Water on My Boat
Q: On the swim platform of my boat, while it was docked at a marina, I slipped on some funny-colored water. It turned out to be overflow water from an artesian well system. The water had been discharged by a pipe, right onto my boat. I suppose I should sue the owner of the marina. Should I also sue the contractor that constructed the artesian well system? What about the subcontractor that installed the pipe?
A: The contractor will argue, “Don’t sue us. Sue the subcontractor.” The contractor will contend that it did not control the subcontractor’s work. One who employs an independent contractor has no right to control the manner in which the work is to be done. The risk of loss is more sensibly placed on the independent contractor. Control is the critical factor.
The owner of the marina will argue that the condition of the water flowing from the pipe was not inherently dangerous. Indeed, it was open and obvious. Granted, the owner had a duty to maintain the marina in a reasonably safe condition. Nevertheless, it had no duty to protect or warn against an open and obvious condition, which as a matter of law was not inherently dangerous. The owner may also argue that you had assumed a risk inherent in the recreational activity of boating.
Whether the slippery water was open and obvious cannot be divorced from the surrounding circumstances. Was the condition in any way obscured? For some acceptable reason, were you distracted? The owner may call this water a condition that was ordinarily apparent to a person making reasonable use of his senses. In the hands of your attorney, let us hope the jury will call the water a trap for the unwary.
By: Scott Baron,
Attorney at Law Advertorial
The law responds to changed conditions; exceptions and variations abound. Here, the information is general; always seek out competent counsel. This article shall not be construed as legal advice.
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