Folsom v. Kawasaki Motors Corp. U.S.A.

• Decision Date: 24 May 2007
• Docket Number: No. 3:04-CV-42 (CDL).,3:04-CV-42 (CDL).
• Citation: 509 F.Supp.2d 1364
• Parties: Richard K. FOLSOM and Jan L. Folsom, individually and as co-administrators of the estate of Seth Ellis Folsom, deceased, Plaintiffs, v. KAWASAKI MOTORS CORP. U.S.A.; Kawasaki Heavy Industries, Ltd.; Kawasaki Motors Manufacturing Corp., U.S.A.; Joe Hollifield; Brady A. Stevens; and Z.S., a minor, Defendants.
• Court: U.S. District Court — Middle District of Georgia

Page 1364

509 F.Supp.2d 1364

Richard K. FOLSOM and Jan L. Folsom, individually and as co-administrators of the estate of Seth Ellis Folsom, deceased, Plaintiffs, v. KAWASAKI MOTORS CORP. U.S.A.; Kawasaki Heavy Industries, Ltd.; Kawasaki Motors Manufacturing Corp., U.S.A.; Joe Hollifield; Brady A. Stevens; and Z.S., a minor, Defendants.

No. 3:04-CV-42 (CDL).

United States District Court, M.D. Georgia, Athens Division.

May 24, 2007.

COPYRIGHT MATERIAL OMITTED

Charles H. Rabon, Jr., Charlotte, NC, Frank A. Cassiano, Jr., Greenville, NC, John D. Harvey, Atlanta, GA, for Plaintiffs.

Michael J. Goldman, Atlanta, GA, Richard Alan Mueller, St. Louis, MO, Weymon H. Forrester, Gainesville, GA, for Defendants.

ORDER

CLAY D. LAND, District Judge.

As a result of a `tragic Jet Ski accident, Plaintiffs filed this lawsuit in which they allege product liability claims against the manufacturer of the Jet Ski, Kawasaki.¹ Kawasaki filed two motions for summary judgment, contending that federal law preempts all of Plaintiffs' claims and, in the alternative, that it is entitled to judgment as a matter of law under applicable state law. Kawasaki alscl filed a motion seeking to exclude the testimony of Plaintiffs' proposed experts.² For the following reasons, Kawasaki's motion for summary judgment is granted as to Plaintiffs' design defect, negligence per se, and punitive damages claims. The Court also grants Kawasaki's motion to exclude Plaintiffs' experts. With respect to Plaintiffs' failure to warn claim, however, the Court denies summary judgment.

FACTUAL BACKGROUND

I. Plaintiffs' Claims

This lawsuit arises from an accident involving a 1998 Kawasaki 900STX Jet Ski personal watercraft ("the Jet Ski"). The accident resulted in the drowning death of Seth Ellis Folsom, who was floating on a raft in Lake Hartwell when Defendant Z.S., driving the Jet Ski, temporarily lost control of the steering mechanism and struck Seth on the head with the rear of the vessel. Plaintiffs Richard and Jan Folsom, Seth's parents, filed this lawsuit to recover for his death. Although Plaintiffs assert various tort claims against the individuals involved with the accident, each of the motions presently pending relate exclusively to the product claims against Kawasaki, the Jet Ski manufacturer. Plaintiffs allege that Kawasaki is liable for: (1) defective product design for failing to provide off-throttle steering capabilities; (2) failure to provide adequate warnings of the complications associated with off-throttle steering loss; and (3) negligence per se. Plaintiffs also seek punitive damages. Subject matter jurisdiction is based upon diversity of citizenship. See 28 U.S.C. § 1332.

II. Personal Watercraft and Off-Throttle Steering

The allegedly defective product is a 1998 Kawasaki 900STX Jet Ski personal watercraft vessel. Personal watercraft ("PWC"), like the Kawasaki Jet Ski, are small recreational boating vessels powered by an inboard motor. Although PWC are classified As motorboats, they differ from more traditional vessels in that "[a] PWC uses a moveable nozzle connected to a jet pump, rather than a propeller, to [create] power[.]" (Pls.' Resp. Br. Opp. Defs.' Mot. Summ. J. Generally, and Mot. Summ. J. on Claims of Failure to Warn, Negligence Per Se and Punitive Damages Ex. B-1 at 9) [hereinafter "NTSB Safety Study"]. To operate a PWC, the driver must engage the throttle to push water through the jet pump. In most models, "[t]urning the PWC handlebars changes the angle of the water exiting the jet pump" and allows the operator to maneuver the vessel. (Id.)

PWC maneuverability is completely dependant upon application of the throttle. This unique design feature creates what is known as "off-throttle steering," which is a trade term used to describe

the situation that exists when an operator releases the throttle and then attempts to execute a turn. The term is an oxymoron because there is little or no steering capability when the throttle is off.... [W]ithout power to the jet pump, there is little or no directional thrust .... [C]losing off the throttle leaves the vessel coasting in the original direction based on the effects of momentum, and without throttle there is very limited steering control. [PWC] have no braking mechanism; they coast to a stop and, while coasting, there is no turning ability.

(Id.) Consequently, in order to maintain maneuverability in a potential collision, the operator must continue to apply the throttle even though it "may feel like speeding toward a hazard." (Id.) Since the "typical response based on experience with other motor vehicles is to first let off the throttle and then attempt to steer away from the hazard[,]" PWC can be hazardous in the hands of those who are unfamiliar with the distinctive operating and handling characteristics of these vessels. (Id.)

III. Kawasaki's Warnings Regarding Off-Throttle Steering

Kawasaki provides warnings to the owners and operators of its Jet Skis about the potential dangers associated with off-throttle steering. For the 900STX model, Kawasaki affixes a warning label to the right side of the front hull, forward of the handlebars, just below knee height. The word "WARNING" appears at the top of the sticker, with the following statements appearing approximately halfway down: "Releasing the throttle completely reduces the ability to steer. This can cause you to hit an object you are trying to avoid. You must have thrust to turn." This same warning also appears on the first page of the Kawasaki Jet Ski Owner's Manual, which directs owner's and operators to "READ THIS FIRST!" The manual further advises that

[t]he JET SKI watercraft is not a toy[.] ... Underage operators may be hazardous to themselves and others. You must know and observe your state's minimum boating age regulations. Kawasaki does not recommend operation of this watercraft by persons under the age required for a driver's license. Don't forget to watch out for other boats, swimmers, or obstructions in your path. This is especially critical during a beginner's first exciting ride.

Kawasaki also includes the express recommendation that all Jet Ski owners "BECOME THOROUGHLY FAMILIAR WITH PROPER OPERATING PROCEDURES" and "[m]ake sure anyone who operates [the] watercraft is fully acquainted with the proper operating procedures."

IV. The Accident

The accident giving rise to the present litigation involved an inexperienced Jet Ski operator who was unfamiliar with offthrottle steering. On the afternoon of May 25, 2002, the deceased, Seth Folsom, and his girlfriend, Kim Schaffert, were floating on a raft off the Georgia shore of Lake Hartwell. They were spending the Memorial Day holiday with Kim's family, who occupied multiple campsites along the lake's shoreline. A few minutes after she and Seth entered the water, Kim noticed a Jet Ski turn into the cove and head toward them. She immediately recognized the driver as her fourteen-year-old cousin, Defendant Z.S. Another of Kim's cousins, Defendant Hollifield, was riding on the back of the Jet Ski.

Various members of the family recall seeing Defendant Hollifield use the Jet Ski to splash people swimming in the lake on the morning of the accident. (See M. Schaffert Dep. 8:23-9:14, Jan. 28, 2005; K. Schaffert Dep. 26:6-28:16, Jan. 28, 2005; Z.S. Dep. 47:10-21.) One of the witnesses described this maneuver as coming up "from the side" and sharply turning the vessel so that "[t]here was just like waves and a little water splashed." (M. Schaffert Dep. 12:16, 13:2-3.) The Jet Ski belonged to Defendant Stevens, who was staying at a campsite on the shore of an adjacent cove. At the end of his ride, Defendant Hollifield met Defendant Z.S. at Defendant Stevens's campsite to turn over the Jet Ski. Defendant Z.S. agreed to transport Defendant Hollifield back to his campsite, which was near where Seth and Kim lounged in the water. When Defendant Z.S. entered the cove in which Seth and Kim lounged, Kim "remember[s][] mentioning to Seth that [he] might be coming to splash us." (K. Schaffert Dep. 44:25-45:2.) Although he admits to having briefly entertained the idea of "using the [J] et [S]ki to splash [them,]" Defendant Z.S. maintains that he "did[not] act on the thought by changing the direction [he was] heading or accelerating or anything like that."³ (Z.S.Dep.119:1-2, 121:7-9.) He also maintains that he did not see Defendant Hollifield perform this maneuver earlier in the day.

Defendant Z.S. drove the Jet Ski at nearly full speed as he rounded the peninsula between the two inlets. He released the throttle, intending to continue his arcing, left-hand turn and coast in to shore. Once he released the throttle, however, the Jet Ski broke the turn and continued to glide in a straight line directly toward Seth and Kim. In a panic, Defendant Z.S. turned the handlebars left, then right, then left again, but he was unable to change the direction of the Jet Ski. The moment before impact, in a last ditch effort to avoid the collision, Defendant Z.S. jerked the handlebars hard to the left and reapplied full throttle. Defendant Hollifield was thrown from the vessel, Kim was knocked off the raft, and "the tail end [of the Jet Ski] whipped around and hit [Seth] in the head." (Id. at 99:9-10.) The blow rendered Seth unconscious, and he quickly sank to the bottom of the lake. Kim began to scream when she realized that he had not emerged from the water. Defendant Z.S. went into the woods, crying and throwing up, continuously repeating that "it wouldn't turn, it wouldn't turn, it wouldn't turn." (Debra Smith Depo. 18:1647, Jan. 27, 2005.) Although Seth was recovered from the lake and temporarily revived, he never regained consciousness and ultimately died as a result of his injuries.

All parties acknowledge that Defendant Z.S. was a novice Jet Ski operator. He testified that he had "probably [] actually ridden [a Jet Ski] three or four times" for a total of approximately two hours. (See...