Ignorance–Not So Bliss


Tassinari v. Key West Water Tours (Florida-UNPUBLISHED)
(Personal Watercraft Collision Victims Sue Alleging Violation of Florida Watercraft Statutes; Federal Court Finds Negligence Per Se; Waiver and Release Ineffective Regarding Violations of Statute)

The defendant watercraft rental agency rented a personal watercraft to the plaintiffs near Key West, Florida. The agency then took a group of personal watercraft renters, including the plaintiffs and third-party defendant Jeffrey Wilkerson, on a guided tour from its marina out to the area’s surrounding waters. During the tour, the watercraft operated by Wilkerson collided with the watercraft operated by plaintiffs, injuring the plaintiffs.

After a lawsuit was filed, the agency filed a motion for summary judgment arguing: (1) it was entitled to exoneration from liability because there was no evidence of negligence or unseaworthiness; (2) alternatively, it was entitled to have its liability limited to the value of the watercraft (approximately $3,000.00) because it was without privity or knowledge of any negligence or unseaworthiness; (3) Florida statutory law did not apply; and (4) the claim of one plaintiff claims was barred by the waiver and “hold harmless” provisions of the rental agreement that he signed. The plaintiffs also filed a motion for summary judgment, arguing that they were entitled to judgment because the agency violated certain Florida State statutes making the agency negligent per se. The plaintiffs also argue that if the agency is negligent per se, then the agency was not entitled to have its liability limited to the value of the watercraft.

In arguing that the rental agency was negligent per se, the plaintiff pointed to Florida State statutes enacted to protect the safety of personal watercraft renters. Florida Statute § 327.39 makes it unlawful for the owner of a personal watercraft to “authorize or knowingly permit the [watercraft] to be operated by any person who has not received instruction in the safe handling of personal watercraft, in compliance with rules established by the commission.” Florida Statute § 327.54 requires that the instruction in the safe handling of personal watercraft with a motor of 10 horsepower or greater be delivered by a person who has “successfully completed a boater safety course approved by the National Association of State Boating Law Administrators and this state.” As stated by the court, those statutes were enacted to protect boater safety, including the prevention of collisions. Further, those statutes were enacted, in part, to protect the safety of renters of watercraft. The plaintiffs were among the class of persons intended to be protected by the statutes.

Under Federal maritime law, negligence per se is embodied in what is called the “Pennsylvania Rule.” Under that rule,

. . . when a ship at the time of an allision is in actual violation of a statutory rule intended to prevent allisions, it is no more than a reasonable presumption that the fault, if not the sole cause, was at least a contributory cause of the disaster and in such a case the burden rests upon the ship of showing not merely that her fault might not have been one of the causes, or that it probably was not, but that it could not have been.

The rental agency argued that State law does not apply in a case brought under federal maritime law. As such, it contended that the “Pennsylvania Rule” did not apply to violations of Florida statutes. However, the court disagreed, finding that “[s]everal courts have applied the Pennsylvania rule to the violation of state statutes or local ordinances.” Moreover, the court noted that there was no direct conflict between the state statutes and federal maritime law.

Reviewing the facts, the court concluded that the defendant rental agency violated the Florida statutes designed to protect boater safety and prevent collisions by entrusting personal watercraft to persons who were not instructed in the safe handling of the personal watercraft as the law required. A co-owner of the agency indicated that he was not very familiar with the Florida statutes at issue, but the court noted that ignorance of the law was not a defense. Since the agency violated statutory rules intended to prevent boat collisions, the court presumed that agency’s fault caused the collision and the burden shifted to agency to show that its violation could not have caused the accident. The agency had not met that burden, and its liability was therefore presumed.

Under federal maritime law, the owner of a vessel is entitled to a limitation of his liability under the following circumstances: (1) the court determines what acts of negligence or conditions of unseaworthiness caused the accident; and (2) the court determines whether the ship owner had knowledge or privity of those same acts of negligence or conditions of unseaworthiness. The court explained that the rental agency knew, should have known, and could have discovered upon minimal investigation whether its tour guides, who they hired, had completed approved boater safety courses and whether the requirements of Florida law regarding proper safety and instruction were being met. Therefore, the agency was not entitled to a limitation of its liability to the value of the watercraft.

As to the waiver and “hold harmless” provisions in the rental agreement signed by one of the plaintiffs, the court concluded that it could not, as a matter of public policy, enforce the provisions to relieve the agency of liability for violation of the statutes. While the waiver and release provisions were sufficient to release the agency from liability for ordinary negligence, they were invalid as against public policy when applied to liability arising from violation of the statutes.

Therefore, the court denied the defendant’s motion for summary judgment. It also granted the plaintiffs’ motion for summary judgment regarding the defendant’s liability.

NOTE: Sports and recreation operations should be intimately familiar with all pertinent state and federal legislation that implicates their businesses. Statutes impose affirmative duties upon parties, and courts are reluctant to alleviate those duties via contract. Allegations of statutory violations have become a popular challenge to the enforceability of many waiver and release and express assumption of the risk agreements in the context of hazardous recreational activities. This has become particularly troublesome recently in California.

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