posted 04-07-2010 10:00 AM ET (US)            

http://www.statesman.com/news/local/ jurors-find-boat-manufacturer-partly-liable-527456.html

The plaintiff was injured by a Mercury product when he jumped off the stern of a boat whose motor was running, and the operator of the boat put the boat in reverse and ran over the plaintiff. The federal jury in Texas found that Mercury was to blame for the majority of the injury the plaintiff suffered as a result because "the boat and motor did not have safety devices, including guards or covers, to prevent [the plaintiff] from becoming entangled or stuck."

The 2002 Supreme Court decision which is mentioned in the article is summarized here:

http://www.oyez.org/cases/2000-2009/2002/2002_01_706

posted 04-07-2010 02:57 PM ET (US)         

quote:

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When is someone going to stand up for their own actions (good or bad)?

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posted 04-07-2010 03:54 PM ET (US)            

While adding a propeller guard will not eliminate all boat-motor-related injuries, it will eliminate most of the chopping-up, laceration-type injuries. The additional cost to a add some sort of propeller guard to most marine engines will be marginal. Performance will most likely suffer, again, marginally. However, don't believe for a second that propeller guards are not coming soon.

posted 04-07-2010 04:44 PM ET (US)            

gnr: It's sad but I kinda agree with you, they are legal bookies (thiefs) they make money if you win or loose. Even though I do not totally blame the lawyer, he's just out for the buck, it's the stupidity of the people on the juries that are picked for cases like this.

Judgement by your piers should be the next 12-15 people in line for jury duty, no if's and's or but's. No more jury picking, you get what you get.

posted 04-07-2010 06:00 PM ET (US)            

[Unknown acronym] our society really has no chance to survive as we all feed off one another. Sad, really sad.

I was a witness once where a lady ran a stop light and killed a guy on a motorcycle. She clearly ran a red light, I know what I saw.

Here lawyer argued and won the case saying it was the lights fault and the city that installed the lights. The timing of the green, to yellow, to red sequence.

posted 04-07-2010 10:18 PM ET (US)            

After that statement he went on to tell me how he and his wife visited Ireland during a vacation fairly recently. During one stop, at an unnamed business establishment, his wife asked the proprietor if she could use the toilet facilities.

The man politely declined her the permission to use the facilities. After an awkward pause, he apologized and went on to explain that the only time he had been sued, was by a US citizen. This person had asked to use the facilities and, while using the facilities, slipped on a wet floor and fell, injuring themselves.

That story pretty much sums up the way that the society of our county has degenerated into a collection of worthless victims, being victimized by anything, everything and everyone, with "personal responsibility" nothing more than nine syllables of sound and not even a faint memory of what the sounds used to mean.

I apologize if my cynicism shows through the candy coating.

posted 04-08-2010 09:36 AM ET (US)            

Actually most plaintiff's attorneys don't get paid a cent unless their clients prevail, and in fact end up eating weeks or months of their work time and tens of thousands of dollars in costs if they lose (in this case, costs probably exceeded six figures).

Just to keep the discussion somewhat fact-based ;-)

posted 04-08-2010 12:55 PM ET (US)            

My observation/question is more about the legal climate that creates, supports, and nurtures, fortune hunters in product liability suits.

CA has population of some 37 or so million, and has 200,000 or so registered with the CA bar association. Japan has a population of 128 million or so, and some 23,000 or so lawyers. (Links available on request).

What can be inferred from this? I have my opinions, and they are not favorable of the product liability "machine" in OUR country.

posted 04-08-2010 01:20 PM ET (US)            

I did a quick google and (as someone mentioned), the guards do exist. Also, I found a site showing a long list of lawsuits regarding propeller guards (or the lack thereof), not necessarily against the manufacturer of the boat or motor:

http://www.rbbi.com/pgic/pcases/pcases.htm

posted 04-08-2010 01:41 PM ET (US)            

quote:

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The merits of our legal system aside, does anyone have any first-hand experience with one of these prop guards?

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If I'm reading you right, you are asking a tech question, which I am taking to be outside the scope of this thread title... but until/unless Jim deems it as such, I'll play along...

In propulsion systems, shrouding a fan is not known to increase efficiency. Anecdotally, you can look at coming propfans in aircraft propulsion. They do not have a shroud over the thrust producing portion of the engine. I leave as self evident that going even further, and putting a screen over the intake of the shroud would further decrease efficiency... my guess is, by a LOT.

quote:

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In fact, for the same fuel consumption, a propeller-driven aircraft can produce greater thrust [than a jet].

---

Source:
http://en.wikipedia.org/wiki/Propfan

posted 04-08-2010 02:11 PM ET (US)            

However, if you were to simply put a metal tube around the outside of the blades (not blocking the inflow or outflow), it seems reasonable to think that that would not affect the power. It would also not prevent injuries where the limb was put either into the inflow or outflow, but it would prevent the limb from being sliced by the edge of the prop.

posted 04-08-2010 02:15 PM ET (US)            

I look at almost everything we use and how things have changed for safety over the years. I look at my Dads 68 ford pickup for example. The engine bay is wide open (which I like) for accidents due to fan belts and blades. I look at the lack of air bags, shoulder belts, metal dash and everything else that would cause injury in a wreck.

Its interesting that the things I like (or lack of things) about the pickup would work against me in a crash or someone inexperienced working on the engine.

Lawn mowers are safer with a clutch release for the blade, barbeques, portable heaters with tilt turn off, almost everything has gotten safer,,,, except outboards and stern drives.

Think about it, sharp blades just spinning down there, out in the open, ever since Ole Evinrude put out the first outboard.

Admit it, if you are boating with family and kids, its a concern and you are watching every minute. Heck, even with the engine off, I turn the outboard away from the boarding ladder so someone doesn't scrape a leg if they slip.

I see something like this propeller guard on the Military Evinrude multi fuel coming into the market eventually.

http://gov.evinrude.com/

Would I want it, probably not, but I would appreciate it in the event of accident? Absoutely

posted 04-08-2010 02:34 PM ET (US)         

quote:

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The question is, would that tube impede the performance of the prop?

---

I don't think it's that simple.

Sure, in a test tank simply measuring thrust the tube may not decrease thrust to any significant degree.

In the real world the drag created by the extra material in the water would surely decrease performance.

I believe by a great deal.

We take care to set our motors at just the right height to keep the prop in the water while getting as much lower unit as possible out of the water.

posted 04-08-2010 02:39 PM ET (US)            

These gadgets sure look like they would induce a lot of drag. They are also expensive. I can’t see making them required equipment on all boats because of the poor judgment of couple of retards.

On another note – Yes, I do believe this judgment is a travesty. Yes, we do have a litigious society. Yes, Left wing lawyers and judges are to blame for this and many other ills in our legal system and unfortunately they form the majority.

Cases like this happen once in a while, but by and large, I still think we have the best legal system in the world. Winston Churchill said something to the effect: “Democracy is the worst form of government, except for all the rest.” On occasion, jury decisions do defy the imagination, but they are the exception and not the rule.

posted 04-08-2010 02:57 PM ET (US)            

The way I would see it is that using a guard around a prop can be a big problem when it comes to seaweed season and slow trolling in back bays. Any sort of guard can easily catch those items and possible cause an overheating situation.

I guess they can ban props and make everyone get a jet drive... BAHAHAA... or we can just learn from other manufacturers out there. Put a warning label on it somewhere and put a special area about it in the product manual. Keep hands, feet, body, head away from running propeller!!! Death or severe injuries will result.

posted 04-08-2010 03:25 PM ET (US)            

My father's respect for outboards was basically the same - no one enters the water or the boat (from the water) while the key is even in the ignition.

Both firearms and outboards are, frankly, deadly weapons and deserve to be treated with the greatest respect. We have yet to have any accidents either with firearms or with outboards.

posted 04-08-2010 03:32 PM ET (US)            

quote:

---

I see something like this propeller guard on the Military Evinrude multi fuel coming into the market eventually.

http://gov.evinrude.com/

---

I see that only one of the four motors in your link has a prop shroud. That tells me that that particular motor is for very specialized situations where for some reason the speed and efficiency of a normal prop are subordinate to a special mission requirement. I'll also be you a dime to a dollar, the "prop" inside that shroud has characteristics more like a jet-drive impeller than a prop as we know them.

quote:

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Would I want it, probably not, but I would appreciate it in the event of accident? Absoutely

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Then you should have every right to buy one that way. And the rest of us should have every right not to. It should be our choice. Not forced upon us by "defensive engineering".

I judge the frivolity of our lawsuits by their effect on products in other developed countries. What do you want to bet that the "export" models we send to other seafaring countries do not have shrouded props?

posted 04-08-2010 05:08 PM ET (US)            

I've dived around the world. I've seen prop guards on dive
skiffs with just one operator, and they were there to keep
from chopping up the coral (and probably coral from chopping
up the prop).

When you have folks in the water, near the stern, ENGINE IS
OFF!

posted 04-08-2010 07:29 PM ET (US)            

Education and common sense is the solution,..
not additional regulation.
"Natural selection" is always waiting......

posted 04-08-2010 08:22 PM ET (US)            

For those of you whining about "scum sucking lawyers" and purported left wing Austin juries, think about this: if we had a rational single payer health care system in this country, like those in almost every other so-called civilized, industrialized "first world" nation, the plaintiff's medical expenses would have been taken care of as a matter of course, and the jury's award of $364K for injuries of that severity would have been considered relatively low. Just something to think about.

Tony

posted 04-08-2010 09:26 PM ET (US)            

However, notwithstanding that guidance, let me say that you can make an entirely reasonable conclusion from the complete absence of any sort of propeller shroud as a standard accessory on an outboard motor that there is no possibility that a propeller shroud would enhance performance. Outboard motor sales are a very competitive market and performance is a primary consideration. If a shroud around a propeller increased performance, you can reasonably conclude that such devices would routinely be included as standard equipment.

It is also quite a reasonable argument to say that a propeller shroud would cause a likely increase in the risk of injury for a swimmer or person in the water who reached an arm or leg into the propeller, because the shroud would tend to entrap the person's arm or leg and magnify the injury.

I suspect that if propellers had a shroud, tort lawyers would file lawsuits seeking damages for their clients who were injured precisely because the propeller had a shroud. As Gulliver observed in his travels, there was

"...a society of men among us, bred up from their youth in the art of proving by words multiplied for the purpose, that white is black, and black is white, according as they are paid. To this society all the rest of the people are slaves."

Jonathan Swift wrote that in 1726, and you can see that the notion that lawyers are not quite the embodiment of perfection in a society is not a new concept.

posted 04-08-2010 11:26 PM ET (US)            

quote:

---

if we had a rational single payer health care system in this country, like those in almost every other so-called civilized, industrialized "first world" nation, the plaintiff's medical expenses would have been taken care of as a matter of course

---

posted 04-09-2010 02:07 AM ET (US)            

Second, I don't do product liability work, so I can't answer intelligently about that very specialized area of the law. But I'm pretty sure that there doesn't have to be a finding of "intentional acts" on the part of a manufacturer to establish product liability, hauptjm. Several other CW members are active attorneys, any one of whom can give a more definitive answer than mine concerning these matters.

And folks, this case at the trial court level does NOT set precedent; let's wait until it makes its slow way through the appellate process to see how everything shakes out.

Tony

posted 04-09-2010 08:42 AM ET (US)            

In a Florida case which was discussed previously here, the finding of the jury was in favor of the outboard manufacturer. They were not held responsible for the injury that occurred when a boater ran over his wife with the propeller. There was evidence of a lot of drinking in that case.

This case is perhaps the first trial in which a jury found the outboard manufacturer to be at fault--and in this case the majority of the blame went to the outboard manufacturer--for the injury that resulted when a boat operator drove his boat over a person in the water.

Since c.2002 it has been possible to bring this sort of action against an outboard manufacturer, but until now no one has been successful. This trial's outcome will probably encourage similar lawsuits.

posted 04-09-2010 10:51 AM ET (US)            

The following is an excerpt of the key instructions given to the jury at the conclusion of the trial:

quote:

---

Plaintiff has the burden to show there was a design defect in the 2003 17.5’ Sea Ray boat powered by Mercury Marine’s MerCruiser 135 hp Alpha stern drive unit involved in this accident at the time it left the possession of Defendants Mercury Marine and Sea Ray that was a producing cause of the accident resulting in his injury. A “design defect” is a condition of the product that renders it unreasonably dangerous as designed, taking into consideration the utility of the product and the risk involved in its use. The “product” in this case is a 2003 17.5’ Sea Ray boat powered by Mercury Marine’s MerCruiser 135 hp Alpha stern drive unit.

To show a design defect, the Plaintiff must prove by a preponderance of the evidence:

(1) there was a safer alternative design for the product; and,

(2) the defect was a producing cause of the personal injury for which the Plaintiff seeks recovery.

“Safer alternative design” means a product design, other than the one actually used, that in reasonable probability “(a) would have prevented or significantly reduced the risk of propeller injuries without substantially impairing the product’s utility; and (b) was economically and technologically feasible by the application of existing or reasonably achievable scientific knowledge at the time the product left the control of the manufacturer or seller. You are further instructed that in order to be a safer alternative design, the overall safety of the product must be considered. It is not sufficient that the alternative design would have reduced or prevented the harm the Plaintiff suffered if the alternative design would introduce into the product other dangers of equal or greater magnitude.

“Producing cause” is a cause which is a substantial factor in bringing about an injury, and without which the injury would not have occurred. There may be more than one producing cause.

---

posted 04-09-2010 12:01 PM ET (US)         

quote:

---

A “design defect” is a condition of the product that renders it unreasonably dangerous as designed, taking into consideration the utility of the product and the risk involved in its use.

---

This is the only thing I see in those instructions that pertain to performance. There seems to be a lot of gray area there. If I were on that jury, and being a boater, I might determine the definition of “utility of that product” differently than a non-boater and thus be less inclined to think a 10% reduction in performance more “substantial” than the non-boater.

posted 04-09-2010 12:13 PM ET (US)         

"inclined to think a 10% reduction in performance more “substantial” than the non-boater."

posted 04-09-2010 12:15 PM ET (US)            

quote:

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He had been celebrating the July Fourth weekend wakeboarding with three friends at Emma Long Metropolitan Park when the accident happened. Brochtrup had just finished his turn on the wakeboard when a tow rope popped off the back of the white Sea Ray ski boat.

Brochtrup jumped out of the boat to grab the line. Unaware that Brochtrup was in the water behind him, 18-year-old driver Patrick Houston put his family's boat in reverse.

---

quote:

---

"I think the amounts for the award were fair," [plaintiff's attorney] Alden said. "I'm happy about it. Hopefully, they will start making a change to protect people."

---

There is no change that they can make...you can't fix stupid.

#1 - the victim made a conscious decision to jump off the back of a boat which is propelled from an engine located in the back of the boat. Since he had just climbed aboard the boat after wakeboarding, he was aware of this, since he stared at the propulsion unit just below his tow rope for the duration of his time on the wakeboard.

#2 - the vessel operator (why wasn't he named in the suit?!) failed to maintain situational awareness for his surroundings and where his crew was.

A tragic accident, for sure, but hardly a faulty product. The vessel was not designed to be operated safely in reverse with a person in the water. There are no materials that I have EVER seen that recommend operating the vessel in reverse with a swimmer in the water at the stern. EVER.

posted 04-09-2010 01:14 PM ET (US)            

Accidents happen.

Everybody knows that boat motors can be dangerous. The jury instructions cited above presuppose the product at issue is dangerous. The issue to be decided is whether the product is unreasonably dangerous.

In order to determine whether a product is unreasonably dangerous, the jury is called upon to decide whether it is technologically and economically feasible to make the product substantially less dangerous without changing the fundamental character of the product.

In order to make its determination, the jury is presented expert witness testimony from both sides. Mercury Marine's expert witnesses undoubtedly argued that propeller guards were too expensive, that propeller guards hampered performance, and that propeller guards don't do a sufficient job of preventing injuries. The plaintiff's expert witnesses, on the other hand, would have argued that a propeller guard which would substantially reduce the risk of injury could be cheaply installed on the motor. The outcome of the case tells you which experts the jury found more credible. The jury in this case clearly believed that an effective propeller guard could have been installed on the motor for a reasonable price, and that if a propeller guard had been installed the plaintiff would not have been so seriously injured.

posted 04-09-2010 01:45 PM ET (US)         

Dave is saying that this was entirely on the "victim" and the operator and the scum suckers never should have had the chance to manipulate a jury.

posted 04-09-2010 02:03 PM ET (US)            

quote:

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the scum suckers never should have had the chance to manipulate a jury.

---

Why does everybody always assume the plaintiff's lawyers attempted to "manipulate the jury" but the defendant's lawyers did not?

Mercury Marine's lawyers in this case were highly regarded attorneys from highly regarded law firms. They most likely had more resources at their disposal than did the plaintiff's lawyers. I don't know if jury consultants were used by either party, but if only one of the two parties used a jury consultant, my money would be on the defendant. You also need to keep in mind that Mercury Marine has defended dozens of these lawsuits, so their lawyers probably had more experience with the issues that were in dispute. If the deck was stacked in any direction, I would say that it was stacked against the plaintiff - no plaintiff had ever won a case like this before.

posted 04-09-2010 02:34 PM ET (US)            

My point is simple. Operating machinery has inherent risks. Regardless of the design (dangerous, safe, or other), the owner CHOSE to purchase THIS product. The occupant (victim, in this case) CHOSE to go out in the craft, and to jump into the area where the propeller is.

The operator FAILED to take note of his surroundings and engaged the propeller - where his buddy was in the water.

Tragic, sad, heartbreaking.

The machinery in this case did not fail to operate as designed. It apparently operated exactly as tens of millions of other vessels operate. What was different than the hundreds of millions of times others have safely operated similar vessels in the past year? What is different than the tens of millions of times others have gone skiing behind similar craft in the past year?

Two things:
The operator failed to take care to ensure there was nothing in the way, and the victim jumped into the water with the engine running and did not notify the operator that he did so.

There may or may not have been mitigating circumstances (Alcohol has been mentioned, but I didn't see it in the article I read, and I have questions about how if the operator had had any boating safety courses...), but the fact remains that the operator engaged the propeller without ensuring that the path was clear.

Nobody FORCED these two to operate this vessel.

I was not on the jury, and so I can't comment about their knowledge of boats or boating, or the testimony they heard. Assuming they made a correct finding, I'd be interested to see the manufacturers of propeller guards to leverage those expert findings/testimony to promote the benefits of their products.

So far, I'm not seeing it.

I'm not criticizing lawyers or the system - it's the best we've got and it's among the best in the world. I just remain unconvinced that Brunswick has liability.

Just like I don't think cigarette makers have liability for your lung cancer. Nobody forces anybody else to smoke three packs a day...and it doesn't take a rocket scientist (or even a college degree) to figure out that your body wasn't designed (or evolved) to breathe smoke.

No one forced them to buy a stern drive boat to use for skiing. If this design is so unsafe, anybody with half a brain would have purchased a jet-drive or inboard boat to use for skiing purposes, and in the absence of that, taken high precautions to ensure the safety of the passengers.

Since the boy who was driving was only 18, perhaps his parents are to blame for not training their son on the proper operation of the unsafe vessel they had purchased for family use?

What you're seeing (reading) is one of the reasons that I rarely let others borrow my boat without being present. Too much risk of a bonehead mistake unless I trust the individual as a very skilled and safety-conscious operator.

Incidentally, this should be required reading for EVERYONE before they get a boating permit. Heck, perhaps even a "book report" on it to make sure they get it.

http://www.firstcoastnews.com/printfullstory.aspx?storyid=144473 Click the link for the full report at the bottom of the scene.

posted 04-09-2010 03:10 PM ET (US)            

There have been some very informative tomes in this thread about how the system works. Thanks for that. It has only re-affirmed and put in formal terms, what most of us already knew from a simple "smell test"... that our product liability system is an obscene insult to free people.

When I start seeing the French, who are the most tolerant (of outrage), pushovers in the developed world, forcing prop guards, I'll take another look at re-evaluating my position.

posted 04-09-2010 03:41 PM ET (US)            

Even jet ski's and jet drive boats aren't immune from frivolous lawsuits. My 04 Yamaha GP800R's jet puts out around 800 lbs of thrust in the jet stream from a 120 HP engine. I just don't drive it like a coked up monkey.

http://www.mallaw.com/product-liability/jet-ski/

posted 04-09-2010 03:41 PM ET (US)            

Since the boaters on this website see this case as an attack on their boating rights, lets use an example with a different product to examine the concepts at play here. Years ago lead-based paint was common. It was eventually learned that kids were eating paint, and the lead in the paint was causing health problems, learning disabilities and blindness. The laws were changed, and lead-based paint is no longer allowed to be used in homes or on toys. When lead-based paint was outlawed, new paints were developed which more expensive and, at first, less effective. But manufacturers eventually developed new non-lead-based paints that were nearly as good or better than their lead-based predecessors. Everybody now pays more for paint, but the health problems and learning disabilities caused by the lead are no longer as big a problem as they once were. Applying your argument from above, it appears that your approach to lead-based paint would be that it should still be legal because a person would have to be an idiot to eat lead-based paint – everybody knows that it causes health problems, learning disabilities and blindness. Taking your argument above one step further, you would argue that lead-based paint should still be legal because people used lead-based paints for centuries, and most people did not develop health problems, learning disabilities or blindness as a result of using lead-based paint. While your arguments would essentially be correct, I doubt that you would find many people who would agree that lead-based paint should still be legal.

Now, returning to the boating case, let’s assume the boat in question came equipped from the factory with a propeller guard. The same accident occurs – the kid jumps off the back of the boat, the other kid puts the boat in reverse and runs over the kid in the water. The kid in the water hits the propeller guard and gets a few cuts, scrapes, bruises, and maybe even a broken bone. But he doesn’t get his leg chopped up, and he doesn’t end up having his leg amputated. Guess what? The kid probably doesn’t sue, and you probably never hear about the case. More importantly, Mercury Marine most likely avoids all liability. The injured kid and the boat operator are still at fault, and its possible that there might be a lawsuit between them, but damages for a broken leg and some bruises would pale in comparison to damages for the loss of a limb. The chances of anybody successfully suing Mercury Marine under these circumstances would be almost zero.

There are reportedly hundreds of cases per year involving people seriously injured by spinning boat propellers. There are also technically and economically feasible propeller guards which are apparently readily available in the marketplace. So the question becomes, “Is it reasonable or unreasonable for Mercury Marine to not include propeller guards on the boats that it sells?” (or in other words, are Mercury Marine motors without propeller guards just “dangerous”, or are they “unreasonably dangerous”?). Here, the jury found that failure to include a propeller guard was unreasonable.

posted 04-09-2010 03:42 PM ET (US)            

I disagree. While there are abuses, in a society where faceless multi-national corporations enjoy ever more power, and where their directors, CEOs, and upper level management personnel are effectively indemnified against personal liability and personal responsibility for their misdeeds, product defect/product liability lawsuits are one method of leveling the playing field to a tiny degree for the consumer.

You historians out there know what it was like when business and corporate power was entirely unchecked, back before some of the rational reforms of the Theodore Roosevelt era around the turn of the nineteenth century. Legislation helped, as did the development of product liability law. Unless Peter equates freedom with right wing anarchy (with its concomitant total absence of constraints on the corporations), even he must admit that some reasonable laws must be in place to curb corporate excesses.

Again, I don't care for this case, but let's not throw the proverbial baby out with the proverbial bath water. Some of you folks here might automatically trust big business and multi-nationals to care about the safety of consumers more than they care about their bottom line. I sure don't, and I believe that history supports my position.

posted 04-09-2010 04:00 PM ET (US)         

quote:

---

Why does everybody always assume the plaintiff's lawyers attempted to "manipulate the jury" but the defendant's lawyers did not?

---

No such assumption on my part.

The difference is that the defendant's lawyers were forced to "play the game" because of a suit brought by the plaintiff's and their lawyers. A suit which think should never had been brought up in the first place.

No matter which side your on when it gets to the point of a jury trial it is all about manipulating the jury.

And for the record.

Of course I don't believe that all lawyers are of the scum sucking subset that gives the profession a bad name.

posted 04-09-2010 04:05 PM ET (US)            

Young children aren't allowed to operate boats. Teenagers must obtain a boating safety certificate where they learn about the dangers of boating and safe operation of their vessels.

I didn't miss the point. I just don't think the point is valid.

But, I'm not on the jury, and there you go. Clearly I represent the minority opinion of this individual's peers, who found in his favor.

:)

I think it was a mistake in finding the majority of fault on the manufacturer. I think that the verdict will be overturned and I hope that it is.

I do feel bad for this young man. It was a tragic accident. I also feel bad for his friend who was operating the boat. While I don't hope he is financially ruined, I do hope that the psychological effects of this tragic accident have ended up causing him to be a more cautious and safety-conscious boater...without ruining his life.

If people are so concerned about the safety of their boats, they should install propeller guards - for their safety and the safety of their passengers. These devices are commercially available. It's a wonder that you can sell a motorcycle without a helmet....heck, even a bicycle. I get nasty looks all the time when I ride my bike with no helmet. Guess what? The bike is not inhernetly unsafe just because it doesn't have an auto-helmet-putter-on feature to ensure that the rider is wearing one.

posted 04-09-2010 04:13 PM ET (US)         

I wonder if the families of those football players considered suing the anchor company for making a unsafe product.

posted 04-09-2010 04:29 PM ET (US)            

I am against mandatory (legislated) seat belt use in automobiles.

I think you are stupid not to wear them, but it's your right to be stupid.

I think that the markets can better enforce seat belt use. I.E. no insurance coverage if you didn't wear one, etc.

However, though I introduced the topic, it is slightly off the mark in regards to the case being discussed.

My point is this: if you want to be insulated and safe from all harms and risk, live in a bubble. Just remember that bubbles can pop.

There is good reason that the phrase "land of the free..." is accompanied by "...and the home of the brave."

Takes some guts to own up to your responsibility for your own life, your own safety and the safety of those around you.

Be brave. Stay free. Be happy.

posted 04-09-2010 04:31 PM ET (US)         

So if I say, "we need some rain" you take that to mean I am calling for worldwide floods on a biblical scale?

posted 04-09-2010 04:36 PM ET (US)            

I don't have a propeller guard on my boat, and I have no intention of installing one anytime soon. I'm not in favor of propeller guards, nor am I against them. The point of all of my posts above was not to advocate for or against propeller guards. Rather, it was to try to explain to people here that this lawsuit was not some kind of crazy aberration or so-called "frivolous lawsuit". Whether or not you agree with the outcome, this case had a reasonable basis in existing law.

posted 04-09-2010 04:44 PM ET (US)            

A spinning propeller is NOT a hidden hazard, like asbestos or lead paint is, (to a toddler). I don't see the analogy. And that's what causes THIS particular case to fail the smell test. The lack of a hidden hazard.

FWIW, Re asbestos... I lost my dad to mesothelioma. And back in 2001, when he died, there wasn't NEARLY the access to big money settlements that there is now. I think my mom got like $5000 in some kind of class action suit that was all but forced on her. That's it.

posted 04-09-2010 05:07 PM ET (US)            

...

posted 04-09-2010 05:10 PM ET (US)            

Now, dissecting the hypothetical accident above, there are two ways your injuries could have been avoided. One, the boat driver could have turned the boat to avoid running over you. Two, the motor could have been inexpensively equipped with a propeller guard. Nobody would argue that the boat driver should be let off the hook for failing to take a simple action that could have prevented your injuries. Why should the motor manufacturer be let off the hook for failing to take a simple action that could have prevented your injuries?

This is not a “deep pockets” argument. I’m not trying to suggest that the motor manufacturer should pay for your injuries just because the boat driver could not. I’m saying that you don’t own the boat, so you can’t insure it. You weren’t driving the boat, so you couldn’t avoid being hit. And you couldn’t force a stranger to put a propeller guard on his boat motor. There’s nothing you could have done. But there is something the boat motor manufacturer could have done.

posted 04-09-2010 05:29 PM ET (US)         

Who do I sue if I'm out riding my bicycle wearing a helmet and a Kevlar suit and I am permanently injured by a lightning strike?

posted 04-09-2010 05:42 PM ET (US)            

I'm not going to change my mind. And I'm not going to fight with you.

In your argument, you advocate asking a third party who happens to be standing nearby to assume the financial obligations for the person responsible for damages - simply because he was there and happens to have the financial means to meet those obligations.

I just don't see how that is right or makes sense.

But since you do...

I'm forming a fund that will help me make my mortgage payments every month. Since you and some other members of the forum obviously make more than me and can better afford my mortgage, I'm going to go to court to force you guys to contribute to this fund. I know, I know...I'M the one who took out this mortgage, and SOME BANK was dumb enough to loan me the money, but you guys can afford to help me pay it....

[Note: I'm not having trouble paying my mortgage]

posted 04-09-2010 05:48 PM ET (US)            

K Albus stated: “When you get injured in a bicycle accident, it's not the bicycle that causes your injury. When you get chopped up by a boat propeller, it is the propeller which causes your injury”

Not true, when you get chopped up by a boat propeller, it’s the moron at the throttle that caused your injury. On my last visit to West Marine, I was in the prop section and none of those evil props jumped up and tried to chop me up. Was just lucky that day?

FWIW Buckda, I’m in total agreement with you.

In this country the first thing out of anyone’s mouth is “who do I sue” and we have greedy unethical lawyers (not all lawyers are greedy and unethical) to thank for that.

posted 04-09-2010 06:24 PM ET (US)            

Boat motor manufacturers have a legal duty not to introduce unreasonably dangerous products into the stream of commerce. In the case we are discussing here, the jury found that Mercury Marine breached that duty. For some reason, all of you guys seem to have a big problem holding a corporation responsible for breaching its legal duty.

posted 04-09-2010 06:26 PM ET (US)            

Thanks to Kevin/K. Albus for his thoughtful comments. It's like being in law school again with a better-than-average professor. These are relatively difficult concepts for a layperson (and for lawyers not accustomed to practicing this discipline), and the inflammatory nature of this particular case, especially on a boating website, means that more heat than light is being brought to the discussion by some of us.

Lawyers and judges--especially appellate judges--say that "bad cases make bad law." This might well be one of those. Again, we'll all have to wait and see what the appeals process brings, but the upper courts might wait until a clearer, crisper situation arises at the trial court level involving alleged propeller safety defects to rule one way or the other on the substantive issues involved.

In the mean time, we might well see lobbying efforts by insurance carriers hoping for legislation which would require prop guards of some kind. We might even see outboard motor manufacturers developing guards on their own, in advance of potential legislation and/or more lawsuits. We'll just have to wait and see what happens.

As to Dave's comment, seconded by many CW members, that it "[t]akes some guts to own up to your responsibility for your own life, your own safety and the safety of those around you," I totally agree to the extent possible for an individual in an increasingly complex, mechanized, corporatized world. I sure wish that big business and the multi-nationals as well would take more responsibility for the lives and safety of consumers and the general public...thus largely putting products liability lawyers out of business.

Tony

posted 04-09-2010 06:59 PM ET (US)            

"Have you or a loved one been injured by a boat propeller? Call the Schmoozer, Schmizer, Burt & Ernie Law Firm at 1-800-Class Action. Call today."

John

posted 04-09-2010 08:19 PM ET (US)            

Now, I'm very sorry to say, some members of the legal and medical "professions" advertise at will, and often in the worst of taste. I doubt very much that the attorneys involved in the instant case are the sleazy kind, BTW, but God knows they're out there, and they're an embarrassment to those of us who try to maintain a modicum of self-respect.

posted 04-12-2010 05:13 PM ET (US)            

First, I think the problem most people have with this case is that they believe that the injured teenager somehow won the lottery. They think the kid is being rewarded for doing something stupid – He jumped in the water behind a running boat, and now we’re going to give him millions of dollars to reward him for his stupidity.

In reality, this is not what has happened. It is important to note that the injured kid proved during the trial that his past and future medical expenses relating to this accident will amount to $3.09 million. This does not include any amount for disfigurement or pain and suffering. The total verdict including pain and suffering was $3.86 million. But Mercury Marine was found to be only 66% liable, so Mercury Marine will only be paying $2.55 million (assuming the verdict is not overturned on appeal).

In addition to the money to be paid by Mercury Marine, the injured kid probably received some type of settlement from the insurance company for the boat’s owner. If that person had a typical homeowner’s policy, the coverage was probably limited to $300,000 or $500,000. If you add that to the pile, the injured kid either just barely recovered enough to pay his medical expenses, or he ended up a couple hundred thousand dollars short. He essentially ends up with nothing for his pain and suffering, his lost future income potential, and the fact that he has to go through the rest of his life with only one leg. If any of the medical expenses are paid by the injured kid’s health insurance, the health insurance company is entitled to be reimbursed out of the money received from Mercury Marine. He didn’t win the lottery, and he won’t be driving a Ferrari. Given the rapidly rising cost of medical care, he’ll be lucky if he doesn’t end up in bankruptcy.

I think if people can get past the fact that the injured kid did not receive some kind of huge windfall for his own act of stupidity, maybe we can get to the real issue at hand. The real issue is whether or not propeller guards should now be included on boat motors. A sub-issue which is essentially wrapped up in this issue, is if propeller guards should be included on boat motors, whose responsibility is it to include them?

In this case, the jury found that propeller guards should be included on boat motors. In order to reach that conclusion, the jury first had to find that propeller guards can be economically incorporated into boat motors, and that including a propeller guard will not substantially alter the utility (i.e., the performance) of the boat motor. A lot of people at this website disagree with this, but I would venture to guess that most of those people have not done any real research on the subject and don’t really know how a propeller guard would affect the performance of a boat motor. The jury made their decision based on expert witness testimony provided by both sides in the trial. This means Mercury Marine had a full and fair opportunity to present evidence demonstrating that the addition of a propeller guard would be too expensive and/or would significantly reduce performance. The jury apparently did not believe Mercury Marine’s experts.

Now, given the fact that the jury found that propeller guards should be included on boat motors, we get to the sub-issue – Who should be responsible for installing propeller guards on boat motors? Under our economic system, the most effective and efficient method to ensure that propeller guards get installed on boat motors is to place the responsibility for such installation on the boat motor manufacturer. This is exactly what happens in other industries such as the automotive industry – when a new safety feature becomes technologically and economically feasible, the automotive manufacturers will begin to include it in all vehicles. They will do this either in response to legislation requiring it, or in order to avoid potential lawsuits for failing to include the new safety device. Either way, when it becomes economically and technologically feasible, the product evolves and the safety devices are added.

There seems to be some reluctance among the contributors here to a similar chain of evolution for the outboard motors which are common among Boston Whalers. However, it is has already happened in the past, and it will continue to happen in the future. For instance, it was not long ago that kill switch safety lanyards were not standard equipment on boats. Who would argue nowadays that it’s a bad idea for boat manufacturers to include a kill switch safety lanyard? Assuming that propeller guards can be economically added to boat motors without sacrificing performance, who would argue that they should not be required? Just because boat motors have always been dangerous in the past is no reason that they should always be dangerous in the future.

Now that one jury has found that propeller guards can be economically added to boat motors without substantially impairing performance, there’s a good chance that other juries will make similar findings. If this happens, boat motor manufacturers will likely consider adding propeller guards on their own. If they don’t add propeller guards on their own, they will be more likely to face future lawsuits. The boat motor manufacturers will have to do their own cost-benefit analysis to determine whether they should start installing propeller guards or whether they will continue to gamble on future lawsuits. I would bet, however, that one result of this particular lawsuit is that boat motor manufacturers will begin to spend more money trying to develop inexpensive and efficient propeller guards.

In all of my previous posts in this thread, I have avoided stating whether I believe the jury rightly or wrongly decided the issues in this case. I will continue to withhold my judgment on the matter because I have not seen the expert witness reports or the expert witness testimony that was submitted to the jury. I have no way of knowing for certain whether propeller guards can be economically installed without substantially impairing performance. However, I will state that I do not believe the outcome of this case was outrageous. The injured kid is not going to get rich off of his mistake, and the $2.5 million verdict isn’t going to break Mercury Marine. Life will go on. Mercury Marine will likely file an appeal. If the verdict is affirmed, you may begin to see propeller guards. If the verdict is overturned, there will be another trial down the road, and the whole story will play itself out again.

posted 04-12-2010 07:21 PM ET (US)            

Unfortunately, I find this new insight very disconcerting and it further confirms, in my humble opinion, that lawyers with your mind set are the problem. You state that you don’t believe the outcome of this case was outrageous. I actually find that statement outrageous. Most law abiding citizens and business owners have to pay tons of extra money for insurance, products costs, etc. as a result of these ridiculous outcomes perpetrated by lawyers that that think like you.

posted 04-12-2010 07:31 PM ET (US)            

Is he being awarded this money to spend as he sees fit? Or is it only paid directly to medical practicioners AFTER he has undrgone a treatment?

It's not hard for me to visualize a scenario wherby he opts out of, say, $2 million worth of treatment and banks it instead... if the system allows for it. Discuss?

If anyone decides to keep score, put me in the corner with those who say the is ZERO possibility that a prop guard will not hurt efficiency/power. It's not the wild and woolly 1940's anymore, before CFD and serously good wind tunnel testing. The principles that will prove me right are pretty well known even though the evidence I can offer is only anecdotal.

FWIW CFD = computational fluid dynamics

posted 04-12-2010 09:48 PM ET (US)            

What diveorfish and many other CW commentators apparently don't understand is that K Albus wasn't expressing an opinion; it wasn't his mind set that he was asserting. He was earnestly attempting to explain THE LAW in terms that laymen and simple country lawyers like me could understand. Sorry, folks, if you can't grasp that concept...it took me several years of hard work in law school to understand that THE LAW doesn't always make sense the way we would like it to. It ain't about what you or me, with our particular opinions and "mind sets", think is fair. Instead it is made up of literally hundreds of thousands of conflicting laws enacted by our legislators, and tens of thousands of appellate cases interpreting the meaning of those laws, applied in a fascinating but incredibly complex and arcane matrix of court rules and procedures, some of which predate the Magna Carta.

I won't try to fool anyone who's been around this website for a while about what I think is "fair" and "just" when it comes to rules that I'd like to see in place to help govern our complex society. Those laws would undoubtedly be very different from what many of you folks think would work best for us here in our 220-year-old experiment in democracy. But that's the often-frustrating, terrible beauty of THE LAW as it's developed over the ages--it's the final bulwark preventing me from imposing my particular views upon others, or having others impose theirs upon me...at least without a fight in a civilized arena where the rules of engagement--complex though they may be--are available to every contestant...or to his/her lawyer.

Now for the fourth time--just so some of you are clear where my opinion lies regarding this case: I don't like it one bit. I think the plaintiff's percentage of comparative fault, let alone the operator of the boat, is much too small, and I'd much rather see legislation instead of case law finally determine whether we in fact need some sort of guards on the props of our outboard motors. But that's my surface level, at-first-glance reaction to what is an incredibly complex case. I haven't listened to the expert witness testimony (nor has anyone at this website, I reckon) regarding the economic consequences of installing such guards, the loss if any of power and fuel economy, the actual preventive effectiveness of such hypothetical devices, etc, etc. I haven't listened to and observed the demeanor of the plaintiff as he described the event and its consequences for his life and that of his family. Nor have I heard the judge, at the conclusion of testimony, carefully explain THE LAW as it applies to this particular case. The jury did hear these things, came to certain conclusions, which conclusions will be examined critically by legal experts at various appellate levels, and in a couple of years or so we'll have some sort of closure about this matter...to argue about once again.

It's the way things work, folks. Tell me a better way if you can.

posted 04-12-2010 10:13 PM ET (US)            

To answer contender's question, if the kid jumped in the water and broke his neck by hitting the bottom of the lake, the kid would be the only negligent party, and thus, all of the liability would be on him. He couldn't sue anybody for his injury in that case.

posted 04-13-2010 01:45 AM ET (US)            

quote:

---

To answer contender's question, if the kid jumped in the water and broke his neck by hitting the bottom of the lake, the kid would be the only negligent party, and thus, all of the liability would be on him. He couldn't sue anybody for his injury in that case.

---

Why not? Are you saying that the water's managing entities in shallow-water-dive injuries have no culpability? I'll bet a dollar to your dime that that's not true.

And Tony says:

quote:

---

It's the way things work, folks. Tell me a better way if you can.

---

Whatever way the other democratic nations who do not suffer the crushing burden of frivolous tort employ, would be a start.

posted 04-13-2010 09:06 AM ET (US)            

Regarding your second point, it is virtually impossible to compare the tort law system in the United States to the tort law system in other countries for the simple reason that just about every other developed nation has nationalized health care. The vast majority of the damages awarded in the U.S. tort system are for medical expenses. In other developed nations, medical expenses are not included in tort lawsuits.

posted 04-13-2010 09:10 AM ET (US)         

"incredibly"?

There is nothing complex at all about this case. Dumbasses screw up big time and go after the deepest pockets they can.

K ALbus, you can keep saying that it was proven to the jury that prop guards can be inexpensively added and will not cause "substantial" performance losses until the cows come home but we both know that that is just not true.

Even the smallest bit of experience at the helm of a small boat combined with a basic understanding of physics and a modicum of common sense should make any critical thinking individual question that claim. I'm sorry but I cannot take this jury's word for that. I'm going to have to be convinced.

I keep hearing this bull about the best system in the world and all that crap. Sure, it's a pretty good system. The sad fact is that we have been telling ourselves that it is the best for so long we have forgotten to step back and take a look every so often to see where we can improve on it. We've let the paint peel on our BEST SYSTEM IN THE WORLD and literally left it for the jackals.

posted 04-13-2010 12:24 PM ET (US)            

quote:

---

Peter, you better bring a lot of dollars because I'll bet just about every dime I have.

---

Are you kidding me? The hotel I'm staying in right this very minute has very prominent, "NO DIVING" signs placed about every 20 feet or so all the way around it... including the deep end. Now why do you suppose they have those signs up? Is it possible that someone, somewhere, had a shallow-water-diving accident and prevailed in a law suit?

Here, I don't want your money, but let me help you. This resulted from the very first link of the very first google search I did on the matter:

http://www.injuryboard.com/topic/diving-accidents-overview.aspx

selected quote from the link:

quote:

---

If you or a loved one have been seriously injured in a diving accident, it may be important to contact an attorney who can help you protect your legal rights. Please keep in mind that there may be time limits within which you must commence suit.

---

posted 04-13-2010 01:21 PM ET (US)            

So you're saying that something about diving off of a boat is different than diving off a fixed structure or shoreline when it comes to culpability in shallow-water-diving accidents?

I'll have to do a little digging, but in the back of my mind, I just know there are shallow-water-diving accident cases going on that took place on navigable waterways. Are you saying there aren't? Or that there can't be? On what basis?

Remember, you told another CWW member, (and all of us) that had the plaintiff in the Texas propeller case dived off the boat and hit his head on the bottom, he would NOT have been able to sue the parties with managerial interests in the water. Something about that just doesn't sound right.

posted 04-13-2010 02:40 PM ET (US)            

I'm somewhat baffled by the personal affront that many of you perceive his assessment to be. Kevin has made it quite clear from the get-go that this isn't his opinion. The remarks by diveorfish, contender and rong are just, well, wrong.

Perhaps one problem is the sloppy language selection employed in this exchange. Words have meaning and this matters significantly in any discussion, moreso in a discussion of legal issues.

gnr above suggests that prop guards cannot be added "inexpensively" or without "substantial" performance losses. Just looking at those two words alone creates a wide area of consideration to determine whether or not his statement is accurate. What is "inexpensive" when considering the cost of an outboard can be 10 or even 15 thousand dollars? What is "substantial", 5%? 10%?

Peter suggests this is simply "lawyering". I appreciate the precision.

posted 04-13-2010 02:48 PM ET (US)            

You stated that my argument doesn’t hold water and said “that the cost of insurance is high because the costs of accidents are high.” You gotta be kidding me. The only reason the costs of accidents are high is because everybody is suing the deepest pockets, regardless of fault, because they can. The only reason they can is because lawyers/judges enable it. In a sane world this case should have never gone to trial for a third time.
These cases do put a burden on the economy. Below is your response to Peter:
“Finally, if you have some type of data which supports your contention that the tort system presents a "crushing burden" on the U.S. economy, please present that data. I'm a skeptic, so please make it real, verifiable data, and not just "estimates" based on "confidential proprietary formulas" used by the insurance industry. If you're successful in identifying any such data, you'll be the first person to do so.”
Here are just some costs off the top of my head. My little 10-house gated street is not a county road so we maintain a homeowners association. Our home owners association has to pay $2,500 a year for liability insurance in case some moron trips on the curb and decides to sue us.
Car insurance is outrageous. When I learned to drive in the mid 70’s, my dad added me to their policy and the extra amount was practically nominal. Now the cost for a teenager to drive is off the charts. Heck they don’t even have drivers-ed in school anymore due to the costs of liability insurance.

Ski lift tickets are nearly $90 as a result of their insurance costs. Thirty years ago that same lift ticket was $12. We haven’t had that much inflation.

Try to rent a jet-ski lately or snow-mobile lately? Liability insurance costs have pretty much killed most of those businesses.

Since pools have already been mentioned here is another example: if you want to put in a pool you now have to put an unsightly locked fence around it so any trespassers that drown in your pool can’t sue you and win. You also have to install an alarm system to cover every back door in case guests wonder out and drown; their relatives can’t sue you and win. There’s about $3,500+ you have to spend now that you didn’t to before.

The California Dept. of Corrections spends millions a year (our tax money) on frivolous lawsuits brought by prisoners for the stupidest reasons.

Malpractice insurance for Doctors and Dentists outrageous

posted 04-13-2010 03:17 PM ET (US)         

quote:

---

Just looking at those two words alone creates a wide area of consideration to determine whether or not his statement is accurate.

---

I wish I had the actual specifics used by the jury to make the determination they did. All I have is the words used by K Albus in building his case to respond to.

How could an individual with no experience at the helm of small craft even begin to determine what level of performance loss would fall below "substantial"?

How could that same individual be expected to understand the dynamics of a small boat trying to get on plane, or stay on plane?

The only way that individual could even begin to understand is by listening to the lawyers for each side present their case. The handpicked experts too of course.

The slickest presentation wins.

For the record. None of my comments are meant to be taken personally by the lawyers participating here. Certain segments of the legal profession have worked tirelessly to earn the legal profession the reputation it has today. I admire you straight shooters who are willing to enter a profession that has the reputation that your does.

posted 04-13-2010 08:21 PM ET (US)            

Remember, you've sworn under penalty of perjury to answer truthfully, and I'm sure that you all consider yourselves honorable "men of your words." Now tell me, some of you, and be honest: Would you make fair and impartial jurors in a trial such as the one we're discussing?

posted 04-13-2010 09:22 PM ET (US)            

The questioning of potential jurors by lawyers representing both sides of a dispute--whether civil or criminal--is an important part of our adversarial system. Sure, some (if not most) potential jurors lie to a certain extent, but it's the job of the attorneys representing both parties to sort this out. You'd be pleasantly surprised, however, to see how many people in this cynical age still take their word of honor--their sworn promise to tell the truth--very seriously indeed.

Anyway, it's the system, and I repeat--show me a better one.

posted 04-13-2010 11:41 PM ET (US)         

it's very sad what happen. I would hate to be on the jury. I hope this kid get's some money to live a good life. I had a good life so far with very little life threatening life events.

posted 04-14-2010 02:25 AM ET (US)            

quote:

---

Now tell me, some of you, and be honest: Would you make fair and impartial jurors in a trial such as the one we're discussing?

---

Since you asked... Yes, I would be fair and impartial. I would throw everything I have into determining the how to apportion fault in this case. Since there is no way to apportion ANY fault to the engine manufacturer without rhetorical sleight of hand, the real challenge would lie in correctly apportioning the fault between the driver and the victim. I would take all the time needed and apply all the care called for in that determination.

prj sez:

quote:

---

Peter suggests this is simply "lawyering". I appreciate the precision.

---

Really, prj? You cherry picked this little chive and ignored the whole filet mignon I put out for you to tear apart, (if you can)? And in the same post, no less. Instead of the term "lawyering", would you have preferred I go a more formal route, such as this lexisnexis clip from a ltigation-essentials article on rhetoric in product liability and negligence?

quote:

---

The impact of specific language used to describe a concept is an increasingly important issue in products liability trials involving claims of defective design or failure to adequately warn of a danger. In design and warning cases, courts allow plaintiffs to utilize two quite different rhetorical constructs - the language of negligence and the language of strict liability - to define what is increasingly a nearly identical standard of liability. Plaintiffs' lawyers typically face a choice of describing the liability standard with negligence language, with strict liability language, or with both.

---

This is "lawyering". Do you really find it constructive and within the scope of this thread?

posted 04-14-2010 08:41 AM ET (US)            

And don't get me wrong; that's not necessarily a negative comment about you. It's just very obvious that you would find it very hard not to put your own opinions/prejudices ahead of the law as it applies to any specific case. I too would find it very, very difficult to set aside my beliefs and be a fair and impartial juror, so the two of us could head down the hall to the cafeteria and talk Whalers over a cup of coffee as jury selection continued.

posted 04-14-2010 09:07 AM ET (US)            

I'd probably be booted off this jury too.

posted 04-14-2010 12:17 PM ET (US)            

number9 says:

quote:

---

Unless you're barefoot skiing or need to run 40+ mph in a boat the degradation of utility caused by a prop guard design is likely easily overcome by a more powerful motor.

---

This is no doubt, true... since a prop guard decreases efficiency/performance. It therefore exacerbates the same dilemma a buyer faces today when he debates between the cost of the performance he wants and it's effect on his finances. It is already an unpleasant enough situation to be in, much less to have it made even worse, unneccssessarily.

posted 04-14-2010 01:06 PM ET (US)            

It may not be perfect, but Tony is absolutely right, it’s the system and as he repeats “show me a better one” rings true.

Sometimes the jury selection doesn’t turn out so well, but at least both sides have a hand in picking the jury. Really, what could be fairer than that?

Everybody is prejudicial on every subject as a result of their life experiences. The goal of the jury selection process is to produce the most impartial jury possible. In this, I believe our system has the best process.

Granted, the jury can be dumbed down a bit so the risk of the case devolving into 12 people choosing the slickest lawyer, irrespective of justice, increases.

posted 04-14-2010 07:43 PM ET (US)            

Yes, if I were to represent an injured consumer against a huge mega-corporation such as Brunswick, I'd try to appeal to a jury's sense of fairness regarding the 'little guy' versus the huge, powerful, faceless, bottom-line oriented corporation. If I didn't, old pal, I'd be committing malpractice, and my poor legless client would be quite right in suing me.

That's the courtroom "arena" that I mentioned above-- the clash between an individual against another individual, an individual against the state, or an individual against big business. Fascinating stuff, and I'm glad that you acknowledge that the system--with all its flaws--is the best we humans have come up with so far.

Let's continue this over a pale ale (or six) at the upcoming NorCal rendezvous, diveorfish. I never talk politics or religion on the water, but we'll have plenty of time at lunch on Angel Island or dinner at the Petaluma Sheraton ;-)

posted 04-14-2010 09:33 PM ET (US)            

Perhaps the next step in this process is for Mercury Marine to hire the plaintiff's expert witnesses as design consultants so that they can produce the proper type of propeller which will prevent injury while not reducing the utility or functionality of the propeller as a propulsion device for the boat.

posted 04-15-2010 03:56 AM ET (US)            

Kevin said:

quote:

---

Boat motor manufacturers have a legal duty not to introduce unreasonably dangerous products into the stream of commerce. In the case we are discussing here, the jury found that Mercury Marine breached that duty. For some reason, all of you guys seem to have a big problem holding a corporation responsible for breaching its legal duty.

---

Help clarify your position. Are you saying by extension then, that ALL manufacturers of outboards and outdrives are breaching their legal duty? Or do you see differences in the way say, OMC outdrives or Yamaha outboards are designed that would have prevented this accident?

Also:

quote:

---

it is virtually impossible to compare the tort law system in the United States to the tort law system in other countries for the simple reason that just about every other developed nation has nationalized health care. The vast majority of the damages awarded in the U.S. tort system are for medical expenses. In other developed nations, medical expenses are not included in tort lawsuits.

---

If I'm understanding you right, you are saying that if we had nationalized health care, the jury ought not have found Mercury culpable? Or not _as_ culpable? So proper engineering design principles should be either applied or withheld, based on the presence or absence of nationalized health care? The latter is mostly a rhetorical question, since the answer is already known to be in the affirmative, based on the outcome of other frivolous tort cases.

posted 04-15-2010 08:48 AM ET (US)            

2. My comment about the fact that other developed nations have nationalized health care relates to the fact that more than $3 million of the total $3.8 million of damages in this case were for medical expenses. If the U.S. had nationalized health care, those medical expenses would not be included in the verdict. The total verdict would have been less $800,000, and this case would not have made the headlines that it made. Since other countries have nationalized health care, their tort cases do not include medical damages, and thus, the verdicts are routinely substantially lower. This makes it very difficult to compare the U.S. tort system to the tort system in other countries. (And just to be clear, I'm not advocating either for or against nationalized health care for the U.S.).

posted 04-15-2010 09:14 AM ET (US)         

So Tony....

Appealing to the emotions of a jury in a way that has absolutely NOTHING to do with the FACTS of the case is appropriate?

Now I am not naive enough to think it is not done but you are telling us that it is appropriate?

Really?

And you wonder why your profession has earned its reputation?

Wow!

posted 04-15-2010 04:11 PM ET (US)         

John Adams
US diplomat & politician (1735 - 1826)

Sorry, I couldn't resist. Contrary to what some of the Barristers on this site may think, I don't dislike attorneys. I just enjoys a good joke now and again.

posted 04-15-2010 07:56 PM ET (US)            

And while we're waiting for the appellate results of the case being discussed here, hauptjm, let's leave jokes about lawyers, used car and boat salesmen alone as well, eh? I'm not sure that any of this adds anything at all to this discussion.

posted 04-16-2010 08:51 AM ET (US)            

--pay the award to the plaintiff as specified by the jury;

--threaten to appeal, and negotiate with the plaintiff for a less costly settlement;

--appeal the decision.

I will ask Kevin to explain the risks to Mercury Marine in each of these options, both in their exposure to expense in this case and for future cases of this type.

posted 04-16-2010 10:27 AM ET (US)         

How does a stockbroker make a their customer a small fortune...start with a large fortune!!!!

posted 04-16-2010 01:12 PM ET (US)            

Once the trial is completed, and a verdict is reached, the case is over. If the plaintiff loses, he or she is not permitted to file a new lawsuit asserting the same claims against the same party. While the loser in the trial court cannot file a new lawsuit, it can file an appeal. When a case is appealed, the appeals court generally reviews the proceedings in the trial court to determine if there were any irregularities in the proceedings or errors of law committed by the trial judge which unfairly influenced the outcome of the case. The appeals court does not generally reexamine the evidence to determine if the right party won. The factual findings made the jury will generally be left alone by the appeals court unless the losing party cannot demonstrate that there was no evidence whatsoever to support the jury's findings.

If there was a substantial error in law or in the proceedings in the trial court, the appeals court will usually send the case back to the trial court for a new trial. In some instances the appeals court may go even further and throw the entire case out. If that happened, the plaintiff could not file a new lawsuit based on the same facts. The only option for the plaintiff would be to appeal to the next higher court, arguing that the lower appellate court committed an error of law by throwing the case out.

Double jeopardy is a concept which applies to criminal cases, and not to civil cases, so it has no application here.

posted 04-16-2010 11:47 PM ET (US)            

It just seems to me, that if Mercury Marine can be sued because some idiot engaged reverse gear while someone was in the water behind the boat, maiming this person in the process, couldn't Ford or Chevrolet, or any car company be sued if some idiot engages reverse in the car and backs over someone, maiming them in the process?

I guess auto manufacturers could be required to have reverse cameras and back up sensors and even a reverse gear overide switch that would dis-enable reverse if someone or something is detected behind the vehicle.

Maybe we should all stay inside pillow lined rooms- we would all be really safe there. I apologize for the cynicism, but where has personal responsibility gone in this society?

By the way, I really enjoy reading the discourse on this subject.

posted 04-17-2010 02:16 AM ET (US)            

There is a whole rash of new, expensive, ugly, design requirements and required equipment coming down the pipeline for cars, to protect pedestrians.

posted 04-17-2010 11:43 AM ET (US)            

http://www.sacbee.com/2010/03/09/v-mobile/2592843/ girl-wins-personal-injury-suit.html

posted 04-17-2010 12:31 PM ET (US)         

This has been going on for months if not years. It is affecting my health and my ability to provide for my family.

I'm coming after you jimh! If you had not created this fine forum Tony would not have been able to affect my sensitive nature to the point he has.

I would be willing to consider not pursuing what appears to be a slam dunk case if you send a check for a mere $1000.00 to an address I will provide.

Failure to take this deal will most assuredly result in a court award of an amount many many times the offered settlement.

Further know that I will be bringing this to court in California as that is where the perpetration on my sensitivities originated.

This alone should increase the award by at least double.

;-)

posted 04-17-2010 01:30 PM ET (US)            

http://overlawyered.com/2010/03/ truck-driver-father-runs-over-own-daughter-guess-who-is-to-blame/

posted 04-17-2010 04:54 PM ET (US)            

To me the land of the free is not so free and the whole system seems self perpetuating. Putting it simple everything just costs more simply due to the amount of litigation cover you have based on who has the deepest pockets. Or what you have to account for due to some obscure claim.

If you follow this to an absolute logical conclusion then even gun manufactures would be liable as they could have made the arms safer. Let alone all the other scenarios we could think of.

I know this was decided by a jury , but if the jury had been not indoctrinated by the system or TV that these big companies can afford it, they can’t help but be biased. I’m sure they would have had a different conclusion if common sense prevailed over who can afford to pay the victims bills.

Even the medical bills would have been fraction of the cost elsewhere in the world and not due to inferior treatment or NHI which does not cover cosmetic surgery unless it’s detrimental to your mental well being.

Where is it leading too? Will you be able to sue Rolex if the time was wrong on your watch and you would have avoided an accident? If they were the only who could afford to pay.

Maybe your health reforms will help and make provision for victims of serious crimes or accidents.

It seems you need some changes in the system and who pays the costs to stop these extreme cases. Although probably the layers would sue someone for loss of earnings :)

posted 04-17-2010 07:19 PM ET (US)            

Tony

posted 04-19-2010 03:33 AM ET (US)            

Success in a frivolous law suit, as in a shell game, requires the plaintiff's counsel to bamboozle the jury so that the truth remains hidden.