Archive for product liability

Timothy Clippard

Timothy Clippard

In May 2013 Timothy Clippard of Missouri was killed in a boating accident on Kentucky Lake during a bass fishing tournament. His fishing partner piloted the Ranger bass boat as they passed under a large bridge on the way back to weigh in. The 225 horsepower Yamaha outboard motor struck a barely submerged bridge support beam hidden by high water. The outboard motor broke off the back of the boat, flipped into the boat, and with the propeller still rotating under power, fatally struck Tim Clippard. We previously covered the accident at Timothy Clippard of Missouri Killed on Kentucky Lake in Boat Accident.

Mr. Clippard’s widow sued Yamaha Motor Corporation, USA and Yamaha Motor Co. Ltd. (Japan).

Clippard, et al v. Yamaha Motor Corporation, U.S.A., et al
United States District Court
Western District of Kentucky
Case # 5:;14-cv-83-TBR

The complaint alleged:

1. Yamaha was aware of the risk of outboard motors striking submerged objects and flipping into the boat, and was aware of feasible alternative designs to eliminate these risks, and did little to develop and nothing to implement such alternative designs.

2. Yamaha knew or should have known the hazards and dangers associated with the motor and failed to adequately warn expected and foreseeable users.

In addition to traditional damages sought with the death of a loved one in a collision accident, the family also sought punitive damages based on Yamaha’s knowledge of the problem and their failure to develop and implement alternative designs.

Curtis O. Poore of The Limbaugh Law Firm and Peter Perlman of Peter Perlman Law Offices filed the complaint on 30 April 2014. Midway during the case, Morry S. Cole of Gray, Ritter & Graham, P.C. replaced Mr. Perlman.

Linsey W. West and Kara M. Stewart of Dinsmore & Shohle LLP and Richard A. Mueller of Thompson Colburn LLP represented Yamaha.

The Judge, Judge Thomas B. Russell, issued an Order of Dismissal on 30 September 2016 announcing a settlement had been reached, and the case was dismissed.

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Derek Hebert was on a Champion center console boat being operated by Daniel Vamvoras on 7 May 2005. They were between the Calcasieu River and Lake Charles County Club. The steering system failed and the boat began to spin (the Circle of Death). Derek Hebert was ejected, struck 19 times by the propeller, and died from his wounds.

While the boating industry sees this as a steering system failure case, it is obviously a Circle of Death case. The hydraulic steering system had a leak, the steering system failed, the outboard swung to one side, the boat went into a “spin”, Derek Hebert was ejected, and fatally struck by the propeller.

Note – while we call this a Circle of Death accident, we do not know if the operator was ejected, incapacitated, or away from the controls. It really did not matter, because the steering system did not work. The natural tendency of the boat to go into the Circle of Death took over. The operator or someone else on board would have to throttle back or kill the engine, or the boat collide with something to stop its forward progress.

Another boat collided with the Vamvoras boat after Derek Hebert had been ejected.

The U.S. Coast Guard Boating Accident Report Database (BARD) says the vessel Hebert was ejected from was a 1998, 21 foot Champion Bay Champ 21 powered by a 225 horsepower outboard motor with 7 on board.

Champion 21 foot bay boat, 1998

Champion 21 foot bay boat, 1998. This is not the boat in the accident, it is a similar boat once offered for sale by Rabeaux’s Auto Sales

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Rex Chambers' boat with outboard motor broke off

Pro angler, Rex Chambers’ boat with outboard motor broke off

When outboard motors strike submerged objects they can break off and flip into the boat as seen in our lists of outboard motors breaking off and flipping into boats and large outboard motors breaking off and flipping into bass boats.

We previously posted information on several existing and proposed solutions, including The Leash, a vectran tether targeting bass boat applications.

Submerged objects have a wide range of characteristics ranging from almost pure water with just a few weeds or small pieces of debris all the way up to stumps, pilings, dredge pipes, railroad ties, and concrete piers. When outboard motors from various manufacturers of various sizes and speeds strike this wide range of objects, the outboard motor log strike system behaves in a number of different ways (modes).

Especially of interest are outboard motors that break off the boat. Breaking off the boat is a prerequisite to breaking off and flipping into the boat. Not all outboards that break off will flip into the boat. But for an outboard to pass over the rear deck, and enter the seating area of a bass boat, it must first break off the boat.

The Outboard Motor Log Strike Modes Chart for a bass boat below illustrates the range of behaviors (modes) encountered.

Outboard Motor Log Strike Modes

Outboard Motor Log Strike Modes

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WVEC image of a man's arm entrapped in DuoProp as example of how Angelopolous' legs were entrapped

WVEC image of a man’s arm entrapped in DuoProp as example of how Angelopolous’ legs were entrapped

A young girl, by the last name of Angelopoulos, then 12 or 13, was entrapped in Volvo DuoProp stern drive propeller on 30 June 2011 in Chesapeake Bay near Lynnhaven Pier in Virginina Beach. The vessel was a 24 foot 2000 Grady-White Sailfish. The young girl was reboarding the boat after tubing. It took about an hour and a half for rescuers to extricate the girl and the propeller from the boat. We covered the accident back when it happened at Virginia Beach Propeller Accident Impales Girl’s Leg.

The rescue involved a total of 71 people who were recognized in a proclamation.

The young girl’s father, Konstantinos N. Angelopoulos, filed a $30 million suit in Norfolk Circuit Court (Virginia) naming the boat operator, Grady-White, Norfolk Marine Company (boat dealer), and Volvo Penta of the America’s as defendants. An amended complaint was filed on 11 July 2014.

UPDATE – A settlement has been reached in the case. The Court is scheduled to review and approve it at 2pm 8 February 2016 per the Norfolk Circuit Court’s schedule.

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ABYC helm warning for outboard boat

ABYC helm warning for outboard boats

Back in May 2015, American Boat & Yacht Council, ABYC, released their consolidated boat warnings. ABYC grouped several warnings together for helm and transom warnings on specific types of boats.

Earlier, we furnished a history of the development of ABYC’s consolidated warnings.

The Importance and Timeliness of This Review

Due to our specific interest in propeller safety issues, this review will focus primarily on the propeller and kill switch warnings.

We are especially concerned about these new consolidated warnings due to:

  • Problems with the consolidated warnings identified in the review below
  • ABYC’s Consolidated Warnings are on the agenda at their annual Standards Week (begins 11 January 2016). We fear many attending Standards Week will be under the false impression the consolidated warnings conform to ANSI Z535.4.
  • T-5 (ABYC’s information report on safety labels) is also on ABYC’s Standards Week agenda. We fear T-5 may be updated without addressing some of the issues relevant to the consolidated warnings.

While T-5 has many problems, issues, and challenges in its current state (2002 version), it does provide a vehicle by which information for designing boat warnings could be delivered to boat builders and others in the boating industry.

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We previously announced the American Boat and Yacht Council (ABYC) consolidated boat warnings in our May 2015 post titled, ABYC Releases Consolidated Boat Warning Labels.

As we review those labels, one feature of several labels stands out, the excessive use of ALL CAPS.

As ABYC talks about the new labels, they repeatedly mention American National Standard Institute (ANSI) Z535.4 standard for product safety signs and labels. We have not seen ABYC specifically say the new consolidated labels are in compliance with ANSI Z535.4. However, ABYC mentions ANSI Z535.4 frequently enough we anticipate many will think the new ABYC warnings are ANSI Z535.4 compliant.

ANSI Z535.4 says the preferred format is to use mixed upper and lower case letters. They go on to say the preferred format is to only capitalize the first letter in the first word in a sentence.

ANSI Z535.4 goes on to say the use of ALL CAPS for the word message is discouraged because it is harder to read quickly than lower case type.

ANSI Z535.4 does say a single word or phrase may be emphasized by the use of ALL CAPS on occasion.

Basically, extended use of ALL CAPS makes the warning harder to read. When most people read ALL CAPS THEY MUST READ ONE WORD AT A TIME (like you just did). The use of upper and lower case letters is more inviting and can be read more quickly. Boaters are more likely to read the upper and lower case warnings than ALL CAPS warnings, especially when the warnings are lengthy like the gas outboard consolidated helm warning.

Below we compare the existing ABYC consolidated helm warning for gasoline powered outboard boats on the left with an upper and lower case version of the same warning. Click on the image below to see a much larger image to compare them side by side.

ABYC Consolidated Helm Warning ALL CAPS vs. upper and lower case comparison

ABYC Consolidated Helm Warning ALL CAPS vs. upper and lower case comparison

The example of the helm label above is but one of several. Most of the new consolidated warnings extensively use ALL CAPS.

We strongly suggest ABYC reduce the use of ALL CAPS in their consolidated boat warnings.

We all know the real intent of manufacturer’s warnings is somewhere on a sliding scale between trying to prevent accidents and trying to protect themselves in court (many would insert CYA here). We hope boat builders have not slid the scale over so far they make the warning harder to read at the expense of thinking bolded ALL CAPS would be easier to defend in court (look, the injured party did not obey our warning and we even had it in bold type in ALL CAPS).

We encourage the industry to do the right thing and at least consider reducing the use of ALL CAPS text on the consolidated warnings.

We are currently in process of reviewing the new consolidated warnings and will be posting an extensive review. While we anticipate most of our ideas will not be incorporated by ABYC, we think this one (reducing the use of ALL CAPS text) has a chance of being accepted.

This post is one of several of on the ABYC Consolidated Warnings. Links to all the posts are supplied below.

Konstaninos Angelopoulos filed a $30 million lawsuit against Volvo Penta, Grady-White, Norfolk Marine Company, and Richard Harris (boat owner and operator). The suit is for injuries his daughter, A.E. Angelopoulos, received in a boat propeller accident back on 30 June 2011.

Then 12, she was entrapped by the Duoprop twin contra-rotating propeller stern drive on a 24 foot 2000 Grady White Sailfish boat she was boarding after tubing. Some reports indicate she was drug into the propeller by a tow rope caught in the prop. It took rescue crews about 90 minutes to get the propeller off the boat so she could be brought to shore. Rescuers had her breathing through a snorkel a while, then found a scuba mask and scuba tank as her head was underwater. Read More→

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Social Media posts, photographs, and videos from Facebook, Twitter, MySpace, Flickr, Instagram, Pinterest, LinkedIn, Google Plus, YouTube, and others are becoming increasingly important in accident cases (auto accidents, workplace accidents, etc.).

This post will focus more specifically on the legal aspects of sharing and social network Social Media with respect to boat propeller accidents, and more specifically the legal aspects of social media with respect to the boat propeller accident involving DJ Laz. In addition to the many Social Media sites mentioned above, online boating forums represent yet another type of social media as well. Boating forums play such a large role they will be discussed separately in a future post.

Quad Yamaha 350's behind DJ Laz's boat

Quad Yamaha 350’s behind DJ Laz’s boat

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While bass boat operators have been being ejected /thrown out when underway in open water for decades, recent trends are contributing to the growing list of those ejected. Among these trends include:

  • Availability & popularity of higher horsepower outboard motors
  • Growth of the bass tournament industry
  • Professional anglers wanting to get from one spot to another as fast as possible during a tournament
  • Bass tournaments starting with a “blast off” that can create wakes to be encountered at speed, even a long ways from the start as they peel off to their own fishing spots
  • The ability for less experienced boaters to “buy” their way into a fast ride, vs. spending years gaining experience as they work their way up
  • Competitive bass tournaments with boats this fast is still relatively new (operators do not have decades of experience of handling higher performance boats)
  • More anglers on the competitive circuit traveling further to tournaments puts more opertors in lakes they are not as familiar with as the locals (submerged hazards, stumps, tricky places, etc.)
  • Competitive anglers are traveling long distances on the water in tournaments increasing the effects of boater fatigue / boater hypnosis
  • The growing population of high horsepower used bass boats (lower price point barrier to entry) and more bass boats on the water for more hours
  • Striking stumps or other submerged objects

Kill Switch Lanyard on Wrist

Kill Switch Lanyard on Wrist – Image courtesy of U.S. Coast Guard

We suspect bass boat operators are being ejected more frequently now than in the past, but are unable to quickly confirm that from the U.S. Coast Guard Boating Accident Report Database (BARD).

We started assembling a list of bass boat accidents in which the operator was ejected overboard / thrown out in open water while underway. Below the list we explain how it was compiled.

The list of Bass Boat Operators Ejected / Thrown Out While Underway in Open Water is a large pdf poster best viewed on a very large computer monitor or printed off at a copy shop. We included a few accidents in which the boat operator was tossed to the passenger side while wearing a lanyard, but the lanyard did not work. We also included a few involving boats made by major bass boat companies that may not be traditional bass boats. Read More→

Suzuki DF225 outboard

Suzuki DF225 outboard

On 3 February 2014, C.F. Bean, Bean Meridian, and Archer Western Contractors filed a Third Party Complaint in U.S. District Court, Southern District of Mississippi, Southern Division. The complain called for adding Suzuki (USA), Suzuki (Japan), and Bob’s Machine Shop (jack plate manufacturer) as defendants in the case regarding the death of Mark Barhanovich. Mr. Barhanovich is thought to have struck a dredge pipe off Deer Island Mississippi in September 2012. His outboard motor flipped into the boat, where it struck and killed him.

Bean and Archer basically want to blame everything on Suzuki (in the U.S. and in Japan), and on Bob’s Machine Shop.

On 6 March 2014, Jerrie Barhanovich, widow of Mark Barhanovich, filed a brief stating her opposition to Bean and Archer’s request to bring Suzuki and Bob’s Machine Shop in as defendants.

She says Bean and Archer’s request should be denied on 2 counts:

  • The motion does not comply with local rules
  • The proposed third party complaint is futile, will delay the trial, and will prejudice her side of the case.

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