United States District Court, D. Delaware
Austin McHugh United States District Judge.
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.
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.
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
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.
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.
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.
on these events, Plaintiffs filed this products liability
lawsuit, which the parties agree is governed by general
maritime law. 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.
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.
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.
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).
Ms. Morgan's Motion for Judgement in her favor on
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.
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
(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
(b) it is expected to and does reach the user or consumer
without substantial change in the condition in which it is
(Second) of Torts § 402A (1965). 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.
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.
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
second strict liability theory is failure to
warn. 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
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.
Defendant's Motion as to Mr. Morgan's NIED
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
Availability of Punitive Damages and ...