Local Miami television station CBS4 recently reported that a woman was ejected from the cockpit when the boat she was traveling aboard struck a wave off Miami, Florida. This happens often and we have litigated several cases where a passenger or guest was ejected from a boat. Should this happen to you, these are your rights.

The Boat Operator

The first question is who, if anyone, is liable? The first person to look at is the operator. Under maritime law, an operator has the duty to operate the boat in a reasonable manner given the circumstances. This means did the operator do something that a reasonably careful person would not do or failed to do something that a reasonably careful person would do. To find this answer, we must look at whether the operator:

• Maintained a safe speed given the sea conditions;
• Maintained a proper lookout who could have noticed the wave and cautioned the operator to slow down;
• Properly angled the bow of the boat to decrease the impact of the oncoming wave; or,
• Failed to take other action that a reasonable person would have done to avoid the accident.
• If the injured passenger can show the operator failed to act in a reasonable manner, liability will be imposed for the injuries.

The Boat Owner

The next person who may be liable is the boat’s owner (if owned by someone different than the operator). Maritime law is different from most states’ law that hold owners strictly liable for accidents arising from the negligent operation of their motor vehicles even if they were not present at the time of the accident. In fact, courts consistently hold Florida’s Dangerous Instrumentality Statute providing for such strict liability is not applicable to boating accidents occuring on “navigable waters.” Though the owner may not be held strictly liable, the injured passenger or guest may sue the owner for the negligent entrustment of the vessel. Negligent entrustment arises when the owner lets someone operate the craft who was not qualified.

The Boat Manufacturer

The third person who may be liable is the boat manufacturer. Certain types of boats are made simply for speed and handle poorly in rough conditions. Many times these boats “spin out” or bury their bows into oncoming waves causing people to fly out. In such case, the boat manufacture may be liable for negligent design and/or the failure to warn of their vessels’ dangerous characteristics.

Individuals injured due to the negligence of a boat operator, owner or manufacturer are entitled to be fairly and adequately compensated for certain damages experienced in the past and to be experienced in the future. Such damages include:

• Any bodily injury resulting in pain and suffering, disability or physical impairment, disfigurement, mental anguish, inconvenience, the loss of capacity for the enjoyment of life;
• The expense of hospitalization, medical and nursing care and treatment; and,
• Any earnings for work time lost.