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Accident riding personal water craft: Is the tour operator liable?

Accident riding personal water craft: Is the tour operator liable?
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In this week’s article, we examine the case of Fox v. Sunset WaveRunner Tours, Inc., 2016 WL 4250401 (S.D. Fla. 2016) in which “Sunset Waverunner Tours, Inc. (Sunset Tours) rented a personal watercraft (PWC) to plaintiffs Ellen Fox and Carrie Thornton in Key West, Florida. With her mother, Ellen Fox, on board as a passenger, Thornton drove the PWC into a mangrove shortly after leaving the PWC tour’s starting point. They both suffered injuries and were air-evacuated from Key West to Jackson Memorial Hospital in Miami. Alleging that Thornton had no prior experience operating a PWC, the mother and daughter filed this…lawsuit against Sunset Tours (alleging) negligence (and) violation of Florida Statute 327.54, which applies to liveries and established safety regulations and criminal penalties for a violation… Sunset Tours filed a summary judgment motion…based on a release of liability form contained in the…rental contract”. Plaintiffs filed a cross motion seeking summary judgment on the theory that because Sunset Tours violated Florida Safety Statute 327.54 and Florida Administrative Code (FAC) 68D-36.107 it was negligent per se and the release was, hence, invalid. “Because there is a genuine factual dispute about Sunset Tour’s compliance with…the statute and related administrative code provisions…both summary judgment motions are denied.”

Terror Targets Update

Global Cyberattack

In Sanger, Chan & Scott, Cyberattack Aftershock Feared as U.S. Warns of its Complexity, nytimes.com (5/14/2017) it was noted that “The components of the global cyberattack that seized hundreds of thousands of computer systems last week may be more complex than originally believed…and experts warned that the effects of the malicious software could linger for some time. As a new workweek started Monday in Asia, there were concerns the malicious software could spread further and in different forms, with new types of ransomware afflicting computers around the globe. There were initial reports of new cases fund over the weekend in Japan, South Korea and Taiwan.”

Afghanistan

In Separate bomb blasts kill civilians in Afghanistan, travewirenews.com (5/17/2017) it was noted that “At least three civilians, including two children, were killed on Tuesday…One of the explosions took place in Dar-e-Tapa village of Nijrab district of Kapitsa province…The roadside mine blast killed two children and wounded two others”.

Venezuela

In Death toll from Venezuela unrest hits 42 as violence continues, travelwirenews.com (5/17/2017) it was noted that “Prosecutors announced on Tuesday that four men, ranging in age from 17 to 33 had been killed over 24 hours of unrest. An unnamed 17-year boy was shot in the head during a rally…The latest wave of unrest initially erupted in early April, when the government-allied Supreme Court stripped the opposition-controlled parliament of its powers. Although the decision was later revoked, protests continued and even strengthened”.

Democratic Republic Of Congo

In ‘500 people killed’ in DR Congo’s Kasai in five months, travelwirenews.com (5/16/2017) it was noted that “Among the dead were 39 soldiers, 85 police officers and about 390 rebels…The region has been hit by increasing violence between the Kawin militia and troops…United Nations investigators have discovered dozens of mass graves since the unrest began, including 17 sites fund in April in Kasai”.

Times Square Chaos

In Rosenberg & Stack, One Dead and 22 Injured as Car Rams Into Pedestrians in Times Square, nytimes.com (5/18/2017) it was noted that “Suddenly, there was a car where no car should be: plowing through the sidewalk crowds that had swelled in Times Square on a spectacular sun-filled day. And it was moving fast. By the time it rammed into a bollard, an 18-year-old woman was dead, 22 other people were injured and the heart of Manhattan had been turned into a scene of panic and carnage. The car…had traveled along the sidewalk for more than three blocks”.

Don’t Breathe In Britain, Please

In ’Filthy’ air pollution is killing more Brits per 100,000 than in US & South America, travelwirenews.com (5/18/2017) it was noted that “The number of deaths caused by air pollution in Britain is higher than that in Mexico, Argentine and Brazil and double the rate in the United States, according to the World Health Organization (IWHO) (which reported that) pollution caused 25.7 deaths per 100,000 people in Britain, the 15th worst rate in Europe and twice as high as Sweden, which topped the list of the cleanest countries in the world”.

Spare The Caning, Please

In Drunk Australian faces caning after obscenity-laden brawl with cops at Singapore airport, eturbonews.com (5/16/2017) it was noted that “An Australian man is facing 11 charges, and a possible caning, after he resisted arrest and assaulted police officers at Singapore Airport. The drunken scuffle was caught on video and has since gone viral…’Police officers got a rude awakening when this bloke decides to pick a fight with them and resists arrest’”.

Awful Annoyance, Indeed

In White, Investing in Tech to Tackle an Awful Annoyance: Lost Luggage, nytimes.com (5/15/2017) it was noted that “The airline industry says it rate of mishandled baggage is lower than ever. In fact, earlier this month, the air transport technology company SITA said the rate of mishandled bags worldwide was 5.73 per thousand last year, down more than 12 percent from 2015 and the lowest ever recorded. SITA attributed much of the reduction to investments by airlines and airports in technology improvements”.

Delta’s Facial Recognition Technology

In Delta Air Lines testing facial recognition technology, biometric-based self-service bag drop, eturbonews.com (5/17/2017) it was noted that “Delta Air Lines is introducing four self-serving bag drop machines at Minneapolis-St. Paul International Airport this summer, a $600,000 investment that allows customers to quickly, securely and easily check their own bags. One machine will be equipped to test facial recognition technology to match customers with their passport photos through identification verification, a first for U.S. carriers”.

Goodbye Ice Sheets, We’ll Miss You

In Chilling warning: Glacier National Park has lost 124 active glaciers since 1850, travelwirenews.com (5/15/2017) it was noted that “Global warming has sapped Glacier National Park of its once-abundant ice sheets according to the US Geographical Survey, which says just 26 active glaciers remain at the protected wilderness area in Montana. Dubbed the ‘Crown of the Continent’, the popular North American tourist attraction was once home to an estimated 150 glaciers back in 1850”.

Yellowstone Wolf Killer Sought

In $10,000 reward offered for white wolf killer in Yellowstone Park, travelwirenews.com (5/13/2017) it was noted that “Two separate $5,000 rewards have been offered for information following the illegal shooting of a rare white wolf in Yellowstone National Park. The ‘Queen of Hayden Valley’ white wolf was one of the most well-known wolves in the National Park and her illegal killing has sparked outrage from advocacy groups and Yellowstone visitors alike”.

Turkish Tour Bus Crash

In 20 Killed, 11 injured in Turkish tourist bus crash, eturbonews.com (5/13/2017) it was noted that “At least 20 people have been killed and 11 injured after a bus with Turkish tourists crashed near the resort town of Marmaris in southwestern Turkey… ‘There were no foreign tourists inside it”.

Travel Law Case Of The Week

In the Fox case the Court noted that “The parties agree that he PWC collision occurred in the Salt Run Channel in Key West, Florida on April 3, 2013. They also agree that the plaintiffs… rented Yamaha WaveRunners (which) are classified as personal watercraft under Florida and federal regulations (and that) the WaveRunner is a ‘vessel’ within the meaning of 1 U.S.C. 3 and that the collision between the WaveRunner and the mangrove occurred upon the navigable waters of the United States within the territorial limits of the State of Florida. Plaintiffs voluntarily signed the rental contract, which contains a release of Sunset Tours from all liability”.

No Training Given

“Curtis Lemon, a Sunset Tours employee, was working the check-in booth and arranged for plaintiffs and their family members to sign the Bar[e] Boat Lease Rental Contract and PWC Renter Orientation Checklist. Plaintiffs contend that Lemon did not provide any training or instructions beyond directing them to look at the documents and ask if they had questions…Plaintiffs contend that Lemon did not assess the plaintiff’s ability to safely operate the WaveRunner…Sunset Tours contends that Lemon asked plaintiff to thoroughly read the checklist before signing it and before paying for the tour and then asked if they had any questions”.

The Safety Speech

“Coleman confirmed that plaintiffs were first-timers-i.e., they had never ridden PWCs before. Coleman told the ‘no worries’…Coleman’s safety speech was a standard one, covering the operation of the WaveRunner, safety procedures (including hand signals, speed, guidelines for following the tour guide, the kill-switch lanyard, the need to throttle in order to steer, and how to reboard if they fell off). He told them that WaveRunners are unstable at low speed, oscillate and feel squirrely. Thornton heard the instructions but did not ask any questions before taking full control of the WaveRunner and operating it. After the safety speech…Coleman pushed each WaveRunner off of, and away from, the dock, stern first. Each PWC then proceeded north in the Salt Run Channel toward the open water”.

The Accident

“Plaintiffs (contend that) Thornton proceeded down the channel and the WaveRunner began to veer to the right. They say they continued to hold the throttle open and turn the steering wheel to the left in an effort to correct the veer to the right. They say the PWC ‘did not respond to the steering wheel’ and the WaveRunner then crashed into the mangroves that line the channel. But Sunset Tours disputes this. It points to Thornton’s deposition, where she testified that she held the throttle down with the gas open as soon as she left the dock and got pushed into the channel. She said the ‘young’ employee who gave the safety instructions on the dock told her to hold down the throttle all the time. She testified that she and her mother were ‘having a blast, going really fast’ before the PWC started turning to the right”.

Was Coleman Licensed?

“Plaintiffs contend there is no evidence that Coleman completed a qualified boater safety course, a requirement. They note that Sunset Tours produced boater training safety cards for the other two employees, but not for Coleman. Sunset Tours does not challenge its inability to produce a card for Coleman, but it argues that Coleman unequivocally testifies in his deposition that he obtained his boater’s safety card and captain’s license. But the captain’s license was obtained in 2016, after the 2013 collision at issue in this case”.

The Owner’s Manual

“The owner’s manual warns that the WaveRunner is a ‘high performance boat’ and advises operators to ‘ride within your limits’…Thornton signed the Contract and Checklist which contained warnings, information about hazards and diagram-assisted instructions on operating the PWC”.

The Florida Statute

“Plaintiffs allege that Sunset Tours…negligently failed to provide plaintiffs with adequate education and training necessary for the safe operation of the PWC…in violation of Florida Statute 327.54…which states in part: (1) A livery may not knowingly lease, hire or rent a vessel to any person…(e) When the vessel is equipped with a motor of 10 horsepower…unless the livery provides pre-rental or pre-ride instruction that includes (10 Operational characteristics of the vessel to be rented. (2) Safe vessel operation and vessel right-of-way. (3) The responsibility of the vessel operator of the safe and proper operation of the vessel. (4) Local characteristics of the waterway where the vessel will be operated”.

The Release

“Because Sunset Tours focuses on the release language and both sides urge contrary views on whether Section 327.54 was followed, it is appropriate to discuss how the general rule governing releases is modified when a violation of a safety statute is involved in the case. This precise issue has been addressed in Tassinari v. Key West Water Tours, L.C., 2007 WL 1879172 (S.D. Fla. 2007). another personal injury case involving PWCs rented in Key West, Florida”

Against Public Policy

“The Tassinari Court (held) that a waiver/release is unenforceable on public policy grounds ‘if the agreement would exempt a party from liability from that party’s failure to comply with a safety, as the safety obligation created by the statute for such purpose is an obligation owed to the public at large and is not within the power of any private individual to waive’. The Court held that the release and waiver provisions in the PWC rental contracts ‘are sufficient to release Defendant from liability for ordinary negligence, they are ‘invalid as against public policy when applied to liability arising from violation’ of the safety statutes at issue in both cases”.

Conclusion

“Unlike the factual scenario is Tassinari, it is far from clear whether any of defendant’s employees violated the applicable safety statute…(Here) there are in fact disputes and neither party is entitled to summary on the fact-intensive question of whether Sunset Tours complied with the safety statutes and regulations”.

The author, Thomas A. Dickerson, is a retired Associate Justice of the Appellate Division, Second Department of the New York State Supreme Court and has been writing about Travel Law for 41 years including his annually updated law books, Travel Law, Law Journal Press (2016), Litigating International Torts in U.S. Courts, Thomson Reuters WestLaw (2016), Class Actions: The Law of 50 States, Law Journal Press (2016) and over 400 legal articles many of which are available at nycourts.gov/courts/9jd/taxcertatd.shtml. For additional travel law news and developments, especially, in the member states of the EU see IFTTA.org

This article may not be reproduced without the permission of Thomas A. Dickerson.

Read many of Justice Dickerson’s articles here.

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