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Filing #76704919 E-Filed 08/20/2018 03:55:57 PM
IN THE CIRCUIT COURT OF THE 167
JUDICIAL CIRCUIT, IN AND FOR
MONROE COUNTY, FLORIDA
CASE NO. 18-CA-595-K
JOHN TROY LEWIS as Personal
Representative of the Estate of
LISA LEWIS
Plaintiff,
Vv.
YANKEE FREEDOM III, LLC
A Florida corporation for profit
Defendant.
/
DEFENDANT’S ANSWER AND AFFIRMATIVE
AFFIRMATIVE DEFENSES TO PLAINTIFF’S COMPLAINT
Defendant, YANKEE FREEDOM III, LLC ("YANKEE FREDOM"), by and
through undersigned counsel, files its Answer and Affirmative Defenses to
Plaintiffs Complaint and states:
1 Admitted for jurisdictional purposes only that Plaintiff is making a
claim for damages in excess of the jurisdiction limits of this Court; but denied that
Plaintiff is entitled to same.
2 YANKEE FREDOM is without knowledge of the veracity of this
paragraph, therefore same is denied.
3 YANKEE FREDOM is without knowledge of the veracity of this
paragraph, therefore same is denied.
4 Admitted.
HAMILTON, MILLER & BIRTHISEL, LLP
150 Southeast Second Avenue, Suite 1200 - Miami, Florida 33131 - Telephone: 305-379-3686 - Facsimile: 305-379-3690
CASE NO. 18-CA-18595-K
5 Admitted only that YANKEE FREDOM was at all times material to
this lawsuit the owner and operator of the ferry vessel YANKEE FREDOM III. The
remainder of this paragraph is denied.
6. Admitted.
7 Admitted that YANKEE FREDOM offered, marketed, promoted,
advertised, arranged for, managed, and sold those ferry services specifically
delineated in the Concessioner Agreement with the National Park Service.
8. Denied.
9. YANKEE FREDOM denies that the cited case stands for the premise
asserted in this allegation. However, for purposes of this lawsuit along YANKEE
FREDOM admits that it is governed by Florida state law.
10. Admitted.
11. Denied.
12, Denied.
13. Admitted only that the passenger ticket price includes use of
snorkeling equipment while at Dry Tortugas National Park, as mandated by the
National Park Service in the Concessioner Agreement. The remainder of this
paragraph is denied.
14. Denied.
15. Admitted.
16. Denied.
-2-
HAMILTON, MILLER & BIRTHISEL, LLP
150 Southeast Second Avenue, Suite 1200, ‘Miami, Florida 33131 - Telephone: 305-379-3686 Facsimile: 305-379-3690
CASE NO. 18-CA-18595-K
17. Admitted that as the request of Plaintiff and Decedent, and following
safety briefings and execution of the Assumption of Risk and Release of Liability
attached hereto as Exhibit Aj) YANKEE FREDOM crew provided Decedent with a
mask, snorkel, fins and a buoyancy compensator vest.
18 Denied.
19 Denied
20, Denied
21 Denied
22. Denied
23 Denied
24 Denied.
25, Denied
26 Denied
27 (a-q) Denied.
28. Denied.
29, Denied.
30. Denied.
31. Admitted only that Plaintiff is making a claim for damages in excess of
the jurisdictional limits of this Court; but denied that Plaintiff is entitled to same.
AFFRIRMATIVE DEFENSES
1 Plaintiff fails to state a claim for which relief can be granted.
-3-
HAMILTON, MILLER & BIRTHISEL, LLP
150 Southeast Second Avenve, Suite 1200, - Miami, Florida 33131 + Telephone: 305-379-3686 «Facsimile: 305-379-3690
CASE NO. 18-CA-18595-K
2. Defendant is immune from suit and from liability under the
government-contractor defense as articulated in Boyle v. United Tech. Corp., 487
U.S. 500 (1988) as Defendant was at all times material a government contractor to
the National Park Service as set forth in the Concessioner Agreement.
3 Plaintiffs claim is barred by the Assumption of Risk and Release of
Liability attached hereto as Exhibit A.
4 The Decedent acknowledged and understood that there are inherent
risks involved with the physical activities such as snorkeling, including but not
limited to, equipment failure, perils of the sea, harm caused by marine creatures
(including bites), acts of fellow participants, entering and exiting the water, and
other activities on docks, beaches and the grounds of the Park; and the Decedent
assumed all such risks as acknowledged in paragraph 1 of the executed Assumption
of Risk and Release of Liability attached hereto as Exhibit A.
5: The Decedent acknowledged that she had a duty to exercise reasonable
care for her own safety and she agreed to do so, acknowledged that there were no
lifeguards present and that snorkeling was an “at your own risk” activity, as
acknowledged in paragraph 2 of the executed Assumption of Risk and Release of
Liability attached hereto as Exhibit A.
6 The Decedent acknowledged that she was physically fit to snorkel and
would not hold the Defendant responsible if she was injured in any manner while
snorkeling, as acknowledged in paragraph 3 of the executed Assumption of Risk and
Release of Liability attached
-4-
HAMILTON, MILLER & BIRTHISEL, LLP
150 Southeast Second Avenue, Suite 1200, - Miami, Florida 33131 « Telephone: 305-379-3686 - Facsimile: 305-379-3690
CASE NO. 18-CA-18595-K
7. The Decedent acknowledged that Defendant made no representations
to her, implied or otherwise, that they or their crew can or will perform safe rescues
or render first aid, as acknowledged in paragraph 5 of the executed Assumption of
Risk and Release of Liability attached hereto as Exhibit A. hereto as Exhibit A.
8 The Decedent acknowledged that she had been present and attentive
to the safety briefings given by the boat captain, crew and attendants; and that she
had an affirmative duty to plan and carry out her own snorkeling activity and to be
responsible her own safety; and that she alone was responsible for determining
whether her swimming skills, training and/or general health are suitable for
snorkeling and/or for the weather and/or water conditions, as acknowledged in
paragraph 6 of the executed Assumption of Risk and Release of Liability attached
hereto as Exhibit A. hereto as Exhibit A..
9. Plaintiff warranted and promised that she would immediately cease
and abort snorkeling if she felt uncomfortable with her ability and/or with weather
or water conditions at any time while snorkeling, as acknowledged in paragraph 6
of the executed Assumption of Risk and Release of Liability attached hereto as
Exhibit A. hereto as Exhibit A..
10. Defendant did not breach any duty owed to the Decedent, therefore
Plaintiff has failed to state a cause of action.
11. Plaintiff assumed the risks associated with snorkeling and related
water activity on the day in question.
5a
HAMILTON, MILLER & BIRTHISEL, LLP
150 Southeast Second Avenue, Suite 1200, - Miami, Florida 33131 - Telephone: 305-379-3686 «Facsimile: 305-379-3690
CASE NO. 18-CA-18595-K
12. To the extent weather and/or water conditions caused or contributed to
the accident which is the subject of this lawsuit, said conditions were open and
obvious.
13. Plaintiffs damages may have been caused, either in whole or in part,
by the Decedent’s own acts of negligence. An award of damages, if any, should be
reduced accordingly by the principles of comparative fault.
14, Plaintiffs damages may have been caused, either in whole or in part,
by the negligence of non-parties, including but not limited to (a) John Lewis; (b)
and/or currently unidentified snorkelers that were snorkeling with the Decedent at
the time of the accident described herein. An award of damages, if any, should be
reduced by the percentage of fault attributable to each, according to the principles
of comparative negligence
15. Plaintiffs claims against Defendant are barred because the claimed
damages are the result solely of independent and superseding causes for which
Defendant is not responsible.
16. This cause of action is governed by Florida Statute § 627.7372 and/or
Florida Statute § 768.76 in that the Plaintiff has been reimbursed by one or more of
the collateral sources enumerated in these Statutes and therefore Defendant is
entitled to a post-verdict set-off for all such amounts.
17. Lauren Lewis and Sarah Lewis are adult children of the Decedent,
therefore pursuant to Florida Statute § 768.21 damages for lost parental
-6-
HAMILTON, MILLER & BIRTHISEL, LLP
150 Southeast Second Avenue, Suite 1200, - Miami, Florida 33131 - Telephone: 305-379-3686 - Facsimile: 305-379-3690
CASE NO. 18-CA-18595-K
companionship, instruction and guidance and for mental pain and suffering are not
recoverable.
WHEREFORE, Defendant, YANKEE FREEDOM respectfully requests that
this Court enter judgment in favor of YANKEE FREEDOM, along with prevailing
party taxable costs and any other relief deemed necessary.
Respectfully submitted,
Ist_ Krista Fowler Alouta
Krista Fowler Acuiia
Fla. Bar No. 650791
Elisha M. Sullivan, Esq.
Fla. Bar No. 57559
HAMILTON, MILLER & BIRTHISEL, LLP
Attorneys for Defendant
150 Southeast Second Avenue, Suite 1200
Miami, Florida 33131-2332
Telephone: 305-379-3686
Facsimile: 305-379-3690
-7-
HAMILTON, MILLER & BIRTHISEL, LLP
150 Southeast Second Avenue, Suite 1200, «Miami, Florida 33131 - Telephone: 305-379-3686 + Facsimile: 305-379-3690
CASE NO. 18-CA-18595-K
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a copy hereof was served on counsel on the
attached Service List via the E-Portal on August 20, 2018.
/s/ herista Fowler Alouta
Krista Fowler Acufia
SERVICE LIST
Jason R. Margulies, Esq. Krista Fowler Acuiia
Florida Bar No. 57916 Fla. Bar No. 650791
jmargulies@lipcon.com kacuna@hamiltonmillerlaw.com
Carol L. Finklehoffe, Esq. Elisha M. Sullivan
Florida Bar No. 0015903 Fla. Bar No. 57559
dfinklehoffe@lipcon.com sullivan@hamiltonmillerlaw.com
Lipcon, Margulies, Alsina Hamilton, Miller & Birthisel, LLP
& Winkleman, P.A. 150 S.E. Second Avenue, Suite 1200
One Biscayne Tower, Suite 1776 Miami, Florida 33131
2 South Biscayne Boulevard Telephone: 305-379-3686
Miami, Florida 33131 Facsimile: 305-379-3690
Telephone: (305) 373-3016 Attorneys for Defendant
Facsimile: (305) 373-6204
Attorneys for Plaintiff
-8-
HAMILTON, MILLER & BIRTHISEL, LLP
150 Southeast Second Avenue, Suite 1200, - Miami, Florida 33131 - Telephone: 305-379-3686 Facsimile: 305-379-3690,
EXHIBIT “A”
Assumption of Risk and Release of Liability
I, for my heirs, assigns, spouse, children, pare: executors and administrators, and ifI am the parent or legal guardian of a
Participant under the age of 18, for such Participant and his or her hi , assigns, spouse, children, parents, executors and
administrators (herein, “Releasors”), understand that the purpose of signing this document is to release and hold harmless
Yankee Freedom IH, LC, the vessel Yankee Freedom II, and their owners, employees/crew, agents, and associated personnel
(herein, “Released Parties”), from any and all liability for personal injury, property damage or wrongful death that may occur
during the course of any trip to the Dry Tortugas National Park (the “Park”) aboard the Yankee Freedom III (the “Trip")
and/or while engaging in any ph: al activities during the Trip, such as snorkeling (collectively, the Activities”),
! 1 UNDERSTAND THAT EE ARI INHERENT RISKS INVOLVED WITH THE PHYSICAL ACTIVITIL
SUCH AS SNORKELING IN WIIICH 1] MAY GAG DURING ANY TRIP TO TH PARK including
but not limited to, equipment failure, perils of the sea, harm caused by marine creatures (including bites), acts of fellow
participants, entering and exiting the water, and other activities on docks, beache: and the grounds of the Park. 1H EBY
ASSUME ALL SUCIT RISKS ASSOCIATED WITH PARTICIPATION IN THESE ACTIVITIES.
T UND! TAND THAT T HAVE A DU Y TOT ERCIS REASONABLE CARE FOR MY OWN SAFETY AND |
AGREE DO SO, 1 ACKNOW THAT TH RE ARE NO LIFEGUARDS PRESENT AND THAT SNORKELING
IS AN “AT MY OWN RISK” ACTIVI
1am physically fit to snorkel and I will not hold the Released Parties responsible if 1 am injured ini any manner while snorkeling.
1 fully understand that the YANK REEDOM I and the Park have limited medic: ities and that, in the event of
illness or injury, treatment may be delayed until | can be transported to a proper medical facility by medevac or other means of
transport. I agree in advance to these conditions.
The Released Parties have made no representation to me, implied or otherwise, that they or their crew can or will perform
safe rescues or render first aid, In the event | show signs of distress or call for aid, | would like assi stance and will not hold
the Released Parties, their crew, or passengers responsible for their actions in attempting the rescue or first aid.
6. I have been and will he present and attentive to the safety briefings given by the boat captain, crew and attendants. 1
understand that | have an affirmative duty to plan and carry out my own snorkeling activity and to be responsible for my
own safely. 1 alone am responsible for determining whether my swimming skills, training and/or general health are
suitable for snorkeling and/or for the weather and/or water conditions, | will immediately cease and abort my snorkeling if
a. I feel uncomtortable with my abilities and/or,
b Jam or become uncomfortable with weather or water conditions at any time while snorkeling
1, for each of the Releasors, hereby covenant not to sue the Released Parties, and release and discharge each of them,
from and against any and all claims, demands, obli; jons, suits, actions and causes of action of whatever kind, whether
arising at law or in equity, (hat any Releasor may have had, may now have or may hereafter have, against any such
Released Partics arising out of or in any way related to the Trip or the Participant’s participation in the Activities,
including personal injury, property damage or wrongful death that the Participant may suffer before, during or after the
Trip. 1 understand that this release includes any claims based on negligence or any other action or omission by any
Released Parties, or any condition of any premises al which any Activities take place. I further agree that if, despite this
agreement, I, or anyone on my behalf or on behalf of the Participant, makes a claim against any of (he Released Parties,
will indemnify, save, and hold harmless each of the Released Partics from any loss, liability, damage. or cost which any
may incur as the result of such claim.
This is a legally binding contract Should any part of tt contract be held invalid, the balance shall continue in full force and
effe I have carefully read thi: contract in its entirety, fully understand its contents, and agree to the terms and conditions
of this contract on behalf of myself and cach of the Releasor document constitutes the final and entire agreement
between Released Parties and the undersi ned regarding th ject matter hereof. There are NO WARRANTIES expressed
or implied, which extend beyond the des iplion of the Activit
9, Any dispute ari sing out of or related to the terms of this contract, the Trip and/or any Activities shall be exclusively governed by
the laws of the State of Florida, USA and the exclusive venue for same shall be the U.S. District Court for the Southern District
of Florida, Key West Division,
T have read this agreement and am aware that it is a release of liability and an enforceable contract in favor of the Released Parties. |
hereby attest that Lam at least 18 years of age and sign of my own free will and agree to be bound by it
(B5s_) 33
Signature of Participant Telephone
Leg
deme 4 & sed
Print Name Address: City State Zip
This is to certify that I, as parent/guardian with legal responsibility for this Participant, do consent and agree to his/her release as
provided above, [ represent and warranty that [ am the parent or legal guardian of the Participant, and indemnity and hold harmless the
Released Parties for damages resulting from a breach of this representation.
pes TA
Signature of Parent or Guardian Print Name of Parent or Guardian Date TA ACC ARICIAIC
Preview
Filing #76704919 E-Filed 08/20/2018 03:55:57 PM IN THE CIRCUIT COURT OF THE 167 JUDICIAL CIRCUIT, IN AND FOR MONROE COUNTY, FLORIDA CASE NO. 18-CA-595-K JOHN TROY LEWIS as Personal Representative of the Estate of LISA LEWIS Plaintiff, Vv. YANKEE FREEDOM III, LLC A Florida corporation for profit Defendant. / DEFENDANT’S ANSWER AND AFFIRMATIVE AFFIRMATIVE DEFENSES TO PLAINTIFF’S COMPLAINT Defendant, YANKEE FREEDOM III, LLC ("YANKEE FREDOM"), by and through undersigned counsel, files its Answer and Affirmative Defenses to Plaintiffs Complaint and states: 1 Admitted for jurisdictional purposes only that Plaintiff is making a claim for damages in excess of the jurisdiction limits of this Court; but denied that Plaintiff is entitled to same. 2 YANKEE FREDOM is without knowledge of the veracity of this paragraph, therefore same is denied. 3 YANKEE FREDOM is without knowledge of the veracity of this paragraph, therefore same is denied. 4 Admitted. HAMILTON, MILLER & BIRTHISEL, LLP 150 Southeast Second Avenue, Suite 1200 - Miami, Florida 33131 - Telephone: 305-379-3686 - Facsimile: 305-379-3690 CASE NO. 18-CA-18595-K 5 Admitted only that YANKEE FREDOM was at all times material to this lawsuit the owner and operator of the ferry vessel YANKEE FREDOM III. The remainder of this paragraph is denied. 6. Admitted. 7 Admitted that YANKEE FREDOM offered, marketed, promoted, advertised, arranged for, managed, and sold those ferry services specifically delineated in the Concessioner Agreement with the National Park Service. 8. Denied. 9. YANKEE FREDOM denies that the cited case stands for the premise asserted in this allegation. However, for purposes of this lawsuit along YANKEE FREDOM admits that it is governed by Florida state law. 10. Admitted. 11. Denied. 12, Denied. 13. Admitted only that the passenger ticket price includes use of snorkeling equipment while at Dry Tortugas National Park, as mandated by the National Park Service in the Concessioner Agreement. The remainder of this paragraph is denied. 14. Denied. 15. Admitted. 16. Denied. -2- HAMILTON, MILLER & BIRTHISEL, LLP 150 Southeast Second Avenue, Suite 1200, ‘Miami, Florida 33131 - Telephone: 305-379-3686 Facsimile: 305-379-3690 CASE NO. 18-CA-18595-K 17. Admitted that as the request of Plaintiff and Decedent, and following safety briefings and execution of the Assumption of Risk and Release of Liability attached hereto as Exhibit Aj) YANKEE FREDOM crew provided Decedent with a mask, snorkel, fins and a buoyancy compensator vest. 18 Denied. 19 Denied 20, Denied 21 Denied 22. Denied 23 Denied 24 Denied. 25, Denied 26 Denied 27 (a-q) Denied. 28. Denied. 29, Denied. 30. Denied. 31. Admitted only that Plaintiff is making a claim for damages in excess of the jurisdictional limits of this Court; but denied that Plaintiff is entitled to same. AFFRIRMATIVE DEFENSES 1 Plaintiff fails to state a claim for which relief can be granted. -3- HAMILTON, MILLER & BIRTHISEL, LLP 150 Southeast Second Avenve, Suite 1200, - Miami, Florida 33131 + Telephone: 305-379-3686 «Facsimile: 305-379-3690 CASE NO. 18-CA-18595-K 2. Defendant is immune from suit and from liability under the government-contractor defense as articulated in Boyle v. United Tech. Corp., 487 U.S. 500 (1988) as Defendant was at all times material a government contractor to the National Park Service as set forth in the Concessioner Agreement. 3 Plaintiffs claim is barred by the Assumption of Risk and Release of Liability attached hereto as Exhibit A. 4 The Decedent acknowledged and understood that there are inherent risks involved with the physical activities such as snorkeling, including but not limited to, equipment failure, perils of the sea, harm caused by marine creatures (including bites), acts of fellow participants, entering and exiting the water, and other activities on docks, beaches and the grounds of the Park; and the Decedent assumed all such risks as acknowledged in paragraph 1 of the executed Assumption of Risk and Release of Liability attached hereto as Exhibit A. 5: The Decedent acknowledged that she had a duty to exercise reasonable care for her own safety and she agreed to do so, acknowledged that there were no lifeguards present and that snorkeling was an “at your own risk” activity, as acknowledged in paragraph 2 of the executed Assumption of Risk and Release of Liability attached hereto as Exhibit A. 6 The Decedent acknowledged that she was physically fit to snorkel and would not hold the Defendant responsible if she was injured in any manner while snorkeling, as acknowledged in paragraph 3 of the executed Assumption of Risk and Release of Liability attached -4- HAMILTON, MILLER & BIRTHISEL, LLP 150 Southeast Second Avenue, Suite 1200, - Miami, Florida 33131 « Telephone: 305-379-3686 - Facsimile: 305-379-3690 CASE NO. 18-CA-18595-K 7. The Decedent acknowledged that Defendant made no representations to her, implied or otherwise, that they or their crew can or will perform safe rescues or render first aid, as acknowledged in paragraph 5 of the executed Assumption of Risk and Release of Liability attached hereto as Exhibit A. hereto as Exhibit A. 8 The Decedent acknowledged that she had been present and attentive to the safety briefings given by the boat captain, crew and attendants; and that she had an affirmative duty to plan and carry out her own snorkeling activity and to be responsible her own safety; and that she alone was responsible for determining whether her swimming skills, training and/or general health are suitable for snorkeling and/or for the weather and/or water conditions, as acknowledged in paragraph 6 of the executed Assumption of Risk and Release of Liability attached hereto as Exhibit A. hereto as Exhibit A.. 9. Plaintiff warranted and promised that she would immediately cease and abort snorkeling if she felt uncomfortable with her ability and/or with weather or water conditions at any time while snorkeling, as acknowledged in paragraph 6 of the executed Assumption of Risk and Release of Liability attached hereto as Exhibit A. hereto as Exhibit A.. 10. Defendant did not breach any duty owed to the Decedent, therefore Plaintiff has failed to state a cause of action. 11. Plaintiff assumed the risks associated with snorkeling and related water activity on the day in question. 5a HAMILTON, MILLER & BIRTHISEL, LLP 150 Southeast Second Avenue, Suite 1200, - Miami, Florida 33131 - Telephone: 305-379-3686 «Facsimile: 305-379-3690 CASE NO. 18-CA-18595-K 12. To the extent weather and/or water conditions caused or contributed to the accident which is the subject of this lawsuit, said conditions were open and obvious. 13. Plaintiffs damages may have been caused, either in whole or in part, by the Decedent’s own acts of negligence. An award of damages, if any, should be reduced accordingly by the principles of comparative fault. 14, Plaintiffs damages may have been caused, either in whole or in part, by the negligence of non-parties, including but not limited to (a) John Lewis; (b) and/or currently unidentified snorkelers that were snorkeling with the Decedent at the time of the accident described herein. An award of damages, if any, should be reduced by the percentage of fault attributable to each, according to the principles of comparative negligence 15. Plaintiffs claims against Defendant are barred because the claimed damages are the result solely of independent and superseding causes for which Defendant is not responsible. 16. This cause of action is governed by Florida Statute § 627.7372 and/or Florida Statute § 768.76 in that the Plaintiff has been reimbursed by one or more of the collateral sources enumerated in these Statutes and therefore Defendant is entitled to a post-verdict set-off for all such amounts. 17. Lauren Lewis and Sarah Lewis are adult children of the Decedent, therefore pursuant to Florida Statute § 768.21 damages for lost parental -6- HAMILTON, MILLER & BIRTHISEL, LLP 150 Southeast Second Avenue, Suite 1200, - Miami, Florida 33131 - Telephone: 305-379-3686 - Facsimile: 305-379-3690 CASE NO. 18-CA-18595-K companionship, instruction and guidance and for mental pain and suffering are not recoverable. WHEREFORE, Defendant, YANKEE FREEDOM respectfully requests that this Court enter judgment in favor of YANKEE FREEDOM, along with prevailing party taxable costs and any other relief deemed necessary. Respectfully submitted, Ist_ Krista Fowler Alouta Krista Fowler Acuiia Fla. Bar No. 650791 Elisha M. Sullivan, Esq. Fla. Bar No. 57559 HAMILTON, MILLER & BIRTHISEL, LLP Attorneys for Defendant 150 Southeast Second Avenue, Suite 1200 Miami, Florida 33131-2332 Telephone: 305-379-3686 Facsimile: 305-379-3690 -7- HAMILTON, MILLER & BIRTHISEL, LLP 150 Southeast Second Avenue, Suite 1200, «Miami, Florida 33131 - Telephone: 305-379-3686 + Facsimile: 305-379-3690 CASE NO. 18-CA-18595-K CERTIFICATE OF SERVICE I HEREBY CERTIFY that a copy hereof was served on counsel on the attached Service List via the E-Portal on August 20, 2018. /s/ herista Fowler Alouta Krista Fowler Acufia SERVICE LIST Jason R. Margulies, Esq. Krista Fowler Acuiia Florida Bar No. 57916 Fla. Bar No. 650791 jmargulies@lipcon.com kacuna@hamiltonmillerlaw.com Carol L. Finklehoffe, Esq. Elisha M. Sullivan Florida Bar No. 0015903 Fla. Bar No. 57559 dfinklehoffe@lipcon.com sullivan@hamiltonmillerlaw.com Lipcon, Margulies, Alsina Hamilton, Miller & Birthisel, LLP & Winkleman, P.A. 150 S.E. Second Avenue, Suite 1200 One Biscayne Tower, Suite 1776 Miami, Florida 33131 2 South Biscayne Boulevard Telephone: 305-379-3686 Miami, Florida 33131 Facsimile: 305-379-3690 Telephone: (305) 373-3016 Attorneys for Defendant Facsimile: (305) 373-6204 Attorneys for Plaintiff -8- HAMILTON, MILLER & BIRTHISEL, LLP 150 Southeast Second Avenue, Suite 1200, - Miami, Florida 33131 - Telephone: 305-379-3686 Facsimile: 305-379-3690, EXHIBIT “A” Assumption of Risk and Release of Liability I, for my heirs, assigns, spouse, children, pare: executors and administrators, and ifI am the parent or legal guardian of a Participant under the age of 18, for such Participant and his or her hi , assigns, spouse, children, parents, executors and administrators (herein, “Releasors”), understand that the purpose of signing this document is to release and hold harmless Yankee Freedom IH, LC, the vessel Yankee Freedom II, and their owners, employees/crew, agents, and associated personnel (herein, “Released Parties”), from any and all liability for personal injury, property damage or wrongful death that may occur during the course of any trip to the Dry Tortugas National Park (the “Park”) aboard the Yankee Freedom III (the “Trip") and/or while engaging in any ph: al activities during the Trip, such as snorkeling (collectively, the Activities”), ! 1 UNDERSTAND THAT EE ARI INHERENT RISKS INVOLVED WITH THE PHYSICAL ACTIVITIL SUCH AS SNORKELING IN WIIICH 1] MAY GAG DURING ANY TRIP TO TH PARK including but not limited to, equipment failure, perils of the sea, harm caused by marine creatures (including bites), acts of fellow participants, entering and exiting the water, and other activities on docks, beache: and the grounds of the Park. 1H EBY ASSUME ALL SUCIT RISKS ASSOCIATED WITH PARTICIPATION IN THESE ACTIVITIES. T UND! TAND THAT T HAVE A DU Y TOT ERCIS REASONABLE CARE FOR MY OWN SAFETY AND | AGREE DO SO, 1 ACKNOW THAT TH RE ARE NO LIFEGUARDS PRESENT AND THAT SNORKELING IS AN “AT MY OWN RISK” ACTIVI 1am physically fit to snorkel and I will not hold the Released Parties responsible if 1 am injured ini any manner while snorkeling. 1 fully understand that the YANK REEDOM I and the Park have limited medic: ities and that, in the event of illness or injury, treatment may be delayed until | can be transported to a proper medical facility by medevac or other means of transport. I agree in advance to these conditions. The Released Parties have made no representation to me, implied or otherwise, that they or their crew can or will perform safe rescues or render first aid, In the event | show signs of distress or call for aid, | would like assi stance and will not hold the Released Parties, their crew, or passengers responsible for their actions in attempting the rescue or first aid. 6. I have been and will he present and attentive to the safety briefings given by the boat captain, crew and attendants. 1 understand that | have an affirmative duty to plan and carry out my own snorkeling activity and to be responsible for my own safely. 1 alone am responsible for determining whether my swimming skills, training and/or general health are suitable for snorkeling and/or for the weather and/or water conditions, | will immediately cease and abort my snorkeling if a. I feel uncomtortable with my abilities and/or, b Jam or become uncomfortable with weather or water conditions at any time while snorkeling 1, for each of the Releasors, hereby covenant not to sue the Released Parties, and release and discharge each of them, from and against any and all claims, demands, obli; jons, suits, actions and causes of action of whatever kind, whether arising at law or in equity, (hat any Releasor may have had, may now have or may hereafter have, against any such Released Partics arising out of or in any way related to the Trip or the Participant’s participation in the Activities, including personal injury, property damage or wrongful death that the Participant may suffer before, during or after the Trip. 1 understand that this release includes any claims based on negligence or any other action or omission by any Released Parties, or any condition of any premises al which any Activities take place. I further agree that if, despite this agreement, I, or anyone on my behalf or on behalf of the Participant, makes a claim against any of (he Released Parties, will indemnify, save, and hold harmless each of the Released Partics from any loss, liability, damage. or cost which any may incur as the result of such claim. This is a legally binding contract Should any part of tt contract be held invalid, the balance shall continue in full force and effe I have carefully read thi: contract in its entirety, fully understand its contents, and agree to the terms and conditions of this contract on behalf of myself and cach of the Releasor document constitutes the final and entire agreement between Released Parties and the undersi ned regarding th ject matter hereof. There are NO WARRANTIES expressed or implied, which extend beyond the des iplion of the Activit 9, Any dispute ari sing out of or related to the terms of this contract, the Trip and/or any Activities shall be exclusively governed by the laws of the State of Florida, USA and the exclusive venue for same shall be the U.S. District Court for the Southern District of Florida, Key West Division, T have read this agreement and am aware that it is a release of liability and an enforceable contract in favor of the Released Parties. | hereby attest that Lam at least 18 years of age and sign of my own free will and agree to be bound by it (B5s_) 33 Signature of Participant Telephone Leg deme 4 & sed Print Name Address: City State Zip This is to certify that I, as parent/guardian with legal responsibility for this Participant, do consent and agree to his/her release as provided above, [ represent and warranty that [ am the parent or legal guardian of the Participant, and indemnity and hold harmless the Released Parties for damages resulting from a breach of this representation. pes TA Signature of Parent or Guardian Print Name of Parent or Guardian Date TA ACC ARICIAIC