FORD v. POLARIS INDUSTRIES

Filed 5/18/06

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FOUR

Susan Ford sustained severe orifice injuries after falling off the rear of a two-seater Polaris personal watercraft. The jet-powered nozzle propelled a high-pressure stream of water that tore apart her internal organs. Today she uses a colostomy bag, urinates through a catheter, and her lower right torso and leg are numb from nerve damage. Susan and her husband sued the manufacturer and distributor of the watercraft on a strict products liability theory.

This appeal frames the question whether the doctrine of primary assumption of risk applies to the manufacturer of the personal watercraft so as to preclude the injured jet skier from raising a defective design claim. We conclude that the trial court properly ruled that primary assumption of the risk did not bar plaintiff's suit. The appeal also addresses the propriety of instructions in a strict products liability case where the plaintiff alleges that the personal watercraft was defectively designed and caused her injury. We determine that the standard instructions on defective design were adequate.

Finally, defendant manufacturer insists that the court below erred in refusing to permit the jury to allocate fault to the watercraft operator for giving misleading instructions to the injured skier and to the owners and operator for failure to pass on safety warnings. This assertion begs the questions: Did the operator owe a duty not to deliver misleading instructions and did the owners and operator have a duty to convey the manufacturer's warnings? Finding no such duties, we reject these contentions as well and affirm the judgment.^[1]

I. FACTS AND PROCEDURE

A. The Accident, Injuries and Aftermath

In April 2001 Steve and Laura Nakamura^[2] bought two 2-seater Polaris SLH-700 personal watercraft.^[3]

On September 9, 2001, the Fords and Nakamuras and various family members went to Lake Berryessa for a picnic. Laura took Susan for a ride on the watercraft. Susan was wearing a one-piece swimsuit and a life jacket. This was her first time riding a personal watercraft.

Susan held onto Laura's waist. After about five minutes, Laura stopped to tell Susan she was holding on too tight and to hold onto the grips behind her instead. Susan looked around; all she saw were the grab handles. She had to lean back and could only hook a couple fingers into each handle.

They started out again in a straight line. The jet ski was â€