Legal Question in Personal Injury in California
Good day,
To begin with, and for full disclosure, I want to mention that I am currently represented in the following case.
June 1, 2014: I rented a "by the hour" boat out of a local marina.
I did sign a liability release.
My argument is that a liability release, no matter how it is worded, does not release the boat rental company from carelessness and negligence on their part.
Upon renting the boat, myself and 3 companions walked onto the dock and came upon a dock worker standing at the life vest station. The dock worker said: "go ahead and get on the boat and I'll be over in a minute". We walked over to the boat and I looked back at the dock worker and he was still standing at the life vest station. My other 3 companions were my wife, my sister and my cousin. I decided to enter the boat first, so that I could assist the other 3 boaters. As I stepped into the boat, it moved away from the dock,it became apparent that the boat was not securely tied to the dock and there was no railing to hold onto. Since the dock worker made no attempt to assist us, I fell to the deck, tore the tendons in both knees, had multiple surgeries and spent 2 months in the hospital.
I incurred about $1 million in medical bills. Again, with full disclosure, I am a Medicare patient, so any settlement may trigger Medicare to seek reimbursement. I believe they feel their reimbursement should be $125,000.
The TPA on the claim is currently offering $25,000 to settle the claim. I am displeased with that offer, but my current representation states that if I want to pursue this further I should seek a second opinion.
Am I dead in the water, (pun intended), due to the fact that I signed a liability release? Should I take the $25,000? Should I seek an attorney willing to file?
Thank you.
3 Answers from Attorneys
Sorry to read about your ordeal. It is difficult to opine about the proposed settlement without knowing more details.
Was the boat secured at all, or did the line have a lot of slack? How would one determine whether or not the rental agency was negligent in the way the boat was secured to the dock? Could the guy on the dock have prevented this accident? These are just a few questions from many which must be answered, and unfortunately you might have to retain an expert to help make these determinations.
Litigation is a very expensive venture, and you must have the right attorney. Either your attorney did a reasonable analysis and concluded that it's more feasible to settle, or he's not a litigating attorney. Please feel free to contact my office next Monday at 1-877-505-injury to set up a free consultation.
I understand your injuries are severe, and in such cases liability should be pursued vigorously. Even if it's an uphill battle which you ultimately expect you will likely lose in the end, it's still worth it to push as far as you can on serious injury cases. Quitting early only makes sense when the damages are low. Based on that, it does seem like your current lawyer is being too passive.
That being said, you should understand that the liability in your case probably IS an uphill battle! Liability releases are usually upheld. It's very common to have people released from exactly what you are describing: their negligence and carelessness. The key is whether the kind of carelessness involved is a "foreseeable risk" inherent with the activity. Take a look at the case Fisher v. Olde Towne Tours LLC: https://scholar.google.com/scholar_case?case=1930958314840105384&q="liability+waiver"+boat&hl=en&as_sdt=4,5
There are ways to fight these waivers and SOMETIMES you can win, but it depends very much on the language of the waiver, so I can't say what your odds are (other than that they're probably long odds). From your injuries, however, I feel confident in saying that it's worth fighting very hard, and if your current lawyer hasn't shown that kind of moxie, you might look elsewhere. If you want to discuss the matter further, you can reach me at [email protected]
Sporting activities are done at your own risk which is compounded by the signed release. That being said I also would want to know if anyone observed the slack line.
Case law in sporting activities relate to what is called primary assumption of the risk which as I noted above protects the business owner. However, where the business owner increases the risk of harm this may establish secondary assumption of the risk which creates liability against the rental owner. You have the burden of proving the slack line, but I think the failure of having someone (an employee or the owner)to assist the participants onto the boat also increased their secondary assumption of the risk/liability. I agree that at this juncture it is very risky to go to trial as jurors may agree with the owner, but there is potential liability with significant injuries/damages suffered. You may want to fight on short of trial based on the above. Good luck R. Worth [email protected]
Related Questions & Answers
Looking for something else?
10,200 active attorneys ready to answer your legal questions today.
Featured Attorneys
Earn additional revenue and grow your business.
