I am sure that when Elizabeth Luby slipped and fell over 30 years ago aboard a Carnival Cruise ship and sued Carnival Cruise Line, she had no idea that her case would do more damage to the rights of injured cruise ship passengers than any other case in the history of modern maritime accident law. Her case, Luby v. Carnival, is cited as legal authority and precedent by virtually every cruise line in their motions to dismiss passenger injury cases. The Luby case, as it is known, has single-handedly deprived hundreds if not thousands of individuals of their day in court.
Carnival beat Mrs. Luby in her case, and they owe her a huge debt of gratitude as her case alone has probably saved them millions of dollars in settlements and judgments they otherwise might have had to pay people who have been hurt on their ships.
It all started with an innocent visit to her cabin’s bathroom, soon after boarding the Carnival Cruise Lines’ cruise ship Mardi Gras in 1984. The ship was still in port when Mrs. Luby decided to “freshen up.” As she entered the bathroom, she tripped and fell over the ledge, or “coaming,” that surrounded her shower. The shower curtain was drawn over the ledge, so she was unable to see it.
She was injured in the fall and sued Carnival Cruise Line, claiming that it was negligent for failing to warn her of the concealed ledge. It is important to note that when she sued Carnival, she was asking for a jury to decide her case, not a judge. Carnival moved for summary judgment, which is a legal maneuver designed to have an entire case dismissed by the judge before a jury can ever hear the facts. The federal judge in Miami agreed with Carnival, and his order dismissing her case changed the “rules of the game” for suing cruise lines.
The judge–wedging himself between the injured Mrs. Luby and a jury–found that while she claimed that the shower curtain hid the ledge, the curtain created, in his view, a “border which, if anything, made the existence of the ledge obvious rather than concealed.” This was a crucial moment in the history of cruise ship accident litigation because the judge here decided what, in my opinion, is a question of fact–which is an issue that should have been decided by a jury–namely, “How hidden was the ledge?”
In support of his order dismissing her case, he relied upon Mrs. Luby’s testimony that she expected there to be a shower behind the curtain, and she did not expect the area behind the shower curtain to be level with the floor. Additionally, he opined that “it is a matter of common knowledge” that the shower stall needs to have ledges. Since Mrs. Luby had been a passenger on the very same cruise ship before, she would or should have been familiar with the fact that showers on cruise ships are equipped with ledges.
Because the judge ruled that the presence of the ledge behind the shower curtain was, or should have been, obvious to Mrs. Luby by the “ordinary use of her senses,” this phrasing–“ordinary use of her senses”–has been repeated by cruise line defense lawyers, and Federal judges eager to clear their dockets by dismissing passenger claims, to slit the throats of thousands of other cases. After the judge had ordered as a “matter of law” that Carnival was entitled to expect what Mrs. Luby should perceive as obvious to her by the ordinary use of her senses, he concluded that as a “matter of law” Carnival did not breach its legal duty of care to Mrs. Luby.¹
When he used the phrasing “matter of law,” he in essence created case law, which has had the same pummeling effect as if it were a law passed by Congress. Since Congress virtually never interferes with the cruise industry, there is not much to counteract the devastating effect of this decision, and 30 years of cases have since interpreted it and relied on it, to this very day. In fact, according to Westlaw, the Luby case has been cited, mentioned, or discussed in over 300 cases.
It is increasingly difficult–as the years pass and the number of cases that cite and rely on Luby continues to grow–to get around its damning language and invitation to hungry judges to rule beyond their roles as our legal referees by actively participating in the litigation, catapulting themselves from the bench to the jury room.
I view my role of advocate for those injured on cruise ships as obligating me to challenge this law by chipping away at it, creating small cracks that will eventually cause it to be no longer authoritative. The only way to do that is to reach beyond the trial judge to the appellate courts, which seems rarely to happen, as cruise lines often settle cases that are appealed, rather than risk the potential that an appellate court might finally see the madness of the Luby decision and its progeny.
SLIP AND FALL ON A CARNIVAL SHIP
Since 1991, our injury law firm in Miami has focused on the legal representation of those who have been hurt while on a cruise ship and in other personal injury cases, such as car accidents, slip and falls, dangerous drug cases, and medical malpractice. If you have a potential claim, we are ready to help. Call us today at 305-441-0440, or toll-free at 1-866-597-4529, or reach us by email at [email protected], SKYPE, or FaceTime, and speak with an experienced PI lawyer. We work on a strict contingency basis, which means we do not accept payment unless we are successful in winning or settling your case.
¹633 F.Supp. 40, United States District Court, S.D. Florida, Miami Division. Elizabeth Margaret LUBY and Michael Luby, Plaintiffs, v. CARNIVAL CRUISE LINES, INC., Defendant. No. 85–1597–CIV. April 25, 1986.