Great White Shark in Massachusetts!, Now Possible Litigation? [Archive]

Ratickle

07-09-2012, 10:54 AM

I think he needs a bigger boat!!!!

Kayaker on being trailed by great white shark: I just 'turned and paddled'

A first-time kayaker had a close encounter with a great white shark off the coast of Massachusetts over the weekend.

Sunbathers first spotted the shark following two kayakers on Saturday afternoon off Nauset Beach, the Cape Cod Times reported, and yelled to the men offshore.

One of the kayakers saw the shark and quickly paddled in, while it took the other one, Walter Szulc Jr., of Manchester, N.H., a little while longer to notice the dorsal fin just feet away from him.

“There were hundreds of people on the beach, and they were all at the edge, yelling paddle paddle, paddle!” Dave Alexander told the NBC News affiliate in Boston, wdhd.com.

Advertise | AdChoicesSzulc said when he looked behind him, the shark "was pretty much right there."

"It was good-sized, it had a fin sticking out, so I just turned and paddled," he told wdhd.com. It was the first time Szulc had kayaked.

Since June 30, three sharks have been seen plying the waters off Cape Cod for food, the Cape Cod Times reported. The large number of seals in the area is believed to be drawing the sharks.

Orleans Harbormaster Dawson Farber said he and his team went out in a boat to confirm the sighting – he noted the shark was an estimated 12 to 14 feet long -- and they had all bathers get out of the water. The beach was also closed.

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Kayaker on being trailed by great white shark: I just 'turned and paddled' - U.S. News (http://usnews.msnbc.msn.com/_news/2012/07/09/12641045-kayaker-on-being-trailed-by-great-white-shark-i-just-turned-and-paddled?lite)

Ratickle

10-13-2012, 10:52 AM

I wonder if this is only in Massachusetts, or if the premise is everywhere. One of the more interesting issues in the article, the more a municipality tries to do to keep people safe in certain instances, the more liability they create. In a similar instance, I once had an attorney friend tell me that if you don't shovel your sidewalk, and someone slips and gets hurt, you are less liable than if you do shovel your sidewalk and the same thing occurs. Because if you shovel it, that is an invitation for someone to use it and expect it to not be slippery.

Does this carry over at all to a municipalities exposure when they support a poker run or race for performance boats?

Shark attack raises question of towns' liability

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When Denver resident Chris Myers arrived at Ballston Beach in Truro on July 30, there were no signs warning him that sharks might be in the water.

Myers was bitten that day by what experts believe was a small great white shark and said Saturday he has no intention of suing the town. But he did criticize Truro officials for not warning beachgoers of the danger and believed Cape towns owed it to the public to warn them.

"Perhaps because my son and I live in Colorado, the knowledge that sharks were in Cape Cod waters had not reached me before that day. It came in a hurry," Myers wrote in an email.

But legal experts said the towns are not required by law to give any such warning and that municipalities are protected from liability in such cases by exemptions within state law. It is highly unlikely, they say, that any new measures to address the Cape's shark problem will be driven by municipal liability concerns.

"If Mr. Myers were to broach my office as to liability, I would say, 'Sorry for your loss, but I don't want to compound your loss with mine," said Chris Snow, a Provincetown attorney who handles personal injury litigation. "It's a fool's errand. I don't see any exposure (to liability) for the town."

UNSUCCESSFUL SUIT
The question of whether beachgoers should expect they will be protected, or at least warned of dangers at municipal or state beaches, was raised in a 2002 court case in which a mother unsuccessfully sued the state after her 16-year-old son Wilson Ortiz drowned in heavy surf at Horseneck Beach in Westport.

In that case, a lifeguard at the beach told one of the boy's friends that the beach would be off-limits to swimming for about an hour, after which the surf was expected to drop.

When the boys returned to the beach an hour later, there were no lifeguards and no warning signs, and Ortiz went in, was caught in a riptide and disappeared.

The court found that, despite the assurances of the lifeguard and the lack of warning signs, the state could not be held liable because they had not contributed to the "condition or situation," heavy surf, that caused Ortiz's death.

While beach officials could have closed the beach, posted signs and had lifeguards stay on duty, the court found it was a discretionary decision protected under the state liability exemption law.

Boston attorney John Davis, who specializes in municipal liability, compared the assumed risk of going to the beach to being at a baseball game.

"At some point, the danger becomes common knowledge, like at a baseball game where there is the potential risk that a fly ball might hit you in the stands," he said. Fans know it's a possibility that they could get beaned by a line drive, just like beachgoers know there's a possibility of sharks being in ocean.

"It's a risk you take," he said.

In general, an attack by a wild animal like a great white shark is considered an Act of God, hard to foresee, almost impossible to protect against and an assumed risk of going in the water.

That does not mean that the liability shield for towns is bullet-proof or that municipalities will be spared the expense of litigation if a member of the public feels employees or town policies did not adequately protect or inform them of the risk.

Ironically, doing more than just warning the public, like paying for spotter planes, or using boat patrols or a shark detection system, makes it easier for towns to be sued, legal experts said.

Town employees and policy makers are generally protected by a suite of laws and court decisions that allow public safety officials to do their jobs without worrying their every action could be litigated, or that they personally could be sued for doing their job.

State law contains a $100,000 cap on liability awards in cases against municipalities, although plaintiffs have received larger amounts and municipalities are authorized to insure employees for up to $1 million.

State law also provides an exemption from liability for anyone who allows their land to be used for recreation as long as they don't charge for that use. While most municipal beaches have entrance fees, that payment is for parking the car, not for use of the beach, argued Hingham attorney James Lampke, the executive director of the City Solicitors and Town Counsel Association of Massachusetts.

Most lawsuits focus on allegations of negligence on the part of municipalities or their employees.

The most likely legal attack towns might face is under the state liability law's "Failure to Prevent Harm" clause.

This clause exempts municipalities from claims based on their "failure to act to prevent or diminish the harmful consequences of a condition or situation" if that condition or situation wasn't caused by the town or its employees, as in the Ortiz case.

That exemption has prevailed in court even when the public has a more than reasonable expectation of protection.

EXEMPT FROM LIABILITY
In Brum v. Town of Dartmouth, the town's school officials were found to be exempt from liability after they failed to stop attackers from entering a middle school and killing a student even though they were warned that would happen. The school system also hadn't developed or implemented any safety procedures to protect students, despite a state mandate to do so.

The state's liability laws forced the plaintiff's lawyers to argue that the school system had in fact murdered the student by not providing for his safety.

In his review of the state Supreme Judicial Court's 1999 decision, John Davis noted that while the SJC didn't agree with that argument, they did agree that parents should expect the school to keep children safe.

They said school officials should not escape liability for failing to protect their students and asked the state Legislature to change the law, something that has yet to happen.

Ironically, said Davis and Snow, by using spotter planes, patrol boats, and other means of detecting the presence of sharks, the towns and the Cape Cod National Seashore, which controls five major beaches along the Atlantic side of the Cape, may create a false sense of security for the beachgoing public.

The town's immunity from liability could be compromised by a statement from a beach official to a specific individual that there are no sharks present in the water at that beach at that time and that it is safe to swim.

"That's a case where I could see someone saying that, 'You made explicit assurance of safety, and harm ensued,'" Davis said. "I could see someone using that exception to get out from under immunity."

http://www.capecodonline.com/apps/pbcs.dll/article?AID=/20121007/NEWS/210070345/-1/NEWS01