14-year-old Brendan Gil along with his father, Alan Gil and his older brother Ethan Gil were participating on a guided jet ski tour near the Caladesi Island State Park on March 30 while on visiting from Lafayette, Colorado. According to investigators of the Pinellas County Sheriff’s Office, Alan Gil made several rapid turns while operating his watercraft and turned into the path of his elder’s son watercraft colliding with the jet ski operated by his older son and on which Brendan was riding. The collision resulted in all three individuals being thrown from the jet skis. Brendan sustained serious, but not life-threatening injuries and was airlifted to Bayfront Health Hospital. The accident is still under investigation and alcohol is not believed to be a factor.
Florida law regulates liveries and provides in part that “a livery may not knowingly lease, hire, or rent a personal watercraft to any person who has not received instructions in the safe handling of personal watercraft, in compliance with rules established by the commission pursuant to chapter 120.” Those rules require instruction about the local characteristics of the waterway where the vessel will be operated” and/or “awareness of changes in weather or water conditions and proper responses to those changes” to name a few.
It is our experience that many accidents involving jet skis are the result of a lack of instructions and/or improper instructions being given by rental companies and tour guides to inexperienced operators. In cases where we can prove that the statute regulating liveries and the rules promulgated thereunder have been violated we may be successful in establishing that the livery was negligent per se.
Under Maritime law, the concept of negligence per se is embodied in what is called the “Pennsylvania Rule, which provides that “when a ship at the time of an allision is in actual violation of a statutory rule intended to prevent allisions, it is no more than a reasonable presumption that the fault, if not the sole cause, was at least a contributory cause of the disaster and in such a case the burden rests upon the ship of showing not merely that her fault might not have been one of the causes, or that it probably was not, but that it could not have been.” See, Tassinari v. Key West Water Tours, L.C., 2007 U.S. Dist. LEXIS 46490, *4-11, 06-10116-CIV-MOORE (S.D. Fla. Jun. 27, 2007).
Additionally, if a livery is found to have been negligent per se, provisions of agreements attempting to exempt a party from liability arising from that party’s failure to comply with a safety statute would be deemed unenforceable as against public policy. The law finds that since the obligations established by safety statutes are owed to the public at large, they and are not within the power of any private party to waive. Id.
Having represented many claimants against liveries and tour operators, the attorneys at Brais Law Firm are experienced and knowledgeable in this area of the law. If you or a loved one have been injured because of the lack of and/or improper instructions, contact our offices for a free consultation.
