My Son Was Hurt Because of the Negligence of His Instructor during a Surf Lesson Training. Can I Sue?
When it comes to professional services, there is a large gap between the most erudite and talented professionals and those who are more like amateurs. Anyone can be injured by the negligence of instructors who have not developed the appropriate managerial safeguards to limit liability and ensure that any risk of injury is waived by informed consent. If your family members were hurt and had to obtain medical attention due to the activities carried out at the instruction of a surfboarding instructor, you have the same right to sue as a person who carelessly smashes into your parked car.
Establishing Causal Nexus and Standard of Care
In order to be successful on a personal injury case that sounds of professional negligence, you must first ensure that there was no liability waiver contract signed. A professional surfboarding instructional business would most likely require its clients to sign a waiver that expounds the risks and that they are indemnified from financial obligation for any personal injuries. If the business does not have such a waiver and no contract was knowingly signed, a cause of action is possible.
Cases of professional liability can be difficult to litigate unless the standard of negligence falls down to common sense. This is called ordinary negligence. For example, if the surfboarding instructor were to take students to an area where riptides are known to occur frequently and they fail to provide assistance when a student is carried away. Very rarely are professional liability actions this cut and dry.
In most cases, it comes down to a debated standard of care and professionalism. If a surf instructor does not provide the proper instruction and experience before taking a student out into larger waves, another senior surf instructor hired by the plaintiff may be able to explain the industry standards of progression that are necessary to ensure safety in surf instruction lessons. After establishing the standard of care practice that should have been followed, the plaintiff must plead and prove how the breach of professional duty had proximately caused the injuries.
If a surfing student is pummeled by a rogue wave in surf that was previously very calm, it is debatable about how negligent the instructor may have been in the circumstances. The damages may be limited or unavailable because the surfer was damaged by an unforeseeable act of nature. However, an attorney can always argue that the client was not aware of the risks and should have been informed of how dangerous the seemingly calm area and rogue waves may be. This would, arguably, establish the negligence of the defendant, especially if the client was seriously injured.
Proximate Causes and Comparative Negligence
When it comes to civil litigation, the Truth isn’t as cut and dry as we might like it to be. This is why the law recognizes that there may be many proximate causes responsible for an injury. If breaching the standard of care by the surf instructor was the only cause, it would be pled as the sole proximate cause of the injuries. In some cases, the defendant will attempt to argue that the plaintiff was wholly or partly responsible for their own injuries or failures to mitigate the extent of injuries. This would be comparative negligence.
It is possible for a jury to find that a plaintiff and defendant were equally responsible for the injuries and cancel out any awards. This is why it is good practice for an attorney to list as many defendants as possible in regard to the proximate cause theory. If one defendant was in charge of inspecting the surf equipment, another with waxing the boards, and the instructor himself failed to examine why the client kept slipping off the board; this would diminish the belief that the client was equally at fault for continuing the course, despite perpetually slipping off. It would lend firm credence to why the instructor would keep pushing the student if he felt other employees had properly taken care of the surfboard and never gave it a second thought.
Damages and Extent of Injuries
Ocean waves are extremely powerful and liable to knock a novice surfer unconscious in some instances. People have broken bones and received flesh wounds from sharp coral and debris on the ocean floor. Surfers also risk being attacked by marine life such as jellyfish, sharks, sea urchins, sea snakes, seals, and stingrays. Even using inferior equipment (such as a leash that lacks a swivel to pivot upon) can lead to unnecessary injuries that novice surfers are not prepared to handle. An experienced attorney will present your case in the strongest light to demonstrate that your son was not given express warnings about the dangers and how to prepare for them, in any case. If pharmaceutical companies are required by law to notify clients of the dangers involved in using their products, there is a parallel in law that a professional business should likewise be held responsible when they fail to disclose serious risks and actual injury results.
All negligence-based injury claims sound in tort lawsuits unless there was a contract signed that clearly delineated liabilities in various events. This is not usually the case when you are dealing with an unprofessional business. Most professional businesses are required to carry a minimum of business insurance that should cover injuries of this type. It is important to make a medical record and photograph any injuries as soon as possible to preserve evidence. All medical bills, lost wages, pain and suffering, and property damages should be compensated in full. In the rare instances that there is a permanent disability or diminished quality of life issue involved, these are also fair damages to seek in a tort.
Any business that holds themselves out to the general public as an expert in surf instruction has the liability to stand behind that advertisement. If it is found that they are not experts and do not have the skills to instruct people of all ages, then they have also committed fraud.
Choosing the Right Representation
Finding the right attorney with access to skilled medical experts and surf instruction professionals is the only chance you have for any compensation in these cases. If you try to litigate these cases yourself in small claims court or pro se in state courts, the so-called expertise of the surf instructor will be beyond debate unless another instructor and medical experts are in your corner and willing to fight for you. Any personal injury lawyer will likely be interested in a case where the injuries were serious, and anyone might reasonably believe the injuries were preventable with proper foresight.