Colombo v. BRP US Inc.
| Decision Date | 30 October 2014 |
| Docket Number | D062342 |
| Citation | 179 Cal.Rptr.3d 580,230 Cal.App.4th 1442 |
| Court | California Court of Appeals Court of Appeals |
| Parties | Haley COLOMBO et al., Plaintiffs and Respondents, v. BRP US INC. et al., Defendants and Appellants. |
Haight Brown & Bonesteel, Jule S. Zeman, William O. Martin, Jr., Los Angeles,Chandra Moore, San Diego, and Blythe Golay, Los Angeles, for Defendants and Appellants.
Smith, Steiner, Vanderpool & Wax, Ann M. Smith, Kathryn A. Schultz; Tosdal Law Firm and Thomas Tosdal, San Diego, for Plaintiffs and Respondents.
BENKE, Acting P.J.Defendants and appellants Bombardier Recreational Products, Inc., and BRP US Inc. (collectively BRP) appeal a jury verdict in favor of plaintiffs and respondents Haley Colombo and Jessica Slagel (hereafter referred to individually by first name or collectively as plaintiffs). Because plaintiffs were not wearing wetsuit bottoms or similar protective clothing, Haley sustained serious and permanent injury to her rectum and Jessica to her vagina when, because of operator negligence, they fell off the back of a three-passenger watercraft manufactured by BRP, model GFI 4–TEC. Once in the water, Haley and Jessica were both injured when the powerful jet thrust from the watercraft ripped their flesh.
The jury found the owner of the personal watercraft (PWC), Robert Adamson doing business as Mission Bay Jet Sports (store; collectively Adamson), its operator and store employee, Brett Kohl (Kohl), and BRP each one-third liable. The jury also awarded punitive damages against BRP, finding its conduct manifested a reckless or callous disregard for plaintiffs' rights and safety.
On appeal, BRP contends the evidence in the record is insufficient to support the jury's causation and punitive damages findings, made under federal maritime common law. In the alternative, it contends the trial court erred when it refused, under this same law, to reduce the amount of punitive damages awarded each plaintiff to equal their respective compensatory damages awards; admitted evidence that, at the time of plaintiffs' accident, BRP had notice of previous claims of orifice injuries to passengers but excluded evidence proffered by BRP to show the causes of the previous claims allegedly were not substantially similar to plaintiffs' accident; and made a series of other rulings that BRP alleges amounted to a denial of a fair trial.
As we explain, we reject each of these contentions and affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND1
In late July 2007, then 16–year–old Haley and her older sister, Megan, visited San Diego to help their sister, Chelsea, move. Haley invited her longtime friend, Jessica, to come along as the group also hoped to go “jet-skiing” in Mission Bay.2 Before the accident, Haley had never been on a PWC. Jessica had ridden on and operated a PWC a few times and told Haley it was fun.
Kohl—the operator of the BRP watercraft involved in the accident (hereafter sometimes subject PWC)—was the roommate of Chelsea's boyfriend. As a reward for helping Chelsea, Chelsea's boyfriend made arrangements for the group to meet Kohl at the store and then go to Mission Bay where they could ride the BRP PWC's.
At Mission Bay, Kohl and Chelsea's boyfriend unloaded two PWC's from a trailer while Haley and Jessica waited on the shore. Haley and Jessica each wore a two-piece bathing suit. Nobody in the group, including the operators of the PWC's, wore a wetsuit bottom or similar protective clothing. After putting on life jackets, Haley and Jessica waded into the water to meet Kohl. When Haley and Jessica boarded the subject PWC from the back, Kohl already was sitting in the “driver's seat.” Kohl did not give them any instructions, safety or otherwise, about riding on the subject PWC.
Haley testified she had no plans that day to operate the subject PWC but was only going to ride as a passenger. In addition, she did not know how the PWC moved through the water, including how fast the water exited the jet-thrust nozzle located underneath the PWC, as it accelerated from a stopped position.
Haley also testified she did not see the “printed material” on the label located under the handlebars on the console of the subject PWC, which included the word “WARNING”; provided that severe injuries to “body cavities” can occur “as a result of falling into water or being near [the] jet thrust nozzle”; and provided that “[n]ormal swimwear does not adequately protect against forceful water entry into lower body opening(s) of males or females,” and, thus, “[a]ll riders must wear a wet suit bottom or clothing that provides equivalent protection” (hereafter sometimes subject warning). (Italics added.)
According to Haley, if this information had been placed on the back of the subject PWC where it could be seen by a passenger, she would have read and paid attention to it and either would not have ridden on the PWC or would have obtained a wetsuit bottom or similar protective clothing before riding. Haley also testified Kohl did not tell her or Jessica they needed to wear protective clothing to reduce or eliminate the risk of orifice injury.
Haley testified she and Jessica initially were having fun riding as passengers on the subject PWC. Haley sat directly behind Kohl and Jessica behind Haley. However, at some point, Kohl made a sharp turn, causing both girls to fall off the side of the subject PWC into the water. Haley felt Kohl was intentionally trying to throw them off to “show[ ] off.” Although not hurt, Haley said hitting the water “stung.” Both she and Jessica told Kohl they did not like being thrown off the subject PWC. When they reboarded the subject PWC, Jessica sat behind Kohl and Haley behind Jessica.
Without warning, Haley next felt a Haley put her hand into her bathing suit bottom and pulled out “a ball of flesh.” Haley also saw Jessica in the water, crying. Megan and Chelsea's boyfriend, who had been riding nearby on the other PWC, came to their assistance. As she rode back to the shoreline, Haley testified she was bleeding profusely. Once at the shoreline, Haley saw blood running down Jessica's legs.
An ambulance met Haley and Jessica and transported them to the emergency room. Haley had surgery to repair her external and internal anal sphincter muscles, which had been severed by the jet stream from the jet-thrust nozzle of the subject PWC. Haley wore a colostomy bag while she healed, including at school, until it was surgically removed about four months after the accident. At the time of trial, Haley continued to experience issues with anal control and leakage, which made her feel “isolated,” “different” and “ruined.”
Jessica testified she was 17 years old and entering her senior year in high school when the accident occurred. About a month earlier, Jessica had operated a PWC while vacationing in Hawaii with her family. On that occasion, Jessica was not told she needed to wear protective clothing before operating the PWC, and neither Jessica nor her family members wore such clothing before boarding the PWC. Jessica could not recall the manufacturer of the PWC she rode in Hawaii.
Jessica testified she also rode on and operated a PWC when she was 16, while visiting a relative in Florida. She also could not remember the name of the manufacturer of the PWC she rode in Florida but recalled her relative rented it at the beach. Jessica also did not receive any instructions then regarding the need to wear protective clothing before boarding the PWC nor did she wear any such clothing.
Jessica testified that, on the date of the accident, she and Haley helped Chelsea and then drove to the store, where they waited in the car. Afterwards, they drove to Mission Bay and watched from the shoreline while the two PWC's were put into the water. Jessica put on a lifevest and, along with Haley, waded waist deep into the water where they were met by Kohl.
Although Jessica had operated a PWC before, she testified she did not know anything about the jet-thrust nozzle or how the watercraft was propelled through the water. She also did not see the subject warning on the console of the subject PWC because Kohl already was seated in the operator's seat, and both she and Haley boarded from the back.
Jessica testified Kohl did not tell her she needed to wear protective clothing to ride on the PWC, and she did not know BRP included such a warning on the console of the PWC. Like Haley, Jessica told the jury if BRP had included such a warning or the word “danger” where she could see it before boarding the PWC, she would have paid attention to that warning and either acquired protective clothing or not ridden on the PWC.
Jessica testified she initially sat behind Haley. Jessica put her arms around Haley's waist to hold on and could see Haley's arms around Kohl's waist. Jessica testified she and Haley were initially having fun until Kohl made a sharp turn, causing both girls to fall into the water. Both she and Haley told Kohl not to throw them into the water. In response, Kohl said, “I promise I won't.”
After the girls reboarded the subject PWC, Jessica felt “like a push, a force, pushing [her] off the back of the jet ski.” She landed in the water with her legs spread and immediately felt pain in her vagina. Jessica said she felt like she had been “punched” and had “hit concrete.” Megan and Chelsea's boyfriend helped Jessica onto their PWC because Jessica refused to ride back to shore with Kohl. At that point, Jessica said the blood from underneath her bathing suit flowed like a “faucet” and filled up the foot wells of the PWC.
At the hospital, Jessica had surgery to repair her vagina and the tear from her “rectum to [her] vagina.” At the time of trial, Jessica testified that she still experienced some pain and discomfort, that she...
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