Florida’s Second District Court of Appeal Reverses Jury Verdict for Single Error

tug-boat-1533451It’s a subject we have mentioned on several occasions, but it’s one that bears repeating. Even a single error can be damaging to a case, or lead to wasteful and duplicative effort for all involved. Indeed, as the defendants in a recent case before Florida’s Second District Court of Appeal, Soto v. McCulley Marine Servs., Inc., now know, litigants should endeavor to get things right the first time because even if an error works in your favor, it may ultimately just lead to wasted effort.

McCulley began with a drowning that occurred on Independence Day 2009. In 2009, Manatee County had a program to create artificial reefs in the Gulf of Mexico. The program involved considerable amounts of concrete debris on other materials. Accordingly, the county set up a staging area at the southeastern end of Anna Maria Island, adjacent to Coquina Beach and Bayside Park. The area is popular for visitors, especially those who enjoy water sports. The defendants in this case were enlisted by the county to help build the reef.  In 2009, Independence Day fell on a Saturday, and the defendants did not wish to work over the holiday weekend. Accordingly, the captain of a tugboat involved in the project moored the tugboat and its barge adjacent to a dock in the staging area. On Independence Day, the decedent was operating a jet ski near the tugboat and barge. During his journey, the jet ski stalled.  The tidal currents were particularly strong, and the decedent became separated from the jet ski. His friends came to assist him, but the decedent drowned. His body was found under the tugboat.

The estate of the decedent brought suit against the defendants, alleging that the configuration of the tugboat and the barge intensified the already heavy tidal currents in the area, resulting in the decedent being drawn under the vessel despite the fact he was wearing a life jacket at the time. The estate argued that the captain should have known that mooring the tugboat in the manner he did would amplify the tidal currents and pose a hazard to those, like the decedent, who were at the park at the time. The estate argued that the captain should’ve moored the tugboat in a different location or, alternatively, warned those in the area of the risks of amplified currents. During trial, the jury inquired into whether the defendants had been issued a citation for violating 33 C.F.R. § 162.65, which in part regulates the mooring of water vessels. The estate objected to the court answering the question, but the defendants argued that the plaintiff had “opened the door” by arguing negligence based on defendant’s violation of the law. The Court sided with the defendants and answered the jury question, telling them that the defendants had not been issued a citation. At the conclusion of trial, the jury returned a verdict favorable to the defendants, and the estate brought the current appeal, arguing that it was prejudicial error for the court to have answered the jury’s inquiry. The Second District agreed and vacated the jury verdict.

It is a well-established proposition under Florida law that evidence of a citation is inadmissible at trial to establish the absence of negligence liability. See, e.g., Eggers v. Phillips Hardware Co., 88 So. 2d 507, 507-08 (Fla. 1956). Indeed, although a violation may be used as evidence for establishing negligence per se, the standards for establishing negligence, which are predicated on whether a reasonable person would have engaged in particular conduct, are different from the calculus used by law enforcement to determine whether a person should be issued a citation for a violation of a law. Since a juror is likely to be swayed by information related to whether a person was issued a citation, evidence of a citation will almost always be considered prejudicial error. See, e.g., Hulick v. Beers, 7 So. 3d 1153, 1155 (Fla. 4th DCA 2009) (explaining, in the context of auto negligence case, that “[w]here fault is an issue, evidence of the . . . absence of a traffic citation will almost always constitute prejudicial error,” for “[c]ommon sense . . . [indicates] that to the average juror the decision of the investigating police officer . . . is very material to, if not . . . dispositive of, that juror’s determination of fault”).  When a plaintiff is seeking to show negligence, the fact of whether or not the defendants were actually issued a citation remains inadmissible. See, e.g., Shaver v. Carpenter, 157 So. 3d 305, 307 (Fla. 2d DCA 2014) (vacating jury verdict because trial court improperly allowed officer to testify that the defendant had violated a traffic law and the plaintiff did not). Accordingly, the Second District reversed the jury verdict and remanded the case to the trial court to have a new trial.

Fortunately for the estate, it will have a second opportunity to establish the defendants’ liability. However, failing to convince the trial court of the proper decision in the first instance only further delays the possible recovery. Indeed, any person with a possibly viable personal injury claim should consider finding counsel with extensive trial court advocacy prior to bringing an action. The South Florida wrongful death attorneys at Frankl & Kominsky have considerable experience advocating for clients before both state and federal trial court judges, and they are prepared to offer you assistance with a possible claim. If you’ve recently been injured in a potential case of negligence or lost a loved one as a result of possible negligence, feel free to contact us for a free case consultation to discuss the viability of your claim.

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