It was all over the news recently when a casino boat in Florida caught fire, resulting in the death of Carrie Dempsey, 42, and leading to at least 8 other injuries. At first, I had no intention of writing about the accident, which seemed likely to be a straight-forward case of a negligent boat operator injuring passengers. Then a couple of details emerged, which complicated an apparently simple story.
At Grossman Law Offices, we like to remind the public that even if the accident looks like an obvious bad guy hurt an obvious good guy, once you dig a little deeper, details emerge, which invariably smudge a clear black and white picture into a blob of legal gray areas. Based upon the reporting I've come across so far, it looks like the casino boat fire might fit this well-established pattern.
I don't have any insight into this matter beyond what's been reported in the news. However, I feel that some of the details haven't garnered the attention they deserve in the press and will take a moment to explain why.
Our Position on the Florida Casino Boat Fire
In a bit, I'll lay out the case from the defense attorney's perspective, picking up on a few key details in order to show how they'll go about defending the casino boat operators. However, in the past, when I've taken that approach, I've found that many people mistake potential defense tactics for the opinion of the firm. To avoid any confusion, I'll lay out our take right here, clear as day.
As I mentioned before, initially, this struck me as a likely example of boat operator negligence. While I never want to stake out a definitive position based upon a news article, I also know that boats don't just spontaneously catch fire. Whether through improper maintenance or some other act of negligence, which started the fire, plain old common sense tells us that it's very likely that someone had to do something they shouldn't have, or forgot to do something that they should have, to cause this fire.
The most likely reason this fire occurred is because boat operator violated a duty that they owed to transport their passengers in a safe manner. As a result, the law would hold them liable for any resulting injuries and fatalities. Another possibility is that a boat repair company who maintained the boat did something improper, which caused the fire; in that case, they'd be on the hook for the resulting injuries and fatalities. A third possibility is that a manufacturing defect in the engine caused the fire to break out, and under that scenario, the manufacturer should be held accountable.
Without thoroughly examining all of the evidence, there's no way to know which of these theories is correct. In the interest of fairness, it's also necessary to point out that there is a small chance that everyone did everything correctly and this fire was completely unforeseeable and if that's true, this is all just a tragic accident. I don't personally believe that this is a very likely explanation, but when doing commentary, you have to deal in probabilities, whereas the law concerns itself with the particulars of actual incidents. Another way to think of it is just because something is very unlikely doesn't mean that it can't happen and the law doesn't punish people for things that are completely beyond their control.
In a nutshell, our position is that it's very likely that someone's carelessness caused this accident and that whoever was careless should bear accountability for the resulting damages.
A Plausible Approach for the Casino Boat Fire Defense Attorney
Based upon the public outrage and amount of interest in this incident, I feel fairly safe in assuming that most people probably view this fire along lines similar to the ones I laid out before. However, an attorney defending whoever screwed up has to look out for the best interest of their client, in this case, someone like the boat's owners. That means they are charged with finding a way to show their client wasn't to blame for this accident, and there are a couple of interesting tid-bits in the news coverage that leaves me to believe they've got a bit of ammo to work with.
From a strategic perspective, the most serious threat against boat operator is being found liable for Ms. Dempsey's death. The fact that paramedics treated and released all of the other people allows the boating company defense attorneys to argue that their injuries weren't that serious to begin with. It may have been scary and a harrowing experience for them to have to jump into the water and swim for their lives, but an attorney is likely to argue that they didn't suffer any actual harm. Without real losses, there's nothing to litigate. In most states, a person can't seek compensation just because someone accidentally scared them.
Ms. Dempsey's death is a completely different matter, since there's no more precious loss than your life. From our perspective, it seems likely that a jury would draw a pretty straight line between the boating company's actions and Ms. Dempsey's death. That is why any claims arising from her death are the biggest threat to the casino boat owners. How can a defense attorney protect his client's interests (read: not paying for this accident)?
The New and Intervening Cause Defense
The first detail that a defense attorney would latch on to are the reports that Ms. Dempsey reportedly felt well enough to go home, some hours passed, then she took herself to the emergency room where she died. This presents an attorney with a couple of defenses. It's possible (but very unlikely) that some new medical episode occurred in the hours after Ms. Dempsey went home that led to her death. The technical term for this is a new and intervening cause.
The quick and dirty explanation of this goes a bit like this. Suppose I'm in a terrible car accident and sustain massive injuries. I'm treated at a hospital, where they stabilize me and then send me home. As I'm being wheeled to my car in the parking lot, a bolt of lightning comes from the sky, hits me, and kills me. Even though the car accident injured me, in this scenario, the lightning bolt is what actually killed me. So while my family would have a claim against the person whose car hit me for the injuries I sustained, they couldn't pursue them for causing my death.
For this defense to work, an attorney needs to show that, more likely than not, some other medical episode, unrelated to the boat fire, occurred between the time Ms. Dempsey went home and when she passed away at the hospital. At this point, any speculation about what that might be would have no basis in the public record, but this is an aspect of this story that a skilled defense attorney would dig into.
The Failure to Mitigate Damages Defense
This defense is a bit similar to the new and intervening cause defense, but with some subtle differences. It still works off of the fact that Ms. Dempsey had access to medical treatment from the EMTs, some time passed, and then she went to the hospital. If (and we have no reason to suspect this happened) Ms. Dempsey wasn't looked over by a paramedic, or refused medical treatment, because her injuries didn't seem that serious, an attorney might be able to argue that it wasn't the accident, but the failure to seek medical attention that caused Ms. Dempsey's death.
To understand this defense a little better, let's revisit my hypothetical car accident from earlier. Suppose that after the accident I was bleeding, but not too severely. A paramedic offers to bandage me up and I figure it's not that bad, so I refuse treatment. Some time goes by and the bleeding doesn't stop. In fact, it goes on until I bleed to death. Who is responsible for my death? Was it the car that caused the initial accident, or me for refusing treatment?
If I would have survived had I sought out or accepted medical treatment, then it's quite likely that I failed to mitigate my damages. Again, the driver of the car would be on the hook for my initial injuries, but the fact that I died would be on me.
Just to be clear, the only information we have right now that would support either of these two defenses is that a time gap of several hours exists between when the accident occurred and people were treated on the beach and Ms. Dempsey's passing in the hospital. In order for these defenses to work, an attorney would have to investigate and discover more evidence than what currently exists in the public record.
EMT Immunity and The Empty Chair Defense
If a defense attorney finds that the previous two arguments don't hold up in the end, perhaps they'll likely turn their attention to one more obvious target. I'm going to be perfectly honest, this defense is probably going to rub someone the wrong way, but it's important to note, this isn't how I feel, it's just my best guess as to how a defense attorney would approach this case. The other plausible defense is blame the EMTs, who treated the boat passengers after they swam to shore.
At this time, we don't know whether or not Ms. Dempsey received any treatment on the beach. What we do know is that there were emergency first-responders who provided care to other survivors of this accident. A defense based upon blaming the EMTs could work one of two ways. If Ms. Dempsey received first-aid, the attorneys for the casino boat will likely argue that the cause of Ms. Dempsey's death wasn't the boat fire, but improper medical treatment.
In this case, the attorneys would admit the possibility that Ms. Dempsey suffered injuries in the initial fire, but turn around and argue that if those injuries were properly diagnosed and treated, then Ms. Dempsey would have lived. According to this argument, it would be poor medical care, not the fire, which led to Ms. Dempsey's demise. Even if the EMTs didn't treat Ms. Dempsey, this defense still works, because the defense could argue that by not treating her, first-responders failed in their duty properly diagnose Ms. Dempsey.
I don't want to drown anyone in inside baseball, but it's necessary to understand just how dangerous this defense could prove to be. In typical cases, even if two groups contribute to the death of someone, it's still possible to hold each of them accountable. Victim's attorneys name both parties in the litigation and at the end of the day, a jury decides how to divvy up responsibility. Then they divide any damages based upon how much blame the jury places on each party and everyone pays their fair share.
So why wouldn't this work, given the facts reported in this case? Florida law grants EMTs very strong protections from lawsuits. These protections prevent EMTs from being sued in almost any instance, regardless of how badly they screw up. For all practical purposes, unless an EMT intentionally hurts someone, or flat-out refuses to treat someone, once they're on the scene, they are immune to lawsuits.
So in a typical court case, defendants can blame one another and from a victim's perspective, the debate is really only a matter of whether or not they'll get justice from column A or column B. In fact, the defedants' desperation to avoid responsibility means that they'll argue against their co-defendant with just as much zeal as the injured persons' attorney.
But when one of the defendants is essentially bullet-proof, they won't even be compelled by the court to show up. In this situation, this would give the casino boat's attorneys free reign to argue against an empty chair, the EMTs. Every bit of blame they put on the EMT will ultimately reduce the amount of the burden for this incident that the casino boat owners have to shoulder. If they can convince a jury that it was medical malpractice, not negligence on their part, that led to Ms. Dempsey's death, they could theoretically walk away owing nothing. Since the EMTs have such strong immunity, there would be no tools left to hold anyone accountable for this accident.
If all of that has you a bit lost, here's a simpler way to envision this potential scenario. Imagine that you have a couple of kids and $20 turns up missing from your wallet. Since they're your kids, you can haul both kids in front of your parents' court to find out who took the money. Each kid will be quite eager to point the blame at the other and by listening to their stories, you'll be able to figure out where your money is and possibly recover it.
Now imagine that the money disappears while one of your children has a friend over. By the time you figure out that the money is gone that other child has gone over to their house. You call up their parents' and explain what happened, but that parent says, "My kid didn't do it, don't talk to them again." You don't have the power to compel someone else's child to appear in your parents' court, so you're left to question your own kid. Your kid is going to have a much easier time convincing you that they didn't take the money, when there's no one there to argue against their account. In this scenario, you're pretty sure who took the money, but you don't have the power to make the other child pay, so you're out your $20 and that's the end of the matter.
This is pretty much how the empty chair tactic of blaming the EMT would work, only with much much higher stakes.
We Should Never Assume That Justice is a Forgone Conclusion
When I read of complex legal situations, for whatever reasons it often reminds me of a story about an old slugger who never really made it in the majors. In practice, pitchers would throw the slugger nothing but fastballs and he'd hit a home run nearly every time. Then they'd throw him nothing but curveballs and he'd hit those out of the park as well. However, when it came time for the games, when he didn't know what was coming, this guy, who didn't miss a thing in practice, couldn't connect with the ball when it mattered. After a few years, when it became apparent that he'd never learn, his career was over.
Most legal cases are similar in that the attorneys for the business that committed a careless act are going to throw everything at the victims in order to get out of paying for their mistake. When victims are unprepared for this onslaught, they're a lot like the slugger not knowing what pitch is coming. Things get harder and there's a much greater risk of failure. However, when they have the help they need, they know exactly what's coming and how to deal with it. When that happens, they usually knock the case out of the park, just like it's batting practice.
I also realize that by spending so much time discussing defense strategy in this incident, I may give the impression that I think they have strong case. Based upon what we know right now, I believe that the preliminary facts are far more likely to favor the victims of this incident than the boat operators.
Of course, news reports aren't the end of the story. They're probably not even the beginning. Instead they're a rough outline of facts that we know at this time. Only as the investigations into this matter unfold will we know how viable these defense tactics are. Based upon current reports, it seems likely that a jury would ultimately hold the casino boat operator accountable.
Like any other area of life, when dealing with a legal matter, what you don't know can hurt you. Given that the stakes in most legal proceedings are pretty high, they tend to magnify mistakes. Over the years our firm has helped thousands of people in car accidents, commercial truck accidents, and wrongful death actions. In that time, there's probably been an equal number of people that we couldn't help. It wasn't that the facts in their cases were any less favorable than in the cases we were able to help people in. It wasn't a clever defense attorney that deprived these folks at their chance at justice, but mistakes that the injured person made early on, because they thought they understood the law better than they did.
While the public record suggests that there will almost certainly be complications in the quest to hold whoever is responsible for the Florida casino boat fire accountable for the injuries that resulted, the bigger takeaway is that almost every personal injury case is going to throw the victim a few curveballs. The key to holding careless businesses and individuals accountable for the damage they cause is to be prepared for whatever they may throw at you.