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Women Injured In Boat Accident Awarded $31M

Posted in Boat Accident,News on June 20, 2011

On July 9, 2006, plaintiffs Nicholette Bell, 23, and Betany Wallenburg, 22, both students at Chico State University, were passengers in a MasterCraft X-45 wakeboarding craft operated on Lake Oroville by Jerry Montz. Montz was towing a wakeboarder who fell. Just prior to that wakeboarding run a number of people had moved to the bow because the boat was not getting “on plane.” Montz slowed the vessel to 5 mph then made a slow 180-degree turn to retrieve the fallen boarder. After completing the turn and traveling partway back to the boarder at a speed of 3 to 5 mph, the bow of the boat suddenly swamped without warning.

The force of water carried both plaintiffs off the bow and into the lake. The propeller struck Bell in the head, fracturing her skull, slicing through her left frontal lobe and ripping out her left eye. She was left with significant, permanent brain damage. The propeller slashed Wallenburg on her left elbow and across her lower back, leaving deep and permanent scars, as well as muscle and nerve damage.

Bell and Wallenburg sued MasterCraft Boat Co., the boat’s manufacturer, for products liability on theories of design defect and failure to warn, and for negligence in design and warning. They also sued driver Montz for negligent operation of the boat.

The plaintiffs contended that the design of the X-45 was defective in two primary ways. First, the broad “pickle fork” bow hull design featured a “reverse sheer” that brought the front of the bow close to the waterline and increased the propensity of the boat to take on water. Second, an anchor locker located just above the waterline at the front of the boat included a large hole that allowed hundreds of gallons of water to flow into the hull of the boat, unknown to the operator. These defects, combined with an over-sized bow seating area that invited a large number of passengers to sit in the front of the boat, caused the bow to submerge without warning during normal, foreseeable operations.

According to the plaintiffs, MasterCraft never tested the vessel to determine its operating characteristics or risks of operation at its rated capacity of 2,928 pounds or 18 people, and provided no warnings of any kind to the operator or passengers about the risks of overloading the bow.

The plaintiffs’ experts also testified that the expanded bow lacked sufficient handrails to provide a fighting chance to passengers; no handrail was within reach of Bell, who was seated at the very front of the vessel.

MasterCraft argued that Montz was solely responsible for the incident. It contended that Montz overloaded the boat, which had a capacity rating of 18 persons or 2,928 pounds, persons and gear, with 20 passengers and failed to provide an adequate number of personal flotation devices. The boat was on the water for approximately two hours while the passengers and Montz were drinking beer and vodka, and several passengers were using marijuana. The wakeboarder made his first run with seven persons in the bow seating area, and 12 in the cockpit without incident. Prior to the second wakeboard run, Montz moved five additional passengers into the bow, bringing the total to 12 in the bow and seven in the cockpit. The passenger weight in the bow was then 700 pounds greater than the cockpit. Due to the uneven weight distribution as Montz slowed, the bow dipped below the water and water came over the bow. Rather than shift to neutral, Montz continued to accelerate for up to 14 seconds, per photographs taken during the event, which caused the boat to be submerged like a submarine. MasterCraft claimed the force of the water washed Wallenburg, who was holding onto the driver side windshield with one hand, off the right side of the X-45. Montz then turned left, which caused Bell to fall overboard, and both plaintiffs were struck by the propeller because the boat was still under power.

The defense’s warnings expert testified to the efficacy of additional warnings and contended that given Montz’s behavior, they would not have prevented the accident.

The defense’s naval architect performed testing of the X-45 and accident reconstruction. Based on the results, he testified that the plaintiffs’ injuries occurred when the subject X-45 took on water due to the improper and unsafe overloading of the bow and Montz’s continued on-throttle.

Although Montz had been drinking before the accident, he registered a blood-alcohol level of 0.04 percent, below the legal limit. He was arrested at the scene and later pleaded no contest to negligent operation of a watercraft.

Montz claimed he was aware of the capacity limits and testified he believed the boat could operate at maximum capacity. He testified that the vessel’s internal ballast tanks were empty, and that he did not use a trim tab that might have helped the boat get on plane without moving people to the front of the boat.

Bell sustained multiple fractures to her skull, lost her left eye, and sustained significant, permanent brain damage. To date she has undergone seven surgical procedures to rebuild her skull.

Bell is currently living semi-independently in Chico and is able to work part-time in a limited capacity, but requires regular monitoring, guidance and supervision throughout the day. She will require major assistance for activities of daily living for the rest of her life.

Wallenburg sustained deep, permanent lacerations that severed muscles and nerves in her left elbow and lower back. She has deep, permanent and disfiguring scars on her lower back. She also claimed she suffered emotional harm.

The jury found for plaintiffs and awarded $30,906,144 to Bell and $530,688 to Wallenburg. The jury apportioned 80 percent responsibility to MasterCraft and 20 percent to Montz.

Nicholette C. Bell

$2,321,797 Personal Injury: Past Medical Cost

$9,780,000 Personal Injury: Future Medical Cost

$190,000 Personal Injury: Past Lost Earnings Capability

$2,114,347 Personal Injury: FutureLostEarningsCapability

$5,000,000 Personal Injury: past non-economic damages

$11,500,000 Personal Injury: future non-economic damages

Bethany Wallenburg

$55,688 Personal Injury: Past Medical Cost

$250,000 Personal Injury: past non-economic damages

$225,000 Personal Injury: future non-economic damages

No amount of money will ever be sufficient to compensate these victims, and most specifically Ms. Bell for her catastrphic injuries and suffering. Ms. Bell’s life has irrevocably been changed by the actions of the defendants here. Clearly the jury found theplaintiffs arguments regarding the design defects most compelling in assigning the manufactureran 80% share of the jury verdict. It is clear thay the jury found thay but for these design defects this horrific accident would never have occurred. In assigning the operator 20% responsibility they felt that his operation of the boat contributed to this accident the design defects nothwithstanding. If you, a loved one, or a friend is similarly injured in boating accident, you should seek legal counsel as soon as possible. You may have the legal right as the plaintiffs did in this case to sue the manufacturer for a cause of action in product liability and the operator for negligence in the operation of the boat. Call the Law Offices of David I. Fuchs for an immediate and free consultation at 954-568-3636./practice-areas/boating-accidents/