Dolphin Cruise Line v. Stassinopoulos, No. 97-1542

• Decision Date: 10 February 1999
• Docket Number: No. 97-1542, No. 97-1009.
• Citation: 731 So.2d 708
• Parties: DOLPHIN CRUISE LINE, INC., and Ulysses Cruises, Inc., Appellants, v. Stylianos STASSINOPOULOS, Appellee.
• Court: Florida District Court of Appeals

731 So.2d 708

DOLPHIN CRUISE LINE, INC., and Ulysses Cruises, Inc., Appellants, v. Stylianos STASSINOPOULOS, Appellee.

Nos. 97-1542, 97-1009.

District Court of Appeal of Florida, Third District.

February 10, 1999.

Rehearing Denied April 7, 1999.

Rumberger, Kirk & Caldwell, and Joshua D. Lerner, and Constantinos I. Miskis, Miami, for appellants.

Rivkind & Pedraza, P.A., Miami, Cooper & Wolfe, P.A., and Sharon L. Wolfe, and Barbara A. Silverman, Miami, for appellee.

Before NESBITT, GREEN and FLETCHER, JJ.

PER CURIAM.

Dolphin Cruise Line, Inc. and Ulysses Cruises, Inc. (collectively "Dolphin") appeal a final judgment entered on a jury verdict in a Jones Act and unseaworthiness action in favor of Stylianos Stassinopoulos, plaintiff below. Stassinopoulos cross appeals the lower court's denial of his post trial motion for additur or new trial on the issue of non-economic damages. We affirm on the main appeal, but reverse on the cross appeal.

Stassinopoulos was a crew member on one of Dolphin's cruise ships. On December 6, 1993, he slipped and fell while descending a flight of stairs on the ship. He sustained injuries to one of his knees. As a result of his injuries, Stassinopoulos sued Dolphin under the Jones Act, 46 U.S.C.App. § 688 alleging, among other things, that the ship was unseaworthy at the time of his accident. He retained Captain Robert F. Barber as his marine safety expert to testify about Dolphin's failure to provide him with a safe work place and the ship's unseaworthiness due to, in part, the condition of the stairwell where he fell.

This case proceeded to a jury trial. The jury returned its verdict in favor of Stassinopoulos on his Jones Act negligence and unseaworthiness claims. The jury found Dolphin seventy-two percent (72%) negligent and Stassinopoulos twenty-eight percent (28%) comparatively negligent. It awarded Stassinopoulos $32,485 for past lost earnings and medical expenses and $521,000 for future lost earnings and medical expenses. The jury, however, awarded zero damages for past and future pain and suffering. Accordingly, the lower court entered final judgment in the amount of $398,509.20 and awarded $6,044.52 as costs. The court denied Dolphin's post trial motions as well as Stassinopoulos' post trial motion for additur or new trial based upon the jury's failure to award any past or future non-economic damages. This appeal and cross appeal followed.

On the main appeal, Dolphin first contends that the trial court abused its discretion when it failed to strike Captain Barber's expert testimony at trial or grant Dolphin a continuance where Captain Barber opined, a day before the start of the trial, that changes had been made to the stairs after Stassinopoulos' accident, which had gone undetected on his previous inspections of the stairway. Dolphin claims that Captain Barber essentially altered his earlier expert opinion on the eve of trial much to its surprise and prejudice and that the lower court's failure to either exclude this witness or grant Dolphin a continuance to retain an expert to rebut this testimony constituted an abuse of discretion. See Kloster Cruise Ltd. v. Segui, 679 So.2d 10, 12 (Fla. 3d DCA 1996)

; Carnival

Cruise Lines, Inc. v. Nunez, 646 So.2d 831, 833 (Fla. 3d DCA 1994); Buckley Towers Condominium, Inc. v. Buchwald, 340 So.2d 1206, 1208 (Fla. 3d DCA 1976). We find no merit to this argument. On the record before us, we do not believe that Dolphin can claim surprise and prejudice where the condition of the stairs at the time of the accident was always at issue throughout this litigation. More importantly, the subject stairwell was Dolphin's property and continuously subject to Dolphin's exclusive control. As such Dolphin was in the unique position of having first hand knowledge through its employees and maintenance records of whether this stairwell had been altered throughout the course of this lawsuit. Contrary to Dolphin's assertion, it had no need of expert testimony on the issue of whether it had altered its property. Dolphin's representative testified at trial the stairway had not been altered but the jury obviously disbelieved this testimony.

We similarly find no merit to Dolphin's remaining argument on the main appeal that the trial court abused its discretion when it excluded evidence of a fight between Stassinopoulos and his wife, also a crew member, as the reason for Stassinopoulos' termination from the cruise line. Although Dolphin was permitted to inform the jury of Stassinopoulos' termination, it apparently sought to introduce the underlying specifics of the termination to rebut Stassinopoulos' claim for future lost wages in the maritime industry. The trial court found, however, the prejudice of such evidence to be substantially outweighed by its probative value. We cannot find this ruling to be an abuse of discretion. See § 90.403, Fla. Stat. (1995); Loper v. Allstate Ins. Co., 616 So.2d 1055, 1058 (Fla. 1st DCA 1993); Morowitz v. Vistaview Apartments, Ltd., 613 So.2d 493, 494 (Fla. 3d DCA 1993); Parkansky v. Old Key Largo, Inc., 546 So.2d 1143, 1145 (Fla. 3d DCA 1989).

Turning now to the cross appeal, Stassinopoulos urges that the trial court's denial of his motion for additur or new trial on the issue of non-economic damages was an abuse of discretion in light of the jury's award of past and future lost earnings and medical...