@aupatking Yes I am saying Malibu was at fault. I think a manufacturer who makes a product doesn't get a free pass based on what the end user's skill or knowledge or abilities are. I would go so far as to say the contributory negligence finding was a poor judgement and let Malibu off the hook for what could have been a much harsher judgement.
I'll lay it out. Malibu was on record in the lawsuit that they took a boat that didn't have an open bow and they put one in it, cut a hole in the bow dropped in seats, sold it. They didn't do anything to evaluate their design. They are on record in the lawsuit saying they didn't even toss a few 100lb sand bags up there and drive the thing around they just started making boats with a hole in the bow and tossing seats in there.
Which brings up the motive, why would you make the product? Well simply market share. You want that person who is comparison shopping to go Four Winns horizon 19, seats 8, open bow, V8 engine, 19 feet long. Malibu Response, 19 feet, V8 engine open bow seats 8. But this one's a ski boat. So I can have all the things I want, I can put my kids in the front and tool around the lake in a product that is exactly the same as this 4 winns. And that buyer has made an assumption about the design the company has undergone. He reasonably assumes that both of these brands in the design and testing phases of those boats have done the same work so that their products have similar safety margins because that's how product design works. And you can be certain the sales guy at the dealership that had the open bow Malibu on offer wasn't going out of their way to dissuade the potential buyers of the boats from their decision to buy the Malibu vs. going across the street and buying the 4 winns.
You are making the assumption that all the buyers are people who have been around ski boats, I am making the assumption that Malibu made their business decisions to sell their product to people who would have otherwise bought a different product. My comments about the difference in handling between these boats is based on personal experience. That's not something a manufacturer of a product can rely on.
And yes I would go so far as to say that I personally believe that if you are mastercraft or nautique you at least bothered to test your product out on the water during the design phase. Having driven the response and driven the mastercraft 205s in question the 205 is a far more seaworthy boat. I don't think that was accidental.