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DETROIT MARINE ENGINEERING v. ROBERT McREE

FEBRUARY 25, 1987

DETROIT MARINE ENGINEERING
v.
ROBERT McREE



EN BANC

GRIFFIN, JUSTICE, FOR THE COURT:

This appeal is from a one million dollar jury decision awarded to the plaintiff and appellee herein, Robert McRee, for personal injuries received out of negligence and strict liability in tort by defendant/appellant herein Detroit Marine Engineering (DME). The focus of appellant's alleged negligence took place on July 16, 1979, when McRee and one D. D. Pepmiller were engaged in bass fishing on the Ross Barnett Reservoir, the two, though not acquainted, having been paired together as partners the evening before for the fishing tournament. The boat, a Challenger "Bass Cat" , was owned by one Rick Denson, and was fitted with an outboard motor which was attached to the steering mechanism the breaking of which is the subject of this suit. A small metal plate was fixed to the side of the boat in accordance with federal and state laws, on which was stated the maximum horse power (115 horsepower), of the motor which was included in the maximum weight capacity of the boat, persons, motor and gear.

McRee does not remember the events of the accident, having been found unconscious immediately following its happening, but Pepmiller stated that, after spending the morning fishing in an area known as Low Head Dam, he and his partner McRee were headed back down river at approximately 45 miles per hour, or 2/3rds full throttle, when he heard a "ping" sound and the boat then went into a sharp involuntary right turn. First McRee, then Pepmiller, was thrown overboard. McRee was apparently struck by something while in the water because Pepmiller found him unconscious and bleeding from the right side of his face. The pair was rescued by a passing boat, and McRee was soon after transported to a hospital.

 McRee filed suit in the Circuit Court of Rankin County against the boat owner (Denson) and its operator (Pepmiller), as well as appellant, DME, the company which marketed and sold the single rack and pinion mechanical steering device installed in the boat by its manufacturer. In his complaint, McRee alleged negligent design and strict products liability against DME in charging negligent operation and maintenance of the boat by Denson and Pepmiller. In so alleging negligent design and strict products liability by DME, McRee joined Denson and Pepmiller in their defense that the steering rod was defective in that its composition of resulpherized, free-machining steel was defective and unsuitable for use in the product, and that the resultant

 fatigue encountered in powering the boat and turning the wheel caused the rack and pinion device to fracture, thereby resulting in the accident which led to the case at bar.

 The evidence put forth at trial did indeed show that the boat went into a hard right turn because a portion of the mechanical steering device called a "cable end rod" or "push-pull rod" had fractured and separated from its attachment to the motor. Proof revealed that the failure of the steering rod was caused by fatigue fracture. However, what actually caused this fatigue fracture was at issue, as well as whether the manner in which the steering mechanism and motor were operated constituted negligence per se under allegedly applicable "boating safety" state and federal statute and regulations.

 DME attempted to offer into evidence such statutes and regulations in order to counter allegations of negligent design and strict products liability, in that the steering system had not been used as intended, that such prolonged use resulted in the subsequent breaking of the steering cable, and that such use was not foreseeable by DME. On motion in limine by defendants Denson and Pepmiller, however, the trial court declined to allow the statutes and regulations themselves to come into evidence during the trial.

 While we would agree with appellant's argument that it is error by a trial court to sustain a motion in limine which excludes large portions of evidence and testimony which relate to some conceivable element of the case when specific objections to such evidence may be specifically dealt with at trial, see, e.g., McKay v. Jones, 354 So. 2d 1095 (Miss. 1978), we are disinclined to apply these rules to the case at bar where the federal statutes and regulations promulgated thereunder as adopted by our law, are in no way related to the particular violation alleged by appellant DME. Furthermore, despite appellant's argument to the contrary, the court allowed all relevant and material evidence; only the actual statutes and regulations themselves pertaining to negligence in the case were precluded.

 In its order on the motion in limine, the trial court said, "The court sustains the motion only to the extent that the parties were not permitted to introduce into evidence a copy of all or part of the Federal Boat Safety Act of 1971, 46 U.S.C. 1451, et seq., or a copy of all or part of any federal regulations promulgated under the Act, or a copy of all or a part of the Mississippi Boating Law of 1960, (Miss. Code Ann. 59-21-1, et seq.), but the remaining part of the motion was denied. The court's ruling was

 announced to the parties before the trial began . . . ." We find the case to have been tried along the parameters established by the lower court, and upon our review of the record note numerous instances of the defendant having made mention of the statutes and regulations, as well as reference to the intended purpose of introduction of DME's defense of product misuse by the co-defendants Denson and Pepmiller.

 Hence, we are at a loss as to see any prejudicial error committed by the trial court in granting the motion in limine simply because the substance of defendant's argument and theory of the case was allowed into evidence, as well as numerous references to the boating statutes and regulations themselves, even though their actual text itself was excluded.

 Finally, in dispensing with this particular assignment of error made by appellant, we are not convinced that the metal plate in question fixed to the boat's hull is intended to infer anything more than what the regulations themselves say: e.g., that the plate must be fixed on the boat, and use of an improperly marked boat is in violation of these regulations. The federal regulations as adopted by Miss. Code Ann. 59-21-81 (1972), which provides in part that,

 In addition to the requirements imposed by this section (Mississippi Boating Safety Act), all vessels shall comply with all federal regulations applicable to vessels of such classification.

 read:

 Each boat must be marked . . . with the maximum horsepower capacity determined under 5183.53 33.C.F.R. 183.23 and Maximum horsepower marked on a boat must not exceed horsepower capacity (as so determined). 33.C.F.R. 183.53.

 Given the statutes and regulations (as set forth by appellant in its argument) the mere placement of a larger motor than what is called for on a boat properly marked with a Coast Guard capacity plate cannot amount to negligence per se. The plate signifies the proper weight for flotation purposes. The testimony of the representative of the corporation manufacturing the "Bass Cat" (Challenger, Inc.), confirms this. The section sought to be introduced by DME cannot be extended to cover what size motor is attached to a particular steering mechanism. Even one of appellant's

 own witnesses agreed that the "capacity" plate refer to weight on the boat, not to the size motor attached to DME's steering gear.

 Because our law dictates that unless a particular statute at issue in a lawsuit is designed to encompass a specific violation or infraction of the rule, it is not improper in a case such as this for the trial judge to grant a motion in limine refusing admission of evidence deemed irrelevant to the statute in question, or later to refuse a jury instruction directed to the same. By way of anology, we are presented with an example of a man who speeds his car along the highway beyond the limit set by federal and state regulations and ends up running into a tree on the side of the road because of a failure of the steering mechanism in his vehicle: the spirit of the laws promulgated by the government is not such as to predetermine that he will later be defeated in a lawsuit against the manufacturer of the steering device with the defense of failure to observe posted speed limits and instructions to the jury concerning negligence per se. Such a theory of defense is illogically applied and is contrary to the substance of the laws.

 Furthermore, we are not persuaded by appellant's argument in and of itself that the boat was not used as intended and was in fact misused, and such misuse was not foreseeable by DME, in that they anticipated attachment of a motor having higher horsepower than the one actually placed on the boat. Testimony by the Challenger representative mentioned infra revealed that no limits by way of any written or oral instructions were given by DME to Challenger as to the size engine recommended or desired for the steering used on the type of boat in question. Thorough examination of the trial record has unearthed no evidence of lack of foreseeability: there is simply no testimony to support the proposition that DME expected only 115 horsepower motors to be attached to their steering mechanism. In fact, the same Challenger representative testified to receiving a set of link arm kit instructions which specifically stated that the steering mechanism was designed for everything "from 50 h.p. up" .

 We can find no evidence in the record which alleges that the placing of the 200 horsepower motor on the 115 horsepower rated vessel and its operation was the proximate cause or even a proximate contributing cause of the cable's failure and the subsequent accident. Instructions to a jury (in this case, we speak of the requested and subsequently denied negligence per se instruction made by DME) must be based on evidence placed into the record before they can

 be properly granted. McBroom v. State, 217 Miss. 338, 64 So. 2d 144 (1955).

 In addition to there being no evidence that the horsepower rating on the boat is related to the mechanical steering system, much proof was put on concerning what appellee deems to be the actual cause of the accident; namely, that the mechanical steering system was constructed of defective material not reasonably safe for the purpose for which it was intended, independent of any possibility of excessive horsepower. Testimony by a Dr. Allen Wehr, whose specialty is metallurgy, showed that the steering cable was composed of resulpherized steel which was unsuitable for fatigue application in the type of stress relevant to such a system. His testimony was supported by that of two other expert witnesses who stated not only was the cable on the boat not reasonably safe for its intended use as a steering system, but that, in conclusion, the 200 horsepower engine had nothing to do with the cable breaking.

 In U-Haul Co. v. White, 232 So. 2d 705, 708 (Miss. 1970), this Court stated that a safety statute furnishes the standard of care when the injured party "is part of the class of persons which the statute was intended to protect and the harm suffered resulted from the type of risk covered by the statute." Expanding on U-Haul, we declared in Byrd v. McGill, 478 So. 2d 302, 304, that,

 As a result of this clear violation of the boat safety statute by the appellee, the doctrine of negligence per se is applicable. This doctrine is well known to the jurisprudence of this state and provides that one who violates the provisions of the statute is per se negligent, without need for showing that the putative tort feasor maintain an actual lack of reasonable care. The statute itself is deemed a conclusive expression of the applicable standard of reasonable conduct as pronounced by legislative enactment. "

 However, we believe that the facts in Byrd and the applicability of the statute at issue therein are clearly distinguishable from the case sub judice. The parties to Byrd were involved in a boating accident wherein appellee failed to maintain compliance with the Federal Boat Safety Act of 1971, and regulations promulgated thereunder (as adopted by Miss. Code ...


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