Yesterday, Corey Rosensteel looked at the potential criminal charges involved in Monday’s jet ski accident. Today, I’m going to examine the civil remedies available to the injured parties.  First, let’s briefly go over the facts again. Two men in their 20’s were riding jet skis on Lake Norman on Monday. According to officers, they were driving “erratically” and one crossed in front of the other, causing them to collide.  Both men were thrown from their jet skis and the top of one jet ski was cut off, along with the steering column and controls.  One man was seriously injured and airlifted to Carolinas Medical Center.  The other man was less seriously injured and taken to Lake Norman Regional Medical Center by ground transportation.  There was no information reported about how fast the two jet skis were going or whether there was alcohol involved.

Typically, in a negligence analysis, we have to examine each element of negligence to determine its applicability. The elements are 1) a duty to exercise reasonable care, 2) a breach of that duty, 3) factual and proximate causation, and 4) resulting damages. However, a plaintiff can allege that a person is negligent per se for violating a law meant to protect the public.

The North Carolina Boating Safety Act was enacted to “promote safety for persons and property in and connected with the use, operation, and equipment of vessels” on the water, so we can conclude that the law was meant to protect the public. Yesterday’s analysis determined that both men could be charged under G.S. 75A-10(a) which prohibits people from operating vessels, including jet skis, “in a reckless or negligent manner so as to endanger the life, limb, or property of any person.” Therefore, the men were negligent per se.

Once we have established negligence per se, our next step is to look at proximate causation. Were the injuries a natural, direct consequence of the negligence? Yes, when two men are diving jet skis negligently, it is a natural, direct consequence that the jet skis could crash and injure one or both of the riders.  So both men were negligent and caused the injuries, but that is not the end of our analysis.

Unfortunately, without other facts than those reported, the doctrine of contributory negligence would keep either man from collecting any damages. In most states, your own negligence will not keep you from receiving damages, but it might reduce the damages you receive. North Carolina, however, is one of a handful of states that employs a stricter standard called contributory negligence. Generally, if you are found to be contributorily negligent, you are barred from receiving any damages. So assuming both men were negligent, they would both be barred from receiving any damages.

What if we were to find out that one of the men had been drinking and was impaired at the time of the jet ski crash? An exception to rule of contributory negligence is if the defendant’s conduct is “willful or wanton.” If the defendant’s conduct is willful or wanton, then a plaintiff’s contributory negligence does not bar a plaintiff from receiving damages. North Carolina courts have determined in motor vehicle cases that:

Our case law as developed to this point reflects that the gross negligence issue has been confined to circumstances where at least one of three rather dynamic factors is present: (1) defendant is intoxicated, (2) defendant is driving at excessive speeds, or (3) defendant is engaged in a racing.

If one jet ski driver was intoxicated and the other’s conduct was merely negligent, then it could be argued that the intoxicated jet ski driver’s conduct was willful or wanton. In that case, the other jet ski driver’s mere negligence would not act to bar him from collecting damages.

One other issue to consider is the family purpose doctrine. We don’t have any facts to indicate that the jet skis were owned by someone other than the drivers, but what if it turned out that the driver we assumed to be intoxicated was driving a jet ski owned by his parents? In order to recover damages under the family purpose doctrine, North Carolina courts have held that the injured party must show that:

(1) the operator was a member of the family or household of the owner or person with control and was living in such person’s home;  (2) that the vehicle was owned, provided and maintained for the general use, pleasure and convenience of the family;  and (3) that the vehicle was being so used with the express or implied consent of the owner or person in control at the time of the accident.

Does it matter that the driver we have assumed to be intoxicated was in his 20’s for purposes of the family purpose doctrine? No, so long as the facts show the required elements. Courts have stated that “a person may be liable under the doctrine for damage caused by the negligence of spouse, parent, brother, sister, nephew, niece, grandchild or other of more remote kinship, or of one not of kin, provided he is a bona fide household member.”

So let’s assume some more facts that would make the family purpose doctrine applicable: 1) the jet ski driver we have assumed to be intoxicated was living in his parent’s home, 2) the jet ski was owned by the parents and was provided for the general use of the family members, and 3) the jet ski was being used by the son with the consent of the parents at the time of the accident. If these facts are true, then the other injured jet ski driver would be able to seek damages from the parents/owner under the family purpose doctrine. Of course, the application of the family purpose doctrine assumes that the injured jet ski driver is not barred from collecting damages under the doctrine of contributory negligence as we discussed above.

We had to assume a few facts to look at the various remedies available to the injured parties in Monday’s accident, and it is possible that other facts will emerge which would change our analysis. If you have been injured in an accident, it is important to look at all the facts and contact an attorney at Rosensteel Fleishman Car Accident & Injury Lawyers (704) 714-1450 to discuss your options.