Opinion
No. 92-1518.
December 21, 1993. As Amended on Denial of Rehearing February 22, 1994.
Appeal from the Circuit Court for Dade County, Ronald Friedman, J.
Hayden Milliken and Reginald M. Hayden, Jr. and Michael J. Cappucio, Miami, for appellant.
Mel Lamelas, Miami, for appellee.
Before BARKDULL, NESBITT and LEVY, JJ.
Appellee sued based on injuries sustained when her husband's 18 ft. boat encountered the wake generated by appellant's 53 foot boat, the Reef Rover V. Appellee and her husband had been fishing in the Atlantic Ocean when they decided to retreat to Caesar's Creek channel because of bad weather. On the way in, the boat in which the appellee was riding passed the Reef Rover IV (a vessel similar to Reef Rover V) crossing its wake. Appellee, who was seated in the bow of her boat got wet, but was otherwise unhurt. As appellee's boat entered the eastern approach to the creek, it encountered Reef Rover V, passing each other at a distance of about 30-40 feet. The channel at that point was approximately 363 feet wide. Appellee testified:
Caesar's Creek is a waterway between two barrier islands running generally southeast to northwest connecting lower Biscayne Bay with the Atlantic Ocean in Southeast Dade County. It lies wholly within the Biscayne National Park. Evidence, proffered by plaintiff, was that a little over twelve months before the incident in question park officials had determined that there was no need to establish a "No Wake" zone in Caesar's Creek.
"My husband suggested that I should go to the back because its, you know, its going to happen like the other one. He suggested come back here. So I got up. The front part of my boat is not big enough for me to turn around or to do any type of movements. I didn't want to lose sight of the boat. I came backwards."
At trial, testimony was presented regarding the size of the wake generated by the Reef Rover V; and as to whether the captain of the Reef Rover V failed to keep a proper lookout and failed to maintain a safe speed. Appellee presented evidence of her lost income, past and future. The trial court allowed appellee to present evidence of future medical expenses which allegedly were not previously disclosed to appellant. The trial court denied appellant's proffer of evidence demonstrating 26,000 prior safe passages through Caesar's Creek. The trial court denied appellant's proffer of evidence regarding appellee's husband's reciprocal seamanship duties under the Inland Navigational Rules. The trial court, over objection, instructed the jury that "if you find plaintiff established that she was injured by the wake or swells caused by the defendant, the defendant must show that it was not in their [sic] power to prevent the injury by adopting practical precaution." During closing, appellee's counsel alluded to appellant as a reckless big corporation and drew comparisons between appellant's counsel's name, Jesse Jones, and the reputed bandit, Jesse James. Appellant objected and moved for a mistrial, which was denied. The jury returned a verdict in favor of appellee for over $500,000, consisting of past and future lost wages, past and future medicals, and past and future pain and suffering. Appellant renewed its motion for directed verdict, and moved for a new trial and remittitur, all of which were denied. This appeal followed.
Appellant, in seeking a reversal, urges seven issues.
(I) That the trial court erred in denying a directed verdict, because appellant only had the duty to operate its boat in a safe and prudent manner that would avoid creating an unreasonable risk of danger. Appellant argues that it only owed a duty not to create a large, unusual, or dangerous wake, and that the appellant had demonstrated, through evidence, that the wake generated by Reef Rover V was a gentle wave of approximately 18 inches.
(II) The verdict is against the manifest weight of the evidence.
(III) The trial court erred in its instruction to the jury regarding appellant's burden of proof. That instruction created an improper presumption of liability, one that does not exist for moving vessels.
(IV) The trial court erred by excluding evidence of foreseeability when it did not allow appellant to present evidence of 26,000 safe passages by the Reef Rovers. That evidence of previous safe passages was relevant on the issue of causation, as the operator's experience indicated that the Reef Rover's wake did not produce a foreseeable risk of injury.
The trial court also erred by ruling that appellant could not present evidence that appellee's husband owed reciprocal seamanship responsibilities under the Inland Navigational Rules. Further, the court erred by denying appellant's attempt to present evidence that appellant's Reef Rover operator had the right to presume that appellee's husband possessed ordinary skills of seamanship.
(V) The trial court abused its discretion by allowing appellant's physician to testify about future medical expenses because the doctor's pretrial medical report had not discussed the future medical expenses that were testified to at trial. Fla.R.Civ.P. 1.280(b)(4)(A) required appellee to state the substance of the expert doctor's testimony. Furthermore, the doctor's testimony about future medical expenses was speculative in that it assumed the possibility of appellee developing posttraumatic arthritis.
(VI) The evidence does not support the jury's award of lost future earnings.
(VII) The award was excessive when viewed in its totality. The jury's award was motivated by passion and prejudice, as demonstrated by appellee's counsel improperly alluding to appellant as a reckless big corporation, and improperly drawing comparisons between appellant's counsel's name, Jesse Jones, and the reputed bandit, Jesse James.
We reverse on the third issue because we find the instructions given to be erroneous. Because this case will be retried, we comment on the other issues as follows. We find no error in the denial of a motion for directed verdict or that the verdict was against the manifest weight of the evidence. We do think that the trial court erred in denying evidence of prior safe passage, and evidence of the responsibilities of the plaintiff's husband as the operator of a moving vessel under the Inland Navigational Rules presented under issue IV. We find issue V to be moot. We have serious doubts as to the sufficiency of the evidence of the loss of future earnings raised under issue VI. As to issue VII, we find that the reference to Jesse James was self induced by appellant's counsel, but we do question the reference to the size of defendant's corporation under issue VII.
Counsel's attention is called to Fabre v. Marin, 623 So.2d 1182 (Fla. 1993) and its possible applicability on any retrial in this matter.
It appears that an appropriate instruction upon retrial as to the plaintiff's burden of proof, would be one of simple negligence, in that this incident did not involve a vessel moored to a dock, anchored, or involved in a collision with another. See and compare Levin v. Hanks, 356 So.2d 21 (Fla. 4th DCA 1978); Maxwell v. Hapag-Lloyd Aktiengesellschaft, 862 F.2d 767 (9th Cir. 1988).
Wherefore for the reasons above stated, the final judgment under review be and the same is hereby reversed and the matter is returned to the trial court for further proceedings consistent with the above.
Reversed and remanded.
NESBITT and LEVY, JJ., concur.
This case involves a plaintiff, who immediately prior to the incident in question, as a passenger seated in the front of an eighteen foot boat operated by her husband, got wet, but was otherwise unhurt when her boat encountered the wake of another. When they approached a similar wake her husband instructed her to move from her seat in the front of the boat to the rear. While in the process of following her husband's instructions the boat struck the wake and she was injured. It is obvious that had she remained in her original seat the most inconvenience she would have suffered, would have been another soaking. It occurs to me that the instructions of the captain of the vessel in which she was a passenger, was the direct and proximate cause of her injuries. It was not necessarily foreseeable that under these circumstances the captain of the Reef Rover had any reason to believe that the captain of the smaller vessel would direct his passenger therein to attempt to change positions on his vessel while striking a boat wake. The instructions of the captain of the smaller vessel was the direct cause of his passenger's injury, having placed the passenger in a position of extreme peril.
I would find that the trial court erred in denying the motion for directed verdict for two reasons. First, the record fails to reveal any evidence that the Reef Rover V was operating in anything other than a normal manner for safe passage of a creek with a width of 360 plus feet, with a wake not in excess of twenty inches, in an area that it had previously traversed many times, and that the appellee's injuries were not foreseeable. Second, and most important, even if there was negligence on the part of the operator of the Reef Rover V (which I do not find) that negligence was not the proximate cause of the appellee's injuries. The independent proximate case of appellee's injuries was her obeying the instructions of the operator of the vessel in which she was a passenger. I would reverse with directions to enter judgment for the defendant, in other respects I concur with the opinion of the majority.