AND FOR BROWARD COUNTY, FLORIDA CASE NO.: STEPHEN...

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.

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.

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.


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.

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.

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.


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.


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.

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


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


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:


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;


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.


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


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




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.


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.


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.


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



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.


COUNT IV — NEGLIGENCE — WRONGFUL DEATH AGAINST DEFENDANT. FULLER

64. Stephen Miskell, as Personal Representative of the Estate of Kathleen Miskell,


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;


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


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;



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.




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



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


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., et




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;


72. The acts or ()missions of Defendant, Zabadal, as aforesaid, were a direct,



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.




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.


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.

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;




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;


77. The acts or omissions of Defendant, Waveblast, as aforesaid, were a direct,




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



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



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.


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


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




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.


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



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


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


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




89 The conduct of Defendant, Waterbird, rises to a level sufficient to warrant the



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.


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.


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


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









COMPLAINTMiskeIl v. Sands Harbor, Inc., et al.

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


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.


COUNT XI - NEGLIGENT INFLICTION OF EMOTIONAL DISTRESS/STEPHEN MISKELL — AGAINST DEFENDANT, ZABADEL

109. Stephen Miskell, Plaintiff, realleges and reaffirms the allegations set forth in









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



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


115. Stephen Miskell, Plaintiff, as aforesaid observed the circumstances of the extra



116. As a direct and legal result of the wrongful acts of Defendant, Zabadel, Stephen



117. The conduct of Defendant, Zabadel, constitutes the negligent infliction of




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










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



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


124. Stephen Miskell. Plaintiff, as aforesaid observed the circumstances of the extra


125. As a direct and legal result of the wrongful acts of Defendant, Waveblast, Stephen



126. The conduct of Defendant, Waveblast constitutes the negligent infliction of




127. The conduct of Defendant, Waveblast, rises to a level sufficient to warrant the



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: [email protected] F.-mail(s): [email protected] 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

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