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Court dismisses wrongful death claim arising out of drowning

Ryan Binning drowned while swimming in Cass Lake.  He was on a pontoon boat with Frederick Binno and others when they decided to go for a swim in the middle of the lake.  The boat operator did not anchor the boat.  While the swimmers were in the water, a storm blew up causing the boat to drift away from the swimmers.  Before the boat could be operated into close proximity of the group of simmers, Ryan drowned.  His companions claimed that he did not call for help before slipping under the water twice and failing to surface after the second submersion.  Ryan's family filed suit against the boat operator and owner, alleging negligent "operation."

The Trial Court dismissed Ryan's family's claim, holding that since the motor on the pontoon boat was not running at the time of the death, the boat was not being "operated."  It reached this decision despite the Michigan statute that defines operation to include vessels that are "under way and not secured in some manner." The Court of Appeals rejected that holding, but upheld the dismissal.

The higher court refused to consider the affidavits of the family's aquatic/boating experts who had criticized the operation of the boat.  Instead, the Court concluded that the operation of the boat did not contribute to Ryan's drowning.  The Court's opinion emphasized that the family had not documented that Ryan was attempting to reach the boat--which had drifted some distance from the swimmers--at the time he drowned.  It concluded that the boat operator owed no duty to carefully observe wind and weather conditions or to anchor the boat near the swimmers. 

In a surprising bit of semantic overkill, the opinion suggested that to rule otherwise would be "tantamount to making boat...operators absolute insurers of the safety of all adult passengers who jump in the water for a swim."  It went on to suggest in an unlikely rhetorical flourish that there was no evidence suggesting the operators "were part of a calculated plan to harm Ryan," which is certainly not the legal standard for proving negligence [or "failure of due care"]. Perhaps there were facts to support a conclusion that the operators took every reasonable step to protect the swimmers from the weather and the boat's drift:  it still seems like the basic allegations (with their expert support) were sufficient to leave this factual question for the jury to determine.

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