Written by: Christopher B. Dolan
Today’s question comes from Terry M. from the East Bay:
Terry M.: “My son was out on a lake boating with some of his friends on Labor Day. Aside from the fact that I am not happy about the fact that there were a bunch of kids hanging around when they should be social distancing, there was alcohol involved. He is over 21 so that’s not the problem. A number of people were on jet skis. To make matters worse, some of them didn’t have any experience. One of the jet ski owners let an inexperienced friend use his jet ski. As this person was showing off, the kid came in too fast and crashed into my son severely injuring his leg. He had to go to the hospital and have screws put in place. The police were not called but my son said the kid who hit him had been drinking heavily. What can we do now without there being a police report? We have thousands in bills and my son can’t work.”
Dear Terry: Terry, unfortunately each year we receive numerous calls from people who are injured in boating accidents. These crashes often lead to serious injuries, drownings, mutilation by propellers and in too many cases, death. According to the U.S. Coast Guard, in its 2018 Recreational Boating Statistics Report, there were 633 fatalities nationwide in 2018. In that same period, there were 2,511 recreational boating injuries and 4,291 accidents. Alcohol is the leading contributing factor in fatal boating accidents accounting for 100 deaths or 19% of the total fatalities.
Several issues arise from your question: drinking, experience and also lending a watercraft to an intoxicated person.
First, the law examines facts and events to see if there was “negligence.” Put simply, negligence is the failure to control yourself, your actions and property, as a “reasonable person would.” Often, what is “reasonable” is codified in a local, state or federal law.
Starting in January of 2018, the State of California began phasing in a boater education requirement and California Boater Card (CBC- often referred to as a boating license) requirement. As of January 1, 2020, California Harbors and Navigations Code Section 678.11, requires a boater to be 16 years or older. Any boater 35 years or younger (16-35) must be in possession of his/her CBC to operate any vessel powered by 15 horsepower or more, including personal watercraft (jet skis). From what I gather, the operator didn’t have a license.
Harbors and Navigations Code Section 655 (a) provides that, “No person shall use any vessel or manipulate water skis, an aquaplane, or a similar device in a reckless or negligent manner so as to endanger the life, limb, or property of any person.” Section (b) states: “No person shall operate any vessel or manipulate water skis, an aquaplane, or a similar device while under the influence of an alcoholic beverage, any drug, or the combined influence of an alcoholic beverage and any drug.”
Section (c) states: “No person shall operate any recreational vessel or manipulate any water skis, aquaplane, or similar device if the person has an alcohol concentration of 0.08 percent or more in his or her blood.” Also, Section (f) states: “No person shall operate any vessel or manipulate water skis, an aquaplane, or a similar device while under the influence of an alcoholic beverage, any drug, or under the combined influence of an alcoholic beverage and any drug, and while so operating, do any act forbidden by law, or neglect any duty imposed by law in the use of the vessel, water skis, aquaplane, or similar device, which act or neglect proximately causes bodily injury to any person other than himself or herself.”
Here it appears that the operator violated Harbors and Navigations Code Sections 655 and 678.11. Note that Section 655, subsections (b) and (f), do not require a determination of a blood alcohol limit, only a showing of being under the influence which can be demonstrated by testimony of witnesses. Therefore, while a police report would have been helpful, it is not necessary. The driver is, therefore, negligent.
Although the driver is negligent, he may not have any insurance. If he has personal assets they may be attached, following a trial, to satisfy any monetary award. Here, however, it appears that the owner of the jet ski, knowing the operator’s inexperience and that he had been drinking, is potentially liable for, “negligent entrustment,” of his jet ski, and, if he has insurance on the jet ski, it may pay for your son’s medical bills, lost wages, and the pain and/or disfigurement he has suffered.
Have your son contact a trial lawyer, with experience in boating accidents, to get a consultation.
Christopher B. Dolan is the owner of the Dolan Law Firm. Email questions and topics for future articles to: firstname.lastname@example.org.