Lipworth v. Kawasaki Motors Corp. USA

592 So. 2d 1151, 1992 WL 1341
CourtDistrict Court of Appeal of Florida
DecidedJanuary 8, 1992
Docket90-3473
StatusPublished
Cited by5 cases

This text of 592 So. 2d 1151 (Lipworth v. Kawasaki Motors Corp. USA) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Lipworth v. Kawasaki Motors Corp. USA, 592 So. 2d 1151, 1992 WL 1341 (Fla. Ct. App. 1992).

Opinion

592 So.2d 1151 (1992)

Margaret LIPWORTH, As Personal Representative of the Estate of Lori Lipworth, a Deceased Minor, On Behalf of the Estate and the Survivors of the Decedent, to Wit: Margaret Lipworth, Natural Mother, and Stephen F. Lipworth, Natural Father, Appellants,
v.
KAWASAKI MOTORS CORP. U.S.A., a Foreign Corporation, Palm Beach Kawasaki, Inc., a Florida Corporation, and Kawasaki Heavy Industries, Ltd. a Foreign Corporation, Appellees.

No. 90-3473.

District Court of Appeal of Florida, Fourth District.

January 8, 1992.
Motion to Certify Question Denied Rehearing Denied February 20, 1992.

*1152 Edward A. Perse, Perse, P.A. & Ginsberg, P.A., and Ratiner & Glinn, P.A., Miami, for appellants.

Richard A. Mueller, Coburn, Croft & Putzell, St. Louis, Mo., and Ronald E. D'Anna, Mattlin & McClosky, Boca Raton, for appellee Kawasaki Heavy Industries, Ltd.

James E. Tribble and Angela C. Flowers, Blackwell & Walker, P.A., Miami, for appellees Kawasaki Motors Corp., U.S.A., and Palm Beach Kawasaki, Inc.

Motion to Certify Question Denied Rehearing En Banc Denied February 20, 1992.

PER CURIAM.

The surviving parents of their deceased eleven year old daughter, Lori, and the surviving mother, as personal representative of her late daughter's estate, appeal a final judgment rendered by the trial court against them and in favor of the defendants. We affirm.

Appellants filed a products liability suit against Palm Beach Kawasaki, Inc. for strict liability and against Kawasaki Motors Corporation and Kawasaki Heavy Industries, Ltd. for negligence and strict liability in the design, manufacture and sale of its JS 550A1 Jet Ski. On September 2, 1984, Lori collided with a dock while operating the jet ski in the intercoastal waterway and died on impact. The third amended complaint sought damages in excess of one million dollars for medical and funeral expenses for Lori, for lost support and services for her parents, and for pain and suffering for her parents.

After discovery, appellees filed two motions for partial summary judgment on the issue of damages, stating that federal maritime law controlled the case and under such law appellants were entitled to only medical and funeral expenses actually expended by them as a result of Lori's death.

The trial court entered summary judgment, holding the case governed by federal maritime law and damages limited to medical and funeral expenses actually expended. Appellants moved the trial court to amend their third amended complaint to seek damages only for loss of society, which the trial court granted. The amendment was the result of appellants' not wishing to proceed to trial to determine liability because they would recover no damages for funeral expenses, such claim being subject to a set off received in settlement from another defendant. The amendment of the ad damnum clause of the complaint enabled the trial court to enter an appealable final judgment which it did, resulting in the present appeal.

I.

Appellants first attempt to take the instant case out of federal maritime jurisdiction on several grounds, none of which we find to be meritorious, notwithstanding the tragedy and its judicial consequences. *1153 The statutory basis for federal admiralty jurisdiction is 28 U.S.C.A. § 1333 which provides in relevant part:

The district courts shall have original jurisdiction, exclusive of the States, of:
(1) Any civil case of admiralty or maritime jurisdiction, saving to suitors in cases all other remedies to which they are otherwise entitled.

The courts have attempted to determine what admiralty or maritime jurisdiction means. The traditional or original test for the conferral of admiralty jurisdiction in a tort case was the locality of the wrong. A wrong was actionable in admiralty if it occurred on navigable waters. The Supreme Court has refined the test and added more prongs. In Executive Jet Aviation, Inc. v. City of Cleveland, 409 U.S. 249, 93 S.Ct. 493, 34 L.Ed.2d 454 (1972), the Supreme Court held that admiralty jurisdiction did not extend to an airplane crash into navigable waters where the plane flew predominantly over land. Thus, the Court concluded that location on or over navigable waters was not of itself sufficient to turn an airplane negligence case into a maritime tort. The Court found it far more consistent with the history and purpose of admiralty to require also that the wrong bear a significant relationship to traditional maritime activity. Nexus and locality were necessary for admiralty jurisdiction to lie.

In Foremost Insurance Co. v. Richardson, 457 U.S. 668, 102 S.Ct. 2654, 73 L.Ed.2d 300 (1982), the Court held the collision of two pleasure boats cognizable in admiralty because it implicated the traditional maritime concern of navigation and could possibly disrupt maritime activity. Hence, a maritime activity need not bear a substantial relationship to a commercial activity so long as it had a potential impact on maritime commerce.

In Sisson v. Ruby, ___ U.S. ___, 110 S.Ct. 2892, 111 L.Ed.2d 292 (1990), the Court reviewed its holdings in Executive Jet and Foremost and found admiralty jurisdiction in an action involving a fire on a noncommercial vessel at a marina on a navigable waterway. The yacht owner sought to limit his liability for the fire which caused extensive damage to the marina and several neighboring boats. The Supreme Court reasoned that the jurisdictional inquiry did not turn on the actual effects on maritime commerce of the fire on the pleasure vessel but on the general features of the type of incident involved to determine whether such an incident is likely to disrupt commercial activity. Storage and maintenance of a vessel was considered a traditional maritime activity and the fire had a significant relationship to traditional maritime activity.

The Court declined to refine any further the test developed in Executive Jet and Foremost, finding the trilogy it had decided provided appropriate and sufficient guidance to the federal courts. Therefore, the relevant inquiry in the instant case involves three prongs: (1) locality, which is not an issue here as the collision occurred in the intercoastal waterway, navigable waters; (2) nexus, that the wrong bear a significant relationship to traditional maritime activity; and (3) potential impact of the type of incident on commercial maritime activity.

The issue of whether a jet ski is a vessel is a necessary preliminary step in an analysis of the facts of the instant case under the second prong. The Eleventh Circuit answered this question affirmatively in Keys Jet Ski, Inc. v. Kays, 893 F.2d 1225 (11th Cir.1990). The Eleventh Circuit noted the definition of "vessel" as "every description of watercraft or artificial contrivance used, or capable of being used, as a means of transportation on water." 1 U.S.C.A. § 3. It found no reasonable distinction between small motor boats capable of being used as a means of transportation on water and a jet ski, which is also capable of substantially equivalent transportation on water. Kays, 893 F.2d at 1230. Thus, the instant case involves a vessel.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Beckman v. Rick's Watercraft Rentals
719 So. 2d 1025 (District Court of Appeal of Florida, 1998)
Choat v. Kawasaki Motors Corp.
675 So. 2d 879 (Supreme Court of Alabama, 1996)
In re the Complaint of Nobles
842 F. Supp. 1430 (N.D. Florida, 1993)
Cantore v. Blue Lagoon Water Sports, Inc.
799 F. Supp. 1151 (S.D. Florida, 1992)
Calabro v. Outboard Marine Corp.
599 So. 2d 717 (District Court of Appeal of Florida, 1992)

Cite This Page — Counsel Stack

Bluebook (online)
592 So. 2d 1151, 1992 WL 1341, Counsel Stack Legal Research, https://law.counselstack.com/opinion/lipworth-v-kawasaki-motors-corp-usa-fladistctapp-1992.