Tuesday, July 25, 2017

Florida Boating Accidents and Alcohol


When most people think of Florida, they imagine a tropical paradise. Soft, white sand in between your toes, the hot summer sun sinking behind crisp, blue waves, and an ice cold margarita melting in your hand. As residents, we know this scene to be a part of our reality. Florida’s natural beauty, including its extensive coastline, is just one reason why our state is now the 3rd most populous in the US. And that doesn't even take into account the “snowbirds."

It's no wonder then that one of the best ways to appreciate that beauty of Florida is out on the water. Whether it’s by cruising around in a large catamaran or jumping wakes with a jetski, boating is about as Floridian as a glass of fresh-squeezed OJ. But just like the daily 3 PM thunderstorm, there can be some dark clouds on the horizon for boaters.

Over half of all boating accidents are related to the use of drugs or alcohol. Although many of us know the criminal repercussions such a combination may bring, fewer Floridians know the civil consequences that can occur. For example, did you know that such intoxication could prevent you from recovering any compensation in the event of an accident? Florida Statute § 768.36 reads as follows:

768.36 Alcohol or drug defense.
(1) As used in this section, the term:
(a) “Alcoholic beverage” means distilled spirits and any beverage that contains 0.5 percent or more alcohol by volume as determined in accordance with s. 561.01(4)(b).
(b) “Drug” means any chemical substance set forth in s. 877.111 or any substance controlled under chapter 893. The term does not include any drug or medication obtained pursuant to a prescription as defined in s. 893.02 which was taken in accordance with the prescription, or any medication that is authorized under state or federal law for general distribution and use without a prescription in treating human diseases, ailments, or injuries and that was taken in the recommended dosage.
(2) In any civil action, a plaintiff may not recover any damages for loss or injury to his or her person or property if the trier of fact finds that, at the time the plaintiff was injured:
(a) The plaintiff was under the influence of any alcoholic beverage or drug to the extent that the plaintiff’s normal faculties were impaired or the plaintiff had a blood or breath alcohol level of 0.08 percent or higher; and
(b) As a result of the influence of such alcoholic beverage or drug the plaintiff was more than 50 percent at fault for his or her own harm.

Moving beyond the definitions, we see the real teeth of the lurking legislation. In a civil case (such as a water skier suing another boater for running into him), the victim will be barred from recovering any compensation if they meet both factors:

1.      They are impaired by drugs or alcohol
2.      That influence caused them to be more that 50% at fault.

But let’s break those factors down a bit more. Looking to the statutory language of factor number one, we see two ways your Bud Light buddy can be deemed under the influence. The straightforward way is to determine the individual’s blood alcohol content, or BAC. There are many factors which may determine your BAC, some of which include:

·         the amount of alcohol consumed,
·         how quickly it was consumed,
·         how large a person is,
·         how much they’ve eaten recently,
·         if they are in the sun

There are numerous BAC calculators online (for example this BAC calculator), but most law enforcement uses a breathalyzer. Although you can refuse the breathalyzer, it may result in you facing a hefty fine. And it may not even get you out of Factor 1. As the statute states, it’s a BAC of .08 or intoxication to the extent the Plaintiff’s normal faculties were impaired.  This test is much more subjective, and will be evaluated, most of the time, at the scene of the accident.

Factor two will be evaluated at the end of the civil case. It requires the plaintiff to be more that 50% at fault for the injuries as a result of the influence. This determination will be made by the trier of fact in a civil case; i.e. the judge or jury. As such, it’s important to realize that you could get all the way to the end of a case, after years of litigation, only to find out you will get absolutely zero compensation. It should be noted that under Federal Rule of Evidence 403, and Florida Statute 90.403, the jury will not be able to consider this reality in determining how at fault you may be. There’s an inherent bias in knowing 49% will give you millions, while 51% will get you nothing. As such, they will be required to evaluate each parties responsibility based on their conduct, without this playing a role. This is also a subjective test.

Differences Between Boat and Car Insurance

Speaking of winning the battle but losing the war, all civil litigation should consider how a judgment will be collected. A million dollar verdict sounds great until you find out the defendant has less than a dollar to his name. After all, the doctor or boat mechanic will want cash, not a verdict form saying it may one day arrive.

As such, the common way to get compensation will be through insurance. Although many of us are familiar with this concept from our experience on the road, there are some important differences when you get out on the water. For example, there is not a requirement for all boats or their captains to carry insurance. Also, many marine vessel policies have geographical limits on their coverage. Go more than 100 miles out, and there’s no longer coverage. Go to the Bahamas: You’re covered! Go to Cuba: no way Jose! These are important factors to consider moving forward. The last thing you want is to sit through depositions, hearings, and trials just to find out you were 1 beer or 1 mile to deep to get any compensation.

Considering Minors, Alcohol, and Boats

Another factor to consider is the age of navigators out on the water. In the state of Florida, you are able to apply for your captain’s license at the age of 14. And as a Captain myself, I can tell you it’s not as hard as it should be. If an emergency situation presents itself out on the water, what you would do in the book isn’t what you may need to do in the boat. If that young teen makes the wrong move, due to lack of experience, you may be injured as a result. The question will then be, who pays for it? The child? The Parents?

We are seeing just such a situation panning out in the news currently. There was a very tragic event that occurred out of Jupiter, Florida, where two young boys went out alone on a boat. I’m sure when they left the dock, as many of us have, they were both excited and happy to be out on the water. Unfortunately, their trip ended with disaster, and two lives were lost. Now, after an investigation by the Florida Department of Law Enforcement, those families are going to Federal Court over that fateful trip.

When you’re injured out on the water, there are many factors to be considered. From the moment an accident occurs, to the collection after trial, it’s important to have an experienced personal injury attorney with you every step of the way. Dolman Law Group has the experienced lawyers in Clearwater, Tampa, and St. Pete that will fight for your right to compensation after your injuries; wherever they occur. Call them today at 727-451-6900 or contact them online for a free, no-risk consultation.