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Christie L. Soto, as Personal Representative v. McCulley Marine Services, Inc., Case No. 2D13-1620 (2nd DCA)

In Soto, the Second District reversed and remanded for a new trial in a wrongful death action following judgment for the defense. On July 4, 2009, the plaintiff’s decedent was jet skiing near Longboat Pass in Manatee County. He became separated from his jet ski and was later found deceased underneath a nearby barge with his life jacket still on. The plaintiff brought suit against the companies who previously moored a tugboat and the barge to the dock where the incident occurred. At trial, the plaintiff argued that the configuration of the tugboat and barge enhanced the current, causing the decedent to be swept under the vessels despite his use of the life jacket. The accident was investigated by the Florida Fish and Wildlife Conservation Commission, who did not cite the defendants with any violation of the law. The trial court initially granted a motion to exclude evidence of this fact. However, during trial, a juror asked whether any ticket was written citing the law that was broken. The defendant asserted that the plaintiff had opened the door to evidence of no citation being issued by arguing that the defendants had violated a federal regulation. The trial court agreed and informed the jury that the answer was no, over the plaintiff’s objection.

The Second District noted that “it is now very well established that evidence of a citation or lack thereof is inadmissible at trial.” “The negligence standard employed by juries is not the same as the standard used by individual law enforcement officers when deciding whether to write a ticket.” Admission of such evidence “constitutes prejudicial error, even in cases in which the trial court has given a curative instruction.” The Second District additionally rejected the argument that the plaintiff had opened the door to this otherwise inadmissible evidence. “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.” The Second District therefore reversed and remanded for a new trial.


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