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ARTICLE ID 199862

$________ – PRODUCT LIABILITY – DESIGN DEFECT – WATERCRAFT – PLAINTIFF SUFFERS NERVE INJURY IN ARM WHEN INFLATABLE TUBE TOWED BEHIND A BOAT THAT WAS DESIGNED TO BECOME AIRBORNE AND SUSTAIN FLIGHT BECOMES UNSTABLE AND CRASHES INTO WATER 20 FEET BELOW – PRODUCT RECALLED SHORTLY AFTER INCIDENT BY BANKRUPT MANUFACTURER.

Nassau County, NY

This case involved a plaintiff, 26 years old at the time, who sustained a severe brachial plexus injury which rendered his dominant arm permanently paralyzed when using a product known as a Wego Kite Tube. The kite tube is an inflatable tube that is towed behind a boat and designed to become airborne and sustain flight. The plaintiff purchased the product shortly after it went on the market in the summer of ________. While he was using it for the first time, it suddenly rose approximately 20 feet in the air, became unstable, rotated to the right and crashed violently into the water.

The evidence disclosed that within weeks after plaintiff’s injury, the Kite Tube was recalled by the manufacturer, in cooperation with the Consumer Product Safety Commission, because of multiple serious injuries associated with use of the product. The manufacturer had declared bankruptcy. The plaintiff proceeded against the small retailer and two distributors of the tube. There were no serial numbers or other means of determining which of the distributors had supplied the product. The plaintiff asserted that the conditions for an "alternative liability" theory, existed and that the defendant distributors should be jointly and severally liable unless they established that they did not supply the product.

The Court denied the distributors’ motion to dismiss and held that alternative liability did, in fact, apply. This decision was affirmed on appeal.

The plaintiff related that as he was flying above the water, the tube rose up suddenly, became unstable and crashed into the water. The defendants contended that the plaintiff did not follow the directions that came with the product as to the length of rope to be used and as to the speed of the towing boat.

The product came with a 45 foot length of rope and two ten foot extensions. The manual recommended that for the first 20 or so times a participant only use the 45 foot section and that the plaintiff had attached the two extensions.

The plaintiff would have countered that the instruction to start out with a 45 foot tow rope was only a recommendation, not a warning, and that the consequences of using a longer rope, if any, were not adequately disclosed.

The plaintiff further maintained that the product was unstable and dangerous regardless of which length of rope was used, and his use of a longer tow rope was not the proximate cause of his accident or injuries.

The manual warned that the towing boat should not travel more than 20 mph. The plaintiff estimated in that the boat was traveling between 20 and 30 mph. The boat operator would have testified at trial that the speed was not more than 20 mph and the plaintiff would have argued that the estimates of the plaintiff in the air behind the boat would be expected to be much less accurate than the testimony of the boat operator.

The defendants would have maintained that in view of the fact that the plaintiff was an experienced participant in water type sports, it was clear that it was an implied assumption of risk, which enable the jury to reduce any gross verdict in the same manner as comparative negligence applied.

The plaintiff would have countered that he clearly did not assume the risk that the tube would rise up suddenly, become unstable, and crash into the water.

The plaintiff suffered severe injuries to the brachial plexus on the dominant side which left the arm essentially useless. He underwent surgery in which nerves were grafted from the leg in the hopes that the procedure would increase the function of the arm.

The surgery did not afford significant improvement and the plaintiff maintained that the near paralysis will remain permanently.

The plaintiff, who works in the real estate field, made no income claims.The case settled prior to trial for $________. Each of the two defendant distributors made equal and significant contributions. The plaintiff also previously received approximately $________ from the manufacturer through the bankruptcy proceeding.

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