Summer brings many of the joys of enjoying the outdoors and recreational activities such as hiking, swimming, and boating. Unfortunately, it often gives rise to tragic accidents associated with those activities, particularly when it comes to boating. According to a report by the New York State Office of Parks Recreation and Historic Preservation (OPRHP), there were 22 reported boating fatalities in 2017 which was the same as 2016.
An analysis recently conducted by the New York Daily News revealed that there were 15 fatal boating accidents in upstate New York in 2017. Many of these fatalities involved people not wearing Personal Flotation Devices (PFDs), commonly referred to as “life-vests.” Drugs and/or alcohol were reported to also be a factor in a number of the deaths.
Persons injured or killed as a result of the negligence of a boat operator have a recourse through the New York civil justice system. Boat operators in New York are not required to maintain insurance, but still may be held liable for injuries caused due their negligence similar to operators of motor vehicles. Usually, responsible boat owners will maintain insurance for injuries caused by their negligence as well as property damage and other items unique to boating. From an attorney’s perspective, an inquiry must be made immediately as to whether the boat owner/operator has applicable insurance and/or the assets available for a meaningful recovery.
Where a boat operator’s negligence results in a fatality, the estate of the decedent may be able to bring a cause of action for the “Wrongful death” of their loved one. Wrongful death cases in New York are governed by The New York Estates, Powers and Trust Laws (also known as the EPTL). New York’s wrongful death law is what is known as a pecuniary loss statute, which means that all allowable damages under this statute are limited to, and measured by, economic loss. In simpler terms, the emotional loss and grief sustained by the survivors is generally not a recoverable element of damages.
With many boating cases, the legal concept of “comparative negligence” can play a major factor in the potential recovery. Pursuant to New York Civil Practice Laws and Rules section 1411, a claimant’s negligence, no matter how great, will not bar recovery, but the damages recoverable will be reduced in proportion to his negligence. Specifically with regard to boating accidents, the negligent boat operator could potentially blame the victim for being intoxicated or for not wearing a PFD and, therefore, being partly or entirely responsible for the accident. PFDs are not required with all types of boats so an experienced attorney will be familiar with whether a PFD was required under a particular circumstance. In addition, an attorney must inquire whether the boat operator had proper PFDs available and insisted on his passengers utilizing them. Finally, it just be investigated as to whether a PFD would have made a difference in the injuries sustained in the accident. For example, if a boat operator crashed the boat into a pier which resulted in fatal head trauma to a victim, the presence and utilization of a PFD would not be relevant to the case or the recovery.