We often write about personal watercraft rental and tour companies liability. Unlike most other rental businesses, the Florida legislator and Florida’s Fish and Wildlife Conservation Commission have imposed certain regulations requiring these companies to provide specific instruction to their customers before allowing them on the water. Penalties for violating such statutes including a finding that any pre-injury release and wavier of liability signed by the renter to be null and void and a finding that the rental company is presumably at fault for the accident. Recently, a Federal Court was asked to rule as a matter of law whether a personal watercraft rental and tour company’s alleged statutory violations rendered its pre-injury release and waiver of liability unenforceable and whether the company was to be presumed at fault for the accident resulting in two of its customers to be air-lifted to the hospital.

A mother and daughter paid for a Yamaha WaveRunner tour around Key West conducted by Sunset Waverunner Tours, Inc. Shortly after leaving the starting point, the daughter, with her mother in the passenger seat, drove the WaveRunner into a mangrove forest. The two suffered significant personal njuries and were medevaced to Jackson Memorial Hospital in Miami.

From this accident, the mother and daughter filed a two-count lawsuit against Sunset Waverunner Tours. The first count alleged negligence and the second count alleged negligence per se for violating Florida boat livery statutes which require certain safety instructions, by a person with the rental company who has completed a boater’s safety course as well as to provide the two an on-the-water proficiency demonstration. The tour operator filed a motion for summary judgment seeking the court to dismiss the lawsuit based upon a pre-injury release and waiver of liability signed the mother and daughter. The mother and daughter opposed the motion by arguing the release and waiver is null and void for public policy reasons because a livery cannot contract out of its liability to provide statutorily required safety instruction. They also filed their own summary motion arguing that Sunset Waverunner Tours’ violation of the Florida boat livery statute places the presumption that it is liable for the accident and the company can only rebut the presumption if it proves that its violation could not be a cause of the accident. The tour company opposed arguing that it did comply with the applicable livery statute.

In order to enter summary judgment, a court must decide whether the law allows for relief and the undisputed facts, when applied to the law, allow the case to be taken from the jury. The court accepted the legal principal that not only a personal watercraft rental and tour company’s failure to follow a safety statute null and voids a pre-injury release but also places a presumption of fault upon the company. The court, however, when reviewing all the evidence presented, found there were issues of fact precluding a finding that Sunset Waverunner Tours violated the Florida livery statute. It found that a jury should make the factual determination as to whether the company’s employee who provided the instruction passed the required boater’s safety course and whether the instruction and on-the-water demonstration provided was adequate. By denying the motions for summary judgment, the court allowed the claim to proceed and go to the jury.