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Kathleen Miskell Killed in Tragic Parasailing Accident (Legal Analysis)

Kathleen Miskell, 28, was killed in Pompano Beach, Florida in a tragic parasailing accident with Wave Blast Water Sports earlier today. According to news reports, Kathleen Miskell fell 200 feet into the ocean when her parasail harness broke.

Horrifically, her husband, Stephen, was parasailing in tandem with her at the time of the accident. Thumbnail image for Thumbnail image for Thumbnail image for Thumbnail image for Florida Injury Lawyer.jpg

As a Florida injury attorney, I can tell you that accidents involving tourists are quite common in South Florida. In fact, this is not the first time someone was killed while parasailing. Between 2001 and 2011, there have been 4 other parasailing related deaths.

Given my perspective as an attorney, there are a number of important points that can be gleaned from this case. However, before I begin, I must caution my readers that the facts of this case are still being uncovered and that no concrete conclusions can be drawn at this time. Much more information is needed before ultimate conclusions can be made, especially regarding who is responsible or what will happen in court.

That said, I think the first and foremost point concerns the present state of the law. It is about time that the Florida Legislature began regulating parasailing companies. Presently, no such regulation exists that I am aware of.

At a minimum, safety standards for equipment and operating practices need to be established. Public safety is at stake as well as South Florida’s reputation as a safe and enjoyable tourist destination.

Aside from new laws that regulate the safety of parasailing, minimum insurance requirements should also be implemented. This way, people who sustain injuries due to negligence can be compensated, at least minimally, for their losses. Clearly, there is no amount of compensation that will ever replace the loss of a loved one.

As a second point, it is also important to mention that Kathleen Miskell’s family, especially her husband Stephen, may have every right to institute legal action against the parasailing company.

As a trial attorney, I would demand answers to a number of very important questions if I was representing Miskell’s family, such as:

  • Was the harness inspected prior to use?
  • Was the harness properly stored and maintained?
  • How old was the harness? How many times had it been used?
  • Has the harness been exposed to stress or was it damaged?
  • Has the parasailing company experienced other problems with this particular harness?
  • What is the service life of this particular type of harness?
  • Was the harness defective? If so, was it a manufacturing defect or a design defect?
  • What did the parasailing company know about the harness’s effectiveness?

The number of questions that can be asked seem limitless.

As an injury attorney analyzing a case of this type, there are three basic points that must be considered to determine if legal action can be brought.

First of all, a claimant must be able to prove that the parasailing company was negligent. In other words, the plaintiff must be able to prove that the responsible party did something wrong or failed to do something right, thereby causing the accident.

To prove negligence in a case like this, an injury attorney must conduct an exhaustive independent investigation into the facts as well as perform in depth research into the type of equipment that failed, such as the harness.

Most importantly, a notice to preserve evidence must be sent to the parasailing company, law enforcement investigators, as well as any other party that has access to evidence.

As a trial attorney, my instinct tells me that this is likely a case of gross negligence.

Lets face it: the parasailing company at issue is probably one of those typical beach vendors that have been barely scraping by since the economy took a downturn and tourist activity has dipped. Odds are they have been cutting corners to save money and stay in business.

At the same time, I expect the parasailing company to defend itself by blaming the victim in this case.

In all likelihood, their lawyers will claim that there was an “assumption of risk” on Kathleen’s part when she donned the harness and chose to parasail. I would take it a step further and bet that the parasailing company even tries to hide behind the bogus “waivers of liability” they probably made Kathleen and Stephen sign before they set sail.

However, I suspect that the evidence will prove that such defenses are completely bogus and I would enjoy nothing more than destroying them in court!

When it comes to dangerous sports, a waiver of liability would only apply to those injuries that a person sustains from events that are “germain” to the activity. In other words, you wouldn’t be able to sue for an injury that is sustained from the “normal course” of engaging in the activity.

For example, a lawsuit against a bungee jumping company for a herniated disk suffered after bungee jumping off a bridge would likely fail.

However, this does NOT apply to negligence!

The law does not allow companies to “waive away” liability for negligence.

Using our bungee jumping example, if someone was killed when the bungee cord failed because the bungee jumping company negligently maintained the cord, a lawsuit could be filed.

The same rule applies to Kathleen Miskell’s case.

Meaning, there is absolutely nothing germain about falling 200 feet to your death because your parasailing harness failed.

On the contrary – a person engaging in parasailing has the right to assume that the company properly maintains its equipment and operates in a safe fashion.

Therefore, if the evidence shows that Kathleen’s death was caused by the parasailing company’s negligence, it makes no difference that she assumed some risk in parasailing or that she signed some BS waiver before heading out on the boat.

If the parasailing company was negligent, then it will likely be held accountable. Story end.

Aside from proving negligence, the second point of this analysis requires an injury attorney to establish that an actual injury was sustained as a result of that negligence. In this case injury is pretty clear – someone was killed.

Third, it is also necessary to understand that the responsible party must also be collectible. In the real world, this translates into insurance or sizable assets. If the parasailing company does have insurance, I would expect it to be a minimum of $1,000,000.00 in coverage.

Additionally, if the parasailing company was affiliated with a large hotel or resort, there is a good chance that they have liability insurance to cover them in the event that a vendor injures one of their guests.

Lawsuits as a Force for Social Change

Have you ever wondered why we have handicapped stalls in restrooms or smoke detectors in hotels? Or why major car manufacturers recall hundreds of thousands of vehicles when an airbag, gas pedal, or other component is deemed defective?

It is because of injury attorneys.

By using the law in real world cases where real people are hurt, lawyers are able to use the courts to force change that the Legislature has failed to accomplish.

When it comes to parasailing, you can bet that all the local resorts and other such companies are paying close attention. When they understand that their pockets will hurt when their product injures people, such companies find a way to make safer products.

In the absence of laws that protect consumers, such as laws that regulate parasailing operations, legal action is the best way to effectuate change… one case at a time.

My condolences go out to Kathleen Miskell’s family, especially her husband and parents who I am sure are suffering right now. Cases like these are why I enjoy being a lawyer. I am sure this death was preventable and if any good is to come from it, odds are it will happen in the courtroom.

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