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Morgan v. Almars Outboards, Inc.

United States District Court, D. Delaware

June 13, 2018

LISA MORGAN and EDWARD MORGAN, Plaintiffs,
v.
ALMARS OUTBOARDS, INC., Defendant.

          MEMORANDUM

          Gerald Austin McHugh United States District Judge.

         This is a product liability case raising an important question of general maritime law: can an injured passenger recover punitive damages, and her spouse damages for loss of consortium, for non-fatal injuries suffered in coastal waters? Because of how maritime law has developed, partly by common law and partly by statute, the answers to these questions require close analysis. But in the wake of Atlantic Sounding Co., Inc. v. Townsend, 557 U.S. 404 (2009), I am persuaded that such remedies are available to Plaintiffs. This is so because the claims they assert and the relief they seek are well established in general maritime law, and no act of Congress, including the Jones Act, eliminates their availability. Townsend held that when a common law cause of action and remedy predate a statute, courts need not ratchet down common law relief to match statutory relief, unless Congress has explicitly legislated otherwise. Consequently, I hold that such damages are recoverable by Plaintiffs in this case.

         I. Factual Background

         During a July 2014 outing on the water, Plaintiff Lisa Morgan's right pinkie and ring fingers were traumatically amputated in a boating accident. She was entering the water from the surface of a 2006 Bentley Pontoon Boat when her hand caught in the boat's gate. The only dispute as to how the accident happened is over whether Ms. Morgan was jumping, stepping, or lowering herself into the water. Ms. Morgan's spouse, Edward Morgan, was on a nearby boat at the time, and rushed to her aid.

         The relevant evidence in this case reaches back more than a decade to the original manufacture, sale, and recalls of the boat in question. The Bentley Pontoon boat on which Ms. Morgan was injured was owned by the Morgans' friend, Richard Spence. Spence bought the boat new in Delaware in early 2006 from Defendant Almars Outboards, Inc., an authorized dealer for Bentley, the boat's now-defunct manufacturer. There is no evidence in the record that Spence knew he was purchasing a boat with a dangerous design that had already been the subject of a safety recall and would soon be recalled again. Bentley designed its pontoon boats to have metal railings that curved down to the hinges where the railings met the gate. Bentley soon learned that this design created a “pinch point” where the curved corners of the gate and railing came together, allowing a passenger's fingers to become ensnared. On March 1, 2004, Bentley sent a Safety Recall notice to its dealers. It began:

We have identified a safety risk associated with the design of our railings and gates. It is possible for a person's finger(s) to lodge between the points where a railing and gates meet on all of our models. The probability of this occurring seems greatest when entering into or exiting from the water. Possible injuries can range from laceration to dismemberment.

         Pls.' Ex. G, ECF No. 47-1, at 36-38. In an effort to eliminate this hazard, Bentley developed a spherical guard that could be installed at the pinch point [hereinafter a “ball guard”]. Boat owners could choose to install the guards themselves or have a Bentley dealer do it, free of charge, with Bentley reimbursing dealers for their labor.

         Unfortunately, these ball guards did not fix the problem, and the pinch point on Bentley boats continued to injure passengers. On January 1, 2007, Bentley issued a second Safety Recall letter to its dealers. This second notice was much like the first, but added that the ball guards, in addition to the railings, were unsafe. The notice urged dealers to immediately install new “gate replacement corner flat kits” [hereinafter “block guards”] and to encourage customers to have the guards installed “before the next use of their boat.” The letter warned: “This is very important and we do not want any further injures. Act Immediately.” Pls.' Ex. L, at 93. In addition to these notices, there were several well-documented instances of finger injury and amputation on Bentley boats, and there is evidence that at least one Bentley dealer notified its customers of the danger and provided an effective guard well before either recall notice.

         Almars contends that it had no knowledge of the safety hazard that Bentley's gates or ball guards posed until it learned of Ms. Morgan's injury. The owner of Almars, Albert Marinelli, testified that Almars sold Bentley boats for about two years, from 2004 to September 2006. He testified that, despite Almars's status as an authorized Bentley dealer that performed repairs under Bentley's warranty, Almars never received the 2004 or 2007 safety recall notices, and never heard of any customer or anyone else being injured by the gate. Marinelli took this position in spite of his testimony that a Bentley sales representative (Ed Butcher) regularly visited Almars, and that, on one occasion, Butcher “dropped a bunch of those balls on our desk and said if any boats come in without these, put them on.” Marinelli Dep. 116:17-23, Pls.' Ex. I, at 45. But the boats Almars bought from Bentley came equipped with the ball guards already, so Marinelli never used the guards and “never really paid much attention” to them. Id. at 117:17-23. The boat Spence bought from Almars in January 2006 arrived from Bentley to Almars equipped with these (ineffective) ball guards, which were in place at the time of Ms. Morgan's accident.

         II. Procedural Posture

         Based on these events, Plaintiffs filed this products liability lawsuit, which the parties agree is governed by general maritime law.[1] Plaintiffs sued only Almars as the retail supplier of the product. Ms. Morgan makes claims based in negligence and two theories of strict liability-sale of a defective product and failure to warn-seeking punitive damages and other remedies. Compl. ¶¶ 22-29, ECF No. 1. Mr. Morgan asserts a derivative claim of loss of consortium based on the injuries Ms. Morgan suffered, and an independent claim for negligent infliction of emotional distress (NIED) based on his proximity to the accident. Compl. ¶¶ 18-21.

         The parties have filed cross motions for partial summary judgment. Pls.' Mot. Summ. J., ECF No. 47 [hereinafter “Pls.' Mot.”]; Def.'s Mot. Partial Summ. J., ECF No. 49 [hereinafter “Def.'s Mot.”]. Plaintiffs seek summary judgment against Almars on both of their theories of strict product liability. Pl.'s Mot. 12-19. Defendant seeks dismissal on the merits of the Morgans' negligence and NIED causes of action, and asserts that their claims for punitive damages and loss of consortium must be dismissed as unavailable under general maritime law. Def.'s Mot. 10-18. Alternatively, Almars seeks dismissal of the punitive damages claim on the merits. Id. at 16.

         For the reasons that follow, and as set forth in my Order of May 4, 2018, both Motions are granted in part and denied in part. ECF No. 58. The Morgans are entitled to summary judgment on the issue of whether Almars supplied a “defective” product that was “unreasonably dangerous, ” as those terms are defined in Section 402A of the Restatement (Second) of Torts, when it originally sold the pontoon boat on which Ms. Morgan was injured-there is no dispute that it did. The remainder of Plaintiffs' Motion is denied, however, as those issues, including liability for failure to warn and causation, are appropriate for resolution by a jury. Almars's Motion is granted only as to Mr. Morgan's NIED claim, to which there is no opposition. It is denied as to the merits of Ms. Morgan's negligence claim, and as to the availability of her claim for punitive damages and Mr. Morgan's claim for loss of consortium, because the Morgans may access those remedies under general maritime law. Finally, Defendant's Motion is denied as to the merits of Ms. Morgan's punitive damages claim.

         III. Standard

         The parties' motions are governed by the well-established standard for summary judgment set forth in Federal Rule Civil Procedure 56(a), as amplified by Celotex Corporation v. Catrett, 477 U.S. 317 (1986).

         IV. Discussion

         A. Ms. Morgan's Motion for Judgement in her favor on Strict Liability

         Preliminarily, it should be observed that it is rare for a party that bears the burden of proof to prevail by summary judgment. Shager v. Upjohn Co., 913 F.2d 398, 403 (7th Cir. 1990). Plaintiff can prevail in part because she is proceeding under a theory of strict liability and the essential facts are not in dispute.

         It is clearly established that the Restatement of Torts' strict liability principles, which form the basis for Ms. Morgan's claims, apply to general maritime actions like this one. Ocean Barge Transp. Co. v. Hess Oil Virgin Islands Corp., 726 F.2d 121, 123 (3d Cir. 1984). The parties agree on this point. Pls.' Mot. 14-18; Def.'s Resp. 16, ECF No. 52. Her first claim rests on Section 402A, which creates liability for the seller of a product in a “defective” condition that is “unreasonably dangerous”:

(1) One who sells any product in a defective condition unreasonably dangerous . . . is subject to liability for physical harm thereby caused to the ultimate user or consumer, or to his property, if
(a) the seller is engaged in the business of selling such a product, and
(b) it is expected to and does reach the user or consumer without substantial change in the condition in which it is sold.

         Restatement (Second) of Torts § 402A (1965).[2] To prevail on this theory, Ms. Morgan must establish that (1) the pontoon boat was defective; (2) the defect was a proximate cause of her injury; and (3) the defect existed at the time the boat left Almars's hands. See Pavlik v. Lane Ltd./Tobacco Exporters Int'l, 135 F.3d 876, 881 (3d Cir. 1998). There is no dispute that Bentley was the designer and manufacturer of the boat involved here and that, as its originator, Bentley concluded that the boat was defective and, later, that the ball guards were defective. Almars did not, undoubtedly because it could not, proffer an expert opinion from an engineer or design professional contesting the danger of the design. Both logic and common sense supports the conclusion that a recreational craft used for the pursuit of leisure cannot have a readily accessible pinch point. And this danger, which Bentley identified and inadequately sought to design around or warn against, fits exactly the harm suffered by Ms. Morgan. It is likewise undisputed that Almars was engaged in the business of selling Bentley pontoon boats, and that when it sold the boat on which Ms. Morgan was injured, the boat had a defective gate hinge (with an ineffective ball guard) that was unreasonably dangerous in that it created a risk of finger amputation. There is similarly no dispute that the boat was expected to and did reach Ms. Morgan without a substantial change in the condition in which it was sold.

         Section 402A goes on to provide that “[s]ubsection (1) applies although (a) the seller has exercised all possible care in the preparation and sale of his product.” For that reason, Almars's contention that it was unaware of the defect and unaware of the danger does not suffice to prevent it from being held liable as a matter of law. Indeed, the essence of strict liability is that a supplier is the guarantor of its product's safety regardless of fault. Therefore, as to the issue of whether Almars supplied a defective product, summary judgment is granted.

         Almars specifically disputes causation, and whether the defective gate hinge was a proximate cause of Plaintiff's injury. I am hard pressed to see any material disputes, as the details of how Ms. Morgan's hand came into contact with the pinch point would seem irrelevant to the danger it presented. Nonetheless, out of an abundance of caution, I will leave that issue for resolution by the jury.[3]

         Plaintiffs' second strict liability theory is failure to warn.[4] Plaintiffs assert that Almars should have known of the risk posed by the defective gate and ineffective ball guards, and should have provided Spence with a post-sale warning of the danger so that he could warn his guests, including Ms. Morgan, or fix the problem. Pls.' Mot. 18-19. There is undisputed evidence that Almars knew that ball guards should be installed on the gates, but whether Almars knew or should have known the ball guards were ineffective remains in dispute. See Marinelli Dep. 115:3-118:3, Pls.' Ex. I, at 45. One aspect of this issue is whether Almars received the Bentley safety recall letters in 2004 and/or 2007 warning of dismemberment from the defective hinges and, later, ball guards. See Pls.' Exs. G, at 35; Pls.' Ex. L, at 92.[5] Accordingly, Plaintiff's Motion is denied as to failure to warn. B. Defendant's Motion as to Mr. Morgan's Negligence Claim In negligence claims under general maritime law, plaintiffs must generally prove the same elements as traditional common law: duty, breach, causation, and damages. In re Great Lakes Dredge & Dock Co. LLC, 624 F.3d 201, 211 (5th Cir. 2010). The same evidence that supports strict liability would allow a jury to find negligence. Defendant's Motion is therefore denied.

         C. Defendant's Motion as to Mr. Morgan's NIED Claim

         The parties agree that general maritime law applies the “zone of danger” test to NIED claims and that Mr. Morgan's NIED claim does not meet that test because he was “not personally placed in immediate risk of physical harm” as a result of the accident. See Defs.' Mot. 16-17 (citing Chaparro v. Carnival Corp., 693 F.3d 1333, 1338 (11th Cir. 2012)); Pl.'s Resp. 19, ECF No. 51. Mr. Morgan's NIED is accordingly dismissed.

         D. Availability of Punitive Damages and ...


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