In Soto v. McCulley Marine Services, Inc., a man tragically drowned near Longboat Pass on July 4, 2009 when he fell from a jet ski and was sucked underneath a moored barge while wearing a life preserver. At the time of the unfortunate drowning, a nearby dock was being used as a staging area in connection with an ongoing artificial reef program established by Manatee County. When the man drowned, the barge and a 65-foot tugboat that were permitted to participate in the reef building program were both moored at the dock.
Following the man’s untimely passing, his estate filed a wrongful death lawsuit against the owner of the two ships. According to the man’s personal representative, the ships were docked in a negligent manner. As a result, the configuration of the vessels allegedly exacerbated the strong tides that were present in the area and caused the man to be pulled beneath the barge despite his safety jacket.
At trial, one of the negligence theories put forth by the man’s estate asserted that an experienced captain would or should have known the area where the barge was docked would be used by a number of inexperienced jet skiers over the holiday. Because of this, the estate argued the captain should have moored the ship elsewhere or warned jet skiers of the dangers associated with the docking configuration used. The estate also claimed the captain of the barge committed negligence by failing to sufficiently man the ship on the holiday, in violation of U.S. Coast Guard regulations.
Although an officer from the Florida Fish and Wildlife Conservation Commission investigated the accidental drowning, the ship owners were not issued a citation or otherwise accused of violating any laws or regulations. Prior to trial, this information was excluded from evidence. Despite this, the presiding judge later informed the jury that the captain of the barge did not receive a citation from the Commission in response to a juror’s question. The estate then asked the court to declare a mistrial. The trial judge denied the estate’s motion, and the jury returned a verdict in favor of the ship owners.
On appeal, Florida’s Second District Court of Appeal first addressed whether the estate opened the door for the admission of evidence regarding the Commission’s decision not to issue a citation to the barge captain. According to the appellate court, it was well settled that a defendant’s failure to receive a citation was not admissible in a Florida negligence lawsuit because the standard used by a jury was different from that utilized by law enforcement officials. The court continued by stating such an error was prejudicial and warranted reversal even if a curative instruction was provided by the court.
Ultimately, Florida’s Second District Court of Appeal reversed the lower court’s final judgment and remanded the wrongful death case for a new trial.
If you lost a close family member due to another person’s negligent actions, you should contact an experienced Miami personal injury attorney who can advocate on your behalf. To discuss your legal rights with a dedicated South Florida wrongful death lawyer today, call the caring advocates at Friedman, Rodman & Frank, P.A. at (305) 448-8585 or contact us through our website.
Soto v. McCulley Marine Services, Inc., Fla: Dist. Court of Appeals, 2nd Dist. 2015
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