The Plaintiff suffered serious injuries while wakeboarding. The Plaintiff and her then boyfriend and three colleagues hired a boat owned by the 1st Defendant, and a coxswain named as the 2nd Defendant. At lunch, the Plaintiff drank 2 cans of beer and the coxswain also drank some beer. The Plaintiff wakeboarded once, and then she had a slight headache. After recovery, the Plaintiff wakeboarded the second time, when the accident occurred and serious injury ensued. The Plaintiff sued the owner of the boat for vicarious liability and negligence in failing to instruct the coxswain on how to perform his job safely, and the coxswain for negligence which caused the accident and her injuries. An interlocutory judgment in default was entered against the owner.
The Court found that the coxswain did not act negligently and hence was not liable to the Plaintiff for the injuries. There was no evidence that the coxswain was speeding or that the coxswain’s control of the boat was adversely affected under the influence of the alcohol. Since the Plaintiff’s then boyfriend (and the Plaintiff accepted to) instructed a coxswain only and not a wakeboarding instructor, the coxswain was not under any duty to provide sufficient personal safety equipment. With the Plaintiff having recovered from her earlier headache, there was no evidence that the coxswain knew that the Plaintiff was unfit for wakeboarding. The Court also found that the coxswain was not a duty or had the power to prevent the Plaintiff from wakeboarding. Since the sport of wakeboarding is commonly known as inherently risky, the mere occurrence of the accident alone would not be sufficient for an inference that the coxswain was negligent. Therefore, the Court concluded that the coxswain was not negligent on a balance of probabilities.
As for the claim of vicarious liability against the owner, since his employee, the coxswain, was found not to be negligent, the owner would not be found vicariously liable. It also appears that the Court considered the negligence arguments against the owner were in substance the same as the ones against the coxswain. Hence, the claim against the owner may likely fail too.
This case reiterates the principle that the employee has to be found negligent so that there is a basis for vicarious liability to set in. Also, the court, in holding that the coxswain was not under a duty to prevent wakeboarders from the activities after drinking, seems to place quite substantial responsibility on wakeboarders for taking care of their own safety. Wakeboarders should therefore ensure they are properly insured before riding a wakeboard.