## Facts

- Susan Ford rode as a first-time passenger on a two-seat Polaris SLH700 personal watercraft operated by Laura Nakamura at Lake Berryessa.
- After being told not to hold the operator’s waist and instead to use rear grab handles, Susan leaned back, could only hook a few fingers, and fell backward off the watercraft.
- A high-pressure jet stream from the rear nozzle struck her perineal area, causing catastrophic internal injuries and permanent impairments.
- The Fords sued Polaris and related entities for strict products liability, alleging defective design and inadequate warnings, including omission of a seat strap or similar retention feature and failure to guard against rearward-ejection “orifice injuries.”
- The operator obtained summary judgment on negligence based on primary assumption of risk; Polaris sought summary judgment arguing the same doctrine barred the product claims, but the trial court denied the motion.
- A jury found for the Fords and awarded approximately $3.75 million; Polaris appealed.

## Issues

1. Whether primary assumption of risk bars a strict products liability design-defect claim against the manufacturer of recreational equipment.
2. Whether the trial court erred by using standard design-defect instructions without expressly requiring the jury to find the design increased risks beyond those inherent in the sport.
3. Whether the jury should have been permitted to allocate comparative fault to the operator and/or owners for holding instructions and failure to convey warnings.

## Decision

- The court affirmed the judgment for the Fords.
- Primary assumption of risk did not bar the strict products liability claim because a manufacturer has an independent duty to provide a nondefective product.
- The standard design-defect instructions were adequate; a finding of defective design necessarily entails that the product increased the risk of harm beyond ordinary risks of the activity.
- The trial court properly refused comparative fault allocation to the operator and owners because they owed no relevant legal duty regarding the alleged holding instructions or transmission of warnings.

## Legal Principles

- Primary assumption of risk limits duties among participants and operators in recreational activities but does not eliminate a manufacturer’s duty, in strict products liability, to design and provide a nondefective product.
- A product may be defective in design where its configuration increases the risk of harm beyond risks ordinarily associated with the activity in which it is used.
- Standard California pattern instructions on design defect may be sufficient in recreational-equipment cases; special assumption-of-risk language is not required when the defect theory is that the design heightened risk.
- Comparative fault allocation requires an underlying duty by the nonparty or other actor; absent such a duty, the actor should not be included for fault apportionment.

## Conclusion

The court held that a personal watercraft manufacturer could not use primary assumption of risk to defeat a strict products liability design-defect claim and upheld the verdict, finding the jury instructions proper and rejecting fault allocation to the operator and owners due to lack of a relevant duty.


Ford v. Polaris Indus., Inc., 43 Cal. Rptr. 3d 215 (Ct. App. 2006)