TRIAL COURT ERRED IN NOT ALLOWING EVIDENCE OF PASSENGERS FAILURE TO INFORM DIVE PROGRAM ABOUT ASTHMA CONDITION EVEN THOUGH CASE WENT TO THE JURY ON ISSUE OF VACARIOUS LIABILITY ONLY
CARNIVAL CRUISE LINES, INC., Appellant, vs. DIANALEVALLEY, et al., Appellees
CASE NOS. 3D99-232, 3D99-497
COURT OF APPEAL OF FLORIDA, THIRD DISTRICT
2001 Fla. App. LEXIS 4753; 26 Fla. L. Weekly D 974
April 11, 2001, Opinion Filed
PROCEDURAL POSTURE: Appellant cruise line company challenged a judgment of the Circuit Court for Dade County, Florida, awarding appellees a $660,000 judgment after finding that appellee wife was not comparatively negligent for a diving accident in which she was severely injured.
OVERVIEW:While appellee wife was on appellant's cruise she was severely injured during a scuba class conducted under appellant's auspices. Appellees sued the dive instructor for negligence in failing to adequately instruct or supervise, and appellant, both for its instructor's negligence and for the failure of other employees to investigate, supervise, and employ competent personnel to conduct the scuba program. Appellees settled their claim against the instructor, and the case went to the jury against appellant specifically based only on its alleged vicarious liability. The jury found in appellees' favor, but assessed appellee wife's comparative negligence at 33 percent. The trial judge later found no comparative negligence had been demonstrated, transferred appellee wife's 33 percent share to appellant, and denied any setoff for the instructor's settlement. Judgment was reversed. The court concluded a new trial on all liability issues was required because of the trial judge's peremptory instruction that an asthmatic condition from which appellee wife suffered prior to the dive was not a causative factor in the accident, and his exclusion of proffered expert testimony to the contrary.
OUTCOME:The judgment against appellant was reversed as to all issues of liability only. Evidence appellee wife concealed her asthmatic condition from the dive instructor and appellant was directly relevant to the issues of the legal causation of her dive accident. It should have been admitted. The same was true of proffered expert testimony that such a condition significantly increased the chances of causing a panicked reaction to a diving mishap.
