12 Jul Swimming & Boating Liability, Bentley’s Law, Mexico Trip
Welcome to the Newsletter
Rana Law Group Newsletter
In this issue:
- Swimming and Boating Liability
- Bentley’s Law
- Just for Fun: Mexico Trip
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.
A local grandmother, Cecilia Williams, called for passage of a law that requires a drunk driver that kills a parent to pay child support to any surviving minor children of the victim. The case that spurred her action went to trial in Jefferson County, Missouri this past January. The defendant was accused of drinking and driving and then killing a couple and their baby in a fiery crash. The jury found the defendant guilty of three counts of manslaughter but not the DWI. Ms. Williams again called on the Missouri legislature to pass Bentley’s Law in honor of her grandson who lost both his parents in this crash.
Due to her advocacy, more than 20 states are considering a version of this law. Last April, Tennessee became the first state to formally pass this legislation. Eventually, I anticipate the Missouri senate will also pass the law. A huge debt is created when a child loses one or both parents and, while child support payments do not come close to evening the scales of justice, Bentley’s law attempts to do something for the victim’s minor children.
Just for Fun: Mexico Trip
Tarun was able to get away last month for a family trip to Mexico celebrating his sister-in-law becoming a nurse practitioner. While he goes every year, this is the first time going in May. The temperature was much hotter and the pools felt like hot tubs. He says he will stick with December through April for any future visits.
This is Tarun’s idea of reeling in the big one! Why risk getting seasick and sunburnt when you can just show up at the buffet???