|
Kiteboarding can be
dangerous. (Duh…..) With the recent proliferation the sport has
seen, injuries, bans and inexperienced riders are on the rise. The
growth of kiteboarding is likely to skyrocket for years to come. The
extreme nature of the sport will inevitably lead to significant
national and international publicity; both for better and for worse.
What follows is an outline and discussion of how bad judgment and
poor riding decisions could wreak havoc on riders, dealers and
manufacturers in the future. In order to be successful in a
traditional negligence claim, four elements must be satisfied: Duty
of Care, Breach of that Duty, Causation, and Damages.
DUTY OF CARE
There is no question that a kiteboarder owes a duty of care. But
what, exactly, does that mean? Any time you are out in public you
owe a duty of care. You owe a duty of care when you walk down the
street not to injure other pedestrians. You owe a duty of care when
you operate a car, a motorcycle or a wave runner. The operation of a
large traction kite is no different. If, due to negligence or
recklessness, either causes damage to a bystander, the rider will
likely be held accountable. This duty of care extends to all
foreseeable victims within the "zone of danger." With a
traction kite involved, that zone of danger can amount to a
considerable area. If a rider were to lose his or her kite in a
sudden gust, this zone of danger could be anywhere from a few meters
to a few miles, depending on the sustained nature of the gust and
variables of the situation. Again, if the kite (or rider) contacts
and injures a bystander, regardless of proximity, the kiter will
likely be responsible. The standard of care a kiteboarder owes is
that of a Reasonably Prudent Person. The individual kiteboarder's
actions will be measured against what a Reasonably Prudent Person
would have done in similar circumstances. The standard is objective,
harsh, inflexible, and tends to favor plaintiffs in traditional
negligence lawsuits. The Reasonably Prudent Person would not go out
in even mi norly gusty wind; the Reasonably Prudent Person would
have the latest, most effective leash de-powering system implemented
on his equipment (pro riders and magazine photo-op persons take
note); the Reasonably Prudent Person would not kite within 200 feet
of other kiters, swimmers or shore; the Reasonably Prudent Person
would not launch upwind of any bystanders. The fact of the matter is
that if someone was injured by rider or kite (absent product
defect/failure), there will potentially be a presumption that the
rider did not act as a Reasonably Prudent Person.
BREACH OF DUTY
A rider loses his or her kite, it hits a bystander, the lines tangle
around that person's leg, the kite powers up and the bystander is
dragged into a sand dune where the lines become untangled. The
bystander has a broken ankle and severe lacerations around his legs.
The simple act of losing the kite and having it drag into the
bystander is the breach of duty. Thousands of similar, possible
situations should come to your mind. Use your imagination.
CAUSATION
This one is easy. You were flying a kite, you dropped it, it hit
someone. You caused an accident. The person injured and/or
bystander(s) identify you as the culprit.
DAMAGES
Think of damages as injuries. In a traditional negligence injury
suit, damages are broken down as follows: Medical expenses, lost
wages, pain and suffering, permanency and punitive. Medical expenses
include treatment, recovery and therapy expenses associated with the
injury. Lost wages cover the amount of time the victim was absent
from employment due to injury. Pain and suffering damages can be
highly uncertain; they are associated with the impact the injuries
have on the victim's lifestyle recovery period. Juries have been
known to award significant sums of money as pain and suffering. If
the victim is diagnosed with a permanent or partial disability by a
medical professional, expert witness testimony will likely be used
to determine the amount of loss. Certain jurisdictions still
implement "punitive damages." Punitive damages, the
lottery jackpot of the legal world, can be excessive and are meant
to punish the wrongdoer financially.
REPERCUSSIONS
The repercussions of a judgment against a kiteboarder could be
far-reaching. A kiter could end up owing an injured party a few
thousand dollars for a minor injury, to hundreds of thousands of
dollars (or more) in the event of significant injury or death
(recent reports from Germany indicate that a kiter was killed in a
kiteboarding accident, possibly as a consequence of another rider's
failure to use a leash). If you don't have the money, a judgment
order can be entered to garner your future wages directly, place a
lien on any property you own and/or ruin your credit rating for any
future property you might be planning to purchase.
GET SOME INSURANCE
The American Kitefliers Assoc iation (AKA—www.aka.kite.org) and
Professional Air Sports Association (PASA www.professionalairsports.org)
offer members kite insurance. You have insurance for your house,
car, life, motorcycle, boat, wave runner, etc., so why not get some
for your kite? Membership in either organizations is extremely
affordable ($30 and $55, respectively) and more than worth the
price. In addition to financial protection, insurance policies
provide you with legal protection; your insurance company is likely
obligated to appoint defense counsel to manage any lawsuit against
you.
DEALERS AND MANUFACTURERS
It has become a common theme among many dealers to sell large
traction kites to prospective kiteboarders with little or no
instruction. This laissez-faire approach to kite retailing may well
come back to haunt them. Consider the following scene: A customer
arrives at the store , tells the retailer he has kiteboarding
experience (e.g. they saw it on T.V. or video) and, without further
questioning, the retailer sells the kite "newbie" a 12.0
meter or 14.0 meter inflatable kite. Said kite newbie arrives on the
beach, rigs and launches his new kite, determined to get some good
"land practice." The only problem is that the winds are
gusty and side onshore, blowing 10 to 25 mph. Also, the beach is
crowded with families and the rider launches directly upwind of the
crowd, because, heck, no one told him any differently. The potential
for disaster in this scene is readily apparent. If the kiter does
injure any person(s), the finger of blame will next be extended
towards the dealer. If dealers and manufacturers (and also event
organizers) are unwilling to promote significant kite safety
measures (many have been less than enthusiastic) out of
responsibility and goodwill, perhaps they require some pocketbook
incentive. The Amer ican legal system is nothing if not ingenious.
Attorneys realized long ago that the higher you can climb up the
food chain, the more money you can obtain. If a person is injured
and successful in a lawsuit against a kiteboarder, they might get
some decent money. If a person is injured and the dealer and/or
manufacturer are included in the lawsuit, lawyers know they can
obtain a lot more money. No longer is the suit about an injured
person suing an ordinary-out-of- luck kiteboarding Joe, but about
insured dealer and the big, bad corporation who should have known
better. The dollar figures start to rise significantly. Kite
manufacturers and dealers have a great deal of incentive to actively
promote safe riding habits and guidelines.
RIDE ON
Whenever you ride, follow the Safe Kiteboarding Guidelines prepared
by the AKA, HKA, FKA, SDKA, SCKA, and other kiteboarding
associations. Preflight your gear. Ride with a safety leash. Make
certain that new kiters i n your area are getting instruction. Most
importantly, use common sense. If something seems like a bad idea,
assume that it is. This article illustrates the worst-case scenario.
Unfortunately, it also is representative of the very possible and
harsh realities to which riders should be made aware. Kiteboarding
is the most exciting, invigorating and amazing sport in the world.
Ride safely, promote safety and maintain access. Then, in the
future, we'll have ensured that we will be riding for decades to
come, like octogenarian Mick Jaggers still on tour, and some kid
will say "Man, that dude is way too old to kite!"
Copyright 2002, Brett Gibson
|
