Making the Case Against PWC Manufacturers for Marketing Defects / Failure to Warn

Growing up in Southeast Texas, I spent more time on the water than I did on land. From tubing, to skiing, to jet skiing, we did it all. There were certainly risks that we took and sometimes we would suffer the consequences if we got carried away. At the end of the day, we knew what could happen if we threw caution to the wind, drove too fast, or hopped onto an inner tube knowing full well that our buddy behind the wheel was about to sling us full speed into the tsunami he would create by making repetitive circles and figure 8s as we hung on for dear life. We knew what we were getting into, and we assumed those risks with eyes wide open. I saw bruises, gashes and the occasional broken bone, but never had I, or anyone I knew, ended up with a permanent, life long disfigurement. Sure, we knew that we could be severely injured, or even killed, when we were jet skiing; but we also thought that we knew the types of reckless activities that could result in any such catastrophe, i.e., riding too close to another jet ski, boat or any foreign object in the water. In other words, if someone were to get severely injured, we would be able to pinpoint the error in judgment that led to the accident. So when I first heard about a young lady falling off the back of a Sea Doo and ending up with a colostomy bag I was dumbfounded. We fell off of our jet skis and waverunners all the time. “Surely she must have landed on a stump or some other sharp object in the water,” I thought. What could have caused the most intimate parts of that young lady’s body to have been mutilated as if she had been attacked by an alligator?

Although it was not completely clear to me what had happened when I initially agreed to represent the young lady, it quickly became clear to me that the folks at Bombardier Recreational Products knew very well what had happened. Because Bombardier, along with Kawasaki, Yamaha and other personal watercraft manufacturers, have been quietly settling hydrostatic internal orifice injury* lawsuits for decades. All the while, not a single one of the manufacturers has incorporated into its personal watercraft the design changes necessary to prevent these types of injuries from occurring. Instead, they choose to stick a few warning stickers on the Sea Doo, Jet Ski or Waverunner (as a “CYA” measure), and then later use those warning stickers as a way to pass blame from themselves onto the injured passenger and/or the driver of the PWC.

But the PWC manufacturers are well aware of the reality that, generally speaking, people do not pay attention to warnings. And even if a person did happen to see and read the warnings pertaining to internal orifice injuries, they would not truly appreciate the severity of the risk. Nevertheless, because it costs a lot less to warn against a danger than it does to implement design changes that would remove the danger, manufacturers have opted to put a warning sticker on the PWC and later say “I told you so”.

The “human factors” issues in PWC hydrostatic injury cases relate to the fact that severe lower-body orifice injuries (vagina and rectum) can and have occurred when persons riding as passengers on PWCs fall off the rear of the watercraft with their legs abducted directly in the path of the PWC’s high pressure jet water propulsion system. With few exceptions, orifice-injury incidents have involved females riding as passengers and, to my knowledge, no orifice injuries have occurred for drivers of PWCs (presumably due to the fact that when a driver falls, the engine shut-off lanyard cuts engine power).

The first PWC internal orifice injury case I handled involved a 2007 Sea-Doo RXT. In that case, the only warning affixed to the PWC at issue (concerning orifice injuries) was a decal located in front of the driver’s seat below the handlebars on the hull of the PWC. The warning label addressed numerous safety issues including personal flotation devices, boating laws, the engine shut-off cord, aggressive riding maneuvers, applying a throttle when someone is at the rear of the PWC, the intake grate, use of alcohol and drugs, the owner’s manual, and collision-avoidance information. (The owner’s manual reproduces the decal, in bigger typeface, and instructs the operator to wear protective clothing for body or orifice protection). Given that my client was the third passenger (on a 3-seater PWC), she did not notice the warning decal below the handlebars on the hull of the PWC and, being a guest, never had access to any owner’s manual.

It was argued by me (and my human factors expert in that case) that the Bombardier warning label was inadequate and defective due to inadequate conspicuity for a person intending to ride as a passenger. Its location directly in front of the operator created a high likelihood that it would not provide reasonable notice to a person such as my client who would be mounting the PWC from the rear of the vehicle behind two other riders that would further obstruct her view of the decal. From the operators’ perspective, the warning label failed to tell them directly not to give a ride to someone who was not wearing protective clothing, or why that was important. Further, the admonition to wear protective clothing was undermined by the safety video which did not discuss orifice injuries or the special risk to passengers in sufficient detail, and indeed portrayed passengers in bathing suits, rather than in protective clothing.

The person at risk, the passenger, needed to be able to notice and read the warning if the warning was to have any reasonable chance of being effective. The warning needed to be located where it would reliably be encountered by a person who was intending to ride as a passenger sitting at the rear of the PWC. Bombardier cannot simply delegate the responsibility to warn of the risk of orifice injuries, occasioned by falling from the PWC, to the operator of the watercraft. Regardless of whether the operator sees the warning; reads the warning; understands the warning; decides to inform/instruct the passenger — in order to be effective and adequate for the person at risk, the warning must be located where the passenger will reliably see it. Indeed, had the decal been placed on the rear of the watercraft, it would have been sufficiently conspicuous so as to provide notice to passengers such as my client. The warning provided was not in a form that could be expected to catch the attention of a reasonably prudent person in the circumstances of its use. A warning which is not displayed with sufficient prominence to give reasonable notice to the persons to whom it is directed is hardly better than no warning at all.

The Bombardier warning regarding orifice-injury hazards and the need to wear protective clothing is an industry-wide warning provided by PWC manufacturers beginning in 2001. The warning, developed by Applied Safety and Ergonomics Inc., was tested for comprehension and found to be adequately understood by focus-group participants. The warning, however, provides an ambiguous statement that being “near the jet thrust nozzle” can cause severe internal injuries but fails to clearly emphasize the fact that falling off to the rear of the PWC is especially dangerous for a person, especially females, riding as a passenger because the strong stream of water that propels the vehicle can cause severe and permanent injuries due to forceful injection of water into the vagina and anus.

The warning recommends protective measures that involve a high cost of compliance that would tend to decrease compliance with the warning. Notably absent in the testing that was performed to evaluate the understandability of the orifice injury warning was any attempt to predict compliance by addressing behavioral intentions (i.e., asking subjects whether or not they intend to wear a wet suit or protective clothing when riding as a passenger on a PWC). Assessing behavioral intentions to wear protective garments as a function of reading the warning would be especially important given the fact that: (a) protective garments may not be readily available to persons who are simply provided the opportunity to ride as a passenger on a PWC; (b) protective garments are not comfortable when worn in warm weather conditions; and (c) human factors research has shown that behavioral intentions can, and in many circumstances do, predict behavior.

In any event, even with the provision of an adequate orifice-injury warning for passengers and operators, using only warnings as the remedy for the risk of orifice injuries caused by falling to the rear of a water jet-propelled personal watercraft is inappropriate and renders the vehicle unreasonably dangerous. The appropriate remedy would involve design accommodations that would decrease the risk of a passenger falling off the rear of the personal watercraft in addition to sufficiently prominent and conspicuous warnings regarding the risk of orifice injury.

INADEQUACY OF THE WARNING WAS APPARENT TO BRP

The inadequacy of using only a warning remedy for the hazard of forcible injection of water into body cavities for passengers falling off the rear of the PWC was, or should have been, apparent to Bombardier. Compliance with a warning to wear a wetsuit or a wetsuit bottom when riding as a passenger on a PWC would be predictably and reasonably low in light of various factors reliably shown in human factors research to affect compliance with product warnings, perception of risk, cost of compliance, and the tendency to emulate others.

Perception of risk. Research conducted by plaintiff’s human factors expert in 1988 found that the perception of risk for operating or riding on personal watercraft was reliably lower than the risks associated with the use of other motorized recreational vehicles. It was also determined that the risk perception for riding as a passenger on a personal watercraft was exceptionally low and not reliably different from numerous low-risk activities such as riding in a small private plane or talking on a home telephone during a thunderstorm. Low perception of risk decreases compliance with warnings.

Cost of compliance. A common difficulty in producing compliance with warnings is the cost of compliance. A variety of studies have shown that the cost of compliance affects the use of safety equipment. For a person simply wanting to ride as a passenger on a PWC and having no access to a wetsuit or wetsuit bottom, the cost of compliance in obtaining one would, almost always, be enormous. Many times riding as a passenger on a PWC is often not a planned event, but the opportunity to do so is taken when it is available. Very seldom will the operator or owner of a PWC, who offers a ride, have available a wetsuit, a wetsuit bottom, or some other item of protective clothing. High costs of compliance decrease compliance with warnings.

Tendency to emulate others. A variety of studies in human factors have found that compliance with warnings is reduced by observing others in the situation who do not comply. Research shows that the use of wetsuits, wet suit bottoms, or neoprene shorts when riding as passengers on personal watercraft is practically nonexistent. That research to date involved the observations of over 300 PWC users in seven states during the summer months of 2004. Wet suits, wet suit bottoms, or neoprene shorts were worn by only 4% of operators and by only 1% of passengers. Almost all operators and passengers on PWCs wore only swimsuits.

The failure of PWC users to comply with the warnings to wear protective clothing, assuming they have seen them, involves low risk perception and high costs of compliance. If an individual is asked to accompany someone as a guest, and only sees the warning when ready to mount the vehicle (or as in this case does not see the warning at all), it is unlikely that the person will just happen to have a wetsuit or some other type of protective garment available. Rather, compliance with the warning would involve the time taken to find a wetsuit as well as the cost of purchase. Those costs would be exacerbated by the observation of the vast majority of other users who are wearing only swimsuits.

Bottom line — Bombardier attempted to cure a design defect with the band-aid of a warning. Given its knowledge of orifice-injury incidents, Bombardier should be (and is) cognizant of the exceptionally low likelihood of wearing wetsuits etc., especially in summer when most riding activities occur. To design out and/or guard against the hazard by providing some design accommodation, for example a back support, would significantly reduce, if not eliminate the problem. A design accommodation to reduce the likelihood of passengers falling off the rear of the PWC is vastly superior to the provision of a warning that it is almost certain not to be followed.

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