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Cruise Line Law Reporter

Welcome to the Cruise Line Law Reporter. The Cruise Line Law Reporter is a monthly summary of important cases with respect to admiralty and maritime claims against cruise lines. Each day, a seaman or passenger on a cruise ship is injured or killed due to someone else’s negligence. Many times, responsibility for an accident falls upon the cruise line itself for failing to provide a safe environment for those onboard, including the failure of the cruise company to check equipment, failure to properly train crew members, failure to maintain vessel sanitation, as well as failure to provide adequate shipboard security. Yet, despite the fact that there are national and international maritime laws protecting both cruise guests and crew members, these laws are often violated by the cruise lines, leading to severe injuries, illnesses, criminal activity, and even death. Due to the nature of the cruise industry, there are innumerable cases that go unreported and unrecognized. The Cruise Line Law Reporter strives to bring accident and liability cases to light, providing insight into cruise line negligence, maritime laws and regulations frequently violated by the cruise lines, and a general overview and outcome of current and prior notable admiralty and maritime cases.

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March 2014 Issue

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IN CRUISE SHIP PASSENGER NEGLIGENCE CLAIM ARISING OUT OF INJURY DURING FLOWRIDER LESSON, COURT ENTERED SUMMARY JUDGMENT ON MOST OF PLAINTIFF’S CLAIMS, OTHER THAN NEGLIGENT INSTRUCTION.

Mary MAGAZINE, Plaintiff,
v.
ROYAL CARIBBEAN CRUISES, LTD. d/b/a Royal Caribbean International, Defendant.

2014 WL 1274130
Only the Westlaw citation is currently available.
United States District Court, S.D. Florida

No. 12-23431-CIV. | Signed March 27, 2014.

PROCEDURAL POSTURE:

THIS MATTER is before the Court on Defendant's Motion for Final Summary Judgment This action arises from a broken leg suffered during a private lesson on the FlowRider, a surfing simulator aboard one of Defendant Royal Caribbean Cruises, Ltd. ("RCL")'s cruise ships. The essence of Plaintiff Mary Magazine's single-count complaint is that RCL failed to follow its own procedures and thus negligently increased the risk of Magazine's injury, principally by failing to warn her of the risk of injury on the FlowRider and by negligently instructing her in its use.

OVERVIEW:

On September 18, 2011, Plaintiff Mary Magazine, a 59-year-old attorney and Miami, Florida resident, departed on a Cruise aboard the Allure of the Seas. The FlowRider is a surfing simulator, installed on the Allure of the Seas and other RCL vessels, that uses powerful jets of water to create a continuous, artificial wave on which participants try to surf or ride using either a bodyboard or a surfboard (or "flowboard"). Almost 2 weeks earlier, on September 6, 2011, Magazine had electronically registered to participate in various activities on the cruise, including ice skating, rock climbing, zip lining, and the FlowRider. As part of the registration process, Magazine checked boxes for each activity and electronically signed the FlowRider Waiver. [The parties agree that the FlowRider Waiver is unenforceable under Johnson v. Royal Caribbean Cruises, Ltd., 449 F. App'x 846 (11th Cir.2011).] She knew at the time that checking boxes meant "signing something," which may have included warnings, but does not recall seeing any of the content of the FlowRider Waiver. She did not take additional steps at the time to research any of the activities. Once aboard the ship, she signed up for a FlowRider lesson. Because she was taking a lesson, and because she had previously participated in numerous sports without injury, she did not expect to be injured on the FlowRider. RCL contends that it warns its passengers of the risks associated with the use of the FlowRider in several ways, all of which Magazine testifies she did not see before her accident. These include the FlowRider Waiver, a "Caution" sign in a viewing area near the FlowRider entrance, a 5-minute safety video that plays on certain television channels in the guests' staterooms, and a 8.5" x 11" sheet on a bulletin board.  During Magazine's ride, she was holding the rope while the second instructor guided her to the front and middle of the FlowRider as described above. The video of her accident shows that the second instructor, who had initially been holding the rope, handed the rope to the first instructor. Soon thereafter, Magazine lost her balance and fell backwards into the water. Her legs separated and she lost control of the flowboard. Her fall resulted in a spiral fracture in her femur and ultimately in permanent nerve damage, numbness, tingling, and a pronounced limp.  

Magazine alleges that RCL breached its duty of care in five ways: (1) by causing an "unreasonably dangerous condition" on the FlowRider; (2) by negligently maintaining and (3) negligently designing the FlowRider; (4) by failing to warn her of the risk of injury; and (5) by negligently supervising and instructing3 her in its use. As to the claims of negligent design and negligent maintenance, Magazine's counsel conceded at the March 20, 2014 hearing that RCL did not design the FlowRider and that there is no evidence of negligent maintenance. (See also SJ Mot. at 9 ¶¶ 34-37; Response at 10 ¶¶ 34-37.) To be liable for negligent design, a defendant must have played some role in the design. See Rodgers v. Costa Crociere, S.P.A., 410 F. App'x 210, 212 (2010) (affirming summary judgment for defendant where there was no evidence that defendant had actually designed the relevant area). Therefore, summary judgment is proper as to the claims of negligent design and negligent maintenance. Magazine's counsel also argued at the hearing that RCL's "caus[ing] an unreasonably dangerous condition" was an independent theory of negligence. However, there is no evidence in the record supporting the existence of any such "unreasonably dangerous condition" that is distinct from the allegations of RCL's failure to warn, negligent design, negligent maintenance, and negligent instruction. Therefore, summary judgment is proper as to a separate claim that RCL caused an unreasonably dangerous condition under the circumstances.

The Court then turned to the remaining theories of negligence: that RCL failed to warn Magazine of the FlowRider's risks and negligently instructed her in its use. A shipowner's duty of reasonable care includes a duty to warn passengers of dangers of which the shipowner knows or should know but which may not be apparent to a reasonable passenger. Cohen v. Carnival Corp., 945 F.Supp.2d 1351, 1357 (S.D.Fla.2013). The duty to warn does not extend to dangers that are "open and obvious." Id. "The obviousness of a danger and adequacy of a warning are determined by a 'reasonable person' standard, rather than on each particular plaintiff's subjective appreciation of the danger. Individual subjective perceptions of the injured party are irrelevant in the determination of whether a duty to warn existed." John Morrell & Co. v. Royal Caribbean Cruises, Ltd., 534 F.Supp.2d 1345, 1351 (S.D.Fla.2008) (citations omitted).  RCL maintains that it reasonably warned Magazine multiple times of the risks posed by the FlowRider. RCL points to the FlowRider waiver, a "Caution" sign, a 5-minute safety video that plays on certain television channels in the guests' staterooms, and a 8.5" x 11" sheet on a bulletin board.  "Whether adequate efforts were made to communicate a warning to the ultimate user and whether the warning if communicated was adequate are uniformly held questions for the jury." Stapleton v. Kawasaki Heavy Indus., Ltd., 608 F.2d 571, 573 (5th Cir.1979), modified on other grounds, 612 F.2d 905 (5th Cir.1980). At summary judgment, the Court must accept Magazine's testimony that she did not see any of these warnings. Instead, as detailed below, the dispositive issues are (1) proximate causation and (2) the lack of duty to warn of open and obvious dangers. RCL has two arguments about these issues. First, any alleged failure to warn was not the proximate cause of Magazine's injury because she "testified that she would not have heeded warnings anyway." (SJ Mot. at 14.) Second, "the risk of falling and suffering an injury on the FlowRider is surely open and obvious under the facts of this case." (Id. at 15-16.)  Put simply, the court held that while Magazine contends that certain warnings should have been more prominently displayed, she has not identified any risk about which she should have been warned differently such that a warning might have made a difference. The only risk that materialized was the general risk that one could fall and be injured on the FlowRider, which was so open and obvious that Magazine admits that a warning referring only to this general risk would not have mattered. Magazine has not pointed to any other risk about which there was any basis to expect a warning. As such, there is no genuine issue of material fact as to the claim that RCL breached its duty to warn.

RCL also moves for summary judgment on Magazine's negligent instruction claim on the grounds that (1) Magazine "avers that she received thorough instruction" from the instructors; (2) the "instructor's use of a balancing rope to aid the FlowRider passengers was reasonable under the circumstances;" and (3) "there is no record evidence that RCL was on notice that the use of the balance rope was improper." (SJ Mot. at 16-18.) Magazine responds that (1) a reasonable instructor should ensure that participants understand the relevant risks, such as by requiring viewing of the safety video and providing an explicit opportunity for questions; (2) the use of a balancing rope is "not referenced anywhere as an acceptable balancing or teaching method" in the relevant FlowRider manuals (Response at 25); and (3) RCL failed to provide "reasonable instructional progression including the use of a bodyboard prior to stand-up riding, as suggested by Wave Loch/ FlowRider." (Report of Daniel Connaughton, Ed.D. [DE-40-1] at 7.) Additionally, at oral argument, Magazine's counsel pointed to a few seconds of the accident video to support the argument that the hand-off of the balancing rope from one instructor to another contributed to Magazine's loss of balance and subsequent injury.  The Court has already addressed RCL's alleged failure to warn. Reasonable care by an instructor may very well include ensuring that participants understand the relevant risks. However, Magazine's claim on this ground fails due to a lack of proximate causation and because the relevant risk was open and obvious.  As Magazine's expert concedes, there is no evidence in the record that any failure by RCL to provide a bodyboard contributed to the risk of Magazine's injury.  Therefore, this argument fails as well.  However, because the Parties' briefing did not address Magazine's counsel's argument at the March 20, 2014 hearing regarding the transfer of the balancing rope, the Court cannot conclude at this time, as a matter of law, that RCL's instructors necessarily exercised reasonable care in their handling of the balancing rope, and that such breach did not heighten the risk of Magazine's injury. While the Court is not deciding this issue of law at this time, in a paid lesson for a sport or similar recreational activity such as the FlowRider, reasonable care by an instructor may include not exposing a plaintiff to risks beyond those inherent in the recreational activity itself, at least not before the plaintiff is ready to handle those risks.  RCL also argues that Magazine's testimony is speculative and therefore insufficient to defeat summary judgment. However, the direct testimony of an accident victim about her own accident is not "speculation." The two cases that RCL cites are not applicable. The first case, Putman v. Sec'y, Dep't of Veterans Affairs, 510 F. App'x 827 (11th Cir.2013), addresses the procedurally distinct burden-shifting framework of employment discrimination. The second case, Doe v. NCL (Bahamas) Ltd., No. 11-22230, 2012 WL 5512347 (S.D.Fla. Nov.14, 2012), involves a plaintiff's initial speculation that contradicted that same plaintiff's later representations to the court, rather than a plaintiff's testimony on a subject about which she has personal knowledge.

OUTCOME:

Defendant's Motion for Final Summary Judgment was granted in part and denied in part. 

MINOR CRUISE LINE PASSENGER GOT HER ARM STUCK IN ELEVATOR DOOR CAUSING INJURY. CRUISE LINE SEEKS TO DISMISS PASSENGER’S COMPLAINT. THE COURT FOUND THAT EMOTIONAL DISTRESS CLAIM WAS NOT AVAILABLE FOR THE FATHER BASED ON THE ZONE OF DANGER ANALYSIS. PASSENGER’S NEGLIGENCE CLAIM AGAINST CRUISE LINE IS STILL TO BE DECIDED.

Prachi GANDHI and Abishek Gandhi, as Parent and Natural Guardians of Araina Gandhi, a minor, and Prachi Gandhi and Abhishek Gandhi, Individually, Plaintiffs,
v.
CARNIVAL CORPORATION, d/b/a Carnival Cruise Lines, Inc., Defendant.

2014 WL 1028940

Only the Westlaw citation is currently available.

United States District Court, S.D. Florida,

Miami Division.

No. 13-24509-CIV. | Signed March 14, 2014.

PROCEDURAL POSTURE:

In suit arising out of injuries to a child while onboard a Carnival cruise ship, the Plaintiffs pled the following Counts against Defendant Carnival Corporation: (I) a negligence claim for damages of the minor child Araina; (II) a claim for damages pursuant to the negligent infliction of emotional distress of Abhishek Gandhi; (III) a damages claim for medical expenses incurred by Prachi Gandhi and Abhishek Gandhi; and (IV) a damages claim relating to the loss of filial consortium of Prachi Gandhi and Abhishek Gandhi. Defendant Carnival Corporations responded by filing its Motion to Strike Allegations of Plaintiffs' Complaint and to Dismiss Counts II, III, and IV of Plaintiffs' Complaint.

OVERVIEW:

Plaintiffs Prachi and Abhishek Gandhi allege that their daughter, Araina Gandhi, was injured when her arm caught in an elevator door on a vessel operated by Defendant Carnival Corporation during a voyage at sea. Araina was standing in an elevator when her left arm was drawn into the space into which one side of the elevator doors was sliding. The elevator doors allegedly attempted to close and open with her arm entrapped until another passenger used a chair leg to assist in releasing the arm. Plaintiffs Prachi Gandhi and Abhishek Gandhi plead that Araina sustained a deep laceration to her left elbow, a severing of one of her tendons, and a fracture. In addition, the child's father, Plaintiff Abhishek Gandhi, witnessed Ariaina's ordeal in entirety and alleges that he has suffered emotional distress as a result. Pursuant to a 'zone of danger' analysis, courts in the Eleventh Circuit limit recovery for emotional injury to those plaintiffs who "sustain a physical impact as a result of a defendant's negligent conduct, or who are placed in immediate risk of physical harm by that conduct." Smith, 584 F .Supp.2d at 1354. Accordingly, to prevail in this proceeding, court held that Plaintiffs here must claim more than mere witness of a traumatic event to sufficiently plead negligent infliction of emotional distress. See Chaparro v. Carnival Corporation, 693 F.3d 1333 (11th Cir.2012) Court found Plaintiffs here did not plead sufficient facts to satisfy the zone of danger test. Plaintiff Abhishek Gandhi alleged only that he witnessed the alleged incident on the cruise ship and that as a result of his direct observations and his attempts to help his daughter, he suffered emotional distress. He did not allege that he either sustained a physical impact as a result of Carnival's alleged negligence or that he was actually placed in immediate risk of physical harm by Carnival's alleged negligence. For this reason the Court dismissed Count II of the Plaintiff's Complaint.  Court held that the zone of danger test has been established for use in federal maritime cases, and while other jurisdictions may follow the relative bystander test for negligent infliction of emotional distress claims, adoption of the test here is not compatible with the goals of uniformity of maritime law. Circuit courts across the country use the zone of danger test in application of general maritime law, and it is not this Court's place to attempt to alter maritime law and disrupt its uniformity. 

OUTCOME:

The court granted Defendant's Motion to Dismiss and dismissed the minor's father's claims of negligent infliction of emotional distress.


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