Norwegian Cruise Lines (NCL) and their team of talented defense lawyers are absolute masters at having the lawsuits of people who claim to have been hurt on their ships dismissed from court, without paying a dime, by asking for summary judgment–a legal process that kicks case after case out of court before a jury is ever able to consider the facts of what happened.
I have practiced law for over 25 years, representing thousands of people who have been injured on a cruise ship from around the world. Sadly, it has become so commonplace to see cases dismissed, that when one survives a motion for summary judgment, it is cause for celebration.
Why Federal Courts are inclined to dismiss injured passenger claims
A multitude of factors impede plaintiffs in their pursuit of justice, the primary one being that the law governing these kinds of cases is federal maritime law, written and applied in favor of the cruise industry. Basically, the law requires that the cruise line have some previous knowledge or notice of the condition that caused the specific accident. The cruise lines are masters at obscuring that information and making it difficult if not impossible to prove that they had notice. It starts with the discovery process, which refers to the way the rules of civil procedure allow–or at least are supposed to allow–parties to investigate and discover evidence that will help them prove their cases. Equally as important, the discovery process should help plaintiffs defeat the dreaded motion for summary judgment that will surely be filed and almost universally granted.
For example, take the typical accident case against a cruise line brought by a passenger who slips and falls on a wet deck, staircase, or gangway. When the lawsuit is filed, the injured passenger and her lawyers do not know, for the most part, how long the substance had been on the deck before the passenger fell, nor for that matter what the substance was, nor how many people may have fallen before or after the passenger, much less how often and when the deck had been last inspected, repaired, or cleaned.
All that passengers most likely do know is that they are on vacation, enjoying themselves, when suddenly they slip, fall, and end up in the ship’s medical center with a broken arm, leg, pelvis, or worse. Of course, waiting for them in the medical center, often confronting them before or during their medical examination and treatment, are the ship’s security officers, trained to obtain out-of-context statements from the injured passengers about how, why, and where the accident occurred, which unbeknownst to the passenger will be used to impeach them should there be any inconsistencies in their later testimony when they eventually sue the cruise line.
On the other hand, the cruise line knows everything. It knows about the spill, the maintenance of the deck, prior falls, prior claims, how the deck was cleaned, who cleaned it, and why. Most of the cruise lines–NCL and RCCL especially–have CCTV footage of the entire cruise, which will be viewed and can show just how the spill got there and how long it had been there. Of course, they won’t preserve that footage, and in fact will often delete all but the most damaging portions of any CCTV footage, spoiling and destroying key evidence the passengers would need to successfully prosecute their case.
Recently a passenger broke his leg after slipping and falling on exterior Deck 13 of NCL’s Jewel, while walking to dinner with his family. He testified that his right leg slipped forward, causing him to catch himself with his left leg. (In a typical NCL defense, they blame people for tripping over their own feet when passengers claim to have slipped on a substance.) He testified that he did not see any puddle or liquid on the deck before he fell, but when he got up, he noticed that his clothing was soaked with a gooey, crystal-like substance, similar to margarita.
More than any of the other major cruise lines, NCL relies on CCTV footage to defend their cases (apparently only when they believe the footage is helpful to them). According to the CCTV footage in this case, an NCL crew member had been seen cleaning Deck 13 in the area where the Plaintiff’s accident occurred, approximately five minutes before the fall. That crewmember testified that he did not see any spills when he did his cleaning. Of course.
NCL moved for summary judgment to have the entire case dismissed. The legal standard that judges should apply when deciding a motion for summary judgment is whether or not the cruise line has shown that there is no “genuine dispute as to any material fact” and the cruise line is “entitled to judgment as a matter of law.”¹ That factual dispute must be the kind that determines the outcome of the case, i.e., how long the substance had been there, whether there was a substance at all on the deck, and if NCL should have known about it–rather than unimportant things like the day of the week when it happened. A motion for summary judgment should be denied if the evidence is such that a “reasonable jury could return a verdict” for the passenger. When considering a cruise line’s motion for summary judgment, judges are required to evaluate all the facts and evidence in a case, including every potentially disputed fact, in favor of the passenger, not the cruise line.
At the summary judgment stage, the trial judge’s task is not to “weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial.”² Unfortunately, in reality, this rarely seems to be enough to stop trial judges from dismissing injured passengers’ cases most of the time.
Since cruise ship cases are governed by general maritime law, cruise lines do have a legal responsibility to “exercise reasonable care to those aboard the vessel who are not members of the crew.”³ However, the law is clear that a cruise line “is not liable to passengers as an insurer, but only for its negligence.”
Therefore, to win a cruise ship passenger accident case, the injured person must prove all of the following four legal elements:
(1) that Defendant had a duty to protect Plaintiff from a particular injury;
(2) that Defendant breached the duty;
(3) that the breach was the actual and proximate cause of Plaintiff’s injury; and
(4) that Plaintiff suffered damages.
A CRUISE SHIP’S LEGAL DUTY TO WARN
Under federal maritime law, cruise lines have a duty to warn only of dangers that are not “open and obvious.” In almost every case, a cruise line like Norwegian Cruise line, Royal Caribbean Cruise Line, or Carnival Cruise Line will defend a lawsuit like this one by arguing that it did not have prior knowledge of the danger of the puddle, and that the spill was “open and obvious” to Plaintiff. If a court buys this argument, which it frequently does, then it will grant the cruise line’s motion and dismiss the entire case. It is hard to believe, but this happens almost every day.
DEFEATING THE CRUISE LINE’S MOTION FOR SUMMARY JUDGMENT
To defeat the cruise line’s motion for summary judgment, all the injured passenger must do is raise a single genuine issue of material fact as to . . .
(1) whether the cruise ship had notice, either actual or constructive, of the puddle, and
(2) whether the dangerous condition was open and obvious.
This sounds simple enough, but it rarely works. However, in this particular case, NCL relied on the deposition testimony of the crewmember tasked with cleaning the area where the Plaintiff fell, and he testified that he did not see a puddle while cleaning in the minutes before Plaintiff’s accident. Additionally, NCL relied on its CCTV footage, which showed other passengers passing in or near the area of the puddle without slipping and falling in the ten minutes before Plaintiff’s accident; accordingly, NCL argued that there was no evidence of previous slips and falls in the same area, which would have provided constructive notice of the puddle.
To oppose NCL’s motion, the Plaintiff filed his own deposition, testifying that the substance he slipped in was clear, slimy, and/or gooey, and that it was dirty or contained crystals, like a margarita. While he had not seen the puddle before his fall, he testified that his clothes and legs were covered in the gooey substance after he fell. Most compelling was the Plaintiff’s use of NCL’s CCTV footage against NCL, because it showed that the crewmember was cleaning in and around the area of Plaintiff’s fall for five minutes before Plaintiff’s accident, actually putting NCL on constructive notice of the puddle. Moreover, since the CCTV footage, which begins fifteen minutes before Plaintiff’s fall, does not show anyone or anything creating a puddle, the puddle must have existed at least that long before Plaintiff slipped and fell.
NCL argued that there was no proof of any prior accidents in the area where the Plaintiff fell. This is often a difficult burden to overcome because the only way of proving what a cruise line knew requires them to maintain accurate records of all prior incidents and claims and then honestly and ethically disclose the information. Since there exists no independent or governmental agency requiring that all incidents be reported, injured passengers have to rely simply on the record-keeping and honesty of each cruise line to provide incriminating evidence in these cases. Naturally, they don’t provide it without a fight, and by defining other “area” or “similar incident” so narrowly as to exclude almost every prior event.
Some courts have defined constructive notice to be about 15 minutes. Since NCL’s CCTV footage begins fifteen minutes before Plaintiff’s fall and does not show anyone spilling a drink, or otherwise creating the puddle in which Plaintiff slipped, it can be inferred the substance had been there for more than 15 minutes prior to his accident. Even though crewmember testified that there was no puddle, the trial judge must consider the disputed facts in favor of the passenger.
Miraculously, in this case the trial judge did the right thing and denied NCL’s motion for summary judgment. It should be noted that this does not mean he automatically wins his case, but rather he has now the opportunity at least to present his case to a jury–an opportunity that very few plaintiffs who sue cruise lines, especially NCL, will ever enjoy since these motions for summary judgment are rarely denied.
SUING NORWEGIAN CRUISE LINE – CONSULT WITH A CRUISE SHIP INJURY LAWYER: CALL 1-866-597-4529
If you are injured on a cruise ship, it is important that you consult immediately with an experienced cruise accident personal injury lawyer. Obtaining vital information, like witnesses’ names and statements, inspecting the area of the incident, and capturing CCTV footage before it is destroyed by the cruise ship are all crucially important in successfully investigating and prosecuting these cases. Our maritime accident attorneys have over 30 years of combined legal experience in successfully suing the major cruise lines on behalf of injured passengers from around the world.
Whether you have been involved in an accident while onboard a cruise ship, on a tender, or during an excursion, contact our office today and consult with an experienced lawyer. We know how to hold cruise lines–like MSC, Disney, Celebrity, Royal Caribbean, Norwegian, Oceania, Regent Seven Seas, Holland America, Princess, and Carnival–accountable when they put their profits ahead of their passengers’ safety. Not all accidents aboard a cruise ship necessarily lead to viable cases. However, we understand the difference and how to navigate the complex rules and regulations of Federal Court and maritime law to help our clients receive money to compensate them for lost wages, medical expenses, travel expenses, loss of enjoyment of their cruise, and pain and suffering.
Call us today at 305-441-0440, or toll-free at 1-866-597-4529, or reach us by email at [email protected], SKYPE. We recommend that you contact us as soon as possible–even while still aboard the ship. We are ready to help.