The Second District Court of Appeals recently reversed and remanded a final judgment in favor of a boat towing company and captain in a wrongful death case, Soto v. McCulley Marine Services, Inc., (2D13-1620). In this case, a man was found drowned under a barge while wearing a life jacket after he had been jet skiing. His estate argued that the captain of a tugboat moored the boat and a barge in a way that caused the currents in the pass to flow in a way that caused the man’s death. The case went to trial, but the jury returned a verdict in favor of the captain and towing company.
The death of the man happened at an island with a beach and park that was popular for jet skiing and using personal watercraft. At this same island, the County had a program to build artificial reefs, using a staging area with a dock adjacent to the public beach and park. The County hired a towing company to help build the reefs, and the company took on responsibility for any negligence. Prior to a holiday weekend, the towing company and its employees chose to moor the tugboat and barge adjacent to the dock in the staging area. The tugboat and barge extended 130 feet outward into the pass, which is known for its strong tidal currents.
The drowned man was skiing near the moored tugboat and barge when he stalled out. His friends attempted to help him, but he became separated from the jet ski. The man was soon found dead under the barge with his life jacket on, but no one had witnessed his drowning. The Florida Fish and Wildlife Conservation Commission (FWC) investigated the accident but did not issue any citations. The estate moved to exclude evidence of this, and the trial court granted the motion. The estate’s main theory was that the captain should have either anchored the vessels outside the pass for the weekend or should have provided adequate warnings to skiers nearby to keep a safe distance from the vessels. The estate argued that this failure to do so contributed to the man’s death. The estate also argued that the tugboat captain and the crew committed a violation of Coast Guard regulation 33 C.F.R. § 162.65 (2009).
During deliberations at the end of trial, the jury inquired as to whether or not the captain received a citation from an officer of the FWC for his conduct. The defendants pushed for an answer, despite the prior order excluding this from trial, arguing that the estate “opened the door” with the argument the captain and company violated the federal regulation. The trial court agreed with the defendants and told the jury “No.” The jury returned a verdict in favor of the defendants.
The Court of Appeals based its decision to reverse and remand on well-established law that the failure to receive a citation is not admissible in a negligence action. This case law has been formed by numerous automobile accident cases over the years, which determined that the standard for a law enforcement official to write a ticket is not the same as the standard for negligence. The appellate court also rejected the argument that the estate “opened the door” by comparing the defendants’ violation of the regulation to a typical plaintiff’s automobile accident argument that the defendant was negligent and violated a traffic law like running a stop sign. The court reversed and remanded, and the estate is now able to pursue a new trial.
The Florida wrongful death attorneys at Donaldson & Weston have the personal injury experience you need to maximize the damages you deserve. Cases like this one can involve complex legal arguments and require a thorough explanation of the events to the fact-finder, and it is helpful to have knowledgable lawyers at your side. For a free, confidential consultation, contact our office at 772-266-5555 or 561-299-3999.
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Knowing How a Rejection of Uninsured/Underinsured Auto Insurance Coverage in Florida Affects You and Your Family, South Florida Injury Lawyer Blog, October 6, 2015