Are boats the new fodder for lawyers

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12_lawyers_02Some contend recent multimillion-dollar verdicts ignore the issue of operator responsibility

Most of us remember the famous McDonald’s coffee case — the one in which a woman who spilled hot coffee on herself in 1992 sued the fast-food giant. A jury awarded her $2.9 million, although the trial judge substantially reduced the award and the parties eventually settled.

Some in the marine industry think boatbuilders could be on their way to becoming the next McDonald’s, based on recent lawsuits that have made headlines.

In California, a jury awarded more than $31 million to two women injured in a 2006 wakeboarding accident involving a MasterCraft X45. The jury called the boat design defective and found MasterCraft 80 percent responsible for the accident.

12_lawyers_01In Texas, the U.S. Fifth Circuit Court of Appeals affirmed a decision handed down last year by a jury that found Brunswick Corp. partially liable for a 2005 accident on Lake Austin in which a propeller severed a teenager’s leg. Brunswick was ordered to pay $3.8 million in medical expenses and damages in that case. And in Florida, Crownline settled a lawsuit with four victims of a 2009 boat crash in Palm Valley, Fla., for an undisclosed amount. In that case, the 22-footer struck a workboat moored in the Intracoastal Waterway, killing five people and injuring nine.

The cases have many in the marine industry crying foul, arguing that boat owners and passengers aren’t meeting their personal responsibilities — for example, adhering to the Rules of the Road and properly operating their vessels. “It’s clearly hard to make anything that’s drunk-proof and lawyer-proof, and that’s going to be a real challenge going forward,” says John Dorton, president and CEO of MasterCraft Boat Co. “It is a little disconcerting to see how really wrong decisions can come about, and I think ultimately consumers will suffer for this, with high legal expenses and just the cost of doing business … incorporated in product costs going forward, and it seems unnecessary.

“I’m afraid it probably sets some precedents where other legal teams might look for opportunities in our segment,” he adds. “I certainly see it in power sports and other consumer goods segments, where the plaintiff’s legal teams tend to gang up on an industry.”

MasterCraft

In June, a jury in Butte County, Calif., found that MasterCraft was 80 percent to blame for injuries a woman suffered in a wakeboarding accident five years ago on Lake Oroville and awarded her more than $30 million. MasterCraft plans to appeal, Dorton says. Lawyers for Niki Bell, now 27, say the MasterCraft X45 has a design flaw that caused the bow to partially submerge during a low-speed turn and dump Bell and another woman into the water. Bethany Wallenburg, whose age is unknown, the other person in the case, was awarded more than $500,000.

The two women fell into the lake July 9, 2006, as the boat made a 3- to 5-mph turn to retrieve a wakeboarder it was towing, according to evidence at the trial. As the boat continued its turn, the propeller slashed Wallenburg across the back and struck Bell in the head, fracturing her skull. The prop sliced through Bell’s frontal lobe and she lost her left eye.

Along with the 80 percent of responsibility the jury assigned to MasterCraft, boat operator Jerry Montz, now 33, was found liable for 20 percent of the injuries Bell and Wallenburg suffered. According to evidence presented at the trial, Montz was drinking at the time of the accident and registered a blood-alcohol level of 0.04 percent. He was arrested and later pleaded no contest to negligent operation of a watercraft, according to his lawyer.

Plaintiffs’ lawyers argued that a design flaw caused the front end of the boat to partially submerge. They also say the boat was not tested properly, an allegation MasterCraft denies.

“The boat design is a Frankenstein, a combination of two different boat models,” Bell’s lawyer, Roger Dreyer, said in a statement. “It’s remarkable that no one was killed or that more people were [not] injured.”

The defense said Montz allowed too many people, 19, aboard a boat rated for 18. Moreover, Montz allowed 12 passengers to sit in the bow.

Dorton says the incident was an “unfortunate accident” and that the two women were victims of poor decisions by the skipper, rather than a faulty vessel. “We’ve calculated over 200,000 safe boating days on the X45, with zero other incidents,” he says. “It’s clear that there’s no need to change anything on the boat.

“It was a jury of non-boaters, and so I think they just did not understand boating. Clearly, the evidence showed that the boat was overloaded. The bow, in particular, was overloaded, people were sitting in non-seating areas and there weren’t enough life jackets on board,” Dorton says.

Dorton notes that the group spent hours on the boat without a problem and that the accident occurred when they overloaded the bow and continued to throttle into a wave for as much as eight seconds. “We saw it as 100 percent operator error and neglect,” he says. “The operator made several bad decisions that day, several of them illegal and others just in poor judgment.”

Brunswick

Brunswick Corp., on behalf of its Mercury Marine and Sea Ray divisions, is asking for a rehearing in a case in which it was found partially liable for a 2005 accident on Lake Austin in Texas in which a propeller severed a teenager’s leg.

The Fifth Circuit Court of Appeals in May affirmed a decision handed down last year by a jury that Brunswick was partially responsible for the accident. Brunswick would not comment on the request for a rehearing because the case is pending.

Robby Alden, an attorney for the plaintiff, Jacob Brochtrup, says that “historically, those [rehearings] are very rarely granted,” especially in a case with a unanimous opinion, such as this one.

In court papers filed June 10, Brunswick says the appeals court’s decision was “mistaken in at least two important aspects.”

First, the “panel has been misled into giving Brochtrup (the plaintiff) the benefit of evidence that he never presented and which the jury never heard nor saw. As a result, Brochtrup has been allowed to prevail without offering evidence on the required element of his claim — that is, the requirement that he provide this recreational boat, as designed, was unreasonably dangerous under the Texas risk-utility test.”

Second, according to Brunswick, the “panel has not applied the correct standard of review to assess the error appellants have identified in the trial court’s charge. The charge encouraged the jury to believe that Brochtrup did not have to prove that this boat, as designed, was unreasonably dangerous under the Texas risk-utility test. Instead, the charge wrongly suggested that, beyond proving the cause of his injury (which was never in dispute anyway) Brochtrup needed to do no more than suggest a safer alternative design would have prevented his injury.”

On the day of the accident, Brochtrup, who was 18 at the time, and three others were in a 17.6-foot Sea Ray powered by a 135-hp MerCruiser sterndrive. When one of the tow ropes fell into the water, Brochtrup  jumped in behind the boat to retrieve it, according to court documents. The driver put the boat into reverse to stop its forward motion and backed over Brochtrup. The propeller struck his right leg, which was ultimately amputated at the hip.

The case went to trial three times. The first two juries were unable to reach a verdict, but the third concluded that there was a design defect and awarded damages to Brochtrup. Jurors ordered Brunswick to pay $3.8 million in medical expenses and damages, finding that it shared more than half the blame for the accident. Jurors found that Brochtrup also was responsible, as was the driver of the boat.

Crownline

In May, it was announced that lawyers for five victims of a fatal 2009 crash in Palm Valley, Fla., settled their lawsuit against Crownline Boats. Terms of the settlement are confidential and Crownline did not return calls for comment by press time.

16_lawyers_03Three injured people and representatives of two victims who died sued the boatbuilder in federal court shortly after the accident, arguing that the design of the Crownline 225BR was inherently unsafe. The 22-footer struck a workboat moored in the Intracoastal Waterway, killing five people and injuring nine.

Maritime lawyer Rod Sullivan declined to comment, but he said when he filed one of the lawsuits that Crownline promoted the boat as being capable of safely transporting 12 people. That means five have to sit in the bow, forward of the boat’s windscreen. State and federal maritime officials consider that unsafe, he says, because it subjects those passengers to ejection and blocks the driver’s view, according to media reports. Several victims were thrown from the boat into the side of the workboat.

There were 14 people on the boat, but Sullivan says that did not contribute to the accident. He says witnesses told him passengers on the bow obstructed the driver’s view. The driver was inexperienced, but was at the helm because she was sober, Sullivan says.

This article originally appeared in the August 2011 issue.

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