Cruises v. Cox

• Decision Date: 23 February 2011
• Docket Number: No. 3D08–2704.,3D08–2704.
• Citation: 60 So.3d 418
• Parties: ROYAL CARIBBEAN CRUISES, LTD., Appellant,v.Byron COX, Appellee.
• Court: Florida District Court of Appeals

60 So.3d 418

ROYAL CARIBBEAN CRUISES, LTD., Appellant,

v.Byron COX, Appellee.

No. 3D08–2704.

District Court of Appeal of Florida, Third District.

Feb. 23, 2011.

OPINION TEXT STARTS HEREAn Appeal from the Circuit Court for Miami–Dade County, Jennifer D. Bailey, Judge.Rodriguez, Aronson, Essington & Ross and Domingo C. Rodriguez; Hicks, Porter, Ebenfeld & Stein, Dinah S. Stein, Miami, and Erik P. Bartenhagen, for appellant.Luis A. Perez; William F. Fabra, Miami; and Russo Appellate Firm, Elizabeth K. Russo, Miami, and James H. Wyman, Ft. Lauderdale, for appellee.Before GERSTEN, SHEPHERD, and LAGOA, JJ.PER CURIAM.

Affirmed. See Binger v. King Pest Control, 401 So.2d 1310, 1313 n. 7 (Fla.1981).

SHEPHERD, J., concurring in part, and dissenting in part.

This is an appeal by Royal Caribbean Cruises, Ltd. (Royal Caribbean) from a final judgment in the sum of $1,403,791.90 in favor of Byron Cox, who slipped and fell while performing his job as a galley utility pot washer on Royal Caribbean's Majesty of the Seas on January 12, 2004. Royal Caribbean challenges two adverse decisions made by the trial court during the course of trial: (1) failure to charge the jury on an affirmative defense that exists in the law of admiralty known as the “primary duty doctrine”; and (2) allowing plaintiff's vocational rehabilitation expert to testify concerning new reports and opinions created after the discovery deadline.

I agree with the majority that the trial court did not err in denying Royal Caribbean's request to instruct the jury on the primary duty doctrine.

In order to be entitled to a special jury instruction, the defendant must prove: (1) the special instruction was supported by the evidence; (2) the standard instruction does not adequately cover the defendant's theory of the case; and (3) the proposed instruction accurately states the law and would not confuse or mislead the jury.

Billie v. State, 963 So.2d 837, 839 (Fla. 3d DCA 2007) (emphasis added). Royal Caribbean argued below, and continues to maintain here, that the jury should have been instructed that Cox's claim was barred altogether if the elements of the primary duty doctrine were found to exist. The actual instruction requested, however, directed the jury to consider only whether Plaintiff's recovery should be reduced if the elements of the primary duty doctrine were met.¹ The proposed instruction stated:

An issue raised for your determination is whether the Plaintiff was himself negligent for failing to keep his work area reasonably clean and safe. If you find that the Plaintiff did not have such duty, or if you find that Plaintiff did not breach this duty, then you shall not consider this defense.

However, if you find that the Plaintiff had a duty to keep his work area reasonably clean and safe, and that Plaintiff's injuries were caused in whole by his failure to keep his work area reasonably clean and safe and his failure to follow defendant's procedures for lifting items weighing greater than 50 pounds, then you shall consider this in your determination of whether Plaintiff's injuries were caused solely by Plaintiff's negligence.

Or, if you find that Defendant was negligent or that the vessel was unseaworthy, you shall consider Plaintiff's failure to keep his work area reasonably clean and safe and/or failure to follow Defendant's procedures for lifting items weighing greater than 50 pounds in your determination of Plaintiff's degree or percentage of comparative negligence on the verdict form which I will explain to you shortly.

In addition, the proposed instruction was inconsistent with the corresponding question proposed for the verdict form. That question read as follows:

Do you find by a greater weight of the evidence that Plaintiff had a duty to keep his work area reasonably clean and safe, and that Plaint...