Jane Doe v. Deep Sea Charters, Inc. d/b/a Windrage Yacht Charters, Inc.

Lipcon, Margulies, Alsina & Winkleman, P.A

July 26, 2013

Jane Doe v. Deep Sea Charters, Inc. d/b/a Windrage Yacht Charters, Inc.

Complaint

Injuries happen on all different kinds of vessels ranging from jet skis to cruise ships. In Florida, a lot of accidents happen on charter vessels of many different sizes. Whether you work aboard a charter vessel or are simply enjoying a day on the ocean while on vacation, if you sustain an injury it is important to speak with an experienced maritime lawyer. In this complaint, a crewmember aboard a dinner cruise boat was hurt when she slipped and fell due to an unsafe condition on the vessel.

IN THE CIRCUIT COURT OF THE 17TH JUDICIAL CIRCUIT IN AND FOR BROWARD COUNTY, FLORIDA

GENERAL JURISDICTION DIVISION
JANE DOE CASE NO.:
Plaintiff,

vs.

DEEP SEA CHARTERS, INC., d/b/a
WINDRAGE YACHT CHARTERS, INC.
Defendant.
_____________________________ /

COMPLAINT AND DEMAND FOR JURY TRIAL

Plaintiff sues Defendant and alleges:

PRELIMINARY ALLEGATIONS
1.Plaintiff, JANE DOE (“Plaintiff”), is a resident of Florida..
2.Defendant, DEEP SEA CHARTERS, INC., d/b/a WINDRAGE YACHT CHARTERS, INC. (Hereinafter “DEAP SEE CHARTERS, INC.”) is a corporation incorporated under the laws of Florida, with its principal place of business in Fort Lauderdale, Florida.
3.This is an action for damages in excess of $15,000.
4.The allegations which are the subject of this complaint occurred in whole or in part in Florida.
5.Defendant is subject to the jurisdiction of the Courts of this State.
6.The causes of action asserted in this Complaint arise under the General Maritime Law of the United States and the Jones Act, 46 U.S.C. § 30104 , and as such the Defendant is subject to the jurisdiction of the Courts of this State under Admiralty jurisdiction, 28 U.S.C. 1333.
7.At all times material hereto, DEEP SEA CHARTERS, INC. owned, operated, managed, maintained and/or controlled the vessel, Windridge K., which is based in Ft. Lauderdale, Florida.
8.At all times material hereto, Plaintiff’s employer was the ship owner, an agent of the ship owner and/or ship operator.
9.On or about January 29, 2011, Plaintiff was employed as a seaman and was a member of the Windridge K’s crew. The vessel was in navigable waters.
10.On or about the above referenced date, Plaintiff was injured while in the service of the vessel as follows: Plaintiff was cleaning the floor and while the floor was still wet, another crewmember placed a slippery mat onto the floor. When Plaintiff stepped on the mat, it skidded out from under her, causing her to fall and sustain injury.

COUNT I – NEGLIGENCE

Plaintiff realleges, adopts, and incorporates by reference the allegations in paragraphs one (1) through ten (10) as though alleged originally herein and further alleges:

11.At all times material hereto, it was the duty of Defendant to provide Plaintiff with a reasonably safe place to work.
12.On or about January 29, 2011, Defendant and/or its agents, servants, and/or employees breached its duty to provide Plaintiff with a reasonably safe place to work.
13.Plaintiff was injured due to the fault and/or negligence of Defendant, and/or its agents, servants, and/or employees as follows:
a.Failure to maintain proper and/or adequate crew onboard Defendant’s vessel in order to enable Plaintiff to carry out her duties in a reasonably safe manner; and/or
b.Failure to maintain proper and adequate equipment onboard Defendant’s vessel in order to enable Plaintiff to carry out her duties in a reasonably safe manner; and/or
c.Failure to promulgate and enforce reasonable rules and regulations to ensure the reasonable safety of Plaintiff while engaged in the course of her employment on the subject vessel; and/or
d.Failure to provide proper and adequate training to Plaintiff and/or other crewmembers aboard the vessel; and/or
e.Failure to warn Plaintiff and/or other crewmembers of slipping hazards; and/or
f.Failure to supervise Plaintiff and/or other crewmembers so as to ensure that proper cleaning procedures are followed on the vessel; and/or
g.Failure to follow sound management practices with the goal of providing Plaintiff a reasonably safe place to work; and/or
h.Failure to investigate possible hazards to Plaintiff in the subject area where she fell; and/or
i.Failure to modify or eliminate the hazard to Plaintiff and/or warn Plaintiff of the hazard; and/or
j.Failure to utilize appropriate safety warnings such as cones and/or signs in the subject area; and/or
k.Failure to close off the subject area after cleaning and before drying; and/or
l.Failure to utilize proper and/or adequate floor mats in the subject area; and/or
m.Failure to utilize a non-skid flooring surface in the subject area.

All of which caused the Plaintiff to be injured.

14.In addition, at all times material hereto, Defendant violated the International Safety Management Code and failed to have a proper, adequate and safe Safety Management System Manual and/or to follow it on board the vessel on which Plaintiff served. All of the above caused Plaintiff to be injured.
15.Defendant knew of the foregoing conditions causing Plaintiff’s accident and did not correct them, or the conditions existed for a sufficient length of time so that Defendant in the exercise of reasonable care should have learned of them and corrected them.
16.As a direct and proximate result of Defendant’s negligence, the Plaintiff was injured about Plaintiff’s body, suffered physical pain and suffering, mental anguish, reasonable fear of developing future physical and medical problems, loss of enjoyment of life, physical disability, impairment, inconvenience in the normal pursuits and pleasures of life, feelings of economic insecurity caused by disability, disfigurement, aggravation of any previously existing conditions therefrom, incurred medical expenses in the care and treatment of Plaintiff’s injuries, suffered physical handicap, lost wages, income lost in the past, and Plaintiff’s working ability and earning capacity has been impaired. The injuries and damages are permanent and continuing in nature and Plaintiff will suffer the losses and impairments in the future. In addition, Plaintiff in the past has lost fringe benefits that come with Plaintiff’s job, including, but not limited to free food, free shelter, free medical care and vacation.

WHEREFORE, the Plaintiff demands all damages entitled by law and trial by jury.

COUNT II – UNSEAWORTHINESS

Plaintiff realleges, adopts and incorporates by reference paragraphs one (1) through thirteen (10) as though originally alleged herein and further alleges:

17.On or about January 29, 2011, Plaintiff was a seaman and a member of the subject vessel’s crew, which was in navigable waters.
18.At all times material hereto, Defendant had a non-delegable duty to provide Plaintiff with a seaworthy vessel.
19.On or about January 29, 2011, the unseaworthiness of Defendant’s vessel was a legal cause of injury and damage to Plaintiff by reason of being unsafe and unfit due to the conditions created by Defendant as follows:
a.Failure to maintain proper and/or adequate crew onboard Defendant’s vessel in order to enable Plaintiff to carry out her duties in a reasonably safe manner; and/or
b.Failure to maintain proper and adequate equipment onboard Defendant’s vessel in order to enable Plaintiff to carry out her duties in a reasonably safe manner; and/or
c.Failure to promulgate and enforce reasonable rules and regulations to ensure the reasonable safety of Plaintiff while engaged in the course of her employment on the subject vessel; and/or
d.Failure to provide proper and adequate training to Plaintiff and/or other crewmembers aboard the vessel; and/or
e.Failure to warn Plaintiff and/or other crewmembers of slipping hazards; and/or
f.Failure to supervise Plaintiff and/or other crewmembers so as to ensure that proper cleaning procedures are followed on the vessel; and/or
g.Failure to follow sound management practices with the goal of providing Plaintiff a reasonably safe place to work; and/or
h.Failure to investigate possible hazards to Plaintiff in the subject area where she fell; and/or
i.Failure to modify or eliminate the hazard to Plaintiff and/or warn Plaintiff of the hazard; and/or
j.Failure to utilize appropriate safety warnings such as cones and/or signs in the subject area; and/or
k.Failure to close off the subject area after cleaning and before drying; and/or
l.Failure to utilize proper and/or adequate floor mats in the subject area; and/or
m.Failure to utilize a non-skid flooring surface in the subject area.
n.The vessel was not reasonably fit for its intended purpose;
o.The vessel’s crew was not properly trained, instructed or supervised, all of which caused Plaintiff to be injured.

All of which caused the Plaintiff to be injured.

20. As a result of the unseaworthiness of the vessel, the Plaintiff was injured about Plaintiff’s body, suffered physical pain and suffering, mental anguish, reasonable fear of developing future physical pain and suffering, mental anguish, reasonable fear of developing future physical and medical problems, loss of enjoyment of life, physical disability, impairment, inconvenience in the normal pursuits and pleasures of life, feelings of economic insecurity caused by disability, disfigurement, aggravation of any previously existing conditions there from, incurred medical expenses in the care and treatment of Plaintiff’s injuries, suffered physical handicap, lost wages, income lost in the past, and Plaintiff’s working ability and earning capacity has been impaired. The injuries and damages are permanent and continuing in nature and Plaintiff will suffer the losses and impairments in the future. In addition, Plaintiff in the past has lost fringe benefits that come with Plaintiff’s job, including, but not limited to free food, free shelter, free medical care, and vacation./p>

WHEREFORE, the Plaintiff demands all damages entitled by law and trial by jury.

COUNT III – FAILURE TO PROVIDE MAINTENANCE AND CURE

Plaintiff realleges, adopts and incorporates by reference paragraphs one (1) through ten (10) as though originally alleged herein and further alleges:

21.On or about January 29, 2011, Plaintiff was injured while in the service of the subject vessel as a crew member.
22.Under the General Maritime Law and by operation of treaty, Plaintiff, as a seaman, is entitled to recover maintenance and cure from Defendant until she is declared to have reached maximum medical improvement. Maintenance and cure include unearned wages (regular wages, overtime, vacation pay and tips) which are reasonably anticipated to the end of the contract or voyage, whichever is longer.
23.Under General Maritime Law and by operation of treaty, Plaintiff, as a seaman, is entitled to recover maintenance and cure from Defendant until she is declared to have reached maximum possible cure or maximum possible improvement. This includes unearned wages (regular wages, overtime, vacation pay and tips), which are reasonably anticipated, to the end of the contract or voyage, whichever is longer. Maintenance and cure is an on-going obligation of the Defendant from the date of the Plaintiff’s injury up through trial and at times beyond as Plaintiffs are allowed to bring serial lawsuits for maintenance and cure purposes. Although maintenance and cure can be properly terminated at the point when the crew member reaches Maximum Medical Improvement (MMI) and/or Maximum Medical Cure (MMC), it must be reinstated if the Plaintiff suffers a relapse of her condition that once again requires treatment to return the Plaintiff to an MMI/MMC status or if a cure becomes available that was not available to the Plaintiff at the time of the declaration of MMI/MMC. In addition, if an MMI/MMC declaration is challenged by another physician the conflict must be resolved in favor of the crew member receiving the additional care (treatment)/cure that is recommended.
24.After Plaintiff reported her injury to Defendant, Defendant failed to provide the Plaintiff with maintenance and/or cure.
25.Defendant’s failure to provide Plaintiff with maintenance and/or cure was willful and callous. In addition, Defendant’s refusal to pay Plaintiff’s maintenance and cure delayed Plaintiff’s ability to get timely medical care so that Plaintiff has become obligated to pay the undersigned a reasonable attorney’s fee.
26.Defendant’s failure to pay Plaintiff’s maintenance and cure is willful, arbitrary, capricious, and in callous disregard for Plaintiff’s rights as a seaman. As such, Plaintiff would be entitled to attorney’s fees under the General Maritime Law of the United States. Further, Defendant unreasonably failed to pay or provide Plaintiff with maintenance and cure, which aggravated her condition and caused Plaintiff to suffer additional compensatory damages, including, but not limited to, pain and suffering, reasonable fear of developing future physical and medical problems, mental anguish, loss of enjoyment of life, feelings of economic insecurity, as well as lost earning or earning capacity, and medical and hospital expenses in the past and into the future.

WHEREFORE, the Plaintiff demands all damages entitled by law and trial by jury.

COUNT IV – FAILURE TO TREAT

Plaintiff realleges, incorporates by reference and adopts paragraphs one (1) through ten (10) and twenty (20) through twenty-five (25) as though originally alleged herein and further alleges:
27.On or about the previously stated date, Plaintiff was employed by Defendant as a member of the vessel’s crew. The vessel was in navigable waters.
28.It was the duty of Defendant to provide Plaintiff with prompt, proper and adequate medical care.
29.Defendant negligently failed to provide Plaintiff with prompt, proper, adequate medical care after she sought treatment for her injuries. This conduct includes, but is not limited to:
a.Defendant not giving Plaintiff medical care in a timely manner after her initial injury and reporting of same; and/or
b.Denying Plaintiff’s numerous demands for treatment and payment of medical bills.
30.As a direct and proximate result of Defendant’s failure, Plaintiff suffered additional pain, disability and/or Plaintiff’s recovery was prolonged. In addition, the Plaintiff was injured about Plaintiff’s body and extremities, suffered physical pain and suffering, mental anguish, reasonable fear of developing future physical and medical problems, loss of enjoyment of life, physical disability, impairment, inconvenience in the normal pursuits and pleasures of life, feelings of economic insecurity caused by disability, disfigurement, aggravation of any previously existing conditions there from, incurred additional medical expresses in the care and treatment of Plaintiff’s injuries, suffered physical handicap, lost wages, income lost in the past, and Plaintiff’s work ability and earning capacity has been impaired. The injuries and damages are permanent or continuing in nature, and Plaintiff will suffer the losses and impairments in the future.
31.This Count is alleged separately from Jones Act Negligence pursuant to Joyce v. Atlantic Richfield Company, 651 F.2d 676 (10th Cir. 1981), which states, in part, “negligent failure to provide prompt medical attention to a seriously injured seaman gives rise to a separate claim for relief [for which separate damages are awardable].”

WHEREFORE, the Plaintiff demands all damages entitled by law and trial by jury

RESPECTFULLY SUBMITTED,
LIPCON, MARGULIES,
ALSINA & WINKLEMAN, P.A.
Attorneys for Plaintiff
Suite 1776, One Biscayne Tower
Miami, Florida 33131
Telephone: (305) 373-3016
Facsimile: (305) 373-6204
Email: [email protected]

By:
ERIC C. MORALES
FLORIDA BAR # 91875
Dated this 26th of July, 2013.