D.M. v. NCL (Bahamas) Ltd.

Lipcon, Margulies, Alsina & Winkleman, P.A

October 24, 2014

D.M. v. NCL (Bahamas) Ltd.

D.M.,
Plaintiff,

v.

NCL (BAHAMAS) LTD.,
Defendant.

                                                                        /

PLAINTIFF’S RESPONSE IN OPPOSITION TO DEFENDANT, NCL (BAHAMAS) LTD.’S MOTION FOR SUMMARY JUDGMENT

The Plaintiff, D.M., by and through undersigned counsel, hereby files his response in opposition to Defendant, NCL (BAHAMAS) LTD.’S (“NCL[’s]”) Motion for Summary Judgment [D.E. 29] and, in furtherance thereof, states as follows:

1. Introduction

The instant matter arises out of the personal injuries suffered by the Plaintiff while he was a passenger aboard NCL’s vessel. [D.E. 1].  Specifically, on September 3, 2013, the Plaintiff was on a cruise aboard the cruise ship the Norwegian Gem, and the port of call on that date was Great Stirrup Cay. [D.E. 1, ¶¶6-8].  Due to the fact that the cruise ship was unable to dock on that island, the ship dropped anchor and passengers were transported to and from the island by tenders. [See Page 8, Lines 15-25 of the deposition of NCL’s Corporate Representative attached as Exhibit 1].

As the Plaintiff was attempting to disembark the tender to board the cruise ship, he tripped over the threshold between the gangway and the tender. [D.E. 1, ¶9; see also Page 113, Lines 3-8 of the Plaintiff’s deposition attached as Exhibit 2].  As a result, he fell and suffered a fracture to his right arm. [Exhibit 2, Page 129, Line 18 – Page 131, Line 10].  The Plaintiff therefore initiated this lawsuit alleging negligence against NCL due to inter alia, NCL’s failure to 1) provide adequate assistance between the tender and the cruise ship; 2) warn the Plaintiff of the dangers of crossing the gangway between the tender and the cruise ship; and/or 3) instruct passengers on how to embark/disembark the tender in a safe manner. [D.E. 1, ¶¶13(f), (i), (u)].

At issue herein is NCL’s Motion for Summary Judgment, filed on October 3, 2014. [D.E. 29].  In support of such motion, NCL argues that summary judgment in NCL’s favor is warranted because 1) Mr. McAlister has not sufficiently shown his accident resulted from NCL’s alleged negligence; 2) the threshold was an open and obvious condition for which there was no duty to warn; and, 3) NCL was not on notice, either actual or constructive, of any dangerous or risk-creating condition in the area in question or that McAlister would require assistance. [D.E. 29, p. 2].  NCL goes on to claim that “the evidence is clear that Norwegian met its duty to provide reasonable safe ingress and egress onto and from the vessel.” [Id.] (emphasis added).

Contrary to NCL’s statement and arguments, because this is a tender case, NCL had a heightened (not just a reasonable) duty of care to see to the safe embarkation and disembarkation of the Plaintiff at the scheduled port-of-call of Great Stirrup Cay.  NCL’s Motion for Summary Judgment should be denied in its entirety for this reason alone.

In addition, however, under NCL’s own policies and procedures, crewmembers stationed near the gangway aboard its ship’s tenders are required to provide assistance and warn passengers to “watch their step” as they transition up from the deck of the tender to the gangway leading to the cruise ship.  In this case, the undisputed testimony and evidence (including a video of the incident) is that the crewmembers on the date of the incident failed to provide any assistance or give any warnings to the passengers disembarking the ship’s tender, including the Plaintiff.  Moreover, NCL will be unable to prove otherwise because NCL never identified the crewmembers near the gangway on the date of the subject incident.

Furthermore, the potentially dangerous or risk-creating conditions are inherent in the very process of embarking/disembarking tenders.  In fact, the policy and procedure referenced above (to assist and warn passengers) is indicative of such danger.  In addition, NCL has had at least one other incident involving a passenger suffering injuries while embarking/disembarking its ship’s tender in the three-year period before the Plaintiff’s incident.[1]  As such, NCL was on actual or constructive notice of a potentially dangerous or risk-creating condition to all passengers embarking/disembarking tenders, including the Plaintiff.

For all of these reasons, each of which are addressed in further detail, NCL’s Motion for Summary Judgment should be denied.

2. Response to NCL’s Statement of Undisputed Facts

The Plaintiff sets forth his response to NCL’s Statement of Undisputed Facts in accordance with Local Rule 56.1(a).  The response corresponds with the order and paragraph numbering scheme used by NCL.

  1. The Plaintiff does not dispute the facts contained in paragraph 1.
  2. The Plaintiff does not dispute the facts contained in paragraph 2. The Plaintiff adds, however, that the Plaintiff had never been on a tender prior to the date of the subject incident and he was unfamiliar with the tendering process. [Exhibit 2, Page 154, Line 25 – Page 155, Line 21].
  3. The Plaintiff does not dispute the facts contained in paragraph 3, except to say that NCL anticipates that passengers may not be watching their step, which is why crewmembers are stationed near the gangway aboard the tender to warn passengers to “watch their step.” [1, Page 53, Line 24 – Page 55, Line 4].
  4. The Plaintiff is without knowledge as to whether or not the same gangway was used when he boarded the tender to the island of Great Stirrup Cay. Therefore, the Plaintiff disputes the facts contained in paragraph 4.
  5. The Plaintiff disputes the facts contained in paragraph 5 to the extent that they are not limited to the time period when the Plaintiff disembarked the Norwegian Gem onto the tender, consistent with the Plaintiff’s testimony cited by NCL. The Plaintiff further disputes paragraph 5 because NCL’s crewmembers are not trained to just wait for passengers to ask for assistance. [Exhibit 1, Page 26, Lines 19-24].  The crewmembers are there to assist all passengers and warn all passengers to watch their step. [Exhibit 1, Page 15, Lines 1-19; Page 21, Lines 1-18; Page 40, Lines 12-21; Page 51, Line 19 – Page 55, Line 4; see also Exhibit 3, ¶¶16-17].  Further, the Plaintiff testified that he did not know (and no one ever told him) he needed to ask for assistance before the incident. [Exhibit 2, Page 156, Lines 4-14].
  6. The Plaintiff is without knowledge as to whether or not the same gangway was used when he boarded the tender to the island of Great Stirrup Cay. Therefore, the Plaintiff disputes the facts contained in paragraph 6.  In addition, the Plaintiff had never been on a tender prior to the date of the subject incident and he was unfamiliar with the tendering process. [Exhibit 2, Page 154, Line 25 – Page 155, Line 21].
  7. The Plaintiff does not dispute the facts contained in paragraph 7. However, it is well settled that the lack of incidents does not foreclose a defendant’s notice/foreseeability issues. See Currie v. Chevron U.S.A., Inc., 266 F. App’x 857, 870 (11th Cir. 2008); see also Hammond v. Springtree Properties, Inc., 668 So. 2d 1004, 1006 (Fla. 2d DCA 1996) approved and remanded, 692 So. 2d 164 (Fla. 1997).
  8. The Plaintiff does not dispute the facts contained in paragraph 8. However, it is well settled that the lack of incidents does not foreclose a defendant’s notice/foreseeability issues. See Currie, 266 F. App’x 857; see also Hammond, supra.
  9. The Plaintiff does not dispute the facts contained in paragraph 9. However, it is well settled that the lack of incidents does not foreclose a defendant’s notice/foreseeability issues. See Currie, 266 F. App’x 857; see also Hammond, supra.
  10. The Plaintiff disputes the facts contained in paragraph 10. The Plaintiff testified that the video refreshed his recollection as to the subject fall. [Exhibit 2, Page 75, Lines 8-16; Page 74, Line 24 – Page 76, Line 5].
  11. The Plaintiff disputes the facts contained in paragraph 11. The Plaintiff testified that the video refreshed his recollection as to the subject fall. [Exhibit 2, Page 75, Lines 8-16; Page 74, Line 24 – Page 76, Line 5].  Further, the Plaintiff was not “speculating” when he repeatedly testified that he tripped over the step between the gangway and the tender [Id. at Page 78, Line 20 – Page 79, Line 18; Page 79, Line 25 – Page 81, Line 6].
  12. The Plaintiff disputes the characterization of the Plaintiff’s testimony contained in paragraph 12. The Plaintiff testified that he was looking forward toward the gangway (as opposed to directly down at this feet), which is what the Plaintiff was walking toward. [Exhibit 2, Page 82, Lines 10-17].  Further, NCL anticipates that passengers may not be watching their step, which is why crewmembers are stationed near the gangway aboard the tender and required by NCL to warn passengers to “watch their step.” [Exhibit 1, Page 53, Line 24 – Page 55, Line 4].
  13. The Plaintiff disputes the characterization of the Plaintiff’s testimony contained in paragraph 13. The Plaintiff’s testimony was that he “didn’t have no doubt” that he could get on the gangway and cross over to the ship without incident. [Exhibit 2, Page 100, Lines 19-25] (emphasis added). Further, the Plaintiff testified that he had never been on a tender prior to the date of the subject incident, and he was unfamiliar with the tendering process. [Exhibit 2, Page 154, Line 25 – Page 155, Line 21].
  14. The Plaintiff does not dispute the facts contained in paragraph 14, except to say that NCL’s crewmembers are required by NCL to warn all passengers to “watch their step,” and are not trained to just wait for passengers to ask for assistance. [Exhibit 1, Page 26, Lines 19-24]. The crewmembers are there to assist all passengers and warn all passengers to watch their step. [Exhibit 1, Page 15, Lines 1-19; Page 21, Lines 1-18; Page 40, Lines 12-21; Page 51, Line 19 – Page 55, Line 4; see also Exhibit 3, ¶¶16-17]. Further, the Plaintiff testified that he did not know (and no one ever told him) he needed to ask for assistance before the incident. [Exhibit 2, Page 156, Lines 4-14].
  15. The Plaintiff does not dispute the facts contained in paragraph 15. However, it is well settled that the lack of incidents does not foreclose a defendant’s notice/foreseeability issues. See Currie, 266 F. App’x 857; see also Hammond, 668 So.2d at 1006, approved and remanded, 692 So. 2d 164.
  16. The Plaintiff does not dispute the facts contained in paragraph 16. However, it is well settled that the lack of incidents does not foreclose a defendant’s notice/foreseeability issues. See Currie, 266 F. App’x 857; see also Hammond, supra.
  17. The Plaintiff does not dispute the facts contained in paragraph 17. However, it is well settled that the lack of incidents does not foreclose a defendant’s notice/foreseeability issues. See Currie, 266 F. App’x 857; see also Hammond, supra.  Further, it should be noted that NCL willfully concealed the existence of at least one prior similar incident (see footnote 1, above).
  18. The Plaintiff disputes the facts contained in paragraph 18, as NCL willfully concealed the existence of at least one prior similar incident (see footnote 1, above).
  19. The Plaintiff does not dispute the facts contained in paragraph 19.
  20. The Plaintiff does not dispute that the gangway had handrails on both sides. However, the Plaintiff does dispute the facts contained in the second portion of paragraph 20, as the Plaintiff testified that he was attempting to hold on to the handrail before he fell. [Exhibit 1, Page 103, Line 21 – Page 104, Line 10].
  21. The Plaintiff does not dispute the facts contained in paragraph 21.
  22. The Plaintiff disputes the facts contained in paragraph 22, as the Plaintiff was unable to state with certainty whether or not there were other passengers in front of him as he was heading toward the gangway. [Exhibit 2, Page 86, Line 19 – Page 88, Line 15; Page 92, Lines 6-11]. Furthermore, the procedure of having to present a ship identification to gain access to the ship caused Mr. McAlister to retrieve his ship identification from his bag as he approached the subject gangway and fell; thus obstructing his view of the gangway. [See surveillance video of incident, conventionally filed by the Plaintiff, D.E. 37].
  23. The Plaintiff disputes the facts contained in paragraph 23. It is unknown to the Plaintiff whether any such tape was applied to the edge of the gangway.  The Plaintiff did not see any markings or warning signs that would indicate a change in level between the tender and the gangway. [Exhibit 2, Page 103, Lines 4-8].  However, NCL requires its crewmembers stationed at the end of the gangway to warn all passengers to watch their step as they encounter the step up from the deck of the tender to the gangway resting on the deck of the tender. [Exhibit 1, Page 15, Lines 1-19; Page 21, Lines 1-18; Page 40, Lines 12-21; Page 51, Line 19 – Page 55, Line 4; see also Exhibit 3, ¶¶16-17].
  24. The Plaintiff disputes the facts contained in paragraph 24, as the Plaintiff consistently testified that the tender and the gangway were moving and were unstable when the incident occurred. [Exhibit 2, Page 83, Lines 10-17; Page 90, Lines 10-16; Page 94, Line 22 – Page 95, Line 18; see also ¶4 of affidavits from the Plaintiff and his traveling companions attached as composite Exhibit 4; see also surveillance video of incident, D.E. 37].
  25. The Plaintiff disputes the facts contained in paragraph 25. The Plaintiff never saw such video and was never directed by anyone to watch such video. [Exhibit 2, Page 34, Line 24 – Page 35, Line 1; Page 164, Line 25 – Page 166, Line 3; see also Exhibit 1, Page 11, Lines 10-13].  Hence, the Plaintiff had no knowledge that the video was available to him, and the video did not “play” in his cabin.  In addition, the video NCL produced as being played on a channel available in all cabins demonstrates the assistance crewmembers provide passengers while they embark and disembark the ship’s tenders. [See screen captures of the video attached as composite Exhibit 5.] Specifically, the video shows crewmembers physically holding on to passengers as they embark and disembark the ship’s tenders [id.] – something NCL admits the crewmembers did not do in this case. [Exhibit 1, Page 55, Lines 5-14].
  26. The Plaintiff disputes the facts contained in paragraph 26, as the Plaintiff never received any safety instructions regarding tendering operations before his incident. [Exhibit 2, Page 155, Line 25 – Page 156, Line 3]
  27. The Plaintiff disputes the facts contained in paragraph 27. As evident in the transcript of the audio recording, the audio played while passengers are aboard the tender does not advise “passengers to be mindful of going onto the platform,” as NCL claims. [See transcript of audio attached as Exhibit 6.] In fact, even NCL’s corporate representative admitted that the audio does not mention any steps between the tender and the gangway. [Exhibit 1, Page 20, Lines 8-21].
  28. The Plaintiff does not dispute that NCL requires at least one crewmember to be near the gangway aboard the tender, and that the Plaintiff recalls seeing two crewmembers there on the date of the incident ho did nothing to warn the Plaintiff or any other passengers of the change in level presented as a passenger approaches the gangway. The Plaintiff also does not dispute that those crewmembers were supposed to warn passengers to “watch their step” pursuant to NCL’s policies and procedures. [Exhibit 1, Page 15, Lines 1-19; Page 21, Lines 1-18; Page 40, Lines 12-21; Page 51, Line 19 – Page 55, Line 4]. The Plaintiff maintains, however, that the crewmembers near the gangway aboard the tender failed to assist, instruct, or warn the Plaintiff (or other passengers) while they were disembarking the tender on the date of the subject incident. [D.E. 1, ¶¶13(f), (i), (u); Exhibit 2, Page 78, Line 20 – Page 79, Line 18; Page 79, Line 25 – Page 81, Line 6; Page 97, Line 21 – Page 98, Line 1; Page 98, Lines 18-21; Page 156, Line 25 – Page 158, Line 2; see also Exhibit 3].
  29. While the Plaintiff does not dispute that the CCTV video shows two crewmembers standing next to the gangway and not looking at the Plaintiff at any time before the Plaintiff fell, the Plaintiff disputes the characterization of the second portion of paragraph 29 which states that the crewmembers assisted him “immediately after his fall.” [D.E. 37]. One crewmember from the tender approached the Plaintiff after he fell and then quickly walked away from the Plaintiff. [Id.] Further, the issue in this case is not whether the crewmembers assisted the Plaintiff after he fell, but rather, whether such crewmembers failed to assist him before he fell, as they were required to do pursuant to NCL’s own policies and procedures. [Exhibit 1, Page 15, Lines 1-19; Page 21, Lines 1-18; Page 40, Lines 12-21; Page 51, Line 19 – Page 55, Line 4; see also Exhibit 3, ¶¶16-17].
  30. The Plaintiff disputes the facts contained in paragraph 30. First, Mr. McAlister’s incident occurred due to NCL’s failure to assist, instruct, or warn the Plaintiff about the step between the tender and the gangway as he was disembarking the tender. [D.E. 1, ¶¶13(f), (i), (u); Exhibit 2, Page 78, Line 20 – Page 79, Line 18; Page 79, Line 25 – Page 81, Line 6; Page 97, Line 21 – Page 98, Line 1; Page 98, Lines 18-21; Page 156, Line 25 – Page 158, Line 2; see also Exhibit 3]. Second, the practice of tendering is wholly unique to maritime and the cruising experience. [Exhibit 1, Page 28, Line 13 – Page 30, Line 3; see also report of Plaintiff’s expert, Randall Jaques at D.E. 38-1, p. 20].

Argument

Summary judgment is appropriate when “there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(c).  A material fact is one that “might affect the outcome of the suit under the governing law.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S. Ct. 2505 (1986).  There is no genuine issue of material fact when “the record taken as a whole could not lead a rational trier of fact to find for the non-moving party.” Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S. Ct. 1348 (1986).  The movant bears the initial burden of proving that no genuine issue of material fact exists. Celotex Corp. v. Catrett, 477 U.S. 317, 322-24, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986).

In ruling on a Rule 56 motion, “the district court may not weigh the evidence or find facts. Instead, the court’s role is limited to deciding whether there is sufficient evidence upon which a reasonable juror could find for the non-moving party.” Morrison v. Amway Corp., 323 F.3d 920, 924 (11th Cir. 2003) (citing Anderson, supra).  Further, the court is to view the facts and draw “all reasonable inferences in favor of the nonmoving party.” Moore ex rel. Moore v. Reese, 637 F.3d 1220, 1231 (11th Cir. 2011).

Herein, as set forth below, NCL’s Motion for Summary Judgment should be denied because there are genuine issues of material fact remaining as to 1) whether NCL breached the heightened duty of care applied in tender cases; 2) whether the Plaintiff was adequately warned of the hazard presented by the threshold that he tripped over without NCL’s required warning; and, 3) whether NCL was on actual and/or constructive notice of the dangerous and/or risk-creating condition.

3. There is a genuine issue of material fact remaining as to whether NCL breached the heightened duty of care applied to tender cases when its crewmembers failed to assist or instruct the Plaintiff while disembarking the tender.

NCL argues that it only owed a duty to use “reasonable” care when the Plaintiff was disembarking the tender. [D.E. 29, pp. 2, 11].  In reality, however, NCL owed a much higher duty of care that was akin to strict liability under general maritime law; and it is a duty that NCL breached when its crewmembers failed to assist or instruct the Plaintiff while he was disembarking the tender.

4. NCL’s heightened duty of care is akin to strict liability for tender cases like the Plaintiff’s case herein.

A ship owner’s duty is well settled under maritime law pursuant to the seminal case of Kermarec v. Compagnie Generale Transatlantique, 358 U.S. 625 (1959).  In Kermarec, the United States Supreme Court held that the owner of a ship owes the duty of exercising reasonable care under the circumstances of each case. Id. at 632.  Expanding on that duty, multiple circuits – including the Eleventh Circuit – have held that “[t]he extent to which circumstances surrounding maritime travel are different from those encountered in daily life and involve more danger to the passenger, will determine how high a degree of care is reasonable in each case.” Keefe v. Bahama Cruise Line, Inc., 867 F.2d 1318, 1322 (11th Cir. 1989) (citing Rainy v. Paquet Cruises, Inc., 709 F.2d 169, 172 (2d Cir. 1983)).

Thus, the more a situation is unique to maritime travel and/or involves danger to a passenger, the higher the ship owner’s duty is, under binding precedent.  The relevant inquiry is this: whether someone would encounter the same hazard, under the same circumstances off of a boat or ship.  Herein, it is axiomatic that the practice of tendering, which by its very definition requires the use of boats, is wholly unique to maritime and the cruising experience. [Exhibit 1, Page 28, Line 13 – Page 30, Line 3].  Thus, tendering is subject to the highest degree of care in the sliding scale between reasonable care and strict liability explained by the Court in Rainy.

Because of the unique dangers associated with tendering, the law is well settled that “‘[a] carrier that contracts to take a passenger on a cruise stopping at a designated foreign port has a duty if the vessel anchors in that harbor to provide him with safe transportation, under adequate supervision, to and from the dock.’” Samuelov v. Carnival Cruise Lines, Inc., 870 So. 2d 853, 855 (Fla. 3d DCA 2003) (citation omitted) (alterations in original) (emphasis added).  Notably, the word “reasonably” is not used before “safe” in the Samuelov opinion.  Furthermore, “[b]ecause ‘a passenger cruise ship entices people aboard with the promise of stopovers in exotic ports, the ship owner must see to those passengers’ safe embarking and disembarking in each such port.’” Samuelov, 870 So. 2d at 8556 (citing Isham v. Pacific Far East Line, Inc., 476 F.2d 835, 836 (9th Cir. 1973)) (emphasis added).

The case relied on by the Third District Court of Appeal in SamuelovIsham v. Pacific Far East Line, Inc. – specifically noted that the basis under which a plaintiff establishes a duty upon the ship owner “is the long-established rule that embarking and disembarking are a part of the voyage which the shipowner agrees to provide.” Id. at 836.  It went on to specify that the required degree of care is quite high, as follows:

Where a passenger or cruise vessel puts into numerous ports in the course of a cruise, these stopovers are the sine qua non of the cruise. In such a situation, the shipowner has a duty to exercise a high degree of care in seeing to the safe embarking and disembarking of the passengers.

….

Regardless of other factors, any vessel which engages in the carriage of passengers for hire has a duty to provide for embarking and disembarking at the beginning and end of the voyage. In so providing, he must exercise a high degree of care. Similarly, where, as in Lawlor, supra, a passenger cruise ship entices people aboard with the promise of stopovers in exotic ports, the shipowner must see to those passengers’ safe embarking and disembarking in each such port.

Isham, 476 F.2d at 836-37 (emphasis added); see also Sullivan v. Ajax Navigation Corp., 881 F. Supp. 906, 908-09 (S.D.N.Y. 1995) (“It is well settled that a common carrier generally owes a high duty of care to provide its passengers with safe transportation under adequate supervision to and from a dock or pier…. Such duty extends at least to the point of embarkation and debarkation. It does not cease at each port of call where the passengers are free to disembark. Rather, it is owed for the extent of the voyage.”) (emphasis added); Lawlor v. Incres Nassau Steamship Line, Inc., 161 F.Supp. 764, 767 (D. Mass. 1958) (holding same).

Accordingly, based on the foregoing case law, on the date of the subject incident, NCL had a heightened duty of care in seeing to the safe embarkation and disembarkation of the Plaintiff at the scheduled port of call of Great Stirrup Cay.  In fact, pursuant to binding precedent (Keefe), NCL’s duty of care was so high that it was akin to strict liability because tendering is unique to maritime and because passengers are subject to increased danger when embarking/disembarking tenders.

5. NCL’s crewmembers were required to assist and provide instructions to the passengers embarking/disembarking the ship’s tender, including the Plaintiff.

Applying the above heightened duty of care herein, a review of the undisputed facts makes clear that NCL’s crewmembers did not provide any instruction or assistance to the passengers disembarking the tender, including the Plaintiff.

It is undisputed that NCL requires at least one crewmember to be stationed at the gangway aboard its ship’s tenders when passengers are embarking and disembarking the tenders. [Exhibit 1, Page 14, Line 10 – Page 15, Line 4; see also Exhibit 3, ¶16: “It is Norwegian’s policy and procedure to have crewmembers stationed on both sides of a gangway during tender operations”].  It is also undisputed that the crewmember(s) stationed at the gangway are required to provide assistance to the passengers embarking and disembarking ship’s tenders. [Exhibit 1, Page 15, Lines 1-19; Page 21, Lines 1-18; Page 40, Lines 12-21; Page 51, Line 19 – Page 55, Line 4; see also Exhibit 3, ¶16].  Those crewmembers are also required to give passengers verbal warnings to “watch their step” as they transition up from the deck of the tender to the gangway leading to the cruise ship. [Id.; see also Exhibit 3, ¶17].

Despite the heighted duty and requirement to assist and warn passengers, however, the uncontested evidence and testimony show that the crewmembers stationed near the gangway on the date of the subject incident failed to give any instructions or provide any assistance to the passengers disembarking the ship’s tender, including the Plaintiff.  First, NCL’s surveillance video depicting the tender operations on the date of the subject incident – including the Plaintiff’s fall – conclusively shows that the crewmembers never provided the Plaintiff any physical assistance.  Even NCL’s Corporate Representative admitted that, based upon the surveillance video, the crewmembers stationed near the gangway never extended their hand to the Plaintiff to assist him in crossing the gangway. [Exhibit 1, Page 55, Lines 5-14].

Second, Plaintiff’s testimony confirms what is depicted in the surveillance video.  Pursuant to the Plaintiff’s testimony, the crewmembers near the gangway did not assist the Plaintiff while he was disembarking the tender. [Exhibit 157, Lines 22-24].  Despite the instructions that NCL alleges crewmembers are supposed to provide, the crewmembers near the gangway did not give the Plaintiff any instructions on the date of the incident. [Exhibit 2, Page 97, Line 21 – Page 98, Line 1; Page 98, Lines 18-21; Page 156, Line 25 – Page 158, Line 2].  Specifically, those crewmembers did not warn the Plaintiff to watch his step, nor did they direct his attention to the uneven floor surface between the tender and the gangway. [Exhibit 2, Page 97, Line 21 – Page 98, Line 1; Page 156, Line 14 – Page 157, Line 21].  Even NCL admitted that this was a failure on their part: “… my understanding is that the training is that they [the crewmembers stationed at the gangway] are to tell people to watch their step. If in this instance they didn’t tell him to watch his step, then they should have told him to watch his step.” [Exhibit 1, Page 56, Line 25 – Page 57, Line 4].

Third, multiple witnesses who were on the same ship’s tender with the Plaintiff further confirm that crewmembers 1) never provided the passengers with any assistance while they were disembarking the tender; 2) never provided the passengers any instructions while they were disembarking the tender; and, 3) never warned the passengers to watch their step as they were disembarking the tender. [See Exhibit 4]. These witnesses also confirm that the crewmembers were simply silent, and they were not paying attention to the passengers disembarking. [Id.]  Again, by NCL’s own admissions, the failure of the crewmembers to warn the passengers (including the Plaintiff) to watch their step was a breach of their required duty because they were supposed to provide such warning. [Exhibit 1, Page 56, Line 13 – Page 57, Line 4].

Importantly, NCL never identified the crewmembers near the gangway on the date of the subject incident.  As a result, NCL cannot offer evidence contrary to the evidence submitted.  In fact, NCL admitted that it does not know whether the crewmembers stationed near the gangway told the Plaintiff to watch his step before his fall, and thus, effectively admit that NCL breached its duty to the Plaintiff. [Exhibit 1, Page 56, Lines 8-12]. Thus, based on the above testimony from the Plaintiff and the witnesses, which are uncontested, NCL violated its heightened duty to see to the safe disembarkation of the Plaintiff at the scheduled port-of-call of Great Stirrup Cay.

As a result thereof, not only should NCL’s Motion for Summary Judgment be denied for these reasons, but summary judgment should be entered against NCL.[2]

6. There are genuine issues of material fact remaining as to whether the condition was “open and obvious” and whether NCL had a duty to warn the Plaintiff of the threshold.

Next, NCL argues that summary judgment is warranted because the threshold that the Plaintiff tripped over was an open and obvious condition for which NCL did not have a duty to warn.  This argument, however, runs counter to the heightened duty of care applied in tender cases as well as to NCL’s own policies and procedures.

As discussed, pursuant to well-settled general maritime law, NCL had a heightened duty of care in seeing to the safe embarkation and disembarkation of the Plaintiff at the scheduled port of call, Great Stirrup Cay.  Surely that included assisting and/or warning passengers, like the Plaintiff, who were disembarking its tender.  Indeed, as set forth above, it is NCL’s own policy and procedure to require crewmembers to provide assistance and warn passengers to “watch their step” as they embark or disembark the ship’s tender. [Exhibit 1, Page 15, Lines 1-19; Page 21, Lines 1-18; Page 40, Lines 12-21; Page 51, Line 19 – Page 55, Line 4; see also Exhibit 3, ¶¶16-17].  NCL’s argument that it did not have to warn the Plaintiff is therefore wholly contradicted by its own policies and procedures.

In addition, there are genuine issues of material fact as to whether the threshold was actually “open and obvious” to the Plaintiff, as NCL claims.  To be clear, the Plaintiff repeatedly testified in his deposition that he never saw the threshold before he tripped over it:

Page 82, Line 10:

Q:  When you first visually saw the gangway, what did you observe about the area?

A:  Well, the gangway, I’m looking at the gangway, you know, I’m not looking downward, I’m looking forward, you know. You’re not walking around with your head looking downward, you know, you look where you’re going, my surroundings. That’s what I was observing.

….

Page 83, Line 10:

Q:  Okay. So now, going back to my original question, when you came up the staircase and you saw the gangway for the first time, what was it that you observed? Describe that scene for me.

A:  I’m describing — describe it to you, I’m looking at the movement of the tender, and the gangway, because it’s not steady.

….

Page 90, Line 10:

Q:  … What do you recall about that gangway that you were concentrating on, as you got to the landing?

A:  The movement of the gangway and the tender, it’s — it was moving.

….

Page 94, Line 22:

Q:  As you were approaching the gangway, you were aware of the existence of the lip that you described?

A:  No.

Q:  No?

A:  No.

Q:  Okay. Did you look at the edge of the gangway as you approached it, to see where you would be stepping on to the gangway?

A:  I looked, you know, like you glimpse, glance, and still walking forward. And basically I’m concentrating on the movement of the tender and the gangway.

Q:  … So as you approached the gangway, you never became aware that there was this lip that you described earlier?

A:  No.

….

Page 156, Line 14:

Q:  Did you know that there was an uneven surface between the tender and the gangway?

A:  No.

Q:  Okay. Did you know that there was any change in level between the tender and the gangway?

A:  No.

[Exhibit 2, Page 82, Lines 10-17; Page 83, Lines 10-17; Page 90, Lines 10-16; Page 94, Line 22 – Page 95, Line 18; Page 156, Lines 14-23] (emphasis added).

The above testimony makes clear that the Plaintiff never saw the change in level between the tender and the gangway before he tripped.  It also makes clear that the conditions surrounding his accident were inherently dangerous, as evident by his testimony that the tender and gangway were not steady due to the movement of the ocean.  In addition, the Plaintiff unequivocally stated that he would have been able to step up onto the gangway if the crewmembers had stopped him and directed his attention to the edge of the gangway. [Exhibit 2, Page 158, Lines 10-17].

Therefore, contrary to NCL’s arguments, there are genuine issues of material fact as whether the threshold was an “open and obvious” condition, whether the conditions surrounding the incident were sufficiently dangerous such that a warning was necessary, and whether the accident resulted from NCL’s negligence in its failure to assist/warn.

Furthermore, the cases that NCL relies on for the proposition that it did not need to warn the Plaintiff[3] are easily distinguishable to this case.  First of all, none of the cases involves a ship’s tender, which triggers a ship owner’s heightened duty of care akin to strict liability.  Second, NCL’s reliance on non-maritime cases[4] is misplaced because, as stated above, the practice of tendering is wholly unique to maritime and the cruising experience.

The fact remains that NCL itself required its crewmembers to be stationed near the gangway aboard the ship’s tender for the purpose of assisting and warning passengers during the embarkation/disembarkation process.  The failure to do so is evidence of negligence and precludes summary judgment in NCL’s favor.

7. There is a genuine issue of material fact remaining as to whether NCL had actual and/or constructive notice of the dangerous and/or risk-creating condition.

NCL’s last argument in support of its Motion for Summary Judgment is that the Plaintiff has failed to demonstrate that NCL had actual or constructive notice of the complained-of condition.  This argument also fails because there is sufficient evidence showing that NCL had actual and/or constructive notice of the dangerous and/or risk-creating condition through: 1) the inherent dangers in embarking/disembarking tenders, 2) NCL’s own policies and procedures requiring assistance and warnings, and 3) a prior incident with substantially similar facts as the ones at issue herein.

Specifically, the potential danger involved in the process of embarking/disembarking tenders is self-evident considering that passengers are onboard a small vessel (the tender), boarding another vessel (the cruise ship), using a gangway.  Meanwhile, the two vessels and the gangway are all moving in varying directions and at varying speeds according to the weather, the sea conditions and their varying sizes.  NCL is aware of this potential danger and the uniqueness of the hazards posed by tendering.  In fact, NCL’s Corporate Representative admitted that the movement of the ocean is at least part of the reason that it requires crewmembers to be stationed near the gangway aboard the ship’s tender for the purpose of assisting and warning passengers. [Exhibit 1, Page 32, Lines 8-12].

Furthermore, despite NCL willfully concealing at least one prior incident (by repeatedly denying the existence of prior incidents in both written discovery as well as deposition questioning), the Plaintiff was able to discover at least one other tender incident that occurred within the three-year period before the Plaintiff’s incident.  Specifically, pursuant to the very limited public information available to the Plaintiff, a passenger named Mary Jacobs was also involved in an incident where she sustained personal injuries while disembarking NCL’s tender on January 24, 2012.  As a result of those injuries, she sued the same Defendant herein – NCL – on June 21, 2013. See Jacobs v. NCL (Bahamas) Ltd., et al., Case No. 13-22818-CIV-King (S.D. Fla. 2013).  The Plaintiff’s incident at issue herein occurred on September 3, 2013.  The Plaintiff is also aware of an identical incident occurring approximately one month after the Plaintiff’s incident, which NCL also failed to disclose.[5]

Accordingly, contrary to NCL’s argument, there is sufficient evidence demonstrating that NCL was on actual and/or constructive notice of the dangerous and/or risk-creating condition.  At the very least, there are genuine issues of material fact remaining which preclude summary judgment in NCL’s favor.

WHEREFORE, for the foregoing reasons, this Honorable Court should enter an Order denying NCL’s Motion for Summary Judgment [D.E. 29] in its entirety.

RESPECTFULLY SUBMITTED,
LIPCON, MARGULIES,
ALSINA & WINKLEMAN, P.A.
Attorneys for Plaintiff
One Biscayne Tower, Suite 1776
2 South Biscayne Boulevard
Miami, Florida 33131
Telephone No.: (305) 373-3016
Facsimile No.: (305) 373-6204

By:  /s/ Jacqueline Garcell                          
JASON R. MARGULIES
Florida Bar No. 57916
JACQUELINE GARCELL
Florida Bar No. 104358

[1] Throughout the course of discovery, NCL denied on three separate occasions that there were any prior incidents involving passengers sustaining injuries as a result of embarking and/or disembarking tenders within three years before the Plaintiff’s incident.  The Plaintiff’s own investigation, however, revealed otherwise.  The Plaintiff filed a Motion for Sanctions concerning NCL’s failure to disclose the prior incident, which remains pending before this Honorable Court. [D.E. 26].

[2] The Plaintiff moved for summary judgment against NCL on October 3, 2014. [D.E. 28].

[3] Luby v. Carnival Cruises, Inc., 633 F. Supp. 40 (S.D. Fla. 1986); Cohen v. Carnival Corp., 945 F. Supp. 2d 1351, 1353 (S.D. Fla. 2013); Mendel v. Royal Caribbean Cruises, Ltd., No. 10-23398-CIV, 2012 WL 2367853 at *1 (S.D. Fla. June 21, 2012); and Esau v. U.S., 1979 A.M.C. 736 (S.D. Cal. 1979).

[4] Matson v. Tip Top Grocery Co., Inc., 9 So. 2d 366 (Fla. 1942); Aventura Mall Venture v. Olson, 561 So. 2d 319, 320 (Fla. 3d DCA 1990); Dvorak v. Holiday Inns of Am., Inc., 429 F.2d 54 (5th Cir. 1970); Gorin v. City of St. Augustine, 595 So. 2d 1062 (Fla. 5th DCA 1992).

[5] Exhibit 1, Page 68, Line 23 – Page 70, Line 24.