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Defective Design And Improper Warnings May Bypass Assumption Of The Risk Defenses

Sports injuries are usually barred by the doctrine of assumption of the risk.  In other words, if you elect to play, you have to expect to get hurt.  There are a number of exceptions to that rule, and one encountered most frequently in skiing accidents is "increasing the risk," which applies if the risk of the sport is increased by someone else's action.  Typically, in a skiing accident, it could be something like mis-labeling a ski run as a beginner run, when in fact it's a double-or triple-black diamond run (scroll down to the circle photo), for example.

California courts have now identified another type of end-run around the assumption of the risk doctrine:  defective design and improper warnings in strict liability actions.  The case of the day involves a personal watercraft, more commonly known as a jet ski.

Unfortunately, Susan Ford got on one as a passenger for the first time and suffered severe injuries when she fell off; the court delicately describes her injuries as "severe orifice injuries."  As she fell off the back of the jet ski, the water jet propeller pushed water into her, and she was found floating in a pool of blood.  She now claims that the manufacturer of the jet ski improperly designed the watercraft.  She argued that if it had provided a seatback, strap or grips to hold onto, then she would likely not have been thrown off the back and hurt.  Her suit also claims that the manufacturer also did not provide appropriate warnings.  The manufacturer did advise riders to wear a wetsuit to avoid such injuries, both in the manual (which as a guest, Susan didn't see) and on the jet ski itself, which Susan apparently didn't read.

The court appears to be most troubled by the manufacturer's (Polaris) failure to provide alternatives to hold on.  One telling point in the court's opinion was that the nature of jet skiing is to hold on, and presumably, therefore, by adding additional holds to grip, the manufacturer was acting consistent with the sport.  It likely didn't help that one of the Polaris employees testified that the engineering department "got too busy" to design such grips. 

Susan's rare accident was unfortunate, but who do you think should bear the risk?  Susan, the manufacturer, the driver of the jet ski or the owner of the jet ski?

Printer friendly page Permalink Email to a friend Posted by J. Craig Williams on Sunday, May 21, 2006 at 15:55 Comments Closed (0) |
 
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