Malibu loses $200 million lawsuit in GA.

[aupatking]

Even when used for the purpose it’s designed for, a canoe will flip over. It’s due to poor handling by the user. You don’t see the makers of Old Town canoes being sued for drowning deaths (maybe that’s next). This guy did it wrong. The end result was tragic, but not Malibu’s fault.

If this is to be upheld, it holds that those race boats designed to race in literal “ditches” would have to be redesigned to function like all other boats? That’s ridiculous! It, then, could not perform what it is designed to to do.

[Clydesdale]

So, using the canoe analogy…. What if you rented something that looked just like a rowboat? You thought it was a rowboat. You expected it to behave like a rowboat. No one told you it wasn’t a rowboat. But then it flipped like a canoe. Agree some blame goes to the driver. And as a skier I want to let Malibu off the hook. But…. I can see how they ruled malibu as partially liable. The award is silly i think.

[buechsr]

@swbca

I understand that. But a lot is being conflated between the news stories and the posts herein, some of which are seemingly just flat incorrect (if the reporting is accurate). But I can’t keep from responding since I’m a former Response LX owner and interested in some of these issues.

 

Your Prostar is similar of course, but still not quite the same as a Response LX. Unless I’m forgetting about a prostar era, the Response LX is unique in that in a bow swamp, water can’t move (quickly) to the stern because there is no walk-through. Nonetheless, you’re aware of how your boat drives, its limitations, and its dangers. MOST owners (or drivers) are. I still own a Response built in the era of the boat involved (closed bow now though :) ). The DISTINCTION IS: you, I, and many with years of experience appreciate those dangers. That was not the case here, which is precisely why there are duties to warn people who have no other way of knowing. While the verdict would have likely been much different if one of “us” were driving, ask yourself, is it really that unreasonable for a sober adult to have 3 very young kids in a bowrider and (reportedly) cross your own wake at 10 mph? We as a group might have handled things different, but it’s not like the description of what took place was in any way reckless or egregious, or for that matter in any way not totally predictable use by an owner or renter. And yet, here we are, unfortunately. I’m sure the boy’s parents would rather just have him back.

 

As to your Audi analogy, if Audi’s engineers were deposed about an RS7’s top speeds, rest assured they’d have answers about their testing and why the limits are what they were. Product liability does not arise simply because a product can be dangerous. However, the more appropriate analogy would be a 7 year old boy killed by a an RS7 towing a trailer using a factory available hitch at the speed limit if Audi had not provided information from which owners can appreciate that which Audi engineers think they can safely tow. The paradigm is a little different there, isn’t it?

 

 

[aupatking]

@Clydesdale the boat manufacturer would be to blame though? I don’t see it. If the person renting or selling the boat didn’t disclose what it’s intended purpose is, does the liability go further than them? They just don’t have the money that Malibu is perceived to.

A Malibu ski boat is designed to break world waterskiing records. That’s it. At the very least, it’s designed to perform at elite waterskiing levels. It’s not designed for offshore fishing, so used in that type of environment, cannot be safe. I get that it was not being used offshore, but it also was not being used in a waterskiing capacity.

What do Waterski boat drivers look for? One thing I would contend is on the list is vision. A downswept bow aids that. So, for what it is designed for, the design aids it’s ability to perform

[buechsr]

@aupatking I’d disagree that Response LXs were designed to break world records. They were designed to be sold, and their ability to be sold relied on their ability to break world records, or at least perform like their world breaking brother with a closed bow that WAS designed to break world records. Big difference in paradigm, especially when the open bow does not contribute to “breaking world records”, the bow was cut out simply to sell more boats, as confirmed by Bob Alkema.

 

No reasonable person would assume that a Malibu Response was intended as an off shore fishing boat, just like no reasonable person would have the expectation that an off shore boat should draft 4 inches of water and get into creeks like a flats boat. However, a reasonable person could easily expect that because there are seats in the bow of a response LX, that they can be used by kids while they toodle around at around 10mph. At a minimum…it’s reasonable for someone to expect a warning if there is a weight limit or speed window to avoid.

[Clydesdale]

@aupatking if the boat was really just designed to break waterskiing records it wouldn’t have an open bow. And since Malibu added the open bow, presumably to make the boat useful for purposes beyond just skiing, what’s their obligation to make it safe? Does it need to take 5 foot waves at any speed? No, I don’t think anyone would argue that. But would they be liable if boats were sinking in just 6 inch waves? Yup. This is somewhere in the middle. Are they 100% responsible? Absolutely not. Do I think the award is fair? Also no. But I do think they share some of the responsibility along with the rental agent and the driver.

[chrislandy]

From what I've read about the award, it looks like they are applying more modern design methodology to an historic design process... does that mean that you could sue Ford if you had a crash in a 60's vehicle and went through the windscreen because they didn't document the risk assessment of not putting seatbelts in there?

 

I'm not advocating more and more rules, but in Europe, you tend to need a boat operators licence on anything over 5hp / 10kph, we don't have it mandatory in the UK, but we do have an RYA powerboat and a ski boat drivers licences/tests and they are mandatory on most private ski lakes and checked on some boat ramps, renters and organised watersports.

[GaryJanzig]

Never liked an open bow on a ski boat. I have brought water over the bow while driving them. Two different brands.

[LoopSki]

I’ve owned many open bow ski boats. Ski Brendella Spectrum, MB Sports 190 plus , MC 197 , Malibu Rlxi, and currently 2017 Prostar. I have swamped every single one of them at one time or another. Don’t think so bad that a child would float out fhough. But if were going to call it a design flaw, its definitely not specific to the RLX! I think the liability should live with a person renting the boat if anyone at all besides the driver. He should’ve gone through the operation of the boat like they were complete rookies like they obviously were.

[unksskis]

The design in question is not just a simple open bow, it's more like a bath tub in the front, that fills with water and has no drain.

[elr]

Well here is a copy of the actual jury verdict:

 

https://images.law.com/contrib/content/uploads/documents/404/67553/Batchelder-v.-Malibu-Boats-verdict-forms.pdf

[Johnseed]

I would think the operator/driver and the rental company for not offering boating instruction would be more liable than Malibu. 4 kids in the bow of a Response Lx had to seem crowded and easy to lose one...that area isn't that large to begin with. No mention of life vests either that I saw. Tragic to be certain but add to that the reality of preventability.....wow...just awful.

[BS74]

It's the "pain and suffering" that I think is bull s---T! 75 mil just for that is stupid.

[buechsr]

@BS74

Driver was found 75% at fault, and 75% of the punitive verdict appears to go to the state of Georgia. If Malibu paid every nickel awarded to the parents, it is a total due to them of $50M before legal expenses.

 

Let's assume for discussion sake that if the son was 7 at the time, that his parents were 40 at the time. Let's also assume they have a 40 year life expectancy, and got all $50M from Malibu. That's $625,000 per parent a year....to live the rest of your life knowing your son's last memory was his leg getting chopped off, the rest of his body so deformed and massacred that it stalled the boat, and whatever life he did have left was taken as he drowned. They're also asking themselves, "Did he suffer? Was it instant? God I hope it was instant. But what if it wasn't, what if he was alive? How long did he suffer? Did he cry out our names? Is this our fault? Why did we go to the lake for this family reunion? This is my fault." Every day, likely every hour, those thoughts will be in their brains. And every hour they're also going to be reminded that a boat company didn't even test their own design (per reporting on Alkema's testimony), but at a minimum failed to warn of any limitations. Do you really think they'll be happy trading $625,000/yr for the rage and despair that they will never ever escape? Think their marriage will ever be the same?

 

Sure this was an uncommonly large verdict even at $50M, and is of course no replacement for him, but don't kid yourself, it ain't "stupid".

 

[BraceMaker]

@Johnseed why should the marina have had an inkling that the bow was unsafe if the manufacturer thought it was all hunky-dory?

 

I will just guess that the Marina actually had a pretty substantial rental waiver, education on use of the boat and probably maintenance logs. Years ago we did a pretty good walk through with rental boaters, had them go through all of the line items and initial, occupancy, life vest wear, alcohol, who can and cannot drive the boat. All in bold our acknowledgement included no sitting on the gunwales, railings, or bow when underway.

 

So I think we can use their lack of presence in this judgment to either affirm that they did a pretty good job on the rental business or that they did such a poor job that they settled long ago.

[buechsr]

@BraceMaker Interesting observation, but the driver was not a defendant, either, and the jury was allowed to include him in their liability apportionment. A personal injury attorney friend of mine has explained that some states allow a jury to apportion fault to non-parties whether they've settled or not. Don't know about Georgia but would appear the same. Reading between the lines, plaintiffs nor defendants seem like they wanted or needed the Marina involved.

[BraceMaker]

@buechsr yes and that implies even more strongly that either malibu tried to attach and failed or didn't even try. Because they attached the driver.

[jjackkrash]

It looks the the jury answered "no" to the predicate question for punitive damages (reckless and wonton misconduct). I don't see how the putative-damages judgment will stand. You generally can't be punished for mere negligence.

 

https://law.justia.com/codes/georgia/2010/title-51/chapter-12/article-1/51-12-5-1

[buechsr]

@jjackkrash Maybe there was a disagreement as to the verdict form, but it does not treat that question as a predicate to the failure to warn question in the actual form. Perhaps that's an issue for an appeal?

 

https://images.law.com/contrib/content/uploads/documents/404/67553/Batchelder-v.-Malibu-Boats-verdict-forms.pdf

 

Maybe it was written that way for purposes of a High-low agreement depending on the answers? Maybe the questions were designed to preserve product liability insurance coverage (ie, using the word negligence)? But then, does the State of Georgia go away for their (apparent) 75% of $120M? Interesting.

[jjackkrash]

The first liability question asked about reckless and wonton conduct, which is the type of culpability usually required to punish. The jury answered "no." The second liability question was phrased in terms of negligence, not reckless or wonton conduct. Mere negligence is usually insufficient to punish civilly. Maybe there were jury instructions supporting the question about entitlement to punitive damages that are not on the form that discussed the level of recklessness necessary to support punitive damages, but I don't see a specific jury answer on mental state or the level of culpability. Maybe that's just standard practice in Georgia.

 

It is also interesting that there was no liability against "Malibu Boats, Inc." Isn't that the company that is publicly traded? A judgment against a worthless LLC is generally worthless. There is a reason there were three Malibu companies on the verdict form, but I have no idea what the asset picture is on the three that were listed.

[BS74]

@buechsr : I understand your logic, but don't agree with the amount. The amount is absurd and not only in this case, but thousands of legal cases nation wide. Will any amount make the parents feel better, so why $625,000 and not $$10,000. We just lost 13 brave soldiers and iIdon't think their parents are going to get $625,000, it's a lawyer scam.

 

[MichaelGoodman]

@buechsr Not that any amount will make the parents feel better but you are missing

a major point in your analysis of the reward if they invest the 50,000,000 at a reasonable

5% return they would be earning 2,500,000 a year with out touching the principle

[DaveD]

@BS74 The parents get $10,000 and their lawyers get $615,000. :smile:

[S1Pitts]

This is all very interesting but what I take away from it is that we are all likely to pay higher insurance premiums for our boats. Insurance companies seem to love any reason to jack up rates. It is sad that that there are people profiting from a tragedy.

[Hucklefin]

@buechsr, I don't think that they are saying the parents pain and suffering is stupid, it's the fact that it wouldn't matter if it was $6.25 a year or $625k, they will feel exactly the same. The stupid part is that the lawyers get to *stern face* 'sorry for your loss', and immediately head to the bank to cash their check for millions.

[Jetsetr]

And this is why we can’t have nice stuff...

Product liability at some point will cause us to all be bubble wrapped....

[BraceMaker]

@BS74 I think we all know these judgements are usually appealed and reduced but the initial number is generally a litmus test for how egregious the jury felt the actions of the defendant were.

[swbca]

Back to the incident . . I agree with others that Bow-Riding ski boats are not a great idea for safety. I believe my ProStar197 could have had the same problem as this Malibu. Even on flat water, if I do a quick powered 180 degree turn at low planing speeds, the water breaks only a few inches below the rub-rail at the bow. With the lateral slide in a tight turn below 25mph, the bow gets sucked down in the turn much more than the rear and seems it could submarine if I turned into a wake-boat wave. And I have seen my own young family members behave unsafely in the bow with the boat underway . . and there isn't much height in structure between the seat cushions and the lake.

 

Regarding this case, renting a bow-rider ski-boat to a family that doesn't already own a boat in this class has an elevated level of risk for all concerned.

[Timr71]

@swbca Agreed. My boat is the same, open bow Ski Centurion Falcon. I basically don't let anyone ride up there. Sometimes in the right conditions, I'll let my daughter sit up there. She's grown though and weighs about 105 lbs.The configuration of my boat meets my family requirements. My open bow basically functions as a front sun pad, a place were the kids can sit or lay out when we're tied up spending a day out of the lake. That allows me to have a tournament ski boat with some additional functionality.

 

And, I agree, renting such a boat to an inexperienced driver seems like a risk. They might have been better served with an open bow run about of some sort.

[LoopSki]

This is the kind of people that rent boats. How the frick did someone get into this situation ! Such a tragic story regarding that poor kid. Could have been prevented with some common sense.

 

 

[dbutcher]

If there was legal error by the trial court, the defendants have a chance for some relief on appeal. Appellate courts are less likely to adjust damages because the jury saw the damages evidence and heard the damages testimony. The appellate court only has a trial transcript to read (I think). I am curious about settlement efforts, if any, by defendants prior to trial. Every case with damages of this magnitude has settlement value even with questionable liability. Defendants or their attorneys and insurers had to know that. But, even settlement value would be difficult to estimate. The jury had no problem calculating damages however, or so it appears. It is a tragic case for all involved. Settlement value has gone up post trial, but how much? Plaintiffs are in the driver's seat now more than before trial based upon the available, very incomplete information.