Whether your family is considering taking legal action or not, we strongly suggest that as soon as the propeller accident victim is stable, their families do the following four things.
- Make sure a boating accident report has been filed. Contact your State Boating Law Administrator.
- Make sure the accident is very well documented. (including many photos of the boat, the drive, the propeller, the operators station, the location the accident happened, and the victim’s injuries). This will be very important if you later elect to pursue legal action. Please note the industry often tries to prove the injuries or, at least the worst ones, were not caused by the propeller. Evidence needs to be gathered now, not later.
- Start a journal, just get a spiral binder and start writing in it. Record your thoughts and emotions. Reading them later will help you recover the passion you now have. When your push for change stalls, and it will, reading your journal will help you get the energy you need to get it going again. Plus it makes a great place to keep notes about how you might be able to help others avoid similar challenges, and bits of information that might be helpful later.
- Consider parking the boat in a garage or other covered area. If you were to file a lawsuit, it is best if the boat remains in the same condition.
We also suggest you visit SPIN (Stop Propeller Injuries Now). They are a propeller safety advocate that works with families of injured victims and helps them visit with others who have been through similar events. SPIN also provides an outlet through which victims and victims families can get involved in the propeller safety movement.
A Few Weeks After the Accident
Some families begin to consider taking legal action to recover some of the medical expenses, pain and suffering of their loved one from parties they feel contributed to the accident. Those parties may include the boat operator, a boat rental operation, the boat manufacturer (and its parent company), the marine drive manufacturer (and its parent company), a marina, the manufacturer of certain components on the boat that may have failed such as a railing, gate, latch, steering system, shifting system, cable manufacturers, or others.
Some families feel that they only way they can prevent this from happening to someone else, is to take the industry on in court and cause them to address the problem.
Legal action can be a decade plus long process that is extremely draining. You might consider visiting with some people who have been through the process and see what they think.
Reasons NOT to Take Legal Action
Let me make it perfectly clear at the outset, we do not encourage everybody who is somehow injured by a propeller to sue everybody connected to the accident. Among the reasons families may decide NOT to take legal action are:
- The boat propeller accident was caused by the victim or the victim significantly contributed to the accident.
- The propeller accident was an “Act of God” (unpreventable event).
- Event occurred in a third world country with very limited legal recourse.
- Victim or victim’s family has “secrets” or “dirty laundry” they don’t want aired in court.
- The parties responsible are no longer around (companies out of business years ago, people died, etc.).
- Victim or victim’s family is long term friends with the responsible party and does not wish to jeopardize that relationship.
- Victim or victim’s family received a large insurance payout and they feel they were properly compensated for their losses, pain, suffering, medical costs, etc. and do not wish to pursue it further.
- Victim does not want to risk having to endure courtroom experiences.
- Victim or victim’s family does not want to be reliving the accident for the years a legal action could take. They just want to put it behind them and move on.
- Alcohol was a possible factor in the accident and the family feels its presence would overwhelm the legal discussions.
- Accident happened in a major commercial waterway (maritime law could limit recovery to the value of the vessel).
- Victim died and was the only living member of their family.
- Victim is an illegal alien with minimal legal recourse.
- Responsible party offered a quick settlement they felt was reasonable or needed at that time.
- Responsible party is very prominent and untouchable by law – this has happened several times in accidents outside the U.S.
- Responsible party is an arm of the U.S. government, a state, or the U.S. military and difficult to take legal action against.
- Accident occurred on tribal lands with questionable jurisdiction (some major western lakes).
- Victim signed a waver (like boat rental agreement waiver absolving the renter of all liabilities). Note, not all waivers will hold up in court.
You Will Be Belittled In The Online Media
Online boating forums, boating trade magazine blogs, and responses to online news coverage of the trial will refer to you as moron, idiot, refusing to take personal responsibility, make jokes about thinning the herd, claim you got what you deserved, say you were drunk (even if you were stone cold sober), and say lawyers are just in search of deep pockets. Online media is a very nasty place for propeller victims. Boating forums and newspaper comments can be particularly vicious. Some propeller safety advocates suggest the industry itself tries to rial up these online lynchings.
Its all just online chatter, but you should know its going to be there, and it will be online for a very long time.
Families tend to post happy photos and try to forget the hardest times.
Be very cautious about what you post to the social media (Facebook, Flickr, MySpace, YouTube, etc) or send to your friends in electronic format. For an extreme example, suppose the propeller strike victim has only felt good and been happy on one day since the accident. If you post a photo of them happy on that one day the defense will show the image and say it looks like the victim does not have any challenges and is enjoying life to the fullest all the time.
Some Factors That Make Propeller Guarding Cases Very Difficult to Win
If your approach is suing boat or marine drive manufacturers for not guarding the propeller, winning will be difficult, even if everybody in the accident was doing exactly what they were supposed to be doing and nobody contributed to the accident.
If one or more people substantially contributed to the accident, it’s going to be considerably harder to win in court.
Some situations will make it very difficult to win a propeller guarding case. Those considering filing a case might want to browse this list and identify any major hurdles their case might face. If your accident has several of these factors it could be next to impossible to win. Among the factors difficult to overcome in a propeller guarding case are:
- Use of alcohol or drugs by any involved
- Recklessness or negligence on the part of any involved
- Horseplay led to the person being ejected from the boat or being ran over
- One or more persons on board was involved in criminal activity at time of the accident
- Boat operator was ejected and they were not using a lanyard (emergency ignition cut-off switch) if the boat was wired for one
- Operator inattention
- Involvement of boats with top speeds over 25 miles per hour
- Accidents between 30 minutes before sundown and 30 minutes after sunrise (visibility, lighting issues)
- Older boats (they will say solutions were not available back then)
- Swimming just outside a designated swimming area
- Diving without a diver in the water flag
- Sitting on the front of a pontoon boat and dangling feet off before falling overboard
- Standing when ejected
- Riding in the bow of a bowrider underway at speed
- Sitting or standing on the bow when underway (not sitting in a proper seat)
- Teak surfing (hanging on to the swim platform when underway)
- Wake surfing behind an outboard or stern drive (surfing with no rope up close to rear of boat)
- Not using a spotter to spot towed fallen wake boarders, tubers, or water skiers
- Improper lookout at stern of a houseboat
- Performance boat with top speeds in excess of 50 mph
We are not saying cases cannot be won (or settled) with one or more of the difficulties mentioned, but you will face additional challenges for each one present.
Some of the challenges of a propeller trial can be anticipated by reading our comments on Naples Daily News coverage of the 2009 Decker vs. OMC trial and the 2011 Listman vs. OMC trial.
Common Legal Approaches
Those who do decide to take legal action against manufacturers accused of being responsible in boat propeller accidents eventually visit with one or more lawyers who elect to take one of the legal approaches below.
- Defective design (boat should have had a guard on it)
- Crashworthiness Doctrine (should have protected person from striking the prop)
- Steering system failures (often leads to ejection followed by prop strike)
- Shifting neutral failure (drive in neutral but propeller turning)
- Engine starts in gear, occupants are ejected, and struck by the propeller
- Poor orientation and training (rental boat operations)
- Poor boat design led to people being ejected or falling overboard
- Lack of or improper warnings
- Defective components (failure of steering systems, railings, gates led to person falling overboard or being ejected)
- Lack of proper training – in those instances where the manufacturer also runs their own boats in a rental operation (some large rental houseboat operations in the past)
An Exemplar Propeller Guard or Propeller Safety Device
Plaintiffs (the injured party) are often required to produce a device they claim could have prevented the accident, was available at the time the boat/drive were manufactured, does not create worse problems than the solution it brings, and could be manufactured at a reasonable cost.
With the industry continuously preaching the evils of propeller guards, few prop guard manufactures have gained a substantial foothold so exemplar (example) propeller guards for your specific boat may be hard to find. The industry will claim they needed to be available for your specific drive and propeller at that specific time. But, reason will typically prevail, and you can try to show that guards existing at that time could have been easily constructed in the sizes needed back then.
The industry will point to all the classic objections to propeller guards and later test your proposed guard and try to fail it in one or more of those ways.
The first objection to propeller guards raised in most situations is their impact on boat performance at speeds above 10 mph. Prop guards tend to create drag which slows the boat, especially at higher speeds. The second objection typically raised is hazard of being struck by the propeller guard itself.
The boating industry has been successfully countering these lawsuits a long time. Their defenses include:
- Negligence of the victim and or boat operator
- Use of alcohol
- Embarrassing or personal information about the victim or victim’s family
- The Coast Guard does not require the use of propeller guards, nor does any state
- No other manufacturer uses propeller guards
- Propeller guards are not required in any recreational boat standards
- The alternative device you propose was not available off the shelf when this boat or drive was built
- The alternative device you propose has unintended consequences (causes other bad things to happen)
- Entrapment (people could become caught in the proposed propeller guard)
- Blunt trauma, skull fractures, and brain acceleration caused by being struck by a propeller guard.
- For several years they successfully used Federal Preemption defense which is no longer available to them (the Coast Guard does not say all boats should have guards on them, thus a single state could not preempt federal law and require guards on any boat).
We have a much more extensive list of some of the boating industry’s defense tactics on page 133 of our analysis of a USCG proposed houseboat propeller safety rule. Plus we have added some more in the Update section of our announcement of that report.
Finding a Lawyer
We encourage anyone considering legal action to visit with their family lawyer, and then consider visiting with a firm that has previously represented others injured by propellers. Local family lawyers may be very capable of representing victims against those accused of negligence or recklessness in operating a boat. However, a full propeller guard case is better handled by a firm with considerable product liability experience, and optimally by a firm with previous experience in propeller cases. The opposition has spent many millions of dollars over the last thirty years developing a highly polished, professional defense. You will need an expert legal team that is willing and able to risk a lot of time and money on the outcome.
Some Questions You Are Going to Be Asked
In a deposition or in court, you will be asked about your actions between being released from the hospital and going to trial.
- Do you still use that boat? Does it have guard or other propeller safety device on it now?
- If you sold the boat, did you warn the purchaser of the dangers of the propeller?
- Have you warned any people of the dangers of propellers or taken part in any organized propeller safety efforts like those of SPIN?
- Do you let your children go out on boats without propeller guards or other propeller safety devices?
And every expert witness called in your behalf will be asked if they use propeller guards or other propeller safety devices on their personal boats.
Whether you plan on going to court or not, you should spend some time pondering these questions. While you shouldn’t be trying to paint yourself, you will obviously come across as being more convinced of the dangers of propellers in court if you have taken some of the actions above.
The Propeller Safety Debate
The longstanding debate about the use of propeller guards and other propeller safety devices will be played out in the courtroom. It is a complex web of challenges and counter challenges at every step. Our Aspects of the Propeller Safety Debate chart provides some idea of the areas that will be explored and complexity of a propeller injury trial.