Archive for December 2011

In McGarrigle v. Mercury Marine, a propeller / kill switch case, Mercury Marine claims John McGarrigle is the the first person NOT using a kill switch to be injured by a Mercury Marine tiller steered outboard.

We find that hard to believe, but before we can prove them wrong, we need to determine exactly what Mercury Marine’s legal team said.

On page 8 of the 20 December 2011 Partial Summary Judgement Opinion by the Court, (document 41 in the U.S. District Court New Jersey case docket), the court restates Mercury’s position:

Defendant argues that Dr. Fisher should not be permitted to testify that the design of the outboard engine was and is defective because it does not incorporate a lanyard A type stop switch. Defendant states that between 1986 and July 2007, it sold more than 750,000 8 to 25 horsepower outboard engines that use the lanyard B. It also states that, other than plaintiff’s accident, it is aware of no other accidents of a scenario similar to plaintiff’s, which resulted in propeller strike injuries to an ejected operator of a small hand-tilled outboard engine who did not use the lanyard B.

Read More→

0 Categories : Legal Shorts

For basic information on John McGarrigle and Barbara McGarrigle v. Mercury Marine in U.S. District Court, D. New Jersey, see our McGarrigle v. Mercury Marine case page.

Very briefly, John McGarrigle fell from a small boat when it hit a wave, was not wearing a lanyard kill switch, the boat circled repeatedly, he tried to re-board it, and was struck by the propeller.

Both sides moved for summary judgement on some issues prior to the trial. Both sides won some issues and lost some issues. The full opinion written by Disrict Judge Noel L. Hillman is available on

The defense tried to block Kenneth W. Fisher from being an expert witness for the plaintiff. They said he was not an expert in this field (kill switches on small boats) under Daubert. They also do not want to allow Dr. Fisher or others to use U.S. Coast Guard Navigational and Vessel Inspection Circular No. 4-89 (Circular 4-89). Defense claims Circular 4-89 only applies to commercial vessels. Defense also wants to prevent Dr. Fisher or others from using American Society of Testing and Materials (ASTM) F 1166-07 standard regarding human factors engineering (they grant it refers to ships and marine structures, but claim it does not specifically mention recreational boats).

In a 20 December 2011 opinion, the court said Dr. Fisher will be allowed to testify and he can use ASTM F 1166-07, but he will not be allowed to use Circular 4-89.

At the same time, Plaintiffs moved for summary judgement to prevent Defense from being able to claim the accident was caused by the victim taking a small boat out in choppy water and going too fast, they also wanted to block evidence of his behavior after being ejected (tired to re-board the circling boat), and wanted to block evidence that neither Mr Garrigle or his father read the outboard owners manual.

In the same 20 December 2011 opinion, the court said the defense would be allowed to present evidence of a proximate cause of the accident being the condition of the water and the speed of the boat. Defense will also be allowed to discuss the victim’s attempts to re-board the circling boat. The defense will not be able to introduce the failure of Mr. Garrigle or his father to read the owners manual as evidence of comparative fault or as a proximate cause because the defendant acknowledges some people operate their outboards without reading the manual, and thus it was foreseeable. Read More→

0 Categories : Legal Shorts

John McGarrigle and Barbara McGarrigle v. Mercury Marine. Civil Action No. 09-4625. United States District Court, D. New Jersey.

The case was settled August 28, 2012.

The Propeller Accident

Saturday, July 21, 2007, 37 year old John McGarrigle, of Pennsylvania, was operating a 12 foot aluminum fishing boat on Delaware Bay near Seabreeze, New Jersey about 5:20pm by himself. The small tiller steered boat, belonging to his father, was powered by a 2001 15 horsepower Mercury Marine outboard motor. The water was choppy, John was not wearing a lanyard kill switch. He was pitched overboard, the boat went into the “Circle of Death”, he tried to grab and re-board the spinning boat, and was struck by the propeller. John received severe injuries to his head and neck. A bystander on shore, swam out 100 to 150 feet and kept him afloat till more help could arrive. The prop strike victim was brought to shore in another boat and life flighted to an area hospital. The Coast Guard was able to stop the still circling boat by using a rope to foul its propeller. (Accident description was assembled from court records and several newspaper accounts.)

A New Jersey Patrol Officer interviewed the victim about a month later. The victim reported he had been going about 15 miles per hour, hit a wave, and was ejected. The same officer had responded to the accident. The patrol officer logged the accident as being caused by “excessive speed”, but testified he had no actual knowledge of the victim’s speed. Read More→

0 Categories : Legal Shorts

Safety professionals turn to the U.S. Coast Guard Boating Accident Reports Database (BARD) to find the total number of recreational boat propeller accidents reported to USCG.

USCG acknowledges some propeller accidents go unreported. The boating industry claims the more severe an accident it is, the more likely it is to be reported, propeller accidents are severe, so they must almost all be reported.

Propeller safety activists point to countless unreported accidents and previous studies showing thousands of propeller accidents going unreported.

Without an estimate of the total number of propeller accidents, injuries, and fatalities it is difficult to decide how best to address the problem. This same problem exists in accident frequency studies in automobile crashes, industrial accidents, and other fields. We propose encouraging students searching for Senior Design Projects, Capstone Projects, Sr. Thesis, Masters Thesis, and similar projects to consider applying the techniques used to estimate actual accident frequencies in other fields (like automobile injuries and fatalities) to recreational boat propeller accidents. Read More→

0 Categories : Research Projects

We recently completed our Developing a Consumer Guide for the Selection of Propeller Guards and Other Propeller Safety Devices post. Part of that project involved creating our Propeller Accident Risk Worksheet. In that worksheet we identify five categories of Propeller Accident Risk:

  • Boat Specifications Risk– some boat types are more likely to be involved in a propeller accident than others.
  • Operator Experience and Environment Risk – inexperienced operators in lakes crowded with inebriated boaters are more likely to be involved in a propeller accident.
  • Water Conditions Risk – choppy water with floating and sunken debris is a recipe for disaster.
  • Activities On and Near My Boat Risk – the more people in the water the more opportunity to hit one with your propeller.
  • Exposure Time and Boater Fatigue Risk – The more time you spend on the water each year, the longer you are exposed to the risks. In addition, people out all day on a small boat in the summer heat suffer boater fatigue, dulling their response times. Boater fatigue also amplifies the effects of alcohol making their boat even more dangerous.

We started thinking about how we could calculate an the actual risk of a given boat (or the people with that boat) being involved in propeller accident and quickly realized that if all the risks were really contained within the five categories we identified (or if we were in a perfect world and were able to identify all the categories of risk and the risk of each category), the risk of a given boat being involved in a propeller accident during a year could be calculated something similar to: Read More→

This propeller guard selection guide is NOT ready for use. As brightly emblazoned on our documents, they are rough drafts. We posted them to generate a discussion that could improve them as well as provide some ideas to those working on the U.S. Coast Guard’s recently announced efforts to produce a consumer guide to propeller guards.

Our guide also covers safety interlocks, changing boater behaviors, boating safety classes and other boat propeller risk reduction activities.

Introduction to the Selection Guide

Our Propeller Accident Risk Reduction process is guided by three documents: Risk Proofing My Boat Against Propeller Injuries (describes the overall process), Propeller Risk Worksheet (large checklist that collects information to aid in decision making), and the Propeller Injury Avoidance Device Radar Plot (graphical representation of performance of various devices in different propeller injury scenarios).

Risk Proofing My Boat Against Propeller Injuries lays out the process, defines the terms, and identifies many possible actions that could make your boat less likely to be involved in a propeller accident.

It also teaches about five categories of Propeller Risk Reduction Activities: Read More→

Kill Switch Lanyard

Lanyard photo courtesy of The U.S. Coast Guard

Although the U.S. Coast Guard is still considering regulations that would require boat builders to install kill switches (emergency engine cut-off switches) in all new recreational boats below a certain length and separately considering making their use mandatory, they have been on the market for over 30 years.

The basic problem of unmanned boats going in circles (the Circle of Death) has been known a long time. The earliest example we have found was reported 14 July 1935 in the New York Times. Two young men on the Potomac River were ejected, the boat began to circle at full throttle, they dove repeatedly to try to escape to boat and propeller, one was eventually struck in the head and drowned, the other was struck in the shoulder.

By the early 1950ʼs boat kill switches of multiple designs were used in National Outboard Racing Association boats.

George Horton, of Fort Worth Texas, applied for a patent on his “Quick Kill” recreational boat kill switch on 29 November 1972. He received U.S. Patent 3,786,892 on 22 January 1974, and entered productions with the “Quick Kill” kill switch in August 1974. His switch is widely viewed as the first commercially available kill switch designed specifically for use in recreational boats, vs. the earlier racing designs. Read More→

4 Categories : History, Regulations

NMMA’s Public Comments on USCG-2011-0497 as a Wordle

We covered the National Marine Manufacturers Association NMMA public comments on the U.S. Coast Guard (USCG) Advance Notice of Proposed Rulemaking on Recreational Vessel Propeller Strikes and Carbon Monoxide Poisoning in our regulations section.

At the close of our coverage, we presented a wordle of NMMA’s comments.

This post presents a much larger version of that wordle. Read More→

Follow Us On TwitterThis post is part of our coverage of the Listman v. OMC propeller injury trial

Robin Listman vs. Outboard Marine Corporation
Second Judicial District Court of the State of Nevada, County of Washoe

1 November 2011 Session One – pm (Note there was no morning session, this was an afternoon session per CVN) Read More→

1 Categories : Listman vs. OMC Trial

Review of public comments on U.S. Coast Guard’s (USCG) Advanced Notice of Proposed Rulemaking titled, Recreational Vessel Propeller Strike and Carbon Monoxide Poisoning Casualty Prevention. Comments were due by November 25, 2011.

We were disappointed with the total number of responses, but thank all those on both sides of the propeller safety issue for responding.

As of today, December 2nd, USCG lists a total of 27 items in that docket. We will list and briefly summarize them below, by Docket Item Number. Read More→

0 Categories : Regulations