In mid 2011, Brunswick requested a rehearing of their appeal of the Jacob Brochtrup propeller injury case in front of the U.S. Fifth Circuit Court of Appeals. Brunswick feels the original court (U.S. District Court, Western District of Texas, Austin) did not force Brochtrup to prove the design of their boat was unreasonably dangerous under the Texas Risk-Utility test. Brunswick also feels they jury instructions led the jury to believe the boat had already been declared to be an unreasonably dangerous design.

The Appeals court quoted a previous decision:

“Texas requires courts addressing the risk-utility of a product to consider:

1. the utility of the product to the user and the public weighed against the gravity and likelihood of injury from use
2. the availability of a substitute product that is not unsafe or unreasonably expensive
3. the manufacturer’s ability to eliminate the unsafe elements without significantly decreasing usefulness or increasing cost
4. the user’s awareness of the product’s danger and its avoidability because the danger is obvious or there are suitable warnings or instructions
5. consumer expectations
   Timpte, 286 S.W.3d at 311.

The appeals court went on to say Jacob Brochtrup was not required to submit the best evidence of all five risk-utility factors. Brochtrup’s evidence on the first element of his design defect claim was sufficient.

Brunswick continues to push for a full risk-utility analysis. We began to wonder why, other than just to continue to delay the outcome of this trial.

With a little study, we see some states have a limited exception to risk-utility analysis / risk-utility tests. When the product is a simple tool (like a knife, pistol, cigarette lighter) that gains its utility from the same characteristic that makes it dangerous, some states may allow the defendant to move for summary judgement (which Brunswick tried to do several times during the original trial).

These states hold that simple tools do not need to be held up to a full blown risk-utility analysis.

Several years ago manufacturers of these types of devices (including propellers) used the open and obvious danger doctrine defense. They claimed the hazard was open and obvious and therefore they had no duty to protect people from it or to warn of its dangers. As courts removed the open and obvious defense, the boating industry moved to a Federal Pre-emption defense. When that was struck down by the U.S. Supreme Court in Sprietsma v. Mercury Marine in 2002, the industry started looking for new approaches. We have listed a few of them on page 133 of our study of the proposed houseboat propeller safety regulation and a few more near the bottom of our page on the proposed houseboat propeller regulation in the Updates Section.

Now it looks like they may be wanting to reopen the open and obvious danger approach by trying to slide by as a “simple tool” exception to the risk-utility test to reduce their exposure to product liability suits.

For an example of what we are talking about, see Treadway v. Smith & Wesson Corp., 950 F.Supp. 1326 (E.D.Mich 1996). The family of a 14 year old boy killed by a Smith & Wesson handgun brought suit against S&W claiming among other things, lack of warnings or instructions against dangers, and failing to provide adequate safeguards.

While many would say the same kind of derogatory things about the 14 year old victim that are said about propeller victims, the opinion rendered by the Judge in 1996 is a bit alarming. He said,

Manufacturers of Simple Tools Such as Guns Have No Duty to Design Safety Features or Promulgate Warnings to Protect Users from Dangers That Are Open and Obvious Due to the Tool’s Inherent Nature.

That is what Brunswick wants to hear in the Brochtrup case. Although the Open and Obvious Defense has been removed from the courts, it is inherent within the risk-utility test. Simple tools that have high utility (like kitchen knives) do cause injuries but are not held responsible for them because their utility outweighs their risk.

Brunswick wants to see propellers on that unwritten list of simple tools. Back in the early 1990’s they won several cases claiming the open and obvious defense. They may be trying to resurrect it.

In a <"a href="http://ftp.resource.org/courts.gov/c/F3/373/373.F3d.678.02-2154.html">Michigan case against Daisy Air Rifle Daisy appealed a lower court decision. Daisy claims their air rifle is a simple tool. The court reviewed other objects that had been previously declared simple tools in Michigan Courts (hammers, knives, gas stoves, axes, buzz saws, propeller driven airplanes, trampolines and backyard pools). Michigan Courts  had also found normal guns to be a simple tool. Michigan case law provides two criteria for determining if an object is a simple tool. The device can be a simple tool if ONE or BOTH of the following conditions are met:

1. The products are not highly mechanized, thus allowing the users to maintain control over the products.
2. The intended use of the products does not place the users in obviously dangerous positions.

We notice the propeller of propeller driven airplanes on that list. That is a bit alarming.

If Brunswick can have propellers granted an exception to the risk-utility test because they are a simple tool, Brunswick will not have to face the individual questions of the Texas risk-utility test, particularly question number 2 about the availability of a safer alternative. In Brunswick’s request for a rehearing, they used some language indicating the existence of a safety alternative design (could be construed as meaning the Guy Taylor 3PO propeller guard is safer than their exposed propeller) does not mean their exposed propeller is an unreasonably dangerous design. If Brunswick can get out in front of those five questions, its strongly in their best interest to do so.

Are propellers a “simple tool”? Remember the criteria: (1) The products (propellers) are not highly mechanized, thus allowing the users to maintain control over the products AND/OR (2) The intended use of the products (propellers) does not place the users in obviously dangerous positions.

We can envision a world in which some boat propellers might be called a simple tool and others might not. What do you think?