f FormWrongful
death — Evidence — Failure of defendant to receive a citation — Action
alleging that defendants’ tugboat captain moored tugboat and barge to a dock in
a configuration that allegedly caused currents to suck decedent, who was
operating a jet ski, under vessels and drown despite his use of a life jacket
— Trial court erred in answering a juror’s question by informing jury that
captain had not received a citation from an officer of the Florida Fish and
Wildlife Conservation Commission — Failure to receive a citation is not
admissible in a negligence action — Plaintiff did not open door to admitting
evidence of whether defendants received a citation by arguing that defendants
were negligent because they violated a Coast Guard regulation — New trial
required

CHRISTIE L. SOTO, as Personal Representative of the Estate
of Jose H. Medina, Deceased, Appellant, v. McCULLEY MARINE SERVICES, INC., a
for profit Florida Corporation; and PINE ISLAND TOWING COMPANY, a for profit
Florida Corporation, Appellees. 2nd District. Case No. 2D13-1620. Opinion filed
December 16, 2015. Appeal from the Circuit Court for Manatee County; Diana L.
Moreland, Judge. Counsel: Bard D. Rockenbach of Burlington & Rockenbach,
P.A., West Palm Beach; and Tiffany M. Faddis and Eric H. Faddis of Faddis &
Faddis, P.A., Orlando; and Steven M. Johnson and Marc R. Williams of Johnson
& Williams, P.A., Orlando, for Appellant. Jules V. Massee, Robert B.
Birthisel and Erin M. Dubois of Hamilton, Miller & Birthisel, LLP, Tampa,
for Appellees.

(ALTENBERND, Judge.) Christie L. Soto, as personal
representative of the Estate of Jose H. Medina, appeals a final judgment in
favor of McCulley Marine Services, Inc., and Pine Island Towing Company (the
Defendants) in a wrongful death action. At trial, the Estate argued that Mr.
Medina’s drowning on July 4, 2009, was caused by the negligence of these
defendants when their captain moored a tugboat and a barge to a dock in
Longboat Pass in a configuration that allegedly caused the currents within the
pass to suck Mr. Medina under the vessels despite his use of a life jacket.
During the trial, the court answered a juror’s question by informing the jury
that the captain had not received a citation from an officer of the Florida
Fish and Wildlife Conservation Commission (FWC) for his conduct. It is well
established that the failure to receive a citation is not admissible in a
negligence action. See, e.g., Moore v. Taylor Concrete & Supply
Co., Inc., 553 So. 2d 787, 790-91 (Fla. 1st DCA 1989) (marshaling cases);
Charles W. Ehrhardt, Ehrhardt’s Florida Evidence, § 403.1 at 227-29
& 228 n.27 (West’s Fla. Prac. Series 2015 ed.) (same). After a full review
of the record, we conclude that this error requires this court to reverse the
judgment and remand for a new trial.

I.
THE FACTS

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 County1 to help build the artificial reefs,
and it is undisputed for purposes of this appeal that the Defendants were
legally responsible for any negligence of the captain who was in command of the
tugboat and the barge involved in this project. In 2009, the Fourth of July
fell on a Saturday. The Defendants did not wish to work over the long holiday
weekend. As a result, the captain moored the tugboat and barge adjacent to the
dock in the staging area. The sixty-five-foot tugboat and equally long barge
were tied together and moored in a manner that caused them to jut outward into
the pass.

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 accident was investigated by the Florida Fish and
Wildlife Conservation Commission. The investigating officer did not cite the
Defendants with any violation of law. Prior to trial, the court granted a motion
to exclude evidence of this fact.

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.

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.

II.
THE ESTATE DID NOT “OPEN THE DOOR” TO

Given the large number of negligence cases that have arisen
from automobile accidents, it is now very well established that evidence of a
citation or lack thereof is inadmissible at trial. See Eggers v.
Phillips Hardware Co., 88 So. 2d 507, 507-08 (Fla. 1956); Diaz v. FedEx
Freight E., Inc., 114 So. 3d 224, 226-27 (Fla. 5th DCA 2012); Moore v.
Taylor Concrete & Supply Co., Inc., 553 So. 2d 787, 790-91 (Fla. 1st
DCA 1989); Albertson v. Stark, 294 So. 2d 698, 699-700 (Fla. 4th DCA
1974). 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. Florida courts have repeatedly emphasized that the admission of
such evidence constitutes prejudicial error, even in cases in which the trial
court has given a curative instruction. See, e.g., Hulick v. Beers,
7 So. 3d 1153, 1155 (Fla. 4th DCA 2009) (“Where fault is an issue, evidence of
the presence or absence of a traffic citation will almost always constitute
prejudicial error and warrant a mistrial,” because “[c]ommon sense . . . tells
us that to the average juror the decision of the investigating police officer .
. . is very material to, if not wholly dispositive of, that juror’s
determination of fault on the part of the respective drivers.” (quoting Albertson,
294 So. 2d at 699-700)); Galgano v. Buchanan, 783 So. 2d 302, 307 (Fla.
4th DCA 2001) (“Questions to a party or a witness, propounded by an adverse
party, about whether traffic citations were issued will require that a mistrial
be granted or that there be a reversal on appeal.”).

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.)

__________________

1The Estate initially brought this
negligence action against several defendants, including Manatee County. The
trial court entered summary judgment in favor of Manatee County, and this court
affirmed that judgment in Soto v. McCulley Marine Services, Inc., 173 So.
3d 898 (Fla. 2d DCA 2015) (table decision). Ultimately, the only defendants
remaining by the time of trial were McCulley Marine and Pine Island Towing.