Ford v. Polaris Industries, Inc.
| Decision Date | 18 May 2006 |
| Docket Number | No. A106375.,A106375. |
| Citation | 43 Cal.Rptr.3d 215,139 Cal.App.4th 755 |
| Court | California Court of Appeals Court of Appeals |
| Parties | Susan FORD et al., Plaintiffs and Respondents, v. POLARIS INDUSTRIES, INC., et al., Defendants and Appellants. |
Bowman and Brooke, George W. Soule, Janice K. O'Grady, San Jose, Bingham McCutchen, David M. Heilbron, Robert A. Brundage, San Francisco, for Appellants.
Walkup, Melodia, Kelly, Wecht & Schoenberger, Paul V. Melodia, Michon Herrin, San Francisco, De Goff and Sherman, Victoria J. De Goff, Richard Sherman, San Francisco, for Respondents.
Susan Ford sustained severe orifice injuries after falling off the rear of a two-seater Polaris personal watercraft. The jet-powered nozzle propelled a high-pressure stream of water that tore apart her internal organs. Today she uses a colostomy bag, urinates through a catheter, and her lower right torso and leg are numb from nerve damage. Susan and her husband sued the manufacturer and distributor of the watercraft on a strict products liability theory.
This appeal frames the question whether the doctrine of primary assumption of risk applies to the manufacturer of the personal watercraft so as to preclude the injured jet skier from raising a defective design claim. We conclude that the trial court properly ruled that primary assumption of the risk did not bar plaintiff's suit. The appeal also addresses the propriety of instructions in a strict products liability case where the plaintiff alleges that the personal watercraft was defectively designed and caused her injury. We determine that the standard instructions on defective design were adequate.
Finally, defendant manufacturer insists that the court below erred in refusing to permit the jury to allocate fault to the watercraft operator for giving misleading instructions to the injured skier and to the owners and operator for failure to pass on safety warnings. This assertion begs the questions: Did the operator owe a duty not to deliver misleading instructions and did the owners and operator have a duty to convey the manufacturer's warnings? Finding no such duties, we reject these contentions as well and affirm the judgment.1
In April 2001 Steve and Laura Nakamura2 bought two 2-seater Polaris SLH-700 personal watercraft.3
On September 9, 2001, the Fords and Nakamuras and various family members went to Lake Berryessa for a picnic. Laura took Susan for a ride on the watercraft. Susan was wearing a one-piece swimsuit and a life jacket. This was her first time riding a personal watercraft.
Susan held onto Laura's waist. After about five minutes, Laura stopped to tell Susan she was holding on too tight and to hold onto the grips behind her instead. Susan looked around; all she saw were the grab handles. She had to lean back and could only hook a couple fingers into each handle.
They started out again in a straight line. The jet ski was "bumping up and down." Susan lost her grip, was lifted off the seat and fell backward off the rear of the watercraft. As Susan hit the water she felt "a lot" of pain and vomited. Laura saw Susan floating in a pool of blood. Paramedics rushed Susan by helicopter to University of California Davis Medical Center.
Susan sustained a severe hernial and rectal injury. Her internal bleeding required multiple transfusions. Two surgeries were required to prepare and establish a colostomy. Medical records indicate she also required "massive resuscitation . . . from her initial operation."
Susan was in the hospital for 10 days, followed by a five-day postoperative stay at North Bay Medical Center.
Susan has no control over her bowels. She was evaluated for rectal-colon reconstructive surgery, but the specialist concluded there was no possibility of reconstruction. When Susan learned this, she "basically fell apart."
The injuries also created urological complications such that Susan must self-catheterize in order to urinate. As well, Susan is numb from her right kneecap to her waist; her buttocks and pelvic area are also numb. She can no longer engage in such activities as playing softball and dancing. And, because of loss of sensation and the physical limitations she endures, Susan and Anthony's sex life has suffered. Susan used to work at Raley's Superstore but was unable to keep up with her responsibilities after she returned to work. She now takes care of her father-in-law.
Michael Burleson, an industrial engineer and safety professional with extensive experience on personal watercraft concerns, testified that the jet nozzle is centrally positioned in back of the Polaris watercraft and protrudes two and five-eighths inches beyond the rear deck. The position of the jet increases the chance of high-pressure exposure should a passenger be ejected to the rear of the watercraft. Susan landed less than a foot from the back of the jet nozzle.
When a watercraft is accelerating and encounters a wave, the passenger can "get some lift" off the seat, and if the passenger is not well coupled to the craft he or she may lose balance and roll off. When there is a rearward ejection into the stream of water thrust by a jet nozzle such as occurred with Susan, the high pressure of the water penetrates the body, causing internal injuries.
Burleson explained that because it is important that nothing interfere with the operator's ability to control a personal watercraft, a passenger cannot always hold onto the operator. Sometimes passengers pull more than is comfortable for the operator. In some situations it may not be feasible to hold on, for example if the operator stands up to move around. As well there may be social constraints to holding onto the operator. A significant difference in size may also militate against holding on.
In Burleson's opinion there was a defect in the design of the SLH Polaris watercraft because this particular craft lacked adequate design safeguards to protect against a rearward ejection injury. In other words, there was no easily identifiable alternative means for the passenger to hold on when it was not feasible to hold onto the operator.
Several feasible design features were available to Polaris to protect against rear ejections. A seatback is one alternative to prevent the passenger from "coming off" the back.4
Another solution would be recognizable and accessible handgrips that the passenger can "grasp completely." The grips Burleson proffered protruded from the side of the craft. Many manufacturers have switched from protruding handles to the recessed handles that were on the Polaris craft.56
For fifty cents at most, a simple seat strap that goes around the seat would provide a secure handhold for passenger stability. Several models in the Polaris manual for this machine had a seat strap, and there were bolt holes for such a strap on the craft but it had not been installed. Had the machine been equipped with a seat strap, Burleson did not think the accident would have occurred.7
Dr. Edward Karnes was the Fords' human factors engineer. That discipline concerns the evaluation of human factors involved in the design and use of products, including how people understand risks and respond to warnings. He described the hazard in this case as falling off the rear of the watercraft and being struck by the jet thrust. The manufacturer's job is to identify and evaluate hazards and make decisions about remedies according to a safety hierarchy. The first tier on the hierarchy is to design out the hazard. If that cannot be accomplished, the next tier would be to provide some type of guard to prevent access to the hazardous situation. Warning — the last tier — is an appropriate remedy only if the hazard cannot be eliminated by design or guard.
Polaris's solution to orifice injuries was to admonish participants to wear protective clothing. The rear and front on-craft labels for the SLH warned that the passenger must wear a wetsuit or equivalent protective clothing to avoid orifice injuries. The owner's manual reproduced the rear decal, in bigger typeface, as well as the front warning label, and instructed elsewhere to wear protective clothing for body or orifice protection. Susan did not notice the warning decal and, being a guest, she never saw the owner's manual.
In Dr. Karnes's opinion, warnings alone were not an appropriate remedy for the hazard that creates the risk of orifice injury. He regarded the cost of compliance — or the effort required to comply with warning — as high for wearing a wetsuit. First, they are not comfortable when worn in warm weather conditions. Second, the likelihood that owner-operators would have wetsuits on hand for recreational passengers such as friends or family members is "going to be about nil." Third, the person at greatest risk — the passenger — is also the person least likely to have read the vehicle warning label.
Moreover, although the Polaris decal warning provided correct basic risk factor information about the need to wear protective clothing, the forceful entry of water into orifices and the need for all riders to wear protective clothing, Karnes considered the warning inadequate because it did not identify the risk (falling off the rear of the craft) or pinpoint those who were at greatest risk, namely passengers. Additionally, had the decal been placed on the seat, it would be more conspicuous to the passenger. From the operators' perspective, the warning label fails to tell them directly not to give a ride to someone who is not wearing protective clothing, and why this is important. Further, the admonition to wear protective clothing was undermined by the safety video which did not discuss orifice injuries or the special risk to passengers, and indeed portrayed passengers in bathing suits, never in protective clothing.
Kevin Breen, Polaris's forensic...
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