• 11 in 2011- #2 Litigation Rocks the Sport

    by Serious Offshore

    Our choice for the number two story of 2011 finds us in the courtroom instead of on the water.
    It seems that there’s always some piece of litigation floating around the world of powerboating. Litigation is a fact of life in our present times. No industry or group of people is immune. We’ll leave the discussion of why this trend is curving upward for another time, but for now let’s take a look at some recent events.
    Over the last few years we’ve all read about various boating events landing in court. Often, and sadly, the litigation has centered around operator negligence and in way too many situations included the impairing effects of alcohol. More recently the trend seems to have shifted towards pulling the manufacturer’s into the mix. What really hit squarely home with us and moved this issue way up our list is the pending litigation against Super Boat International, stemming from the recent tragedies at Key West.
    Somewhere along the way a portion of the boating community began to believe that the sport was an intrinsically safe pastime. It’s possible that when technology made boats much easier to use and manufacturers made them more luxurious, owners and operators began to believe they were just cars that floated. Adding to the appeal was the relative lack of rules on the water compared to driving an automobile. Go what direction you want, as fast as you want. The comfort and ease-of-use of modern powerboats has attracted new people to the activity. While that’s very good for our sport and the industry supplying it, it has potential consequences.
    In June of 2011, a California jury awarded $30.9 million in damages to a woman who suffered severe injuries while the passenger of a boat. Niki Bell’s injuries were the result of falling from the boat during a wakeboarding maneuver. According to court documents, Ms. Bell and another female were both washed into the lake as the boat made a 3-to-5-mph turn to retrieve a wakeboarder it was towing who had fallen. As the boat continued its turn, the boat’s propeller struck Bell in the head and struck the other individual in the back.

    Plaintiffs’ lawyers argued that it was a design flaw that caused the boat’s bow to dip into the water, that an excessively large seating area that allowed too many people to get in the front and water intrusion through a forward anchor slot all contributed to this accident. Attorneys for boat manufacturer Mastercraft argued that the operator allowed too many people on board and was negligent in how those passengers were seated. The craft had at the time of the accident a total of ninteen occupants, twelve of which were seated in the open bow seating area. The craft was rated for a maximum of 18 occupants.

    Just this last summer, a North Carolina woman was injured while swimming from the stern of a day-rental boat manufactured by Chapparal. In this case, this woman and several others jumped from the stern while the operator was rafting up with another boat. Believing that the engine was off, the woman began to swim toward the transom. When occupants alerted the operator, his unfamiliarity with the boat caused him to engage reverse instead of shutting the boat off. This caused the boat to back into the swimmer. In a panic, the driver put the boat into forward gear and struck the swimmer again. Chapparal has been named in the suit based on the plaintiff’s attorney’s assertion that the boat was manufactured with features that encouraged swimming from the back of the boat. Litigation against Chapparal and the rental operator is working its way through the North Carolina court system right now.
    These are far from an isolated events. The Fifth Circuit Court of Appeals this summer affirmed a $3.8 million award to a Texas man who’s leg was severed by equipment manufactured by Brunswick’s Mercruiser division in a 2005 accident.
    While not directly related to the type of boats typically found in our sport, these events tend to have ripple effects on the entire industry. As these lawsuits increase in both volume and award amount, every manufacturer’s liability insurance will rise. Every boater’s insurance will rise. Boats and equipment will become more costly. None of this is good for our pastime or the people who provide products to our sport. Not only do these large settlements and awards signal an opportunity to personal injury attorneys, appeals court rulings set these actions into case law as legal precedents.
    While the fatal accidents at Key West just weeks ago are still fresh on the minds of many, the pending litigation surrounding these events certainly isn’t the first to hit so close to home.

    Litigation and awards involving poker run organizers have caused many organizations to give pause when considering their events. Some have even taken to the “Not A Poker Run” poker run approach. This is where the “non-organizer” alerts others of their intention to boat at a specific time from a specified place to various locations and back. Those interested are merely alerted to this and are welcome to follow if they choose. So far we haven’t seen any issue arise from this approach, but we’re also not aware of any accidents occurring at these sorts of events. All it will take is one and we’ll quickly see how the “non-organizer” succeeds at being a “non-defendant”.
    As has been so fervently discussed and argued, mostly by those with very little accurate information about the timelines and facts, the accidents in Key West will likely have significant impact. We expect to see significant changes in requirements imposed on racing and poker run operators. The potential litigation that may be brought by those with stakes in the Key West tragedies will likely cause insurance companies to become even more stringent on the control and requirements for the organizers That is, if they continue to be interested in providing coverage at all.
    This discussion is completely peripheral to what the Coast Guard has to say about events being run on “their water”. And they need neither litigation nor legislation to change their attitudes about these events. Adding to the chill is the potential for supporters of the events, via their payments to the organizers, may have a statutory liability for the broad variety of damages that might occur during one of these events. One settlement, or conceivably one piece of litigation, may be all that’s necessary to send what few sponsors the sport has running away.
    Every reader will have their own opinions on the rights and wrongs of these lawsuits and payouts. But the reality is, juries and magistrates are awarding large sums of monetary compensation for damages in cases where all logic points to the cause being that of the actions of others. The final result could be extremely expensive for us all who love performance boating and competition. Those costs could include the loss of venues or conceivably the loss of organized powerboating altogether, whether racing, poker running or the casual get-togethers of club members. Some of the rumblings are from people and businesses sponsoring Poker Runs, those who are officers of performance boating clubs, and sponsors of other on the water performance events. Many are reviewing their possible liabilities and insurance coverages. Some boaters are even evaluating their inclusion of guests during their individual activities. It would be sad for all of us if our only defense is us to be on our own.