Rindfleisch v. Carnival Cruise Lines

498 So. 2d 488, 1987 A.M.C. 944
CourtDistrict Court of Appeal of Florida
DecidedNovember 4, 1986
Docket85-2245
StatusPublished
Cited by18 cases

This text of 498 So. 2d 488 (Rindfleisch v. Carnival Cruise Lines) 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
Rindfleisch v. Carnival Cruise Lines, 498 So. 2d 488, 1987 A.M.C. 944 (Fla. Ct. App. 1986).

Opinion

498 So.2d 488 (1986)

Peter RINDFLEISCH and Ann Rindfleisch, Appellants,
v.
CARNIVAL CRUISE LINES, INC., a Florida Corporation, Appellee.

No. 85-2245.

District Court of Appeal of Florida, Third District.

November 4, 1986.
Rehearing Denied December 19, 1986.

*489 Kaplan, Sicking & Bloom and Kathleen M. Phillips, Joel V. Lumer, Miami, for appellants.

Fowler, White, Burnett, Hurley, Banick & Strickroot and Allan R. Kelley, Miami, for appellee.

Before BARKDULL, HENDRY and JORGENSON, JJ.

HENDRY, Judge.

This is an appeal by the plaintiffs, Peter and Ann Rindfleisch, from an order granting defendant Carnival Cruise Line's (Carnival) motion for a new trial and a cross-appeal by the defendant from certain evidentiary rulings rendered during the trial. For reasons more fully developed below, we affirm.

Briefly stated, the facts are as follows. The Rindfleisches filed a complaint in the Dade County Circuit Court seeking damages from the defendant, owner/operator of the cruise ship TSS "Festivale," for injuries sustained while passengers aboard the vessel. Plaintiffs did not claim damages for lost business opportunities, income, profits or wages. Ann Rindfleisch sought recovery for the loss of her husband's services, earnings and companionship. Plaintiffs alleged that during the early afternoon of June 1, 1982, while the ship was docked in San Juan Harbor, Peter Rindfleisch slipped and fell on a stairway aboard the ship, sustaining serious injury. Plaintiffs further alleged that the accident occurred as a result of defendant's negligent maintenance of the stairway. Carnival denied these allegations and argued that Mr. Rindfleisch's injuries were due to his own negligence.

Prior to the commencement of the jury trial in July, 1985, defendant made an ore tenus motion in limine to prevent any testimony by the plaintiffs regarding lost profits or lost business opportunities. Although the court precluded testimony as to a dollar amount of lost business opportunities, it permitted, over defendant's objection, testimony regarding lost business opportunities to demonstrate plaintiffs' mental anguish. In addition, defendant objected during trial to testimony by plaintiffs' expert concerning a coefficient of friction test performed on a step resembling the one on which he fell. The ground for the objection was that the plaintiffs had not and could not demonstrate a similarity of the circumstances and conditions attending the accident and the experiment. Finally, at the jury instruction conference the plaintiffs sought an instruction regarding negligence of a common carrier. The defendant objected to this charge, seeking an instruction using the reasonable care standard of negligence.[1] The court ruled that it would give the common carrier instruction as contained in Florida Standard Jury Instruction (Civil) 4.5. That instruction reads:

*490 Negligence is the failure to use reasonable care. The reasonable care required of a common carrier for the safety of a passenger is the highest degree of care that is consistent with the mode of transportation used and the practical operation of the business of a common carrier of passengers. In such a case negligence of a common carrier may consist either in doing something that would not be done or in failing to do something that would be done by very careful persons under the conditions and circumstances then affecting the carrier and the passenger.

The jury returned a verdict and judgment for the plaintiffs. The trial court set aside the verdict and ordered a new trial because it erred in giving standard instruction 4.5. The court ruled that the defendant owed its passengers the duty of reasonable care under the circumstances. The plaintiffs appeal that order. The defendant cross-appeals the court's evidentiary rulings concerning plaintiff's lost business opportunities and the testimony of plaintiff's expert regarding a coefficient of friction test.

Plaintiffs/appellants argue that section 327.32, Florida Statutes (1981), places a higher degree of care upon a boat owner/operator in order to prevent injuries to others. We agree. However, while the plaintiffs are free to sue in state courts for damages arising from maritime torts occurring on navigable waters in this country, maritime law is the substantive law to be applied irrespective of where the action is brought. Branch v. Schumann, 445 F.2d 175 (5th Cir.1971); Hallman v. Carnival Cruise Lines, Inc., 459 So.2d 378 (Fla. 3d DCA 1984); Still v. Dixon, 337 So.2d 1033 (Fla. 2d DCA 1976); Rountree v. A.P. Moller Steamship Co., 218 So.2d 771 (Fla. 1st DCA 1969); Foresman v. Eastern Steamship Corp., 177 So.2d 887 (Fla. 3d DCA 1965). In the instant case since the wrong complained of was a maritime tort, occurring in navigable waters, the proper law to be applied is federal admiralty law. See Kornberg v. Carnival Cruise Lines, Inc., 741 F.2d 1332 (11th Cir.1984); Tri-State Oil Tool Industries, Inc. v. Delta Marine Drilling Co., 410 F.2d 178 (5th Cir.1969).

As maritime law has developed in this country, a number of courts have stated that an ocean carrier must exercise a very high degree of care for the safety of its passengers. American President Lines, Ltd. v. Lundstrom, 323 F.2d 817 (9th Cir.1963); McCormick Shipping Corp. v. Stratt, 322 F.2d 648 (5th Cir.1963); Summers v. Motor Ship Big Ron Tom, 262 F. Supp. 400 (D.S.C. 1967). The courts have used various terms in describing this standard. Allen v. Matson Navigation Co., 255 F.2d 273, 277 (9th Cir.1958) ("extraordinary vigilance and the highest skill"); Moore v. American Scantic Line, 121 F.2d 767, 768 (2d Cir.1941) ("as much skill, care, and prudence as an exceedingly competent and cautious man would bring to the task in like circumstances"); Complaint of Compagnie Generale Transatlantique, 392 F. Supp. 973, 976 (D.P.R. 1975) ("exercise the highest degree of care and diligence in providing for the safety of its passengers"). Notwithstanding the above-cited authorities, the Second Circuit in Rainey v. Paquet Cruises, Inc., 709 F.2d 169, 170-71 (2d Cir.1983) (citing W. Prosser, The Law of Torts § 34, at 181 (4th ed. 1971); 2 F. Harper & F. James, The Law of Torts § 16.13, at 946 n. 13 (1956)), stated that:

commentators long have contended ... that "technically the `high degree' instruction is incorrect as a matter of principle... ." "What is required, is merely the conduct of the reasonable man of ordinary prudence under the circumstances, and the greater danger, or the greater responsibility, is merely one of circumstances, demanding only an increased amount of care."

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498 So. 2d 488, 1987 A.M.C. 944, Counsel Stack Legal Research, https://law.counselstack.com/opinion/rindfleisch-v-carnival-cruise-lines-fladistctapp-1986.