FIRST CIRCUIT COURT OF APPEALS VACATED AND REMANDED A SUMMARY JUDGMENT ORDER AGAINST A JONES ACT SEAFARER WHERE THE COURT FOUND THERE WAS RECORD EVIDENCE TO SUPPORT A GENUINE ISSUE OF MATERAL FACT AS TO WHETHER THE SEAMEN’S APLASTIC ANEMIA AROSE OR BECAME AGGRAVATED WHILE IN THE SERVICE OF THE VESSEL.
2014 WL 3703746
Only the Westlaw citation is currently available.
United States Court of Appeals,
Santos RAMIREZ, Plaintiff, Appellant,
v. CAROLINA DREAM, INC., Defendant, Appellee.
No. 13–2109. | July 28, 2014.
Seaman brought action against vessel owner, seeking damages for injuries he allegedly sustained while working onboard fishing vessel, and alleging claims for negligence under the Jones Act, as well as general maritime law claims of unseaworthiness and maintenance and cure. The United States District Court for the District of Massachusetts, Granted summary judgment in favor of owner. Seaman appealed dismissal of his claim for maintenance and cure.
Appellant Santos Ramirez, a seaman, became ill while working aboard a fishing vessel and was immediately hospitalized when he returned to shore. Shortly thereafter, he was diagnosed with aplastic anemia, a serious blood condition that prevented him from returning to work as a seaman. He subsequently brought this personal injury action against his employer, seeking a remedy under the Jones Act, 46 U.S.C. § 30104, and general maritime law. The district court granted summary judgment for the defendant, Carolina Dream, Inc., on each of appellant’s alleged causes of action. On appeal, Ramirez challenges only dismissal of his maritime claim for maintenance and cure, arguing that he is entitled to that remedy until he reaches “maximum medical recovery.” Vaughan v. Atkinson, 369 U.S. 527, 531, 82 S.Ct. 997, 8 L.Ed.2d 88 (1962). Because we agree that the record would permit a factfinder to find that appellant is entitled to maintenance and cure, we vacate the district court’s ruling and remand for further proceedings.
The Court of Appeals held that genuine issue of material fact existed as to whether seaman’s aplastic anemia arose or became aggravated during his service to the vessel. Vacated and remanded.
CRUISE SHIP PASSENGERS CLAIMS OF LOSS OF CONSORTIUM SURVIVE MOTION TO DISMISS BASED ON ATLANTIC SOUNDING V TOWNSEND
2014 WL 3687100
Only the Westlaw citation is currently available.
United States District Court, M.D. Florida,
Kimberly SHORE and George Shore, Plaintiffs,
v. MAGICAL CRUISE COMPANY, LTD. and Steiner Transocean Limited, Defendants.
No. 6:14–cv–358–Orl–31GJK. | Signed July 24, 2014.
Defendant Magical Cruise Company “MCC” filed Motion to Dismiss passenger’s claims related to spa treatment.
According to the allegations of the Amended Complaint, which are accepted in pertinent part as true for purposes of resolving the instant motions, in April 2013 the Plaintiffs sailed aboard the M/V Disney Magic. The M/V Disney Magic is owned by MCC, and Steiner operates the spa aboard the ship. During the cruise, Kimberly Shore utilized spa services, including a scalp treatment. The Plaintiffs contend that the product used for the scalp treatment was tainted and/or misapplied, as a result of which Kimberly Shore suffered a staphylococcal infection. Further, the Plaintiffs contend that George Shore came down with an illness shortly afterward, likely as a result of his wife’s infection. In the Amended Complaint, the Shores assert claims for negligence against MCC (Count I) and Steiner (Count II), as well as two claims asserted against both defendants: strict products liability (Count III) and loss of consortium (Count IV). MCC contends that Plaintiffs failed to state a claim for negligence in that they have pled no facts that show that MCC owed them a duty to warn of the allegedly defective hair product, or that the company breached such a duty. Even if this is true, the Shores have alleged, inter alia, that an MCC employee applied an expired and contaminated product to Kimberly Shore’s scalp, and that the contamination and the expiration date were both visible upon inspection of the bottle containing the product. (Doc. 32 at 3). This is sufficient to state a claim for negligence. Both Defendants contend that the Plaintiffs have failed to state a claim for strict liability in Count III because, among other things, the Plaintiffs have not alleged that either Defendant was a manufacturer, seller, or retailer of the hair product at issue. See Restatement (Second) of Torts § 402A (holding liable, despite absence of negligence, anyone “who sells any product in a defective condition unreasonably dangerous to the user or consumer” if “the seller is engaged in the business of selling such a product” and the product “is expected to and does reach the user or consumer without substantial change in the condition in which it is sold.”). See also East River S.S. Corp. v. Transamerica Delaval, Inc., 476 U.S. 858, 886, 106 S.Ct. 2295, 90 L.Ed.2d 865 (1986) (recognizing products liability, including strict liability, as part of general maritime law). The Plaintiffs do not respond to either Defendant’s argument on this point. Accordingly, Count III will be dismissed without prejudice. Finally, the Defendants seek dismissal of Count IV on the grounds that general maritime law does not recognize claims for loss of consortium. At first blush, the case law supports the Defendants: The United States Court of Appeals for the Eleventh Circuit has held that general maritime law does not allow recovery of damages for loss of consortium in a personal injury case. See, e.g., In re Amtrak “Sunset Limited,” 121 F.3d 1421, 1429 (11th Cir.1997) (stating that personal injury claimants in admiralty cases “have no claim for nonpecuniary damages such as loss of society, loss of consortium, or punitive damages”). The holding in Sunset Limited was an extension of the holding in Lollie v. Brown Marine Serv., Inc., 995 F.2d 1565, 1565 (11th Cir.1993) (per curiam ), in which the court without discussion held that neither the Jones Act, 46 U.S.C. § 30104, nor general maritime law authorized recovery for loss of society or consortium in personal injury cases. However, the Plaintiffs contend that Sunset Limited and Lollie are no longer good law in the wake of the Supreme Court’s decision in Atlantic Sounding v. Townsend, 557 U.S. 404, 129 S.Ct. 2561, 174 L.Ed.2d 382 (2009). In that case, Townsend—a crewman who was injured while serving aboard a tug boat owned by Atlantic Sounding—sought, inter alia, punitive damages for Atlantic Sounding’s alleged failure to provide maintenance and cure. Atlantic Sounding sought dismissal of the of the punitive damages claim. After the District Court denied the motion to dismiss and the Eleventh Circuit affirmed the trial court’s decision, the Supreme Court granted certiorari. The Townsend court upheld the Miles decision, saying that its reasoning—that judicially created remedies should not exceed those available statutorily—“remains sound”. Townsend at 420. However, the Townsend court found that Miles did not control the crewman’s claim because the cause of action for maintenance and cure and the remedy of punitive damages were “well established” in the general maritime law prior to passage of the Jones Act, and nothing in that act indicated a Congressional intention to limit either’s availability. Id. at 420–21. The Plaintiffs argue that Townsend has established new criteria for determining whether a particular cause of action or remedy is available under general maritime law, and that these new criteria are set forth in a recent decision of the United States Court of Appeals for the Fifth Circuit, McBride v. Estis Well Service, L.L.C., 731 F.3d 505, 514 (5th Cir.2013). Turning to the instant case, the Plaintiffs contend they should be allowed to pursue their loss of consortium claims because, prior to the passage of the Jones Act, general maritime law recognized a cause of action for loss of consortium in passenger cases, and nothing in the Jones Act demonstrates an intention to eradicate that cause of action. The cases they cite to establish these propositions are far from definitive. However, given the unsettled state of the law, the Court will for now deny the motion to dismiss. As the Defendants have not had a chance to address most of the arguments raised by the Plaintiffs in regard to loss of consortium damages, they may, if they desire, raise the issue again on summary judgment.
The Motion to Dismiss was granted in part and denied in part.
IN TWO SEPARATE ORDERS, DISTRICT COURT STRUCK PLAINTIFF’S LIABILITY EXPERT IN CRUISE PASSENGER TRIP AND FALL ACTION AND THEN GRANTED SUMMARY JUDGMENT IN FAVOR OF CRUISE LINE
2014 WL 3548456 & 2014 WL 3667763
Only the Westlaw citation is currently available.
United States District Court, S.D. Florida,
Aide Sepulveda TORRES, Plaintiff,
v. CARNIVAL CORPORATION, a foreign corporation d/b/a Carnival Cruise Lines, Defendant.
No. 12–cv–23370–JLK. | Signed July 17, 2014 & July 22, 2014.
Defendant Cruise line moved to strike Opinions of Plaintiff’s Liability Expert Kevin A. Rider, Ph.D., and also moved for Summary Judgment.
Plaintiff was a passenger on Defendant’s cruise ship on July 24, 2011. On that day, as she was disembarking the vessel “through an open passageway onto the exterior deck … [she] tripped and fell over a raised threshold that had been covered over with a mat or similar material, which obscured, disguised, or hid the raised threshold.” Plaintiff brings this action in negligence against Defendant for covering the raised threshold with a material, failing to properly assist Plaintiff and supervise the disembarkation produce, and failing to warn passengers of the hazard. Plaintiff retained Kevin A. Rider, Ph.D. to “render opinions related to the liability issues in this case.” Rider’s ten professional opinions in this case are set forth in his report. They fall into three broad categories: 1) those having to do with Defendant’s flooring [nos. 1–7]; 2) one regarding lighting [no. 8]; and 3) one regarding warnings [no. 9].2 Rider’s final opinion is a summation. Defendant moves to exclude Rider. Court stated that the only clouds darkening the clear waters of this case are the attempts to introduce expert testimony on the floor features, lighting, and warnings. This testimony unnecessarily complicates the case. Walking. That is the action at the heart of this case. Walking is something almost all individuals understand. Rider derives numerous conclusions from his analysis of the carpet, all to say that Plaintiff tripped because of a condition on the ground. His report states, “[W]hen walkways are improperly designed and maintained, pedestrians may be exposed to dangerous conditions.” This is not the kind of assertion which requires expert testimony; it is neither a stretch nor even a hop of logic to say that humans may trip if they encounter an obstacle in their path. Jurors can easily understand the simple mechanics of walking and the various reasons one may fall, including tripping on a carpet. To permit expert testimony on issues where the jury can easily form an opinion would be to invade the province of the jury. The Court found the jury is a capable and competent, and should be respected as such. Expert testimony is not helpful on issues this astute body can understand. As to the summary judgment motion, court stated as follows: To prove negligence, a plaintiff must show that the defendant owned the plaintiff a duty, the defendant breached that duty, and the breach caused the plaintiff’s damages. The fatal flaw in Plaintiff’s case is a showing of breach. The Court will consider each of Plaintiff’s theories in turn. Although Plaintiff states that she “had no idea she would be involved in an accident, be injured and then called upon almost two-and-a-half-years later to recount every single detail leading up to the accident,” it was Plaintiff who filed this lawsuit and Plaintiff carries the burden of proving her case. The evidence establishes that Plaintiff tripped when disembarking the ship. Plaintiff and her husband have testified that she tripped on the carpet. It does not flow from that fact that she tripped because the carpet was unreasonably dangerous. Plaintiff’s testimony reveals there is no genuine issue of material fact on this matter. Plaintiff stated that there were no objects or obstructions in her path as she walked directly to the exit and that nothing impeded her view of the carpeted area. She “didn’t really pay attention” as other passengers disembarked ahead of her and was not paying attention as she walked towards the subject ramp. Plaintiff was carrying only her purse on her right shoulder. Plaintiff points to two proposed witnesses: Kevin Rider, Ph.D. and Malcom Stark. Rider has been stricken by the Court and, thus, provides no support for Plaintiffs position. Stark stated that passengers sometimes trip on the thresholds and that there are stickers warning passengers of, for example, these changes in elevation or wet floors. However, Stark also testified that no other individuals have ever fallen in the area where Plaintiff fell. Further, within one minute after Plaintiff fell, Stark inspected the area and discovered no hazard present where she fell. Plaintiff’s husband, who witnessed the incident, testified that there were no rips, tears, water, or foreign substances on the carpet. This evidence establishes that the carpet or the ramp was not unreasonably dangerous at the time Plaintiff fell. Plaintiff has not shown a genuine dispute of material fact as to any breach with regard to the carpet. As to the alleged failure to warn, court found that without a hazard, there is no failure to warn of that hazard. Lastly, court found there was no evidence that Defendant breached any duty in its assistance to Plaintiff or others during the disembarkation process. Court held that no rational fact-finder could find that Defendant was negligent. Therefore, summary judgment must be entered in favor of Defendant.
District Court, in two separate orders, struck Plaintiff’s liability expert and granted summary judgment.