|Swimming and Boating Liability
With Memorial Day marking the unofficial start of summer, I wanted to discuss swimming and boating liability. Let’s start with swimming.
Lakes and Rivers:
Most lakes and rivers are public bodies of water that fall under the Missouri (or Illinois) Recreational Land Use Act. The act states “Landowner owes no duty of care to persons entering without fee to keep land safe for recreational use — immunity from liability for injuries of trespasser on land adjacent to park or trail.” Therefore, most of the time, no one is found liable/responsible if a drowning occurs naturally in a public area.
Public and private swimming pools are covered by premises liability statutes. In Missouri, under Ethan’s Law, for-profit pools are required to carry a minimum amount of insurance. They are liable if the injuries stemmed from a dangerous condition, such as lack of accessible egress from the water (ladders/stairs) or broken fixtures. Negligence is difficult to prove when swimmers are monitored. If a lifeguard is provided but does not have proper training, that could be negligence on the ownership of the facility for negligent hiring/retention/training.
Negligence applies to private backyard pools as well, such as if the owner does not secure the pool with fencing or a cover to protect young children from entering unattended. If a young child drowns due to an open gate or open cover on an unmonitored pool, the property owner could be found to be negligent, even if the child is a trespasser (this falls under the concept of “attractive nuisance”).
However, most private pools involve parents monitoring children. If a parent of a young child is present, they are usually found to be partially responsible in a drowning investigation since they have the highest duty of care to monitor their child. Older children could be assuming their own risk by swimming if they are deemed to appreciate the risks of swimming alone.
Boating collisions can be far more dangerous than vehicle collisions. There are fewer safety features on boats and there is always the threat of drowning so minimizing risk is important. This involves wearing floatation devices, not driving impaired, abiding by all speed and wake zone rules, flagging when swimmers are in the water and getting off the water by dark.
In the event you sustain an injury while boating, here are some important things to know:
- Liability is similar to vehicle cases – if someone is at fault for the accident, their liability insurance is the first payor. Claims can be made against the negligent operator of the craft as well as the owner if the driver had the owner’s express or implied consent.
- If you have uninsured or underinsured motorist coverage on your policy, you may be covered for any boating injuries you sustain that are not your fault. it is important to review your insurance coverage BEFORE you need it.