Despite being landlocked, many citizens of Kansas participate in boating, jet skiing, and other water activities each summer. Though these activities are very fun and entertaining, they pose serious dangers. When an individual is hurt on the water, the danger can be magnified by the location itself. Injuries, including deaths, that result for these accidents can be redressed via the law. A brief overview of common injuries and claims arising from boating and other water activities are outlined below.
What Types Of Common Boating Accidents Can Be Redressed By Lawsuit?The law imposes duties upon individuals. These duties include the exercise of reasonable care while in or on the water. This is true whether the individual is operating a boat, riding in a boat, or simply playing in the water. When an individual does any of these actions in an unreasonable or dangerous way, he or she will be responsible for injuries that occur as a result. These four elements—duty owed to other, breach of that duty, injury to another, and causation connecting the injury and breach—form a valid claim of negligence against the careless party.
A second type of claim that is common in boating accidents is that of negligence per se. These claims can be thought of as “civil prosecutions.” This is because a negligence per se claim is based on the violation of a statute, regulation, or other law. The violation of the law must result in injury to the plaintiff. Additionally, the law must have been designed to prevent accidents that result in injuries to other boat operators or individuals enjoying the water. An example of this type of claim would be operating a boat in an area designated solely for swimming, causing the boat to strike and injure a swimmer.
What Are Common Causes Of Accidents On The Water?Section 32-1125 allows a person as young as 12 to operate a motor-powered boat in Kansas. Despite this low age and generally much more relaxed requirements for operating a boat that other vehicles, a young boat operator is held to the same level of care that any other operator would be. To put it another way, the law will not discount the mistakes of a twelve-year-old operator due to his or her youth and inexperience, as the law does in other areas. Instead, any boat operator is held to the same standard and liability can attach for carelessness or mistakes.
Another common factor that contributes to accidents on the water is intoxication. Many adults enjoy having drinks while on the water, but the direct sunlight and light-hearted nature of the lake can quickly lead to high levels of intoxication. Kansas law prohibits the operation of vessels—include boats, jet skis, and other motorized water vehicles—while under the influence of alcohol or drugs. Section 32-1131 sets the legal limit of intoxication at a blood alcohol concentration of 0.08, the same threshold used for operating a car. Because it is illegal to operate a boat while intoxicated, injuries arising from accidents where the defendant is intoxicated can be brought under a pure negligence or negligence per se theory.
One final consideration for accidents on the water is the duty to provide assistance. Generally, Kansas law imposes no obligation to attempt to offer assistance to those in peril. Even more surprising, a bystander that attempts to assist someone in danger but causes greater harm can actually be sued for a negligent rescue attempt. There are limited exceptions to the no duty to rescue rule. These exceptions impose a duty to attempt a reasonable rescue of an individual in peril. One exception is when the defendant caused the peril. This exception is readily necessary when accidents occur on the water, for injured individuals are at great risk of drowning—particularly when they are rendered unconscious by injuries. These dangers were recognized by the Sixth Circuit in Hutchinson v. Dickie, where liability was attached to a captain that failed to attempt a rescue of a passenger that was thrown from the boat as a result of a crewmember’s carelessness. The Kansas Supreme Court agreed with this result, citing the case for its proposition of the duty to rescue in State v. Hunter.
Is An At-Fault Boat Operator Responsible For A Drowning?When a defendant is negligent, he or she is responsible for not only the injury directly caused by the negligent act, but also for all foreseeable injuries that result thereafter. Thus, if an injured individual is being transported by paramedics and is dropped, resulting in an additional broken arm, the defendant would be liable for this “secondary” injury as well. In the context of boating accidents, a secondary injury can commonly be a result of asphyxiation by water, or drowning. Drowning can ultimately result in death, but even short periods without oxygen can result in long-term brain damage and other serious injuries. Drowning is always a foreseeable secondary injury when an accident occurs on the water, meaning a defendant will be responsible for a death or further injuries caused by drowning.
A plaintiff’s actions are also considered in determining what damage award is given at trial. A jury will be asked to assign fault to the plaintiff and defendant, under a system known as comparative fault. The plaintiff’s award of damages will be reduced when fault is assigned to the plaintiff between 1% and 50%. If over 50% of fault is assigned to the plaintiff, all recovery is barred by his or her own negligence. In the context of water injuries, the use of a life jacket is a common issue of fault for plaintiffs. Other considerations are the level of intoxication of a plaintiff and the plaintiff’s ability to swim. These considerations can also be used to limit liability for further injuries, such as death brain injury from lack of oxygen, if the jury believes the conditions were largely brought on by the plaintiff’s own carelessness.
Injuries that occur on the water are generally extreme and severe. If you or a loved one has suffered an injury as a result of a boating accident, misuse of a jet ski, or other careless behavior at the lake, it is important to contact legal counsel immediately. Legal redress may exist to address these injuries and attempt to compensate for losses suffered as a result of another’s careless acts.