and for broward county, florida case no.: stephen...
Post on 13-Oct-2019
2 Views
Preview:
TRANSCRIPT
IN THE CIRCUIT COURT OF THESEVENTEENTH JUDICIAL CIRCUIT, INAND FOR BROWARD COUNTY, FLORIDA
CASE NO.:STEPHEN MISKELL, as PersonalRepresentative of the Estate ofKATHLEEN MISKELL, andSTEPHEN MISKELL, individually,
Plaintiff,
SANDS HARBOR, INC., a Floridacorporation, CUSTOM CHUTES, INC., aFlorida corporation, VL GASK1N T/AWATERBIRD PARAKITES, a foreigncorporation, CASEY FULLER, JEFFREYZABADAL, and WAVEBLASTWATERSPORTS II, Inc., a Floridacorporation,
Defendants.
COMPLAINT
STEPHEN MISKELL, as Personal Representative of the Estate of KATHLEEN
MISKELL, and STEPHEN MISKELL, individually, Plaintiff, sues SANDS HARBOR, INC.,
CUSTOM CHUTES, INC., VL GASKIN T/A WATERBIRD PARAKITES, CASEY FULLER,
JEFFREY ZABADAL, and WAVEBLAST WATERSPORTS II, INC., Defendants, alleges upon
information and belief as follows:
JURISDICTION AND VENUE
1. This is an action for damages in excess of Fifteen Thousand Dollars ($15,000.00),
exclusive of interest and costs, brought pursuant to the general maritime law of the United States
and the Florida Wrongful Death Act, Florida Statutes §§ 768.16 - .26.
COMPLAINTMiskell v. Sands Harbor. Inc.. et al.Page 2
2. At all times material hereto, pursuant to Florida Statute § 48.193, Sands Harbor,
Inc., Defendant ("Sands Harbor") is subject to personal jurisdiction in Florida because it
operates, conducts, engages in, or carries on a business or business venture within this State and
has an office within this State.
3. At all times material hereto, pursuant to Florida Statute § 48.193, Custom Chutes,
Inc., Defendant ("Custom Chutes is subject to personal jurisdiction in Florida because it
operates, conducts, engages in, or carries on a business or business venture within this State and
has an office within this State.
4. At all times material hereto, pursuant to Florida Statute § 48.193, VL Gaskin T/A
Waterbird Parakites, Defendant ""Waterbird" is subject to personal jurisdiction in Florida
because it operates, conducts, engages in, or carries on a business or business venture within this
State, and/or committed a tortious act within this State, and/or caused injury to a person within
this State arising out of an act or omission outside this State at a time when products, materials or
things processed, serviced or manufactured by Waterbird were used within this State.
5. At all times material hereto, pursuant to Florida Statute § 48.193, Casey Fuller,
Defendant ("Fuller") is subject to personal jurisdiction in Florida because he resides within this
State and committed a tortious act within this State.
6. At all times material hereto, pursuant to Florida Statute § 48.193, Jeffrey Zabadal,
Defendant ("Zabadal") is subject to personal jurisdiction in Florida because he resides within this
State and committed a tortious act within this State.
7. At all times material hereto, pursuant to Florida Statute § 48.193, Waveblast
Watersports II, Inc., Defendant ("Waveblast") is subject to personal jurisdiction in Florida
COMPLAINTMiskell v. Sands Harbor, Inc., et al.Page 3
because it operates, conducts, engages in, or carries on a business or business venture within this
State and has an office within this State.
8. At all times material hereto, pursuant to Florida Statutes §§ 47.021, 47.041, and
47.051, venue is proper in Broward County, Florida, because Defendants, Sands Harbor and
Waveblast maintained their principal place of business in Pompano Beach, Broward County,
Florida, Defendants, Fuller and Zabadal reside in Broward County, Florida, and as detailed
hereinafter, the causes of action accrued in Broward County, Florida.
9. At all timcs material hereto, Plaintiff, Stephen Miskell has been appointed and is
the Personal Representative of the Estate of Kathleen Miskell, deceased. The Estate was opened
in Connecticut. (Attached as Exhibit "A" are the Decree Granting Administration of Probate of
Will and Fiduciary's Probate Certificate).
10 At all times material hereto, the following are the survivors and beneficiaries of a
recovery for the wrongful death of Kathleen Miskell:
a. Stephen Miskell, spouse of Kathleen Miskell, age 31.
b. The Estate of Kathleen Miskell.
11 At all times material hereto, Plaintiff, Stephen Miskell was an individual residing
in Wethersfield, Connecticut.
12 At all times material hereto, Defendant, Sands Harbor, was a corporation
organized and existing under the laws of the State of Florida, with its principal place of business
located at 125 North Riverside Drive, Suite 205, Pompano Beach, Broward County, Florida
33062.
COMPLAINTMiskell v. Sands Harbor, Inc., et al.Page 4
13 At all times material hereto, Defendant, Custom Chutes, was a corporation
organized and existing under the laws of the State of Florida, with its principal place of business
located at 1218 50th Avenue, Plaza West, Bradenton, Manatee County, Florida 34207.
14. At all times material hereto, Defendant, Waterbird, was a corporation and/or
business organization organized and existing under the laws of a foreign country, with its
principal place of business located at 27 Blue Shalet Industrial Estate, West Kingsdown, Kent,
TN15 6B0, England.
15 At all times material hereto, Defendant, Casey Fuller, was an individual employed
in and/or residing in Broward County, Florida.
16 At all times material hereto, Defendant, Jeffrey Zabadal, was an individual
residing and/or employed in Broward County, Florida.
17. At all times material hereto, Defendant, Wavcblast, was a corporation organized
and existing under the laws of the State of Florida, with its principal place of business located at
1208 North Ocean Boulevard, Pompano Beach, Broward County, Florida 33062.
GENERAL ALLEGATIONS
18 At all times material hereto, Defendant, Sands Harbor, owned, conducted and/or
operated a hotel/resort business that provided recreational water sports activities, including
parasail excursions, to passengers and/or business invitees in the navigable waters offshore from
Pompano Beach, Florida.
19 At all times material hereto, Defendant, Custom Chutes, owned, conducted and/or
operated a business that provided, sold, distributed and/or made available to the owners and
operators of parasail excursions and/or vessels, parasail equipment, apparel, appurtenances, etc.,
COMPLAINTMiskell v. Sands Harbor. Inc et al.Page 5
including harnesses, and other equipment associated with parasail excursions, to customers in
this State.
20 At all times material hereto, Defendant, Waterbird, owned, conducted and/or
operated a business in which it designed, constructed, manufactured, and sold equipment and/or
devices intended for use in parasail excursions, including but not limited to parasails, harnesses,
and shackles/fasteners associated with such parasail equipment.
21 At all times material hereto, Defendant, Fuller, was the captain, operator and/or in
charge of a vessel from which parasail excursions were conducted for passengers and/or business
invitees in the navigable waters offshore from Pompano Beach, Florida.
22 At all times material hereto, Defendant, Zabadal, was the mate, a crewman, and/or
otherwise employed in the service of a vessel conducting parasail excursions for passengers
and/or business invitees in the navigable waters offshore from Pompano Beach, Florida.
23 At all times material hereto, Defendant, Waveblast, owned, conducted and/or
operated a business providing recreational water sports activities, including parasail excursions,
to passengers and/or business invitees in the navigable waters offshore from Pompano Beach,
Florida.
24. Pursuant to the rules and practice of general maritime law and the provisions of
Florida Statutes §§ 327.33 and 327.37, Defendant, Sands Harbor, was required to properly
maintain the vessels and equipment used the recreational water sports activities, including the
parasail excursions, and establish policies and procedures so that the recreational water sports
activities that it conducted, including the parasail excursions, would be operated safely.
COMPLAINTMiskell v. Sands Harbor, Inc et al.Page 6
25 Pursuant to the rules and practice of general maritime law and the law of the State
of Florida, Defendant, Custom Chutes, was required to provide, distribute and/or sell parasail
equipment, apparel, appurtenances, etc. that was safe for its intended use in parasail excursions.
26. Pursuant to the rules and practice of general maritime law and the provisions of
the law of the State of Florida, Defendant, Wavebird, was required to design, manufacture,
construct, assemble, inspect, and sell parasail equipment, apparel, appurtenances, etc. that was
safe for its intended use in parasail excursions.
27 Pursuant to the rules and practice of general maritime law and the provisions of
Florida Statutes §§ 327.33 and 327.37, Defendant, Fuller, was required to properly maintain the
vessel and equipment he used in providing/supervising recreational water sports activities,
including the parasail excursions, and to either establish or maintain and observe policies and
procedures so that the recreational water sports activities that he conducted, including the
parasail excursions, would be operated safely.
28 Pursuant to the rules and practice of general maritime law and the provisions of
Florida Statutes §§ 327.33 and 327.37, Defendant, Zabadal, was required to maintain and operate
the vessel and equipment used in the recreational water sports activities that he directed and/or
supervised, including the parasail excursions, and to establish and/or observe policies and
procedures so that the recreational water sports activities that he supervised and/or conducted,
including the parasail excursions, would be operated safely.
29. Pursuant to the rules and practice of general maritime law and the provisions of
Florida Statutes §§ 327.33 and 327.37, Defendant, Waveblast, was required to properly maintain
the vessels and equipment used in the recreational water sports activities, including the parasail
COMPLAINTMiskell v. Sands Harbor. Inc., et al.Page 7
excursions, and establish policies and procedures so that the recreational water sports activities
that it conducted, including the parasail excursions, would be operated safely.
30 As the owner and/or operator of the recreational water sports activities. including
the parasail excursions, Defendant, Sands Harbor, owed its passengers/business invitees the
highest degree of care given the circumstances and risks of the recreational sports activity being
conducted, particularly the parasail excursions.
31 As the provider, distributor and/or seller of parasail equipment, apparel,
appurtenances, etc., including but not limited to parasail harnesses, Defendant, Custom Chutes,
owed persons engaged in parasail excursions and using the parasail equipment, apparel,
appurtenances, etc. a duty that the parasail equipment, apparel, appurtenances, etc. was not
dangerous and/or was safe for its intended use.
32 As the designer, manufacturer. constructor, assembler, inspector, and seller of
parasail equipment, apparel,appurtenances, etc., Defendant, Waterbird, owed persons
participating in parasail excursions and using the parasail equipment, apparel, appurtenances, etc.
a duty that the parasail equipment, apparel, appurtenances, etc. was not dangerous and/or was
safe for its intended use.
33 As an operator of the recreational water sports activities, including the parasail
excursions, Defendant, Fuller, owed his passengers/business invitees the highest degree of care
given the circumstances and risks of the recreational sports activity being conducted, particularly
the parasail excursions.
34. As an operator of the recreational water sports activities, including the parasail
excursions, Defendant, Zabadal, owed his passengers/business invitees the highest degree of care
COMPLAINTMiskell v. Sands Harbor, Inc., et al.Page 8
given the circumstances and risks of the recreational sports activity being conducted, particularly
the parasail excursions.
35 As the owner and/or operator of the recreational water sports activities, including
the parasail excursions, Defendant, Waveblast, owed its passengers/business invitees the highest
degree of care given the circumstances and risks of the recreational sports activity being
conducted, particularly the parasail excursions.
36. On or about August 15, 2012, Stephen Miskell and Kathleen Miskell were
invitees at the Sands Harbor Hotel and Resort and went to that facility because it offered
recreational parasail excursions.
37. Upon arriving at the Defendant, Sands Harbor resort, Stephen Miskell and
Kathleen Miskell were offered a parasailing excursion by Defendant, Waveblast. Due to an
oncoming storm, Stephen Miskell and Kathleen Miskell were told to wait at the bar area at the
Sands Harbor resort until the storm passed.
Sometime later, the storm passed, and Defendants, Sands Harbor and/or
Waveblast undertook to provide a tandem parasail excursion to Stephen Miskell and Kathleen
Miskell in the navigable waters offshore from Pompano Beach, Broward County, Florida,
utilizing its/their parasail vessel, the vessel's crew, and its/their parasail equipment. The parasail
vessel and/or the parasail apparel, appurtenances, etc. ("the equipment") was provided,
distributed and/or sold by Defendant, Custom Chutes, and was designed, manufactured,
constructed, assembled, inspected and sold by Defendant, Waterbird.
39 During the parasail excursion, while the parasail containing Stephen Miskell and
Kathleen Miskell was aloft and being towed by the Defendant, Waveblast parasailing vessel, and
COMPLAINTMiskell v. Sands Harbor, Inc., et al.Page 9
at which time the parasail was at a height above the surface of the water of 150' or more, the
harness in which Kathleen Miskell was secured malfunctioned and/or failed, and Kathleen
Miskell then plummeted into the water.
40 The fall from the parasail into the water as aforesaid resulted in the death of
Kathleen Miskell, Plaintiff's decedent.
COUNT I — NEGLIGENCE — WRONGFUL DEATH AGAINST DEFENDANT, SANDS HARBOR
41 Stephen Miskell, as Personal Representative of the Estate of Kathleen Miskell,
realleges and reaffirms the allegations contained in paragraphs I through 40 above, and further
alleges.
42. Defendant, Sands Harbor, advertised and/or promoted and/or made available to its
guests/business invitees, including Stephen Miskell and Kathleen Miskell, resort activities,
including parasailing excursions provided by Defendant, Waveblast.
43. At all times material hereto, Defendant, Sands Harbor, owed a duty to the
guests/business invitees of its resort/hotel, including Stephen Miskell and Kathleen Miskell, to
insure its guests/business invitees are safe when engaged in resort activities promoted and/or
advertised by, and/or conducted from, its hotel/resort.
44 Defendant, Sands Harbor, breached its duty to the Plaintiff by advertising and/or
promoting and/or making available the parasail resort activity/excursion operated by, Defendant,
Waveblast, and by allowing Waveblast and/or the persons/parties directing, operating and
controlling the parasail activity to:
COMPLAINTMiskell v. Sands Harbor, Inc., et al.Page 10
a. Negligently fail to use reasonable care by entrusting the parasail
vessel and its parasail equipment, etc. and the parasail excursion, to a master and crew
inexperienced and/or careless with respect to safely conducting a parasail excursion from the
parasail vessel;
b. Negligently fail to properly supervise, instruct, and/or train the
master and crew of the parasail vessel in pre-flight inspection of the parasail equipment, apparel,
appurtenances, etc. and its safc and proper usage during a parasail flight;
c. Negligently fail to properly equip the parasail vessel with adequate
and safe parasail equipment, apparel, appurtenances, ctc. including but not limited to the parasail
harness in which the passengers/business invitees would be secured during the parasail flight;
d. Negligently permit the parasail vessel to go to sea to engage in a
parasail excursion in an unseaworthy condition with respect to the parasail vessel and the
parasail equipment, apparel,appurtenances, etc. with which the parasail flight would be
conducted;
e. Negligently fail to train and/or have in place proper and adequate
safety and rescue practices, procedures and equipment should the parasail passengers/business
invitees sustain accident or injury during a parasail flight;
f. Negligently fail to comply with the rules and practice of general
maritime law to exercise reasonable care under the circumstances for the safety
passengers/business invitees participating in parasail excursion activities;
COMPLAINTMiskell v. Sands Harbor, Inc., et al.Page 11
g. Negligently fail to comply with the requirernents of Florida
Statutes with respect to reckless or careless operation of a vessel, Florida Statute § 327.33, and/or
with respect to water skis, parasails, and aquaplanes regulations, Florida Statute § 327.37;
h. In other and further ways that will be proved at trial.
45 The acts or omissions of Defendant, Sands Harbor, as aforesaid, were a direct,
proximate, and legal cause of the incident which occurred on August 15, 2012, which resulted in
the death of Kathleen Miskell.
46. As a further and direct proximate result of the negligence of Defendant, Sands
Harbor, the Estate of Kathleen Miskell has incurred funeral and burial expenses, and suffered the
loss of future earnings and net accumulations, including future pensions and retirement benefits.
Stephen Miskell, the spouse of Kathleen Miskell, has suffered damages including loss of support
and services, companionship, comtbrt, attention, as well as mental anguish, pain and suffering.
47. The conduct of Defendant, Sands Harbor, rises to a level sufficient to warrant the
imposition of punitive damages, which will be pled by Plaintiff at a later date.
WHEREFORE, Stephen Miskell as Personal Representative of the Estate of Kathleen
Miskcll demands judgment in excess of $15,000.00 against Sands Harbor, Inc. for damages,
costs, and interest allowable by law, and trial by jury.
COUNT II — NEGLIGENCE— WRONGFUL DEATH AGAINST DEFENDANT, CUSTOM CHUTES
48. Stephen Miskell, as Personal Representative of the Estate of Kathleen Miskell,
realleges and reaffirms the allegations contained in paragraphs 1 through 40 above, and further
alleges.
COMPLAINTMiskell v. Sands Harbor, Inc., et al.Page 12
49 On a date prior to August 15, 2012, Custom Chutes provided, distributed and/or
sold to Waveblast, Fuller, Zabadel and/or Sands Harbor parasail equipment, apparel,
appurtenances, etc., including but not limited to the parasail harness in which Kathleen Miskell
was secured and from which she fell to her death as aforesaid, that had previously been designed,
manufactured. constructed, assembled, inspected and/or sold by Defendant, Waterbird.
50 During the parasail excursion of August 15, 2012, while the parasail containing
Stephen Miskell and Kathleen Miskell was aloft and being towed by the Waveblast parasailing
vessel, and at which time the parasail was at a height above the surface of the water of 150' or
more, the harness in which Kathleen Miskell was secured malfunctioned and/or failed and
Kathleen Miskell then plummeted into the water.
5l The fall from the parasail into the water as aforesaid resulted in the death of
Kathleen Miskell. Plaintiffs decedent.
52 At all times material hereto, Defendant, Custom Chutes, so negligently and
carelessly inspected, maintained, provided, distributed and sold the parasail equipment, apparel,
appurtenances, etc., including but not limited to the parasail harness, that it was dangerous and
unsafe for its intended uses.
53 The acts or omissions of Defendant, Custom Chutes, as aforesaid, was a direct,
proximate and legal cause of the incident which occurred on August 15, 2012, which resulted in
the death of Kathleen Miskell.
54 As a further and direct proximate result of the negligence of Defendant, Custom
Chutes, the Estate of Kathleen Miskell has incurred funeral and burial expenses and suffered the
loss of future earnings and net accumulations, including future pensions and retirement benefits.
COMPLAINTMiskell v. Sands Harbor, Inc., et al.Page 13
Stephen Miskell, the spouse of Kathleen Miskell, has suffered damages including loss of support
and services, companionship, comfort, attention, as well as mental anguish, pain and suffering.
55. The conduct of Defendant, Custom Chutes, rises to a level sufficient to warrant
the imposition of punitive damages, which will be pled by Plaintiff at a later date.
WHEREFORE, Stephen Miskell as Personal Representative of the Estate of Kathleen
Miskell demands judgment in excess of $15,000.00 against Defendant, Custom Chutes, Inc.,
jointly and severally, for damages, costs, and interest allowable by law, and trial by jury.
COUNT III - NEGLIGENCE- WRONGFUL DEATH AGAINST DEFENDANT, WATERBIRD
56 Stephen Miskell, as Personal Representative of the Estate of Kathleen Miskell.
realleges and reaffirms the allegations contained in paragraphs 1 through 40 above, and further
alleges.
57 On a date prior to August 15, 2012, Custom Chutes provided, distributed and/or
sold to Waveblast, Fuller, Zabadel and/or Sands Harbor parasail equipment, apparel,
appurtenances, etc., including but not limited to the parasail harness in which Kathleen Miskell
was secured and from which she fell to her death as aforesaid, that had previously been designed,
manufactured, constructed, assembled, inspected and/or sold by Defendant, Waterbird.
58 During the parasail excursion of August 15, 2012, while the parasail containing
Stephen Miskell and Kathleen Miskell was aloft and being towed by the Waveblast parasailing
vessel, and at which time the parasail was at a height above the surface of the water of 150' or
more, the harness in which Kathleen Miskell was secured malfunctioned and/or failed and
Kathleen Miskell then plummeted into the water.
COMPLAINTMiskell v. Sands Harbor, Inc., et al.Page 14
59. The fall from the parasail into the water as aforesaid resulted in the death of
Kathleen Miskell, Plaintiffs decedent.
60. At all times material hereto, Defendant, Waterbird, so negligently and carelessly
designed, manufactured, constructed, assembled, inspected and/or sold the parasail equipment,
apparel, appurtenances, etc., including but not limited to the parasail harness, that it was
dangerous and unsafe for its intended uses.
61 The acts or omissions of Defendant, Waterbird, was a direct, proximate and legal
cause of the incident which occurred on August 15, 2012, which resulted in the death of
Kathleen Miskell.
62. As a further and direct proximate result of the negligence of Defendant,
Waterbird, the Estate of Kathleen Miskell has incurred funeral and burial expenses and suffered
the loss of future earnings and net accumulations, including future pensions and retirement
benefits. Stephen Miskell, the spouse of Kathleen Miskell, has suffered damages including loss
of support and services, companionship, comfort, attention, as well as mental anguish, pain and
suffering.
63 The conduct of Defendant, Waterbird, rises to a level sufficient to warrant the
imposition of punitive damages, which will be pled by Plaintiff at a later date.
WHEREFORE, Stephen Miskell as Personal Representative of the Estate of Kathleen
Miskell demands judgment in excess of $15,000.00 against Defendant, VL Gaskin T/A
Waterbird Parakites, jointly and severally, for damages, costs, and interest allowable by law, and
trial by jury.
COMPLAINTMiskell v. Sands Harbor, Inc., et al.Page 15
COUNT IV — NEGLIGENCE — WRONGFUL DEATH AGAINST DEFENDANT. FULLER
64. Stephen Miskell, as Personal Representative of the Estate of Kathleen Miskell,
realleges and reaffirms the allegations contained in paragraphs 1 through 40 above, and further
alleges.
65 Defendant, Fuller, as the master, operator and/or person in charge of the parasail
vessel and the parasail excursion, owed his passengers/business invitees, Stephen Miskell and
Kathleen Miskell, the highest degree of care, given the risk presented by parasail excursions, to
properly equip, maintain, and operate the parasail vessel and/or the parasail equipment utilized in
the parasail activity. including but not limited to the parasail harness, to insure that the parasail
vessel and/or the parasail equipment, included but not limited to the parasail harness, was
suitable and proper for its intended use, that he had the training and/or experience and/or was
properly qualified to serve as master, operator and/or to be in control of the parasail vessel and
its crew with respect to safely conducting parasail activities from the parasail vessel and to insure
that proper procedures, training and equipment were in place for rescue and recovery should the
parasail and its passengers/business invitees sustain or suffer equipment failure and/or injury
during the parasail flight.
66. Defendant, Fuller, breached his duty in one or more of the following respects:
a. Negligent failure to use reasonable care with respect to safely conducting
a parasail excursion from the parasail vessel;
COMPLAINTMiskell v. Sands Harbor, Inc., et al.Page 16
b. Negligent failure to properly supervise, instruct, and/or train the crew of
the parasail vessel in pre-flight inspection of the parasail equipment and its safe and proper usage
during a parasail flight;
c. Negligent failure to properly insure that, before conducting parasail
activities, the parasail vessel had available for use adequate and safe parasail equipment,
including but not limited to the parasail harness in which the passengers/business invitees would
be secured during the parasail flight;
d. Negligent failure in taking the parasail vessel to go to sea to engage in a
parasail excursion in an unseaworthy condition with respect to the parasail vessel and/or the
parasail equipment with which the parasail flight would be conducted;
e. Negligent failure to have in place proper and adequate safety and rescue
practices, procedures and equipment should the parasail passengers/business invitees sustain
accident or injury during a parasail flight;
f. Negligent failure to comply with the rules and practice of general
maritime law to exercise reasonable care under the circumstances for the safety of
passengers/business invitees participating in parasail excursion activities;
g. Negligent failure to comply with the requirements of Florida Statutes with
respect to reckless or careless operation of a vessel, Florida Statute § 327.33, and/or with respect
to water skis, parasails, and aquaplanes regulations, Florida Statute § 327.37;
h. In other and further ways that will be proved at trial.
COMPLAINTMiskell v. Sands Harbor, Inc., et al.Page 17
67. The acts or omissions of Defendant, Fuller, as aforesaid, were a direct, proximate,
and legal cause of the incident which occurred on August 15, 2012, which resulted in the death
of Kathleen Miskell.
68 As a further and direct proximate result of the negligence of Defendant, Fuller,
the Estate of Kathleen Miskell has incurred funeral and burial expenses. and suffered the loss of
future earnings and net accumulations, including future pensions and retirement benefits.
Stephen Miskell, the spouse of Kathleen Miskell, has suffered damages including loss of support
and services, companionship, comfort, attention, as well as mental anguish, pain and suffering.
WHEREFORE, Stephen Miskell as Personal Representative of the Estate of Kathleen
Miskell demands judgment in excess of $15,000.00 against Defendant, Casey Fuller for
damages, costs, and interest allowable by law, and trial by jury.
COUNT V — NEGLIGENCE — WRONGFUL DEATH AGAINST DEFENDANT, ZABADAL
69 Stephen Miskell, as Personal Representative of the Estate of Kathleen Miskell,
realleges and reaffirms the allegations contained in paragraphs 1 through 40 above, and further
alleges.
70 Defendant, Zabadal, as an operator and/or person in charge of the parasail vessel
and/or the parasail excursion, owed his passengers/business invitees, Stephen Miskell and
Kathleen Miskell, the highest degree of care, given the risk presented by parasail excursions, to
properly equip, maintain, and operate the parasail vessel and/or the parasail equipment utilized in
the parasail activity, including but not limited to the parasail harness, to insure that the parasail
vessel and/or the parasail equipment, included but not limited to the parasail harness, was
COMPLAINTMiskell v. Sands Harbor, Inc., et al.Page 18
suitable and proper for its intended use, that he had the training and/or experience and/or was
properly qualified to serve as master, operator and/or to be in control of the parasail vessel and
its crew with respect to safely conducting parasail activities from the parasail vessel and to insure
that proper procedures, training and equipment were in place for rescue and recovery should the
parasail and its passengers/business invitees sustain or suffer equipment failure and/or injury
during the parasail flight.
71. Defendant, Zabadal, breached his duty in one or more of the following respects:
a. Negligent failure to use reasonable care with respect to safely
conducting a parasail excursion from the parasail vessel;
b. Negligent failure to properly supervise, instruct, and/or perform
pre-flight inspection of the parasail equipment to ensure that it was in a safe and proper condition
for usage during a parasail flight;
c. Negligent failure to properly insure that, before conducting
parasail activities, the parasail vessel had available for use adequate and safe parasail equipment,
including but not limited to the parasail harness in which the passengers/business invitees would
be secured during the parasail flight;
d. Negligent failure in taking the parasail vessel to go to sea to
engage in a parasail excursion in an unseaworthy condition with respect to the parasail vessel
and/or the parasail equipment with which the parasail flight would be conducted;
e. Negligent failure to have in place proper and adequate safety and
rescue practices, procedures and equipment should the parasail passengers/business invitees
sustain accident or injury during a parasail flight;
COMPLAINTMiskell v. Sands Harbor, Inc., etPage 19
f. Negligent failure to comply with the rules and practice of general
maritime law to exercise reasonable care under the circumstances for the safety of
passengers/business invitees participating in parasail excursion activities;
g. Negligent failure to comply with the requirements of Florida
Statutes with respect to reckless or careless operation of a vessel, Florida Statute § 327.33, and/or
with respect to water skis, parasails, and aquaplanes regulations, Florida Statute § 327.37;
h. In other and further ways that will be proved at trial.
72. The acts or ()missions of Defendant, Zabadal, as aforesaid, were a direct,
proximate, and legal cause of the incident which occurred on August 15, 2012, which resulted in
the death of Kathleen Miskell.
73 As a further and direct proximate result of the negligence of Defendant, Zabadal,
the Estate of Kathleen Miskell has incurred funeral and burial expenses, and suffered the loss of
future earnings and net accumulations, including future pensions and retirement benefits.
Stephen Miskell, the spouse of Kathleen Miskell, has suffered damages including loss of support
and services, companionship, comfort, attention, as well as mental anguish, pain and suffering.
WHEREFORE, Stephen Miskell as Personal Representative of the Estate of Kathleen
Miskell demands judgment in excess of $15,000.00 against Defendant, Jeffrey Zabadal for
damages, costs, and interest allowable by law, and trial by jury.
COMPLAINTMiskell v. Sands Harbor, Inc et al.Page 20
COUNT V1- NEGLIGENCE — WRONGFUL DEATH AGAINSTDEFENDANT, WAVEBLAST
74. Plaintiff, Stephen Miskell, as Personal Representative of the Estate of Kathleen
Miskell, realleges and reaffirms the allegations contained in paragraphs 1 through 40 above, and
further alleges:
75 Defendant, Waveblast, owed its passengers/business invitees, Stephen Miskell
and Kathleen Miskell, the highest degree of care, given the risk presented by parasail excursions,
to properly equip, maintain and operate the parasail vessel, and/or the equipment utilized in the
parasail activity, including but not limited to the parasail harness, to insure that the parasail
vessel and/or the parasail equipment, including but not limited to the parasail harness, was
suitable and proper for its intended use, to hire and train properly qualified parasail vessel
masters and crews, to train and instruct the parasail vessel masters and crews with respect to
safely conducting parasail activities from the parasail vessel, and to provide proper procedures,
training, and equipment to the masters and crews of the parasail vessel in rescue and recovery
should the parasail and its passengers/business invitees sustain or suffer equipment failure and/or
injury during the parasail flight.
76 Defendant, Waveblast, breached its duty in one or more of the following respects:
a. Negligent failure to use reasonable care by entrusting the parasail vessel
and its parasail equipment and the parasail excursion to a master and crew inexperienced and/or
careless with respect to safely conducting a parasail excursion from the parasail vessel;
COMPLAINTMiskell v. Sands Harbor. Inc., et al.Page 21
b. Negligent failure to properly supervise, instruct, and/or train the master
and crew of the parasail vessel in pre-flight inspection of the parasail equipment and its safe and
proper usage during a parasail flight;
c. Negligent failure to properly equip the parasail vessel with adequate and
safe parasail equipment, including but not limited to the parasail harness in which the
passengers/business invitees would be secured during the parasail flight;
d. Negligent failure in permitting the parasail vessel to go to sea to engage in
a parasail excursion in an unseaworthy condition with respect to the parasail vessel and/or the
parasail equipment with which the parasail flight would be conducted;
e. Negligent failure to train and/or have in place proper and adequate safety
and rescue practices, procedures and equipment should the parasail passengers/business invitees
sustain accident or injury during a parasail flight;
f. Negligent failure to comply with the rules and practice of general
maritime law to exercise reasonable care under the circumstances for the safety of
passengers/business invitees participating in parasail excursion activities;
g. Negligent failure to comply with the requirements of Florida Statutes with
respect to reckless or careless operation of a vessel, Florida Statute § 327.33, and/or with respect
to water skis, parasails, and aquaplanes regulations, Florida Statute § 327.37;
h. In other and further ways that will be proved at trial.
77. The acts or omissions of Defendant, Waveblast, as aforesaid, were a direct,
proximate, and legal cause of the incident which occurred on August 15, 2012, which resulted in
the death of Kathleen Miskell.
COMPLAINTMiskell v. Sands Harbor, Inc., et al.Page 22
78 As a further and direct proximate result of the negligence of Defendant,
Waveblast, the Estate of Kathleen Miskell has incurred funeral and burial expenses, and suffered
the loss of future earnings and net accumulations, including future pensions and retirement
benefits. Stephen Miskell, the spouse of Kathleen Miskell, has suffered damages including loss
of support and services, companionship, comfort, attention, as well as mental anguish, pain and
suffering
79. The conduct of Defendant, Waveblast, rises to a level sufficient to warrant the
imposition of punitive damages, which will be pled by Plaintiff at a later date.
WHEREFORE, Stephen Miskell as Personal Representative of the Estate of Kathleen
Miskell demands judgment in excess of $15,000.00 against Defendant, Waveblast Watersports
II, Inc. for damages, costs, and interest allowable by law, and trial by jury.
COUNT VII — STRICT PRODUCT LIABILITY — WRONGFUL DEATH AGAINST DEFENDANT, CUSTOM CHUTES
80 Stephen Miskell, as Personal Representative of the Estate of Kathleen Miskell,
realleges and reaffirms the allegations contained in paragraphs 1 through 40 above, and further
alleges.
81 At all times material hereto, the parasail equipment, apparel,appurtenances, etc.,
including but not limited to the parasail harness, and their/its component parts was/were
defective as to design, manufacture and warnings, causing the parasail equipment, apparel,
appurtenances, etc., including but not limited to the parasail harness and their/its component
parts to be in a dangerous and defective condition that made them unsafe for their intended use.
COMPLAINTMiskell v. Sands Harbor, Inc., et al.Page 23
82 The defective and dangerous condition of the parasail equipment, apparel,
appurtenances, etc., including but not limited to the parasail harness, as aforesaid, was a direct,
proximate and legal cause of the incident which occurred on April 15, 2012, which resulted in
the death of Kathleen Miskell.
83 As a further and direct proximate result of the defective and dangerous condition
of the parasail equipment, apparel, appurtenances, etc., including but not limited to the parasail
harness, the Estate of Kathleen Miskell has incurred funeral and burial expenses and suffered the
loss of future earnings and net accumulations, including future pensions and retirement benefits.
Stephen Miskell, the spouse of Kathleen Miskell, has suffered damages including loss of support
and services, companionship, comfort, attention, as well as mental anguish, pain and suffering.
84 The conduct of Defendant, Custom Chutes, rises to a level sufficient to warrant
the imposition of punitive damages, which will be pled by Plaintiff at a later date.
WHEREFORE, Stephen Miskell as Personal Representative of the Estate of Kathleen
Miskell demands judgment in excess of $15,000.00 against Defendant, Custom Chutes, Inc.,
jointly and severally, for damages, costs, and interest allowable by law, and trial by jury.
COUNT VIII — STRICT PRODUCT LIABILITY — WRONGFUL DEATH AGAINST DEFENDANT, WATERBIRD
85 Stephen Miskell, as Personal Representative of the Estate of Kathleen Miskell,
realleges and reaffirms the allegations contained in paragraphs 1 through 40 above, and further
alleges.
86. At all times material hereto, the parasail equipment, apparel, appurtenances, etc.,
including but not limited to the parasail harness, and their/its component parts was/were
COMPLAINTMiskell v. Sands Harbor, Inc., et al.Page 24
defective as to design, manufacture and warnings, causing the parasail equipment, apparel,
appurtenances, etc., including but not limited to the parasail harness and their/its component
parts to be in a dangerous and defective condition that made them unsafe for their intended use.
87 The defective and dangerous condition of the parasail equipment, apparel,
appurtenances, etc., including but not limited to the parasail harness, as aforesaid, was a direct,
proximate and legal cause of the incident which occurred on April 15, 2012, which resulted in
the death of Kathleen Miskell.
88. As a further and direct proximate result of the defective and dangerous condition
of the parasail equipment, apparel, appurtenances, etc., including but not limited to the parasail
harness. the Estate of Kathleen Miskell has incurred funeral and burial expenses and suffered the
loss of future earnings and net accumulations, including future pensions and retirement benefits.
Stephen Miskell, the spouse of Kathleen Miskell, has suffered damages including loss of support
and services, companionship, comfort, attention, as well as mental anguish, pain and suffering.
89 The conduct of Defendant, Waterbird, rises to a level sufficient to warrant the
imposition of punitive damages, which will be pled by Plaintiff at a later date.
WHEREFORE, Stephen Miskell as Personal Representative of the Estate of Kathleen
Miskell demands judgment in excess of $15,000.00 against Defendant, VL Gaskin T/A
Waterbird Parakites, jointly and severally, for damages, costs, and interest allowable by law, and
trial by jury.
COMPLAINTMiskell v. Sands Harbor, Inc., et al.Page 25
COUNT IX - NEGLIGENT INFLICTION OF EMOTIONAL DISTRESS/STEPHEN MISKELL — AGAINST DEFENDANT, SANDS HARBOR
90 Stephen Miskell, Plaintiff, realleges and reaffirms the allegations set forth in
paragraphs 1 through 40 above, and further alleges:
91. Following the fall of Kathleen Miskell from the parasail as aforesaid, Stephen
Miskell remained in the parasail, in flight, and remained in the parasail until the master and crew
of the parasail vessel had returned/recovered the parasail containing Stephen Miskell to the deck
of the parasail vessel.
92. During the recovery of the parasail, no rescue, recovery, or emergency assistance
was provided by the parasail vessel and/or its master and crew to Kathleen Miskell, who was
then afloat in the water following her fall from the parasail.
93 At all relevant times, Defendant, Sands Harbor had the power, ability, authority
and duty to oversee, regulate, and/or stop the conduct described herein and/or to intervene to
prevent or prohibit such conduct.
94 At all relevant times, Defendant, Sands Harbor knew, or reasonably should have
known, that the conduct described herein would and did proximately result in physical and
emotional distress to Stephen Miskell, Plaintiff.
95. Despite said knowledge, power, and duty, Defendant, Sands Harbor negligently
failed to stop the conduct described herein or to prevent or prohibit such conduct, or otherwise to
protect Stephen Miskell, Plaintiff, thereby breaching their duty to him.
96. Stephen Miskell, Plaintiff, as aforesaid, observed the circumstances of the extra
judicial death of a family member, Kathleen Miskell, his spouse.
COMPLAINTMiskell v. Sands Harbor, Inc., et al.Page 26
97 As a direct and legal result of the wrongful acts of Defendant, Sands Harbor,
Stephen Miskell, Plaintiff, has suffered and will continue to suffer significant physical injury,
pain and suffering and extreme and severe mental anguish and emotional distress.
98 The conduct of Defendant, Sands Harbor, constitutes the negligent infliction of
emotional distress and is actionable under the general maritime law of the United States and/or
the laws of the State of Florida. Stephen Miskell, Plaintiff is entitled to compensatory and
punitive damages in amounts to be ascertained at trial.
99 The conduct of Defendant, Sands Harbor, rises to a level sufficient to warrant the
imposition of punitive damages, which will be pled by Plaintiff at a later date.
WHEREFORE, Stephen Miskell, Plaintiff, demands judgment against Defendant, Sands
Harbor, Inc. for damages, costs, and interest allowable by law, and trial by jury.
COUNT X - NEGLIGENT INFLICTION OF EMOTIONALDISTRESS/STEPHEN MISKELL — AGAINST DEFENDANT, FULLER
100. Stephen Miskell, Plaintiff, realleges and reaffirms the allegations set forth in
paragraphs 1 through 40 above, and further alleges:
101. Following the fall of Kathleen Miskell from the parasail as aforesaid, Stephen
Miskell remained in the parasail, in flight, and remained in the parasail until the master and crew
of the parasail vessel had returned/recovered the parasail containing Stephen Miskell to the deck
of the parasail vessel.
102. During the recovery of the parasail, no rescue, recovery, or emergency assistance
was provided by the parasail vessel and/or its master and crew to Kathleen Miskell, who was
then afloat in the water following her fall from the parasail.
COMPLAINTMiskeIl v. Sands Harbor, Inc., et al.Page 27
103. At all relevant times, Defendant, Fuller had the power, ability, authority and duty
to oversee, regulate, and/or stop the conduct described herein and/or to intervene to prevent or
prohibit such conduct.
104. At all relevant times, Defendant, Fuller knew, or reasonably should have known,
that the conduct described herein would and did proximately result in physical and emotional
distress to Stephen Miskell, Plaintiff.
105. Despite said knowledge, power, and duty, Defendant, Fuller negligently failed to
stop the conduct described herein or to prevent or prohibit such conduct, or otherwise to protect
Stephen Miskell, Plaintiff, thereby breaching their duty to him.
106. Stephen Miskell, Plaintiff, as aforesaid observed the circumstances of the extra
judicial death of a family member, Kathleen Miskell, his spouse.
107. As a direct and legal result of the wrongful acts of Defendant, Fuller, Stephen
Miskell, Plaintiff, has suffered and will continue to suffer significant physical injury, pain and
suffering and extreme and severe mental anguish and emotional distress.
108. The conduct of Defendant, Fuller constitutes the negligent infliction of emotional
distress and is actionable under the general maritime law of the United States and/or the laws of
the State of Florida. Stephen Miskell, Plaintiff is entitled to compensatory and punitive damages
in amounts to be ascertained at trial.
WHEREFORE, Stephen Miskell, Plaintiff, demands judgment against Defendants, Casey
Fuller for damages, costs, and interest allowable by law, and trial by jury.
COMPLAINTMiskell v. Sands Harbor, Inc., et al.Page 28
COUNT XI - NEGLIGENT INFLICTION OF EMOTIONAL DISTRESS/STEPHEN MISKELL — AGAINST DEFENDANT, ZABADEL
109. Stephen Miskell, Plaintiff, realleges and reaffirms the allegations set forth in
paragraphs 1 through 40 above, and further alleges:
110. Following the fall of Kathleen Miskell from the parasail as aforesaid, Stephen
Miskell remained in the parasail, in flight, and remained in the parasail until the master and crew
of the parasail vessel had returned/recovered the parasail containing Stephen Miskell to the deck
of the parasail vessel.
111. During the recovery of the parasail, no rescue, recovery, or emergency assistance
was provided by the parasail vessel and/or its master and crew to Kathleen Miskell, who was
then afloat in the water following her fall from the parasail.
112. At all relevant times, Defendant, Zabadel has the power, ability, authority and
duty to oversee, regulate, and/or stop the conduct described herein and/or to intervene to prevent
or prohibit such conduct.
113. At all relevant times, Defendant, Zabadel knew, or reasonably should have
known, that the conduct described herein would and did proximately result in physical and
emotional distress to Stephen Miskell, Plaintiff.
114. Despite said knowledge, power, and duty, Defendant, Zabadel negligently failed
to stop the conduct described herein or to prevent or prohibit such conduct, or otherwise to
protect Stephen Miskell, Plaintiff, thereby breaching their duty to him.
115. Stephen Miskell, Plaintiff, as aforesaid observed the circumstances of the extra
judicial death of a family member, Kathleen Miskell, his spouse.
COMPLAINTMiskell v. Sands Harbor, Inc., et al.Page 29
116. As a direct and legal result of the wrongful acts of Defendant, Zabadel, Stephen
Miskell, Plaintiff, has suffered and will continue to suffer significant physical injury, pain and
suffering and extreme and severe mental anguish and emotional distress.
117. The conduct of Defendant, Zabadel, constitutes the negligent infliction of
emotional distress and is actionable under the general maritime law of the United States and/or
the laws of the State of Florida. Stephen Miskell, Plaintiff is entitled to compensatory and
punitive damages in amounts to be ascertained at trial.
WHEREFORE, Stephen Miskell, Plaintiff, demands judgment against Defendant, Jeffrey
Zabadel for damages, costs, and interest allowable by law, and trial by jury.
COUNT XII - NEGLIGENT INFLICTION OF EMOTIONALDISTRESS/STEPHEN MISKELL — AGAINST DEFENDANT, WAVEBLAST
118. Stephen Miskell. Plaintiff, realleges and reaffirms the allegations set tiwth in
paragraphs 1 through 40 above, and further alleges:
119. Following the fall of Kathleen Miskell from the parasail as aforesaid, Stephen
Miskell remained in the parasail, in flight, and remained in the parasail until the master and crew
of the parasail vessel had returned/recovered the parasail containing Stephen Miskell to the deck
of the parasail vessel.
120. During the recovery of the parasail, no rescue, recovery, or emergency assistance
was provided by the parasail vessel and/or its master and crew to Kathleen Miskell, who was
then afloat in the water following her fall from the parasail.
COMPLAINTMiskell v. Sands Harbor, Inc et al.Page 30
121. At all relevant times, Defendant, Waveblast had the power, ability, authority and
duty to oversee, regulate, and/or stop the conduct described herein and/or to intervene to prevent
or prohibit such conduct.
122. At all relevant times, Defendant, Waveblast knew. or reasonably should have
known, that the conduct described herein would and did proximately result in physical and
emotional distress to Stephen Miskell, Plaintiff.
123. Despite said knowledge, power, and duty, Defendant, Waveblast negligently
failed to stop the conduct described herein or to prevent or prohibit such conduct, or otherwise to
protect Stephen Miskell, Plaintiff, thereby breaching their duty to him.
124. Stephen Miskell. Plaintiff, as aforesaid observed the circumstances of the extra
judicial death of a family member, Kathleen Miskell, his spouse.
125. As a direct and legal result of the wrongful acts of Defendant, Waveblast, Stephen
Miskell, Plaintiff, has suffered and will continue to suffer significant physical injury, pain and
suffering and extreme and severe mental anguish and emotional distress.
126. The conduct of Defendant, Waveblast constitutes the negligent infliction of
emotional distress and is actionable under the general maritime law of the United States and/or
the laws of the State of Florida. Stephen Miskell, Plaintiff is entitled to compensatory and
punitive damages in amounts to be ascertained at trial.
127. The conduct of Defendant, Waveblast, rises to a level sufficient to warrant the
imposition of punitive damages, which will be pled by Plaintiff at a later date.
COMPLAINTMiskell v. Sands Harbor, Inc., et al.Page 31
WHEREFORE, Stephen Miskell, Plaintiff, demands judgment against Defendant,
Waveblast Watersports II, Inc., for damages, costs, and interest allowable by law, and trial by
jury.
DATED this day May, 2013.
KAREN E. TERRYFlorida Bar No.: 45780Primary E-mail: ket@searcylaw.comSecondary F.-mail(s): aje@searcylaw.comSearcy Denney Scarola Barnhart & Shipley, P.A.2139 Palm Beach Lakes BoulevardWest Palm Beach, Florida 33409Phone: (561) 686-6300Fax: (561) 383-9441Attorney for Plaintiff
DECREE GRANTINGADMINISTRATION ORPROBATE OF WILLPC-260 REV. 10/05
STATE OF CONNECTICUT
COURT OF PROBATE
RECORDED:
COURT OF PROBATE, DISTRICT OF Newington Probate District DISTRICT NO. PD07ESTATE OF
Kathleen Mary Miskell, Late of Wethersfield, CT., deceased, AKA Kathleen M. Miskell, AKA Kathleen Mary Mulcahy Miskell(12-0623)
FIDUCIARY'S NAME AND ADDRESS
Stephen M. Miskell, 23 Highview Avenue, Wethersfield, CT 06109
POSITION OF TRUST
Administrator
At a court of probate held at the place and time of hearing set by the Court, together with any continuances thereof, as of record appears, onthe petitioner's application for letters of administration be granted on said estate, all as in said application more fully appears.
PRESENT: Hon. Robert A. Randich, Judge
After due hearing, THE COURT FINDS that:
The above-named decedent died on the 15th day of August, 2012, domiciled at the time of death at 23 Highview Avenue,Wethersfield, CT 06109 and having estate whereof administration appertains to this Court, and administration of said estate oughtto be granted.
All persons known to be interested in said proceedings have signed and filed in court a written waiver of notice of hearing on saidapplication.
The fiduciary named above has accepted the position of trust designated above, andBond is waived at this time.
And it is ORDERED AND DECREED that:
Said will (and codicils, ifany) is duly proved, and the same is approved and admitted to probate as the LAST WILL ANDTESTAMENT of said deceased, and the fiduciary named above is approved, and letters testamentary are hereby issued to saidfiduciary.
And it is further ORDERED AND DECREED that:
Two months from the date hereof, be and the same is allowed said fiduciary within which to make a true and complete inventory ofall property of the estate of said deceased.
Twelve months from the date hereof, be and the same is allowed said fiduciary within which to settle said estate.All claims against the above estate be presented pursuant to the provisions of C.O.S. Ch. 802b, Part VII.
Notice of this decree be given by the judge, clerk, or assistant clerk by regular mail, not more than TEN days from the date hereofDated at Newington, Connecticut, this 25th day of September, 2012.
Robert A. Randich, Judge
EXHIBIT A*As used in this decree, the word fiduciary includes the plural, where the context so requires.
)ECREE GRANTING ADMINISTRATION OR PROBATE OF WILL'C-260
FIDUCIARY'S PROBATECERTIFICATEPC-450 REV. 8/02
STATE OF CONNECTICUT
COURT OF PROBATE
COURT OF PROBATE, liew'rrigton Probate District DISTRICT NO. PD07ESTATE OF/IN THE MATTER OF
Kathleen Mary Miskell, Late of Wethersfield, CT., deceased, AKA Kathleen M.IvSiske11, AKA Kati-hen Mary Muicaby 1Misktli V12-0623)
DATE OF CERTIFICATE
September 25, 2012Valid for.
1 year from this date
FIDUCIARY'S NAME AND ADDRESS
Stephen M. Miskell, 23 Highview Avenue,Wethersfield, CT 06109
FIDUCIARY'S POSITION OF TRUST
Administrator
DATE OF APPOINTMENT
September 25,2012
The undersigned hereby certifies that the fiduciary of the above-named estate has accepted appointment, and is legally authorized andqualified to act as such fiduciary on said estate because said appointment is unrevoked and in full force as of the above date of certificate.
BOND IS WAIVED AT THIS TIME.
Limitation, i f any, on the above certificate:
[N TESTIMONY WHEREOF, I have hereunto set my hand and affix the seal of thi Court on the above date of certificate.
CourtSeal
Pamela B. Friede erg, Clerk
NOT VALID WITHOUT COURT OF PROBATE SEAL IMPRESSED
7IDUCIARY'S PROBATE CERTIFICATEC-450
top related