Propeller Guard Information Center

Archive for Legal Shorts

Mar
4
2012

Propeller Warning Labels Seen at the 2012 Tulsa Boat Show

by Gary

We attended the 2012 Tulsa Boat Show on Saturday morning February 4, 2012. While still getting used to my new digital camera, Lora and I walked around and shot photos of propeller warning decals. I am well aware there is quite a bit of variety in propeller warning decals, but found an even broader selection at this show than I would have anticipated. We show some of them below, as well as some other warning labels seen at the 2012 Tulsa Boat Show.

The comments below are NOT an analysis of boat propeller warning labels. They are just our quick observations of some of the variety seen in propeller warning labels at a single boat show. We are not saying any of the labels are better or worse than others. We are just saying they are different. We continue to encourage the industry to adopt ANSI Z535 standards for boat propeller warning labels.

Propeller Warning Decal with Ladder

Propeller Warning Decal with Ladder

Many propeller warning decals are used in conjunction with the boat boarding ladder as shown in the Brunswick Bayliner boat ladder example above. We talk further about Brunswick’s use of a Danger label instead of the typical Warning label later in this post. Read More→

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Feb
8
2012

Michael Hinton v. Outboard Marine Corporation (OMC) propeller accident trial

by Gary

Michael Hinton was trying to retrieve his son’s hat which had blown into the water on September 10, 2000. He was on the swim deck, crouched, hanging onto the swim ladder and getting ready to reach for the hat. The swim ladder was anchored to the transom by a nylon strap through a grommet. The grommet broke and Hinton fell in, went under a few seconds, then surfaced several yards away.

The boat operator backed up to retrieve Mr. Hinton, he swam toward the stern, as Mr. Hinton looked up he saw the boat rapidly approaching, hit his chin on the swim platform, one of his legs was pulled into the propeller and severely injured, and later amputated.

Michael Hinton claims the boat had a defective swim ladder.

As noted above, the trial focused on the ladder, but they would not have had a trial is he had not been injured by the propeller.

The Jury decided in favor of OMC on February 2, 2012. Read More→

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Jan
25
2012

Deondra Scott v. Allen, Orzolek, and Chaparral Boats

by Gary

Deondra Scott was swimming behind a rented boat at North Carolina’s annual Lake Norman Lake Bash on June 25, 2011. A novice operator backed over her, then went forward over her striking her twice with the Chaparral boat’s propeller. Scott filed suit against the boat operator (Dennis Allen), the boat rental operation (David Orzolek), and the boat builder (Chaparral Boats).

Deondra L. Scott v. Dennis F. Allen, David D. Orzolek, and Chaparral Boats, Inc. was filed on January 3, 2012 in the General Court of Justice Superior Court Division, County of Mecklenburg, North Carolina. Read More→

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Jan
24
2012

Estate of David Paul McFarlin and Jamie Laass vs. Brunswick Corporation (Mercury Marine and Lund Company) and Others

by Gary

A young boy, David Paul McFarlin, was killed in a May 31, 2010 Storm Lake Iowa boating accident. A Labor Day boat outing on Storm Lake became a tragedy when their 175 horsepower Mercury Marine outboard motor struck a submerged dredge pipe on Storm Lake, the Mercury outboard flipped backwards into the boat, and David Paul McFarlin, a ten years old boy, was killed by its propeller.

The full title of the case is:
Estate of David Paul McFarlin, by its Personal Representative, Jamie Laass, Jamie Laass individually; and Jamie Laass, as parent and next friend of S.L. vs. City of Storm Lake, and Iowa Municipal Corporation, Buena Vista County, and Iowa municipal corporation, Lake Improvement Commission, an Iowa Chapter 28E organization, Brunswick Corporation, a Delaware corporation, dba Mercury Marine and Lund Boat Company, Harry Foote, Randy Redig, Russell Harrington, and David Botine.

Justia titles the case as Laass, et al vs. City of Storm Lake, et al

Jamie Laass is the boy’s mother, Harry Foote was operating the boat, Redig, Harrington, and Botine are the dredging defendants.

Brunswick (Mercury Marine and Lund) is being sued for negligent design and warnings. The case is in U.S. District Court for the Northern District of Iowa Western Division. Read More→

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Jan
12
2012

Propeller Accidents Similar to the McGarrigle Accident: Mercury Said There Were None – Our Findings Indicate Otherwise

by Gary

Mercury Marine Tiller Outboards

Mercury Marine Tiller Outboards

In McGarrigle v. Mercury Marine Mercury claims McGarrigle’s accident is the first one of its kind involving one of the over 750,000 tiller outboards (portable outboards) they built from 1986 to July 2007. We suspect there were several more. This post documents our quick search for others.

Our Mercury Marine Tells Court the McGarrigil Accident is the First One Involving Mercury Tiller Steered Outboards post defines exactly what Mercury Marine said. Read More→

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Dec
27
2011

Mercury Marine Tells Court the McGarrigil Accident is the First One Involving Mercury Tiller Steered Outboards

by Gary

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→

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Dec
21
2011

Kenneth W. Fisher Will be Allowed to Testify for Plaintiffs in McGarrigle v. Mercury Marine

by Gary

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 Leagle.com.

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→

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Dec
21
2011

McGarrigle v. Mercury Marine propeller case / lanyard kill switch case

by Gary

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

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→

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Oct
13
2011

Listman vs. OMC Propeller Accident Trial

by Gary

Follow Us On TwitterRobin Listman vs. Outboard Marine Corporation

This Second Judicial District Court of the State of Nevada, County of Washoe jury trial in front of Judge Jerome M. Polaha began October 31, 2011. Case is now with the Jury and they will begin deliberations 8:30 am Monday November 21.

LINKS TO DAILY COURTROOM BLOGS OF TRIAL ARE BELOW

Robin Listman, an avid boater, was on Pyramid Lake in Washoe County Nevada on August 18, 2001. She was out with her in-laws on their 19 foot Four Winns 1995 boat powered by a OMC Cobra stern drive. Robin was riding an air chair, a towed board on a foil that rises from the water at speed. A float toy belonging to her son blew into the water (later said to be a floating dinosaur that can be towed), the boat owner told her to get in and he would retrieve the floating toy. He drove to the floating toy, the wind blew it behind the boat, she stepped onto the swim platform to retrieve it, she reached for the toy and fell in, the owner put the boat in reverse, she was seriously injured by the propeller and lost a portion of her right leg. Read More→

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Jul
6
2011

Litigation Testing Continues in Testing of Propeller Guards by Mercury Marine / Brunswick

by Gary

Litigation Testing of propeller safety devices was defined by Stephen Bolden, author of Motorboat Propeller Injury Accidents, as

“…manufacturers, in performing litigation testing, are not concerned with gathering information for the purpose of redesigning or improving a guard; rather, they are concerned with simply reporting on whatever propeller guard deficiencies they are able to demonstrate through such testing”

When manufacturers test their own products or components against certain criteria or test protocols and their products fail, those involved in the testing process often offer suggestions for improving the product. But when “legal” wants a propeller safety device tested, often against very challenging criteria, the propeller safety device fails or performs poorly in some part of the test, and nobody has any ideas of how it could be improved or ever be made to pass the test, even when the solution is extremely obvious. Read More→

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