T.G. and F.G. vs K.K. vs A.G.

Lipcon, Margulies, Alsina & Winkleman, P.A

June 12, 2015

T.G. and F.G. vs K.K. vs A.G.

Summary

This is a Joint Pretrial Stipulation that was filed before trial in a case involving an individual was negligently allowed to operate a wave runner even though it was known that she had no prior training in the operation of a personal watercraft and had never operated a personal watercraft before. During the course of operating the wave runner, the individual crashed and sustained numerous severe injuries. Ultimately, the experienced trial attorneys at Lipcon, Margulies, Alsina & Winkleman, P.A. were successful in the trial, rendering a verdict in favor of the individual.

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

FORT LAUDERDALE DIVISION

IN ADMIRALTY

CASE NO. 12-61458-CIV-RNS

 

In the matter of: T.G. and

F.G., as owners of a

2012 11’ Sea-Doo Bombarder 21CA,

Hull Identification Number YDV22280B212,

for Exoneration from and Limitation of Liability,

Petitioners/Counter-Defendants (“Owners”),

v.

K.K.,

Respondent/Counter-Claimant/Third-Party

Plaintiff (“Claimant”),

v.

A.G.,

Third-Party Defendant.

                                                                                    /

 

JOINT PRETRIAL STIPULATION

 

The Respondent/Counter-Claimant/Third-Party Plaintiff, K.K., and Third-Party Defendant, A.G., by and through undersigned counsel and pursuant to this Second Amended Scheduling Order [D.E. 114], Order Granting Motion and Setting Bench Trial [D.E. 125], and Local Rule 16.1(e), hereby file their Joint Pretrial Stipulation as follows:

(I) A short concise statement of the case by each party in the action.

A. The Claimant’s Statement of the Case

The instant matter arises out of an accident that occurred on March 1, 2012 involving two 2012 11’ Sea-Doo Bombardier wave runners. Specifically, the Claimant alleges that A.G. negligently allowed K.K. to operate the wave runner even though it was known to him that she had no prior training in the operation of a personal watercraft and had never operated a personal watercraft before. [D.E. 9, p. 9, ¶25]. The Claimant further alleges that despite her inexperience, A.G. (who was operating the second wave runner) instructed her to follow him while driving at excessive high rates of speed and taking sharp turns. [D.E. 9, p. 9, ¶¶28, 30]. The Claimant, however, alleges that she was not able to follow one of the sharp turns A.G. took, which caused her to collide into a dock and get thrown into the water. [D.E. 9, p. 9, ¶30]. As a result thereof, the Claimant alleges that she sustained severe injuries to her hip requiring intensive debridement surgery, punctured lungs, and fractures to her ankle, humerus and pelvis. [D.E. 9, pp. 9-10, ¶31].

B. Third-Party Defendant’s Statement of the Case

F.G. and T.G. filed a Complaint for Exoneration from or Limitation of Liability. This Court granted summary judgment in favor of F.G. and T.G. finding that there was no evidence of negligence, both F.G. and T.G. were owners, and there is no evidence that A.G. was F.G. and T.G.’s representative regarding who could operate their PWCs. [D.E. 81] Ms. K.K. appealed the order granting summary judgment, and the 11th Circuit Court of Appeals affirmed, concluding that “[K.K.] cannot show that F.G. and T.G. were in any way negligent.”

The present action involves K.K.’s claim of negligent entrustment against A.G. Ms. K.K. claims that A.G. negligently entrusted a PWC to her, and as a result of her inexperience and lack of knowledge she collided with a fixed dock. This Court previously granted summary judgment on Plaintiff’s claim of negligence per se leaving only the claim of negligent entrustment. [D.E. 118]. In that ruling the Court described the case as a classic “he said, she said,” in regards to whether A.G. insisted that K.K. operate the PWC or if Ms. K.K. took on the responsibility herself to operate the PWC.

The accident was caused solely by K.K.’s own negligent acts including failing to heed the warning labels, traveling at excessive speeds, failing to comply with posted speed restrictions, and failing to take action to avoid a collision. Ms. K.K. was a passenger on the subject PWC for three hours and operated the subject PWC for one hour before the incident. At the time of the incident she was an experienced operator. A.G. was operating a second PWC that was not involved in the accident and was not in the immediate area of the accident. There is no evidence that any action by A.G. contributed to the incident. The Court previously ruled that there was no evidence that A.G. violated any statute or that if there was a violation that it was the proximate cause of K.K.’s alleged injuries. [D.E. 118, pg.6] The cause of the accident is clear. Ms. K.K. testified that the cause of the incident was her failure to give the PWC throttle while turning. This Court has already ruled that, “[K.K.’s] per se violation of a statute caused the allision, not A.G.’s.” [D.E. 118, pg.6]

(2) The basis of federal jurisdiction.

This matter falls under the admiralty and maritime jurisdiction of this Court pursuant to Federal Rule of Civil Procedure Rule 9(h).

(3) The pleadings raising the issues.

A. Respondent/Counter-Claimant/Third-Party Plaintiff, K.K.’S Third-Party Complaint against A.G., dated September 5, 2012. [D.E. 9].

B. G.’S Answer and Affirmative Defenses, dated October 16, 2012. [D.E. 15].

(4) A list of all undisposed of motions or other matters requiring action by the Court.

At this time, there are no pending motions before this Honorable Court.

(5) A concise statement of uncontested facts which will require no proof at trial, with reservations, if any.

A. In February of 2012, A.G.’s father, T.G., purchased two new 2012 11’ Sea-Doo Bombardier PWCs.

B. The 2012 11’ Sea-Doo Bombardier PWCs were owned by T.G. and F.G.

C. A.G. met K.K. the evening of February 29, 2012.

D. The following day (March 1, 2012) at around noon, A.G.’s friend, R.M.,[1] and K.K. went to A.G.’s house (which was also his parents’ home).

E. A.G. and R.M. were experienced PWC operators.

F. Before departing the G. home, K.K. informed A.G. that she had no experience operating or riding PWCs.

G. At approximately 1:00 p.m., A.G. boarded one PWC, and R.M. boarded the other PWC with K.K. as a passenger behind R.M.

H. R.M. and A.G. operated the PWCs through the Intracoastal Waterway in Fort Lauderdale, Florida, to the Atlantic Ocean. R.M. and A.G. operated the PWC’s in the Atlantic Ocean at various speeds. After approximately 3 hours of operation, the group returned to the Intracoastal Waterway and went to English Park in Fort Lauderdale, Florida.

I. At English Park, K.K. began operating the PWC.

J. A.G. witnessed K.K. operating the PWC in English Park, and told her to follow him home via the Intracoastal Waterway.

K. At approximately 5:00 p.m., K.K. crashed into a fixed dock located near 2200 Intracoastal Drive, Fort Lauderdale, Florida.

L. The Intracoastal Waterway was approximately 300 feet wide at the area of the incident.

[1] Formerly known as R.D.L.N.

M. The subject jet skis included a “learning key.”

N. A.G. was aware that the jet skis included a learning key.

O. The learning key would have restricted the speed of the PWC to 25 m.p.h.

(6) A statement in reasonable detail of issues of fact which remain to be litigated at trial.

A. Whether K.K. had sufficient experience both as a passenger and operator prior to the allision.

B. Whether K.K. requested to operate the PWC, or whether A.G. instructed K.K. to switch places with R.M.

C. Whether A.G. was negligent in:

i. Failing to provide K.K. instruction and/or warning prior to her riding and/or operating the PWC;

ii. Allowing and/or instructing K.K. to operate the PWC;

iii. Entrusting K.K. with the PWC;

iv. Instructing K.K. to follow him;

v. Traveling at unsafe speeds and/or making unsafe turns;

vi. Failing to inform K.K. that a learning key existed; and/or

vii. Failing to provide K.K. a learning key.

D. Whether A.G.’s negligence was the proximate cause of K.K.’s injuries.

E. Whether the incident was foreseeable by A.G.

F. Whether the use of the learning key would have prevented the accident.

G. Whether K.K. was at fault for:

i. Violating Rule 2 (Responsibility) of the International Regulations for Preventing Collisions at Sea which mandates that the operator is responsible to comply with the Rules and to act in accordance with the ordinary practice of seaman;

ii. Violating Rule 5 (Lookout) of the International Regulations for Preventing Collisions at Sea which requires every vessel to maintain a proper look-out “to make a full appraisal of the situation and the risk of collision;”

iii. Violating Rule 6 (Safe Speed) of the International Regulations for Preventing Collisions at Sea which states that “[e]very vessel shall at all times proceed at a safe speed so that she can take proper and effective action to avoid collision and be stopped within a distance appropriate to the prevailing circumstances and conditions;”

iv. Violating Rule 8 (Action to Avoid Collision) of the International Regulations for Preventing Collisions at Sea, which states that “[a]ctions taken to avoid collision should be: positive, obvious, and made in good time;”

v. Failing to ask for instruction;

vi. Asking to take over the controls of the PWC;

vii. Taking over the controls of the PWC; and/or

viii. Failing to read and heed the warning labels on the PWC;

(7) A concise statement of issues of law on which there is agreement.

A. The general maritime law of the United States applies to this case.

(8) A concise statement of issues of law which remain for determination by the Court.

A. Whether A.G. owed K.K. a duty of care.

B. Whether, based on the Pennsylvania Rule and Oregon Rule, K.K. is presumed at fault, and if so whether she has rebutted the presumption of fault.

(9) Each party’s numbered list of trial exhibits, other than impeachment exhibits, with objections, if any, to each exhibit, including the basis of all objections to each document, electronically stored information and thing.

The Claimant’s Exhibit List is attached hereto as Exhibit 1.

A.G.’s Exhibit List is attached hereto as Exhibit 2.

(10) Each party’s numbered list of trial witnesses, with their addresses, separately identifying those whom the party expects to present and those whom the party may call if the need arises.

The Claimant’s Witness List is attached hereto as Exhibit 3.

A.G.’s Witness List is attached hereto as Exhibit 4.

(II) Estimated trial time.

The parties estimate that the bench trial will take two days, and it is specially set for June 22 and June 23, 2015. [D.E. 125].

(12) Where attorney’s fees may be awarded to the prevailing party, an estimate of each party as to the maximum amount properly allowable.

Neither the Claimant nor the Third-Party Defendant claims entitlement to attorney’s fees at this time.

Respectfully submitted,

/s/ Jason R. Margulies                        

JASON R. MARGULIES

Florida Bar No. 57916

MICHAEL A. WINKLEMAN

Florida Bar No. 36719

LIPCON, MARGULIES,

ALSINA & WINKLEMAN, P.A.

One Biscayne Tower, Suite 1776

2 South Biscayne Boulevard

Miami, Florida 33131

Telephone No.: (305) 373-3016

Facsimile No.: (305) 373-6204

Attorneys for Claimant

– and –

/s/ Jonathan H. Dunleavy                               

  1. Michael Pennekamp

Jonathan H. Dunleavy

FOWLER WHITE BURNETT, P.A.

Espirito Santo Plaza, Fourteenth Floor

1395 Brickell Avenue

Miami, Florida 33131

Telephone: (305) 789-9200

Facsimile: (305) 789-9201

Attorneys for the G.’s

CERTIFICATE OF SERVICE

I hereby certify that on June 12, 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 electronically Notices of Electronic Filing.

By: /s/ Jason R. Margulies                                    

JASON R. MARGULIES

[1] Formerly known as R.D.L.N.