguments and case law will not be considered.”

The Witkowskis’ objections “do raise new legal/factual arguments,” O’Brien wrote.

“Additional legal research revealed the applicability of these sections to the case at bar and it is respectfully requested that the Court address this issue in the interests of justice,” he wrote in the 16-page objection.

In his letter, Mercante asked Vilardo to “strike plaintiff’s reference to new statutes and cases because they amount to new arguments that were not mentioned in the pleadings, nor years of discovery, or the extensive briefs that were submitted to Magistrate Judge McCarthy.”

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