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run over a friend w/ your boat? manufacturer is liable

 
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jt09
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PostPosted: Apr 07, 2010 4:47 pm    Post subject: run over a friend w/ your boat? manufacturer is liable Reply with quote

http://www.statesman.com/news/local/...le-527456.html

Quote:
A federal jury Monday found a boat manufacturer partially liable for a 2005 incident on Lake Austin in which a teen's leg was severed by a propeller. Jurors ordered the company to pay $3.8 million in medical expenses and damages.

After deliberating for about seven hours, jurors found that the Brunswick Corp. shared more than half of the blame for the accident that severely injured Jacob Brochtrup, who was then 18.
Brunswick officials said in a statement after the verdict that they "stand behind our products, which are used safely and properly by boaters around the world."

Jurors found that Brochtrup also was responsible, as was the driver of the boat.

"I think they made a well thought-out, informed decision, and I think it was the right decision," said Brochtrup, now 22. "Based on the evidence that was presented, I think the case was proven pretty well."

Brochtrup sued Sea Ray Boats Inc. and Mercury Marine Brunswick is their parent company in 2007, saying they were liable for his injury.
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.

The propeller caught the top of Brochtrup's right leg and twisted it around, chopping deep into flesh, muscle and bone.

The suit said that the wound to Brochtrup's leg was so large that he had lost most of his blood and that it caused his heart to stop. He had been in cardiac arrest for at least 45 minutes, and a STAR Flight helicopter delivered him to the emergency room clinically dead.

Some doctors called him a "one-in-a-million survivor."

According to the suit, the manufacturer of the boat and motor did not have safety devices, including guards or covers, to prevent Brochtrup from becoming entangled or stuck.

"While we at Brunswick remain sympathetic to the plaintiff for this unfortunate accident, we are nevertheless disappointed with today's verdict," Brunswick officials said in the statement Monday. "We will evaluate our options in this matter going forward, including a possible appeal."

Austin attorney Robby Alden, who represented Brochtrup, said the decision marks the first successful case against the boating industry by a person injured by a motor. A U.S. Supreme Court decision in 2002 allowed such cases to go forward.

Boat makers prevailed in two similar suits nationally that involved older-model boats, he said. And jurors in two previous trials of Brochtrup's case deadlocked, resulting in mistrials.

During the latest trial, which began last week, Alden said he sought to show jurors that manufacturers could make boats and motors safer by installing guards on propellers and placing a shield over the back. The concept for a device was created years ago, he said, but the industry has resisted adopting it.

Before the verdict, Brunswick attorney Woody Norwood of New Orleans would only say: "We are very sorry about his injury. It was a very unfortunate accident."

According to Monday's decision, Brunswick was 66 percent responsible for the accident, and Brochtrup and the boat's driver each were 17 percent liable. The driver wasn't part of the suit and will pay no damages.
Most of the damages were for Brochtrup's past and future medical expenses. However, he also received $100,000 for his disfigurement and $264,000 for physical pain.

"I think the amounts for the award were fair," Alden said. "I'm happy about it. Hopefully, they will start making a change to protect people."
Brochtrup attended the trial and was in court for the verdict. Since his accident, he said, he has learned to live with one leg, but he hopes to receive a prosthesis soon. In recent months, he has been studying to become an audio engineer, and he plans to work in the recording industry.
"It's not what I would have wanted, but I'm just trying to enjoy life," he said.




so, don't worry about being a complete f*ing idiot, because boat manufacturers have a shlt ton of money.

4th of july on lake austin - a narrow waterway where it's tough to turn and grab a rider, even on good days. for you norcal types, thing the delta, but about 2-3x as wide

the busiest, choppiest place on the lake, bar none

on a boat that isn't designed to do what you are asking it to do

18 yr old driver

that, my friends, is a recipe for disaster. good thing brunswick has deep pockets!
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PostPosted: Apr 07, 2010 5:31 pm    Post subject: Reply with quote

I'm pretty sure Searay was having financial troubles not too long ago, but it may have been another mfg. I thought they went up for bid but didn't receive anything worth while.
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PostPosted: Apr 07, 2010 6:31 pm    Post subject: Reply with quote

This is why I/O's aren't supposed to be used as ski boats. Hell, I'm afraid to even swim around an I/O in the back in case I accidentally kick the outdrive (which I've done multiple times) or someone starts it up to move it without knowing I'm back there and can't hear me. I think the kid driving should've been sued for being a dumby wumby and only sued for medical expenses. Taking advantage of the manufacturer for something they weren't in control of is ridiculous. Safety device around the moving parts would require a lot of R&D in order for the flow to be right for propulsion along with larger engine and huge design modifications for it all to work the exact same way with no parasitic losses.
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PostPosted: Apr 07, 2010 6:35 pm    Post subject: Reply with quote

Other lawsuits similar to this have turned out in favor of the MFG's, so I wouldn't be suprised by either a smaller out-of-court settlement or an appeal.
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jt09
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PostPosted: Apr 07, 2010 6:52 pm    Post subject: Reply with quote

holdsworth wrote:
Safety device around the moving parts would require a lot of R&D in order for the flow to be right for propulsion along with larger engine and huge design modifications for it all to work the exact same way with no parasitic losses.


$300




here is a boat with propeller guard that goes 50 mph.



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PostPosted: Apr 07, 2010 6:58 pm    Post subject: Reply with quote

I know that they are kind of similar, but if a MFG. did put a "basket" around their inboard outboard and someone still managed to get hurt/bash the basket (easily done on sand or rocks or other obstacles) and then got hurt, it would be even more of the MFG's fault. Also, I know they are similar, but I would imagine that there would be other differences between an I/O and outboard.
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PostPosted: Apr 07, 2010 7:05 pm    Post subject: Reply with quote

Surprisingly, I do not support forcing manufacturers to put guards on. I can't really explain why yet though.
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PostPosted: Apr 08, 2010 5:08 am    Post subject: Reply with quote

If they start installing them now, I'd expect a TON of class actions from people who've been hurt over the years. It's like admitting they've been dangerous and needed them all this time, but the MFG's just didn't do it.
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PostPosted: Apr 08, 2010 5:43 am    Post subject: Reply with quote

Quote:
According to Monday's decision, Brunswick was 66 percent responsible for the accident, and Brochtrup and the boat's driver each were 17 percent liable. The driver wasn't part of the suit and will pay no damages.


Hopefully they appeal this and get a jury with some sense.
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PostPosted: Apr 08, 2010 5:46 am    Post subject: Reply with quote

cameraboy, Maybe because it should be an option (dealer or aftermarket). This did not come down to a manufacturer defect, it was an unfortunate misake by the driver.

Has a car company ever been sued because someone using their product hit and killed/injured a pedestrian because the front of the car didn't have extra padding put on it?

To me this is just people being sue-happy. Hopefully there is more to the case than is being explained in the story, otherwise that's a bit ridiculous.
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PostPosted: Apr 08, 2010 6:55 am    Post subject: Reply with quote

ridininmd wrote:
Quote:
According to Monday's decision, Brunswick was 66 percent responsible for the accident, and Brochtrup and the boat's driver each were 17 percent liable. The driver wasn't part of the suit and will pay no damages.


Hopefully they appeal this and get a jury with some sense.


Well said.

GnarShredd wrote:
To me this is just people being sue-happy. Hopefully there is more to the case than is being explained in the story, otherwise that's a bit ridiculous.


Let's not blame the victim for being "sue-happy." Blame him for possibly being stupid and jumping into the water without telling the operator, "I'm going to jump in-don't back up."

I find it interesting that the operator was not part of the trial. I figure this is either because he didn't want to sue his buddy or because the buddy had no money, had little/no insurance coverage on the boat, or had a policy with very low policy limits that paid out early and so there was only the manufacturer left to pursue (I'll go with this one).

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PostPosted: Apr 08, 2010 7:09 am    Post subject: Reply with quote

i pulled this topic from another board, and this guy has shown up to chime in w/ some valid points:

PGIC wrote:
I webmaster the Propeller Guard Information Center and notice some here may not be aware of the breadth of propeller safety devices beyond conventional guards. Some may not be familiar with virtual lanyard kill switches (sensor detects wearable tag to verify operator is at the helm when underway - and has not fallen overboard), conventional propeller guards with swing up end caps (the screen on the rear of the guard swings up underway to reduce drag), wearable tags that detect someone entered the water ( Virtual Lifeline and CAST), ladder and gate switches determining people have exited larger boats (PropStopper), ringed propellers (like the RingProp), and the most recent development, the Australian Environmental Safety Propeller. Several of these devices will not impact boat wakes.

The Australian Safety Propeller won the 2009 Australian ABC TV invention of the year contest late last year. If you have not yet seen videos of people sticking their hands and feet into it rotating you are in for a shock. It looks and acts like a conventional propeller, has slightly rounded edges, and still achieves similar performance.

In addition, other regions of the world are reducing the drag of conventional guards by using elliptical or flattened wires/rods to reduce the forward projected area of the wires/rods.

Example of Swing Up Endcap on Conventional Guards (images from MyFox Austin coverage of the Brochtrup trial)



Australian Environmental Safety Propeller
http://www.rbbi.com/pgic/ptech/safetypropeller/safetypropeller.htm

For those wishing to see more details on the actual Brochtrup v. Mercury Marine, et al trial, we cover it at:
http://www.rbbi.com/pgic/pcases/brochtrup/brochtrup-propeller.htm

Gary
Propeller Guard Information Center


PGIC wrote:
Quote:
Thanks for coming over here and posting! I checked out your site yesterday.

In your opinion, what is the biggest reason why boatmakers don't want to put these on?


"These" is a pretty broad question (not discussing the devices individually), but in general I suspect much of it is historical baggage. We have long had a fairly detailed response to the question you ask on our home page. It is copied below:

**********
The real or perceived animosity to the use of guards by drive manufacturers and boat builders has at one time or another been attributed by some to:

1. Their fear of losing the lucrative business of selling propellers (if guards keep propellers from being "dinged" or damaged, they will sell far fewer propellers).

2. They are more concerned about the bottom line than the safety of their customers.

3. They would have to eat the statements they have said for so many years that guards were no good, did not exist, etc.

4. They are trying to pass responsibility down the chain:

A. Drive manufacturers say one type of guard wont work in all applications and we dont know what kind of boat this drive is going to wind up on, so we cant put a guard on it.(thats a bit difficult to believe when it comes from Brunswick that is putting it own drives on its own boats)

B. Boat Builders say we dont know how or where the customer is going to use the boat so we dont know if it needs a guard or not or what type of guard it needs.

C. Boat Dealers say they dont have the research capabilities to figure out what type of guard you need, they dont want to accept responsibility for it, put a guard on yourself if you want one, but it may violate your warranty.

5. Prior to December 2002, Federal Pre-emption was seen as a reason not to use guards (prior to the U.S. Supreme Court ruling on Sprietsma v. Mercury Marine, lower courts had said since the U.S. Coast Guard did not require guards, states could not require guards.) This was actually an incentive to do nothing. It was the only safe square on the checkerboard for them. (See reasons below)

A. If they started to use guards, it would signal their previous products were dangerous. (not good for them in pending or future court cases)

B. If they started using them and chose/elected or were forced to retrofit units in the field, who would bear the huge costs for retrofit/ recall (drive manufacturer, boat builder, dealer, owner)? None want to bear the cost or any portion of it.

C. Even with the use of guards, a few people will still be hurt now and then. Companies would still be sued by those struck by guards, injured installing them, injured by guards installed improperly, etc.

6. Now in a Post 2002 world, they may be trying to hang on to their old ways for as long as possible.

7. They may be hanging on hoping for an alternative that does not make them look bad (something like the Virtual Lifeline tags from MariTech). Drive manufacturers could say these did not exist in the past so we did not make bad decisions then. Guards are still bad, but this new technology solves the problem, plus we can sell it at a good markup and our props will still get dinged up when they hit something, keeping our highly profitable aftermarket prop business intact. Its the best of both worlds.

*******************
Please note we are NOT saying these are the reasons, we are saying these are thoughts that have historically been put forward by us and others as possible reasons.

I suspect a large portion of it is historical baggage (the industry having long said no solutions exist, having long said props are safe because they are an open and obvious hazard, having long said prop accidents are the result of operator and/or victim negligence or alcohol consumption, facing possible retrofit costs on millions of units already in the field, plus the strong animosity that has developed between both sides of the issue over the years).

Gary
Propeller Guard Information Center
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PostPosted: Apr 08, 2010 7:33 am    Post subject: Reply with quote

how about some personal responsibility?
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PostPosted: Apr 08, 2010 7:35 am    Post subject: Reply with quote

pet575, I guess I should have re-worded a bit. Someone was at fault and if they want to take it to court between the parties involved, so be it. But to bring in the manufacturer is, to me, unreasonable (unless as I mentioned, there was some type of defect that caused the problem, which from the information given, there was not).

You can't protect the world from stupidity and/or every possible accident.
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PostPosted: Apr 08, 2010 8:02 am    Post subject: Reply with quote

GnarShredd, I agree-which is why I seconded the above comments about the jury. The JURY decided this was the manufacturer's fault for not having a safety mechanism to prevent the prop strike from happening. I'm betting that the plaintiff had some experts testify as to the ability to incorporate some type of device without huge expense or decrease in performance-someone presenting ideas similar to that posted by JT above.

If we assume that "Gary" has posted accurate information, do you still believe that the manufacturer has no responsibility? Note that the jury DID find that the injured person was also at fault, and that the manufacturer was "partially liable" and not 100% liable in the eyes of the jury.

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PostPosted: Apr 08, 2010 8:49 am    Post subject: Reply with quote

GnarShredd wrote:
But to bring in the manufacturer is, to me, unreasonable


Hopefully Pet575, or one of the other wb.com attorneys can correct me if I'm wrong here, but I think the basic strategy for almost any law suit is to sue everyone who could possibly be involved and see where it all shakes out.

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PostPosted: Apr 08, 2010 8:57 am    Post subject: Reply with quote

Without reading the whole thread... I'm assuming a good amount of R&D would be involved for each boat model requiring a propeller guard, so why the hell would a boat manufacturer want to incur such large costs and then likely have to pass them on to every consumer based on the fact that some f'ing idiot doesn't know how to drive a boat and backs it into someone swimming behind him? What's next, having to pass an IQ test in order to buy a mitre saw?
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PostPosted: Apr 08, 2010 9:25 am    Post subject: Reply with quote

pet575, Yes, I believe as a consumer, you can make the decision if you want a guard on your boat or not. Any boater with even minimal experience (heck, even just some common sence) knows that propellers can be a dangerous thing. It should be up to you if you want to do something about it or if you just want to be reasonably careful in operation.

I'm not sure how it's worded (never read through manuals or anything) but boat companies already provide warnings as to the many dangers involved and I'm sure there is at least SOMETHING about how dangerous a propeller can be.

Using the product incorrectly IMO, especially when there are clear warnings about the dangers, is not grounds for a lawsuit (but what do I know?).
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PostPosted: Apr 08, 2010 9:33 am    Post subject: Reply with quote

DRAGON88 wrote:
GnarShredd wrote:
But to bring in the manufacturer is, to me, unreasonable


Hopefully Pet575, or one of the other wb.com attorneys can correct me if I'm wrong here, but I think the basic strategy for almost any law suit is to sue everyone who could possibly be involved and see where it all shakes out.


I'm not an attorney but from my experience this is the case. I've even seen them name "John and Jane Does" to be named at a later date. Construction defect cases every contractor and subcontractor who touched the jobsite is named even if the issue is clear.

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PostPosted: Apr 08, 2010 10:05 am    Post subject: Reply with quote

if some of you want to delve into the lawyering side of it, there's plenty in the original thread here: http://www.shaggybevo.com/board/showthread.php/61199-Buddy-backs-over-friend-with-ski-boat-manfucturer-66-responsible
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PostPosted: Apr 08, 2010 10:08 am    Post subject: Reply with quote

jt09, all I'm saying is that it's an awfully Californian verdict. Welcome to liberal jury verdicts. Looks like Texas is slipping.
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PostPosted: Apr 08, 2010 11:24 am    Post subject: Reply with quote

jt09, sent you a pm on prop guards
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PostPosted: Apr 08, 2010 1:55 pm    Post subject: Reply with quote

jt09, I see a big discussion on foreseeability, reasonableness, market forces, and the competence of judges and juries. Not much discussion in there about the legal theories upon which the case was built, the testimony the lawyers put on as evidence in support of the position that some type of safety guard should exist, or the manner in which they went about building their case to actually establish a foundation that the jury could get behind.

Did I miss something?

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PostPosted: Apr 08, 2010 5:29 pm    Post subject: Reply with quote

jc on a crutch pet575...you sound like a lawyer! Laughing
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PostPosted: Apr 08, 2010 5:47 pm    Post subject: Reply with quote

DRAGON88 wrote:

Hopefully Pet575, or one of the other wb.com attorneys can correct me if I'm wrong here, but I think the basic strategy for almost any law suit is to sue everyone who could possibly be involved and see where it all shakes out.


you sue the ones that have the money. Laughing
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PostPosted: Apr 08, 2010 6:18 pm    Post subject: Reply with quote

Nor*Cal wrote:
DRAGON88 wrote:
GnarShredd wrote:
But to bring in the manufacturer is, to me, unreasonable


Hopefully Pet575, or one of the other wb.com attorneys can correct me if I'm wrong here, but I think the basic strategy for almost any law suit is to sue everyone who could possibly be involved and see where it all shakes out.


I'm not an attorney but from my experience this is the case. I've even seen them name "John and Jane Does" to be named at a later date. Construction defect cases every contractor and subcontractor who touched the jobsite is named even if the issue is clear.



Mold...
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PostPosted: Apr 08, 2010 7:43 pm    Post subject: Reply with quote

Hi! I am the Gary that webmasters the Propeller Guard Information Center and the source of some info that was quoted by others in this thread earlier. Thanks for receiving our comments in the spirit they were intended and for not lashing out at them.

Some mention wanting to see some more details of the actual Brochtrup v. Mercury Marine, et al case. We have a page covering the details of the trial at:
http://www.rbbi.com/pgic/pcases/brochtrup/brochtrup-propeller.htm

Gary
Propeller Guard Information Center
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PostPosted: Apr 09, 2010 5:02 am    Post subject: Reply with quote

So next you will be able to sue GM/Ford/Dodge/etc if someone runs over someone else?
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PostPosted: Apr 09, 2010 5:26 am    Post subject: Reply with quote

While I am not in favor of suing over this boat prop thing, the car comparison is not exactly analogous.
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PostPosted: Apr 09, 2010 6:13 am    Post subject: Reply with quote

1w00d wrote:
So next you will be able to sue GM/Ford/Dodge/etc if someone runs over someone else?


you can sue for anything. the question is whether you get a jury full of idiots like this guy did.
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PostPosted: Apr 09, 2010 8:19 am    Post subject: Reply with quote

cameraboy wrote:
While I am not in favor of suing over this boat prop thing, the car comparison is not exactly analogous.


Both instances require driver inattention. Perhaps negligence.

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PostPosted: Apr 09, 2010 8:25 am    Post subject: Reply with quote

I agree with STPHNSN23. Your litigation strategy is to include every possible option that could pay at the beginning. The rules of civil procedure limit your ability to bring them in later if you don't, and it would be malpractice if you failed to bring in a legitimate party and then were barred from doing so by the rules. That is why the "sue them all and then let it shake out" approach is followed.

My personal and professional opinion on this is that the jury only got this thing somewhat wrong. My take is that the manufacturer could/should be liable if there was a safety device that could reasonably be attached but they just elected not to do so. Of course, it would take a convincing expert to convince a jury of this-and it appears that is what happened in this case.

Where I think the jury erred, however, is in HOW MUCH liability they gave the manufacturer. Regardless of the evidence, the known facts (IMHO) should give the driver and the plaintiff AT LEAST 50% of the fault here.

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PostPosted: Apr 09, 2010 1:47 pm    Post subject: Reply with quote

Quote:
Both instances require driver inattention. Perhaps negligence.


But there is nothing exposed on a car that could chop you to pieces if you touch it while the car is running that can be made safer with the addition of a simple guard, right?

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PostPosted: Apr 09, 2010 2:38 pm    Post subject: Reply with quote

cameraboy wrote:
Quote:
Both instances require driver inattention. Perhaps negligence.


But there is nothing exposed on a car that could chop you to pieces if you touch it while the car is running that can be made safer with the addition of a simple guard, right?


We are both off point in terms of the law.

If I'm correct this is a case on crashworthiness and is supposed to determine if there is a vehicle defect based on certain criteria. The cause of the accident is not of concern and I don't think it is allowed to be introduced or alluded to in this proceeding. So then the question remains, was the boat crashworthy? This actually has little to nothing to do with propellers from my new understanding of these types of cases.

Lawyers, is this the basic gist of these type of trials?

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Joined: 08 Apr 2010
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PostPosted: Apr 09, 2010 6:04 pm    Post subject: Reply with quote

I am not a lawyer, but ...

People injured in automobile accidents sometimes sue auto manufacturers claiming their injuries caused by secondary impact with the interior of an automobile after a crash could have been prevented or mitigated by proper design, and thus the automobile was not crashworthy.

Some prop cases have used the crashworthiness doctrine, like the Decker v. OMC case tried in Naples FL last year. In that case the Judge made it very clear, the lawyers were to make no mention of ANYTHING prior to her being in the water (she was ejected). Crashworthiness cases purely focus on hitting some part of the vehicle/vessel after an event. They dont care how you got there.
Our coverage of Decker v. OMC
http://www.rbbi.com/pgic/pcases/decker/decker.htm

In the Brochtrup case, much was made of the possible contribution (liability) of Brochtrup and the boat operator in the events immediately preceding the accident. That would not have been allowed in a crashworthiness case as I understand it. Plus striking the prop did not appear to be a secondary event for him (he was not ejected).

Brochtrup claimed the boat had a defect in it when it left the factory and that that defect caused the event and his injuries.

Gary
Propeller Guard Information Center
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