Boating and ATV Injuries in Ohio: Who Is Responsible?

Published June 6, 2017 · Injury Law Basics

Every June our phones start to ring with a different kind of injury call. A teenager thrown from an all-purpose vehicle on a neighbor's farm in Greene County. A woman whose leg was crushed between a pontoon and a dock at Caesar Creek. A father hit by a personal watercraft while swimming near a sandbar on the Great Miami.

What these callers usually have in common is hesitation. The person driving the boat or the four-wheeler was a friend, a brother-in-law, a neighbor. Nobody wants to "sue a friend." So before anything else, here is the most important point in this post: an injury on the water or on an ATV is a negligence claim like any other, and in nearly every case it is an insurance company, not your friend, that pays it.

The water is not lawless: an operator's duties

Ohio treats a boat operator much like a driver. R.C. 1547.07 prohibits operating a vessel recklessly or in an unsafe manner, and lists conduct that qualifies, such as running so close to another boat or a towed skier that someone has to swerve to avoid a collision, jumping another boat's wake too closely, and weaving through congested traffic. R.C. 1547.11 makes it a crime to operate or be in physical control of a vessel underway while under the influence of alcohol or drugs, the boating version of an OVI.

Those rules matter in a civil case for the same reason traffic laws matter in a car crash. When an operator breaks a safety rule written to protect people on the water, that violation is strong evidence of negligence. When the operator was drinking, it can also open the door to punitive damages.

The most common boating injuries we see come from a handful of mistakes:

• Speed and inattention in crowded coves, near swimmers, and around docks and launch ramps.
• Alcohol. Long, hot days on a boat and a cooler full of beer are a dangerous combination, and the operator's judgment is the first thing to go.
• Towing injuries to tubers and skiers, often caused by sharp turns, operating too near other boats, or no spotter watching the rider.
• Propeller and swim-platform injuries when an operator starts or backs the engine without confirming that swimmers are clear.
• Personal watercraft operated by inexperienced riders who do not understand that the craft cannot steer without throttle.

Rental companies and marinas

When the boat or personal watercraft was rented, the rental business may share responsibility. A livery that hands keys to an obviously intoxicated customer, skips basic instruction, or rents out equipment with a stuck throttle or failed kill switch can be liable for the harm that follows. Marinas and campgrounds also owe ordinary premises-safety duties for docks, ramps, and walkways. Rental paperwork often includes a waiver; whether it holds up depends on its wording and on who signed it, and it rarely binds an injured passenger or bystander who never signed anything.

ATVs and off-highway vehicles

All-purpose vehicles (the four-wheelers and side-by-sides Ohio law calls "all-purpose vehicles") and dirt bikes are governed by R.C. Chapter 4519. R.C. 4519.40 applies the ordinary traffic laws of Chapters 4511 and 4549 to these machines, then adds specific prohibitions, including riding on private property without the owner's permission.

ATV injuries tend to follow familiar patterns: rollovers on hills and ditches, collisions at blind crests on trails, children or teenagers riding machines too powerful for them, extra passengers on vehicles designed for one, and riding after dark or after drinking. Responsibility can rest with:

• The driver, for speed, impairment, or reckless riding.
• The owner who lends the machine to someone too young or inexperienced to handle it, a theory called negligent entrustment.
• The property owner, when a known hazard such as a cable strung across a trail or a hidden washout causes the crash.
• The manufacturer or dealer, when a defect such as a failed brake, throttle, or roll-over protection is to blame.

Passengers: you have rights against your own driver

Passengers are often hurt the worst and are the most reluctant to make a claim. If you were riding on the boat or sitting behind the driver of the four-wheeler, you did nothing to cause the crash. Ohio law lets you recover from the operator whose carelessness hurt you, just as a car passenger can, a subject I covered in a post on passenger rights. The claim is presented to the operator's insurer, and in most cases the insurance company handles the defense and pays any settlement.

Which insurance pays?

This is where boating and ATV cases differ most from car crashes, and where an early review of the policies pays off.

• Boat or watercraft policies. Many owners carry separate watercraft coverage with liability limits. Larger boats are almost always insured this way.
• Homeowner's policies. Some homeowner's policies cover liability for small boats or for ATVs used on the insured's own property, and many exclude them, or cover them only in narrow situations. The language varies from company to company, and courts read the exclusions closely, as I explained in a post about "other premises" exclusions and an ATV injury.
• Auto policies generally do not cover boats or off-road machines, but medical-payments and some other coverages should be checked rather than assumed away.
• Umbrella policies frequently sit over homeowner's and watercraft coverage and can add $1 million or more. See my post on finding every available dollar of coverage.

When the operator is family

The hardest calls involve a spouse, parent, or sibling at the controls. Two things are worth knowing. First, a claim against a family member's insurance is not an attack on that person; most families who go through it come out with medical bills paid and relationships intact. Second, policies often contain household or "family member" exclusions, and whose policy applies can turn on who lives where. The rules about relatives in the same household are explained in my post on resident-relative coverage. Do not assume you have no claim until a lawyer has read the actual policy language.

Steps to take after a boating or ATV injury

1. Get medical care and keep every record. Propeller, crush, and head injuries are often worse than they first appear.
2. Report it. Serious boating injuries should be reported to the authorities who patrol that water; ask that a report be made and get the officer's name.
3. Identify the machine and the people. Photograph the boat's registration numbers or the ATV's make and model, and collect names and phone numbers of everyone present.
4. Preserve the vehicle. Ask that the boat or ATV not be repaired or sold until it can be inspected, especially if a mechanical failure is suspected.
5. Ask about insurance and write down every company name you hear.
6. Do not give a recorded statement to any insurer before talking with a lawyer.

What this means for you

A day at the lake or on the trails should not end with you carrying the cost of someone else's carelessness. Ohio's boating and off-highway vehicle laws set real safety rules, the people and businesses who break them are responsible, and there is usually insurance behind them. Our personal injury practice handles these cases throughout the Dayton area, and the first step is simply finding out which policies apply.