NORTH AMERICAN CATAMARAN RACING ASSOCIATION, INC. (NACRA), APPELLANT,
v.
JOHN MCCOLLISTER, AS PERSONAL REPRESENTATIVE OF THE ESTATE OF CHRISTINE WAPNIARSKI, DECEASED, APPELLEE

Fla. 5th DCA | 1985-12-05
No. 84-1796
DAUKSCH and UPCHURCH, JJ., concur.
480 So. 2d 669 Florida District Court of Appeal, Fifth District (1985) Negative Treatment
Cited by 37 cases

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Holding

The court held that inconsistent jury verdicts, where the jury found no design defect but found negligence based on the same design, require reversal when there is no other evidence of negligence.


Headnotes

[1] A jury verdict finding no design defect is fundamentally inconsistent with a verdict finding negligence based solely on negligent design.

[2] A party must object to inconsistent jury verdicts before the jury is discharged to preserve the issue for appellate review, unless the inconsistency is of a fundamental n…

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Facts & Procedural History

A catamaran manufactured by NACRA capsized, leading to the death of a passenger who was later attacked by a shark while swimming to shore. The plainti…

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Opinion of the Court
SHARP, Judge.

SHARP, Judge.

North American Catamaran Racing Association, Inc. (NACRA) appeals from a judgment entered against it in a wrongful death case. Wapniarski died in the tragic aftermath of the capsize of a catamaran manufactured by NACRA. Because we find in this case no evidence of negligence on the part of NACRA, and no evidence of any defect in the design of the catamaran which was the cause of Wapniarski’s death, we reverse.

This suit arose out of an accident in 1981 which occurred at sea. Perrin, the owner of the catamaran and a co-defendant,1 invited three other young people to sail with him, including Wapniarski, that fateful afternoon. Perrin was the third owner of the boat, and he was not an expert sailor. The 1977 NACRA catamaran had been sailing poorly that day because one pontoon was leaking. Perrin thought the cause of the leak was a broken inspection cap which had a chipped or broken thread. Perrin tried to repair it with duct tape.

After making this repair on shore, the four sailed out to sea again. A storm came up, and the pontoon was again seen to be filling with water. Perrin tried to drain it by pulling the drain plug while sailing. However, the boat capsized and the leaking pontoon filled with water. The group clung to the remaining catamaran pontoon, which kept them afloat during the night. When daylight came, they decided to try to swim to shore. Wapniarski was not as good a swimmer as the other three, but she did not want to be left alone. On the journey to shore she was attacked by a shark, and died from loss of blood or drowning. Later, the Coast Guard found the catamaran, with one pontoon still afloat, but they were unable to recover it.

At trial, the appellee sought to prove that NACRA was negligent in its design of the catamaran for two reasons: it did not incorporate a positive flotation system into the design of the hulls; and it made the fiberglass hulls too thin, so they would leak and break up with use. The evidence on these two points, as well as the evidence on causation, even if defective design had been proven, was exceedingly weak and strongly countered by other evidence.

The jury was asked to answer a special verdict form, which included the following two questions: Was the sailboat defective when sold and, if so, was the defect a legal cause of the death of Christine Wapniarski?

Was there negligence on the part of defendant NACRA which was the legal cause of the death of Christine Wapniar-ski?

The jury answered the first question “No,” but it answered the second question “Yes.”

NACRA contends these verdicts are inconsistent and require reversal. The trial court instructed the jury on two theories of NACRA’s liability: strict liability and negligence. The first question pertains to the strict liability claim while the second question relates to the negligence claim. The allegation of negligence was the same under both theories: NACRA’s negligent design of the boat.

The appellee counters that NA-CRA waived appellate review of the inconsistency by not objecting before the jury was discharged.2 True, a party must object to defective verdict forms or inconsistent verdicts before the jury is discharged to preserve the claim, Higbee v. Dorigo, 66 So. 2d 684 (Fla.1953); Papcun v. Piggy Bag Discount Souvenirs Food and Gas Corp., 472 So. 2d 880 (Fla. 5th DCA 1985). Here, however, the inconsistency is of a fundamental nature because the only evidence of negligence offered against NACRA at trial related to its alleged negligent design. See Papcun v. Piggy Bag Discount Souvenirs Food and Gas Corp.; Robbins v. Graham, 404 So. 2d 769 (Fla. 4th DCA 1981). But, the jury found that there was no design defect. And if that were true, there was no other evidence to sustain the jury’s verdict in this case. Cf Cowart v. Kendall United Methodist Church, 476 So. 2d 289 (Fla. 3rd DCA 1985) (while verdict not inconsistent, no evidence to support it). Accordingly, we have no alternative but to reverse the judgment and remand for entry of judgment in NACRA’s favor.3

REVERSED and REMANDED.

DAUKSCH and UPCHURCH, JJ., concur. . The jury found Perrin 20% responsible, the decedent 20% responsible and NACRA 60% responsible for Wapniarski’s death.

. NACRA moved for a directed verdict, judgment notwithstanding the verdict and new trial on the grounds that the plaintiff failed to prove strict liability or negligence.

. The co-defendant, Perrin, did not appeal the final judgment and, therefore, our decision affects only the liability of NACRA.


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Citator

Cited By (18 total)

  • Phillips v. Ostrer, 481 So. 2d 1241 (Fla. 3d DCA 1985)
    …failure to raise these inconsistencies prior to the discharge of the jury constitutes a waiver of their right to challenge the interrogatories on appeal. Higbee v. Dorigo, 66 So. 2d 684 (Fla.1953); N. American Catamaran Racing Assoc. v. McCollister, 480 So. 2d 669 (Fla. 5th DCA 1985); Ashby Div. of Consol. Aluminum Corp. v. Dobkin, 458 So. 2d 335 (Fla. 3d DCA 1984); Savoca v. Sherry Frontenac Hotel Operating Co., 346 So. 2d 1207 (Fla. 3d DCA 1977).…
  • Moorman v. Am. Safety Equip., 594 So. 2d 795 (Fla. 4th DCA 1992)
    …ranting of second trials for reasons which could have been addressed at the first. ASE counters that Robbins should not control because the inconsistency in this verdict is “fundamental”, citing North American Catamaran Racing Ass’n v. McCollister, 480 So. 2d 669 (Fla. 5th DCA 1985), rev. denied, 492 So. 2d 1333 (Fla.1986). There, the court excused a failure to make a contemporaneous objection by holding that the inconsistency was “fundamental”. 480 So. 2d at 671. The Fifth District did not explain what it m…
  • Dependable Life Ins. Co. v. Harris, 510 So. 2d 985 (Fla. 5th DCA 1987)
    …RT. UPCHURCH, C.J., and ORFINGER, J., concur. . Higbee v. Dorigo, 66 So. 2d 684 (Fla.1953); Pap-cun v. Piggy Bag Discount Souvenirs, Food & Gas Corp., 472 So. 2d 880 (Fla. 5th DCA 1985); North American Catamaran Racing Assoc., Inc. v. McCollister, 480 So. 2d 669 (Fla. 5th DCA 1985), review denied, 492 So. 2d 1333 (Fla.1986). . Restatement (Second) of Torts § 46 (1965); see Ford Motor Credit Co. v. Sheehan, 373 So. 2d 956 (Fla. 1st DCA), cert, dismissed, 379 So. 2d 204 (Fla.1979); Cape Publications, Inc. v.…

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