Perez v. Yamaha (West Palm Beach, Florida)
A West Palm Beach jury awarded damages of $35M in a products liability trial involving a Yamaha WaveRunner jet ski operated by two teenage girls. The watercraft's defective steering system caused the craft to strike a boat, killing one of the girls, and causing serious injuries to the other, including permanent brain damage. The water scooter lacked off-throttle steering, which means the personal water craft (PWC) lost steering ability when the throttle was released.
In his closing argument, Robert Baker (Baker Zimmerman) showed the jury video of a test run of the 2001 Yamaha XL800 WaveRunner with the rider releasing the throttle at 30 mph then attempting to turn. "See it with your own eyes, see what happens over a 110-foot course. Look how it hits the head pin. This isn't even a close call...If there's a boat at the end of that bouy course, he's dead...Every one of his 30 mph runs in the OEM or as-manufactured condition is a hit. It violates the course."
However, Baker continued, "Every one of them with this crude rudder device -- a prototype built in a garage for $20 in parts from Home Depot, with a door hinge attaching it to the personal watercraft -- misses. This company, with all their engineers, all their resources, all their money couldn't fix it? Are you kidding me?"
A simple fix would have attached rudders to the steering device, so that turning the steering wheel of a watercraft in motion would turn the watercraft, using the craft's momentum through the water, even if the propulsion mechanism was not active and pointing in one direction or the other. Said Baker, "It's Yamaha's job to make this product safe. They control every aspect of the design. It is their responsibility to design out this hazard. They had the means, they have the way, it was feasible, it was inexpensive, the technology's available for decades....We're talking about a...retractible rudder. This is not high-tech. This is extremely reckless, highly irresponsible behavior."
Baker reminded the jury that the Yamaha's 1987 manual described the throttle-steering risk as loss of control by beginners that could result in injury or death. "So they know the problem, they know the at-risk group, they know the consequences. They know all that before they introduced the thing in the marketplace. And the shameful aspect about that is they did nothing...totally and recklessly indifferent to correcting this defect, despite a mountain of notice...Is off-throttle steering counter-intuitive? Every other motorized or non-motorized vehicle you have ever used in your life will steer when you reduce energy. One exception: Yamaha's PWC."
Referring to Yamaha's "system of information," which was to alert riders how to handle the off-throttle steering problem, Baker said, "But for the defect, [plaintiff Samantha Archer] misses this impact by a mile...She makes that turn within 70 feet. She could have made two turns in the width she had. To blame her defies all logic. The 'system of information' is nonsense, it's garbage. It's bogus to say instructions and warnings make it not-defective. Fix it!...The life-saving information on the side of the craft [is] buried three-quarters of the way down. It's a joke. They don't put it on the handle bars, they dilute it with too much information, the location is garbage."
For Yamaha, Richard Mueller (Thompson Coburn) told the jury, "Of the evidence they brought to you, there was no accident reconstruction. In fact, the only thing that they showed you was an effort to provide an animation of one person's recollections. An animation of one person's post-lawsuit recovered recollections, contrary to everyone else's recollection."
The proposed rudders were unsafe and dangerous, said Mueller, because they would actually have made the craft less maneuverable, and would create a serious cutting hazard. Although retractable rudders could avoid the cutting risk, they have to have time to come down and to have an effect, "and not one expert has come in here for the plaintiffs to tell you that whatever hypothetical system that they didn't build...would make any difference in this case."
Morever, said Mueller, the plaintiffs did not even establish that the watercraft driver was off-throttle at the time of the accident, and witness testimony suggested that the watercraft driver was not off-throttle and was even oblivious to the presence of the boat.
Yamaha knew, said Mr. Mueller, that most watercraft accidents resulted from operator error, such as carelessness, recklessness, excessive speed, violation of the rules of the road, and wake-jumping -- behaviors that would continue to cause accidents even if rudders were present. But, the presence of rudders would make these accidents even more dangerous, because someone would get cut.
In his closing rebuttal, David Kleinberg (Neufeld Kleinberg), told the jury, the case was not about rudders, but was about a jet ski with no off-throttle steering, and it was Yamaha's job, not the plaintiff's job, to work out a safer design, which might or might not rely on rudders. In any case, said Kleinberg, "rudders allow the person to steer and avoid. Saying rudders is a cutting hazard is like saying tires on a car is a crushing hazard. If you can steer away, you won't crush anyone. If you don't have rudders, well, you may not cut the person, but you're gonna knock his head off and commit blunt trauma -- but there won't be any stitches needed!"
The jury found that the 2001 Yamaha WaveRunner XL800 was defective both in design and in failure to warn. The jury allocated 88% of the fault to the manufacturer. The jury awarded approximately $39.8M damages to the two families, of which Yamaha would be liable for 88%, or approximately $35M.
CVN webcast live this jet ski off-throttle steering trial.
