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Martell v. Boardwalk Enterprises Inc.

November 13, 1984


Appeal from a judgment of the United States District Court for the Northern District of New York, entered after a jury trial before Roger J. Miner, Judge, awarding plaintiff $1,333,333.34 for injuries to William Brent Martell including the loss of his left arm, and $166,666.66 for losses suffered by Harry Martell. Affirmed as to findings of liability. Reversed and remanded for a new trial on the issue of damages, unless plaintiff agrees to a remittitur of all amounts in excess of $800,000 as to William Brent Martell and $40,000 as to Harry Martell.

Author: Kearse

Before: KEARSE, PIERCE, and MARKEY,*fn* Circuit Judges.

KEARSE, Circuit Judge:

Defendants Nicholas F. Cutro, individually and d/b/a/ inter alia Boardwalk ("Cutro"), William Revy, and Kawasaki Motors Corp., U.S.A. ("Kawasaki"), appeal from a judgment entered in the United States District Court for the Northern District of New York, Roger J. Miner, Judge, following a jury trial and verdict in favor of plaintiff Harry Martell ("Harry") suing in his own behalf and as parent and guardian of his son, William Brent Martell ("Brent"), requiring appellants to pay damages in the amount of $1,333,333.34 for Brent, plus $166,666.66 for Harry. On appeal, Kawasaki contends that the trial court erred in not granting it judgment notwithstanding the verdict or a new trial on account of errors in the determination of its liability; Cutro challenges pretrial, trial, and posttrial rulings affecting his liability; and all of the appellants argue that the damages determined by the jury for Brent and Harry were excessive. Although we reject the arguments of Kawasaki and Cutro as to liability, we agree that the jury's awards of damages were excessive, and we remand the case for a new trial as to damages unless plaintiff agrees to remit all sums in excess of $800,000 as to Brent and $40,000 as to Harry.


A. The Accident

There appears to be little dispute as to the events that led to the accident, which occurred on the afternoon of August 31, 1979, on Lake George in northern New York. Brent, a 16-year-old with sailing experience and some familiarity with the rules of watercraft navigation, rented a Jet Ski from Cutro, who was in the business of renting Jet Skis, boats, and other watercraft. A Jet Ski is a small, low profile, motorized vessel -- seven feet long, two feet high, and two feet wide -- designed with a narrow beam to enhance its maneuverability. It is designed to be driven at speeds of up to 35 m.p.h. with the operator in a standing or kneeling position; balance is required to operate it.

Brent had never operated a Jet Ski before the day of the accident. When he rented the Jet Ski from Cutro on August 31, Brent read all of the materials relating to the Jet Ski's operation available at the rental booth and received explanation from one of Cutro's employees as to Cutro's rules and the basic principles of the Jet Ski's operation. The Jet Ski in question had been manufactured by Kawasaki, which had sold it to WRD Enterprises, Inc., d/b/a Saratoga Kawasaki ("WRD Enterprises"), which in turn sold it to Cutro. Brent was not shown a copy of the Kawasaki operator's manual for the Jet Ski. Cutro had formulated his own warnings and precautions for his customers. Safety regulations were posted at Cutro's rental boat house stating, inter alia, that watercraft should not be operated within 200 feet of each other. Brent was given the same warning orally by Cutro's employees.

Brent had difficulty in learning to operate the Jet Ski. The boat traffic was heavy, causing waves and choppiness on the water, with some chops as much as two feet high. There was expert testimony that the Jet Ski did not handle well in rough or choppy water conditions. Brent fell off the Jet Ski between eight and twelve times and ultimately had to operate it from a kneeling position. He testified that, in order to keep his balance and avoid tipping the Jet Ski, he had to keep his shoulders square and that it was difficult to turn his head without losing his balance. There was also testimony that the small size and low profile of the Jet Ski tended to hinder its visibility to other watercraft, and that the choppiness of the water on August 31 further tended to obscure the Jet Ski from view.

The other watercraft involved in the accident was a motorboat operated by Revy. Revy was an inexperienced motorboat operator; he had not been in a boat for about a year, and had had a total of just two hours of operating experience prior to the accident. He had rented the boat from Cutro and had received the same instruction given Brent as to the need to remain at least 200 feet from other vessels. While Revy operated the boat, two of his small children were seated in the front of the boat, between Revy and the windshield. The accident occurred after Revy had traveled between 600 and 800 yards from shore. Revy, who had looked to his left a few seconds before the collision and not seen the Jet Ski, was not aware of the presence of the Jet Ski until his daughter, a passenger in the boat, warned him of its approach to the left.

Revy's motorboat hit the rear of Brent's Jet Ski and severed the lower two-thirds of Brent's left arm. Brent also suffered fractures of the 4th and 5th ribs, a punctured lung, and multiple contusions.

B. The Proceedings Below

This diversity action is a consolidation of the actions brought in 1980 and 1981 by Harry suing as parent of Brent for Brent's injuries and suing individually to recover for expenses caused by the accident and for the loss of his son's services. In addition to the appellants, the complaints named as defendants WRD Enterprises and the Village of Lake George (the "Village"). The complaints alleged, inter alia, that (a) Cutro had been negligent in renting the Jet Ski and the motorboat for use on the crowded and congested Lake George waters and in failing to give proper instruction to the operators on the use and operation of those crafts; (b) Revy had been negligent in the operation of the motorboat; (c) the Village had been negligent in failing to terminate, supervise, or control Jet Ski rental and operation on Lake George; (d) Kawasaki had been negligent in the design of the Jet Ski, in improperly advertising the product, and in failing to warn operators and owners of the dangers in operation of the Jet Ski, particularly in areas with congested boat traffic; and (e) WRD Enterprises had made an improper sale of the Jet Ski to Cutro.

At trial, plaintiff presented the testimony of three experts as to alleged defects in the Jet Ski and its accompanying warnings. These experts testified, inter alia, that the Jet Ski was unstable and difficult to balance, that it was difficult for the skier to keep his balance if he turned his head, and that the Jet Ski's color and low profile interfered with its visibility. They also opined that the warning plate on the Jet Ski, which stated, "KNOW LIMITATIONS OF VEHICLE," was insufficient and that inadequate information and warnings had been provided about the instability and handling characteristics of the Jet Ski.

Kawasaki, on the other hand, called experts who testified that the visibility of a person operating a Jet Ski from a kneeling position is unrestricted; that a 16-year-old should be able to learn to ride a Jet Ski in a matter of minutes; and that the Jet Ski is a stable vehicle at moderate to high speeds. One of Kawasaki's experts opined that the warning label on the Jet Ski was adequate under the standards of the boating industry.

As set forth in greater detail in Part III below, plaintiff presented medical and psychiatric testimony as to Brent's injuries, his treatment, and his psychological problems in adjusting to the amputation of his arm. There was no evidence that future medical treatment would be needed and no estimates as to the cost or duration of any future psychological treatment that might be needed. No evidence was presented as to any loss of past earnings or anticipated impairment of future earnings.

The evidence presented on Harry's own claim included a list of medical and educational expenses incurred on behalf of Brent totalling $25,975.79. Brent's parents also testified in support of Harry's claim for loss of Brent's services during Brent's minority, stating that Brent could no longer help with certain household chores.

Prior to the close of trial, the court directed a verdict in favor of the Village.*fn1 The claims against the remaining defendants were submitted to the jury on 18 written interrogatories, 15 directed to liability issues, one to apportionment of fault, and two to damages. The jury found that Cutro had not been negligent in renting the Jet Ski to Brent or the motorboat to Revy; that Revy had been negligent and that his negligence was a proximate cause of Brent's injury; that although Kawasaki had been negligent in the design of the Jet Ski, and the design defect existed when WRD Enterprises sold the Jet Ski to Cutro, the design defect was not a substantial cause of the accident; that Kawasaki had also been negligent in failing to warn of the dangers in Jet Ski operation and that this failure was a proximate cause of Brent's injuries; and that Brent had been contributorily negligent. The jury attributed 33 1/3% of the fault for the accident each to Revy, Kawasaki, and Brent.

The jury found that the damages suffered by Brent and Harry, respectively, amounted to $2,000,000 and $250,000. Reducing these amounts by 1/3, the extent to which Brent was found contributorily negligent, the court eventually entered judgment of $1,333,333.34 for Brent and $166,666.66 for Harry. In addition, the final judgment held Cutro liable to plaintiff as a matter of law, to the extent of Revy's liability, pursuant to ยง 48(1) of the New York Navigation Law on account of Cutro's having rented to Revy the boat that struck Brent (see Part II.B. below).

A number of posttrial motions were made by the defendants. All of the appellants moved for judgment notwithstanding the verdict or for a new trial, on the ground that the amounts awarded by the jury were excessive. In addition, Kawasaki moved for judgment n.o.v. on the ground that plaintiff had not established a prima facie case and had not proven that Brent's injury was caused by any act or failure to act by Kawasaki; alternatively, it sought a new trial on the grounds that the court had admitted irrelevant evidence and that the verdict finding Kawasaki liable was inconsistent with the verdict finding Cutro not liable. Cutro moved, inter alia, for indemnification from Revy and Kawasaki. All of these motions were denied, and these appeals followed.


On appeal, Kawasaki and Cutro pursue, inter alia, the contentions made in their posttrial motions, arguing that the court erred in various rulings affecting their liability. We have considered all of their contentions and find them unpersuasive.

A. Kawasaki

Kawasaki argues that the finding that it is liable should be set aside because (1) the court admitted irrelevant testimony into evidence, (2) plaintiff failed to prove his case against Kawasaki, (3) plaintiff's summation deprived it of a fair trial, and (4) the verdict against Kawasaki cannot stand in light of the verdict in favor of Cutro. We disagree.

1. Relevance

Over Kawasaki's objection, plaintiff's experts were permitted to testify as to the instability of the Jet Ski and the difficulties in its operation. The evidence included testimony that a Jet Ski was unstable at slow speeds or when stopped; that neither the range of planing speeds nor the turning radius was disclosed; that a Jet Ski was noisy; that it was difficult to get back on; that a Jet Ski was not suitable for use in towing and rescue operation; and that it was not crashworthy. Kawasaki contends that because Brent was proceeding straight ahead and in a planing position when the accident occurred, the evidence as to the behavior of the craft in any other manner of operation was irrelevent and prejudicial, and hence was ...

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