Personal watercraft’s off-throttle defect leads to collision

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Recent Cases: Recreational Products & Equipment

October/November 2013, Volume 32, No. 5

Personal watercraft’s off-throttle defect leads to collision 

Fabiola Esparza, 15, was a passenger on a 2001 Polaris Virage personal watercraft being driven by Andrew Gutierrez when Douglas Lane turned his larger boat in front of the watercraft. Gutierrez eased off on the throttle and attempted to steer out of the boat’s path, but the watercraft failed to respond and collided with the side of the boat.

Esparza suffered a severe traumatic brain injury to her frontal lobe, destroying her executive-function skills, including her judgment and decision-making, and leaving her with the functioning of a 5-year-old child. She will require 24-hour assistance and supervision. Her billed medical expenses of about $2.2 million were paid by insurance for about $500,000.

Esparza sued Polaris Industries, Inc., alleging that the watercraft had an off-throttle steering defect that prevented the craft from being steered once an operator released the throttle. The plaintiff asserted that Polaris was aware of the defect, which could have been fixed for $30 per vehicle. To show Polaris’s conscious disregard for safety in connection with her claim for punitive damages, the plaintiff offered an internal company email in which Polaris’s managing engineer wrote to company safety officials, “I just can’t see us putting $30 more into the boat with our business in the state it is in.”

Esparza also sued Lane, alleging that he was negligent and reckless in speeding, turning directly in front of the watercraft, and operating his boat while intoxicated. The plaintiff offered evidence that Lane’s blood-alcohol content was about three times the legal limit.

The plaintiff presented evidence that she would require a licensed vocational nurse and a life-skills trainer, each at a rate of $45 per hour, and that she would need lifetime attendant care on a 24/7 basis. She also sought about $1.4 million in lost future earning capacity. Under California law, evidence of past medical expenses was limited to the $500,000 paid to satisfy the bills.

Polaris denied that the watercraft was defective and argued that the boat operators were solely at fault. Among other things, the company argued that Gutierrez was operating the Virage too fast for conditions given that there were other boats in the area and that he was negligent in handling the watercraft. The defense agreed that Esparza would require supervision but disputed that she would require the specialized care claimed.

The jury awarded $21.7 million, allocating fault at 56 percent to Lane, 24 percent to Polaris, and 20 percent to Gutierrez. Liability for noneconomic damages is joint and several in California. After allocation of fault, Polaris is responsible for approximately  $11.5 million.

Citation: Esparza v. Polaris Indus., Inc., No. BC429211 (Cal., Los Angeles Co. Super. July 23, 2013).

Plaintiff counsel: AAJ members Larry Grassini, Lars C. Johnson, and Roland Wrinkle, all of Woodland Hills, Calif.


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