Cruise Line Law Reporter
February 2013 Issue
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CARNIVAL CORPORATION, v. Cheryl JIMENEZ, Appellee.
District Court of Appeal of Florida,
No. 2D11-5482. | Feb. 27, 2013.
Passenger, who slipped and fell while on cruise ship, brought personal-injury action against cruise line and, following a jury trial, filed motion for new trial. The Circuit Court, Hillsborough County, William P. Levens, J., granted motion. Cruise line appealed.
Cheryl Jimenez sued Carnival Corporation for damages that she sustained in a shipboard slip and fall incident. Ms. Jimenez was on a Carnival cruise ship to attend the wedding of her nephew. As Ms. Jimenez was walking past a buffet, she slipped and fell in an oily substance. Immediately after her fall, Carnival personnel treated Ms. Jimenez in the ship's infirmary for complaints of pain in her right knee and right hip. When Ms. Jimenez fell, the ship was still docked at the Port of Tampa; Ms. Jimenez was subsequently transported from the ship to Tampa General Hospital. At Tampa General, Ms. Jimenez was treated for contusions to her right hip and right knee and for a back strain. Ultimately, Dr. Smith performed two surgical procedures on Ms. Jimenez's left knee. The second procedure, performed in October 2010, followed a separate gardening mishap. In the gardening incident, Ms. Jimenez experienced a sharp pain in her left knee while pushing a shepherd's hook into the ground with her left foot. Dr. Smith appeared at the trial as a witness for Ms. Jimenez. He testified that Ms. Jimenez's shipboard slip and fall caused the problems with her left knee and necessitated the two surgical procedures. In response, Carnival contended that Ms. Jimenez's problems with her right knee and hip had resolved within a few weeks after her fall. Carnival related Ms. Jimenez's issues with her left knee to normal, degenerative changes in the joint and to the separate gardening incident. During the relevant time, Ms. Jimenez did not have any medical insurance. Thus many of her medical providers-including Dr. Smith and the surgical center in which he had an interest-treated her under letters of protection. Trial counsel for Carnival (defense counsel) made the existence of the letter of protection in favor of Dr. Smith a significant issue at the trial. Defense counsel mentioned the letter of protection during his opening statement and cross-examined both Ms. Jimenez and Dr. Smith about it. In addition, defense counsel elicited testimony from Dr. Smith that the doctor and Mr. Hendrik Uiterwyk, a partner in the law firm representing Ms. Jimenez, were neighbors and that they saw each other socially. Both parties raised the issue of the letter of protection during their closing arguments. In the initial portion of his closing argument, trial counsel for Ms. Jimenez (plaintiff's counsel), addressed the letter of protection at length. During defense counsel's closing argument, he responded by emphasizing that Dr. Smith had a financial interest in the outcome of the case by virtue of the letter of protection. During a lengthy discussion of the letter of protection, defense counsel also offered his opinion that Dr. Smith had testified in accordance with a script. Although there were numerous references to the letter of protection during the trial, plaintiff's counsel made only two objections because of these references. The trial court sustained both of these objections. After the trial court sustained the objections, plaintiff's counsel did not either request a curative instruction or move for a mistrial. Notably, plaintiff's counsel made no objection at all to defense counsel's "scripted" comment. Plaintiff's counsel did not seek a mistrial on this occasion either. The jury returned a verdict awarding Ms. Jimenez $3750 for past pain and suffering and $3750 for past medical expenses. Ms. Jimenez did not make any claim for lost wages or loss of earning capacity, and the jury did not award her anything for future pain and suffering or for future medical expenses. After the trial, the trial court entered a final judgment in favor of Ms. Jimenez and against Carnival in accordance with the jury's verdict. Ms. Jimenez timely filed a motion for a new trial. After a hearing, the trial court entered a lengthy order setting aside the final judgment and granting Ms. Jimenez a new trial. The trial court based its order for new trial on defense counsel's questioning of witnesses and comments during closing argument relative to the letter of protection. On appeal, the district court held that because any error stemming from defense counsel's misconduct was both unpreserved and insufficient to meet the standard for fundamental error established in Murphy v. International Robotic Systems, Inc., 766 So.2d 1010, 1027-31 (Fla.2000), the order granting the new trial was reversed and remanded. More specifically, the court found that Defense counsel could properly argue that Dr. Smith's credibility was subject to question because of his financial interest in the case, but defense counsel was not free to opine-in the absence of any evidence-that someone in Ms. Jimenez's law firm had "scripted" the doctor's testimony. Nonetheless, the court found that the improper comment were neither harmful nor incurable.
The district court reversed the circuit court's order for new trial and remand this case for reinstatement of the final judgment.
Frank PSURNY, Jr., Plaintiff, v. ROYAL CARIBBEAN CRRUISES, LTD., Defendant.
United States District Court, S.D. Florida.
No. 12-CV-24324-UU. | Feb. 25, 2013.
Defendant Royal Caribbean Cruises, Ltd. ("Royal Caribbean" or "Defendant") brings the instant motion for the case to be dismissed or, alternatively, for summary judgment on the basis that Plaintiff filed the present case after the contractual limitations period had expired.
Frank Psurny and his wife were passengers on Defendant's cruise ship, the Monarch of the Seas on October 13, 2011, when Mr. Psurny allegedly slipped and fell on a wet floor, injuring his hip, as he was attempting to use a handicapped bathroom onboard the Monarch. The Psurnys' tickets included several provisions that controlled their right to bring a personal injury action against Royal Caribbean. Relevant to the instant motion, the ticket contained a forum selection clause, which provided that, except under certain circumstances not present here, all disputes arising from the passenger's cruise "shall be litigated, if at all, in and before the United States District Court of Florida." The ticket also required that a passenger seeking to bring a personal injury suit must submit a written notice of his or her claim to Royal Caribbean "at its principal office" within six months of the injury and commence suit against Royal Caribbean within one year of the injury. The first paragraph of the contract, which was written in bold, capital letters, advised the passenger to pay "particular attention" to these two provisions since they "limit [Royal Caribbean's] liability and your right to sue." After the Psurnys returned to their home in Florida, Plaintiff was allegedly diagnosed with a broken hip. D.E. 8-1. Mrs. Psurny further testifies that around November 2011, she called Royal Caribbean because, due to her husband's injury, she wanted to reschedule three upcoming cruises that she and her husband had scheduled with Defendant. Id. Mrs. Psurny attests that she spoke on the telephone with at least two Royal Caribbean officials and informed them that her husband had been diagnosed with a hip fracture since disembarking from the Monarch. Id. Mrs. Psurny further recalls that either she or her husband's doctor sent a record of Plaintiff's current diagnosis to Royal Caribbean. Id. Eventually, in January 2012, Mrs. Psurny spoke with Ernest Garcia ("Garcia") from Royal Caribbean's Guest Relations Department. Id. Mrs. Psurny claims that she expressed to Garcia her concerns about the presence of wet floors onboard Defendant's cruise liners, in light of her husband's accident on the Monarch. Id. After speaking with Mrs. Psurny, Garcia sent her a letter, dated January 12, 2012, in which were enclosed certificates that the Psurnys' could use for future cruises in exchange for the cruises that they had earlier scheduled. Id. Garcia also thanked Mrs. Psurny for affording him "the opportunity to discuss and respond to the concerns that [she] brought to [Royal Caribbean]'s attention." Id. After the correspondence from Garcia, the record does not show that there was any communication between the Psurnys and Royal Caribbean for several months. The Psurnys concede that they did not submit a written claim to Royal Caribbean describing the particulars of his alleged injury, either before or after the six-month deadline for submitting the notice of claim. Notwithstanding the Psurnys' failure to provide such notice, on October 10, 2012, three days prior to the expiration of the one-year limitations period, Mr. Psurny filed suit against Royal Caribbean in state court (the "state action"). On November 14, 2012, Royal Caribbean filed a motion to dismiss the state action based on the forum selection clause. On December 6, 2012, nearly two months after the contractual limitations period had expired, Mr. Psurny filed the present action in federal court. Plaintiff concedes that he did not commence the federal action within the contractual limitations period, but contends that equitable tolling applies to the circumstances of this case and therefore Royal Caribbean's motion should be denied. In its reply, Royal Caribbean argues that equitable tolling is not applicable to the facts of the present case, and thus the instant motion should be granted. Because it is undisputed that Plaintiff did not commence the present action within the contractual limitations period, the sole question before the Court on summary judgment is whether Royal Caribbean has shown that equitable tolling does not apply to the undisputed material facts of this case.
Defendant's Motion is GRANTED.
David HEYDEN, Plaintiff, v. CELEBRITY CRUISES, INC., Defendant.
United States District Court, S.D. Florida
No. 12-21923-CIV. | Feb. 28, 2013.
Cruise Line moved to dismiss various counts of cruise ship passengers injury complaint.
This is an action by a cruise ship passenger for personal injuries sustained while riding a "Segway," a self-balancing transportation device that resembles a motorized, two-wheeled scooter. The plaintiff, David Heyden, suffered the injuries while participating in a "shore excursion" tour in Philipsburg, St. Maarten during a cruise vacation provided by the defendant cruise line, Celebrity Cruises, Inc. The tour was operated by an independent contractor, Caribbean Segway Tours. Heyden was injured while attempting to operate the Segway on a pedestrian boardwalk. One of the wheels of the plaintiff's vehicle struck a nailed-down bench or stool. Upon striking the obstacle, Heyden fell over onto his right side, and the Segway fell atop him, causing his injuries. In his Amended Complaint, Heyden asserts the following causes of action: Count I-Negligent Selection of the Shore Excursion Operator; Count II-Negligent Retention of the Shore Excursion Operator; Count III-Negligent Failure to Warn of a Dangerous Condition; and Count IV-Negligent Misrepresentation. The defendant has moved to dismiss the Amended Complaint. For the reasons set out below, the Court grants the Motion to Dismiss, in part.
As to Counts I and II-Negligent Selection and Retention of the Shore Excursion Operator, court explained that in a negligent selection claim, liability is premised upon the inadequate pre-selection investigation into the contractor's background, whereas in a negligent retention claim, liability is founded upon a showing that, during the course of the contractor's employment, the principal was aware or should have been aware of problems evidencing the unfitness of the contractor, and failed to investigate or terminate the contractor. Here, the plaintiff is pleading both negligent selection and negligent retention. Celebrity argues the plaintiff fails to plead sufficient facts to support prima facie case for either cause of action. Court held that said claims adequately pled the proper elements under Florida Law. As to Count III, the Failure to warn claim, district court dismissed said claim based on finding that it was not a dangerous condition but an apparent and obvious feature of any pedestrian thoroughfare. Because the duty to warn extends only to those dangers which are not apparent and obvious to a passenger, Heyden failed to state a claim for failure to warn. Lastly, as to Count IV, the Negligent Misrepresentation claim, court explain that to plead negligent misrepresentation under Florida law, a plaintiff must allege: (1) the defendant made a statement of a material fact that the defendant believed was true but was actually false; (2) the defendant was negligent because he should have known the statement was false; (3) the defendant intended to induce the plaintiff to rely on the false statement; and (4) an injury resulted to the plaintiff acting in justifiable reliance on the false statement. And further that Federal Rule of Civil Procedure 9(b) states that "[i]n alleging fraud or mistake, a party must state with particularity the circumstances constituting fraud or mistake." Specifically, a Plaintiff must allege: (1) precisely what statements were made in what documents or oral representations or what omissions were made, and (2) the time and place of each such statement and the person responsible for making (or, in the case of omissions, not making) same, and (3) the content of such statements and the manner in which they misled the plaintiff, and (4) what the defendants obtained as a consequence of the fraud. Heyden's Complaint quotes extensively from Celebrity's promotional literature, namely, a shore excursion brochure and online vacation booklet, as well as shore excursion "talks" that, Heyden alleges, he relied upon in choosing this particular shore excursion. Heyden makes reference to selected phrases such as "finest" and "great care" and "you're in good hands" as if those isolated words encompass Celebrity's complete statement. As the defendant contends, these non-specific allegations do not satisfy the particularity requirements of Rule 9(b) as there are no facts supporting the materiality of the alleged misrepresentations, or, in the case of the shore excursion "talks," the time and place of the statements and person(s) responsible for the statements, the manner in which Heyden was misled and what the Celebrity obtained as a consequence of the alleged negligent misrepresentation. Heyden failed to specifically allege when and under what circumstances each alleged misstatement was made. Accordingly, the plaintiff's allegations cannot survive the instant motion to dismiss.
Defendant's Motion to Dismiss is DENIED as to Counts I and II and GRANTED with respect to Counts III and IV.
In re the complaint of ROYAL CARIBBEAN CRUISES LTD.
United States District Court, S.D. Florida.
No. 1-23070-CIV. | Feb. 4, 2013.
Defendant cruise line moved for summary judgment based on a waiver contained in its passenger ticket contract and for a limitation of liability under 46 USC 30505.
This case arises out of a collision between two jet skis during a jet-ski tour provided by Royal Caribbean Cruises Ltd. (Royal). Royal instituted this action for exoneration from or limitation of liability under 46 U.S.C. § 30505. In response, Claimant Linda Arnold filed a claim and a complaint for damages, alleging that Royal was liable for the injuries she suffered during the jet-ski collision. Royal moves for summary judgment, arguing in the alternative that Arnold waived her right to sue for damages by signing a liability waiver, that Royal should be exonerated from liability because there is no evidence of Royal's negligence or contributory fault, and that Royal's liability should be limited because Royal had no privity or knowledge of any negligence or unseaworthiness that caused the accident. Arnold and her boyfriend, Glynn Daniels, were passengers on a three-day cruise aboard the Monarch of the Seas beginning February 25, 2011. The cruise left from and returned to Port Canaveral, Florida, visiting Nassau, Bahamas and Coco Cay, Bahamas on its journey. Coco Cay is an island run and operated by Royal as its private, exclusive destination. After arriving at Coco Cay, Arnold and Daniels decided to participate in a jet-ski tour offered by Royal. They signed up for the tour on the island and completed a liability waiver (Waiver). Before going on the tour, they were required to go through an orientation, which consists of an instructional video, a verbal orientation, and a demonstration on a mock-up jet ski. They were instructed on various safety rules, such as being told not to pass other jet skis and to maintain a distance of 100 yards from the jet ski in front of them. The orientation was conducted by the tour guides, who are employees of Royal. Royal contends that Arnold waived her right to sue for damages by signing a waiver (Waiver) in which she agreed to release Royal and its employees from actions "arising from any accident [or] injury ... in any way connected with [her] rental, participation, use, or operation of [the jet ski]." (DE 44-3 at 1 (capitalization removed).) But the Court held that the plain language of § 30509 "expressly forbids Royal Caribbean from limiting or disclaiming liability stemming from a passenger's allegations of direct negligence against it (regardless of whether the incident occurred offshore)." Since the Waiver falls within the statute's broad language, the provisions purporting to release Royal from liability are void under § 30509(a)(2). Because the Waiver is unenforceable, the Court must now reach the merits of Royal's contention that it is entitled to exoneration from or limitation of liability under 46 U.S.C. § 30505. To this point, the Court held that Royal is not exonerated from liability with respect to Arnold's claim that Royal failed to provide a competent operator of the jet ski that hit her, and that Royal's liability is not limited with respect to that claim.
The Court denied the motion in part and granted the motion in part.
Gary A. REMING and Patricia A. Reming, Plaintiffs,
v. HOLLAND AMERICA LINE INC., et al., Defendants.
United States District Court, W.D. Washington
No. C11-1609RSL. | Feb. 14, 2013.
This matter comes before the Court on a motion for summary judgment filed by Defendants Holland America Line Inc., Holland America Line N.V., HAL Antillen N.V., and HAL Nederland N.V. (collectively "HAL"). HAL moved for summary judgment regarding Plaintiff cruise ship passengers negligence claims based on vicarious liability, duty to warn, misrepresentation, joint venture, deceit, loss of consortium, negligent selection, training, supervision, and retention.
This case arises out of an accident that occurred while Plaintiff Gary Reming was participating in city tour excursion during a cruise. On November 30, 2010, Plaintiffs departed the ship and boarded a bus for the Mazatlan city tour. During the tour, the bus made several stops at local tourist attractions. When the tour bus stopped at Cliff Diver's Plaza, Mr. Reming got off the bus with the other passengers to take a few pictures. He tried to avoid the crowd on the sidewalk and stepped off the curb, onto a paved parking lot. As he began to walk around the crowd, an unknown person instructed him to step back. Mr. Reming took a few steps backward and suddenly, the pavement collapsed beneath him and he fell into a sinkhole. In September 2011, Plaintiffs filed a complaint against HAL, alleging numerous claims of negligence and deceit. The shore excursion entity has not been served. HAL moved for summary judgment as to all claims. The cruise ticket contract expressly states that shore excursions are operated by independent contractors and HAL assumes no liability. To this language, the court found that HAL could not disclaim its own liability, but could disclaim its liability for injuries resulting from the negligence of the shore excursion. As to the Failure to warn claim, the court entered judgment in favor of HAL based on its finding that HAL did not have actual or constructive notice of any risks at Cliff Diver's Plaza and therefore, there was no duty to warn. As to the Joint Venture Claim, summary judgment was entered based largely on the contractual language between HAL and the shore excursion, more specifically, Plaintiffs failed to provide any evidence to refute the language in the agreement or the evidence that HAL lacks control over the shore excursions management or operations. As to the negligent Selection, Training, Supervision, and Retention claims, HAL failed to provide any evidence or argument regarding HAL's inquiry into Tropical Tour's competence and fitness as an excursion provider. Therefore, Plaintiffs' claim regarding HAL's selection and retention of Tropical Tours remain for trial. To the deceit and/or misrepresentation claim, Plaintiffs must prove by clear, cogent, and convincing evidence that HAL provided information that it knew was false, Plaintiffs relied on the false information, and Plaintiffs suffered damages as a result. Plaintiffs' misrepresentation claims are based solely on a statement on HAL's website, that "Each of our tours provides the highest level of quality, safety, convenience and value" misrepresented 1) that the excursion was operated by HAL and 2) that the excursion was safe. Court held that Plaintiffs failed to establish that they relied on an alleged false statement. Ms. Reming testified that she did not know who operated the city tour and she "didn't think anything about it." Similarly, Mr. Reming testified that he assumed the tour was not operated by HAL. Because Plaintiffs failed to raise a genuine issue of material fact regarding this misrepresentation claim, HAL is entitled to summary judgment. Finally, HAL sought dismissal of Mr. Reming's loss of consortium claim. Court found that General maritime law does not recognize a claim for loss of consortium when the injury giving rise to the claim occurred outside of state territorial waters. Chan v. Soc'y Expeditions, Inc., 39 F.3d 1398, 1407-08 (9th Cir.1994). Plaintiffs do not dispute that Mr. Reming's injury occurred outside of state territorial waters. The Court, therefore, GRANTS HAL's motion and dismisses Ms. Reming's loss of consortium claim.
The Court GRANTS HAL's motion for summary judgment. Plaintiffs' negligence claims based on vicarious liability, duty to warn, misrepresentation, and joint venture are dismissed with prejudice. Plaintiffs' claims of deceit and loss of consortium are also dismissed with prejudice. Plaintiffs' negligent selection, training, supervision, and retention claim remains for trial.
Joe SNYDER v. L & M BOTRUC RENTAL, INC.
United States District Court, E.D. Louisiana.
Civil Action No. 12-0097. | Feb. 15, 2013.
Before the Court is a Motion for Summary Judgment filed by Defendant L & M Bo-Truc Rental, Inc. ("L & M"), wherein it seeks the dismissal of Plaintiff Joe Snyder's claims for compensatory damages, punitive damages, and attorney's fees for failure to pay maintenance and cure and for punitive damages under general maritime law for failure to pay maintenance and cure, gross negligence, and unseaworthiness of the vessel.
Joe Snyder was a Jones Act seaman employed by the defendant, L & M, aboard the M/V BOTRUC 19 on November 26, 2011, when Snyder was involved in an accident resulting in serious injuries. Snyder alleges that he was rendered unfit for duty and presently remains unfit and incapable of returning to work as a seaman as a result of the accident. In addition, Snyder "alleges a claim for punitive damages against the defendant herein based upon General Maritime Law." Snyder contends that this 'claim related not only to any arbitrary and/or unreasonable failure of defendant to pay maintenance and cure but also for any gross negligence of the defendant, or unseaworthiness of the vessel as may be allowed under General Maritime Law."L & M claims that it paid Snyder his full wages and L & M also contends it has timely paid maintenance and cure to Snyder. Further, L & M contends that despite its repeated requests to receive additional medical records regarding Snyder's medical condition, it did not receive any documentation of Snyder's status until it received a letter from Snyder's attorney, enclosing additional medical records. Based on those records, L & M paid Snyder additional maintenance and cure. L & M argues that Snyder is not entitled to punitive damages, compensatory damages, and attorney's fees on his maintenance and cure claim, because acted in good faith and has paid for all known maintenance and cure incurred by Snyder. Therefore, L & M argues that it is entitled to summary judgment on Snyder's claims for compensatory damages, punitive damages, and attorney's fees because there are no genuine issues of material fact in dispute regarding L & M's handling and investigation of the maintenance cure claim. To this point, the district court found that Snyder has not carried his burden of proof to defeat summary judgment. He has pointed to no evidence in the record establishing a genuine issue of material fact for trial that L & M failed to fulfill its obligation to pay maintenance and cure. Therefore, summary judgment is appropriate to dismiss Snyder's claims for compensatory damages, punitive damages, and attorney's fees for failure to pay maintenance and cure. Next, L & M also argues that it is entitled to summary judgment on Snyder's claims for punitive damages under general maritime law for failure to pay maintenance and cure, gross negligence, and the unseaworthiness of the vessel. L & M explains that Snyder, as a Jones Act seaman, cannot recover punitive damages, but only pecuniary damages. Relying on Miles v. Apex Marine Corp.16 and Anderson v. Texaco, Inc., L & M argues that Jones Act seaman "cannot recover punitive damages by couching [their] claims in the judge-made maritime law of negligence and unseaworthiness." Therefore, L & M contends that it is also entitled to summary judgment in its favor on Snyder's "unseaworthiness and general maritime negligence punitive damage claims." Snyder refutes L & M's contention that these damages are not permitted as a matter of law, claiming that Atlantic Sounding Co. v. Townsend24 superseded the precedent upon which L & M relies, specifically Miles and Anderson. Snyder explains that "[i]n In re Maryland Marine, Judge Berrigan relied on the holding of Townsend to allow the question of non-pecuniary damages to be presented to the jury in a Jones Act case." Ultimately, Snyder asserts that there is movement in the law regarding when a Jones Act seaman may maintain a punitive damages claim for "intentional or willful misconduct." Therefore, Snyder maintains that he should be permitted to present his claim of punitive damages under general maritime law for gross negligence or unseaworthiness to the jury. District Court held that Townsend did not hold that punitive damages are available to seaman for negligence and unseaworthiness. Instead, Townsend held that punitive damages may be available for refusal to pay maintenance and cure, because the Jones Act did not intend to limit the availability of those damages for maintenance and cure. Moreover, Snyder is incorrect in his assertion that Miles was superseded by Townsend. Indeed, the Supreme Court reiterated in Townsend that "[t]he reasoning of Miles remains sound." It is undisputed that Snyder is a Jones Act seaman. Snyder would be precluded from recovering punitive damages on his negligence and unseaworthiness claims under the Jones Act because of the statute's pecuniary limitation. Therefore, the Court will dismiss Snyder's punitive damage claims for gross negligence and unseaworthiness under general maritime law.
L & M's Motion for Summary Judgment is GRANTED.