A simple ride on a lake " or not?
Special to the Sierra Sun
The weather in Gilroy was fair and visibility good. There was a moderate wind, which made Coyote Lake a bit choppy.
Anthony and Rachael went for a ride on Anthony’s Polaris SLX personal watercraft (Polaris). Cu Van, family members and friends were also at Coyote Lake with their Yamaha WaveRunner (Yamaha).
Both crafts were two seaters. The Yamaha has a “visibility spout” that generates a 10-foot spray of water to make it more visible to other watercraft users. And I always thought that was just for show.
Cu Van was traveling about 25 mph on the Yamaha following the posted counterclockwise traffic pattern; Anthony and Rachael were traveling five to 10 mph on the Polaris, but Anthony suddenly cut across the lake in a clockwise pattern.
Rachael, seated behind Anthony, was badly injured when Cu Van’s Yamaha rode up on the starboard stern of the Polaris impacting her torso, forcing her into the steering column.
According to the ranger, Anthony and Rachael on the Polaris were at fault.
You faithful readers, if any, know from reading the Pulitzer Prize winning Law Review that sports participants are generally barred from suing for their injuries because they “assume the risk” of harm inherent in the sport itself-as long as the person being sued did not increase the risk of harm to the injured person.
The assumption of risk doctrine has been recognized in almost every sporting activity, including: waterskiing, intercollegiate basketball, swimming, snow skiing, off-roading, skateboarding, ice skating, bicycle riding, river rafting, rock climbing, baseball, football, sport fishing, “tubing” behind a motorboat, jet skiing, weight lifting, golf, active crew member on a sailboat, and personal watercraft users.
Wait a minute, what’s this case all about if personal watercraft users have already been ruled by the courts to not be able to sue because they assume the risk of getting hurt on a personal watercraft? Hold that question.
Interestingly, the assumption-of-risk doctrine was found not to apply where the driver of a boat took passengers out on the boat for “a simple ride around the lake” when one of the passengers was injured. Pleasure boating was ruled not enough of a “sporting activity” as leisure boating is “benign and does not require physical exertion or skill.” Especially if the boat passenger is not an active co-participant with the driver of the pleasure boat.
So what this case is about is whether Rachael the passenger is barred from suing because she assumed the risk of riding on a personal watercraft. Rachael argued she was a mere passive passenger on the Polaris and not a co-participant. Also that she and Anthony were only traveling five to 10 mph, so they were more like the pleasure boat ” a safe activity, not an active sport where she assumed the risk of harm.
Rachael lost on both counts. The court found that a personal watercraft is not like a cruising boat, so it is subject to the assumption of the risk doctrine; and that doctrine applies to passengers as well as the driver.
As the court said, “Unlike the benign activity of riding in a boat, riding a personal watercraft requires physical exertion and balance by the passenger to hold onto the operator or grips or handles on the vessel to avoid being thrown off or rolling off of the craft.”
And, neither Anthony nor Cu Van’s conduct was reckless or intentional or outside the range of ordinary activity involved in using personal watercraft. Rachael loses, she assumed the risk of her injuries, even as a passenger.
Seems like a good decision.