IN CRUISE SHIP SEXUAL ASSAULT AND OVERSERVICE OF ALCOHOL CASE, SUMMARY JUDGMENT GRANTED IN PART WHERE PLAINTIFF COULD NOT PUT FORWARD ENOUGH EVIDENCE TO PROVE THE ASSAILANT WAS A CREWMEMBER, RATHER THAN A FELLOW PASSENGER, AND DISTRICT COURT DECLINED TO APPLY FLORIDA’S DRAM SHOP ACT TO BAR PLAINTIFF’S NEGLIGENT OVERSERVICE OF ALCOHOL CLAIM.
Jane DOE, Plaintiff v. NCL (Bahamas) LTD., Defendant.
United States District Court, S.D. Florida
No. 11–22230–Civ. | Nov. 14, 2012.
Cruise ship passenger filed a Complaint against Defendant NCL alleging in Count I that Defendant was strictly liable for the sexual assault allegedly perpetrated by one of its crew members and, in Count II, pleading in the alternative, that Defendant was negligent in failing to take reasonable care in protecting Plaintiff from an assault by another cruise ship passenger. On October 1, 2012, Defendant moved for a summary judgment as to Count I and II of the Complaint.
This case concerns allegations of a sexual assault that occurred on April 11, 2011 on the Norwegian Sun, a cruise ship owned and operated by Defendant. On the date of the alleged sexual assault, Plaintiff participated in a “pub crawl” event organized by Defendant. The pub crawl event advertised and offered five drinks at five different bars throughout the ship. During the event, the participants were served five drinks. Plaintiff was a member of the team that had won the most games during the pub crawl event, and she was awarded an extra drink. After the event, Plaintiff remained at the last stop on the pub crawl, the “Great Outdoors” bar, where Plaintiff ordered two more margarita drinks at the Great Outdoors bar, but only partially consumed the second margarita. Then, Plaintiff went to use a public restroom. Plaintiff alleges that she heard a male voice call her name. Thereafter, Plaintiff alleges that a man entered the toilet stall and sexually assaulted her. Plaintiff alleges that she did not resist or say “no” because she did not have the ability to do so. The next morning, Plaintiff reported the assault to the security officer of the Norwegian Sun. Plaintiff informed the security officer that Jose Vasquez, a fellow cruise ship passenger, was her primary suspect. At the initial pleading stage, Plaintiff speculated that either a crew member or a passenger assaulted her. Accordingly, Plaintiff pled Count I on the theory that her assailant was a crewmember, and Count II on the theory that her assailant was a passenger. At the summary judgment stage, Plaintiff did not put forward enough evidence to show the assailant was a crewmember, thus Defendant’s Motion for Summary Judgment as to Count I for strict liability was granted. As to Count II of the Complaint, Plaintiff alleges that Defendant breached its duty of care by, among other things, failing to not over serve Plaintiff alcohol. NCL argues that Defendant had no duty to not over serve alcohol because the Florida anti-dram shop liability statute applies to this case; § 768.125, Fla. Stat. (2012). The district court declined to apply the Florida dram shop act to bar Plaintiff’s negligence claim in this case. Instead, the court held that the Kermarec reasonable care standard applied. Further, NCL argued that, even assuming it had a duty not to over serve alcohol, the evidence demonstrates that Defendant did not breach that duty. The district court noted that a cause of action for over service of alcohol sounds in negligence, and that the facts of the case must be such that a “reasonable defendant would have been on notice of the impending danger to the plaintiff.” Accordingly, the intoxicated passenger’s behavior is relevant to the determination that Defendant in this case was on notice of the danger. In this case, the parties disagreed on whether Plaintiff visibly was intoxicated. Accordingly, the district court held that whether Plaintiff was visibly intoxicated is an issue for the jury and judgment as a matter of law is not warranted on the issue of the alleged over service of alcohol by Defendant.
Defendant’s Motion for Summary Judgment was granted in part and denied in part. Count I is dismissed with prejudice. Count II shall proceed.
SUMMARY JUDGMENT ENTERED ON JONES ACT SEAFARER’S NEGLIGENT INFLICTION OF EMOTIONAL DISTRESS CLAIMS WHERE PLAINTIFF FAILED TO PROVE PHYSICAL MANIFESTATIONS OF HER EMOTIONAL INJURIES AND FAILED TO PROVE SHE WAS IN THE ZONE OF DANGER.
Jones v. Pride Int’l Inc., 2012 U.S. Dist. LEXIS 164877
United States District Court for the Eastern District of Louisiana
November 19, 2012, Decided; November 19, 2012, Filed
Defendant Shipowner and Jones Act Employer filed Motion for Summary Judgment as to, among other things, Plaintiff’s Jones Act claims.
Defendants hired Jones as a third engineer for the M/V DEEP WATER CLARION in February of 2010. Jones avers that she was advised that she was assigned to share berthing with three male employees. She complained that this arrangement was “morally, ethically, and personally unacceptable.” Jones was ultimately assigned to share berthing with a male second assistant engineer who would be working a 12-hour shift opposite Jones’s own 12-hour shift. Jones also opposed this arrangement, suggesting that she could share housing aboard the vessel with other females, including other female workers. Pride’s general manager explained that Jones could not be placed in a room other than that designated for the third engineers. On August 12, 2010, Jones’s employment with defendants ended. The parties dispute whether she resigned or was subject to a constructive discharge. Jones filed a charge of discrimination with the U.S. Equal Employment Opportunity Commission (“EEOC”), alleging the proposed sleeping arrangement constituted gender discrimination in violation of Title VII. The EEOC issued a Notice of Right to Sue on October 28, 2011. On December 22, 2011, Jones filed a complaint asserting defendants’ actions violated the Jones Act, general maritime law, and Title VII. Defendants contend that they are entitled to summary judgment on, inter alia, the grounds that the Jones Act does not apply because Jones does not allege physical injuries. The District Court agreed and held that Defendants are entitled to summary judgment because the Jones Act claim suffers from two fatal defects. First, Jones has alleged she suffers from PTSD, but she has not identified any physical manifestations of her PTSD. Accordingly, the absence of any alleged physical manifestation is sufficient for summary judgment on the Jones Act claim. Second, Jones has not alleged that defendants’ negligent infliction of her emotional injury occurred while she was in the zone of danger. No facts support the conclusion that Jones was ever at risk of physical harm or physical impact.
Defendants’ motion for summary judgment was GRANTED.
SUMMARY JUDGMENT GRANTED IN CRUISE SHIP PASSENGER SLIP AND FALL NEGLIGENCE CLAIM WHERE PLAINTIFF FAILED TO PROVE NOTICE OF A DANGEROUS CONDITION
Elizabeth STEWART–PATTERSON, Plaintiff, v. CELEBRITY CRUISES, INC., Defendant.
United States District Court, S.D. Florida. 2012 WL 5868397
Nov. 19, 2012.
Defendant shipowner moved for Summary Judgment as to negligence count arguing lack of notice.
Plaintiff Elizabeth Stewart–Patterson was a passenger aboard a cruise ship owned and operated by Defendant Celebrity Cruises, Inc. Plaintiff claims that as she was walking down a carpeted staircase on the ship that afternoon, she slipped on a wet substance and fell down the stairs, fracturing her left ankle. At her deposition, Plaintiff testified that she did not know what type of liquid was on the stairs or the source of the liquid. Plaintiff stated that the liquid “seem [ed] like it had been there quite a long time” and that it was “greasy, soapy, slippery.” According to Plaintiff, no signs were posted warning of the wet steps. Thereafter, Plaintiff filed this personal-injury action against Defendant. Defendant filed its present motion seeking summary judgment on Plaintiff’s negligence claim. Defendant argues that it cannot be held liable for Plaintiff’s slip-and-fall accident because Plaintiff has not shown that Defendant had actual or constructive knowledge of a slippery liquid on the ship’s stairs. To establish that Defendant acted negligently regarding the alleged slippery condition on the ship’s staircase, Plaintiff must first show that Defendant had actual or constructive knowledge of that condition at the time of Plaintiff’s accident. Defendant maintains that Plaintiff cannot meet this burden because she has offered no competent evidence about what type of liquid was on the stairs, where the liquid came from, or how long it had been there before she slipped on it. Plaintiff pointed to her deposition testimony that the liquid on the steps “seem[ed] like it had been there quite a long time.” Plaintiff, though, does not explain the basis for this conclusion. To the contrary, her testimony that she felt the liquid “splash up [her] legs and arms and [her] feet” suggests that the substance had not been there long enough to be fully absorbed into the carpet or dry naturally. And though Plaintiff described the liquid as “greasy, soapy, slippery,” there is no proof of what the substance was or how it got on the steps. Last, the Court found that no evidence indicates that Defendant’s employees frequently travel the staircase where Plaintiff fell, and the video footage suggests that the area is not particularly busy.
The Court found that Plaintiff has not demonstrated a genuine dispute of material fact about whether Defendant had actual or constructive knowledge of the alleged slippery condition on the staircase. Defendant’s motion for summary judgment on Plaintiff’s negligence claim is therefore granted.
WHERE CRUISE SHIP PASSENGER SUFFERED PERMANENT HEARING LOSS DUE TO SHIP’S EMERGENCY ALARM, SUMMARY JUDGMENT ENTERED WHERE PLAINTIFF FAILED TO PROVE DEFENDANTS WERE ON NOTICE OF A DANGEROUS CONDITION
Jennifer MIRZA, Plaintiff, v. HOLLAND AMERICA LINE INC., et. al., Defendants.
United States District Court, W.D. Washington,
Nov. 6, 2012.
Defendant Shipowner moved for Summary Judgment regarding the issue of notice.
Plaintiff Jennifer Mirza brings a claim for negligence against Holland America Line Inc., for injuries she suffered while aboard a Holland America cruise. Mirza cruised to Mexico aboard the MS Oosterdam. On the morning of January 25, 2011, while the ship docked in Puerto Vallarta, Mexico, Mirza sat on the observation deck. No other passengers were present on the deck. An emergency drill for crew only was scheduled for that morning. The previous night, the Oosterdam provided passengers, including Mirza, with a written notice regarding the drill. Just before the drill, the ship’s captain announced over the public address system that the general emergency alarm would sound. The Oosterdam emergency alarm then sounded. Upon hearing the first whistle, Mirza put her hand to her right ear. On the second whistle, she ran from the deck. In total the whistle sounded eight times, but Mirza was on the observation deck for only two. Mirza did not initially complain to the crew of the Oosterdam about the whistle or her hearing-loss. Four days later, she reported to a crew member that the ship’s horn had gone off and she was having trouble hearing in her right ear. Mirza then visited the ship’s infirmary. The ship’s doctor, Donald Lum, M.D., diagnosed Mirza’s right ear as suffering “acoustic trauma” and recommended further tests once she disembarked. The ship’s physician documented the visit and his diagnosis in a Guest Accident Report. On November 28, 2011, Mirza sued Holland America Line Inc., HAL Antillen N.V. and Holland America Line N.V. for negligence. Mirza suffers permanent hearing loss, requiring medical treatment. Defendants moved for summary judgment arguing there is no genuine dispute that it had actual or constructive notice of the dangerous condition, the whistle, which allegedly caused Plaintiff’s hearing loss. In granting summary judgment, the court noted that each year since its construction, the cruise ship passed classification society inspections; and that in the past five years, while two passengers sailing on Holland America Cruises suffered injury resulting from the noise of a ship’s alarm system or whistle, neither incident was in any way related to the subject incident. Mirza failed to show any genuine dispute existed as to whether Defendants had actual or constructive knowledge the volume of the whistle created a dangerous condition.
Because there was no genuine issue of material fact as to whether Defendants had actual or constructive knowledge of the unreasonably dangerous condition, the volume of the ship’s whistle, the Court entered summary judgment in favor of Defendants.