water was rough and choppy. Davidow did not pay any fee for use of the lake for recreational purposes.
On that day, both Davidow and Anderson were driving their boats adjacent to the peninsula at mile marker 23 in an easterly direction. Davidow drove down the southerly side of the peninsula at a distance of about 40 feet from the shore. Anderson was driving down the northerly side along the shoreline. He was cutting in and out (Tr. pp. 25, 27).
Each of them intended to round the point of the peninsula.
As both boats rounded the point, Davidow's boat was proceeding north and Anderson's boat was proceeding south. The speed of the Anderson boat was about 35 miles an hour, and the speed of the Davidow boat was about 20 miles an hour. When each driver saw the other boat, they were approaching each other head-on. Anderson turned his boat to the right and Davidow turned his boat to the left. The boats collided about 40 feet off the point of the peninsula.
According to the Pennsylvania Boating Regulations, published by the Pennsylvania Fish Commission, Davidow should have turned his boat to the right.
Also, the regulations provide that the boaters should have been proceeding at a no wake speed since they were within 100 feet of the shoreline.
A no wake speed would have been about 5 miles an hour or less (Tr. pp. 87). In 1979, the 100 foot no wake rule was in effect on the lake and enforced (Tr. pp. 539, 562). Davidow had read the regulations and was familiar with all of the rules of the lake.
Davidow and Anderson in rounding the danger point of the peninsula within 40 feet of the point and both travelling in excess of the no wake speed assumed the risk of collision.
In the Davidow boat were Paula Davidow and their two children. In the Anderson boat were Mrs. Anderson and their two children. When the boats collided, Paula Davidow's seat broke and she was thrown to the bottom of the boat causing spinal cord damage rendering her a permanent quadriplegic. Gerald Davidow was injured to a lesser extent.
At the time of the accident, Robert and Martha Albright were in their boat on the lake. Mrs. Albright saw the collision between the Davidow and Anderson boats. Mr. Albright drove to the Davidow boat and lifted Paula out of the water which was flooding the boat and handed her and the two children to Mrs. Albright in the Albright boat. The Anderson boat was not flooded and none of the Andersons were injured. Mr. Albright saw to it that Paula Davidow was taken to the hospital.
The collision occurred about 40 feet from the point of the peninsula just about where a danger buoy
had been located for 4 years. If the Corps of Engineers had replaced the danger buoy in 1979 40 feet from the point of the peninsula, boats could be expected to have rounded the point in excess of 40 feet as they had done for 4 years. Thus, the drivers upon sighting each other would have had more time to turn to the right and the accident would not have occurred (Tr. p. 413).
Mr. Albright had been boating on Raystown Lake since 1975. He was a Deputy Waterways Patrolman with the Pennsylvania Fish Commission from 1976 to 1982. He was a regular boater in the lake since 1975.
A danger buoy was in place about 40 feet from the tip of the peninsula at mile marker 23 in 1975, 1976, and 1977 (Tr. pp. 39-41; 157-159). In the spring of 1978, due to ice and high water, the danger buoy floated upstream about 150 yards from the point of the peninsula at mile marker 23 (Tr. pp. 41-42; 159-160).
Mr. Albright observed the buoy 150 yards out of place. The Albrights sailed to the buoy, pulled the anchor up from the bottom of the lake, and replaced and anchored the buoy at about 40 feet off the peninsula at mile marker 23 where they had observed it during the years 1975 through 1977. There was a danger buoy about 40 feet from the point of the peninsula at mile marker 23 during the years 1975 through 1978.
The danger buoy at the peninsula at mile marker 23 was missing at the start of the boating season in the spring of 1979 (Tr. pp. 42-43; 161).
The Corps of Engineers did not replace a danger buoy off that point during the boating season of 1979.
A danger buoy may warn of a specific hazard. It may also have a distinct cautionary significance at sharp curves. The danger buoy which had been placed 40 feet from the point of the peninsula at mile marker 23 would have indicated to a watercraft operator the existence of a dangerous area.
In 1979, the situation presented to the boaters rounding the point of the peninsula from opposite directions was that of a blind curve. The danger buoy which had been placed about 40 feet off the peninsula at mile marker 23 indicated danger from the blind curve and danger from land under shallow water which could not be seen when the water was choppy (Plaintiffs' Exhibits 4, 6, 7, and 11). The risks presented by this dangerous point were great. The severe limitation to visibility was known to the Park Rangers who had agreed to provide, install, and maintain such buoys as were necessary (Plaintiffs' Exhibit 1; Tr. p. 294).
When the danger buoy was in place about 40 feet off the point at mile marker 23 during the years 1975 through 1978, no collision had occurred. In 1978, the estimated boat launches were over 58,000.
Had the danger buoy been in place off the peninsula point in 1979, as it had been during the years 1975 through 1978, the Davidow and Anderson boats would have passed each other in excess of 40 feet from the point and would have been in a position to see each other with sufficient time to have turned to the right and avoided the collision (Tr. pp. 401-402).
As Mr. Albright testified (Tr. p. 413):
". . . when that buoy was there 40 feet offshore, coming down the shore line you could see that buoy a hundred yards before you ever got to the point because it set directly out in front of it.
"Q. And what opportunity, if any, would that give you to see and avoid another boat coming down within roughly the same distance?