The Complaint of Boston Boat III, LLC d/b/a vs J.G.,

August 17, 2015

The Complaint of Boston Boat III, LLC d/b/a vs J.G.,

Summary

This case involves a musician crewmember who was hurt while working aboard the Island Adventure vessel during the 2012 Seminole Hard Rock Winterfest Boat Parade. The owner of the vessel filed a Motion for Summary Judgment, and this is the response filed by the attorneys at Lipcon, Margulies & Winkleman, P.A.

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

MIAMI DIVISION

 

IN ADMIRALTY

CASE NO. 13-CIV-62116-JAL

 

IN THE MATTER OF:

The Complaint of Boston Boat III, LLC d/b/a

Water Transportation Alternatives as Owner of Island

Adventure, a 1964 Paasch Marine Service vessel

Bearing Hull Identification No. 153, USCG Official

Number 295280, its Engines, Tackle, Appurtenances,

Equipment, & Etc., in a cause of Exoneration from or

Limitation of Liability,

 

Petitioner/Counter-Defendant

vs.

J.G.,

Respondent/Counter-Claimant

_______________________________________________/

 

RESPONSE IN OPPOSITION TO PETITIONER, BOSTON BOAT III, LLC,’S

MOTION FOR SUMMARY JUDGMENT

Respondent, J.G., files his Response in Opposition to Boston Boat III, LLC, (“Boston Boat”) Motion for Summary Judgment [D.E. 58], and for good cause states as follows:

I. Introduction / Summary

On June 9, 2015, Boston Boat filed a Motion for Summary Judgment. [D.E. 58]. In that Motion, Boston Boat seeks a determination that J.G.’s negligence claim fails because the causation element is missing. Boston Boat argues that evidence of causation is lacking in J.G.’s allegations as to the inadequacy of warnings, uncontrolled consumption and service of alcohol, as well as the negligent operation of the vessel. Additionally, Boston Boat argues that it is entitled to limit its liability to the value of the Island Adventure. As shown below, Boston Boat’s Motion for Summary Judgment [D.E. 58], should be denied and liability should not be limited to the value of the Island Adventure. Stated simply, there are a number of disputed material facts such that summary judgment is improper.

Herein, J.G. was a guitarist performing in a band that was playing onboard the Island Adventure, while the vessel was participating in the Winterfest Boat Parade on December 15, 2012. It was essentially a party at sea with an open bar being served to the guests onboard. It is undisputed that the Winterfest Boat Parade involved frequent “stopping and going” of the vessel.

During the operation of the vessel, the Captain made a sudden, sharp stopping, reversing and rotating motion of the vessel, while waiting to go through a bridge. At that time, another passenger fell into Claimant J.G., and severely and permanently injured J.G.’s back, including two surgeries on his back.

Consequently, Claimant J.G. contends that Boston Boat was negligent in its failure to provide reasonable care under the circumstances by, inter alia:

1. Failing to provide any warning(s) to the participants on the vessel regarding the risk of falling due to the ‘stop and go’ nature of the Winterfest Boat Parade;
2. Failing to have any specific policies and procedures in place regarding providing warnings to prevent slip and falls generally, and more specifically during the Winterfest Boat Parade, particularly where there is open bar service;
3. Failing to properly navigate the subject vessel during the subject Winterfest Boat Parade; and/or
4. Failing to have adequate handholds and failure to have adequate flooring.[1]

[1] As set out in Claimant’s Motion for Sanctions for Spoliation of Evidence [DE 57], after this incident in December 2012, Boston Boat completely changed the upper-level of the Island Adventure, making it impossible to inspect the boat in its condition at the time of the incident. As set out in the Motion for Sanctions, Boston Boat had a duty to preserve the boat and the evidence related to the incident. Boston Boat breached their duty when they decided to demolish the scene of the incident and destroy vital evidence one year after litigation began. Boston Boat further breached their duty when they did not give Plaintiff’s counsel notice prior to destroying evidence. Boston Boat’s actions are even more egregious due to the fact that Boston Boat’s Counsel knew that evidence was being destroyed and did nothing to mitigate the situation. J.G. submits that this egregious conduct supports a finding of spoliation of evidence and the harshest of sanctions against Boston Boat. A hearing on the Motion for Sanctions for Spoliation is set before the Honorable Judge Goodman on August 12, 2015. As it relates to the instant response to the Motion for Summary Judgment, it would be unfair and untenable to grant Summary Judgment in a case where

In support of these allegations of negligence, the record evidence includes, but is not limited to:

• Video of the subject incident showing a sudden sharp movement of the vessel followed by the passenger falling into J.G. and knocking him over. Copy of Video attached as Exhibit 1, filed conventionally with the Court).

• Deposition testimony of Boston Boat Senior Deckhand Gillian Langford (Senior deckhand of vessel at time of incident). Copy attached as Exhibit 2. Langford testified regarding her observation of intoxicated passengers. (Ex. 2, Depo. of Langford at 42:1 – 4).
• Langord admitted that a warning should have been given to passengers to use caution while the vessel was underway. Id. at 37:13 – 24.
• Langford further admitted that during the Winterfest Boat Parade, when there’s basically unlimited alcohol being served to passengers, that there would be even more of a need to give some type of general safety warning about preventing falls to the passengers at the beginning of the Voyage. Id. at 45:4 – 14.
• Lastly, Langford testified the subject Winterfest Boat Parade event on the vessel was “just a big party going onboard the ship.” Id. at 43:9 – 14.

• Deposition testimony of J.G.. Copy attached as Exhibit 3. J.G. testified regarding the abrupt, sharp movement(s) of the Island Adventure immediately prior to the incident as follows: “we definitely stopped in reverse direction and I went forward again definitely.” (Ex. 3, Deposition of J.G. at 45:10 – 11).
• Additionally, J.G. testified regarding the Captain’s announcement encouraging the uncontrolled service and consumption of alcohol, as follows: “everything was free, hard alcohol, beer, wine. And if — we didn’t want to restock anything. We wanted everybody to hog it up and finish it. And that was his exact announcement…” Id. at 31:8 – 11.

• Deposition testimony of the President / Corporate Representative of Boston Boat, William Walker, Copy attached as Exhibit 4. Walker/Boston Boat testified regarding the lack of adequate safety announcements and the uncontrolled service of alcohol aboard his vessel. When asked if it would have been better to have made a statement about using extra precaution instead of giving a statement about drinking all the alcohol on the ship, Mr. Walker answered “Sure. Possibly.” (Ex. 4, Depo. of William Walker at 101:5 – 11).
• Walker / Boston Boat also testified that in light of the fact that there were five prior lawsuits related to slip and falls, he and Boston Boat was on notice of the risk of people slipping and falling on his taxis.[2] At 65:3-12. Further, Walker / Boston Boat was aware of the risk of participation in the Winterfest Boat Parade. Id. At 111: 5-13.
• Walker / Boston Boat also testified that Boston Boat has no specific written policies or procedures that are directed to prevent people from falling on ships. Id. At 101:13-18.
• Walker / Boston Boat also testified that Boston Boat has no specific written policies or procedures regarding the sale of alcohol on its ships. Id. At 102: 8-12.

• Deposition testimony of witness Connie Doty. Copy attached as Exhibit 5. Doty corroborates the sharp abrupt movements of the Island Adventure immediately prior to the subject incident. She testified: “…you could feel the stop, and then the boat went into reverse, and you could feel that — the shutter from that, and then it started to go forward, again.” (Ex. 5, Deposition of Connie Doty at 15:7 – 11).
• Doty also testified regarding the absence of any safety announcement while aboard the Island Adventure. When asked whether the captain or crew provided any announcements before the boat left, she answered “None…No announcements, at all.” Id. at 15:7 – 11.
• Doty also testified that at the beginning of the voyage, the Captain made a statement as follows: “Make sure you drink all this beer, we don’t want to take any of it home with us.” Id. At 40:2-5.

• Deposition Testimony of Captain Christopher Botsolis (Captain of vessel at time of incident). Copy attached as Exhibit 6. Botsolis testified that at the time of the incident, the vessel rotated towards the wind a little bit, then rotated back and went forward. Id. At 39:1-6. Bostolis also testified there is a real stop and go nature to the Winterfest Boat Parade. Id at 49:12-14.

Accordingly, as set forth herein, Summary Judgment is improper.

II. J.G.’S STATEMENT OF MATERIAL FACTS IN DISPUTE

In accordance with Southern District of Florida, Local Rule 56.1, and Judge Lenard’s Order [D.E. 60], Claimant, J.G., sets forth his statement of material facts in opposition to Petitioner, Boston Boat, Motion for Summary Judgment [D.E. 58].

1. The facts alleged in paragraph 1 p. 1 [D.E. 58] are undisputed, however, incomplete.

J.G. adds to paragraph 1, that J.G. was a guitarist performing in a band that was playing onboard the Island Adventure, while the vessel was participating in the Winterfest Boat Parade on December 15, 2012. It was essentially a party at sea with an open bar being served to the guests onboard. The Winterfest Boat Parade involved frequent “stopping and going” of the vessel.

During the operation of the vessel, the Captain made a sudden, sharp stopping, reversing and rotating motion of the vessel, while waiting to go through a bridge. At that time, another passenger fell into Claimant J.G., and severely and permanently injured J.G.’s back, including two surgeries on his back.

At no time during the subject voyage were any warnings given to passengers regarding the risk of falling due to the stop and go nature of the Winterfest Boat Parade.

Claimant alleges the vessel lacked adequate handholds and failed to have adequate flooring, but Claimant was unable to inspect the vessel prior to Respondent Boston Boat’s intentional destruction of the scene of the incident.

These disputed facts are material because they go directly towards proving whether Boston Boat acted with reasonable care under the circumstances.

2. The facts alleged in paragraph 2 p. 2 [D.E. 58] are undisputed.
3. The facts alleged in paragraph 3 p. 2 [D.E. 58] are undisputed.
4. The facts alleged in paragraph 4 p. 2 [D.E. 58] are undisputed.
5. The facts alleged in paragraph 5 p. 2 [D.E. 58] are undisputed.
6. The facts alleged in paragraph 6 p. 2 [D.E. 58] are undisputed.
7. The facts alleged in paragraph 7 p. 3 [D.E. 58] are undisputed.

8. The facts alleged in paragraph 8 p. 3 [D.E. 58] are disputed.

Boston Boat claims that the Island Adventure’s crew provided a general announcement authorized by the U.S. Coast Guard. J.G. argues that the general announcement was not authorized but rather required by the U.S. Coast Guard. Deposition testimony of Boston Boats President and Corporate Representative addresses that specific point:

Q. And are there — in your typical operations, including during the Winterfest Boat Parade, are there any specific warnings or instructions that are given to the passengers on the ships?

A. Yes.

Q. Such as?

A. They’re required to give a safety announcement –

Q. Okay.

A.– prior to departing. And they do that, basically they talk about safety of the vessel. They identify the crew, the captain and the crew. They tell — they basically have general safety announcements.

Q. Okay. And you said those are required. Is that like a Coast Guard requirement?

A. Correct.

(Ex. 4, Depo. of Walker at 93:23 – 94:15).

As such, while Boston Boat makes it appear as though the Coast Guard specifically “approved” the safety announcement, this is not supported by the record evidence. What is supported is that Boston Boat is required to give a safety announcement. This is an important distinction.

Furthermore, it is a disputed issue of material fact as to what, if any, safety announcement was even made. Witness Connie Doty, testified:

Q. Do you remember if the captain or the crew provided any announcements before the boat left?

A. None.

Q. None?

A. No announcements, at all.

(Ex. 5, Depo. of Connie Doty at 15:7 – 11).

9. The facts alleged in paragraph 9 p. 4 [D.E. 58] are disputed.

J.G. disputes that the policies in place (if any) regarding the service of alcohol aboard the Island Adventure on the night of the subject incident were accurately portrayed in paragraph 9 of Boston Boat’s Motion for Summary Judgment. There is record evidence showing that there was uncontrolled service and consumption of alcohol, and that there were, in fact, no specific written policies or procedures in place regarding the service of alcohol. To this point:

• Walker / Boston Boat also testified that Boston Boat has no specific written policies or procedures regarding the sale of alcohol on its ships. Ex 4, At 102: 8-12.

–   Deckhand Gillian Langford testified regarding the consumption and service of alcohol

on the evening of the incident aboard the Island Adventure:

Q. Okay. And did you notice people that were intoxicated that evening or who appeared to be intoxicated that evening?

A. Yes.

Q. Okay. And what was the story with the service of alcohol that night?

A. We served some of our own and then they brought a lot of alcohol as well.

(Ex. 2, Depo. of Gillian Langford at 42:1 – 10).

–    In the deposition of Connie Doty, she was asked about the access to alcohol aboard the

Island Adventure:

Q. Okay. And you had mentioned — you were asked a question about whether there was any announcements given, and I think you said the only announcement was to enjoy the ride?

A. Enjoy the ride, and drink the beer.

Q. Okay. So exactly what was the comment about drinking the beer, to your recollection?

A. Make sure you drink all this beer, we don’t want to take any of it home with us.

(Ex. 5, Depo. of Connie Doty at 39:22 – 40:5).

–     Similarly, J.G. testified regarding alcohol aboard the Island Adventure:

Q. Was that anything you had to pay for or was that just given to you?

A. No. It was open bar where the captain had announced as soon as we got the crowd on board that everything was free, hard alcohol, beer, wine. And if — we didn’t want to restock anything. We wanted everybody to hog it up and finish it. And that was his exact announcement…

(Ex. 3, Depo. of J.G. at 31:4 – 11).

– This announcement regarding finishing all of the alcohol was addressed in the deposition of Boston Boat’s President and Corporate Representative, William Walker:

Q. Have you heard that Captain Botsolis, as part of his announcement at the beginning, has said we’ve got all this — and I’m paraphrasing –we’ve got all this alcohol on the ship, you better make sure you drink enough because we don’t want to take it home?

A. No.

Q. No. Okay. You would agree, though, that it would have been better to have made a statement about using extra precaution instead of giving a statement about drinking all the alcohol on the ship, wouldn’t you?

A. Sure. Possibly.

(Ex. 4, Depo. of William Walker at 100:17 – 101:11).

10. The facts alleged in paragraph 10 p. 4 [D.E. 58] are undisputed.
11. The facts alleged in paragraph 11 p. 4 [D.E. 58] are disputed.

J.G. disputes the facts as stated in paragraph 11. Boston Boat claims that immediately prior to the incident, the Island Adventure was maintaining a fixed position. However, record evidence shows the Island Adventure was moving significantly and abruptly.

Claimant, J.G., chronicled the movements of the Island Adventure at the time of the incident:

Q. You said the boat got slammed into reverse?

A. During the turn, we definitely stopped in reverse direction and I went forward again definitely.

Q. And when was it in relation to this happening that the woman fell into you?

A. Exactly during those turns, exactly during when it backed up and then about as soon as we started going forward again — this is short term, because I remember I was drifting backwards as well.

Q. Were you drifting in the same direction that the woman fell in?

A. Yes.

Q. And it would have been after the — going in reverse and then starting to go forward, right?

A. Correct, right at that time.

(Ex. 3, Depo. of J.G. at 45:9 – 23).

Connie Doty, J.G.’s ex-wife and passenger aboard the Island Adventure, also chronicled the movements of the Island Adventure at the time of the incident:

Q. And while you’re aboard, did you witness the boat make any sudden movements?

A. I did.

Q. Can you describe that for me?

A. There was — at the time of the incident in question, we were traveling, and then the boat made a sudden stop.· I mean, you could feel the stop, and then the boat went into reverse, and you could feel that — the shutter from that, and then it started to go forward, again. And then it made a really sharp turn to the right — I believe it was to the right. And that’s when the incident happened.

(Ex. 5, Depo. of Connie Doty at 18:14 – 25).

J.G.’s Liability Expert Witness, James W. Allen, offered his explanation as to the movements and navigation of the Island Adventure at the time of the incident:

In the video[3] provided, just prior to the injury to Mr. J.G., Captain Botsolis had to back down for approximately twenty seconds. At that time, he reversed and starting gaining headway. In the video, the vessel seems to be coming to port as he is gaining headway. This is consistent with the video, as when the lady falls on Mr. J.G., she is falling to the starboard side, slightly aft. It is not known at this time why Captain Botsolis had to back down. During my interview with Mr. J.G., he stated; ‘I saw several other people stumble or fall at the same time the lady fell on him’. This is consistent of Captain Botsolis quick reversal of the vessel from astern to ahead.

(Ex. 7, Preliminary Report of Expert Witness at p. 4).

Also, the video footage at the time of the incident shows the Island Adventure was rotating while it was traveling in reverse. Captain Bostolis explained the rotating movement in his deposition:

Q. It appears to me in the video that in a way the ship is kind of rotating. I think you mentioned that because you had one engine on. Can you explain how that works?

A. The boat has two [engines], so if I take the port engine or the left engine and put it in reverse the boat is going backwards. And it’s also going to bring the back of the boat to the right, the front of the boat to the left. So, it’s going to do that. Then I would take the starboard engine, put it ahead and bring the boat back forward while using the rudder as well.

(Ex. 6, Depo. of Christopher Bostolis at 34:21 – 35:6).

These facts are material because they go towards proving whether the vessel was operated with reasonable care under the circumstances.

12. The facts alleged in paragraph 12 p. 4 [D.E. 58] are undisputed.
13. The facts alleged in paragraph 13 p. 5 [D.E. 58] are disputed.

Again, J.G. disputes the statement that the vessel was holding station and relies on the record evidence offered regarding fact #11. Additionally, J.G. disputes the facts as stated in the rest of paragraph 13 and the inference Boston Boat is trying to create regarding a woman dancing. J.G. did state in his deposition that the passenger who fell into him was dancing. However, there is no record evidence to indicate that the passenger was dancing immediately prior to her fall. In fact, J.G. stated in his deposition that he was not watching the unidentified lady at the time of the incident and noticed her as she was falling into him. (Ex. 3, Depo. of J.G. at 47:5 – 10).

Furthermore, there is video that captures the subject incident and specifically the unidentified lady falling into the J.G.. The video shows that the unidentified lady was not dancing. Rather, J.G. alleges, inter alia, that she fell due to the abrupt movement of the Island Adventure. (See Ex. 1, Video of Subject Incident).

14. The facts alleged in paragraph 14 p. 5 [D.E. 58] are undisputed.
15. The facts alleged in paragraph 15 p. 5 [D.E. 58] are undisputed, except that J.G. was, in fact, helped up by several persons.
16. The facts alleged in paragraph 16 p. 5 [D.E. 58] are undisputed.
17. The facts alleged in paragraph 17 p. 5 [D.E. 58] are disputed.

J.G. disputes the facts as stated in paragraph 17. Boston Boat claims that the carpeted area where the incident took place was in good condition and not slippery. However, the condition of the carpet will never be known due to the fact that Boston Boat completely destroyed the scene of the incident along with the carpeting that is the subject matter of this litigation. (See Respondent’s Motion for Sanctions for Spoliation, D.E. 57.) The hearing on Respondent’s Motion for Sanctions for Spoliation of Evidence is set to be heard on August 12, 2015, before Judge Jonathan Goodman. [D.E. 68].

What the record evidence shows is that Boston Boat completely removed the incident area from the Island Adventure. By the time Mr. J.G. was given the opportunity to inspect the Island Adventure, all of the wall panels were removed as well as the window frames, roofing and support poles for the enclosed structure. [D.E. 57 at 4.] Furthermore, there was no decking, just bare metal. The preservation of the incident area was vital in proving Mr. J.G.’s theory of liability. It is Mr. J.G.’s position that Boston Boat acted in bad faith and destroyed the evidence intentionally. See Exhibit 4, deposition of Walker, pgs. 43, line 11 – pg. 54, line 18.

This position is supported by the fact that litigation had commenced over a year prior to the spoliation as well as the fact that Boston Boat had notice of Mr. J.G.’s intent to inspect the vessel. Furthermore, through their own inspection, Boston Boat’s Counsel knew of the renovations and did absolutely nothing to cure the spoliation.

Due to Boston Boat’s bad faith spoliation of evidence. Mr. J.G.’s ability to prove his case has been severely inhibited. Inter alia, J.G.’s expert was not able to offer his opinion as to the condition of the carpet. In the preliminary report of J.G.’s expert, James W. Allen stated:

When I conducted my inspection of the PIV Island Adventure, the scene where the incident occurred, has changed in its entirely. The area where the accident occurred was totally cleared out. There was no decking, just bare metal. The support poles were gone. I did not see any handrails. This has resulted in me being unable to provide any opinions or do any analysis regarding the actual location of the fall.

(Ex. 7, Preliminary Report of Expert Witness at p. 4).

Nevertheless, Boston Boat instructed Claimant’s Counsel that a portion of the carpet was saved for inspection. On June 12, 2015, Claimant inspected what was left of the carpet. When Claimant’s Counsel arrived at the warehouse where the carpet was kept, it was discovered that only a 6 inch by 6 inch square of carpet was preserved for inspection. After reviewing photos of the sample carpet and photos depicting the carpet in both the upper-level and lower-level of the Island Adventure, it is Claimant’s position that the sample carpet was not even taken from the incident area.

Furthermore, it is Claimant’s position that once Boston Boat’s Counsel realized that spoliation had occurred, they attempted to mitigate the situation by removing a sample of carpet from the lower-level of the Island Adventure and claim it was from the incident area. The attached photos show that the carpet on the upper-level was different from the carpet on the lower-level. And the photos taken at the Claimant’s inspection of the carpet reveal that the sample carpet looks almost identical to the carpet on the lower-level. (See attached Composite Exhibit 8, photos of lower-level carpet, upper-level carpet and sample carpet.)

At a minimum, Boston Boat’s actions regarding the intentional destruction of the scene of the incident on the Island Adventure create an issue of material fact not properly decided in a Motion for Summary Judgment.

18. The facts alleged in paragraph 18 p. 6 [D.E. 58] are undisputed.
19. The facts alleged in paragraph 19 p. 6 [D.E. 58] are undisputed.
20. The facts alleged in paragraph 20 p. 6 [D.E. 58] are undisputed.
21. The facts alleged in paragraph 21 p. 6 [D.E. 58] are undisputed. Having said that, the report of an expert witness is not evidence. Furthermore, Allen’s report is preliminary because discovery has continued in this matter. Allen’s deposition is scheduled to be taken on July 9, 2015.

III. THERE IS SUFFICIENT RECORD EVIDENCE TO PRECLUDE A FINDING OF SUMMARY JUDGMENT

Again, Boston Boat’s Motion for Summary Judgment centers on the argument that J.G. “negligence claim fails as the causation element is missing.” Motion, p. 8, subheader b. This argument is easily disposed of because J.G. has set out ample record evidence showing that Boston Boat’s alleged negligence caused or contributed to J.G.’s injury.

To reiterate, Claimant J.G. contends that Boston Boat was negligent in its failure to provide reasonable care under the circumstances by, inter alia: Failing to provide any warning(s) to the participants on the vessel regarding the risk of falling due to the ‘stop and go’ nature of the Winterfest Boat Parade; and/or failing to have any specific policies and procedures in place regarding providing warnings to prevent slip and falls generally, and more specifically during the Winterfest Boat Parade, particularly where there is open bar service; and/or failing to properly navigate the subject vessel during the subject Winterfest Boat Parade.

In support of these allegations of negligence, the record evidence includes, but is not limited to:

• Video of the subject incident showing a sudden sharp movement of the vessel followed by the passenger falling into J.G. and knocking him over. Exhibit 1.
• Deposition testimony of Boston Boat Senior Deckhand Gillian Langford (Senior deckhand of vessel at time of incident), who admitted that a warning should have been given to passengers to use caution while the vessel was underway. Exhibit 2 at 37:13 – 24.
• Langford further admitted that during the Winterfest Boat Parade, when there’s basically unlimited alcohol being served to passengers, that there would be even more of a need to give some type of general safety warning about preventing falls to the passengers at the beginning of the Voyage. Id. at 45:4 – 14.
• Lastly, Langford testified the subject Winterfest Boat Parade event on the vessel was “just a big party going onboard the ship.” Id. at 43:9 – 14.
• Deposition testimony of J.G.. Exhibit 3. J.G. testified regarding the abrupt, sharp movement(s) of the Island Adventure immediately prior to the incident as follows: “we definitely stopped in reverse direction and I went forward again definitely.” (Ex. 3, 45:10 – 11).
• Additionally, J.G. testified regarding the Captain’s announcement encouraging the uncontrolled service and consumption of alcohol, as follows: “everything was free, hard alcohol, beer, wine. And if — we didn’t want to restock anything. We wanted everybody to hog it up and finish it. And that was his exact announcement…” Id. at 31:8 – 11.
• Deposition testimony of the President / Corporate Representative of Boston Boat, William Walker, Exhibit 4. Walker / Boston Boat testified that Boston Boat has no specific written policies or procedures that are directed to prevent people from falling on ships. Id. At 101:13-18. Walker / Boston Boat also testified that Boston Boat has no specific written policies or procedures regarding the sale of alcohol on its ships. Id. At 102: 8-12.
• Deposition testimony of witness Connie Doty. Exhibit 5. Doty corroborates the sharp abrupt movements of the Island Adventure immediately prior to the subject incident. She testified: “…you could feel the stop, and then the boat went into reverse, and you could feel that — the shutter from that, and then it started to go forward, again.” (Ex. 5, at 15:7 – 11).
• Doty also testified regarding the absence of any safety announcement while aboard the Island Adventure. When asked whether the captain or crew provided any announcements before the boat left, she answered “None…No announcements, at all.” Id. at 15:7 – 11.
• Doty also testified that at the beginning of the voyage, the Captain made a statement as follow: “Make sure you drink all this beer, we don’t want to take any of it home with us.” Id. At 40:2-5.
• Deposition Testimony of Captain Christopher Botsolis (Captain of vessel at time of incident). Exhibit 6. Botsolis testified that at the time of the incident, the vessel rotated towards the wind a little bit, then rotated back and went forward. Id. At 39:1-6. Bostolis also testified there is a real stop and go nature to the Winterfest Boat Parade. Id at 49:12-14.

All of this record evidence wholly support’s J.G.’s argument that Boston Boat was negligent in its failure to provide reasonable care under the circumstances by failing to provide any warning to the participants on the vessel regarding the risk of falling due to the ‘stop and go’ nature of the Winterfest Boat Parade, particularly where there is open bar service; and/or failing to properly navigate the subject vessel during the subject Winterfest Boat Parade. Construing all reasonable inferences in favor of the non-moving party, J.G., a fact finder could easily find that the alleged negligence of Boston Boat caused or contributed to this passenger falling into J.G. and seriously and permanently injuring him.

Stated simply, where a boat owner knows full well of the unique, stop and go conditions of the Winterfest Boat Parade, yet does nothing to warn its passengers of this danger, it is common sense that this failure will likely result in people falling and causing injury.

Add to that, you have a Captain who admits to performing a stopping and rotating motion, while giving no warning to the passengers, and you are approaching a near certainty that this will cause injury.

Add to that, open bar service, and the injury to J.G. was not only foreseeable it was almost a foregone conclusion.

Boston Boat has had at least five (5) prior slip and fall incidents on its ships. Boston Boat was fully aware of the dangers associated with people falling and with the dangers of the Winterfest Boat Parade, and yet Boston Boat literally did nothing to prevent this incident. Boston Boat’s alleged negligence directly caused J.G.’s severe and permanent injuries.

At a minimum, based on the record evidence, there is a reasonable basis for concluding that the acts of Boston Boat were substantial factors in bringing about the injuries to the J.G..

Briefly, Boston Boat makes the passing argument that it did not have notice of the risk creating condition. Motion, p. 10-11. This argument fails because there is ample record evidence regarding notice. As set out above, Boston Boat’s owner and Corporate Representative testified that in light of the fact that there were five prior lawsuits related to slip and falls, he and Boston Boat was on notice of the risk of people slipping and falling on his taxis. Exhibit 4, 65:3-12. Further, Walker / Boston Boat testified he/it was aware of the risks of participation in the Winterfest Boat Parade. Id. At 111: 5-13. As such, notice is a disputed issue of material fact.

Next, Boston Boat also briefly argues that they do not have to provide warnings of an open and obvious condition. Motion, p. 11. This too is easily disposed of because there is record evidence showing that the majority of passengers onboard the Island Adventure “are not nautically savvy”, “so they’re not going to be aware generally of the conditions that one would face when on the water.” See Exhibit 2, p 28 line 25 – p. 29 line 8. As such, it is a disputed issue of material fact as to whether the risks faced at sea were open and obvious.

Next, Boston Boat makes much of the fact that Claimant’s liability expert, in his preliminary report, stated that the alleged negligence “may have” contributed the injury to J.G.. This argument fails because Allen’s report is not evidence. Allen is scheduled to be deposed on July 9, 2015. More importantly, even without Allen’s testimony or report, there is adequate record evidence which makes it reasonable to infer that the alleged negligence caused or contributed to the subject incident.

Next, Boston Boat attempts to pick apart each of Claimant J.G.’s various theories of liability and argues they are “pure speculation without any factual underpinnings.” Motion, p. 10. This argument is devoid of merit as ample record evidence has been repeatedly set forth herein. More importantly, while there are certainly distinct arguments of liability herein, they should be considered together in totality, rather than as separate and distinct. Considering all arguments together is the only way to adequately address whether Boston Boat acted with reasonable care under the circumstances.

Nonetheless, as to Boston Boat’s argument regarding Alcohol consumption. Boston Boat claims that the record does not support J.G.’s position that alcohol service was uncontrolled and no policies were in place. Motion at 12. However, based on the record evidence relied upon throughout this document, it is clear that both the service and consumption of alcohol was uncontrolled by Boston Boat.

Boston Boat further argues that J.G. failed to connect the alleged uncontrolled service of alcohol to his incident. Id. However, as repeatedly argued, it was not just the service of alcohol alone that caused or contributed to the incident, it was the alleged combination of uncontrolled service and consumption of alcohol, the stopping, starting, reversing and then putting the boat in gear, the lack of handholds available during the abrupt movements, the poor condition of the carpet, along with the fact that the Captain nor its crew never gave any warnings regarding the serious risk of injury due to slip and falls and the stop and go nature of the Parade. It is the totality of the alleged negligence which creates the connection between the alleged theories of negligence and the incident.

Lastly, Boston Boat takes issue with J.G.’s theory of negligent navigation. Boston Boat claims that the “Claimant cannot present evidence that the operation of the vessel was a substantial factor in causing the unidentified lady to fall into Plaintiff.” Id. at 14. J.G. relies on the arguments and record evidence cited throughout this document. Most notably, however, J.G. relies on a video of the incident which shows the Island Adventure traveling backward and then abruptly beginning to travel forward. Immediately as the vessel begins to travel forward, other passengers can be seen losing their balance and the unidentified lady falls into Mr. J.G.. The video of the incident is supported by the deposition testimony of Connie Doty, J.G., as well as by the J.G.’s Liability Expert. The record evidence supports the notion that the alleged navigational error was a substantial factor in causing J.G.’s injuries.

In sum, despite Boston Boat’s efforts to pick apart each of Claimant’s theories of liability, it should be clear to this Honorable Court that there are numerous disputed issues of material fact such that Summary Judgment is improper.

IV. Boston Boat is NOT Entitled to Limit its Liability to the Value of the Island Adventure Because the Owner, William Walker, had Actual and Constructive Knowledge of the Negligent Acts Occurring aboard the Island Adventure on the Night of the Incident

In less than two (2) pages of argument, Boston Boat also tries to limit its liability to the value of the vessel. This argument is quickly disposed of because the issue is not properly decided at this stage, and at worst, the issue is one which is a disputed issue of material fact.

As noted in Boston Boat’s Motion, in determining whether a vessel owner is entitled to limited liability, the Admiralty Court goes through a two-step analysis. First, the Court determines what acts of negligence or conditions of unseaworthiness caused the accident. Second, the Court determines whether the shipowner had knowledge or privity of those same acts of negligence or conditions of unseaworthiness. See Hercules Carrier, Inc. v. Claimant State of Florida, 768 F.2d 1558, 1563-64 (11^th Cir.1985) (quoting Farrell Lines, Inc. v. Jones, 530 F.2d 7, 10 (5^th Cir.1976)). As such, on its face, herein, where this Honorable Court has not yet made any determination regarding negligence, it is premature to determine privity or knowledge of the shipowner. For this reason alone, the motion should be denied.

Nonetheless, “[P]rivity or knowledge” generally refers to the vessel owner’s personal participation in, or actual knowledge of, the specific acts of negligence or conditions of unseaworthiness which caused or contributed to the accident. Suzuki of Orange Park, Inc. v. Shubert, 86 F.3d 1060, 1064 (11^th Cir. 1985) (citing Coryell v. Phipps, 317 U.S. 406, 411 (1943)). However, privity and knowledge also includes “constructive knowledge-what the vessel owner could have discovered through reasonable inquiry.” Suzuki of Orange Park, Inc. v. Shubert, 86 F.3d 1060, 1064 (11^th Cir. 1985); See, e.g., In re Oil Spill by the AMOCO Cadiz, 954 F.2d 1279, 1303 (7th Cir.1992) (“The recent judicial trend has been to enlarge the scope of activities within the ‘privity or knowledge’ of the shipowner, including … requiring shipowners to exercise an ever-increasing degree of supervision and inspection.”)

Herein, the issue of privity or knowledge, i.e. notice, is simplified because there is ample record evidence regarding notice. As set out above, Boston Boat’s owner and Corporate Representative testified that in light of the fact that there were five prior lawsuits related to slip and falls, he and Boston Boat was on notice of the risk of people slipping and falling on his taxis. Exhibit 4, 65:3-12. Further, Walker / Boston Boat testified he personally was aware, and the company was aware, of the risks of participation in the Winterfest Boat Parade. Id. At 111: 5-13.

Furthermore, Mr. Walker testified that he had participated in the Winterfest Boat Parade prior to the incident in 2012. Therefore, Mr. Walker and his company certainly had knowledge of the unique risks that came with participating in the Winterfest Boat Parade. Accordingly, notice and/or privity and/or knowledge, is, at worst, a disputed issue of material fact.

Furthermore, in the context of a corporate shipowner, such as herein, the privity and knowledge of “corporate managers vested with discretionary authority” is attributed to the corporation. Suzuki of Orange Park, Inc. v. Shubert, 86 F.3d 1060, 1064 (11^th Cir. 1985) (citing Great Lakes Dredge & Dock Co. v. City of Chicago, 3 F.3d 225, 231 (7^th Cir. 1993); see also Coryell v. Phipps, 317 U.S. 406, 410-411 (1943) (explaining that a corporate shipowner may not limit its liability where “the negligence is that of an executive officer, manager or superintendent whose scope of authority includes supervision over the phase of the business out of which the loss or injury occurred”). Herein, Boston Boat argues that Boston Boat cannot be responsible for any navigational error by the Captain, but this is incorrect legally and factually because Boston Boat concedes that the Captain was performing a managerial or supervisory role, and as such, the knowledge of the Captain is imputed to the corporate shipowner. See Exhibit 4, Depo. of Walker at 28:18 – 23; p. 111: 20 – 112: 5.

V. Conclusion

For the reasons stated herein, Boston Boat’s Motion for Summary Judgment should be denied in its entirety.

CERTIFICATE OF SERVICE

I hereby certify that on this 6^th day of July 2015, I electronically filed the foregoing document with the Clerk of the Court using CM/ECF. I also certify that the foregoing document is being served this day on all counsel of record or pro se parties identified on the attached Service List in the manner specified, either via transmission of Notices of Electronic Filing generated by CM/ECF or in some other authorized manner for those counsel or parties who are not authorized to receive electronically Notices of Electronic Filing.

Respectfully submitted,

 

LIPCON, MARGUILIES

ALSINA & WINKLEMAN, P.A.

Attorneys for Plaintiff

One Biscayne Tower, Suite 1776

2 South Biscayne Boulevard

Miami, Florida 33131

Telephone: (305) 373-3016

Facsimile: (305) 373-6204

 

By: /s/ Peter J. Ridge                   

MICHAEL A. WINKLEMAN

Florida Bar No. 36719

PETER J. RIDGE

Florida Bar No. 114263

[1] As set out in Claimant’s Motion for Sanctions for Spoliation of Evidence [DE 57], after this incident in December 2012, Boston Boat completely changed the upper-level of the Island Adventure, making it impossible to inspect the boat in its condition at the time of the incident. As set out in the Motion for Sanctions, Boston Boat had a duty to preserve the boat and the evidence related to the incident. Boston Boat breached their duty when they decided to demolish the scene of the incident and destroy vital evidence one year after litigation began. Boston Boat further breached their duty when they did not give Plaintiff’s counsel notice prior to destroying evidence. Boston Boat’s actions are even more egregious due to the fact that Boston Boat’s Counsel knew that evidence was being destroyed and did nothing to mitigate the situation. J.G. submits that this egregious conduct supports a finding of spoliation of evidence and the harshest of sanctions against Boston Boat. A hearing on the Motion for Sanctions for Spoliation is set before the Honorable Judge Goodman on August 12, 2015. As it relates to the instant response to the Motion for Summary Judgment, it would be unfair and untenable to grant Summary Judgment in a case where the Claimant was precluded from ever inspecting the scene of the incident, prior to its intentional destruction by the Respondent Boston Boat.

 

[2] Boston Boat and its related or affiliated companies ultimately provide Water Taxi Service in the Ft. Lauderdale area. See, e.g. www.watertaxi.com

[3] See Ex. 1, Video of Subject Incident.