August 16, 2017
On July 17, 2014, seven-year-old Ryan Paul Batchelder lost his life in a boating mishap that his family alleges, was completely preventable.
The occasion was a Batchelder family reunion on Lake Burton, a 2,775 acre-reservoir in Georgia’s Northeast corner. Ryan was one of a party of six that included his uncle, Darin Batchelder, his brother Josh, and his first cousins, Kayla and Zack, in a rented 20-foot Malibu Response LX Bowrider. That Thursday evening, the children were seated in the bow of the boat, with great uncle Dennis Ficarra at the helm, and Darin in the adjacent port seat.
Ficarra was navigating the Bowrider across its own wake at less than 10 mph, when the bow dipped under wave, immediately swamping the boat. Josh and Kayla scrambled over and through the narrow opening of the windshield into the cockpit, Zack jumped out of the sinking boat and Ryan and the seat he was sitting on was washed overboard; Ficarra attempted to halt the sinking by throwing the boat into reverse. Zach, Josh and Kayla were able to climb through the narrow windshield opening into the cockpit of the boat.
Ryan, however, became entangled and lodged in the propeller rudder and driveshaft, which severely lacerated his body and amputated his leg. He died from drowning and massive blood loss. With Ryan’s body wedged in the vessel’s mechanism, the boat was disabled, and the Batchelder family had to wait for help to arrive as the water filled with blood. Ultimately, the boat had to be towed to shore and lifted out of the lake for rescue personnel to untangle the young boy’s body from the propeller.
Ryan’s parents, Steven and Meg Batchelder wanted their funny, fearless youngest son to be remembered for two of his fondest ambitions: to own a million stuffed animals and to become Santa Claus. They combined them in the founding of the Ryan Batchelder Foundation, also known as Little Hugs. The organization donates new stuffed animals to children who need comfort, providing more than 3,000 of them to impoverished children in the Caribbean and Latin America.
The Batchelders also want another legacy for Ryan: safer boats. In a civil lawsuit filed in the state Superior Court of Rabun County, the Batchelders allege that the Malibu Bowrider was defective and that the manufacturer was negligent in designing a boat that when used as intended, the weight of occupants in the bow rendered it vulnerable to swamping. The Batchelders allege that Malibu failed to adequately test the Bowrider as it was likely to be used – indeed as it was marketed. Finally, the complaint alleges that Malibu failed to warn its customers about the unsafe nature of the boat.
The lawsuit, filed in May 2016 is headed for trial next April. The lawsuit is in the discovery phase.
Malibu Boats bills itself as “the world’s largest manufacturer of watersports towboats, owning over one-third of the worldwide market share.” Founded in 1982 by six water-skiing enthusiasts from California, the company opened a production facility in Loudon, Tennessee in 1992. Eventually, the company headquarters relocated there from Merced, California. In 2006, the private capital fund, Black Canyon Capital acquired Malibu Boats, and later took the company public in an IPO. Its corporate history, sketched on its website, describes its forward-thinking approach to boat design. A timeline describes the addition of “the first on-board computer system, dubbed “Computron” which included the first and only LED graphic speed control.” and “By 1995 Malibu was confidently throwing out terms like “ergonomics” to describe the principles behind design considerations.”
But, the reality, as described in a deposition by Robert Alkema, one of Malibu’s original founders and former CEO, is: despite its outsized footprint in the world of towboats, Malibu’s design process was more relaxed. Alkema testified that the company created the step-over bow used in the Batchelder’s Bowrider LX in 1996, by simply cutting a hole in the deck of another model, called the Response, in their shop, and added some seats to the bow area. Alkema testified that the impetus for the design was market share: “It was a belief on our part that we could sell – or would – there would be a bigger market for a boat that had more seating. And that’s proven by other specific open bow models. So the walkover was a thought to be a more novel way to maintain the skiability and the two rearward facing passengers, and have the seating in the front.”
Alkema testified that no engineering adjustments were made, despite the fact that the design would have added more weight to the bow of a boat that had originally been designed to have no weight in the bow. Nor did Malibu give any consideration to making a bow capacity weight limit for the Response LX. Alkema also testified that it would be up to the customer’s reasonable judgement to decide how many occupants could safely fit in the bow of the boat, and that the company had no testing protocol nor did any testing to determine safe weight capacity.
Bell v. Mastercraft
The problems with weight distribution and boat design that may have contributed to the Batchelder tragedy closely mirrors another incident involving Malibu’s main competitor.
In June 2011, Nicholette C. (Nikki) Bell won a $30. 5 million jury award in a Butte County, California court against manufacturer MasterCraft Boat Co. Inc. for serious head injuries she sustained in a 2006 boating accident.
Bell, then a 23-year-old California State University Chico student, was a passenger in a MasterCraft X45 boat out for a July afternoon of wake-riding on Lake Oroville, a reservoir in northern California. The driver was attempting to turn the boat around to pick up a fallen wake-boarder, when the bow dipped below the water line, pitching Bell and passenger Bethany Wallenburg into the water and the path of the propellers. Wallenburg, who went into the water feet first, sustained injuries to her elbow, leg and lower back. But Bell suffered major head trauma when the propeller sliced through her face and skull. Her permanent injuries included the loss of her left eye and part of her frontal lobe.
MasterCraft had created the 24-foot wake board boat by combining design the hull of one model, the X-80, and the deck of another model, the X-Star. The result was a hull with a downward curve and a SuperFly pickle-fork bow, with an 18-person capacity. MasterCraft advertised it as “the most spacious 24-footer on the inboard market.”
The boat was loaded with 20 passengers, and Bell and Wallenburg were among 12 people in the bow when the X45 swamped.
The court proceedings pitted the plaintiff’s theory of the case – that the boat suffered from a defective design against the defendant’s – that the operator was intoxicated and caused the injuries when he attempted to throttle forward to bring up the bow, instead of putting the wakeboard boat into neutral. Testimony during the 49-day trial revealed that MasterCraft had combined the two designs and set an 18-person, 2,928 pounds capacity limit without doing any testing or risk assessments. Nor did MasterCraft provide boat owners any guidance on how the weight should be distributed. The plaintiffs also argued that another design flaw – a hole in the anchor locker located in the bow close to the waterline – allowed water to collect unseen in the hull. The extra weight of that water combined with the downward curve of the bow, also known as reverse sheer – exacerbated the tendency for dipping, the plaintiffs argued.
“They had no naval architects and they didn’t do any engineering,” says attorney Roger A. Dreyer of the California firm of Dreyer Babich Buccola Wood Campora, LLP, who represented the Bell family. The design criteria was what looks good — not what was safe. The design was completely contrary — boats don’t have bows that go to the water. There’s no efficiency. But one [Mastercraft manager] testified that it looked ‘sexy.’”
The jury found that the MasterCraft design accounted for 80 percent of the fault; the boat operator Jerry Walter Montz was 20 percent responsible. Bell, who suffered permanent brain damage. The jury awarded Bethany Mercer $530,688.
The lawsuit had its own wake, sending competitors such as Malibu to develop safety tests that did not exist previously. Malibu COO Rick Anderson testified in the Batchelder case that when he joined the company in July 2011, Malibu’s product development team was in the midst of developing testing for the bow capacity labels, such as a Bow Dip test and a Rough Seas test. Sometime before the end of 2011, the company made the decision to put maximum capacity labels for the bow area in the boat.
Anderson testified that the main purpose was not to protect customers, but to shield the company: “We thought that would help – would be one of the biggest things to help on the liability side if anything ever did happen.” In his deposition, he said “I think that’s what pushed it for the industry. Because that’s when it became an industry problem. So everybody stepped back and looked, okay, if we are going to have people out here misusing our product, we are seeing it, what do we do to try to help defend that.”
Boats Built With Few Rules
Unlike passenger and commercial vehicles and aircraft, boats are manufactured under few regulations, and are not subjected to compliance tests to meet a particular dynamic performance standard. The U.S. Coast Guard is the federal agency that promulgates boating regulations, which include standards related to ignition, fuel and electrical systems, navigational lights and safe powering.
They also include standards on capacity labels and limits. Each boat is required to be marked with the maximum capacity in whole numbers of persons and in pounds. The safe loading regulation requires that a calculation the takes into account boat weight and maximum displacement, along with the added weight of occupants. However, the Coast Guard does not test boats. And, there is no requirement that boat manufacturers test their boats at their advertised capacity. Many, including Malibu did not, until the Bell verdict.
Many of the standards apply to all vessels, however, the regulations regarding Safe Loading and Display of Capacity information only apply to monohull boats less than 20 feet in length, except for sailboats, canoes, kayaks, and inflatable boats.
That means that neither the MasterCraft X45 – at 24 feet – nor the Malibu Response LX Bowrider – at 20 feet – would be regulated for safe loading or capacity labelling.
All other standards and certifications are voluntary, written by industry groups such as the American Boat and Yacht Council and the National Marine Manufacturers Association. The former claims:
“Standards are the core of ABYC as they are continuously researched, developed and revised by over 400 volunteer marine professionals on 16 Project Technical Committees (PTCs) from all fields of the industry including the U.S. Coast Guard (USCG), trade organizations and private entities. ABYC collaborates with safety organizations worldwide such as Transport Canada and the International Organization for Standardization (ISO). As a result of strong industry and government support, ABYC has evolved into the premier standards developer and the viable alternative to mandatory government regulations of the marine industry.”
Boat manufacturers can and do tout ABYC and NMMA certifications, but according to one certification compliance inspector assigned to Malibu’s Tennessee plant, the trade organizations do not do any dynamic inspections or testing before certifying a model to the industry standard. Clyde Head, who had worked for a decade as an independent inspector for the National Marine Manufacturers Association, testified in the Bell case that his inspections consisted of static testing of components such as the electrical, seating, re-boarding handrails.
You Cannot Change the Laws of Physics
The revelations contained in depositions filed in Rabun County Superior Court echo those of other manufacturers in the RV and bus industries who failed to systematically determine appropriate weight limits – employing an ad hoc design process conducted with little testing by staff without engineering credentials and driven more by market considerations than safety.
The laws of physics show, in example after example, that overloading a conveyance in critical locations under certain circumstances becomes a literal tipping point that routinely causes injuries and deaths. Overloading has long been a safety issue affecting the recreational vehicles, 15-passenger vans and shuttle buses. Encumbering a vehicle with more passengers and cargo than its weight rating can support strains tires to point of failure, and change a vehicle’s dynamics in pre-crash maneuvers, making it more prone to loss-of-control crashes and rollovers. The combination of a catastrophic tread separation and an overloaded vehicle often has deadly consequences for occupants in vehicles that offer little occupant protection in crashes.
In August 2006, The Safety Record published a story of repeated RV recalls by Country Coach, one of the nation’s largest manufacturers of Class A motor homes (now owned by Winnebago Industries) to replace the tires on some of its motor homes, blaming the tire manufacturer for outfitting its recreational vehicles with tires unable to carry their weight.
Country Coach, blamed Toyo’ Tires’ M102z models for more than 50 tire failures since 2003 – a charge Toyo denied. But overloading was an industry-wide problem in the early 2000s. At least five manufacturers, including Fleetwood, Newmar, Airstream, Four Winds and National RV Inc., had initiated recalls involving more than a dozen motor home models with incorrect weight or tire pressure ratings.
Rick Morrison, an attorney based in Mobile, Alabama, who was litigating two separate cases of left-front tire failures on motor homes that resulted in fatalities said, at the time: “As far as I’ve seen, there is no engineering process, no testing, nothing that the RV manufacturers have done to make sure that the tires are appropriate for their vehicles and have the appropriate load-bearing capabilities.”
In June 2015, The Safety Record published a two-part story about a 2009 fatal rollover in Mississippi that resulted in a civil liability settlement, a class-action lawsuit, two recalls and a NHTSA Audit Query. (See A Bus Crash, Litigation and a Surprising Result Part I, Part II)
In July 2009, two members of the Shreveport, La. First Baptist Church youth group died and 21 passengers aboard a 42-passenger 2007 Starcraft XLT International 3200 bus manufactured by Forest River were injured. The group was enroute to Macon, Georgia to attend a youth ministry camp, when the left rear tire of the Starcraft bus suffered a catastrophic tread separation, prompting a loss of control that caused the bus to roll over one and a half times.
The company had built the bus on a Navistar chassis certified to a certain fully loaded weight. But in outfitting the bus with extra seats and a cargo room for customers such as churches, Forest River had cut the chassis in half and extended it to make it longer. Frame rails were also added to the rear of the bus to extend it even further for the cargo area. As re-configured by Forest River, the bus was no longer safe to carry a full load of passengers and their luggage. Nonetheless, as a second-stage manufacturer, Starcraft used the original manufacturer’s compliance certifications to assert that the vehicle met government safety standards.
The victims sued Forest River. John Davidson, a Jackson, Mississippi lawyer who represented some of the plaintiffs discovered this loaded weight discrepancy in the First Baptist’s bus, and other, similar medium-sized buses. He also discovered, in deposition testimony, that none of Forest River’s engineers actually had engineering degrees, and the company had no industrial scales to weigh their products.
Fifteen-passenger vans continue to be a vehicle that is unsafe for its intended use. NHTSA research shows that 15-passenger vans have a rollover risk that increases dramatically as the number of occupants increases from fewer than five to more than ten. Between 2004 and 2013, 653 Americans died in crashes while riding in 15-passenger vans – an average of 65 occupants per year, according to NHTSA data. The agency continues to put out periodic advisories, warning the public about the dangers of 15-passenger vans. The last one was in 2015.
Contrary to the popular narrative, Americans do not live in a world of over-regulated products. There are thousands of consumer products manufactured without regard to engineering design principles or safety standards, and without testing or meaningful government oversight. And, once in the marketplace, some of those products do great harm. But, as the cases against Mastercraft and Forest River show, litigation plays an important role in pushing industry to improve.
Dreyer knew that he had achieved a measure of justice for Nikki Bell, but he had been unaware of the response from Mastercraft’s main competitor.
“We have many cases in which we have been able to affect change using conditional settlements. And even though we got this eight-figure verdict in a community that was very conservative, it would have no effect on making the defendant do something to improve its practices,” Dreyer said. “To know that my case had an impact – it was a very powerful moment.”