Wildlife officers who regularly patrol Longboat Pass off the coast of Southwest Florida, near Sarasota, say it’s one of the most dangerous areas in the region. Strong currents flowing from the Sarasota Bay and the Gulf of Mexico between Longboat Key and Anna Maria Island make it dangerous for disabled boats, kayakers, personal watercraft users and others.
One of those who died there after a personal watercraft accident was a 30-year-old Central Florida man, who drowned after he and some friends lost control of an overturned jet ski and he was swept under a barge. That was in July 2009.
Now, the personal representative of his estate is fighting to hold accountable defendants who owned the tugboat and barge that were moored to a dock. In Soto v. McCulley Marine Services, Inc., plaintiff alleges the 2009 drowning was caused by defendants’ negligence when the captain situated the barge and tugboat in such a way that when decedent fell off the personal watercraft, he was sucked under the vessels and drowned – even though he was wearing his life jacket.
Recently, plaintiff was awarded a new trial after a review by the Florida 2nd District Court of Appeal. This was a reversal of the verdict reached by jurors at an earlier trial.
The appeals court noted a major flaw in that trial, though. A juror asked a question during deliberations, and the response, in part, indicated the captain had never received a citation from officers with the Florida Fish and Wildlife Conservation Commission (FWC). Case law in Florida – starting with the 1989 case of Moore v. Taylor Concrete & Supply Co. Inc. – has well established that failure to receive a citation isn’t admissible in negligence lawsuits. Justices with the appellate court ruled this was an error that highly prejudiced plaintiff, and thus a new trial was warranted.
Defendants had been working with Manatee County officials on a program to help install artificial reefs offshore from Gulf of Mexico beaches, and particularly at the City of Bradenton Beach. But in order to do this, they had to transport large quantities of concrete and other materials by barge. This particular location had been designated as a staging area for this activity. However, it was also a park that was very popular with the public, particularly on weekends and holidays and especially for those on personal watercraft. This incident occurred over the Fourth of July weekend. Defendants’ tugboat was moored because the captain and others didn’t want to work over the long holiday weekend. The boat was 65 feet in length and so was the barge. The two were tied together and moored in a way that caused them to be jutting out into the pass. This is an area that is known to be prone to strong tidal currents, and they were on this day as well.
Plaintiff asserted three theories of negligence:
- Captain knew or should have known his boat and barge were in an area where jet skis would be used by relatively inexperienced individuals, and should have appreciated that the way he configured his vessels, given the force of the current, would have posed a danger for personal watercraft users nearby. Captain should have instead anchored the vessels outside the pass or else posted a warning to those on personal watercraft to keep a safe distance.
- Captain negligently obstructed the water way in violation of U.S. Coast Guard regulations.
- Captain was negligent in failing to ensure there was sufficient crew aboard the vessels when they were docked.
Later at trial, when a juror asked whether captain received a ticket, defense argued the question should be answered because plaintiff opened the door to such evidence by arguing captain violated Coast Guard regulations. Trial court agreed.
However upon review, the appeals court found this improper and reversed. A new wrongful death trial will be held next year.
If you have been injured in an accident, contact the Hollander Law Firm at (888) 751-7770 for a free and confidential consultation. There is no fee unless we win.
Soto v. McCulley Marine Services, Inc., Dec. 16, 2015, Florida Second District Court of Appeal
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Yang v. Little Rock, City – Negligent Emergency Response Alleged in Wrongful Death Lawsuit, Dec. 14, 2015, Naples Wrongful Death Lawyer Blog