Meetings can be scheduled by appointment at various locations for the convenience of our clients. If you can't come to us, we'll come to you.
Baltimore, MD
Tysons Corner, VA
By Appointment Only
Bethesda, MD
Washington, DC

Victim of Maryland Boating Accident May Face Legal Challenges and Affirmative Defenses

Posted on: September 6, 2018

The sole survivor of a boating accident that killed three others during a 2016 fishing tournament is now suing the organizer of the event, according to a May 18, 2018 article in Baltimore’s The Capital Gazette. The lawsuit, filed in federal court due to its maritime subject matter, seeks $10 million in damages for injuries the victim suffered due to multiple failures by tournament organizers. Among other allegations, the plaintiff claims that the defendant failed to protect boaters by canceling the event due to inclement weather. The victim and his three friends were thrown into the freezing waters of the Potomac River when their boat capsized in huge waves.

According to the complaint, the claimant sustained physical injuries and psychological trauma from the tournament organizer’s breach. He was diagnosed with post-traumatic stress disorder, has undergone back surgery, and suffers from other injuries. His claim also alleges lost wages, loss of society, and loss of consortium. On its surface, the lawsuit appears to favor the plaintiff.

However, the defendant’s lawyer filed a response in court stating multiple affirmative defenses stemming from the circumstances, some of which may be difficult to overcome by the plaintiff. The case is an example of how the responsible party in a lawsuit based upon negligence will resort to any and all tactics to defend its own interests. It is critical to retain an experienced Baltimore County, MD personal injury attorney to aggressively pursue your rights, even in the face of potential defenses.

Assumption of Risk

It is likely that the defendant in the Maryland boating accident will claim that the victim assumed the risk of being injured when he voluntarily and willfully decided to participate in the fishing tournament. He had to realize the dangers involved with being on a boat generally; he is also presumed to know that wind, rain, and other foul weather conditions could kick up at any time, especially in November when the accident occurred.

The assumption of risk defense is often raised against claims involving sports and physical activities where the core concept of competition increases the threat of injuries. Still, a party alleging that the plaintiff assumed the risk must demonstrate that the harm was inherent in the activity. The defendant could prevail by arguing that falling overboard due to a capsized boat is a danger that is inherent in a fishing competition.

Contributory Versus Comparative Negligence

Maryland still adheres to a harsh rule in negligence-based cases, which holds that a claimant cannot recover any compensation if the injuries resulted in any small way from his or her own conduct. Even a slight fraction of fault on behalf of the plaintiff eliminates any chance of recovery if the defendant proves contributory negligence as an affirmative defense.

However, recall that the boating accident case occurred on navigable waters of a US state, so federal maritime laws apply. Fortunately for the boating accident victim, maritime law allows for comparative fault, so his own negligence is not a complete bar to recovery. Still, his damages may be reduced by the percentage of fault attributable to him, if any.

Fault in “Act of God” Incidents

In contracts for insurance coverage, the policy will often state that the insurer does not cover damages due to “Acts of God.” Generally, this term refers to losses caused by:

  • Events that cannot be avoided even through the highest level of caution;
  • Incidents that occur despite all possible preventative measures; and,
  • Natural causes and natural disasters, such as hurricanes, tornadoes, hail, flooding, earthquakes, and other events.

Since the defendant in the boating accident case carries insurance coverage, it is likely that the company will present an affirmative defense alleging that the incident occurred due to an Act of God. The issue may come down to whether a human could be considered blameworthy, even indirectly.

Other Potential Defenses

In addition, there are other affirmative defenses a plaintiff may face in a personal injury claim, including:

Statute of Limitations: Under federal maritime law, the time limit for filing a personal injury suit is three years. The clock starts running as of the date that the injury-causing accident occurred. If a plaintiff does not sue in court before the statute of limitations expires, he or she is prohibited from ever recovering compensation. The statute of limitations is not an issue for the claimant in the Maryland boating accident case because the incident happened in November 2016 and the lawsuit was filed in 2018.

However, it is important to be mindful of the statute of limitations in any case: This rule can act as a complete bar to recovery of you do not file a lawsuit within this time frame. Note that filing a claim with an insurance company does not qualify as filing a lawsuit in court.

Failure to Mitigate Damages: Though not officially a defense, this concept may reduce the amount a plaintiff can recover when his or her actions make the injuries worse. Most often, the failure to mitigate damages is raised by a defendant when the claimant delayed in seeking medical treatment for injuries. A victim must take reasonable measures to mitigate, i.e., minimize, the impact of the injuries by going to the emergency room, visiting an urgent care center, or otherwise getting medical attention.

Another example is when the victim does not follow a healthcare provider’s orders for recovering from his or her injuries. Through their own actions, claimants may exacerbate their medical conditions, making the pain and suffering worse, increasing the costs of treatment, missing out on more work, and otherwise impacting their quality of life.

The recent Maryland boating accident serves as an example of how affirmative defenses work in a personal injury case. You may be able to prove the essential elements of a negligence case, including duty, breach, causation, and damages; however, defendants also get the chance to present evidence and arguments to protect their own interests. A good defense strategy may significantly reduce your compensation or prevent you from recovering at all.

For more information on maritime accidents, (boating accidents) other personal injury cases, please contact our office. We can schedule a no-cost, no-obligation consultation to review your claim.


Read Some of Our Recent Client Reviews!

Ashley Poole
Ashley Poole
01:05 08 Nov 18
Attorney Bob Katz and his staff are highly recommend. Customer Service was impeccable. Every phone call and email was responded to in a timely manner. Natalie Ulrich was very professional, helpful and thorough every step of the way, which resulted in a stress free experience. I will recommend this law firm to family and friends!
Tania Jefferson
Tania Jefferson
17:51 06 Nov 18
Customer service was A+. All questions were answered promptly and information was shared appropriately. Concerns were addressed and I was made aware of all updates on my case. I would whole heartedly recommend this firm.
edward Robinson
edward Robinson
03:00 06 Nov 18
I highly recommend Mr. Katz and his staff. They were friendly, compassionate and really showed they had their clients best interest at heart. There was never a time you called them they didn't respond or returned your calls and answer your questions.They took the worry, and stress and turn it into reassurance. They were diligent and just down right professional. My wife and I really thank God for allowing us to cross paths on a professional business experience. Ms. Rebecca Slatery is the most courteous, compassionate soul. We wish you all peace, love and blessings. Thank you for your service.
20:11 31 Oct 18
I decided to use this firm again for an accident I was involved in. As always they were professional and caring. Rebecca slattery was the paralegal assigned to my case and she was professional and kept me up to date with everything. I would recommend this firm to friends and family!
Cedric Jones
Cedric Jones
19:04 23 Oct 18
Erica Z is amazing with keeping you to date and staying communication with you during the entire process. Meghan Young was a wonderful lawyer made me feel extremely comfortable in the courtroom and she also fights for the best possible outcome for you..GREAT LAW FIRM
Nguyen Le
Nguyen Le
16:44 23 Oct 18
It was a great experience being taken care of by Rebecca Slattery and Meghan Young, they helped me resolve my case and were very courteous and professional. Highly recommend working with this law firm
Soun Gil
Soun Gil
21:35 17 Oct 18
Ms. Park helped me out through my whole accident process. She took her time with me and made sure I understood everything. I would recommend to her all of my friends if they were to get into any accident.
Yejin Chung
Yejin Chung
15:40 12 Oct 18
I highly recommend. My family’s experience with this office was great. Christina Franetovich was very helpful throughout the whole process, which made this experience less stressful. She responded to my questions immediately and made sure that I understood everything.
Claudette Pope
Claudette Pope
13:18 30 Aug 18
I was referred to Gordon & feindblatt in 2014 when my family was in an accident, Mr. Katz personally consulted with me by phone and he was very polite and professional, Mr. Carpuso, one of the litigation attorneys even came out to our home and went over our case with us, he made sure all of our needs was addressed and before he left our home that day I felt like we were old friends. that case was settled and I was very pleased, I have used this law firm twice since then and the results are always the same, I have nothing but great experiences with Gordon & Feindblatt the staff are courteous and professional and they get the job done but the one in particular that really stood out for me is Rebecca Slattery, she is truly a gem, she is so compassionate, she walked me through the entire process, she even checked up on me from time to time just to see how I was feeling and I really appreciated her kindness. I will use this law firm again and again for any future legal issue that may arise and I would highly recommend Gordon & Fiendblatt to friends, family and co-workers.
02:32 04 Aug 18
The lawyer who was initially handling my case parted ways with the company and I was assigned a new lawyer. This new lawyer was amazing! Christina Franetovich made me feel secure by double checking all the facts and notes in my case so that I was not worried during this transition. I was on disability from an a different accident while she was finalizing my case, and I had called and hounded her about the time frame of my settlement very frequently to the point that I felt guilty for calling so much. Christina was very sympathetic to my situation and assured me that she would do everything in her power to make sure the situation would be resolved quickly. She actually finalized my case before the time frame she had given me, was always very courteous and knowledgable on the phone, and I feel extremely lucky that she ended up handling my case because the previous lawyer was not as amazing with customer service as Christina. She also has a way of making you feel comfortable and builds incredible rapport quickly. I am going to highly recommend her to my friends and family. Thank you Christina!!!
Richard Hose
Richard Hose
02:26 27 Jun 18
On Feb 23, 2017 I was in a bad accident on the JFX. I had been rear end by another driver. Almost immediately I felt pressured by the other drivers insurance. Everything from wanting a recorded statement; to failing to acknowledge responsibility. No one would answer my questions, nor would anyone take responsibility. I was frustrated and overwhelmed with everyone from the towing company, to the repair shop, to the insurance company nightmare I just entered. I reached out to Attorney Robert Katz and I was assured they were here to help. He provided with some much needed information, and told me not to worry, Sarah his Paralegal would be in touch to help get things moving. Sarah reached out as expected and explained their process and walked me through what my expectations would be. She as well assured me they were here to help me navigate the obstacles. What Sarah really did was so much more than help. She took the stress and burden off my shoulders and assumed ownership for handling everything on my behalf. I knew what to expect, and I received regular updates throughout the entire process. Honestly, I received so much more than I anticipated. Some of the most frustrating items to chase after are medical records and hospital charges. While I was trying to recall events and timelines, she had already obtained my records and information. She made this process so painless. I truly cannot say enough about the exceptional service she provided. Many thanks for all your help. Sincerely, Richard Hose
Andrea Barajas
Andrea Barajas
15:13 16 May 18
My husband and I were in a car accident in August 2017. We contacted Bob Katz team for legal representation in our case. Kristen A. Turner was our paralegal and she was excellent. It took 9 months for us to receive our settlement and Kristen kept us updated throughout this entire process. She was very kind and patient as I happened to have several questions. She always answered my questions promptly and thoroughly. I would highly recommend this firm and Kristen if you are in need of legal assistance.
15:24 09 Feb 18
My experience here was great. My lawyer Rebecca was so professional and I love her personality. She handled my case well and kept me updated and made the process easy and always made me feel comfortable to call whenever I needed to know anything.
Next Reviews