Ask A Maritime Attorney: Can you explain why my resident marina won’t install ladders?

Question:

            I am a resident in a waterfront community with a marina.  We are members of a home owner’s association that governs our homes, the common areas within the coummunity, and the operation of the marina through our bylaws, CC&R’s, and marina rules, all of which are administered by our Board of Directors.  Our association has for many years refused to install ladders on the docks in the marina, apparently because the board of directors has researched the installation and found that installed ladders increase the association’s liability. The board feels that the swim platforms of docked boats provide a facility for a swimmer to get out of the water. The community’s residents include many aging and increasingly frail people who are perhaps most likely to stumble into the water, and these elderly people will find it difficult or impossible to hoist themselves onto a swim platform. The community has a swimming pool that is immediately adjacent to the docks with no gates or barriers to access the docks.  It appears that some local marinas have ladders on their docks, while some do not. Can you comment on the reasoning that my marina uses to not install them?

 

Answer

This is a tough question for various reasons, starting with an understanding of the concepts of negligence and “increased liability.”

I would expect that your association’s legal counsel has weighed in on this and offered his or her legal opinion to the Board.  That opinion would have been based on a lot of factors that I am not privy to, and I don’t want to offer a contrary opinion “in the blind” without having an opportunity to review the information and legal research considered by your attorneys.  That said, I can still offer a few thoughts on this.

First, when you say the Board has “researched” this issue, I hope that this refers to competent legal advice provided by the club’s attorneys.  Otherwise, they are most likely basing their decision on random information found on the internet or just their gut feeling. That, frankly, is not a valid basis for a legal opinion.

As noted above, the first step is to understand the concepts of negligence and “increased liability.” Liability in this case would be based upon a claim of negligence.  Negligence is analyzed by first establishing whether the individual (or entity) had a legal duty to do something, or refrain from doing something, and if so,  did they behave in a manner in which a hypothetical reasonable and competent person or entity would have behaved in the same scenario.  Then, we need to establish whether that behavior actually caused the injury in question. This “reasonable person” analysis can be subjective and often requires the testimony of expert witnesses.

If we apply a negligence analysis to this issue with the ladders, it would be helpful to imagine a hypothetical case where someone falls off the dock and drowns because they had no ladder available to climb out of the water.  I assume that this is the scenario that prompted your question.

So, in this case, we need to ask whether a reasonable and competent person or entity in control of the docks would have installed ladders where your marina failed to do so, and whether that failure to install ladders actually caused the casualty.

Answering these questions would require a survey or inspection of other marinas to understand their practices,  And, we would need to gather data regarding casualties caused by people falling off a dock (i.e. is it common?).  If nobody else has ladders installed, and there have not been a lot of incidents with people falling off docks and drowning, it is unlikely that your club would be found negligent for failing to install ladders in our hypothetical scenario.  This conclusion would probably be different if your association had notice of people drowning (or near-drowning) in the past because of the lack of ladders.

So let’s look at the flip side – liability with ladders actually installed. I can jump ahead on this one. The bottom line here is that, using the same hypothetical scenario and analysis used above, I can’t imagine a case of “increased liability.”  A claim of “increased liability” could only be supported if the installed ladder CAUSED the injury,  perhaps if it were poorly constructed or improperly installed. Other claims, such as a claim that the ladders were installed in the wrong place, or there weren’t enough ladders, would need to rely on comparisons to other marinas as discussed above.

I will say that deciding on a location for the ladders is no easy task, since they need to be placed in locations that would be most effective in helping someone who fell in the water, without interfering with a boat’s access to the slip. In any case, the claimant would need to establish that a hypothetical reasonable and competent person or entity would have done things differently, and if so, that this somehow cause the casualty.  That would be a really hard case to make.

I’m sorry I can’t be more definitive.  I think a claim that the installation of ladders would actually “increase” the club’s liability is pretty far-fetched, but as noted above I am not privy to the analysis conducted by your Board or the legal opinion that was (hopefully) submitted to your Board by the association’s attorneys.

 

David Weil is licensed to practice law in the state of California and as such, some of the information provided in this column may not be applicable in a jurisdiction outside of California. Please note also that no two legal situations are alike, and it is impossible to provide accurate legal advice without knowing all the facts of a particular situation. Therefore, the information provided in this column should not be regarded as individual legal advice, and readers should not act upon this information without seeking the opinion of an attorney in their home state.

 

David Weil is the managing attorney at Weil & Associates (www.weilmaritime.com) in Seal Beach. He is certified as a Specialist in Admiralty and Maritime Law by the State Bar of California Board of Legal Specialization and a “Proctor in Admiralty” Member of the Maritime Law Association of the United States, an adjunct professor of Admiralty Law, and former legal counsel to the California Yacht Brokers Association. If you have a maritime law question for Weil, he can be contacted at 562-799-5508, through his website at www.weilmaritime.com,  or via email at dweil@weilmaritime.com.