Water Sports and Recreational Liability Issues (Come on in, the Water's Fine!)[dagger]

I.

INTRODUCTION

Taking a vacation is a quintessential American activity. Unfortunately, when vacationing tourists get hurt or injured, they engage in another quintessential American activity-litigation. Lawsuits over water sports and recreational liability issues have proliferated over the past decades. Specifically, many people participate in ocean and water activities. They are also suing the persons involved in providing such activities for the injuries suffered. Many people also engage in recreational activities such as horseback riding, golfing, hiking, and attending sports events. These can also lead to injuries and lawsuits. These types of lawsuits are increasingly common in Hawaii and across the nation. Hawaii's law relating to ocean sports and recreational liability tends to reflect the general law of other states when dealing with similar situations. It may foreshadow new developments in the law applicable to other jurisdictions. This article will discuss some of the different types of cases that arise, various legal theories propounded by plaintiffs, common defenses asserted by defendants, statutory protections afforded by legislatures, special considerations for different types of defendants, and strategies in defending such cases.

As an example, lawsuits stemming from injuries suffered due to ocean waves are common in Hawaii. The majority involve catastrophic injuries that stem from an injured person's attempts to catch ocean waves while bodysurfing or boogie boarding. In order to catch a wave, bodysurfers purposefully position themselves in front of waves in order to catch the waves and are propelled forward or down by the force of the waves. Bodysurfers risk injury each time as they surrender complete control over their bodies, since there is no way to predict the waves' movements. When bodysurfers are flipped by waves, they are especially vulnerable to serious injury or death because their bodies may land on compacted sand along the ocean floor. Injuries and lawsuits also arise when persons are in the ocean and are thrown about by breaking waves. Other types of ocean liability cases involve persons injured due to diving from seawalls into shallow or rocky areas; swimmers who are caught in riptides, undertows, or other ocean currents; persons injured while SCUBA diving; persons injured while parasailing over the ocean; persons injured by boats or other marine vessels; and persons injured while waterskiing.

Plaintiffs in such cases often claim that they were unaware of the dangers of the ocean and the harsh power of breaking waves, and that they should have been warned or protected by the hotels and landowners near to where the accident occurred. Many plaintiffs in such cases claim that they were lulled into a false sense of security as to the dangers of the ocean by advertising materials showing calm, gentle waves. In Hawaii, due to the configuration of the beaches and the power of the waves, even small waves can break in a powerful manner directly on the shore. Plaintiffs usually claim that such waves constitute a hidden or latent danger of which they should have been warned.

Other types of recreational liability cases occur when persons are injured in a variety of leisure activities such as horseback riding, playing golf, riding all terrain vehicles (ATVs), hiking in the mountains or on trails, and riding bicycles. As in the ocean liability cases, the plaintiffs often seek to paint a picture that they were unsuspecting innocents who were not informed of any latent or hidden dangers, and were given insufficient instruction or warnings as to potential problems. Plaintiffs in such cases generally claim that they relied upon a hotel or activity vendor, who had superior knowledge and control, so as to provide proper safety precautions.

In general, a successful defense of these cases involves many different approaches and factors. In many cases, a defendant starts off with the adverse presumption that it has superior knowledge and control of the situation and of potential hazards. Consequently, the defense will want to show that the defendant proactively attempted to address the risks involved, formulated some type of response or plan to foster safety, and provided warnings or instructions to the plaintiffs. Sometimes, the risks and potential dangers of an activity are either inherent or so open and obvious that no warnings are required. Oftentimes, plaintiffs can be shown to have substantial knowledge and appreciation of the risks and dangers, but to have failed to properly protect themselves. The defense will want to investigate and assert the existence of any waivers or releases, and attempt to show that they were knowingly and intentionally given by the plaintiffs. The defense will also want to conduct research to see if there are specific protections or immunities provided by statute that may be asserted.

II.

TYPICAL LEGAL LIABILITY THEORIES

The most common legal liability theories asserted by plaintiffs in these types of actions include negligence, duty to warn, and attractive nuisance.