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Colombo v. BRP US Inc.

California Court of Appeals, Fourth District, First Division

October 30, 2014

HALEY COLOMBO et al., Plaintiffs and Respondents,
BRP US INC. et al., Defendants and Appellants.

APPEAL from a judgment of the Superior Court of San Diego County No. 37-2007-00077350-CU-PO-CTL, Frederic L. Link, Judge.

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[Copyrighted Material Omitted]

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Haight Brown & Bonesteel, Jule S. Zeman, William O. Martin, Jr., Chandra Moore and Blythe Golay for Defendants and Appellants.

Smith, Steiner, Vanderpool & Wax, Ann M. Smith, Kathryn A. Schultz; Tosdal Law Firm and Thomas Tosdal for Plaintiffs and Respondents.


BENKE, Acting P. J.

Defendants and appellants Bombardier Recreational Products, Inc. and BRP U.S. Inc. (collectively BRP) appeal a jury verdict in favor of plaintiffs and respondents Haley Colombo and Jessica Slagel (hereafter referred to individually by first name or collectively as plaintiffs). Because plaintiffs were not wearing a wetsuit bottom or similar protective clothing, Haley sustained serious and permanent injury to her rectum and Jessica

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to her vagina when, because of operator negligence, they fell off the back of a three-passenger watercraft manufactured by BRP, model GFI 4-TEC. Once in the water, Haley and Jessica were both injured when the powerful jet thrust from the watercraft ripped their flesh.

The jury found the owner of the personal watercraft (PWC), Robert Adamson dba Mission Bay Jet Sports (store; collectively Adamson), its operator and store employee, Brett Kohl (Kohl), and BRP each one-third liable. The jury also awarded punitive damages against BRP, finding its conduct manifested a reckless or callous disregard for plaintiffs' rights and safety.

On appeal, BRP contends the evidence in the record is insufficient to support the jury's causation and punitive damages findings, made under federal maritime common law. In the alternative, it contends the trial court erred when it refused, under this same law, to reduce the amount of punitive damages awarded each plaintiff to equal their respective compensatory damages awards; admitted evidence that, at the time of plaintiffs' accident, BRP had notice of previous claims of orifice injuries to passengers but excluded evidence proffered by BRP to show the causes of the previous claims allegedly were not substantially similar to plaintiffs' accident; and made a series of other rulings that BRP alleges amounted to a denial of a fair trial.

As we explain, we reject each of these contentions and affirm the judgment.


In late July 2007, then 16-year-old Haley and her older sister, Megan, visited San Diego to help their sister, Chelsea, move. Haley invited her longtime friend, Jessica, to come along as the group also hoped to go

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"jet-skiing" in Mission Bay.[2] Before the accident, Haley had never been on a PWC. Jessica had ridden on and operated a PWC a few times and told Haley it was fun.

Kohl—the operator of the BRP watercraft involved in the accident (hereafter sometimes subject PWC)—was the roommate of Chelsea's boyfriend. As a "reward" for helping Chelsea, Chelsea's boyfriend made arrangements for the group to meet Kohl at the store and then go to Mission Bay where they could ride the BRP PWC's.

At Mission Bay, Kohl and Chelsea's boyfriend unloaded two PWC's from a trailer while Haley and Jessica waited on the shore. Haley and Jessica each wore a two-piece bathing suit. Nobody in the group, including the operators of the PWC's, wore a wetsuit bottom or similar protective clothing. After putting on life jackets, Haley and Jessica waded into the water to meet Kohl. When Haley and Jessica boarded the subject PWC from the back, Kohl already was sitting in the "driver's seat." Kohl did not give them any instructions, safety or otherwise, about riding on the subject PWC.

Haley testified she had no plans that day to operate the subject PWC but was only going to ride as a passenger. In addition, she did not know how the PWC moved through the water, including how fast the water exited the jet-thrust nozzle located underneath the PWC, as it accelerated from a stopped position.

Haley also testified she did not see the "printed material" on the label located under the handlebars on the console of the subject PWC, which included the word "WARNING"; provided that severe injuries to "body cavities" can occur "as a result of falling into water or being near [the] jet thrust nozzle"; and provided that "[n]ormal swimwear does not adequately protect against forceful water entry into lower body opening(s) of males or females, " and, thus, "[a]ll riders must wear a wet suit bottom or clothing that provides equivalent protection" (hereafter sometimes subject warning). (Italics added.)

According to Haley, if this information had been placed on the back of the subject PWC where it could be seen by a passenger, she would have read and paid attention to it and either would not have ridden on the PWC or would have obtained a wetsuit bottom or similar protective clothing before riding. Haley also testified Kohl did not tell her or Jessica they needed to wear protective clothing to reduce or eliminate the risk of orifice injury.

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Haley testified she and Jessica initially were having fun riding as passengers on the subject PWC. Haley sat directly behind Kohl and Jessica behind Haley. However, at some point, Kohl made a sharp turn, causing both girls to fall off the side of the subject PWC into the water. Haley felt Kohl was intentionally trying to throw them off to "show[] off." Although not hurt, Haley said hitting the water "stung." Both she and Jessica told Kohl they did not like being thrown off the subject PWC. When they reboarded the subject PWC, Jessica sat behind Kohl and Haley behind Jessica.

Without warning, Haley next felt a "really strong force just pull [her] back off the back of the jet ski with [her] legs open. And before [she] knew it, [she] had hit the water and had a sharp pain in [her] rectum, like someone stabbing [her] with a knife." Haley put her hand into her bathing suit bottom and pulled out "a ball of flesh." Haley also saw Jessica in the water, crying. Megan and Chelsea's boyfriend, who had been riding nearby on the other PWC, came to their assistance. As she rode back to the shoreline, Haley testified she was bleeding profusely. Once at the shoreline, Haley saw blood running down Jessica's legs.

An ambulance met Haley and Jessica and transported them to the emergency room. Haley had surgery to repair her external and internal anal sphincter muscles, which had been severed by the jet stream from the jet-thrust nozzle of the subject PWC. Haley wore a colostomy bag while she healed, including at school, until it was surgically removed about four months after the accident. At the time of trial, Haley continued to experience issues with anal control and leakage, which made her feel "isolated, " "different" and "ruined."

Jessica testified she was 17 years old and entering her senior year in high school when the accident occurred. About a month earlier, Jessica had operated a PWC while vacationing in Hawaii with her family. On that occasion, Jessica was not told she needed to wear protective clothing before operating the PWC, and neither Jessica nor her family members wore such clothing before boarding the PWC. Jessica could not recall the manufacturer of the PWC she rode in Hawaii.

Jessica testified she also rode on and operated a PWC when she was 16, while visiting a relative in Florida. She also could not remember the name of the manufacturer of the PWC she rode in Florida but recalled her relative rented it at the beach. Jessica also did not receive any instructions then regarding the need to wear protective clothing before boarding the PWC nor did she wear any such clothing.

Jessica testified that, on the date of the accident, she and Haley helped Chelsea and then drove to the store, where they waited in the car. Afterwards,

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they drove to Mission Bay and watched from the shoreline while the two PWC's were put into the water. Jessica put on a life vest and, along with Haley, waded waist-deep into the water where they were met by Kohl.

Although Jessica had operated a PWC before, she testified she did not know anything about the jet-thrust nozzle or how the watercraft was propelled through the water. She also did not see the subject warning on the console of the subject PWC because Kohl already was seated in the operator's seat, and both she and Haley boarded from the back.

Jessica testified Kohl did not tell her she needed to wear protective clothing to ride on the PWC, and she did not know BRP included such a warning on the console of the PWC. Like Haley, Jessica told the jury if BRP had included such a warning or the word "danger" where she could see it before boarding the PWC, she would have paid attention to that warning and either acquired protective clothing or not ridden on the PWC.

Jessica testified she initially sat behind Haley. Jessica put her arms around Haley's waist to hold on and could see Haley's arms around Kohl's waist. Jessica testified she and Haley were initially having fun until Kohl made a sharp turn, causing both girls to fall into the water. Both she and Haley told Kohl not to throw them into the water. In response, Kohl said, "I promise I won't."

After the girls reboarded the subject PWC, Jessica felt "like a push, a force, pushing [her] off the back of the jet ski." She landed in the water with her legs spread and immediately felt pain in her vagina. Jessica said she felt like she had been "punched" and had "hit concrete." Megan and Chelsea's boyfriend helped Jessica onto their PWC because Jessica refused to ride back to shore with Kohl. At that point, Jessica said the blood from underneath her bathing suit flowed like a "faucet" and filled up the foot wells of the PWC.

At the hospital, Jessica had surgery to repair her vagina and the tear from her "rectum to [her] vagina." At the time of trial, Jessica testified that she still experienced some pain and discomfort, that she occasionally took a stool softener, and that, if she decides to have children some day, she likely would have to deliver by cesarean section.

Kohl testified that he worked at the store for several months before the accident. Before being hired by Adamson, Kohl had operated PWC's for many years. Once hired, Kohl rode the PWC's "all the time." Although customers renting a PWC were required by Adamson to complete certain "paperwork, " Kohl stated nothing in the paperwork warned that a wetsuit bottom or its equivalent must be worn to reduce or eliminate the risk of

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orifice injuries from a PWC's jet-thrust nozzle. Kohl also stated that he never discussed the need to wear such clothing with a customer and never showed a customer the owner's/operator's guide for any of the BRP PWC's rented by the store, which also included such a warning.

Kohl stated that the store did not offer wetsuits or similar protective clothing for sale to, or rental by, customers operating or riding on a PWC and that he only wore such clothing on a couple of occasions, and then not for protection, but instead when the water was cold or when he was taking a PWC into the open ocean. Kohl also stated that Adamson never brought to his attention the need for an operator or passenger of a PWC to wear protective clothing to prevent or reduce the risk of orifice injury from the jet-thrust nozzle.

On the day of the accident, Kohl testified he was in charge of the store because Adamson was on vacation. Kohl agreed to take the two PWC's out after business hours at the request of his roommate, Chelsea's boyfriend. Kohl said the group came to the store and then they all went to Mission Bay. Kohl provided each member of the group with a life jacket from the store.

After Haley and Jessica boarded the subject PWC, Kohl stated he started out slowly because of the "no-wake zone." He then sped up and got the subject PWC on a "plane" as they headed to an area in Mission Bay designed only for PWC's. As he operated the PWC about 25 to 35 miles per hour, Kohl thought Haley and Jessica were having fun. At some point, he made a sharp turn, and Haley and Jessica fell into the water. They told Kohl not to throw them off again.

After plaintiffs reboarded the subject PWC, Kohl testified one of them asked to be taken back to shore. He next applied full throttle in order to get the subject PWC on a plane, but he felt a pull and saw plaintiffs had fallen back into the water, this time directly behind the PWC. Kohl testified this was typically how he accelerated a PWC once he was stopped in the water.

When Haley got back on board the subject PWC, Kohl saw she was bleeding. Although Kohl generally understood water from the jet of the PWC came out fast, he did not know it had the capacity to tear human flesh;[3] thus, he had no idea how Haley and Jessica had been injured when they fell off the

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back of the subject PWC. He stated this was the first time he had been involved in an accident involving a PWC and, as far as he knew, was also the first involving a PWC rented from the store.

Kohl testified Adamson never took him out on the water to show him how to operate the PWC safely nor did Adamson give Kohl the owner's/operator's guide containing the safety instructions of, or advise him to read the warning label on, the subject PWC. Kohl said he was aware of the warning label on the subject PWC but did not actually read it until after the accident.

Plaintiffs sued Adamson, Kohl and BRP. In response, Adamson brought an action in federal court under the Limitation of Liability Act (46 U.S.C. § 30501 et seq.; hereafter LOLA or the Act), seeking either exoneration or limitation of his liability equal to the value of the subject PWC, which was $6, 005. During the LOLA proceedings, the instant action was stayed.

The record shows the Ninth Circuit Court of Appeals determined the accident in this case conferred admiralty jurisdiction under the LOLA. The district court thereafter conducted a bench trial that included witness and expert testimony, found that the Act did not apply either to exonerate Adamson or limit his liability to the value of the subject PWC, and lifted the stay.

The district court specifically found Haley and Jessica had satisfied their burden "of showing that their injuries were caused in the first instance by Kohl's failure to warn [them] of the risks associated with orifice injuries, " which failure, it further noted, was "directly attributable to [Adamson] because [he] failed to adequately train and instruct [his] employees in the safe operation of PWCs, including warning of the risk of orifice injury and the need for protective clothing. Because [Adamson] negligently failed to instruct Kohl and other employees about the risk of orifice injury and the need for protective clothing, it was reasonably foreseeable that guest passengers, such as [Haley and Jessica], would be unaware of the risk of orifice injury and, therefore, subject to such injury."

The district court also found Adamson failed to show under the LOLA that he lacked knowledge of the act of negligence causing the accident. In regard to this finding, the district court noted Adamson had a "non-delegable duty to train, instruct, and supervise [his] employees in the safe operation of PWCs, and to ensure that [his] employees communicated those safe practices to all those whose presence on board was reasonably foreseeable."

Once the stay was lifted, this matter proceeded to trial, which included the testimony of at least 20 witnesses and a court-supervised visit by the jury to

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Mission Bay to inspect the subject PWC both in and out of the water. The jury subsequently returned its verdict, finding that the subject PWC was defective "because of inadequate warnings" and that this defect was a "substantial factor in causing harm" to both Haley and Jessica. The jury awarded Haley about $3.385 million in damages, which included past and future medical expenses and past and future noneconomic losses, and awarded Jessica about $1.063 million in similar damages. The jury also found Adamson, Kohl and BRP each one-third responsible for the harm suffered by plaintiffs.

Finally, the jury found under federal maritime common law that BRP's conduct showed a "reckless or callous disregard for the rights of others" (sometimes hereafter punitive damages finding). As a result, after hearing additional testimony and evidence of BRP's financial condition, the jury returned a second verdict in the punitive damages phase of the trial, awarding Haley and Jessica each $1.5 million. The judgment entered also included an award of prejudgment interest.


A. Causation[4]

1. Guiding Principles

It is axiomatic that when, as in the instant case, an appellant challenges the sufficiency of the evidence to support a jury's verdict, we apply the substantial evidence standard of review. (Cahill v. San Diego Gas & Electric Co. (2011) 194 Cal.App.4th 939, 957 [124 Cal.Rptr.3d 78] (Cahill).) "'"[T]he power of an appellate court begins and ends with a determination as to whether there is any substantial evidence, contradicted or uncontradicted, " to support the findings below. [Citation.] We must therefore view the evidence in the light most favorable to the prevailing party, giving it the benefit of every reasonable inference and resolving all conflicts in its favor....' [Citation.]... An appellate court does not reweigh the evidence or evaluate the credibility of witnesses, but rather defers to the trier of fact." (Id. at pp. 957–958.)

"This standard, however, does not require us to blindly seize any evidence in support of the trier of fact's findings in order to affirm the judgment. [Citation.] Rather, it compels us to determine whether a reasonable trier of

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fact could have found for the respondent based on the entire record. [Citation.] This is so because 'substantial' is not synonymous with 'any' evidence, but refers to the quality, not the quantity of the evidence. [Citation.] So, after reviewing the whole record, we must determine whether there exists substantial evidence, which is evidence of ponderable legal significance that is reasonable, credible and of solid value, supporting the challenged findings of the trier of fact. [Citation.] While substantial evidence may inevitably consist of inferences, they must be the result of logic and reason emanating from the evidence and not mere speculation or conjecture. [Citation.] It must actually be substantial proof of the essentials the law requires in the particular case. [Citation.]" (Quigley v. McClellan (2013) 214 Cal.App.4th 1276, 1282-1283 [154 Cal.Rptr.3d 719] (Quigley).)

The instructions to the jury included Judicial Council of California Civil Jury Instruction (CACI) No. 430, [5] which defines "substantial factor" for purposes of causation as follows: "A substantial factor in causing harm is a factor that a reasonable person would consider to have contributed to the harm. It must be more than a remote or trivial factor. It does not have to be the only cause of the harm. [¶] Conduct is not a substantial factor in causing harm if the same harm would have occurred without that conduct." (See Soule v. General Motors Corp. (1994) 8 Cal.4th 548, 572 [34 Cal.Rptr.2d 607, 882 P.2d 298] [noting a manufacturer is liable if its product was a proximate cause of the plaintiff's injury].)

The jury was also instructed with modified CACI No. 431, regarding "multiple causes" for purposes of causation: "A person's fault may combine with another factor to cause harm. If you find that BRP's fault was a substantial factor in causing Haley Colombo's and Jessica Slagel's harm, then BRP is responsible for the harm. BRP cannot avoid responsibility just

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because some other person, condition, or event was also a substantial factor in causing Haley Colombo's and Jessica Slagel's harm."

The jury was also instructed with respect to when a product is defective because of an inadequate warning: "A product is defective because of inadequate instructions or warnings when the foreseeable risks of harm posed by the product could have been reduced or avoided by the provision of reasonable instructions or warnings to foreseeable users of the product by the seller or other distributor and the omission of the instructions or warnings renders the product not reasonably safe for the product's foreseeable users. [¶] Haley Colombo and Jessica Slagel have the burden to show more likely than not the 2007 GTI [(watercraft manufactured by BRP)] was defective because of inadequate warnings or instructions and the inadequate warnings or instructions were a substantial factor in causing them harm."

Finally, the jury was instructed regarding when a product warning is required: "Whether or not many persons would, when warned, decide to use the product, warnings are required to protect the interests of those reasonably foreseeable users or consumers who would, based on their own reasonable assessments of the risks and benefits, decline to use the product. The omission of such warnings renders the product not reasonably safe for the product's foreseeable users."

As noted by the above jury instructions, "'[i]n the context of products liability actions, the plaintiff must prove that the defective products supplied by the defendant were a substantial factor in bringing about his or her injury.'" (Whiteley v. Philip Morris, Inc. (2004) 117 Cal.App.4th 635, 696 [11 Cal.Rptr.3d 807].) " 'The substantial factor standard is a relatively broad one, requiring only that the contribution of the individual cause be more than negligible or theoretical.' [Citation.] Thus, 'a force which plays only an "infinitesimal" or "theoretical" part in bringing about injury, damage, or loss is not a substantial factor' [citation], but a very minor force that does cause harm is a substantial factor [citation]. This rule honors the principle of comparative fault." (Bockrath v. Aldrich Chemical Co. (1999) 21 Cal.4th 71, 79 [86 Cal.Rptr.2d 846, 980 P.2d 398].) "A plaintiff need not establish that a defendant's product was the sole potential proximate cause of injury, but only that the defendant's conduct substantially contributed to the injury and the circumstances make it just to hold the defendant responsible for the consequences of the accident. [Citation.]" (Bunch v. Hoffinger Industries, Inc. (2004) 123 Cal.App.4th 1278, 1302 [20 Cal.Rptr.3d 780] (Bunch).)

BRP does not contend any of these instructions were improper. It also does not contend its subject warning was adequate, at least for purposes of causation.

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Instead, it argues there is insufficient evidence in the record to support the finding of the jury that its inadequate warning about the hidden danger of the jet-thrust nozzle and the need for passengers such as plaintiffs to wear protective clothing to prevent or reduce the risk of orifice injury was a substantial factor in causing plaintiffs' harm. Specifically, it contends plaintiffs' own "self-serving testimony, " that on the date of the accident they would have heeded such a warning had they seen it and either not ridden the subject PWC or obtained protective clothing before riding, was inadmissible. BRP also contends the testimony proffered by one of plaintiffs' experts to establish causation was inadmissible.

2. Analysis

The jury instructions (which, as noted, BRP does not challenge on appeal) expressly provide that the trier of fact could consider plaintiffs' testimony in determining whether they satisfied their burden to show the subject PWC was "defective because of inadequate warnings or instructions" and, if so, whether the "inadequate warnings or instructions were a substantial factor in causing them harm." It is beyond dispute that Haley and Jessica were both "consumers, who would, based on their own reasonable assessments of the risks and benefits, decline to use the product" (italics added) if they were given a warning similar to the subject warning located on the console of the PWC, inasmuch as both testified to this very fact.

BRP did not challenge this evidence at trial. (See SCI California Funeral Services, Inc. v. Five Bridges Foundation (2012) 203 Cal.App.4th 549, 563-564 [137 Cal.Rptr.3d 693] [noting the failure to object to evidence in the trial court generally results in the forfeiture of any appellate claim that such evidence was wrongfully admitted].) In any event, we conclude this evidence was properly admitted, as it is of reasonable, credible and solid value and supports the finding of a reasonable jury (see Quigley, supra, 214 Cal.App.4th at pp. 1282-1283) that BRP's conduct in failing to give plaintiffs a warning similar to the one given to the operator was a substantial factor in causing their harm. (See Bunch, supra, 123 Cal.App.4th at p. 1304 [concluding the testimony of an 11-year-old victim that she would not have dove into four feet of water and broken her neck if the warning on the pool had been adequate, along with the testimony of two of her experts, was sufficient evidence to show the "lack of a persuasive label outlining the consequences of diving into the pool was a substantial factor in causing the injury"].)

Moreover, product safety and warnings expert William Kitzes testified on behalf of plaintiffs that the subject warning located on the console of the PWC was inadequate because plaintiffs did not and could not see it because Kohl was already seated in the operator seat when they initially boarded

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(from shore), and later reboarded (after they fell in the water), the watercraft. He further testified that an additional written warning, which would have been "highly inexpensive" to create and/or affix, should have been located at the rear or back of the subject PWC so that it was "readily visible" to passengers like Haley and Jessica.

Kitzes opined that BRP's inadequate warning to PWC passengers of the risk of orifice injury from the powerful jet-thrust nozzle was a substantial factor in causing the injuries of plaintiffs, relying on the testimony of both Haley and Jessica that if they had been warned and instructed "to wear a wetsuit or heavy protective clothing[, ]... [they] would have either worn such clothing or not gotten on the [subject PWC]."

When asked whether others beside Haley and Jessica would have heeded an adequate warning if in fact BRP had made one to PWC passengers, Kitzes testified: "I can't say that every single person would react in a certain way. I can say that—that the literature and the studies have shown that the better the information is, the more likely that you will be able to... get someone to follow it, to comply with it, if they understand it and they need it. Now I can't say that everybody will do that, because I don't know. But based on the facts that were in the testimony, it ...

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