Court dismisses lawsuit caused by lifeguard’s kayak

January 26, 2010

Uncategorized

http://www.capemaycountyherald.com/article/57398-court%2Bsea%2Bisle%2Bnot%2Bliable%2Bbeachgoer%25E2%2580%2599s%2Bbroken%2Bleg

In Kelly v. Sea Isle City and Sea Isle City Beach Patrol, the Appellate Division of the Superior Court of New Jersey recently upheld a trial judge’s summary judgement dismissing a plaintiff’s personal injury action which arose when her leg was broken by an untethered rescue kayak on a public beach. 

While standing in shallow water with her back to a beach specially designated for surfboard use, Margaret Kelly was struck by an unmanned rescue kayak causing a fracture of her left tibia and fibula. The kayak was positioned slightly behind the lifeguard stand and was swept off the beach by a rogue wave. The lifeguard immediately waded into the surf and reached the kayak just as it struck the plaintiff.

The New Jersey State Board of Health, United States Lifeguarding Association and the South Jersey Lifeguard Chief’s Association require the presence on every beach of some form of lifesaving equipment such as a kayak. 

At issue was whether an untethered rescue kayak constituted an unreasonable risk in the circumstances. The plaintiff’s expert witness opined that kayaks are hazardous and that “good risk management principles would have dictated that the ocean kayaks either be removed from service on the beach or tethered to the lifeguard stations in some fashion.”

This witness is profoundly confused and mistaken. Risk management accounts for the frequency and exposure to hazards and the consequential severity of an interaction with those hazards. There is no risk management model or matrix anywhere which would support his testimony. The likelihood of a properly positioned untethered kayak being swept away from the beach and striking a person with sufficient force to cause serious injury is improbably remote. The consequences of a lifeguard taking the additional time required to either get a kayak located further away from the water’s edge or to disconnect a tethered kayak could potentially prove fatal for a person who is drowning.

The trial judge properly dismissed the expert witness’s testimony calling it “counterintuitive” and contrary to the principle purpose of providing lifeguards with “the instantaneous ability to attempt to save a life.”

In an unpublished decision, Axelrad J and Risher J of the appeals court reaffirmed the trial judge’s summary judgement ruling that the rescue kayaks were appropriately positioned and that the defendants’ conduct was not palpably unreasonable as required by the Tort Claims Act.

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2 Comments on “Court dismisses lawsuit caused by lifeguard’s kayak”

  1. River Kayaks Says:

    I wish people would just deal with their mistakes. Instead of trying to turn a profit.

    Reply

  2. Patrick Forrester Says:

    I wonder how much money was spent defending this frivolous law suit ?

    Many small business are going to be ruined just paying for legal fees to defend against kayak ( and everything else ) chasing attorneys.

    Reply

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