“[I]n the early hours of June 25, 2023 in Miami’s Government Cut[,]” two boats collided, resulting in the death of Cristian Fernandez.[i] Cristian was riding in a recreational boat, a 32-foot Scorpion, when it collided with a ferry owned and operated by Fisher Island Community Association, Inc.[ii] At the time of the collision, the crew thought that only Angel Dominguez was on the Scorpion.[iii] Miguel Dominguez, the registered owner of the Scorpion, confirmed that Angel was its primary operator.[iv] Angel had no memory of the events, with his memories ending “the Friday before the collision” and not resuming “until he was ‘swimming in the water . . . and then waking up intubated in the hospital.’”[v] Christian Fernandez’s estate sued various parties, alleging negligence and negligence per se against Angel and negligent entrustment against Miguel.[vi] The litigation that followed shows how useful motion practice can be to narrow issues and obtain a favorable trial position.

Elements of Negligence, Negligence Per Se, and Negligent Entrustment

“A negligence claim has four elements: (1) a duty by defendant to conform to a certain standard of conduct; (2) a breach by defendant of that duty; (3) a causal connection between the breach and injury to plaintiff; and (4) loss or damage to plaintiff.”[vii] “Statutes and ordinances are categorized in three groups to determine the standards to apply when there is a violation of the statute. These categories come under the general headings of strict liability, negligence per se, and evidence of negligence.”[viii] Negligence per se “encompasses statutes or ordinances which protect a particular class of people from a particular injury or type of injury.”[ix] A plaintiff pursuing negligence per se “must establish membership in the class of persons the statute intended to protect, demonstrate that the injury is of the type the statute was designed to protect, and show that the injuries are a proximate result of the violation of the statute.”[x] “A ‘plaintiff who claims that the defendant was negligent per se in violating a safety statute is not claiming a new species of tort but simply asserting an ordinary negligence claim.’”[xi]

To show negligence per se, Plaintiff will have to show that Cristian was a member of the class of persons to be protected by the relevant statute, that his death was the type of injury the statute was designed to prevent, and that Cristian’s death was “a proximate result of the violation of the statute.”[xii] At a minimum, the statutes would be evidence of negligence, even if they do not impose strict liability.[xiii]

Negligent entrustment essentially accuses a person of providing another with the use of an object, knowing or having reason to know of that person’s likelihood to use it in a matter that involves an unreasonable risk of harm to themselves and others.[xiv] Section 327.32, Florida Statutes provides that “[l]iability for reckless or careless operation of a vessel shall be confined to the operator in immediate charge of the vessel and not imposed upon the owner of the vessel, unless the owner is the operator or is present in the vessel when any injury or damage is occasioned by the reckless or careless operation of such vessel[.]”[xv] While this statute relieves an owner who is not an operator of a boat of vicarious liability, “owner is liable for negligently entrusting his vessel to an incompetent operator[.]”[xvi]

Summary Judgment

Plaintiff moved for partial summary judgment on May 26, 2026.[xvii] Plaintiff asked the Court to find, based on the undisputed facts, that Angel was the operator of the Scorpion at the time of the collision and that he had exclusive control of the Scorpion at the time of the collision.[xviii] Plaintiff cited to depositions of Angel and Miguel, where they testified that Angel was typically the operator.[xix] Plaintiff also cited to Angel’s “lacerations to his spleen, broken pelvic bones, and severe bruising to his pelvic area[,]” and Cristian’s lack of similar injuries to that area.[xx] Relying on expert boating reconstructionist testimony that “pelvic-area injuries in boating collisions are a hallmark indicator that the injured person was positioned behind the controls at the time of impact[,]” Plaintiff argued that there was no genuine issue of material fact that anyone but Angel was operating the Scorpion at the time of the collision.[xxi]

Angel and Miguel responded to Plaintiff’s motion, arguing that no eyewitness saw Angel operating the Scorpion instead of Cristian, and that Cristian had operated the Scorpion many times previously when onboard with Angel.[xxii] Angel and Miguel cited various case law references regarding inferences made due to the lack of eyewitness testimony.[xxiii] However, their primary argument was that the lack of eyewitness testimony all but required a jury determination.[xxiv] They criticized the expert opinions on which Plaintiff relied, but offered no contrary expert opinion and only argued that the experts’ methodologies were insufficient.[xxv]

The Court ultimately granted Plaintiff’s motion because, under the applicable standard, “[a] movant is entitled to judgment as a matter of law when the evidence is so one-sided, a reasonable fact finder could not find for the nonmoving party.”[xxvi] The Court held that multiple  types of evidence supported a finding that Angel was operating the Scorpion, including physical injury evidence and multiple expert opinions.[xxvii] On the other hand, no record evidence “affirmatively” indicated that Cristian was operating the Scorpion that night.[xxviii] The Court held that Angel and Miguel’s argument, based on Cristian having operated the Scorpion in the past, asked the Court to make exactly the kind of speculative inference that they cited as improper under Florida law.[xxix] The case is still pending on the remainder of the issues.

Conclusion

It is essential to identify crucial issues early in litigation and tailor expert retention and discovery to support the favorable position. Plaintiff in the Fernandez case did just that, shoring up evidence to convince the Court that Angel was operating the Scorpion at the time of the collision. By giving the jury one less decision that they have to make, Plaintiff will be able to put forth a single narrative about who was operating the Scorpion that night and will not have to “fend off” any defenses that Cristian may have been the cause of his own death. While Angel and Miguel cited the appropriate cases in response to the summary judgment, they did not have the requisite evidence to show that there was a genuine issue of material fact regarding who drove the Scorpion at the time of the collision. Although Plaintiff fell far short of summary judgment for the case as a whole, by successfully pinpointing a narrow issue on which she could prevail, Plaintiff has postured herself in a much more advantageous position for trial.

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Sources

[i] Complaint, Alexis Fernandez as P.R. of the Estate of Cristian Fernandez v. Fisher Island Comm. Ass’n, Inc., et al., Case No. 2025-006077-CA-01, in the Circuit Court of the Eleventh Judicial Circuit in and for Miami Dade County.

[ii] Id.

[iii] Plaintiff’s Amended Motion for Partial Summary Judgment, Alexis Fernandez as P.R. of the Estate of Cristian Fernandez v. Fisher Island Comm. Ass’n, Inc., et al., Case No. 2025-006077-CA-01, in the Circuit Court of the Eleventh Judicial Circuit in and for Miami Dade County.

[iv] Id.

[v] Id.

[vi] Complaint, Alexis Fernandez as P.R. of the Estate of Cristian Fernandez v. Fisher Island Comm. Ass’n, Inc., et al., Case No. 2025-006077-CA-01, in the Circuit Court of the Eleventh Judicial Circuit in and for Miami Dade County.

[vii] Bartsch v. Costello, 170 So. 3d 83, 86 (Fla. 4th DCA 2015).

[viii] Eckelbarger v. Frank, 732 So. 2d 433, 435 (Fla. 2d DCA 1999).

[ix] Id. at 436.

[x] Torres v. Offshore Prof’’ Tour, Inc., 629 So. 2d 192, 194 (Fla. 3d DCA 1993).

[xi] Faircloth v. Main St. Entm’t, Inc., 392 So. 3d 1042, 1045 (Fla. 2024).

[xii] Torres, 629 So. 2d at 194.

[xiii] See id.; see also Eckelbarger, 732 So. 2d at 436-37.

[xiv] Cantalupo v. Lewis, 47 So. 3d 896, 898-99 (Fla. 4th DCA 2010).

[xv] § 327.32, Fla. Stat. Ann.

[xvi] Boland v. Suncoast Rent-A-Scooter, Inc., 439 So. 2d 916, 917 (Fla. 2d DCA 1983).

[xvii] Plaintiff’s Amended Motion for Partial Summary Judgment, Alexis Fernandez as P.R. of the Estate of Cristian Fernandez v. Fisher Island Comm. Ass’n, Inc., et al., Case No. 2025-006077-CA-01, in the Circuit Court of the Eleventh Judicial Circuit in and for Miami Dade County.

[xviii] Id.

[xix] Id.

[xx] Id.

[xxi] Id.

[xxii] Defendants’ Response in Opposition to Plaintiff’s Motion for Partial Summary Judgment, Alexis Fernandez as P.R. of the Estate of Cristian Fernandez v. Fisher Island Comm. Ass’n, Inc., et al., Case No. 2025-006077-CA-01, in the Circuit Court of the Eleventh Judicial Circuit in and for Miami Dade County.

[xxiii] Id.

[xxiv] Id.

[xxv] Id.

[xxvi] Agreed Omnibus Order on the Parties’ Partial Summary Judgment Motions, Alexis Fernandez as P.R. of the Estate of Cristian Fernandez v. Fisher Island Comm. Ass’n, Inc., et al., Case No. 2025-006077-CA-01, in the Circuit Court of the Eleventh Judicial Circuit in and for Miami Dade County (internal quotation marks omitted).

[xxvii] Id.

[xxviii] Id.

[xxix] Id.