West Virginia Boating Accident Lawyer
Recreational boating is enjoyed by many in West Virginia. Boating enables enthusiasts the opportunity to explore our nation’s waterways. Unfortunately, boating accidents are far too common in our state and throughout the U.S.
If you or a loved one has been injured in a boating accident in West Virginia, contact Tiano O’Dell, PLLC. Our boating accident attorneys will review your case for free and let you know if you have grounds for an injury claim. We can help you pursue justice for your injuries, hold negligent parties accountable and allow you to focus on recovery and getting back on your feet.
Injured in a Boating Accident? Our Attorneys Can Help
If you or a loved one recently suffered injuries in a boating accident, see a physician and then speak with a West Virginia boating accident attorney. Your medical issues should be your top priority, so seek medical care immediately after disembarking. If a boating accident required rescue or evacuation, then emergency personnel will likely transport anyone injured to the nearest hospital. After receiving medical care, your physician can provide you with a medical report that outlines the extent of your injuries, possibility of future complications or secondary injuries, and treatment plan. This document will be crucial to any future legal action you decide to take.
After receiving your medical report, you will likely have the option of securing a police report of the incident if the operator has reported it. This report will include statements from those involved as well as witness statements and the responding officers’ observations. Once you have your medical report and a copy of the police report for the incident, hiring an attorney is your next best step. Speak with a West Virginia boating accident lawyer before talking to any insurance companies or any other parties connected to your boating accident. Your attorney can help you with correspondence with insurers and explore your legal options for recovery.
Who Is Liable in a Boating Accident?
Liability for a boating accident refers to someone’s legal responsibility for everyone’s damages. Proving liability is the only way for a boating accident victim to obtain a settlement or verdict in West Virginia. Since it is a fault accident state, someone injured in a boating accident must identify the person that caused the collision before filing a claim. The liable party could be many different people or a combination of multiple parties.
- The operator of your boat
- The operator of another boat
- The owner of the boat
- A boat tour company
- A passenger on the boat
- A boat or boat part manufacturer
- The person responsible for boat maintenance
- The waterway traffic controller
The person or party liable for your boating accident will depend on what caused your collision. If an operator’s alcohol use led to the crash, for example, the individual operator could be liable. If, however, you were part of a charter boat tour and the company failed to maintain its vessel, the company could be liable. A lawyer can investigate your boating accident case and help you identify the at-fault or liable parties.
How Many Boating Accidents Occur Per Year?
The U.S. Coast Guard recently published its 2017/2018 boating accident report. This report focuses solely on recreational boating accidents. According to the report, there were 4,291 recreational boating accidents in 2017. These accidents and incidents caused 658 deaths and 2,629 personal injuries. They also caused approximately $46 million in property damage. The number of boating accidents in the U.S. dropped by almost 4% compared to 2016. The number of injuries decreased by 9.4%, while the death toll decreased by 6.1%.
From 2006 to 2016, an average of 4,516 boating accidents happened per year. These were only the accidents people reported – those that caused at least $2,000 worth of damages. Serious boating accidents cause between 2,600 and 4,000 injuries each year, along with 600 to 750 deaths. In 2016, the U.S. Coast Guard reported 4,463 boating accidents, 2,903 injuries, 701 deaths, and almost $50 million in property damage. The crash rate in 2016 was 7.3% higher than in 2015. In 2016, 80% of deceased victims died from drowning. Of these victims, 83% were not wearing life jackets.
The Four Elements of a Negligence Claim
If you intend to file a lawsuit for your damages, you must first determine whether your boating accident happened because of negligence. If your boat’s operator or another boat operator or any other party contributed to the accident due to negligence, then he or she would bear some liability for your damages. Proving negligence involves four basic elements:
- The plaintiff must prove the defendant owed a duty of care in the given situation. For example, boat operators have a duty of care to follow the boating laws in the area and operate their vessels safely.
- Next, the plaintiff must show how the defendant breached this duty of care. For example, boating under the influence of alcohol would be a breach of duty.
- The plaintiff may only pursue legal action if he or she suffered actual harm or incurred some type of economic loss due to the defendant’s negligence. The plaintiff will need to provide compelling evidence that proves the extent of his or her damages resulting from the accident.
- Finally, the plaintiff must also show that his or her damages were the direct results of the defendant’s negligence and not some other cause.
Most boating accident lawsuits fall under the purview of personal injury law, so finding the right attorney is absolutely essential for a positive outcome in your boating accident case.
Tiano O’Dell, PLLC and our legal team have earned the Distinguished Peer Review Rating as well as the Preeminent Client Review Rating. These coveted honors are a result of client dedication, continuous hard work, and devotion to the legal craft. These are the attributes a client wants in their personal injury attorney in West Virginia.
What Are Common Boating Accident Injuries?
Boating accident injuries can range from minor sprains to permanent spinal cord injuries and wrongful death. In 2017, the most common known cause of death was drowning (76%). Of the victims who died by drowning, almost 85% were not wearing life jackets. Over 2,000 other victims suffered non-fatal injuries. According to the U.S. Coast Guard, the following injuries were commonly reported in 2017 boating accidents:
- Amputations. If an injury on an arm or leg is too severe, attending physicians will recommend amputation if no other way to salvage the affected limb exists. Amputation helps prevent infections in the affected limb from spreading the rest of the body and potentially putting the victim’s life at risk. An amputation is a very serious medical procedure that will result in permanent disability, limited range of motion, and may cause a host of ongoing medical issues including discomfort, chronic pain, psychological trauma, and Phantom Pain Syndrome, a neurological phenomenon that causes an amputee to experience pain sensations that feel as though they are occurring in the amputated limb that is no longer there.
- Broken bones. Bone fractures are very painful wounds that can take weeks or even months to heal. Depending on the severity of a fracture, the victim may have to undergo physical therapy, occupational therapy, or other forms of long-term medical care to restore function in the affected part of the body. A compound fracture, in which a portion of broken bone protrudes through the skin, is an open wound that requires immediate medical attention as it leaves the victim vulnerable to infections.
- Burn injuries. Most watercraft use engines that may explode or catch fire under certain conditions. Some activities on the boat, such as the use of fireworks or the consumption of high-proof alcohol, may also lead to fires or explosions. Burn injuries are very painful and leave scars that can cause physical and psychological problems. Depending on the severity of a burn injury, a victim may require skin grafting surgeries and long-term rehabilitative care.
- Carbon monoxide poisoning. Although many Americans know of the dangers of carbon monoxide in their homes, many do not realize that boats emit a great deal of carbon monoxide. This is mostly due to their large engine size and time spent idling in the water. Boaters and passengers who begin to feel dizzy or lightheaded may be experiencing the early stages of carbon monoxide poisoning. Too much exposure can be fatal or cause long-term medical complications in the heart and brain.
- Concussions. A concussion is a type of traumatic brain injury common among professional athletes and employees in dangerous workplaces like construction sites and factories. Although mild in comparison to other types of traumatic brain injuries, concussions are serious medical issues that can leave a victim vulnerable to a host of other problems later, including sensory confusion, intense headaches and migraines, mood swings, irritability, memory problems, and trouble sleeping.
- Dislocations. Violently falling out of a boat or colliding with a bulkhead or deck of a vessel can result in dislocated joints. While relatively easy to treat, these are still painful injuries.
- Electric shocks. Many modern boats feature various electrical systems that may short-circuit or cause electrical shocks when exposed to water.
- Hypothermia. Falling into frigid water can cause a victim’s body temperature to rapidly decrease, forcing his or her heart to work harder to pump blood to the surface of the skin and warm the body. Eventually, the cold temperature will be too much for the heart to handle and the victim’s body temperature will start to drop.
- Internal organ injuries. Violent impacts to the torso or abdomen may damage internal organs. These injuries may take days or longer to develop noticeable symptoms, so it’s vital to seek immediate medical care after any boating accident for a thorough examination.
- Lacerations. Deep cuts can cause severe blood loss and may require sutures.
- Scrapes, bruises. Minor injuries like cuts, bumps, and bruises may not require medical intervention but are still painful.
- Spinal cord injuries. The spinal cord does not have the ability to heal itself like the rest of the body, so any injury to the spinal cord will be permanent. Depending on the location of the injury and whether it completely severed the spinal cord, the victim may lose some sensation or function in the affected parts of the body or both.
- Sprains, strains. Soft tissue injuries like sprains, strains, and ligament damage will heal with time but may still require surgery or other intensive medical treatments.
If you were injured in a boating accident that was caused by another’s negligent or reckless conduct, contact a West Virginia boating accident attorney today to discuss your available legal options. Tiano O’Dell, PLLC and our team of accomplished personal injury attorneys have the experience and proven track record to help you recover compensation for your injuries, including medical expenses, pain and suffering, lost income and property damage.
Compensation for Boating Accident Victims
The compensation available to victims of boating accidents vary based on the damages sustained and the conduct of the at-fault party. Most personal injury lawsuits involve two types of damages: economic and non-economic. Economic damages are easy to prove with financial records and other forms of documentation. These damages often include medical expenses resulting from an injury, the cost of repairing or replacing property damaged by a negligent act, and lost income if the plaintiff had to miss work due to his or her injuries.
Non-economic damages are more complicated. In most personal injury lawsuits, non-economic damages include pain and suffering. A wrongful death claim may include non-economic damages such as the loss of consortium or affection provided by a deceased loved one. While there is no way to accurately judge the monetary value of a person’s physical pain, emotional distress, and mental anguish resulting from an accident, the justice system acknowledges that these things are legitimate damages. A plaintiff’s attorney will likely call on an expert in the medical field to testify as an expert witness in the case to provide the jury with a better understanding of the plaintiff’s condition and the effects of the defendant’s negligence. The jury then uses this information to determine an appropriate amount of damages.
The amount of pain and suffering damages generally reflects the severity of the injury, but no hard and fast rule exists for calculating these damages. In most jurisdictions, pain and suffering damages are several times more than a plaintiff’s claimed medical expenses. For example, a plaintiff who suffered a serious injury that led to $20,000 in medical expenses and a long recovery period could expect $30,000 to $50,000 or more in pain and suffering damages. Expert witness testimony heavily influences determinations concerning pain and suffering damages.
If a defendant’s negligence was intentional, excessively reckless, or showed complete disregard for the safety of others, then a jury may award punitive damages to further punish the defendant. The amount of punitive damages a plaintiff receives typically depends on the financial status of the defendant. A wealthy defendant should expect to pay much more in punitive damages than a lower-income defendant. This type of compensation strives to discourage the defendant or others from engaging in similar behavior in the future.
PROVING DAMAGES IN A BOATING ACCIDENT LAWSUIT
A plaintiff in a boating accident lawsuit will need to provide evidence that clearly shows the extent of the financial impact of the accident. This may include providing receipts, invoices, hospital bills, and other forms of documentation related to the accident. It is essential to retain copies of all vital documentation and correspondence related to any boating accident. Economic damages receive full compensation as long as the plaintiff can prove the exact extent of those damages and that they would not have occurred if not for the defendant’s negligence.
Medical expenses and pain and suffering related to injuries sustained in a boat accident may be more difficult to prove. The plaintiff must be able to show that his or her injuries were the direct results of the defendant’s negligence and not some other cause. If the plaintiff had any pre-existing medical issues, the damages in the lawsuit cannot pertain to any issues unrelated to the defendant’s actions.
The right West Virginia boating accident attorney can help a plaintiff in a boating accident case gather the evidence necessary to prove the extent of his or her economic and non-economic damages. An attorney can also handle correspondence with insurance agents so the client can focus on recovery. After securing a medical report and a police report after a boating accident, an injured plaintiff’s next step should be hiring a reputable personal injury attorney to start building a lawsuit.
What Causes Most Boating Accidents?
The 2017 U.S. boating accident report showed that the top five types of accidents were collisions with recreational vessels, collisions with fixed objects, flooding/swamping, grounding, and falling overboard. The top primary causes of boating accidents were operator inattention, improper lookout, operator inexperience, machinery failure, and alcohol use. The U.S. Coast Guard reports the following contributing factors of boating accidents and casualties in 2017:
- Alcohol use. Operating any type of vehicle under the influence of alcohol is illegal and incredibly dangerous. Alcohol slows reaction time, impedes judgment, and hampers coordination. A boater who causes injuries to passengers or others due to alcohol use will likely face criminal charges as well as civil actions from the victims and their families.
- Drug use. Similar to alcohol, many illicit drugs make operating any vehicle more dangerous. A boater who uses illegal drugs and causes damages will face civil and criminal penalties in most cases. Boat operators who take prescription medications must follow their doctors’ instructions and only take medications as directed. If a prescription warns a user not to operate vehicles or heavy equipment, then he or she should not operate a boat after taking the medication.
- Excessive speed. Most waterways have posted speed limits for boaters. Boating at excessive speeds is very dangerous in busy waterways, and it can make it impossible for the boat operator to avoid hitting a swimmer or a partially submerged obstacle. It’s also possible to run aground on a sandbar or in shallows the operator could not see in time to avoid. Falling out of a boat can also cause severe injuries, and the chance of serious injury increases as the boat’s speed increases.
- Failure to ventilate. Boat engines release exhaust and carbon monoxide, so it’s important to thoroughly inspect any watercraft before operation. In larger boats with cabins, a boat operator may face liability if poor ventilation caused a passenger in the boat’s cabin to get sick or suffer carbon monoxide poisoning.
- Improper lookout. Boat operators must remain attentive and alert for changing water conditions, obstacles, and posted navigational markers.
- Inadequate onboard navigation lights. Failure to maintain a vessel’s running and navigation lights can make it difficult for other boaters to see at night or in heavy fog.
- Operator inattention. Boat operators should remain in control of their vessels at all times. Distraction, leaving the boat to idle unattended for too long, or general inattention can easily lead to severe injuries.
- Restricted vision. Boating in fog, heavy rain, at night, or during any type of severe weather can significantly limit a boat operator’s visual range. It’s imperative for boaters to use good judgment when boating in inclement weather to avoid injuries to passengers and others.
- Rules of the road restriction. Boaters will often need to transport their boats to the bodies of water they wish to visit by hauling their boats with a car or truck. If a boat owner or driver is negligent or fails to properly secure the boat it can cause catastrophic injuries.
- Sharp turn. Boats are very maneuverable in the water, but taking turns too sharply can cause passengers to fall out of the boat or suffer injuries from colliding with surfaces of the boat from the turn. Boat operators should refrain from making sharp turns unless absolutely necessary to avoid hitting a swimmer or submerged obstacle.
- Starting in gear. Some watercraft will have start-in-gear protection, but older boats may not. Starting a boat in gear can cause serious engine problems, potentially leaving the boater and passengers stranded for quite a long time. Boaters should fully understand their vessel’s capabilities and restrictions and always check to make sure they are not starting their boats in gear.
- Improper weight distribution. Boats are susceptible to capsizing under certain conditions, and improper weight distribution can easily cause a boat to slip over on one side and capsize, potentially leading to drownings or other injuries.
- All watercraft have weight limits. It is imperative for every boat operator to ensure the contents of the boat and the combined weight of the passengers do not overload the boat. Overloading increases the chances of a tip-over or capsizing, potentially causing serious injuries.
- Force of wave/wake. Many boating areas have wake restrictions that require boaters to manage their speeds. The wake created by a boat can injure swimmers or others nearby and may cause a collision with another watercraft.
- Equipment failure. Boat operators should thoroughly inspect their vessels before any outing on the water. An equipment failure that causes injuries may not be the fault of the operator, however, and liability may instead fall to the equipment manufacturer.
If you were harmed by a boat operator who lacked the required experienced, training, or knowledge to properly control and drive a boat, you may seek compensation for your injuries in a personal injury lawsuit. If a loved one lost their life in a boating accident, the family members may seek compensation in a wrongful death claim. It is essential to have an experienced, aggressive West Virginia boating accident attorney on your side ready to fight for you.
COMMON TYPES OF BOATING ACCIDENTS IN WEST VIRGINIA
Boating accidents happen in a variety of ways. When they occur due to negligence, any injured parties can pursue legal action against the at-fault party for causing their damages. Some of the most common types of boating accidents include:
- Sandbars may be hard to spot, and changing elevation of the ground below the water’s surface may cause a grounding accident. When a boat grounds on a sandbar, shore, or underwater surface, it can cause mechanical failures or serious injuries if the boat was traveling at a high speed.
- Collision with fixed objects. Rocks, navigational posts, water markers, and underwater structures may all cause serious boating accidents if an operator mistakenly collides with them. It’s vital to use extra caution in poor visibility and only use watercraft in approved areas.
- Multiple-vessel collisions. The most common type of boating accident involves two or more vessels colliding. Driver inattention, poor visibility, excessive speeds, and other factors may cause a multiple-vessel collision.
- Flooding/swamping. A boat taking on water is very dangerous, and the passengers may suffer drowning injuries or other types of wounds as they escape the flooding vessel. It’s essential for boat operators to keep functional lifejackets onboard for every passenger.
- A sharp turn or hitting a wake or wave can cause passengers to fall, potentially hitting the surfaces of the boat or the water at high speeds. Falls can cause broken bones, severe contusions, traumatic brain injuries, and a host of other possible injuries.
- If a boat operator does not notice a swimmer’s head poking out of the water and hits the swimmer, it may cause him or her to fall unconscious and drown. It’s also possible for a boat passenger to fall out of the boat and drown. Boat operators should be very cautious and confirm each passenger’s swimming ability before casting off in the water.
- Watersports injuries. Water skiing and wakeboarding are very popular water sports, but they require the skier or boarder to hang on to a rope connected to the boat as the boat pulls him or her along. Depending on the speed of the boat, turning angles, the skill of the boarder/skier, and other factors, watersports like wakeboarding and waterskiing can cause severe injuries.
- Equipment malfunctions and failures. If a defective piece of boat equipment, vessel, or safety gear causes an accident, liability will likely fall to the defective product manufacturer unless the boat operator’s negligence caused the failure. An injured plaintiff in such a case will not necessarily need to prove the defective product manufacturer was negligent, only that the product in question is indeed defective and the defect caused the plaintiff’s damages.
- Alcohol-related accidents. Boating is a popular leisure activity, and it’s not uncommon for adults to take alcoholic beverages with them for a day on the water. However, the person operating the boat should refrain from consuming any alcoholic beverages. It’s possible for a boat operator to receive a DUI charge like any other motor vehicle operator. A DUI charge for a boating accident can leave the offender liable for civil claims from any injured victims as well as criminal charges from the state.
- Inexperienced boaters. It’s crucial for anyone who plans to operate a watercraft to have the appropriate experience level before starting.
Many of the most common types of boating accidents are avoidable with proper preparations and good judgment. Boat operators should thoroughly inspect their vessels before any outing and make sure all the safety equipment on board is safe and functional. It’s also vital to follow any applicable state or local laws and ordinances for boating. When boating accidents happen, boat operators should immediately report these incidents to the authorities and seek medical care for anyone injured.
Where Do Most Boating Accidents Occur?
When most people picture boating accidents, they imagine a bad storm and a ship far out to sea. In reality, this is not where most boating accidents occur. The majority of recreational boat accidents happen in smaller, more congested waterways, such as marinas and inland waters. Boats are more likely to collide with other boats, fixed objects, and swimmers in smaller and shallower waters. A higher number of boats also cruise in these waterways in West Virginia, leading to a higher number of boating accidents.
What Percentage of Boating Accidents Involve Alcohol?
Alcohol is a major contributing factor to boating accidents. Like West Virginia’s driving under the influence laws, it is illegal to boat with a blood alcohol concentration level at or about 0.08%. A boater can receive a boating under the influence (BUI) charge, which can come with serious penalties. In 2017, alcohol was the leading known contributing factor in fatal boating accidents, according to the U.S. Coast Guard. Alcohol was the number one factor in 19% of fatal boating accidents. In 2017, alcohol use caused or contributed to 275 boating accidents, 102 deaths, and 227 injuries.
Boating Requirements and Regulations in West Virginia
To lawfully operate a boat in West Virginia, one must obey all applicable rules, laws, requirements, and regulations. Breaking any federal or state boating law is an act of negligence that could contribute to a serious boating accident. It is important to learn the rules that may apply to your boat before heading out on the water, as an operator and a passenger.
- Mandatory safety education. In West Virginia, state law says anyone born after December 31st, 1986 must enroll in and pass a mandatory safety boater education course. Boaters coming to West Virginia from out of the state, if they do not have out-of-state education certificates, have 30 days before they must fulfill the educational requirement.
- Requirements in Charleston, West Virginia. The city of Charleston has specific municipal boating laws for its downtown riverfront area. It requires all boats to purchase permits for events at Haddad Riverfront Park. The price for the 2019 boating season is $100 for Class A vessels 40 feet or longer and Class B vessels under 40 feet. The fee is $25 for Class C vessels of any length.
- Boating under the influence laws. Boating in West Virginia typically does not require a license. Therefore, receiving a BUI charge will not result in losing your license – including your driver’s license. However, authorities have the right to use a Breathalyzer on a boat to determine if you are under the influence. The fine for refusing the test can range from $1,000 to $5,000. If you refuse to pay this fine, the Coast Guard can seize your boat.
Broken boating rules cause hundreds of boating accidents every year. In one Morgantown boating accident case, a 21-year-old boat operator pled guilty to boating under the influence and causing an accident on Cheat Lake that injured 12 people. The courts found him guilty of alcohol and drug use as well as speeding in contributing to the crash. This is just one example of the many such accidents that happen in West Virginia each year.
What to Do After a Boating Accident?
West Virginia boat owners should pay close attention to the state’s boating laws, particularly when it comes to accidents. Boat owners have a legal obligation to immediately stop a vessel after any type of accident and offer assistance to anyone injured as long as it is safe to do so. The boat operator must report the accident if it resulted in certain damages.
- Injuries requiring medical treatment beyond basic first aid
- Property damage in excess of $2,000 (this increased from $500 in 2001)
There is technically a 48-hour window in which a boat operator may report a fatal boat accident, but it is always best to report such an accident immediately. Boat operators in West Virginia should also remember that law enforcement officers, conservation officers, and Coast Guard personnel have the authority to stop and board any private vessel to confirm the vessel and operator are in compliance with applicable laws and regulations. It is illegal to refuse a search or ignore an officer’s requests to stop a vessel.
Do You Have to Have Insurance on a Boat in West Virginia?
To operate a boat or other water vessel in West Virginia, you do not need insurance. Purchasing insurance, however, is a good idea if you do not want to be personally liable for injuries or damages you cause in a boating accident. In West Virginia, all boaters must register their vessels. Boaters need state Certificates of Number and validation stickers to legally operate their vessels on public waterways. All vessels with motors purchased in the state must have a valid title. Owners must renew vessel registration every three years if they wish to continue boating.
Will Homeowner’s Insurance Cover a Boating Accident?
In most cases, homeowner’s insurance will not cover damages in a boating accident. It may, however, cover damages relating to boat vandalism or acts of God. Contact your homeowner’s insurance company to find out the details about your specific plan. Most boaters must purchase separate boating insurance to cover their medical bills, property damage expenses, and other losses after a boat collision.
CONTACT A WEST VIRGINIA BOATING ACCIDENT LAWYER TODAY
While most cases are settled out of court through negotiations with the insurance company and/or other responsible parties, if an acceptable settlement offer is not made, your personal injury attorney will take the case to court for a jury trial. At Tiano O’Dell, PLLC, our lawyers have earned the American Trial Lawyers Association Top 100 Trial Lawyers distinction. There are no fees unless we win your case. To schedule your complimentary case review, call our Charleston office at (304) 720-6700.