IN THE CIRCUIT COURT OF THE SEVENTEENTH JUDICIAL CIRCUIT, IN AND FOR BROWARD COUNTY, FLORIDA CASE NO.: STEPHEN MISKELL, as Personal Representative of the Estate of KATHLEEN MISKELL, and STEPHEN MISKELL, individually, Plaintiff, SANDS HARBOR, INC., a Florida corporation, CUSTOM CHUTES, INC., a Florida corporation, VL GASK1N T/A WATERBIRD PARAKITES, a foreign corporation, CASEY FULLER, JEFFREY ZABADAL, and WAVEBLAST WATERSPORTS II, Inc., a Florida corporation, Defendants. 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.
Miskell 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
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: 11 a. Stephen Miskell, spouse of Kathleen Miskell, age 31. b. The Estate of Kathleen Miskell. 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.
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.,
Miskell 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.
Miskell 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
Miskell 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
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
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. COUNTI 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:
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;
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. 45 In other and further ways that will be proved at trial. 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.
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.
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.
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.
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;
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.
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
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;
Miskell v. Sands Harbor, Inc., et Page 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. 72. In other and further ways that will be proved at trial. 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.
Miskell v. Sands Harbor, Inc et al. Page 20 COUNT V1- NEGLIGENCE WRONGFUL DEATH AGAINST DEFENDANT, 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;
Miskell 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. 77. In other and further ways that will be proved at trial. 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.
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.
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
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.
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.
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 EMOTIONAL DISTRESS/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.
MiskeIl 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.
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.
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 EMOTIONAL DISTRESS/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.
Miskell 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.
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. TERRY Florida Bar No.: 45780 Primary E-mail: ket@searcylaw.com Secondary F.-mail(s): aje@searcylaw.com Searcy Denney Scarola Barnhart & Shipley, P.A. 2139 Palm Beach Lakes Boulevard West Palm Beach, Florida 33409 Phone: (561) 686-6300 Fax: (561) 383-9441 Attorney for Plaintiff
DECREE GRANTING ADMINISTRATION OR PROBATE OF WILL PC-260 REV. 10/05 RECORDED: STATE OF CONNECTICUT COURT OF PROBATE COURT OF PROBATE, DISTRICT OF Newington Probate District DISTRICT NO. PD07 ESTATE 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 POSITION OF TRUST Stephen M. Miskell, 23 Highview Avenue, Wethersfield, CT 06109 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, on the 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 ought to 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 said application. The fiduciary named above has accepted the position of trust designated above, and Bond 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 AND TESTAMENT of said deceased, and the fiduciary named above is approved, and letters testamentary are hereby issued to said fiduciary. 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 of all 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 hereof Dated 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