ALTENBERND, Judge.
Christie L. Soto, as personal representative of the Estate of Jose H. Medina, appeals a final judgment in favor of
In 2009, Manatee County had an ongoing, permitted program to establish artificial reefs in the Gulf of Mexico offshore from the beaches at the City of Bradenton Beach. The program required large quantities of concrete debris and other materials to be transported by barge to the desired locations. To facilitate this activity, Manatee County had established a staging area with a dock at the southeast end of Anna Maria Island, essentially just inward from the bridge over Longboat Pass. This staging area was in or immediately adjacent to Coquina Beach and Bayside Park. Especially on weekends and holidays, that park is used by many people who are seeking to enjoy the water. In 2009, it was particularly popular for people who used jet skis or personal watercraft.
The Defendants were engaged by Manatee County
Longboat Pass is known to have tidal currents that can be quite strong. On the afternoon of July 4, when the tidal currents were allegedly strong, Mr. Medina was operating a jet ski near the tugboat and barge. The jet ski stalled and he could not restart it. His friends came to help, but Mr. Medina became separated from the jet ski. Apparently, no one witnessed him drown, but he was found under the barge with his life jacket still on. The Estate claims that the current, enhanced by the configuration of the tugboat and barge, caused Mr. Medina to be swept under the vessels despite his use of the life jacket.
The Estate had at least three theories of negligence at trial. The Estate's best theory was that this experienced, licensed captain knew or should have known that his tug boat and barge were moored in an area where jet skis would be used extensively over the holiday weekend by relatively inexperienced jet skiers. He should have appreciated that the Defendants' vessels were moored in a configuration that would increase the speed and force of the current, creating a hidden danger for any jet skier who might enter the water. The Estate claimed that the captain should either have anchored the vessels outside the pass for the weekend or should have provided adequate warnings for the jet skiers to keep a safe distance from the vessels. The Estate maintained that these acts or omissions negligently contributed to Mr. Medina's death. The Estate alternatively argued that the captain had negligently obstructed the waterway and contributed to Mr. Medina's death because he had violated a U.S. Coast Guard regulation, 33 C.F.R. § 162.65 (2009), when he moored the tugboat and barge at the staging dock. The Estate also tried the case on the theory that the captain had been negligent in failing to "sufficiently crew" the vessels while they were moored at the staging dock on the Fourth of July.
During the Estate's case in chief, one of the jurors submitted several questions. One question asked: "Did [the FWC officer] or any other law enforcement officer write a ticket to the captain or owner of the vessel citing the law that was broken?" The Defendants wanted the trial court to answer this question and claimed that the Estate had opened the door to this evidence by attempting to prove that the Defendants had violated 33 C.F.R. § 162.65. The trial court agreed and, over the Estate's objection, informed the jury that the answer to the question was "no." The Estate moved for a mistrial, arguing that the court's answer to this question constituted prejudicial error that denied the Estate's right to a fair trial and could not be cured with any instruction. The trial court denied the motion.
Thereafter, in closing argument, the Defendants maintained that the absence of a citation supported their argument that they did not cause or contribute to this accident. Counsel for the Defendants argued that:
Following deliberations, the jury returned a verdict answering in the negative the single question: "Was there negligence on the part of Defendants McCulley Marine Services, Inc., and Pine Island Towing Company[,] which was a legal cause of death of Jose H. Medina?" The trial court entered a final judgment on this verdict, and the Estate appealed.
Given the large number of negligence cases that have arisen from automobile
We reject the trial court's conclusion that the Estate opened the door to this otherwise inadmissible evidence. The Estate, in arguing that the Defendants were negligent because they violated a certain Coast Guard regulation, did nothing more than a plaintiff might do in an automobile accident case in arguing that the defendant was negligent because he or she ran a stop sign or failed to obey some other traffic regulation. See, e.g., Shaver v. Carpenter, 157 So.3d 305, 307 (Fla. 2d DCA 2014) (reversing judgment for the plaintiffs in a personal injury case in which the plaintiffs' theory was that the defendant was negligent because he violated the right of way and remanding for a new trial because the trial court allowed the investigating officer to testify that the defendant violated the right of way and the plaintiff did not). Arguing that a defendant violated a provision of law that is relevant to the determination of negligence simply does not open the door to admitting a law enforcement officer's decision on whether to issue a citation for that violation. Such evidence is particularly prejudicial when it comes from the trial court itself, as it did here.
This trial was long, and some of the theories were complex. It is unfortunate to require a new trial for a single error. We have carefully reviewed the long record. As quoted above, the Defendants' closing argument emphasized the court's statement to the jury that the captain received no citation. This was done in conjunction with an argument that "no law" suggests that "the captain must behave any differently" on the Fourth of July. But the law of negligence does require a person to take reasonable care in light of all of the circumstances. In this case, those circumstances did include the fact that the tugboat and barge would be surrounded by a large number of relatively inexperienced jet skiers on a holiday weekend. Under the applicable law, we conclude that this error requires a new trial.
Reversed and remanded.
KHOUZAM and SALARIO, JJ., Concur.