Archive for Legal Shorts

Kaden Frederick cropped from Daily Mail image

Kaden Frederick
cropped from Daily Mail image

9 year-old Kaden Frederick was on the bow of a rented pontoon boat Wednesday afternoon August 17, 2016 near Ocean City, Maryland. The pontoon boat was running about half speed as he dangled his legs over the bow. Three others sat on the bow beside him. We previously covered the accident.

Kaden fell over the boat and was struck by the propeller. Veteran police officials described his injuries as horrific. Kaden later died from his injuries. In response to this accident, a Maryland regulation has since been proposed to specifically ban bow riding / bowriding.

Under the Bridge Watersports rented the pontoon boat out that was involved in the accident. Tyler Barnes owns OC Watersports which operates Under the Bridge Watersports.

Maryland Natural Resources Police have filed several charges against Tyler Barnes and OC Watersports including renting a boat out without the proper equipment, renting a boat without a plate showing the boat’s maximum capacity, failing to keep records for law enforcement agencies, and negligent operation of a vessel.

As to proper equipment they were short two life jackets to have enough for everyone on board, however the boat had a capacity of 15 but there were 17 on board. The negligent operation count has to do with allowing an overloaded boat to leave their dock.

If they were fined the maximum amount on all counts, the fine would be less than $700 per The Dispatch (Ocean City).

A hearing is set for 17 February 2017.


On 20 January 2017 the boat operator was charged in New Jersey’s Worcester County District Court with negligent operation of a boat. The operator has acknowledged he knew 4 people were bow riding in front of the front fence of the pontoon boat. News reports indicate the maximum penalty for such a charge is $500.

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Back in 2012 Mark Barhanovich of Biloxi, Mississippi was going out fishing in his boat with a friend just off Biloxi. The Suzuki outboard motor struck a dredge pipe, broke off, flipped into the boat, and killed Mr. Barhanovich, at least partially with the propeller.

Mark Barhanovich's center console fishing boat. Photo from Edward Fritsch expert witness report

Mark Barhanovich’s center console fishing boat.
Photo from Edward Fritsch expert witness report

Mark Barhanovich

Mark Barhanovich

Bean, the dredging firm, previously settled with the Barhanovich family.

Bean brought Suzuki of Japan into the suit in an effort to recapture some of any potential losses. Suzuki moved for summary judgement in U.S. District Court of Southern Mississippi and the case was dismissed.

We covered the Barahanovich accident and case in several previous posts.

The U.S. Court of Appeals for the Fifth Circuit heard the Barhanovich case in September 2016.

On 4 November 2016, the U.S. 5th Circuit Court of Appeals filed its opinion. As is sometimes the case, the U.S. Court of Appeals affirms in part (agree with the lower court on some things), and reverses and remand in part (disagree with some of the lower court’s findings and remand the case back to them). Read More→

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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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Mark Barhanovich

Mark Barhanovich

On September 16, 2012 Mark Barhanovich’s boat struck a dredge pipe off Deer Island, Mississippi, his 225 horsepower Suzuki outboard motor broke off, flipped into the boat, and he was killed by the propeller.

As to what led up to the appeal, see our post titled, Barhanovich case: Suzuki released, Bean appeals

The Expert Reports

A little more information on the expert report in question and its timing is below.

Bean’s expert, Edward Fritsch of ATA Associates, prepared an expert report dated 19 October 2014. At the end of the report, he lists a total of 3 opinions. They were basically, (1) But for failure of the Suzuki outboard swivel bracket, the engine would not have entered the boat and struck Mr. Barhanovich. (2) The extent of fracture of the swivel bracket on the Barhanovich boat is much greater than that of similar brackets failed in the lab and requires evaluation of the properties of the specific bracket on the Barhanovich boat. (3) If Mr. Barhanovich knew a dredge pipe was in the area, he should have been going less than 28 mph.

Suzuki DF225 outboard

Suzuki DF225 outboard

Per Bean, Suzuki did not provide full responses to their discovery til 6 April 2015.

Edward Fritsch, Bean’s expert, filed a supplement (update) to his report on 30 July 2015 said to be based on additional things learned from Suzuki’s disclosure. In this report Mr. Fritsch lists a total of 10 opinions, all of which target Suzuki.

Suzuki basically claimed the first expert report was not relevant because it did not make direct claims against Suzuki.

Suzuki claimed the second report introduced ideas and opinions not in the first report. Per Bean supplemental reports were only to expand on ideas previously discussed, not to introduce new opinions.

Suzuki was thus able to get both reports and Mr. Fritsch’s testimony (deposition) tossed from the case on 16 September 2016, just two weeks before the scheduled trial.

That left Bean holding an empty bag when Suzuki moved for summary judgement.

The judge granted summary judgement to Suzuki and Bean appealed. Read More→

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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

Read More→

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Mark Barhanovich

Mark Barhanovich

The fatal propeller accident in which Mark Barhanovich’s boat allegedly struck a dredge pipe and the Suzuki outboard motor broke off, flipped into the boat and struck him with the propeller has resulted in perhaps the most complicated propeller accident case ever with no end in sight.

Mr. Barhanovich was a cherished, well known citizen of Biloxi Mississippi with a young family when the accident occurred off Deer Island Mississippi in September 2012.

Recently Suzuki was released from the case, but Bean quickly appealed and the case is now in the U.S. 5th Circuit Court of Appeals. Read More→

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Outboard broke off and flipped into Michael Moreno's boat. Image via Bass Angler magazine.

Outboard broke off and flipped into Michael Moreno’s Ranger bass boat. Image via Bass Angler magazine.

Back on 29 September 2011, Mike Moreno, a professional bass angler, and his stepson, Jared Mitchell were prefishing the California Bass Federation State Championship tournament

The were rolling along in a Ranger bass boat powered by a 250 horsepower Mercury outboard motor.

About 8 am they struck a dredge pipe on the San Joaquin River Delta. The Mercury outboard motor broke off, flipped up into the boat, and landed between the consoles with the engine still running. Both men sustained major injuries. Mike Moreno was pinned down by the motor. Jared was cut by the propeller. This quick account of the accident was gleaned from Things can happen beyond your control. Bass Angler magazine. 18 October 2011.

The Moreno’s filed a case 12 October 2012 in the Superior Court of the State of California for the County of Sacramento, Case #34-2012-00133702 focusing on the dredging operation being insufficiently marked / lack of warnings. That case also named the U.S. Coast Guard and the U.S. Army Corps of Engineers as defendants. With the federal agencies named as defendants, on 8 April 2013 the case was moved to Federal Court:

Michael Moreno, Deanna Moreno (spouse of Michael Moreno), Jared Mitchell
Ross Island Sand & Gravel, Costa County, Sacramento County, U.S. Coast Guard, U.S. Army Corps of Engineers

United States District Court
Eastern District of California
Case # 2:13-cv-00691-KJM-KJN Read More→

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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.

Read More→

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Mark Barhanovich was killed 16 September 2012 when his 23 foot center console fishing boat struck a dredge pipe off Deer Island, Mississippi. The 225 horsepower Suzuki outboard motor broke off and flipped up into the boat, fatally striking him with its still rotating propeller.

Deer Island Barge Position

Position of the Deer Island, Mississippi barge associated with the dredging operation per USCG 2012 Week 37 Local Notice to Mariners dated September 12, 2012. Deer Island is the long thin island to the south west of the barge (red balloon).

Mr. Barhanovich’s family settled a civil suit against the dredging operation, C.F. Bean, LLC and other parties.

The United States Attorney’s Office filed criminal charges against Bean on Friday 16 October 2015 for not properly marking the dredge pipe.

Case Citation: United States of America v. C.F. Bean LLC. Criminal No: 1:15cr71HSO-RHW. United States District Court for the Southern District of Mississippi Southern Division.

Bean pleaded guilty in Federal Court on Tuesday 27 October 2015 to improperly marking its dredging operations near Deer Island. Read More→

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DJ Laz

DJ Laz

DJ Laz, South Florida radio personality, was operating the 42 foot boat involved in the fatal propeller strike of Ernesto Hernandez in May 2014. Ernesto and others nearby came to help push the large boat off a Nixon Beach sandbar near Key Biscayne during a Voli Vodka promotional event.

On Wednesday November 4, 2015, DJ Laz, real name Lazero Mendez, pled “no contest” through his attorney to careless driving resulting in a death of Ernesto Hernandez.

DJ Laz did not appear in court Wednesday. As per the plea agreement, he will pay $500 as a civil penalty, donate $1,000 to a Mashta Flats beach restoration fund (the area the accident occurred), provide 120 hours of community service, and take a boating safety course.

The judge noted, “There was no navigational rule that was violated.” Read More→

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