One of the single most important pieces of evidence that can and should be used in litigating an accident case against a cruise line–like Carnival, Royal Caribbean, or Norwegian–comes from the closed circuit television (CCTV) that most major cruise lines have installed onboard their ships. The existence of CCTV footage, and what it shows, is often hotly contested in these types of cases. Carnival and MSC, for instance, repeatedly claim they do not have CCTV footage, even when there are clearly video cameras identified at or near the scene of a slip, trip, and fall or other type of incident. Royal and Norwegian have the videos, but often produce edited versions with low quality.
The reason the CCTV footage is so important in a slip and fall case is not just to prove that the passenger actually fell and was hurt, but to show how long the alleged dangerous condition, such as a spilled liquid or broken handrail on a staircase, had existed. This is vitally important to prove that the cruise line either knew or should have known about the dangerous condition that caused the accident. Unfortunately, getting hold of this video from defendant cruise lines almost always requires a lawsuit to be filed and some legal jostling between our law firm and the cruise line, often with intervention from a federal judge or magistrate.
Recently in a case against Royal Caribbean Cruise Line, which was handled by another law firm that sues cruise lines, an injured passenger tried to have RCCL sanctioned for destroying CCTV footage pertinent to that cruise ship passenger’s accident lawsuit.¹ The case involved the Plaintiff’s claim that NCL destroyed evidence by failing to preserve the CCTV footage that would have depicted the scene of the accident. The incident occurred in Falmouth, Jamaica, when a passenger exiting the ship on a rainy day was injured on the gangway that led from the ship to the port. She claimed that the gangway was unreasonably slippery.
The passenger’s lawyer took the deposition of the ship’s Chief Security Office, Kenneth Moeller, who testified that, after interviewing the Plaintiff following the incident, he located and preserved a portion of the CCTV footage that depicted the accident as the Plaintiff described. He explained that the CCTV footage is ordinarily retained for only approximately two weeks, after which period the footage tapes over itself. Therefore, only the CCTV footage depicting the incident was preserved, but the remainder of the footage was not.
The plaintiff argued that Mr. Moeller’s decision to allow the CCTV to record over itself (except for the specific video clip of Plaintiff’s incident) destroyed evidence and constitutes “intentional bad-faith conduct.” Additionally, Plaintiff argued that RCCL should have anticipated Plaintiff would file a lawsuit against them for the accident and should have preserved the entirety of the gangway CCTV for the day of Plaintiff’s fall since RCCL will likely argue at trial that approximately 11,000 people crossed the same gangway as Plaintiff on the same day without getting hurt.
Without the CCTV footage² supporting Plaintiff’s allegation that rubber mats with drainage holes were placed on the gangway after her fall, it was difficult to assert when they were present. Therefore, the Plaintiff claimed that RCCL’s destruction of the remaining footage “cannot be explained absent an inference of bad faith.”
A Federal Magistrate heard this case, including Plaintiff’s argument that RCCL acted in bad faith by destroying the remaining portions of the video. The judge disagreed with the plaintiff and denied the request to sanction RCCL for failing to preserve the entire day’s CCTV footage.³
The judge found the preserved portions of the CCTV footage to be the evidence that was most material to Plaintiff’s claim, as those portions bolster her credibility as to the nature of the fall and show that she was trying to carefully walk down the gangway as it rained. Since RCCL produced that portion of the video, there cannot be bad faith even though it was undisputed that the remainder of the CCTV footage from the day of Plaintiff’s incident was destroyed by RCCL.
Specifically, the judge found that there was “no probative evidence” that RCCL intentionally destroyed the additional video to obstruct Plaintiff’s case. The judge determined that since the tape recorded over itself 14 days after the incident, long before Plaintiff filed her lawsuit against RCCL, there was no evidence of bad faith.
In order to prove that a cruise line has spoliated evidence by destroying the CCTV footage of an accident, a plaintiff must prove the following three elements4:
(1) that the cruise line had an obligation to preserve the CCTV footage at the time it was destroyed,
(2) that the CCTV footage was destroyed with a “culpable state of mind,” and
(3) that the destroyed evidence was “relevant” to the injured plaintiff’s case, such that the jury could find that it would support the claim.
In denying the Plaintiff’s motion for sanctions, the court assumed that RCCL did have a greater duty to preserve any and all possible CCTV footage that could possibly be used in the event of a lawsuit, for the hours before and hours after a particular incident. But even under that assumption, Plaintiff did not prove that RCCL’s security personnel acted with a “culpable state of mind” in making the onboard decision to preserve only a small segment of that footage. Moreover, the court found that the Plaintiff did not show that she had been materially prejudiced by the destruction of footage that does not show her fall, but rather shows how and if others did or did not fall before or after her.5
This case demonstrates the importance of the CCTV footage and should be instructive on how lawyers who sue cruise lines need to be aggressive in advising the cruise line to preserve the CCTV footage of more than just the incident itself, but a sufficient period of time to prove that the cruise line had notice of the dangerous condition.
Suing a Cruise Line for Negligence
Of course, this can happen only when the potential plaintiff hires the lawyer within a few days of the incident, which is why we recommend that if you are involved in an accident on your cruise, you contact our Miami cruise ship injury law firm as soon as possible after your incident. We provide free initial and confidential consultations to anyone who may have a potential claim. 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. We recommend that you contact us, if possible, from the ship, or at your next port, because the sooner we can begin our investigation and ensure that evidence like the CCTV is preserved, the more likely we will be able to help you get money from the cruise line to compensate you for your pain and suffering, medical expenses, lost wages, and transportation reimbursement.
Not all accidents aboard a cruise ship necessarily lead to cases. However, many do, but they are difficult if not impossible to prove without the appropriate evidence and the skill of an experienced maritime accident attorney. Since 1991, our firm has successfully sued cruise lines like Carnival, Disney, MSC, Holland America, Princess, Norwegian, Celebrity, Royal Caribbean, Regent, Oceania, and Silverseas. Our cruise ship accident law firm is located in Miami, Florida, near the corporate headquarters of Carnival, Royal Caribbean, Celebrity and Norwegian, and just a few minutes from the United States Federal Courthouse where the majority of these claims are required to be filed. Call us today–we are ready to help.
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1Janice Mitchell, Plaintiff v.Royal Caribbean Cruises, Ltd., Defendant.no Case No. 12-CV-22734-UU Signed 05/07/2013.
2The only other proof plaintiff had besides the CCTV footage was the affidavit of Essie Harmon, a fellow passenger.
3It is common practice for a federal trial judge to refer matters regarding discovery disputes such as this to a magistrate judge-which is what happened in this case by Order dated April 25, 2013, the Honorable Ursula Ungaro referred this Motion to the undersigned Magistrate Judge.
4Posely v. Eckerd Corp., 433 F. Supp. 2d 1287, 1315 (S.D. Fla. 2006) (quoting Zubulake v. UBS Warburg LLC, 229 F.R.D. 422, 430 (S.D.N.Y. 2004)), quoted in Eli Lilly and Co. v. Air Exp. Intern. USA, Inc., 602 F. Supp. 2d 1260, 1280 (S.D. Fla. 2009).
5Rowe v. Albertson’s, Inc., 178 Fed.Appx. 859, 861 (10th Cir. 2006) (affirming denial of spoliation sanctions where undisputed evidence showed that recycled videotape did not show plaintiff’s fall or the liquid on the floor).
