July 19, 2013

In a boating accident, it is often common for there to be
multiple vessels involved in a collision on the water.
However, in the instant case, the plaintiff brought a legal
action for serious and permanent injuries involving a single
Kawasaki jet ski, a type of personal water craft. In typical  
boating accidents, the theory often applied is one of
negligence. This means that there existed a legal duty, there
was a breach of that legal duty, injuries arose as a result of
that breach of duty, and that the breach was the proximate
cause, or legal cause of the injury (or damages).

This could mean that someone failed to follow the rules of
the road, safety procedures, was under the influence of
alcohol or drugs, or was otherwise negligent or reckless in
the operation of a vessel. In this lawsuit, the legal theory
applied by plaintiff's attorneys was product liability. In a
product liability action, the claimant asserts that a product
was defective. In the legal sense, "defective," means that the
product presents a hazard to the user. A product liability
cause of action can arise out of defective manufacture,
defective design, or a failure to warn.

Naturally, the ordinary utility of the device or equipment is
considered. A knife is dangerous, when one considers the
potential for misuse or careless use. However, it cannot be
made any safer without impeding its utility, function, and
purpose. In product liability cases, lawyers generally argue
that a product could have reasonably been rendered safer to
use. The case at hand is no. 12-14667, filed on Feb. 20, 2013
in the United States Court of Appeals for the Eleventh Circuit,
D.C. Docket No. 6:08-cv-00009-WTM-GRS. The plaintiff-
appellee cross appellant brings action against defendant jet
ski manufacturer, also the appellants cross appellees. The
matter is an appeal from the United States District Court
from the Southern District of Georgia.

The plaintiff was a passenger on the back of a jet-ski. The
operator took off at high speed, causing plaintiff to fall off the
back. She suffered serious injuries when the high pressure
stream of water expelled by the jet drive mutilated parts of
her body. In her lawsuit, based on defective design and
failure to warn, the jury in the Southern District Court of
Georgia ruled in her favor for the first issue, defective design
issue. The defendant jet ski manufacturer prevailed on the
second issue, failure to warn. The manufacturer asserted
that the driver of the personal watercraft should have been
included in the action. The court acknowledged that the
operator was not a co-defendant in the original summons
and complaint. The plaintiff was awarded $3,000,000 for past
and future medical expenses. However, she was not
awarded monetary damages for pain and suffering.

In maritime personal injury cases, non-economic losses,
such as pain and suffering, mental anguish, or emotional
distress could be greater than the dollar value of economic
losses. Economic losses are monetary damages for harm
that can be quantified with exactness, such as past and
future lost wages, past and future medical expenses,
property damage, etc. This includes things such as
emergency room visits, physical therapy, orthopedic
surgery, neurological testing, chiropractic care,
psychological therapy and counseling, etc. It also includes
broken equipment and repair costs (or total loss declaration)
for a vessel's hull and machinery, as well as personal
property aboard the vessel. In contrast, placing a monetary
value on non-economic damages, such as pain and suffering
is different, since jurors could have difficulty in determining
the exact dollars and cents value of something like mental
anguish or emotional distress.

After the jury in the lower district court returned a verdict in
favor of the jet ski passenger on her design defect claim and
awarded her $3 million, the manufacturer appealed. After the
manufacturer filed an appeal, the plaintiff cross-appealed.
After review, the circuit court affirmed the appeal and the
cross-appeal.

The accident itself occurred in 2006. The jet ski was being
operated by the plaintiff's friend, in the navigable waters of
The Bahamas. According to court transcripts, the vessel
operator asked her passenger, “Are you ready?” The
passenger then answered, "Yes.” The operator then
accelerated very quickly. The plaintiff, who was a passenger
in the rear, fell backwards. The water of the jet drive caused
severe and permanent damage to her lower regions,
requiring her to undergo some 19 separate medical
procedures and surgeries. She will likely have to wear a
colostomy bag and self-catheterize for the rest of her life,
unless a medical breakthrough emerges in the future.

Since the plaintiff did not object to the verdict before
discharge of the jury, the challenge to the issue of failure to
award damages for pain and suffering was barred. This is an
unfortunate outcome, considering the irrefutable and
incontrovertible evidence of pain and suffering sustained by
the accident victim in this case.

Link to the
decision of the United States Court of Appeals for
the Eleventh Circuit in this case.


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