Cassie TERRY, et al., Plaintiffs, v.


2014 WL 982892

Only the Westlaw citation is currently available.

United States District Court, S.D. Florida.

Case No. 13-20571-CIV. | Signed Jan. 16, 2014.


Passengers brought action against cruise line, alleging various claims, including breach of contract and negligence, in relation to the much publicized fire on the Carnival Triumph.  Parties cross-moved for summary judgment.


Plaintiffs brought this suit in connection with their claims of injury while aboard the Carnival Triumph, during a cruise that departed on February 7, 2013, from Galveston, Texas, and which was scheduled to return on February 11, 2013. As a result of a fire, however, the Triumph’s voyage was interrupted when the vessel became disabled while en route back to Galveston from Cozumel. Plaintiffs now seek compensatory and punitive damages on claims of breach of contract, negligence and gross negligence, negligent misrepresentation, and fraud.  Carnival first asserted that it is entitled to summary judgment on Plaintiffs’ breach of contract claim (Count I) because the parties did not agree to any provision guaranteeing safe passage, a seaworthy vessel, adequate and wholesome food, and sanitary and safe living conditions. The Court agreed and cited that the general rule of admiralty law is that a ship’s passengers are not covered by the warranty of seaworthiness, a term that imposes absolute liability on a sea vessel for the carriage of cargo and seamen’s injuries. See Kornberg v. Carnival Cruise Lines, Inc., 741 F.2d 1332, 1335 (11th Cir.1984)(holding that passenger’s claims could not be based on unseaworthiness); Jackson v. Carnival Cruise Lines, Inc., 203 F.Supp.2d 1367, 1377 (S.D.Fla.2002). The only exception to this rule is if there is an executed contractual provision that expressly guarantees safe passage. Jackson at 1377; See also Hass v. Carnival Cruise Lines, 1986 WL 10154, No. 86-33-CIV (S.D.Fla. Mar. 20, 1986)Doe v. Celebrity Cruises, 145 F.Supp.2d 1337, 1346 (S.D.Fla.2001).  Next, certain plaintiffs conceded they suffered no physical injuries, but instead suffered emotional injuries, such as anxiety, sleeplessness, and nightmares.  Defendant contends that it is entitled to summary judgment on Plaintiffs’ Negligence and Gross Negligence claim because there is no evidence that plaintiffs suffered a cognizable injury or actual harm as a result of the incident onboard the Triumph.  A valid claim for negligent infliction of emotional distress requires “mental or emotional harm (such as fright or anxiety) that is caused by the negligence of another and that is not directly brought about by a physical injury, but that may manifest itself in physical symptoms.” Chaparro v. Carnival Corp., 693 F.3d 1333, 1337-38 (11th Cir.2012) (quoting Consol. Rail Corp. v. Gottshall, 512 U.S. 532, 544, 114 S.Ct. 2396, 2405, 129 L.Ed.2d 427 (1994)).  Court went through the variety of limiting tests for assessing claims of negligent infliction of emotional distress. The three predominant limiting tests are (1) the physical impact test, (2) the zone of danger test, and (3) the relative bystander test. See Consol. Rail Corp. v. Gottshall, 512 U.S. 532, 546-49, 114 S.Ct. 2396, 129 L.Ed.2d 427 (1994). Admiralty law allows recovery only for those passing the zone of danger test. Smith v. Carnival Corp., 584 F.Supp.2d 1343, 1353-54 (S.D.Fla.2008)Tassinari v. Key West Water Tours, L.C., 480 F.Supp.2d 1318, 1320-21 (S.D.Fla.2007).  The “zone of danger” test “limits 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.” Consolidated Rail Corp. v. Gottshall, 512 U.S. 532, 547-48, 114 S.Ct. 2396, 2406, 129 L.Ed.2d 427 (1994). While the Gottshall court held that the zone of danger test is the applicable standard that must be met in cases for negligent infliction of emotional distress, the Court did not decide whether objective physical manifestations are required for recovery or whether a plaintiff can recover for purely emotional injury. Gottshall, 512 U.S. at 569 n. 3, 114 S.Ct. at 2417 n. 3. The Court noted that many jurisdictions that follow the zone of danger test, “also require that a plaintiff demonstrate a ‘physical manifestation’ of an alleged emotional injury, that is, a physical injury of effect that is the direct result of the emotional injury, in order to recover.” Id., at 549 n. 11, 114 S.Ct. at 2407 n. 11; Williams v. Carnival Cruise Lines, Inc., 907 F.Supp. 403, 406 (S.D.Fla.1995).  Court held that in this case, those passenger who complained only of emotional injuries which manifested uniformly through sleep deprivations and nightmares. Although none of these plaintiffs have sought medical care, each contends that the distress is continuous. Court found a genuine issue of material fact as to whether these plaintiffs are entitled to recover for their emotional distress when applying the physical manifestation test. Specifically where the record evidence demonstrates that Plaintiffs mental disturbance and/or the resulting sleeplessness and nightmares are continuous in nature.  Accordingly, Defendant’s Motion for Summary Judgment as to these plaintiffs who conceded no physical injury was denied.  Nonetheless, the Court did enter summary judgment as to one passenger who merely suffered diarrhea for a couple days.  Next, Defendant asserted that it is entitled to summary judgment on Plaintiffs’ claims for punitive damages. Specially, Carnival contends that there is no evidence of intentional wrongdoing. “The standard of liability necessary for the recovery of punitive damages is governed by admiralty law.” In re Amtrak Sunset Ltd. Train Crash in Bayou Canot, Ala. on Sept. 22, 1993, 121 F.3d 1421, 1428 (11th Cir.1997). Personal injury claimants in actions brought under general maritime law have no claim for non-pecuniary damages, including punitive damages, “except in exceptional circumstances such as willful failure to furnish maintenance and cure to a seaman, intentional denial of a vessel owner to furnish a seaworthy vessel to a seaman and in those very rare situations of intentional wrongdoing.” In re Amtrak Sunset Ltd. Train Crash in Bayou Canot, Ala. on Sept. 22, 1993, 121 F.3d 1421, 1429 (11th Cir.1997). Court found that the Plaintiffs failed to demonstrate and the record evidence does not support a finding of intentional misconduct.  Accordingly, Defendant’s motion is granted. Plaintiffs were precluded from pursuing punitive damages. Lastly, the Plaintiffs moved for partial summary judgment as to liability, or in the alternative, for a presumption of liability against Defendant Carnival based upon the doctrine of res ispa loquitur. Specifically, Plaintiffs argue that they are entitled to summary judgment as a matter of law because (1) the engine room fire started for no reason other than Carnival’s sheer negligence and utter failure to perform necessary and required maintenance on the Vessel’s diesel generators and flexible fuel lines; (2) the engine room, including the diesel generators and flexible fuel lines were under the exclusive control of Carnival at all relevant times; and (3) there is no evidence to suggest the fire was caused by any action or contribution by Plaintiffs. The doctrine of res ipsa loquitur applies if: (1) the injured party was without fault, (2) the instrumentality causing the injury was under the exclusive control of the defendant, and (3) the mishap is of a type that ordinarily does not occur in the absence of negligence. United States v. Baycon Indus., Inc., 804 F.2d 630, 633 (11th Cir.1986). It is undisputed that the plaintiffs were without fault. Carnival argues that there are disputed issues of fact whether the Triumph’s engine room, diesel generators and specifically the flexible fuel hose were in the exclusive control of Carnival at all relevant times and whether the cause of the fire could only be caused by negligence.  With regard to the second prong of the test, the Court found that the instrumentalities involved were under the exclusive management and control of the defendant. As to the third prong, the Court finds that the record evidence demonstrates that the fire and resulting conditions experienced by-Plaintiffs aboard the Triumph is a mishap that ordinarily does not occur in the absence of negligence. It is highly likely that Carnival was responsible for all reasonably probable causes to which the accident could have be attributed. Here, the facts of the occurrence warrant the inference of negligence. Once the inference of negligence is established, the defendant has the burden of rebutting the inference. The Court found Carnivals arguments and the record evidence insufficient to rebut the inference of negligence. Specifically, Carnival offers no feasible explanation for the fire absent lack of due care. As such, Plaintiffs’ motion for partial summary judgment is granted.


The Court granted in part and denied in part the parties cross motions for summary judgment.