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Date: 09-01-2021
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Court: Superior Court, Raybun County
Plaintiff's Attorney: Don Fountain and Andrew S. Ashby
Defendant's Attorney: Hall Booth Smith, Robert L. Shannon, Jr., Jacquelyn S. Clarke, Kenneth D. Jones, Ciera N. Locklair
Description: Atlanta, GA: Personal injury wrongful death lawyer represented Plaintiffs, who sue Defendant on a product liability theory claiming that boat manufactured and sold by Defendant was defective and unreasonably dangerous.
Ryan Batchelder, age 7, was washed off of the front of the boat that he was a passenger on an was killed by the propellor.
On July 17, 2014, Darin Batchelder, Dennis Ficarra, and four Batchelder children took the boat out on the lake to wake surf and engage in other recreational activities. The children included Kayla and Zack Batchelder (Darin Batchelder's children), Josh Batchelder (Kayla and Zack's cousin), and seven-year-old Ryan Batchelder (Josh's brother). Ficarra is the children's uncle. Ficarra navigated the boat, while Darin Batchelder sat in a port-side seating area. Each of the children was seated in "drop down" seats in the bow of the boat, commonly referred to as the "hot tub" or "playpen" area.
After boating for some time, and while the children argued over whether to return to the dock, Ficarra performed a circular turn which resulted in the boat striking its own wake. At that point, water began to spill over the bow of the boat, where the children were seated. The children reported that the water in the bow reached their shin areas and their knees. The children panicked, and Zack jumped from the boat into the lake to reduce the weight in the bow, while Kayla and Josh scrambled to the rear of the boat; unbeknownst to the other occupants of the boat, Ryan either jumped or was washed from the boat.
In an attempt to level the boat and prevent it from foundering, Ficarra placed the throttle in reverse. Ficarra then stopped the engine and heard everyone yelling that they did not see Ryan. Darin Batchelder and Ficarra jumped in the water to look for Ryan, and Ficarra found him entangled in the propeller.[2] Ryan died as a result of serious injuries he suffered after being struck by the propeller. In addition, at some point during the ordeal, Zack scraped his stomach as he attempted to re-enter the boat, Kayla suffered a bruise on her shin as she scrambled to the rear of the boat, and Josh began hyperventilating and vomiting shortly thereafter.
As a result of the accident, Ryan's parents, Zack, Kayla, Josh, and Darin Batchelder filed suit against Malibu and others for negligence.[3] Malibu moved for partial summary 318*318 judgment against Zack, Kayla, and Josh Batchelder ("the minor plaintiffs"), asserting that the minors were not entitled to damages for negligent infliction of emotional distress because they were unable to satisfy any element of the impact rule. The trial court found that jury questions remained concerning whether elements of the impact rule had been met and denied Malibu's motions. The trial court granted Malibu a certificate of immediate review, and we granted Malibu's application for interlocutory appeal. This appeal followed and, for the reasons explained below, we agree with the trial court that material issues of fact remain concerning whether the impact rule has been satisfied, but disagree as to the scope of injuries which are recoverable by the minor plaintiffs.
1. In its first enumeration of error, Malibu contends that the trial court erred by finding that "the impact of water ... was sufficient impact under Georgia law to sustain claims for emotional distress damages...." However, what the trial court found was that "[w]hether the impact of water slamming into the children and knocking them from their seats and out of the boat is sufficient `impact,' is a jury question...." We agree with the trial court that a question of fact remains as to whether the minor plaintiffs sustained a physical impact under the impact rule.
Outcome: Plaintiffs' verdict for $200 million.
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