Est. of C. Warren v. American Marine CV-00-310-JD 04/30/02 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE
Estate of Chad Warren, by Sherri Warren, Administrator, et a l .
v. Civil No. 0 0-310-JD Opinion No. 2002 DNH 087 American Marine Holdings
O R D E R
The plaintiffs bring an action alleging product liability
and other state law claims arising from a boating accident in
which Chad Warren was killed. The defendant, American Marine
Holdings, asserts a variety of affirmative defenses including
comparative fault, product misuse, and assumption of the risk.
The plaintiffs move to exclude all evidence of Warren's nonuse of
a life vest or a kill-switch lanyard at the time of the accident.
American Marine objects.
Background
On September 8, 1997, Chad Warren and two of his fellow
employees, Thomas Caucis and Matthew Powell, took a 1998 thirty-
three foot Donzi power boat equipped with two 500 horsepower
engines for a test ride on Lake Winnipesaukee. Warren, Powell,
and Caucis were employees of Goodhue and Hawkins Marine in
Wolfeboro, New Hampshire. Warren operated the boat, and Powell and Caucis were passengers.
During the outing, Warren reached a speed of seventy miles
per hour. He decelerated and began a left turn. The plaintiffs
allege that the boat suddenly dropped to the right with the bow
down and the stern out of the water. As a result, Powell and
Caucis were knocked out of the boat. Warren was knocked out of
place but grabbed a bar on the back of the boat as he was falling
out. While hanging from the back of the boat, he came into
contact with the motors' propellers and was killed.
The plaintiffs allege that the boat was defectively designed
or manufactured, which caused it to have operational
characteristics that were unsafe for high-speed operation
including turns, and that it lacked necessary warnings. They
further allege that the boat's defective design or manufacture
caused Warren's death.
At the time of the accident, Warren was not wearing a life
vest or the kill-switch lanyard that was provided in the boat.
The kill-switch feature included a lanyard that was supposed to
be attached to the operator. The switch was intended to stop the
boat's motors if the operator went further than the length of the
lanyard from the operating area. The plaintiffs do not make a
claim based on the operation of the motors, the kill switch, or
the presence or absence of particular safety features.
2 Discussion
The plaintiffs move to exclude all evidence that Warren was
not wearing a life vest or the kill-switch lanyard at the time of
the accident, on the ground that such evidence is not relevant.
In support of the motion, the plaintiffs rely on the New
Hampshire rule that nonuse of seatbelts "is inadmissible to show
negligence where the nonuse may have contributed to the party's
injuries but was not a cause of the collision itself." Thibeault
v. Campbell, 136 N.H. 698, 701-02 (1993). Nonuse of a seatbelt
is also inadmissible to show a plaintiff's failure to mitigate
damages. See Forsberq v. Volkswagen of Am., Inc., 7 69 F. Supp.
33, 36-37 (D.N.H. 1990). The rule has been extended in this
district to bar evidence of a plaintiff's failure to wear a
military helmet while riding in a vehicle. See Ritch v. A M Gen.
Corp., 1997 WL 834214, at *2-3 (D.N.H. Nov. 17, 1997) .
American Marine argues that the seatbelt rule is not
applicable to the circumstances of this case because a kill-
switch lanyard affects the operation of the boat, while a
seatbelt is merely a passive safety device for one person.1
1To the extent that American Marine argues that a different analysis would apply to nonuse of the lanyard because it affects the safety of others in the boat, that argument is inapposite in this case where the plaintiffs' claims are based on the accident and injury to Chad Warren, who was operating the boat.
3 American Marine asserts that the kill-switch would have stopped
the motors on the boat which would have prevented Warren from
being ejected from the boat and being hit and killed by the motor
propellers. American Marine characterizes Warren's ejection from
the boat and his contact with the propellers as the accident at
issue in the case.
The plaintiffs' claims, however, are based on allegations of
a defect in the boat, along with a lack of warnings, that caused
it to be unsafe for high speed operation including turns.
Because of the defect, they claim, the boat suddenly dropped to
the right during a left turn, with the bow down and the stern out
of the water. As a result of the boat's unexpected action during
the turn, the passengers and Warren were ejected from the boat,
although Warren managed to catch onto the back of the boat. The
accident the plaintiffs allege is the boat's action during the
turn, which lead to the subsequent events.2
American Marine does not suggest that wearing either a life
vest or the kill-switch lanyard would have affected the operation
of the boat during the turn. In that regard, this case is much
like a car accident in which the driver of the car, because he
was not wearing a seatbelt at the time of the accident, is thrown
2In contrast, the plaintiffs do not allege defects in the safety features of the kill switch or the motors.
4 around in the car or ejected from the car and injured, although
he might not have been injured at all if he had been wearing the
seatbelt. Therefore, although the kill-switch lanyard might have
prevented some or all of Warren's injuries, his failure to wear
the lanyard did not cause the boat's unexpected action during the
turn, which is the accident alleged by the plaintiffs.
American contends that the circumstances here differ from
those in seatbelt cases because unlike the lack of foreseeability
of a car accident, "the possibility of being thrown from the
operator's control position or ejected from a power boat was
clearly foreseeable to the plaintiff." Def. Mem. at 6. In
Thibeault, the court considered whether the failure to wear a
seatbelt in a car created an unreasonable risk of harm so as to
incur comparative fault. See 136 N.H. at 701. The court held:
"Although there is the potential for an accident every time an
automobile is used, this mere possibility does not make an
automobile occupant responsible for anticipating the accident-
causing negligence of another." I d . (Emphasis added.)
American Marine asserts only a "possibility" of being thrown
from the operator's position or ejected from the boat in this
case, and the record presented shows no greater likelihood of
harm. As in Thibeault, the mere possibility that the boat might
be in an accident does not make Warren responsible for
5 anticipating the allegedly defective condition of the boat or the
resulting harm.
American Marine also contends that when an employer requires
the use of safety equipment, other jurisdictions have permitted
evidence of an employee's failure to use the equipment. In Walsh
v. Emergency One, Inc., 26 F.3d 1417, 1421 n.2 (7th Cir. 1994),
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Est. of C. Warren v. American Marine CV-00-310-JD 04/30/02 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE
Estate of Chad Warren, by Sherri Warren, Administrator, et a l .
v. Civil No. 0 0-310-JD Opinion No. 2002 DNH 087 American Marine Holdings
O R D E R
The plaintiffs bring an action alleging product liability
and other state law claims arising from a boating accident in
which Chad Warren was killed. The defendant, American Marine
Holdings, asserts a variety of affirmative defenses including
comparative fault, product misuse, and assumption of the risk.
The plaintiffs move to exclude all evidence of Warren's nonuse of
a life vest or a kill-switch lanyard at the time of the accident.
American Marine objects.
Background
On September 8, 1997, Chad Warren and two of his fellow
employees, Thomas Caucis and Matthew Powell, took a 1998 thirty-
three foot Donzi power boat equipped with two 500 horsepower
engines for a test ride on Lake Winnipesaukee. Warren, Powell,
and Caucis were employees of Goodhue and Hawkins Marine in
Wolfeboro, New Hampshire. Warren operated the boat, and Powell and Caucis were passengers.
During the outing, Warren reached a speed of seventy miles
per hour. He decelerated and began a left turn. The plaintiffs
allege that the boat suddenly dropped to the right with the bow
down and the stern out of the water. As a result, Powell and
Caucis were knocked out of the boat. Warren was knocked out of
place but grabbed a bar on the back of the boat as he was falling
out. While hanging from the back of the boat, he came into
contact with the motors' propellers and was killed.
The plaintiffs allege that the boat was defectively designed
or manufactured, which caused it to have operational
characteristics that were unsafe for high-speed operation
including turns, and that it lacked necessary warnings. They
further allege that the boat's defective design or manufacture
caused Warren's death.
At the time of the accident, Warren was not wearing a life
vest or the kill-switch lanyard that was provided in the boat.
The kill-switch feature included a lanyard that was supposed to
be attached to the operator. The switch was intended to stop the
boat's motors if the operator went further than the length of the
lanyard from the operating area. The plaintiffs do not make a
claim based on the operation of the motors, the kill switch, or
the presence or absence of particular safety features.
2 Discussion
The plaintiffs move to exclude all evidence that Warren was
not wearing a life vest or the kill-switch lanyard at the time of
the accident, on the ground that such evidence is not relevant.
In support of the motion, the plaintiffs rely on the New
Hampshire rule that nonuse of seatbelts "is inadmissible to show
negligence where the nonuse may have contributed to the party's
injuries but was not a cause of the collision itself." Thibeault
v. Campbell, 136 N.H. 698, 701-02 (1993). Nonuse of a seatbelt
is also inadmissible to show a plaintiff's failure to mitigate
damages. See Forsberq v. Volkswagen of Am., Inc., 7 69 F. Supp.
33, 36-37 (D.N.H. 1990). The rule has been extended in this
district to bar evidence of a plaintiff's failure to wear a
military helmet while riding in a vehicle. See Ritch v. A M Gen.
Corp., 1997 WL 834214, at *2-3 (D.N.H. Nov. 17, 1997) .
American Marine argues that the seatbelt rule is not
applicable to the circumstances of this case because a kill-
switch lanyard affects the operation of the boat, while a
seatbelt is merely a passive safety device for one person.1
1To the extent that American Marine argues that a different analysis would apply to nonuse of the lanyard because it affects the safety of others in the boat, that argument is inapposite in this case where the plaintiffs' claims are based on the accident and injury to Chad Warren, who was operating the boat.
3 American Marine asserts that the kill-switch would have stopped
the motors on the boat which would have prevented Warren from
being ejected from the boat and being hit and killed by the motor
propellers. American Marine characterizes Warren's ejection from
the boat and his contact with the propellers as the accident at
issue in the case.
The plaintiffs' claims, however, are based on allegations of
a defect in the boat, along with a lack of warnings, that caused
it to be unsafe for high speed operation including turns.
Because of the defect, they claim, the boat suddenly dropped to
the right during a left turn, with the bow down and the stern out
of the water. As a result of the boat's unexpected action during
the turn, the passengers and Warren were ejected from the boat,
although Warren managed to catch onto the back of the boat. The
accident the plaintiffs allege is the boat's action during the
turn, which lead to the subsequent events.2
American Marine does not suggest that wearing either a life
vest or the kill-switch lanyard would have affected the operation
of the boat during the turn. In that regard, this case is much
like a car accident in which the driver of the car, because he
was not wearing a seatbelt at the time of the accident, is thrown
2In contrast, the plaintiffs do not allege defects in the safety features of the kill switch or the motors.
4 around in the car or ejected from the car and injured, although
he might not have been injured at all if he had been wearing the
seatbelt. Therefore, although the kill-switch lanyard might have
prevented some or all of Warren's injuries, his failure to wear
the lanyard did not cause the boat's unexpected action during the
turn, which is the accident alleged by the plaintiffs.
American contends that the circumstances here differ from
those in seatbelt cases because unlike the lack of foreseeability
of a car accident, "the possibility of being thrown from the
operator's control position or ejected from a power boat was
clearly foreseeable to the plaintiff." Def. Mem. at 6. In
Thibeault, the court considered whether the failure to wear a
seatbelt in a car created an unreasonable risk of harm so as to
incur comparative fault. See 136 N.H. at 701. The court held:
"Although there is the potential for an accident every time an
automobile is used, this mere possibility does not make an
automobile occupant responsible for anticipating the accident-
causing negligence of another." I d . (Emphasis added.)
American Marine asserts only a "possibility" of being thrown
from the operator's position or ejected from the boat in this
case, and the record presented shows no greater likelihood of
harm. As in Thibeault, the mere possibility that the boat might
be in an accident does not make Warren responsible for
5 anticipating the allegedly defective condition of the boat or the
resulting harm.
American Marine also contends that when an employer requires
the use of safety equipment, other jurisdictions have permitted
evidence of an employee's failure to use the equipment. In Walsh
v. Emergency One, Inc., 26 F.3d 1417, 1421 n.2 (7th Cir. 1994),
the only case cited by American Marine, the Seventh Circuit
distinguished an Illinois case pertaining to assumption of the
risk and seatbelt use on the ground that the plaintiff, Walsh, as
a fireman was required to wear a seatbelt. As a result, the
court concluded, the plaintiff had a duty to wear his seatbelt
and breach of the duty was evidence of his assuming the risk.
See id.
American Marine argues that Goodhue and Hawkins Marine had a
policy requiring its employees to use the kill-switch lanyard, so
that Warren's failure to do so is admissible evidence of his
assumption of the risk of his injuries. The employer's policy,
American Marine asserts, may be inferred from statements made by
his fellow employee, Thomas Caucis, after the accident.
When asked what the company policy was on the kill-switch
lanyard, Caucis said: "Ah, I'm not sure, ah it's done really, I
was just always told it was a safety issue to have the lanyard
hooked to your body somewhere while you are on the way." Def.
6 Ex. 8 at 4. In response to a question about who told him the
policy, Caucis said, "Urn, when I first started working there I
just noticed that ah, you know people were doing it and ah, I
don't remember quite who it was but a boat that I was getting
into one day, urn, ah, they were just going over starting
procedures and things like that ... I wish I could recall who
it was, . . . one of the things was the lanyard, they said that
it should be hooked to you. I told them that we had outboards
that were like that." I d . at 4-5.
Caucis's remarks fall far short of establishing that Goodhue
and Hawkins required their employees to wear the kill-switch
lanyard when operating boats. American Marine offers nothing
from Goodhue and Hawkins to show that such a policy existed. It
is therefore unnecessary to consider whether the Seventh
Circuit's analysis, based on Illinois law pertinent to an
assumption of the risk defense, would be applicable here. See,
e.g., Nutbrown v. Mount Cranmore, Inc., 140 N.H. 675, 681-82
(1996) ("The doctrine of primary assumption of the risk, as a
common law defense, has been rejected by this court.") (citing
Bolduc v. Crain, 104 N.H. 163, 166-68 (1962)).
Relying primarily on crashworthiness cases, American Marine
contends that evidence of the nonuse of seatbelts has been held
to be relevant to product misuse or assumption of the risk. See,
7 e.g.. Brown v. Ford Motor Co., 67 F. Supp. 2d 581, 582 (E.D. V a .
1999. Under the crashworthiness doctrine, a manufacturer is
liable if "the construction or design of its product has caused
separate or enhanced injuries in the course of an initial
accident brought about by an independent cause." Trull v.
Volkswagen of A m . , 145 N.H. 259, 261 (2000) (internal quotation
omitted). That is not the plaintiffs' claim in this case.
The rule under New Hampshire law, applicable to this case,
is that evidence of seatbelt nonuse is not admissible to show
fault or failure to mitigate damages. See Thibeault, 136 N.H. at
701-02; Forsberg, 769 F. Supp. at 36-37. The rule is applicable
to preclude evidence of the nonuse of other safety devices to
show fault or failure to mitigate damages. See Ritch. 1997 WL
83214, at *2-3. The concept of comparative fault is sufficiently
similar to product misuse to apply the rule in the context of
product liability claims. See, e.g., Reid v. Spadone, 119 N.H.
457, 465 (1979). American Marine's arguments to the contrary are
not persuasive.
Therefore, American Marine is precluded from introducing
evidence that Warren was not wearing a life vest or the kill-
switch lanyard at the time of the accident for the purpose of
showing comparative fault, product misuse, assumption of the
risk, or failure to mitigate damages. Conclusion
For the foregoing reasons, the plaintiffs' motion (document
no. 27) is granted.
SO ORDERED.
Joseph A. DiClerico, Jr. United States District Judge
April 30, 2002
cc: Leslie C. Nixon, Esquire Kenneth G. Bouchard, Esquie