Thomas Frasca’s slip and fall on a wet and slippery Norwegian Cruise Line deck has resulted in far more than an injury and a lawsuit against a cruise line. It marks a potential shift in the paradigm that the cruise industry has cowered behind for more than 30 years. Mr. Frasca slipped and fell on wet deck shortly after boarding an NCL cruise ship in Hawaii, detaching his right hamstring. The injury resulted in a painful surgery and recovery, and according to his deposition testimony, significantly impaired mobility and “a tremendous amount of social anxiety,” which he claimed affected his personal and professional relationships.
He sued NCL, alleging that it was negligent in the manner in which it maintained the deck and failed to warn Mr. Frasca of the deck’s slippery condition, which he initially believed came from a leaking overhead pipe. NCL moved for summary judgment, claiming it had no duty to warn Mr. Frasca of the deck’s slippery condition. Summary judgments can be granted only when it can be shown that there is no genuine issue of material fact for a jury to decide, and therefore the case should be dismissed by the trial judge, or in this case the magistrate.
As is typical with these cases, particularly with NCL, specifically in this case a Federal Magistrate Judge in Miami agreed with the cruise line and dismissed Mr. Frasca’s entire case.¹ There was where this case crossed the Rubicon; Mr. Frasca appealed. When cruise lines lose cases and the plaintiff appeals, there is often an offer to simply walk away from the case, and dejected and disappointed claimants frequently accept the “largesse” of these offers because they are fearful that the cruise line will “come after them” for its costs and attorney’s fees as reimbursement. This is called a Motion to Tax Costs.
As a result of these walkaway offers, while the plaintiffs often return home and go on with their lives, the cruise lines get to keep intact the pile of case law they have on their side to use against the next dozen, hundred, or thousand claims, to get those dismissed as well. In other words, the failure to challenge the prevailing case law costs not just the plaintiff in the particular case her day in court, but also all those who find themselves in similar situations involving injury by slipping on a wet cruise ship deck.
Mr. Frasca and his lawyers didn’t quit, and the reward for their audacity in persevering is a shift in the case law that will help many other people who are injured when a cruise line puts its profit ahead of passenger safety. Miraculously, the plaintiff prevailed on appeal to the 11th Circuit Court of Appeal, the appeal court that has jurisdiction over these kinds of court orders coming from the Federal Court in Miami.
The magistrate judge had granted NCL’s motion for summary judgment motion on several grounds. Initially, Mr. Frasca had believed that the water that made the deck slippery had come from a leaking pipe, but as the litigation progressed, it became clear that the water on the deck resulted from precipitation. In dismissing the complaint, the magistrate’s order cited the fact that Mr. Frasca never amended his complaint to change his theory of liability from the leaking pipe to the precipitation.
Secondly, the district court concluded that since Mr. Frasca admitted to having seen that the deck was wet before he slipped, NCL had no legal obligation to warn him of such an “open and obvious” condition. Even though one would imagine that the cruise line would have a far greater fund of knowledge about the slippery nature of a wet deck, the magistrate found that Mr. Frasca had failed to produce sufficient evidence that NCL actually knew that its deck was dangerously slippery when wet.²
In appealing the magistrate’s decision, Mr. Frasca argued that the court was mistaken in dismissing his case because (1) he had no duty to correct his initial allegation by amending his complaint as to where the water on the deck had come from; (2) there was record evidence of material issues of fact that should have been decided by a jury, not a judge; (3) the
dangerously slippery nature of the deck was open and obvious; and (4) he did not plead a claim for failure to properly maintain the deck surface.
When an appellate court reviews a district court’s granting of a defendant’s motion for summary judgment, they have to find if there is “clear error” in the ruling, and the plaintiff is to be given the benefit of the doubt concerning any disputed fact.³ Most importantly, dismissing an entire case on summary judgment is improper if the evidence is such that a reasonable jury could return a verdict for the plaintiff.4
Federal Maritime Law and Accidents onboard a Cruise Ship
Passenger slip and fall claims that arise aboard cruise ships are governed by Federal maritime law whenever the accident occurs on navigable waters, has the potential to disrupt maritime business, and the activity (in this case that of passenger cruise ships) has a substantial relationship to a traditional maritime industry.5
What Do I Have to Prove to Win my Case Against a Cruise Line?
In order to win a case against a cruise line, the injured passenger has to prove the following four elements: 6
(1) the defendant cruise line had a duty to protect the plaintiff passenger from a particular injury;
(2) the defendant cruise line breached that duty;
(3) the breach actually and proximately caused the plaintiff’ passenger’s injury; and
(4) the plaintiff passenger suffered actual harm.
Reasonable Care Under the Circumstances
Cruise lines have a legal obligation to provide their passengers “reasonable care under the circumstances.” Therefore, in order to win a case against a cruise line where someone is hurt, one has to prove that the cruise line’s behavior was unreasonable under the circumstances. Courts have repeatedly held that reasonable care requires that the cruise line actually knew or should have known of the risk creating the dangerous condition, which includes dangers that are hidden.
Failure to Warn
Since the watershed case of Luby v. Carnival,7 courts have repeatedly ordered that cruise lines do not have to warn of dangers that are open and obvious. This ruling has been repeatedly used by cruise lines and judges as a basis to have case after case dismissed. However, cruise lines do have a responsibility to warn their passengers of dangers that are hidden and not open and obvious.
In Mr. Frasca’s case, NCL’s cockamamie yet apparently persuasive argument to the magistrate in its motion for summary judgment was that it did not know about the danger of the wet deck and that the deck’s wet and slippery condition would have been open and obvious to Mr. Frasca. How it could be a danger that is both unknown yet open and obvious at the same time is mind boggling. To defeat NCL’s conflated motion, all Mr. Frasca had to do was show there is are disputed facts, namely that NCL either knew or should have known of the deck’s slipperiness and whether or not that dangerous condition was “open and obvious.”
These questions have to be resolved under the standard of what a reasonable person would perceive and know. This means that when analyzing the open-and-obvious defense, courts are not looking at what the particular person subjectively perceived but what an average reasonable person would or should have known. I find this to be particularly upsetting as the judge will be the decider of what he or she thinks is reasonable, rather than relying on a jury to make this determination.
Therefore, in Mr. Frasca’s case and cases like his, the question is, would a reasonable person have known that the deck was wet and appreciate its slickness? The court in analyzing this case found that since the deck was well lit, there was a heavy fog, there were visible puddles of water on the deck, and the deck was wet and shiny, that a reasonable person would, through the use of “ordinary senses,” have concluded that the deck was wet.
But that does not answer the question about the deck’s slippery condition. Mr. Frasca hired an expert, who tested the deck and opined that it became unreasonably slippery when wet, meaning that a jury could conclude that while the deck was obviously wet, its slipperiness was a hidden danger. This was bolstered by the testimony of Mr. Frasca’s travel companions, who stated that they also slipped but did not fall on the wet deck. In conclusion, the appeal court found that the deck’s slippery condition created a material fact that should have precluded summary judgment.
NCL’s second argument was that it had no idea that its wet deck was a slipping hazard and therefore had no duty to warn Mr. Frasca. Mr. Frasca offered (1) NCL’s safety video. which was played on the Defendant’s in-room television service and warned passengers that the ship’s decks could be “very slippery”; (2) testimony that there were prior slip and falls on the same surface; and (3) an expert report concluding that Defendant’s decks did not meet industry standards for how slippery a cruise ship deck should be.
The appellate court addressed only the first piece of evidence, the safety videos, and found that NCL’s safety video for the Pride of America, which played on television sets in passenger cabins, warned passengers that “outside decks will get wet from salt spray and sea air and can become very slippery,” implying that the cruise ship operator had “actual or constructive knowledge” that the deck could be slippery and therefore dangerous when wet. Most importantly, it follows that the existence of the safety video warning of the decks’ slipperiness when wet is enough to withstand summary judgment as to Defendant’s notice8. In summary, the appeal court found that the court had erred in dismissing Mr. Frasca’s case.9
This spectacular result allowed Mr. Frasca to continue with his litigation, which as of January 2017 is still pending. This means that this simple slip and fall case aboard an NCL ship has been litigated in Federal court for nearly five years. This is an epic legal battle, and we wish Mr. Frasca and his team of talented attorneys the very best and congratulate them on the audacity of their perseverance.
Suing a Cruise Line
Suing a cruise line is a complex legal process that should be handled by an experienced maritime injury lawyer. If you have been injured on a cruise ship, we recommend that you contact a lawyer who knows how to fight the cruise lines. Our Miami personal injury law firm litigated cases and resolved claims on behalf of people from around the world who have been injured on cruise ships. We offer free initial consultations, call us at 305-441-0440, or toll-free at 1-866-597-4529, or via email at [email protected], SKYPE, or FACETIME. Call us today–we are ready to help you recover money for your injury, lost wages, medical bills, and travel reimbursement.
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1 The parties had agreed to have a magistrate decide this issue. Electing to have a magistrate rather than a trial judge make this ruling is an option that is available when both parties to a lawsuit agree. I do not believe that it altered the outcome.
2 The Magistrate also ordered that Mr. Frasca’s negligent maintenance claim be dismissed for lack of evidence.
3 “We review de novo a district court’s grant of summary judgment, resolving all reasonable factual disputes in favor of the non-moving party.” Liebman v. Metro. Life Ins. Co., 808 F.3d 1294, 1298 (11th Cir. 2015).
4 Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).
5 Doe v. Celebrity Cruises, Inc., 394 F.3d 891, 900 (11th Cir. 2004) (citing Jerome B. Grubart, Inc. v. Great Lakes Dredge & Dock Co., 513 U.S. 527, 534, 115 S.Ct. 1043, 130 L.Ed.2d 1024 (1995)).
6 Chaparro v. Carnival Corp., 693 F.3d 1333, 1336 (11th Cir. 2012).
7 Luby v. Carnival Cruise Lines, Inc., 633 F.Supp. 40, 41 (S.D. Fla. 1986), aff’d, 808 F.2d 60 (11th Cir. 1986) (unpublished)).
8There is also testimony that NCL warned passengers about the decks’ slippery nature during a safety drill on the first day of the cruise. Although, Mr. Frasca did not cite this testimony in support of his argument regarding NCL’s prior notice of the dangerous wet deck condition, the court found that it was evidence of NCL’s prior knowledge, just as like the safety video.
9The Court also reversed the magistrate’s order granting summary judgment on the improper maintenance claim and the order granting NCL’s motion to tax costs against Mr. Frasca.
