Brett Gibson is both an attorney and active kiteboarder. He has organized the Mid-Atlantic Kiteboarding Association or M-A-K-A. M-A-K-A is intended to represent kiteboarders in the District of Columbia, Maryland, Virginia, Delaware, and North Carolina. He recently wrote an interesting and timely article titled "ANATOMY OF A KITESUIT", the first of its kind to my knowledge that talks about kiteboarding and liability issues. This article appeared in the recent issue of Kiteboarding Magazine (September 2, 2002) and has been reproduced below with Brett Gibson's permission.
As kiteboarding enters into the mainstream with many new participants, liability issues will continue to grow in significance. This article presents many serious considerations for both kiteboarding participants and for those in the industry. It is said that to be "forewarned is to be forearmed", so taking stock of potential consequences of our actions and our "level of care" is appropriate. The focus of this article is on US law however parallels may exist in other legal systems around the World. Questions and comments may be sent to Brett Gibson at: BigEugene@aol.com
On a related topic, it has been suggested that AKA insurance kiteboarder coverage may be voided if an accident claim results from a gross negligent act. If failure to use a kite depowering leash results in a claim this may constitute one type of gross negligent act and could result in lost insurance coverage. It is obvious that reasonable care to protect bystanders must be employed in this sport and that serious pesonal, financial and access consequences may result from our failure to do so.
Rick Iossi
ANATOMY OF A KITESUIT
By Brett Gibson
Kiteboarding can be dangerous. (Duh…..) With the recent proliferation the sport has seen, injuries, bans and inexperienced riders are on the rise. The growth of kiteboarding is likely to skyrocket for years to come. The extreme nature of the sport will inevitably lead to significant national and international publicity; both for better and for worse. What follows is an outline and discussion of how bad judgment and poor riding decisions could wreak havoc on riders, dealers and manufacturers in the future.
In order to be successful in a traditional negligence claim, four elements must be satisfied: Duty of Care, Breach of that Duty, Causation, and Damages.
DUTY OF CARE
There is no question that a kiteboarder owes a duty of care. But what, exactly, does that mean? Any time you are out in public you owe a duty of care. You owe a duty of care when you walk down the street not to injure other pedestrians. You owe a duty of care when you operate a car, a motorcycle or a wave runner. The operation of a large traction kite is no different. If, due to negligence or recklessness, either causes damage to a bystander, the rider will likely be held accountable.
This duty of care extends to all foreseeable victims within the “zone of danger.†With a traction kite involved, that zone of danger can amount to a considerable area. If a rider were to lose his or her kite in a sudden gust, this zone of danger could be anywhere from a few meters to a few miles, depending on the sustained nature of the gust and variables of the situation. Again, if the kite (or rider) contacts and injures a bystander, regardless of proximity, the kiter will likely be responsible.
The standard of care a kiteboarder owes is that of a Reasonably Prudent Person. The individual kiteboarder’s actions will be measured against what a Reasonably Prudent Person would have done in similar circumstances. The standard is objective, harsh, inflexible, and tends to favor plaintiffs in traditional negligence lawsuits. The Reasonably Prudent Person would not go out in even minorly gusty wind; the Reasonably Prudent Person would have the latest, most effective leash de-powering system implemented on his equipment (pro riders and magazine photo-op persons take note); the Reasonably Prudent Person would not kite within 200 feet of other kiters, swimmers or shore; the Reasonably Prudent Person would not launch upwind of any bystanders. The fact of the matter is that if someone was injured by rider or kite (absent product defect/failure), there will potentially be a presumption that the rider did not act as a Reasonably Prudent Person.
BREACH OF DUTY
A rider loses his or her kite, it hits a bystander, the lines tangle around that person’s leg, the kite powers up and the bystander is dragged into a sand dune where the lines become untangled. The bystander has a broken ankle and severe lacerations around his legs. The simple act of losing the kite and having it drag into the bystander is the breach of duty. Thousands of similar, possible situations should come to your mind. Use your imagination.
CAUSATION
This one is easy. You were flying a kite, you dropped it, it hit someone. You caused an accident. The person injured and/or bystander(s) identify you as the culprit.
DAMAGES
Think of damages as injuries. In a traditional negligence injury suit, damages are broken down as follows: Medical expenses, lost wages, pain and suffering, permanency and punitive. Medical expenses include treatment, recovery and therapy expenses associated with the injury. Lost wages cover the amount of time the victim was absent from employment due to injury. Pain and suffering damages can be highly uncertain; they are associated with the impact the injuries have on the victim’s lifestyle recovery period. Juries have been known to award significant sums of money as pain and suffering. If the victim is diagnosed with a permanent or partial disability by a medical professional, expert witness testimony will likely be used to determine the amount of loss. Certain jurisdictions still implement “punitive damages.†Punitive damages, the lottery jackpot of the legal world, can be excessive and are meant to punish the wrongdoer financially.
REPERCUSSIONS
The repercussions of a judgment against a kiteboarder could be far-reaching. A kiter could end up owing an injured party a few thousand dollars for a minor injury, to hundreds of thousands of dollars (or more) in the event of significant injury or death (recent reports from Germany indicate that a kiter was killed in a kiteboarding accident, possibly as a consequence of another rider’s failure to use a leash). If you don’t have the money, a judgment order can be entered to garner your future wages directly, place a lien on any property you own and/or ruin your credit rating for any future property you might be planning to purchase.
GET SOME INSURANCE
The American Kitefliers Association (AKA—www.aka.kite.org) and Professional Air Sports Association (PASA www.professionalairsports.org) offer members kite insurance. You have insurance for your house, car, life, motorcycle, boat, wave runner, etc., so why not get some for your kite? Membership in either organizations is extremely affordable ($30 and $55, respectively) and more than worth the price. In addition to financial protection, insurance policies provide you with legal protection; your insurance company is likely obligated to appoint defense counsel to manage any lawsuit against you.
DEALERS AND MANUFACTURERS
It has become a common theme among many dealers to sell large traction kites to prospective kiteboarders with little or no instruction. This laissez-faire approach to kite retailing may well come back to haunt them. Consider the following scene: A customer arrives at the store, tells the retailer he has kiteboarding experience (e.g. they saw it on T.V. or video) and, without further questioning, the retailer sells the kite “newbie†a 12.0 meter or 14.0 meter inflatable kite. Said kite newbie arrives on the beach, rigs and launches his new kite, determined to get some good “land practice.†The only problem is that the winds are gusty and side onshore, blowing 10 to 25 mph. Also, the beach is crowded with families and the rider launches directly upwind of the crowd, because, heck, no one told him any differently. The potential for disaster in this scene is readily apparent. If the kiter does injure any person(s), the finger of blame will next be extended towards the dealer.
If dealers and manufacturers (and also event organizers) are unwilling to promote significant kite safety measures (many have been less than enthusiastic) out of responsibility and goodwill, perhaps they require some pocketbook incentive. The American legal system is nothing if not ingenious. Attorneys realized long ago that the higher you can climb up the food chain, the more money you can obtain. If a person is injured and successful in a lawsuit against a kiteboarder, they might get some decent money. If a person is injured and the dealer and/or manufacturer are included in the lawsuit, lawyers know they can obtain a lot more money. No longer is the suit about an injured person suing an ordinary-out-of-luck kiteboarding Joe, but about insured dealer and the big, bad corporation who should have known better. The dollar figures start to rise significantly. Kite manufacturers and dealers have a great deal of incentive to actively promote safe riding habits and guidelines.
RIDE ON
Whenever you ride, follow the Safe Kiteboarding Guidelines prepared by the AKA, HKA, FKA, SDKA and other kiteboarding associations. Preflight your gear. Ride with a safety leash. Make certain that new kiters in your area are getting instruction. Most importantly, use common sense. If something seems like a bad idea, assume that it is.
This article illustrates the worst-case scenario. Unfortunately, it also is representative of the very possible and harsh realities to which riders should be made aware. Kiteboarding is the most exciting, invigorating and amazing sport in the world. Ride safely, promote safety and maintain access. Then, in the future, we’ll have ensured that we will be riding for decades to come, like octogenarian Mick Jaggers still on tour, and some kid will say “Man, that dude is way too old to kite!â€
Copyright 2002, Brett Gibson