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Running at full throttle: peril amid the pleasure of personal watercraft.

For many personal watercraft enthusiasts, "shredding [H.sub.2] O" on a dog day afternoon--the equivalent of catching a wave to surfer folk--is nirvana. But "wave running" on a Jet Ski or similar product can quickly become hell on water for young or inexperienced operators, many of whom do not have the skills and training needed to operate the watercraft safely.

"They may look like fun, but personal watercraft remain incredibly dangerous," said attorney Buddy Rake of Phoenix, who chairs an ATLA litigation group concerned with personal watercraft (PWC). "Unfortunately, the craft are incredibly popular with young people who are often seriously injured or killed the first time they operate one."

Statistics back up Rake's view: PWC continue to be hot sellers with the boating public, and they continue to be involved in a disproportionate number of boating accidents.

In 1996, U.S. consumers bought 191,000 personal watercraft--about 30 percent of the 619,000 new boats sold nationwide. In sales, personal watercraft accounted for $1.2 billion--about 15 percent--of the boating industry's business that year, said Greg Proteau of the National Marine Manufacturers Association. Sales in 1997 were slightly lower.

Using its most recent statistics, the U.S. Coast Guard reported 8,026 recreational boating accidents in 1996--the most ever. A total of 11,306 vessels were involved. Personal watercraft accounted for 4,099 of these--or 36 percent. All told, 1,837 injuries were sustained on personal watercraft --more than on any other type of vessel.

In 1997, the Journal of the American Medical Association published a study of personal watercraft injuries conducted by the National Center for Injury Prevention and Control, a division of the Centers for Disease Control and Prevention. The study looked at people treated in emergency rooms for PWC-related injuries from 1990 through 1995.

The findings: Personal watercraft injuries increased more than fourfold, from 2,860 in 1990 to 12,000 in 1995. Young adult males received a vast majority of these injuries--70.9 percent. The most prevalent injuries were lacerations, contusions, and fractures. Other injuries--1,155--merited hospitalization. Of those cases, 32 percent occurred after falling off the personal watercraft and 33 percent after collisions. (Christine M. Branche et al., Personal Watercraft-Related Injuries: A Growing Public Health Concern, 278 JAMA 663-65 (1997).)

A cross between a motorboat and water ski, personal watercraft are operated by a person sitting, standing, or kneeling on the craft, not in it. The lure is similar to that of motorcycles. Operators feel closer to the environment in which they are riding. In PWC vernacular, wetter is better.

There are two models of PWC--performance and cruising. The former are single-rider craft designed for exhibition riding and wave jumping. Operators stand or kneel and perform various "trick" maneuvers, often in mid-air. These models are unstable at low speeds and can be difficult to reboard from the water because they do not sit upright when they are not moving. They gain stability from forward motion. (Personal Watercraft: Waking to the Danger, TRIAL, June 1991, at 70.)

Cruising, or sit-down, models have static stability and can accommodate one or two passengers. Riders can easily reboard. These models resemble snowmobiles and can also tow water-skiers.

Though personal watercraft may look like toys, their small appearance belies their power. They weigh up to 600 pounds and reach speeds of 70 mph.

PWC are powered by a two-cycle gasoline inboard engine. The engine drives a jet pump that draws water from the bottom of the craft, pressurizes it, and forces it out a nozzle at the stem in a jet stream. The handlebars control the direction of the jet stream. Because there is no rudder or reverse gear, the jet of pressurized water propels and steers the craft. Without thrust, there is no directional control. (Stephanie Wannell, Personal Watercraft: Pleasure or Peril? The Litigator, July 1997, at 16.)

Like most boats, personal watercraft are not equipped with brakes. They stop only when the operator cuts the power, and friction from the water slows them down.

If an operator cuts the power or lets up on the throttle to avoid a collision, avoidance maneuvers are nearly impossible, Rake said.

"This is why so many people get hurt," said Peter Korn, a Springfield, New Jersey, attorney. "To avoid a dangerous situation, operators must speed up instead of slow down, which is exactly the opposite reaction they are used to making when they drive cars, bicycles, and motorcycles.

"Personal watercraft experts will tell you the craft's operation is counterintuitive," Korn said. "Operators can't slow down in a conventional way and still control the craft." Korn has handled several PWC cases involving rental agency liability.

Another problem is visibility. "It's very difficult to see personal watercraft on a lake because there are no lanes or traffic signals," Rake said. Their small size and heavy spray decrease visibility further. Unlike motorcycles, PWC are not required to operate with running lights.

In addition, novice riders may have to concentrate so intently on controlling the craft that they fail to pay attention to their surroundings. PWC are also noisy, preventing operators from hearing the sounds of an oncoming boat or nearby swimmers. For all these reasons, PWC operation requires skill and training, Rake said.

Case in point

One of Korn's recent cases typifies the tragedy that can befall inexperienced operators when they take the handlebars of a personal watercraft. Jason Garby, a 17-year-old high school student, and several friends rented personal watercraft. As they were riding, one of Garby's friends collided with him, nearly severing his leg. The friend, who was uncomfortable operating his craft, was attempting to return to shore when he struck Garby. Garby's injury required several surgeries, and he suffers permanent weakness in the leg.

Garby's parents sued the rental agency, alleging it had failed to provide adequate instructions and warnings for safe use and had failed to provide adequate space in which to ride the craft. The parents also sued the craft's retailer and manufacturer, alleging failure to provide adequate warnings, and the friend who collided with Garby, alleging negligent operation. (Garby v. Jason Bros. Enterprises, Inc., No. L-34-94 (N.J., Middlesex County Super. Ct. Aug. 29, 1997).)

The Garbys settled with the retailer and the friend before trial. The jury awarded $2.2 million against the rental agency, but it did not hold the manufacturer liable.

From a trial lawyer's view, the prevalence of PWC accident litigation is disturbing because it indicates no lessons were learned from the all-terrain vehicle (ATV) cases from the 1980s.

"People who are dying and suffering serious bodily injury on personal watercraft are usually first-, second-, and third-time operators, just as with ATVs," Rake said.

Regulatory issues

The U.S. Coast Guard is the only federal agency with jurisdiction over PWC. They are classified as Class "A" inboard motorboats, a designation reserved for vessels less than 16 feet long whose engines are "built in" as an integral part of the craft.

"Personal watercraft should absolutely not be classified as boats," Rake said. "The Coast Guard had to grant manufacturers 10 exemptions beyond normal vessel specifications just to meet the definition of a boat. If you have to do that, the craft is not a boat."

Rake notes that the classification benefits PWC manufacturers, many of whom have also been involved in ATV litigation.

"The manufacturers lobbied hard for this classification," he said. "They remembered only too well that the Consumer Product Safety Commission--which has jurisdiction over ATVs--was the group responsible for banning three-wheeled ATVs. They were afraid of the same thing happening to personal watercraft. The manufacturers knew that if they could get the craft classified as boats, the CPSC would not have jurisdiction."

According to Rake, classifying PWC as boats is particularly onerous because the Coast Guard, an understaffed agency, is charged with a regulatory and enforcement role it cannot realistically handle. As a practical matter, personal watercraft cannot be its top priority, he said.

Proactive stance?

The Personal Watercraft Industry Association (PWIA) recently introduced a model act for state legislatures calling for mandatory education for all operators. The association represents the five major manufacturers of PWC, which sell under such brand names as Jet Ski, Wave Runner, Sea Doo, Tiger Shark, and Polaris. PWIA is a subgroup of the National Marine Manufacturers Association.

Among other things, the new act recommends that PWC operators

* be at least 16 years of age;

* complete a boating safety course and carry an operator's certificate on board;

* attach a lanyard-type engine cutoff switch to their wrist, clothing, or personal flotation device;

* ride the craft only during daylight hours, and pilot the craft in a "reasonable and prudent" manner; and

* maintain a no-wake speed within 100 feet of an anchored or moored vessel, shoreline, dock, pier, swim float, or marked swimming, surfing, or fishing area.

The act also directs that rental agencies or liveries

* enforce a minimum rental age of 18;

* administer boating safety instruction;

* provide renters with written PWC operational instructions, boating regulations, and boater and environmental courtesy information; and

* carry liability insurance in the amount of $1 million.

John Donaldson, PWIA's executive director, said education is essential for personal watercraft operators because of the number of first-time boaters attracted to the sport who may have no knowledge of boating rules or etiquette.

Donaldson noted that personal watercraft operated by friends of the owner account for a high proportion of accidents. "Mandatory education of all operators--owners or not--will address that issue," he said.

In 1997, New Jersey began requiring all PWC operators to complete a boating safety course and carry an operators' certificate. Although there are many factors that influence accident statistics, Donaldson said state officials there reported that accidents dropped 37 percent and injuries decreased 31 percent during the first year.

Most states--46--have established age restrictions or require safety certifications to operate PWC. Others are drafting similar laws. (Survey: Personal Watercraft Operation, Small Craft Advisory, Dec. 1997/Jan. 1998, at 8.)

State regulation aside, manufacturers and trial lawyers disagree about PWC safety. Manufacturers argue that the craft are safe as long as operators know how to handle them. Trial lawyers contend that PWC design is inherently dangerous.

For example, Korn said that after trying several cases, he discovered that Yamaha holds two patents for PWC rudders. If manufacturers installed rudders to assist with steering at low speeds, an untold number of accidents could be prevented, he said.

But at least one Yamaha dealer disagrees. Lee Neel, general manager of Greater Yamaha in Palm Beach, Florida, said that after-market rudders for personal watercraft have been on the market for some time. He said experienced operators generally choose not to install them because they can get stuck in shallow water or otherwise injure operators. He also pointed out that even conventional boat rudders have a negligible impact on steering at low speeds.

Korn, for one, is not appeased by the argument.

"As trial lawyers, we need to collectively ask the industry how it can be safety-minded on paper and yet not install something that could potentially save so many lives," he said.
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Author:McMurry, Kelly
Publication:Trial
Date:Jun 1, 1998
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