Florida Appellate Court Orders New Trial in Jet Ski Wrongful Death Action

In Soto v. McCulley Marine Services, Inc., a jet skier unfortunately lost his life when he was tossed from a jet ski and sucked beneath a nearby moored vessel. The man was wearing a flotation device at the time he fell from the jet ski. Also, near the site of the accident, a dock was being utilized as a storage and preparation area for an artificial reef project maintained by the County of Manatee. The barge under which the man was trapped and a tugboat were moored to the staging area dock and participating in the project.

After the accident, the decedent’s estate brought a wrongful death action against the people who owned the barge and the tugboat. The personal representative of the man’s estate alleged that both vessels were docked negligently at the time of the accident. More specifically, the personal representative contended that the position of both boats worsened the already strong tides and caused the jet skier to be sucked underneath the barge, even though he was wearing a life preserver.

The plaintiff’s negligence theories included a claim that a seasoned captain would have known or should have been aware that the area where the two vessels were moored would be a hot spot for jet skis during the holiday weekend, and that the captain in charge of the two vessels needed to moor them elsewhere or provide a warning to jet skiers in the area that the ships’ arrangement created a danger. The plaintiff also asserted that the captain violated U.S. Coast Guard regulations by not providing sufficient manpower to attend the vessel during the holiday, and that this failure constituted negligence.

A representative of the Florida Fish and Wildlife Conservation Commission conducted an investigation of the accident but did not issue any citations to the owners of the vessels and did not state that the owners committed any legal violations. Before trial, evidence regarding the investigation and its conclusions were barred from being presented as evidence during trial, but the judge later told the jurors that the barge’s captain was not cited with any violations from the Commission. The judge informed the jury about this after a juror asked about the subject. The plaintiff moved to declare a mistrial, and the judge denied the motion. The jury entered a verdict for the defense.

The plaintiff appealed the action to the Second District Court of Appeal, which concluded that the absence of a citation against the barge captain is not admissible in a negligence lawsuit because the standards that a jury uses to examine a negligence claim differ from the standards that law enforcement professionals apply. The appellate court reversed the jury’s verdict and remanded the action for a new trial.

If you or someone you love has been injured or tragically lost their life as the result of another person’s negligence, you may be entitled to compensation. At Lusk, Drasites & Tolisano, or dedicated personal injury lawyers have handled many cases involving open water accidents and know what it takes to bring a successful claim. We proudly represent clients throughout Southwest Florida, including in Naples, Cape Coral, and Fort Myers. Call us now at 1-800-283-7442 or contact us online to set up your free consultation.

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