Facts

In September 2002, plaintiff Kevin Seeger was a passenger in an 18-foot boat manufactured and owed by Livingston Boats Inc., powered by two 75-horsepower outboard engines. According to plaintiff, he was on a demonstration ride on a model boat. Defendant Keith Ford, Livingston's local distributor, controlled the boat. When the boat struck a wave, the plaintiff flew into the air and fell back into the boat. He sued, claiming negligent operation of a boat, defective design and vicarious liability.

PLAINTIFF'S CONTENTIONS:
The plaintiff contended it was a windy day and the boat was traveling at an excessive speed. The waves would not have been as hazardous had the boat been traveling at a lower rate of speed. Further, the boat was poorly designed, as it lacked handrails for passengers to hold on to.

DEFENDANTS' CONTENTIONS:
The defendants contended that the plaintiff's claim was barred pursuant to the doctrine of primary assumption of risk. The plaintiff was not on a demonstration ride. Rather, the plaintiff and defendant Ford were friends who rode the boat for fun. Further, the boat was not defective, as it had grab bars, which plaintiff admitted he failed to clutch. Coast guard regulations do not mandate handrails on boats. There was no history of similar injuries or complaints with regard to this boat model. The plaintiff even admitted that the defendant had no notice of any defect.

Livingston Boats Inc. also contended that if there were liability, its damages exposure was limited to $26,800, the agreed value of the boat, pursuant to Maritime Law (the Limitation of Liability Act of 1851).

Settlement Discussions

The plaintiff made a C.C.P. Section 998 demand of $99,999; the defendant offered $26,800.

Specials in Evidence

$2,500

Damages

The plaintiff claimed that he could no longer accept certain jobs, which required him to lift heavy objects. He claimed $52,500 in past economic loss and $100,000 in future economic loss. He contended that he suffered from constant lower back pain, and sought $100,000 to $200,000 in past non-economic damages and $100,000 in future non-economic damages. The defendant asserted limited liability pursuant to the Limitation of Liability Act of 1851, but the plaintiff argued that the act was inapplicable because it only protects boat owners and not boat manufacturers.

Injuries

The plaintiff contended that he fractured his transverse processes at L1-5 and aggravated pre-existing degenerative injuries. The injury also caused his pre-existing asymptomatic osteoarthritis to turn symptomatic. The defendant asserted that the plaintiff was able to go surfing, proving that his claimed injuries were exaggerated.

Result

Defendant Ford was found to be 50 percent at fault for negligent operation of the boat, and defendant Livingston was found to be 50 percent at fault for the design defect. Defendant Livingston was also found to be vicariously liable for defendant Ford's negligence. The plaintiff was awarded $220,700.

Other Information

Following a motion brought by defendant Livingston, the court concluded that the Act applies to defendant's vicarious liability. Accordingly, judgment was entered against defendant Livingston in the sum of $137,150. This was equivalent to half of the award plus the value of the boat. The judgment has been satisfied.

Deliberation

three hours

Poll

10-2

Length

four days