In West Virginia, we are not only fortunate for our beautiful mountain scenery, but for our many lakes and natural waterways. Whether you are enjoying a sunset from your motorboat on Summersville lake, experiencing the peacefulness of the Greenbrier river from your kayak, or catching a break in the barge traffic to fish for channel cats on the Ohio river, recreational boating is a cherished pastime for many West Virginians. Although most boaters exercise great care and responsibility, unfortunately, boating accidents do occur.What Makes a Boating Accident Unique?
According to the 2019 Recreational Boating Statistics Report published by the United States Coast Guard and Department of Homeland Security, from 2018 to 2019, the number of reported boating accidents in the United States increased by 0.6% to a total of 4,168. Furthermore, in 2019:
- Alcohol continued to be the primary contributing factor in fatal boating incidents, accounting for 23% of total fatalities.
- Overall, the top five contributing factors in boating incidents were inattention of the operator, improper lookout, inexperienced operators, excessive speed and alcohol use.
- Where the level of boating instruction of the operator was known in the particular incident, 70% of deaths occurred on vessels where the operator had not received boater safety instruction.
- Property damage totaled nearly $55 million.
- 79% of fatal boating accident victims drowned. Of those victims, 86% were not wearing a life jacket.
- Where vessel type was known, the vessel types that accounted for the highest percentage of deaths were open motorboats (48%), kayaks (14%), and personal watercraft (8%).
By studying these statistics, it becomes clear that boating accidents are unique due to the inherent risks involved in the activity. The scenarios that may lead to injuries or harm include but aren’t limited to:
- Boat to boat collision.
- Boat to swimmer collision.
- Boat to shore collision.
- Your boat hits the wake from another boat.
- Your boat hits an object in the water.
- Inadequate safety equipment, such as life preservers and fire extinguishers.
- Carbon monoxide poisoning from engine exhaust.
- Severe lacerations or severing of limbs from propeller contact with swimmers.
- Boat fires.
Additionally, the question of liability in a boating incident is an important consideration, one that should be evaluated by experienced attorneys. For instance, the liable party could be the boat manufacturer, the boat operator, the boat owner, a boat tour company, a boat mechanic, a safety equipment manufacturer, the owner or operator of another boat or a combination of parties.Who is Liable? What are the Elements of a Negligence Claim?
When you contact attorneys Gary Rich and Matthew Gutta, we can evaluate the nature of your boating incident to determine the viability of a potential claim. The success of a claim is dependent upon the extent to which the injuries, harm, or death was caused by the negligence of others. There are four elements of a negligence claim. Remember, the “Plaintiff” in a lawsuit is the injured party who is filing an action, or claim, against the Defendant. The “Defendant”, sometimes referred to as the “Respondent”, is the party accused of causing the harm. The four elements of a negligence claim are:Duty: The Plaintiff must show that the Defendant owed a certain duty of care in the specific situation. The extent of the duty of care varies based upon the circumstances of each situation.
For example, boat operators have a duty to abide by all federal and state specific boating regulations. Pursuant to those regulations, boat operators are required to be of a certain age, have a certain level of training and abide by very specific safety requirements such as maintaining one United States Coast Guard approved life preserver per person on each vessel.Breach: The Plaintiff must show that the Defendant breached the duty of care that was required in that specific situation.
For example, if it is proven that a boat operator did not activate his navigation lights after sunset, and as a result, another boat collided with his boat because his boat was not visible in the dark, the boat operator will have likely breached his duty of care.Causation: The third element of a negligence claim is causation. The Plaintiff must prove that the Defendant’s breach of duty actually and proximately caused the Plaintiff’s damages, harm, injuries or loss. Evaluating actual and proximate causation can be a complicated task which requires the skills and knowledge of experienced attorneys.
Actual cause is sometimes referred to as cause-in-fact. Actual cause exists when the Defendant’s actions, or inactions, directly cause the Plaintiff’s harm. In determining actual cause, attorneys must implement the “but for” test: “But for (without) the Defendant’s actions, would the Plaintiff have been injured?” In other words, if the Defendant did not do what he did, would the Plaintiff have suffered the harm that was suffered? If the Plaintiff wouldn’t have suffered the harm without the Defendant’s actions, then actual cause has been established.
For example, if a boat operator is intoxicated, and because of his impairment he operates his boat at top speed without navigation lights after sunset, causing a collision, the boat operator’s actions were the actual cause of your harm. Using the “but for” test, ask the following question: “But for (without) the boat operator sailing recklessly as a result of his impairment, would he have collided with your boat?” If the answer is that the collision wouldn’t have happened if the boat operator hadn’t been operating while intoxicated, then we have established actual cause.
When determining proximate cause, courts will consider whether the Plaintiff’s injuries were foreseeable to the Defendant. If the Defendant’s actions set forth a chain of unforeseeable events that resulted in harm to the Plaintiff, then it may be established that the Defendant did not proximately cause the Plaintiff’s injuries.Damages: The fourth element of a negligence claim is damages. The Plaintiff must have suffered damages, harm, injuries or loss as a result of the Defendant’s actions. If the Defendant breached a duty of care without causing any damages, harm, injuries, or loss to the Plaintiff, then the Plaintiff has no claim.What Types of Damages/Compensation are Available?
If you are harmed, or if a loved one is killed or harmed in a boating accident, and if you have a viable claim, attorneys Gary Rich and Matthew Gutta may seek multiple categories of damages to provide the compensation that you may be entitled to:
Compensatory Damages: Compensatory damages are intended to compensate the victim for the cost of the injury or harm. Furthermore, there are two different types of compensatory damages, actual and general.
Actual compensatory damages can include property damage, lost income, lost employment wages, and medical expenses such as hospital bills, rehabilitation treatment, physical therapy, medical equipment, nursing home care, in-home care and prescription drug costs.
General compensatory damages can include pain and suffering, mental anguish, loss of consortium and future losses as a result of lower earning capacity and future medical care.
Punitive Damages: Although punitive damages will only be awarded in specific instances, punitive damages serve as a punishment to the Defendant. Furthermore, awarding such damages sends a message to others in society and in that respect, punitive damages serve as a deterrent for such negligent behavior. Although there is a high burden on the Plaintiff to prove punitive damages, such awards can be substantial in comparison to compensatory damages.
Steps to take if you or a loved one is involved in a boating accident:
- Contact 911 immediately and seek assistance and medical treatment for all involved.
- Insofar as you are safely able to do so, identify the other parties involved and exchange information. Take as many photographs of the scene as possible. Take photographs from various angles. Photograph the waterway, surrounding area, debris, license and damage.
- Do not speak with an insurance company or provide any written statement to an insurance company without first talking to Rich & Gutta, PLLC.
- Call Rich & Gutta, PLLC, as soon as possible.
Regardless of whether you sustain severe injuries or minor injuries, it is imperative that you seek medical treatment immediately after your accident. A doctor will properly evaluate your condition and check for internal injuries that might not be immediately apparent to you. Your doctor will then provide a medical report that will be essential in building your case.
Why You Should Call Rich & Gutta, PLLC Immediately:
Preservation of evidence is paramount. This means that time is of the essence and you need an experienced legal team to ensure that, among other things, witnesses are identified, medical and police records are obtained, and other evidence is properly gathered. If you or a loved one were involved in a boating accident, call Rich & Gutta, PLLC at (304) 924-7001.
Tips for Safe Boating:
- If you are boating alone, always notify a friend or family member of your boating plans and location.
- Ensure that cell phones are adequately charged for emergency communication.
- Be cognizant of whether or not you will be out of cell service in any of the areas you plan to sail to. If so, ensure that you have a radio with proper radio contact for emergencies.
- Whether you are a boat operator or passenger, always engage in a safety check before sailing to familiarize yourself with the location of safety equipment on the vessel such as life preservers, fire extinguishers, whistle and first aid kit.
- Always ensure your fire extinguisher is up-to-date and properly charged.
- Have a properly stocked first aid kit on hand.
- Always ensure that children are wearing their life vests.
- If you smell gas fumes, notify the operator immediately to prevent carbon monoxide poisoning. Implement the motor blower when necessary to disperse fumes.
- Always shut off your engine when refueling.
- Please enjoy alcohol responsibly.