Another Norwegian Cruise Lines passenger’s injury lawsuit has been dismissed by a Florida Federal magistrate judge. NCL is certainly on a roll in successfully convincing judges to dismiss passenger claims. This is the second case we have reported this week (the first was Salazar v. NCL); it should be noted neither plaintiff was our client.

In the latest case, Karen Bujarski sued NCL for injuries she sustained as a passenger aboard the MS Norwegian Sky (“Sky”) in March 2014, with her husband and daughter.  She claims that during a late-night “White Hot” dance party conducted by NCL—with dim lighting, on Deck 11, near an operating Jacuzzi—she slipped and fell on a puddle of water, injuring her knee. She alleged that NCL should have closed the Jacuzzis, just as it had closed the swimming pools during the party, and that the ship failed to post any wet-floor signs. Ultimately, she underwent surgery for the injuries sustained in the fall, resulting in about $70,000 in medical expenses.

After the lawsuit was filed, NCL’s lawyers took Ms. Bujarksi’s deposition and then, based upon her testimony, filed a motion to have the entire case dismissed on the following grounds—also filing the Salazar dismissal as legal support:

  1. NOTICE—that NCL did not know about the puddle of water, so they did not have to warn her of it.
  2. OPEN and OBVIOUS—that the puddle was so obvious to Ms. Bujarksi, NCL did not have to do anything about it.  To me, this argument directly contradicts their Notice defense.
  3. NO CAUSATION—that even if NCL was negligent, it did not cause Ms. Bujarski’s alleged injuries.

The judge’s opinion stated that Ms. Bujarski did not prove that NCL had knowledge of the allegedly dangerous condition, and that NCL was therefore entitled to a judgment of non-liability as a matter of law; in other words, the judge kicked the case out of court before a jury ever got a chance to hear about it. Given this conclusion, the Court did not address NCL’s other two defenses.

However, summary judgments are not to be granted in cases involving disputed facts. In this case as well as many cases I have worked on, Federal Courts are supposed to view all the evidence and consider any inferences that can be drawn from that evidence in favor of the injured passenger—not the cruise line. Yet cases are routinely dismissed when passengers, their lawyers, and the facts fail to create just enough of “a genuine issue of material fact.”

Case after case also cites the frequently used phrase, “Hence, the mere existence of a scintilla of evidence in support of the non-moving party’s position is insufficient”; in other words, just a drop of evidence is not enough.

Many people who have been involved in cruise ship accidents and have suffered injuries believe they are automatically entitled to receive compensation from the cruise line. This is not true. First, the cruise line must not only be at fault (to some degree) for the injury or accident, but one must be able to prove that fault. Doing so really requires both elements, and proving the cruise line is at fault is far more difficult and expensive than most plaintiffs and lawyers believe.

Cruise-line defense lawyers and judges who grant summary judgment like to include this very important line when justifying the dismissal of an injured passenger’s claim: “A carrier by sea does not serve as an insurer to its passengers; it is liable only for its negligence” . . . meaning that under Federal Maritime law, an injured passenger must prove the cruise line is responsible by establishing the following four elements:

(1) that defendant owed plaintiff a duty;

(2) that defendant breached that duty;

(3) that this breach was the proximate cause of plaintiff’s injury; and

(4) that plaintiff suffered damages.

The care that the ship owner owes a passenger is the duty to provide “reasonable care” under the circumstances, which has been defined repeatedly as being able to prove that the cruise line either knew or should have known of the “risk-creating condition”—such as a wet floor, steep threshold, or another factor, like a spill—that caused a passenger’s accident.

Under maritime law there are two ways to show the cruise line knew about a condition: “actual notice,” when the cruise line had previously been made aware of a dangerous condition, such as repeated incidents of passengers slipping on a wet step; or “constructive,” where the condition existed for such a period of time that the ship owner should have known about it.

The court homed in on one crucial fact—“notice ”—in dismissing the case, stating that the plaintiff was unable to prove that NCL knew about the deck’s being wet. Without the benefit of access to the entire file, I wonder what evidence if any was produced to show that NCL knew about the puddle or the slippery nature of the wet deck.

A quick review of the docket indicates that the plaintiff’s entire case was based upon the legal theory that NCL created the dangerous condition by not shutting off the Jacuzzi. Sadly, this was not enough as the court differentiated this case by claiming it was not a foreign-substance-spill case, but a case of created danger—a legal technicality that proved fatal to the claim and ultimately provided the basis for the Court’s dismissal.

This case highlights the complexity involved in winning cruise ship cases on behalf of injured passengers. Let’s be clear: both this claim and the Salazar case were dismissed before the cases ever reached a jury. Who knows whether or not a jury would have agreed in the end with the cruise line? We will never know because of the technical and sophisticated legal defenses employed by the cruise lines and their very talented and experienced defense counsel.

Involved in Cruise Ship Accidents Anywhere in the World

If you have sustained an injury on a cruise, we recommend that you consult with an aggressive and experienced  maritime accident law firm. Aronfeld Trial Lawyers has successfully represented injured passengers in claims since 1991. If you have a potential case, call our office today and speak with one of our cruise personal injury lawyers. You can call us toll-free at 1-866-597-4529 or 305-441-0440, reach us via SKYPE or FACETIME, or simply email us at [email protected].

We are ready to help you hold the cruise ship accountable for your lost wages, medical expenses, loss of enjoyment of the cruise, transportation reimbursement, and pain and suffering. Call us today.

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