Simmons

Chad Ware appeals from the judgment entered against him in this maritime wrongful death action. Ware owned a vessel that was being used for a live onboard marine education program for students. The decedent, an adult chaperone on the trip, drowned while “free-diving” during a daytime excursion off of the ship conducted by the operators of the educational program. The jury returned a special verdict finding the company that operated the marine education program was a negligent cause of decedent’s death (apportioning 20 percent of the fault to it), and finding the decedent was also negligent (apportioning 80 percent of the fault to him), but finding no negligence on the part of Ware. The trial court subsequently granted *1038 plaintiff’s motion for judgment notwithstanding the verdict (JNOV), and entered judgment against Ware finding the uncontroverted evidence demonstrated that as a matter of law Ware and the operator of the trip were in a joint venture mating Ware vicariously liable for the operator’s negligence.

We conclude the trial court erred. The existence of a joint venture was not alleged in plaintiff’s complaint, it was not an issue litigated at trial, the jury…