Reza Torkzadeh
Founder and CEO, The Torkzadeh Law Firm
18650 MacArthur Blvd. Suite 300
Irvine , CA 92612
Phone: (888) 222-8286
Email: reza@torklaw.com
Thomas Jefferson SOL; San Diego CA
Reza's latest book is "The Lawyer as CEO."
Allen P. Wilkinson
Email: allenpwilkinson1955@gmail.com
Allen is a retired lawyer, with many years of experience involving personal injury and medical malpractice cases
As summer approaches, millions of Californians are dusting off their boats and personal watercraft and getting them ready for fun in the sun at lakes, rivers, inlets, harbors, and the ocean. On warm summer days and long weekends, California waterways become crowded with all types of vessels. But a day of boating and fun in the sun can quickly turn into disaster due to a boating accident that results in serious injury to or even death of persons in and out of the boat.
According to statistics provided by the United States Coast Guard, in 2022 there were reports of 4,040 boating accidents resulting in 636 deaths and 2,222 injuries nationwide. In California, there were 2,600 boating accidents, resulting in 265 deaths and 1,800 injuries.
The operators of vessels have experience ranging from years of boating to first-timers who just bought a boat and paid scant attention to how to properly and safely operate the vessel. The operator of a boat is required to know the “rules of the road” and how to operate the boat or other watercraft safely so as not to pose an unreasonable risk of danger both to persons in and out of the vessel. Some 70% of reported boating-related fatalities occurred on boats where the operator had not received boating safety instructions. The lowest number of injuries and fatalities occurs among operators who have taken a course of instruction in boating safety by the United States Coast Guard Auxiliary.
There are all types of vessels: from 8-foot handmade sailboats to 16-foot ski boats to 30-foot cabin cruisers to 36-foot sailboats to 100-foot and larger luxury yachts. Then there are the personal watercrafts, such as Jet Skis and Wave Runners, kayaks, paddleboards, inflatable boats, rafts, pontoon boats, airboats, and even houseboats. The vessels are used for a variety of reasons, from sightseeing to pleasure cruising to water skiing to fishing to around-the-world cruising to racing to white-water-rafting and more.
Causes of boating accidents
The leading causes of injuries and deaths resulting from the operation of a boat or personal watercraft (PWC) are:
· Operator inexperience;
· Operator inattentiveness;
· Collisions with other vessels or stationary objects;
· Excessive speed;
· Making a sharp turn;
· Operator being under the influence of alcohol or drugs;
· Lack of a proper lookout when towing a skier;
· Overloading or overcrowding the vessel;
· Adverse weather or water conditions (e.g., angry sea);
· Equipment or mechanical failure.
Collisions between recreational vessels constitute the most common type of boating accidents. Collisions are also the main cause of boating accidents leading to death among all vessels, while falling overboard and drowning is the number one cause of death in small boats.
The owner of a vessel can be liable for all injuries and deaths caused by another person the owner lets operate the watercraft without ensuring that the person has experience with and is reasonably skilled at operating the type of vessel in question and is not impaired by alcohol or drugs (negligent entrustment).
Injuries
Some of the more serious injuries caused by boating accidents include:
· Death, usually by drowning;
· Profound brain damage due to near drowning (asphyxiation);
· Traumatic brain injury;
· Bodily injuries due to collision with another vessel or fixed object, e.g., a bridge trestle;
· Being run over by a boat or struck by a PWC;
· Inhaling carbon monoxide;
· Traumatic injuries caused by an unguarded propellor.
Life jackets
All vessels must be equipped with U.S. Coast Guard-approved life jackets (personal flotation devices or simply PFDs) according to the length of the vessel and the number of people on board.
All life jackets must be in good condition, must be properly sized for the wearers, and must be readily accessible in an emergency if they are not being worn. Life jackets must not be locked in closed compartments or stored in plastic bags that would make it difficult to access them quickly, nor may they have other gear stowed on top of them.
Children under the age of 13 must wear an approved life jacket at all times when on a vessel 26 feet or less. Anyone on a boat or personal watercraft (PWC, such as a jet ski or wave runner) being towed behind a vessel must wear a Coast Guard-approved life jacket.
Drownings
According to the California Department of Boating and Waterways, 67% of all boating fatalities are due to drowning; of that 67%, 84% of drowning victims were not wearing a life jacket. The primary reason for not wearing a life jacket is that the person knows how to swim. However, the fact that a person knows how to swim does not serve him well if he is rendered unconscious or is seriously injured and unable to swim at all. Also, if he has been consuming alcoholic beverages or the water is cold, that may slow down a normally good swimmer.
Suppose the operator of a boat is speeding and makes a sharp turn that causes a passenger to be thrown overboard. The passenger is not wearing a life jacket and hits his head on the side of the boat while being ejected, rendering him unconscious. As a result, he drowns. In a wrongful death case against the boat’s operator, how does the deceased’s failure to wear a life jacket affect his recovery, especially if the defendant can prove that most likely, the deceased would not have drowned had he been wearing a life jacket?
This situation can be analogized to motor vehicle accidents where the victim was not wearing a seatbelt. (See generally Housley v. Godinez (1992) 4 Cal. App. 4th 737; Truman v. Vargas (1969) 275 Cal. App. 2nd 976; R. Torkzadeh & A.P. Wilkinson, Motor vehicle accidents and the seatbelt defense, CAOC FORUM p. 40 (Nov./Dec. 2023).)
The first issue is to what extent, if any, was the deceased contributorily negligent in failing to wear a life jacket, even though he may have been a good and experienced swimmer? The issue then becomes, what would have been the extent of injuries had the decedent been wearing a life preserver? The decedent still would have been thrown overboard and hit his head on the side of the boat, rendering him unconscious. But the life jacket may have prevented him from drowning. It may be necessary to present expert testimony on the issue of what the decedent’s injuries would have been had he been wearing a life jacket. (See Franklin v. Gibson (1982) 138 Cal. 3rd 340, 344; Truman v. Vargas, supra, 275 Cal. App. 2d 976, 982-83.)
Assumption of risk
Primary assumption of risk is merely another way of saying no duty of care is owed for risks inherent in a given sport or activity. It is a complete bar to recovery. It is designed to avoid imposing a duty that might otherwise chill vigorous participation in the activity and thereby alter its fundamental nature. (Knight v. Jewett (1992) 3 Cal. 4th 296.)
The driver of a boat towing a skier owed no duty to the skier who was injured when his head struck a limb extending over the water. (Ford v. Gouin (1992) 3 Cal. 4th 339.)
A woman who was injured while on a five-day commercial white-water rafting trip on the Colorado River, could not recover from injuries suffered when her head hit a metal frame of the raft when she was thrown about as the raft navigated some rapids. Prior to embarking on the trip, the plaintiff signed a “release” and attended a safety presentation. The court held that the defendant’s duty was not to increase the risks inherent in the activity. Since they had not increased the inherent risks, under the doctrine of primary assumption of risk the defendants owed the plaintiff no duty. (Ferrari v. Grand Canyon Dories (1995) 32 Cal. 4th 248.)