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Boating is a popular pastime in “landlocked” Ohio. Even though Ohio is far from the ocean, it enjoys access to Lake Erie in the north, the Ohio River in the south, and superb waterways such as Alum Creek and Portage Lakes in between.
Unfortunately, boating accidents are all too common. Ohio consistently registers over 100 boating accidents and over a dozen deaths every year. Ohio boating safety rules apply to all navigable waterways in Ohio, whether public or private. When you are injured in a boating accident that was someone else’s fault, Ohio law provides you with a means to demand compensation.
How Boating Accidents Happen
Boating accidents, including jet ski accidents, typically occur in the following ways:
- Your boat hits another boat;
- Your boat hits a wave or another boat’s wake;
- Your boat hits a rock, a submerged object, or land;
- You slip or fall, inside or outside of the boat; or
- A fire or explosion occurs on the boat.
Insufficient or inadequate safety equipment can magnify the consequences of an accident. In particular, failure to carry life jackets can tragically turn personal injury claims into wrongful death claims. These kinds of failures can also undermine the strength of your claim by allowing the defendant to shift part of the blame for your damages onto you.
What to Do After a Boating Accident
Your ability to recover damages after a boating accident depends largely on what you do after the accident. Take the following steps as soon as possible:
- Get medical help if necessary. Call waterway Emergency Services if you need to.
- Use a lifeboat or floatation device if you are not sure you can make it to shore.
- Obtain identification and insurance information from anyone else involved in the accident.
- File a Boating Accident Report. DO NOT ADMIT FAULT.
- Notify your insurance company of the accident. Again, do not admit fault.
- Obtain copies of your medical report.
- Carefully follow your doctor’s orders. If you don’t, the other side might blame you for your own damages.
Above all, don’t try to guess whether or not you or someone else is injured. When in doubt, seek medical attention.
Determining Liability for Negligence
You can recover damages for a boating accident if it was the consequence of someone else’s misconduct. Ohio case law governs liability and damages for negligence, recklessness, and intentional misconduct. Among these so-called torts, which are civil wrongs, negligence is by far the most common, and it is the easiest to obtain a monetary recovery for. Following is a list of some of the negligent behavior that commonly causes boating accidents:
- Boating in restricted areas, especially crowded or shallow waters.
- Overloading a boat with people or equipment.
- Contact with propellers.
- Ignoring basic navigational rules.
- Operating at high speeds.
- Hitting a wave or a wake at the wrong angle.
- Failing to keep a lookout while a guest is skiing or tubing behind the boat.
- Disregarding signal horns.
- Operating in the dark without lights.
- Boating While Intoxicated (BWI). BWI might even be classified as reckless behavior, which is more serious than negligence.
Boating Safety Regulations
Boating Safety Regulations and Negligence Per Se
Under Ohio personal injury law, you can establish negligence automatically if you can prove that the defendant violated a state or federal safety regulation. This is known as a “per se” violation.
If you establish that the defendant violated a safety regulation, two obstacles will remain before you can win the lawsuit. First, you must prove that the violation actually caused the accident. Additionally, you must prove that you suffered damages. Medical bills are sufficient to prove that you suffered damages, although you will likely want to claim more than just medical bills.
Filing a Boating Accident Lawsuit Under Ohio Personal Injury Law
You can file a claim for a boating accident without filing a formal lawsuit. You do this by notifying the defendant directly and seeking to open settlement negotiations, or by filing a third-party claim against the defendant’s insurance company if they are insured. You might need to file a formal lawsuit, however, to gain access to court assistance so that you can demand evidence from the defendant during the discovery process.
In general, you can claim the following types of damages arising from a boating accident:
- Medical expenses;
- Lost earnings;
- Incidental expenses, such as child care while you are incapacitated; and
- Non-economic damages such as pain and suffering.
If the defendant’s behavior was sufficiently outrageous, you might be able to claim punitive damages as well. Ohio caps punitive damages at $350,000. Most courts, however, are reluctant to award punitive damages.
In many scenarios, particularly when two boats collide, more than one party is at fault. If you were partly at fault, a court will reduce your compensation by your percentage of fault. You will lose 20 percent of your damages, for example, if you were 20 percent at fault. If you were more than 50 percent at fault, however, you won’t be entitled to any damages.
Unfortunately, death is a common consequence of a boating accident. In many cases, an injured boater will die from drowning when an otherwise non-fatal injury prevents them from swimming to shore. Under Ohio wrongful death law, the personal representative of the victim’s probate estate files the lawsuit. Damages, which are typically substantial, go to the victim’s probate estate and surviving family members.
The Insurance Problem
Insurance coverage is often the most serious problem in a boating accident lawsuit. Even if you win the lawsuit, you cannot recover any more money than the amount of money that is available. In many cases, no insurance is available to pay a boating accident claim. The defendant might also lack the financial resources necessary to pay your claim.
Most people don’t carry boater’s insurance, and auto insurance policies do not cover boating accidents. Moreover, your own homeowner’s insurance will probably not cover damages for a boating accident caused by someone else. If the defendant has a homeowner’s insurance policy, its terms might cover boat accident liability to a third party (you). Even if it does, however, the maximum amount of coverage might not be enough to satisfy your claim.
Possible Loophole #1: Product Liability
Not all boating accidents are caused by the negligence or other misconduct of one of the people involved. Sometimes a boating accident is the result of the malfunction of a product or component of the boat itself. If you can trace an accident to a product malfunction, you may have a cause of action against the product manufacturer. Product manufacturers can almost always afford to pay large accident claims.
Possible Loophole #2: The Ohio Dram Shop Law
Statistically, it is reasonably likely that alcohol was a major factor in your boating accident. The US Coast Guard identifies alcohol as the leading factor in about 19 percent of all Ohio boating deaths. If it was, you might be able to obtain damages from the alcohol vendor.
Ohio’s dram shop law allows you to sue an establishment that served the offending boater alcohol if they were “noticeably intoxicated” at the time, or if they were under 21. Although the establishment would not be ultimately liable for all damages, you could recover some of your damages this way. Fortunately, establishments that serve alcohol are typically well-insured and can pay an alcohol-related personal injury claim.
Your Most Important Decision
Above all, be sure to retain a personal injury attorney to help you with your accident claim. Remember, your choice of attorney might turn out to be the most important decision you make in the entire case. In addition to helping you win the case, a skilled boating accident attorney can help you settle your claim out of court, allowing you to resolve your claim more easily and more quickly than you could in a courtroom battle.
Contact us to set up a free, no-obligation consultation today.