March 23, 2000
Rider to get $8.4 Million, Jury Award sets precedent
By Joe Haberstroh, Staff Writer, Newsday

In a precedent-setting case that poses tough safety questions about one of the nation's and Long Island's most popular boats, Yamaha Motor Corp. U.S.A. and a man who was operating one of the manufacturing giant's personal watercraft have been ordered to pay $8.4 million to a California man paralyzed when two of the craft collided.

It is apparently the nation's first jury award in a product-liability case involving the boating industry's hottest seller, popularly used at such Long Island spots as Oak Beach, Shinnecock Bay and Asharoken Beac. About 50,000 personal watercraft are in use across New York State, most in Queens, Nassau and Suffolk.

The plaintiff in the case, David Cuenllas, 36, of San Mateo, Calif., was paralyzed from the waist down after he and a friend collided on their rented Yamaha watercraft in the Bahamas. Cuenllas was struck in the back, and his attorneys argued the second driver could not avoid the crash because personal watercraft lose steering when their throttles are cut back.

The craft have no rudders. They are powered and maneuvered by an on-board water pump, which moves in sync with the handlebars. So when the throttle is reduced, and the water stops blasting out the stern, the boats lose steering, sometimes just as riders are trying to avoid an obstacle.

The National Transportation Safety Board two years ago ordered the Coast Guard to investigate the phenomenon, which is known as "off-throttle steerage." Cuenllas' attorneys presented evidence that Yamaha had tested and patented rudder systems to counteract the problem but had not installed them on their products.

Yamaha intends to appeal, said Mark Speaks, vice president for the company's watercraft group. He said the accident "should and could have been avoided" if the two riders had kept a suggested 100-foot distance between them.

Yamaha and the other two companies that make personal watercraft have been sued repeatedly, but they have almost always opted to settle out of court.

The jury in the Cuenllas case returned its verdict Feb. 16 after a two-week trial in Los Angeles County Superior Court. A judge is expected to enter a judgment in the matter on March 31. As it now stands, Yamaha would pay half of the jury's award, with the other driver and the rental agency splitting the rest.

The verdict is viewed as significant by safety experts who have urged the industry to incorporate rudders into their designs.

"It might be time to put safety over sales," said Fred Messmann, head of boating safety for the State of Nevada and an official with the National Association of State Boating Law Administrators.

On the day of the accident, Cuenllas, who sells art prints for a living, was taking a break from a sales meeting in the Bahamas in August, 1997, when he and a colleague each rented a Yamaha WaveRunner. Cuenllas was knocked into a coma, almost drowned and woke up paralyzed.

"I hope [the jury award] creates awareness about the problem of off-throttle steering and also it helps me with some of my medical issues," Cuenllas said.

For the $23-billion recreational boating industry, the highly maneuverable personal watercraft, some of which can travel 60 mph, have been an important way of luring customers to buy their first boats. Sales peaked at 200,000 in 1995; last year, 106,000 were sold, according to the Personal Watercraft Industry Association.

Year by year, the craft has also been represented disproportionately in accident trends. Nationally, personal watercraft made up about 8 percent of the registered boats in 1998 but were involved in 32 percent of the reported accidents, the U.S. Coast Guard says.

Similarly, New York State's 50,000 watercraft represented about 10 percent of the boats in 1999 and were involved in 38 percent of the reported accidents.

Four watercraft riders were killed last year across the state, including one man from Long Island and two from Queens.

Most boating-safety authorities, along with the industry itself, believe the safety record will improve as operators are better trained. In states where education has been required, accidents have dipped. Beginning this year, New York operators aged 18 and 19 will be required to undergo a personal-watercraft course before they operate the machines.

"Education is the key," said Ted Wooley, a Utah state parks official who is chairman of the boating administrators' personal watercraft committee. "For this person to be hit in the back, the other rider needs to know not to operate in such close proximity. ... Common sense is involved here." Although Yamaha and other watercraft makers at first resisted mandatory education programs, they now enthusiastically support them. But they have steadfastly rejected claims that their designs are unsafe, even as the NTSB ordered the Coast Guard to explore how to resolve the off-throttle steerage issue.

"The NTSB was hugely concerned about the issue, the National Association of State Boating Law Administrators was very concerned, but the manufacturers continued to contend that they don't have anything currently that can improve the steering, or the handling of these things," said Ralph Chapman, a Mississippi attorney who litigated the case in association with a San Francisco law firm, Murray & Associates.

Cuenllas' lawyers showed that Yamaha had patented a rudder that activates only when the throttle is switched into the "off" position. "When you're on-throttle, the rudder is up and out of the way," said Los Angeles attorney Arthur Lesmez.

But Speaks, the Yamaha executive, said the company was not satisfied with any of the devices so far tested. Some of the rudders create "quirky handling characteristics," that make the boats too responsive at certain speeds to the direction the handlebars are turned, he said.

The manufacturers, along with researchers at the Coast Guard, also are concerned that rudders could strike someone in the water.

"There's no easy solution here," said Capt. Michael Hoes, chief of boating safety for the Coast Guard. "But what we won't do is trade off the off-throttle steering problem for another problem."