In this week’s article we examine three more cases reported in 2015 involving passengers who sustained physical injuries either on board a cruise ship or during a shore excursion. These cases cover a broad spectrum of legal issues raised in litigation involving cruise lines including a (1) Daubert analysis of an expert’s analysis of a passenger’s slip and fall descending a mid-ship stairway “when her shoe caught on the metal ‘wear strip’ on the nose of top stair” [Holderbaum v. Carnival Corporation, 2015 WL 5006071 (S.D. Fla. 2015)]; (2) liability for an accident wherein a disabled passenger’s scooter tipped over because of a ramp that pulled apart on board the cruise ship [Cox v. Princess Cruise Lines, Ltd., 2015 WL 5031900 (C.D. Cal. 2015)]; and a shore excursion during which a passenger (3) tripped and fell while visiting St. Maarten and ship’s medical personnel sending the injured passenger to a local hospital ill equipped to “provide necessary care and treatment” [Casorio v. Princess Cruise Lines, Ltd., 2015 WL 4594169 (C.D. Cal. 2015)]. We have previously discussed cruise law issues in Travel Law: Three Cruise Law Cases In 2015, eturbonews.com (3/31/2016); Travel Law: Ship board medical malpractice: A welcome sea change, eturbonews.com (11/19/2014); Travel Law: Immediate post-accident medical care, eturbonews.com (2/20/2014).
Travel Law Update
Terror Targets Update
In Steinmetz, University of the East: UE Manila is burning to the ground as we speak, eturbonews.com (4/2/2016) it was noted that “Tweets are talking about an assault on the University of the East (UE) in Manila, Philippines. Witnesses are talking about people with masks attacking the campus”.
In Italian tourism group halts all Egypt tours until student’s murder solved, eturbonews.com (4/2/2016) it was noted that “A non-profit Italian tourism association has decided to halt its travel activities in Egypt until the murder of Italian student Giulio Regeni is solved…The body of the 28-year-old PhD student, who was in Cairo conducting research on independent trade unions, was found with signs of torture by a roadside on the outskirts of Cairo…Egypt has vigorously denied claims that security forces were involved in Regeni’s murder. Last week Egypt’s police said they had killed four members of an alleged criminal gang it accused of robbing and kidnaping foreigners and that they later found the student’s passport and other belongings in the apartment of a sister of one of the suspects”.
Zika, Zika, Zika
In Tavernise, In Miami, Facing Risk of Zika With Resolve but Limited resources, nytimes.com (4/1/2016) it was noted that “Summer is coming, and the Aedes argypti will soon by buzzing around its usual haunts in the United States-mostly in the South and Southwest. But it is already here in South Florida, hatching from kiddie pools and rain-catching flowerpots, recycling containers and bottle caps. Scientists do not believe that the United States will have a Zika epidemic, but most agree that mosquitoes here will eventually acquire it and that could start infecting people, leading to local flare-ups”.
In McNeil, Obama Administration to Transfer Ebola Funds to Zika Fight, nytimes.com (4/6/2016) it was noted that “they would transfer $510 million originally intended to protect against Ebola to the Zika batter…a total of $589 million to the efforts to contain Zika”. See also: Kron, In a Remote Ugandian Lab, Encounters With the Zika Virus and Mosquitoes Decades Ago, nytimes.com (4/5/2016).
In Marrkoff & Mozur, China’s Companies Poised to Take Leap in Developing a Driverless Car, nytimes.com (4/3/2016) it was noted that “some argue that conditions in China are actually more favorable for quick adoption of driverless cars, in part because of more aggressive support from the national and local governments. And unlike in the United States, China never fully developed a romance with the open road and car ownership”.
Uber Driver Napped
In Mele, Uber Driver Napped as His Passenger Led Highway Chase, Police Say, nytimes.com (4/6/2016) it was noted that “A passenger got behind the steering wheel of an Uber car so that the driver could nap led the police on a highway chase in central New York, the State Police said. The passenger Mr. X 20, of the Bronx, hired the car to travel nearly 300 miles from Philadelphia to a college in Herkimer, N.Y.”.
Travel Law Article: Three More Cruise Law Cases
In the Holderbaum case the Court noted “This maritime negligence action arises from injuries Holderbaum allegedly sustained as a passenger aboard the cruise ship M/S Carnival Paradise…According to Holderbaum she was about to descend the main mid-stairway…when her shoe caught on the metal ‘wear strip’ on the nose of the top stair, causing her to fall down the stairs and suffer a lower leg and ankle injury. She contends that there is a gap between the bottom edge of the metal strip and the carpet that projects a sharp ‘lip’ toward passengers descending the stairway. Holderbaum retained an engineer and general contractor, Fore, to measure the stair landing, nosing and lip in question and to analyze the circumstances of (her) fall. Carnival moves to trike Fore’s expert report and preclude him from testifying at trial”.
“The admission of expert testimony is governed by Federal Rule of Evidence as explained and refined…in Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579 (1993) and Kumbo Tire Co., Ltd. V. Carmichael, 526 U.S. 137 (1999). Under this framework, district courts are charged with a gatekeeping function ‘to ensure that speculative, unreliable expert testimony does not reach the jury’.
“To fulfill its obligation under Daubert, a trial court engages in a three-part inquiry and considers ‘whether; ‘(1) the expert is qualified to testify competently regarding the matters he intends to address; (2) the methodology by which the experts reaches his conclusions is sufficiently reliable as determined by the sort of inquiry mandated in Daubert; and (3) the testimony assists the trier of fact, through the application of scientific, technical or specialized expertise, to understand the evidence or to determine a fact in issue’”.
Excluding Fore’s Testimony
“Carnival seeks to exclude all of Fore’s expert testimony for seven broad reasons: (1) Fore in unqualified to render some of his opinions; (2) Fore fails to meet the methodology standards of Daubert; (3) Fore’s opinion that the nosing fell below the standard of care is unsupported; (4) Fore’s opinion that the handrail fell below the applicable standard of care is also unreliable and unsupported; (5) Fore’s opinion that a lack of warning signs contributed ti Holderbaum’s fall is unsupported; (6) Fore’s testimony id not helpful to the trier of fact and (7) Fore’s opinions include improper and inaccurate conclusions of law”.
The Court’s Daubert Findings
The Court made the following findings. First “Fore is qualified to render certain opinions”. Second, “Fore meets Daubert’s methodology standards…It is clear that Fore engaged in an adequate scientific investigation of the incident itself, as well as investigating various scientific literature and vessel regulations”. Third, “Fore’s opinion of the nosing and the standard of care is supported”. Fourth, “Fore’s opinion that the handrail fell below the standard of care is supported by a sufficiently reliable methodology…even if the standards are non-binding…they still may be used by an expert ad presented to a jury in assessing the standard of care owed in a negligence case”. Fifth, Fore’s opinion that a lack of warning signs contributed to Holderbaum’s fall is unsupported by any scientific methodology…It is clear that Fore offers no reasoning to explain his jump in logic from the lack of warning signs to it being more likely than not that this incident would not have occurred”. Sixth, “Fore’s testimony is helpful to the trier of fact, but certain statements from his report should still be stricken”. And, seventh, “Fore’s opinions do not include improper or inaccurate conclusions of law”.
The Cox Case
In the Cox case the Court noted that “Plaintiff embarked on a fourteen-day round-trip cruise,,,aboard the Golden Princess… Plaintiff has a disability consisting of a below-the-right-knee leg amputation and she relies on a mobility scooter for transportation. Prior to embarking on the cruise, Plaintiff advised Defendant of her disability and of her need for a handicap accessible room. Defendant accommodated Plaintiff by placing her in a handicap, wheelchair accessible cabin with a balcony. To allow disabled passengers to access the balcony from the cabin, Defendant supplied a ramp that enables wheelchairs and mobility scooters to go over the cabin threshold and outside to the balcony…Plaintiff alleges that two days into her cruise… Plaintiff used the ramp to go out onto the cabin balcony. One her way back into the cabin, Plaintiff alleges that the ramp pulled apart, which caused Plaintiff’s mobility scooter to tip over, resulting in a displaced…fracture of Plaintiff’s right femur…Plaintiff alleges claims of negligence and strict liability against Defendant (which) filed the present Motion for Summary Judgment as to both claims”.
The Negligence Claim
“The elements of a negligence cause f action in an admiralty case are 1) the existence of a duty of care owed by the defendant to the plaintiff; 2) breach of that duty of care; 3) a causal connection between the offending conduct and the resulting injury (‘proximate cause’) and 4) actual loss, injury or damage suffered by the plaintiff…(As for duty) [A] a shipowner owes a duty of reasonable care to those aboard the ship who are not crew members…(As for breach) ‘The degree if care required is always that which is reasonable…One (of Plaintiff’s theories of breach) is that Defendant breached its duty of care to Plaintiff by supplying Plaintiff with an obviously unsafe ramp because the ramp consisted of two wedges that did not connect to each other or anything else, and one side of the ramp was placed on a surface with sufficient friction to hold that section of the ramp in place when used for its intended purpose…Plaintiff argues that because Defendant supplied and installed the ramp, Defendant was on notice of the ramp’s unsafe condition…Plaintiff’s admissible evidence is sufficient to create a genuine issue of material fact as to whether Defendant’s act of supplying Plaintiff with the unconnected ramp pieces and placing one of those ramp pieces on a hard plastic outdoor deck created a dangerous condition…that Defendant failed to take appropriate measures to mitigate”.
Strict Liability Claim
“Under strict liability, ‘fault lies in the placing of a defective product in the stream of commerce’ that, when ‘used in a reasonably foreseeable way’ injures the plaintiff…Defendant argues that as a matter of law, Defendant is not liable for strict product liability because Defendant did not and does not ‘sell’ the allegedly defective ramp. Defendant also argue that because the transaction…was primarily for a service, not a product, Defendant is excluded from liability for Plaintiff’s claim…The Court finds that Plaintiff does not supply any evidence showing that Defendant designed the ramp itself…
Because Defendant is not a ‘person engaged in the business of selling [the ramp at issue] for use or consumption’, Defendant is not subject to Plaintiff’s strict product liability claim asa matter of law”.
The Casorio Case
In the Casorio case the Court noted “Plaintiff alleges that Defendant’s negligence caused the death of her husband…the Casorio left Florida on a cruise aboard Defendant’s ship the Crown Princess (which visited the island of St. Maarten). While touring the island…Mr. Casorio tripped and fell, striking his head against a wall…Mr. Casorio went to the ship and was evaluated by its doctor (and advised) they should leave the ship and go to a local hospital on the island where a CT scan could be performed (which they refused to do)…(As) Mr. Casorio’s condition…worsened Defendant’s employees arranged for an ambulance to take him to the local hospital (where he was diagnosed with a subdural hematoma. Because) the island’s hospital was not equipped (to perform neurosurgery)…Casorio was flown to a Florida hospital, but the time he was admitted his ‘condition was too far gone and physical examination was consistent with brain death”.
The Plaintiff’s Claims
“Plaintiff contends that Defendant (and its employees) were ‘Negligent and careless in leaving [the Casorio] in a location which lacked the ability to provide necessary care and treatment and (2) in their failure to either provide Plaintiffs and/or [Mr. Casorio] with information so they could arrange for medical air transportation…’Plaintiff asserts five claims (1) a Death on the High Seas Act (DOHSA) claim; (2) a ‘personal injuries’ claim; (3) an infliction of emotional distress claim; (4) wrongful death claim; and (5) a survival claim”.
All Claims Dismissed
In dismissing all of plaintiff’s claims the Court noted, regarding the DOHSA claim and distinguishing Franza v. Royal Caribbean Cruises, Ltd., 772 F. 3d 1225 (11th Cir. 2014), that “Unlike Franza, plaintiff does not allege that the doctors or staff aboard Defendant’s ship caused any delay in Mr. Casorio’s treatment or that they made any mistakes in their diagnoses. Te sole mistake that Plaintiff alleges is the failure to secure transportation to the right type of medical facility. The Franza court did not suggest that ships have that kind of responsibility for their passengers’ well being. In fact (the Franza court) expressly conceded that there are limits to what a cruise line can do for an injured passenger…By contrast…there is direct authority for the proposition that a ship does not have a duty to secure medical transportation (citing Gliniecki v. Carnival Corporation, 632 F. Supp. 2d 1205, 1206 (S.D. Fla. 2009)).
Justice Dickerson has been writing about travel law for 39 years including his annually updated law books, Travel Law, Law Journal Press (2016) and Litigating International Torts in U.S. Courts, Thomson Reuters WestLaw (2016), and over 400 legal articles many of which are available at nycourts.gov/courts/9jd/taxcertatd.shtml. Justice Dickerson is also the author of Class Actions: The Law of 50 States, Law Journal Press (2016). For additional travel law news and developments, especially in the member states of the EU, see IFTTA.org.
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