One of the most common types of cruise ship accidents our maritime injury lawyers investigate occurs when people trip or slip on steps on cruise ships. One reason this occurs so frequently is that most cruise ships put a protective nosing–made of a metal wear strip with a rubber strip down the middle of it—on the exterior lip of a step to protect the step from wear and tear. These nosings often encase lights, which are called tivoli lighting, and when they become loose, or deformed from use, they pose a significant tripping hazard–which can often result in people falling and breaking legs, arms, wrists, and sometime suffering severe head trauma and even brain damage.
Yet it seems that every day I read about another injured cruise ship passenger’s lawsuit being dismissed because the injured passenger is unable to prove that the cruise line had “notice” of the dangerous condition that caused the accident.
For example, this week, in a case handled by another cruise ship accident law firm, Myrna Taiariol reportedly slipped on a step aboard MSC’s Divina, while leaving the Pantheon Theatre, causing her to fall and break her ankle. She filed a lawsuit against the cruise line and asserted one count of negligence. In her complaint she asserted that MSC negligently failed to warn of the step’s “dangerous, slippery, and unsafe condition.”
According to the court’s records, Ms. Taiariol and her husband had attended several shows at the theatre while aboard the Divina. During one show, Ms. Taiariol sat in the front row of the balcony, which required her to take a step up to reach her seat. The nosing on the step projected slightly beyond and extended entirely across the outside edge of the step. The step was illuminated by a strip of Tivoli lights running along its edge. While attempting to exit the theater after the show, Ms. Taiariol slipped on the metal strip as she stepped down from the step, causing her to fall and break her right ankle.
Of course, MSC moved for summary judgment, arguing that the condition of the step was “open and obvious.” Technically, summary judgments should be granted only when there is “no genuine dispute as to any material fact.” In reality courts grant them on a seemingly daily basis in cruise ship cases, ending the injured passengers’ claims before they ever reach a jury.
Also unsurprisingly, a Federal District Court Judge in Miami granted the motion, dismissing her entire case before she could ever present her facts to a jury. Ms. Taiariol appealed the dismissal to the Eleventh Circuit Court of Appeals, which oversees Miami’s Federal District Court rulings. The Federal Appellate Court agreed with the trial judge’s dismissal, and here’s why:((Myrna Taiariol, Plaintiff-Appellant, v. MSC Crociere S.A., a foreign corporation, Defendant-Appellee. No. 16-12357 Non-Argument Calendar Filed (January 27, 2017). Appeal from the United States District Court for the Southern District of Florida, D.C. Docket No. 0:15-cv-61131-KMM.))
FEDERAL MARITIME LAW IN SUITS AGAINST CRUISE LINES
Federal maritime law governs the liability of a cruise ship for a passenger’s slip and fall. When analyzing a maritime personal injury case, courts must rely on the general principles of negligence law.((Chaparro v. Carnival Corp., 693 F.3d 1333, 1336 (11th Cir. 2012).)) That legal standard requires that all cruise lines owe their passengers “a duty of reasonable care under the circumstances.” However, for there to be a viable personal injury case against a cruise line, there first must be proof that the cruise line either knew about the dangerous condition or should have known about it, before the fall occurred.
To make it more difficult for injured passengers, cruise ship operators have a legal duty to warn only of known dangers that are not open and obvious. In addition, for passengers injured during cruises to win their cases, they must prove each of the following elements:
(1) the defendant cruise line had a duty to protect the person from a particular injury;
(2) the defendant cruise line breached that duty;
(3) the breach actually and proximately caused the injury; and
(4) the person suffered actual harm.
Ms. Taiariol contends that a genuine issue of material fact exists with respect to whether the slippery condition of the nosing was open and obvious. However, the court found that even if it accepts that argument, summary judgment was proper because she failed to provide any evidence that MSC had notice of any risk-creating condition.
This was surprising since there was evidence that MSC had notice of the risk-creating condition. In this case, the existence of a “watch-your-step” sticker on the nosing of the step on which she slipped provides evidence that the defendant had notice of the nosing’s slippery condition.
The Similar Incidents
The similar incidents that Ms. Taiariol presented to the court were similar only to the extent that a person fell while on board one of the MSC’s cruise ships, not that those incidents involved falls caused by the loose stair nosing. That evidence is clearly not enough to create an issue of fact as to whether MSC had notice of the step nosing’s slippery condition. Federal Courts have made it clear Unfortunately, Ms. Taiariol failed to do this. She did, however, produce evidence of other accidents where passengers allegedly fell down a step or steps, such as because there was no handrail or the passenger was distracted by a crew member; tripped on electrical cords, on camouflaged steps, or on other objects; or slipped on marble stairs or on steps that were not adequately marked. The court found that these were not “substantially similar,” and she did not have any proof of anyone’s slipping or tripping on the nosing of one of MSC’s ship’s steps.
It is not as though she did not try. She took the deposition of MSC’s Safety Officer, who testified that he researched the Divina’s accident reports, but found “no accident similar to the one that happened to Ms. Taiariol in the theater.” He testified that he recalled three or four other persons slipping in the Pantheon Theatre in the three years before Ms. Taiariol’s incident, but that those slips and falls did not involve a step nosing.
DEFECTIVE NOSING ON CRUISE SHIP STEPS
Ms. Taiariol also tried to argue that the step’s nosing was defective and “worn down” belthat to use similar incidents to prove that a cruise line had notice, the incidents must be substantially similar.((
Jones v. Otis Elevator Co., 861 F.2d 655, 661–62 (11th Cir. 1988).
)) This means that, while Ms. Taiariol was not required to show that another passenger slipped on the same step while in the same theater of the same ship during the same trip, she had to provide a least proof that another person, while aboard one of the MSC’s cruise ships, slipped on the nosing on at least one of the ship’s steps.
ow the metal strip, but she did not produce any evidence to support this argument. In fact, in his deposition, the Safety Officer testified that the nosing rubber strip was slightly worn below the metal strip, but was not defective, nor different from the nosing of other steps. Based upon this testimony, the Court concluded that there was no evidence that indicated that MSC either knew or should have known that the step nosing was dangerously slippery or even more slippery than any other step’s nosing.
In fact, the real question is not whether MSC had notice of an object or its physical specifications, but whether MSC had notice of a “risk-creating condition.” As a result, that evidence did not create an issue of fact as to whether MSC had notice of the nosing’s slippery condition.
WATCH-YOUR-STEP SIGNS AND STICKERS
The court also found that the “watch-your-step” sticker on the step did not raise an issue of fact as to whether MSC had notice of the nosing slippery condition. I disagree with the court’s rationale. I think if MSC put a warning sign there, it is an indication it knew of a dangerous condition requiring a warning. Instead, the court reasoned that the sticker served to caution persons on the ship that the step was there, not that it was intended to warn passengers that the nosing may be slippery.
That’s a pretty narrow distinction, but it illustrates just how difficult it is for injured passengers to get past most Federal Judges facing a defendant cruise line’s Motion for Summary Judgment. These cases are won or lost frequently in the discovery phase because without adequate proof, they will almost certainly be kicked out of court before they ever reach a jury.
CONSULT WITH A CRUISE SHIP ACCIDENT LAWYER TODAY
Our Miami personal injury law firm has nearly 30 years of combined legal experience representing injured people from around the world who have been involved in accidents while aboard a cruise ship. If you have been injured on a Carnival, Royal Caribbean, Celebrity, MSC, Norwegian, Disney, Holland America, Princess, or other cruise line–such as Oceania, Azamara, or Regent Seven Seas–contact our office today and speak with an experienced maritime accident attorney.
We offer free initial consultations to anyone who may have a potential claim against a cruise line. Call us today, toll-free at 1-866-597-4529, or locally at 305-441-0440, or reach us by email at [email protected] or SKYPE. Let our years of experience serve you. We get our clients money in damages for lost wages, medical expenses, transportation reimbursement, loss of the cruise, and pain and suffering. If you have had a slip and fall on a cruise ship, gangway, or excursion, or been the victim of sexual assault by another passenger or crew member, call our office today. We are ready to help.