Hazardous Waters

Florida waters are majestic, but have also proven at times to be malevolent. Boaters, swimmers and those on piers and docks may find themselves facing hazardous waters.

Although there may be a tendency to chalk this up to unmanageable forces of nature, the truth of the matter is there are some instances wherein there was a duty of care to:

• Warn about hazardous waters;
• Prevent boaters/ swimmers from entering hazardous waters;
• Provide adequate protections for those who may encounter hazardous waters.

At Associates and Bruce L. Scheiner, Attorneys for the Injured, our Fort Myers injury lawyers will work with those who have been hurt or lost loved ones due to foreseeably hazardous waters.

Some examples of hazardous waters in Southwest Florida include:

• Strong winds;
• Severe thunderstorms;
• Rough seas;
• Rip currents;
• Lightning;
• Alligator attacks;
• Waterspouts.

Defendants in such cases may include:

• Boating owners/ operators;
• Vessel rental companies/ tour operators;
• Local government agency;
• Dock/ pier owner;
• Camp owners/ operators;
• Hotels/ rental property owners.

Know, however, that not every case will be open-and-shut. In fact, state courts have held there is no legal duty to warn of dangers over which a property owner has no control, particularly if those hazards are naturally-occurring. That doesn’t necessarily mean you won’t have a case, but it could make for tough legal challenges, depending on the circumstances.

Liability of Boat Owners/ Operators

The Florida Fish & Wildlife Conservation Commission reports there are more than 930,000 registered vessels in the state, and more than 700 boating accidents are reported annually. Of those, nearly 35 specifically cite “hazardous waters” as a factor in the accident. Hazardous waters could be a contributing factor, even if it is not deemed the primary cause.

The No. 1 cause of death in boating accidents was drowning. Florida has more boating accidents than any other state in the U.S.

Those who own or who are responsible for operating vessels or ships must be careful to do their best to avoid injury to others. They must use reasonable care to help avoid injury to others. That means not just preparing for and protecting against currently present dangers, but those that may arise. That includes hazardous waters.

This is particularly true when boat owners/ operators are accepting payment from customers for on-the-water excursions. That includes those owner/ operators of personal watercraft rentals. Although no one expects boat owners/ operators to control the weather, they are expected to watch it, warn patrons of it and restrict boating activities when unsafe weather may create hazardous conditions on the water.

A perfect example of liability in this regard occurred when two girls vacationing from Indiana were seriously injured while parasailing in Panama City, FL. The 17-year-olds were carried by high winds into the air after their parasail broke loose from a motorboat, slamming them into the balcony of hotel and into power lines before they fell hard on top of several parked cars. Both girls suffered traumatic brain injuries, and one was forced to receive a colostomy. The teens later sued not just the manufacturer and wholesaler of the rope, but also the ride operator, whom they alleged knew or should have known the hazardous waters posed a dangerous condition before they headed out. Further, they alleged the ride operators were not properly trained or supervised. Their claims were later settled out-of-court for an undisclosed sum.

Another high-profile case was that filed by the mother of one of two teen boys who ventured out into their own on a minimally-equipped 19-foot SeaCraft that lacked basic safety and communication devices. The boys were lost at sea, though their boat was later discovered empty. The mother alleged the other boy’s parents were negligent in allowing the teens to venture out without adult supervision and for failing to notify authorities or her for two hours after they went missing. Instead, defendants reportedly set out on their own to look for the boys, allegedly delaying search and rescue efforts in the hazardous waters.

Liability of Hotel and Other Property Owners

When it comes to hotels, resorts, amusement parks and other waterfront properties, courts have typically held that they are only liable for those areas over which they have control.

For instance:

In the 1994 case of Adika v. Beekman Towers Inc., Florida’s Third District Court of Appeal ruled there was no legal duty for a hotel to warn of dangers when it has no control over the areas. There is no common law duty to warn, correct or safeguard others from dangers that, even if hidden, are naturally occurring. This decision was cited in the 2001 Florida case of Poleyeff v. Seville Beach Hotel Corp., where a Miami Beach hotel guest drowned – as did another guest who tried to save her – in a rip current in the ocean in front of the hotel. Representatives of decedents’ estates had argued that hotels had a duty to warn about riptides and rip currents, and that the two hotels in front of which the drownings occurred should have been staffed with lifeguards for this type of emergencies. However, relying on the earlier Adika ruling, both trial and appeals courts upheld summary judgment in favor of defendants.

But then there was the case of a 2-year-old boy who was attacked and killed by an alligator at the water’s edge of a Disney resort in 2016. Although there were signs warning patrons not to “swim,” there was no barrier to entering the water, and families were relaxing on the “beach” for an evening film screening outdoors. The child was wading in the water with his father when the alligator attacked. Although the family did not sue, many legal analysts opine they would have had a strong case if they did because the park had control over the area where the attack occurred and failed to warn about the specific – and significant – danger about which it was likely aware. The park did later post new signs, remove hundreds of alligators and offered the family a settlement.

If you are injured or have lost a loved one due to an incident in Florida involving hazardous waters, contact our experienced injury lawyers in Fort Myers for guidance on your legal options.

800-646-1210 – Associates and Bruce L. Scheiner – Focused on Justice