Norwegian Cruise Line’s (NCL) negligence may cause a passenger to fall and get hurt. If so, he or she may be able to get compensation for his or her damages.
Falls on a Norwegian cruise ship can be caused if:
- A passenger slips and falls on a substance
- Another passenger runs into a passenger and caused him or her to fall
- Many other situations
Passenger’s Fault Cuts Case Value
In a passenger’s slip and fall case against Norwegian, the full value of the case is reduced by the passenger’s percentage of fault.
NCL Passenger Slip and Fall Lawsuit (Achilles Tendon Rupture)
In April 2015, Berna Kellner and her husband boarded a cruise ship owned by NCL. This isn’t my case. NCL does business as Norwegian Cruise Line.
During the cruise, the Kellners participated in a balloon relay. In the relay, passengers are divided into teams of two. One teammate walks across the dance floor to the other teammate with a balloon in between her legs. Then, both teammates tried to pop the balloon.
Kellner was making her way across the dance floor with a balloon lodged between her thighs. While doing so, she slipped on a piece of popped balloon that had fallen to the floor. Crewmembers helped her up.
She was able to finish the relay with some assistance. Kellner sought treatment in the ship’s medical center. There, she obtained an x-ray indicating that she had ruptured her Achilles tendon. When she returned home, she underwent orthopedic surgery.
After the surgery, she was wheelchair-bound for several months. During that time, she experienced severe pain.
I’ve said it countless times on this blog. For settlement purposes, surgery increases the full value of an injury case.
She hired a Miami cruise accident lawyer. In August 2015, Kellner sued NCL in the United States District Court for the Southern District of Florida.
Most Norwegian Cruise Line passengers must sue in Miami. This is true if the ship sailed from the United States. It is also true if the Norwegian ship touched a United States port.
The Norwegian Cruise Line passenger ticket requires the lawsuit to be filed in Miami.
Her lawsuit claimed that NCL’s negligent failure to clean the balloon pieces off the floor caused her Achilles tendon to rupture. Here is what an Achilles tendon tear looks like:
Passenger Sued for Pain, Suffering and Medical Bills
She sued for compensatory damages for her bodily injury, pain and suffering, disability, disfigurement, mental anguish.
Additionally, she sued for loss of capacity for the enjoyment of life, medical and nursing care expenses, loss of important bodily functions, and substantial and permanent scarring or disfigurement.
In January 2016, Kellner disclosed as an expert witness Dr. Mauricio Herrera. He was a doctor who had examined her injuries after her surgery. He offered his opinion that Kellner’s fall during the balloon relay caused her Achilles tendon to rupture.
NCL asked the court to prevent the jury from hearing his testimony. NCL argued that his opinion that the accident caused Kellner’s injury didn’t meet federal standards.
Specifically, NCL argued that Dr. Herrera had not identified a reliable methodology for establishing causation. Dr. Herrera based his opinion on Kellner’s own version of the accident.
NCL further claimed that Dr. Herrera neglected to consider alternative causes for Kellner’s injury, or to articulate any methodology for excluding alternative causes.
Moreover, Dr. Herrera did not review Kellner’s medical records from before the accident. Her prior medical records said that she suffered from several medical conditions due to previous injuries.
Finally, NCL argued that Dr. Herrera’s testimony would confuse the jury since it was not grounded in medical science.
Her case went to trial. I assume that her cruise accident lawyer felt that Norwegian’s settlement offer (if any) wasn’t fair.
At trial, Norwegian asked the judge to rule in its favor. Specifically, they asked the judge to rule that Berna hadn’t proved that the accident caused her injury.
At trial and outside of the jury’s presence, Dr. Herrera again said that Kellner’s cruise-ship slip and fall caused her Achilles tendon to rupture.
He reached that conclusion by relying on his physical examination of Kellner following her surgery.
He also relied on Kellner’s medical history; her medical records from after the accident; records from the cruise ship doctor. Further, he relied on an MRI report created shortly after Kellner’s fall; a report from a post-accident toe surgery she underwent.
Lastly, he relied on a security video of the accident recorded on the cruise ship, and the defense expert’s report. In a cruise slip and fall case, NCL is allowed to hire a doctor to examine you.
Passenger’s Expert Doctor Didn’t Review the MRI Images
After Dr. Herrera was asked questions, the court determined that Dr. Herrera’s testimony was “based simply upon looking at a video and listening to [Kellner’s] account of what happened,” and viewing an MRI report without examining the MRI images.
Bonus Tip: The injured passenger should request a copy of the MRI images. Then, he or she should give the MRI disc to the treating doctor or expert witness.
The court also concluded that Dr. Herrera could not testify about damages. Thus, the judge issued a verdict in favor of Norwegian.
Ms. Kellner got no compensation. Kellner’s attorney appealed the judge’s verdict.
On August 29, 2018, the appeals court agreed with the trial judge. The passenger got no compensation.
The appeals court said that the passenger’s appeal didn’t say that the trial judge erred on damages because, even in the absence of Dr. Herrera’s testimony, she offered testimony about the pain and suffering she had sustained, or indeed about any other kind of noneconomic injury.
The appeals court said that, in her appeal, the passenger did not address the sufficiency of her damages evidence. Damages are pain and suffering, medical bills and lost wages. In other words, the appeals court said that the passenger didn’t also focus her appeal on arguing that the trial court should’ve awarded award damages.
What was the appeals court possibly implying about her appeal?
That if her appeal would’ve mentioned (in her appeal) her testimony about her pain and suffering, she may have been entitled to compensation.
The case is Kellner v. NCL (Bahamas), Ltd., Court of Appeals, 11th Circuit 2018.
Federal court standards are very specific. Federal standards are tougher than Florida state court standards. Judges require that the cruise passenger’s doctor testify as to several points.
Norwegian Cruise Line’s Security Personnel May Note The Age of Your Flip Flops and Soles
In Johnson v. NCL (Bahamas) LTD., Dist. Court, SD Florida 2017, Ronna Johnson was a passenger aboard Norwegian’s cruise ship, the Norwegian Gateway, in October 2015. (This isn’t my case.)
At the time of her fall, she was wearing flip flops she had owned and worn approximately every day for the previous six months or year.
Security personnel noted her flip flops were old and the soles were worn.
NCL claimed that her own negligence was the cause of her fall. The passenger asked the court to rule that she wasn’t at fault for falling.
The court denied the passenger’s request. It said that whether the soles of Ronna’s flip flops were worn and whether that condition contributed to her fall must be decided by a jury.
The passenger was “juggling three full drink glasses while maneuvering through a busy area.” A jury may determine her conduct contributed to her fall.
If You See a Wet Floor Before You Fall, You Have Tougher Case
In Johnson, the judge said that perhaps the toughest part of the passenger’s case was that she admitted to seeing the wet floor and nonetheless walking through it on her to way to the drink station.
She slipped and fell on her return walk through the same area. The judge said that a jury may find that she was not exercising reasonable care while walking through the exterior of the Garden Café.
The judge said a jury may conclude Johnson recognized the danger of walking on a deck where there was “a lot of water”.
A jury may determine her decision to walk even though she knew the surface was wet surface contributed to her fall and injuries.
A jury may find the danger of the wet floor was an open and obvious condition and choose to reduce or deny any claims of negligence against Norwegian.
Norwegian Getaway Passenger Wins $70,590.00 for Shoulder Injury; Another Passenger Ran Into Him
This isn’t my case. David Geyer sued Norwegian. He claimed that he suffered a shoulder injury onboard the Norwegian Getaway.
He claimed that it occurred when an unsupervised child collided with him at the kids’ aqua park.
The Norwegian Getaway Injury and Illness Medical Record said that David was
holding his daughter in the left arm when a child ran into him. He fell, landing on his left shoulder.
An x-ray showed normal joint space. The diagnosis was left shoulder dislocation.
On September 9, 2014, a CAT scan of the left shoulder showed a nondisplaced greater tuberosity fracture.
Passenger Has Shoulder Surgery
On November 21, 2014, David had the following surgery:
- left shoulder arthroscopic capsular release
- manipulation under anesthesia
- left shoulder open biceps tenodesis
- left shoulder extensive subacromial and posterior labral debridement.
Jury Says NCL 39% at Fault; Passenger 61% At Fault
On October 20, 2016, a jury found that NCL was thirty-nine (39%) percent negligent and David was sixty-one (61%) percent negligent.
The jury awarded:
- Past and future medical expenses of $31,000.00
- Past and future pain and suffering of $150,000.00
Thus, David will get compensated for his damages based on Norwegian’s percentage of fault, which is 39%. Thus, his recovery is $70,590.00.
The case hasn’t been appealed.
Slip and Fall on Liquid in Norwegian Ship’s Disco is Dismissed
This isn’t my case. In Salazar v. Norwegian Cruise Line Holdings, Ltd.., Dist. Court, SD Florida 2016, Edwin Salazar sued Norwegian for injuries he allegedly suffered when he slipped and fell on liquid that had accumulated on the dance floor of a disco on the Norwegian Sky.
Passenger Had 4 to 6 Drinks Before He Fell; Not Good For Case
The judge mentioned in his ruling that Salazar drank three or four beers before dinner and had drunk two glasses of wine at dinner. About 45 minutes after dinner, Salazar went to the one of the ship’s discos.
Salazar said that, when the strobe lights were on, he would have seen the liquid had he looked at the floor.
Even without that testimony, the court would’ve still said that the liquid was open and obvious testimony.
The court said that testimony would result in a reasonable person under these circumstances, through the use of his senses, could see when the strobe lights were on that liquid had accumulated on the dance floor.
Norwegian Had No Duty To Warn of Liquid on Disco Floor
The court said that Norwegian didn’t have a duty to warn Salazar because the liquid on the floor was open and obvious. The court said that a spilled drink on the dance floor of a cruise discotheque after midnight is to be expected.
Actual slip and fall case against Norwegian Cruise Lines
Let’s look at a slip and fall case against Norwegian. This case does a great job of explaining slip and fall cases against Norwegian (and other cruise lines).
Tip: You should read every trial court order and appellate decision before handling a claim against NCL on your own. Otherwise, you are putting yourself at a big disadvantage when going up against Norwegian Cruise Line.
Thomas Frasca (“Frasca”) sued NCL Bahamas Ltd., et al. This isn’t my case. However, I’ve handled several claims for passengers injured on cruise ships.
He sued in United States District Court, S.D. Florida, Miami Division.
This is federal court in Miami, where all passenger slip and fall cases against Norwegian Cruise Lines must be filed.
Update 12/4/2016: This case was appealed since I initially wrote this article. On June 30, 2016, the appeals court issued an opinion in Frasca v. NCL (BAHAMAS), LTD., Court of Appeals, 11th Circuit 2016.
The appeals court said that because Frasca raised a genuine issue of material fact as to whether Norwegian breached its duty to warn him failed to warn of the deck’s slippery condition, a jury can decide if Norwegian failure to warn caused his injuries.
The appeals court also said that because Norwegian never moved for summary judgment (dismissal) as to Frasca’s negligent maintenance claim, the trial court’s entry of summary judgment (dismissal) in favor of Norwegian as to that claim is also to be decided by a jury, and not dismissed.
They allowed Frasca to continue moving his case towards trial.
The rest of this article was the trial court’s decision before the appeals court disagreed with the trial court. Take it with a grain of salt.
Order Dismissing Passenger’s Slip and Fall Case
The judge issued an order on April 9, 2014 that permanently dismissed the case per NCL’s request.
On March 19, 2011, plaintiff Thomas Frasca (“Frasca”) slipped and fell while walking on the deck of NCL (Bahamas) Ltd., Norwegian Cruise Lines, and NCL America’s (collectively, “NCL”) cruise ship the Pride of America.
A fare-paying passenger on the ship, Frasca filed this personal injury lawsuit against NCL. NCL has now moved for summary judgment. This means that NCL asked the court to dismiss the case.
The Court granted the motion on three independent basis, each one of which is enough to justify summary judgment in NCL’s favor.
First reason that the passenger’s slip and fall case was dismissed
First, Frasca claims in his lawsuit that he slipped “in an accumulation of liquid on the deck” which had “leaked from the ceiling.” He alleged no other facts or theories in the lawsuit.
There is, however, absolutely no evidence that the liquid Frasca slipped on had leaked from a ceiling. Rather, as Frasca now agrees, he slipped and fell on water that had accumulated on the deck from rain or mist. The law is clear that Frasca may not change his lawsuit through summary judgment briefing.
Second reason that the passenger’s case was dismissed
Second, while he never added to his lawsuit that claimed only a leak-from-the-ceiling claim, Frasca testified that he slipped on the deck which was wet from rainwater or mist.
Frasca, however, saw that the deck was wet before he slipped, and NCL is under no duty to warn him of such an open and obvious condition.
Tip: When calculating the settlement value of this case, the Norwegian Cruise Line adjuster probably reduced the full value of the passenger’s damages by at least 50% because the passenger said he saw the deck was wet before he slipped.
Slip and fall cases are generally worth more if you did not see the hazard that you slipped on before you slipped.
Third reason that the passenger’s case was dismissed
Third, there is not enough evidence that NCL had notice of prior similar accidents or that the deck was unreasonably slippery due to NCL’s negligence in designing, installing, constructing, or selecting the deck material.
I. Background
A. Facts
Frasca and his wife, Barbara, flew to Honolulu, Hawaii to meet long-time friends, Steve and Tish Stanner, to celebrate the Stanners’ 25th wedding anniversary aboard NCL’s Pride of America.
Tip: Even though the ship sailed from Hawaii in this case, the only proper place to sue Norwegian is in Miami, Florida. This is why you should hire a Miami cruise accident lawyer.
On March 19, 2011, the Frascas and Stanners arrived at the ship but there was a delay in boarding because NCL was still cleaning and sterilizing the ship after a virus outbreak. After they boarded the ship, the cabins were not ready and the Frascas and Stanners went to the pool to have some food and wait.
When their cabins were ready, they left the pool and headed to their rooms. After spending the afternoon resting, the Frascas and Stanners went to have dinner. When they finished dinner they left through the restaurant’s wine bar to explore the rest of the ship.
To get to the deck, they exited one-by-one through a set of sliding glass doors.Frasca was the last to exit. He walked about four to six feet away from the doors and slipped and fell.
Frasca received medical treatment on the ship and later at Maui Medical Center.
Fact: All things equal, a passenger’s slip and fall case against Norwegian is worth more if he or she gets treatment on the ship.
He was, however, not diagnosed with a torn hamstring until he returned home. Frasca had surgery to repair the tear and followed up with physical therapy. Even after treatment, Frasca says he is rarely pain-free.
Frasca filed this lawsuit against NCL in February 2012. In his lawsuit, Frasca claimed the following:
“MR. Frasca slipped and fell in an accumulation of liquid on the deck. Liquid had leaked from the ceiling and puddled on the plastic. …”
Frasca’s answer to Norwegian’s interrogatory (written question), however, painted a much different picture as to why he fell:
“The boat was still being cleaned due to the stomach virus outbreak. They were cleaning the outside areas of the boat and I believe that resulted in the water pooling in an unevenly laid area of the deck covering. I do not believe the water could have come from anywhere else.”
Fact: Judges get bothered when the facts that you claim in your lawsuit are different then your testimony. Norwegian’s defense attorneys will reduce their evaluation of the full value of the case for a passenger’s inconsistent statements.
During his deposition (sworn verbal testimony), he abandoned these two alleged factual theories and changed the nature of his claim concerning the slip and fall for the third (and final) time. Frasca testified that it was “misting” and that he fell because of rainwater or water from the misting on the deck.
NCL’s attorney then asked Frasca about the liquid leaking from the ceiling allegation and Frasca’s attorney interjected with the following, paraphrased:
“As I said, that he has not seen it and that’s actually a mistake from a cut and paste from a prior NCL claim where a woman slipped and fell on an interior hallway with plastic that had been strung across from work that was being done in the ceiling and pipes were leaking on the plastic.” [1]
Testimony from Frasca’s wife and the Stanners confirms Frasca’s deposition testimony that Frasca slipped and fell because of rainwater or water from the misting that was on the deck. In fact, upon exiting onto the deck, Steve Stanner noted out loud that the deck was wet and slick.
Fact: If someone warns a passenger that the deck is wet and slick, this decreases the full value of the case for settlement purposes. This is because the passenger should be on notice to walk very slowly or not proceed.
Mrs. Frasca and Mrs. Stanner testified that they heard a wet-and-slick-deck comment.
In sum, there is no evidence that Frasca slipped and fell because of liquid that had leaked onto the deck from the ceiling, as alleged in his lawsuit. Similarly, there is no evidence that Frasca slipped and fell because of pooling water resulting from NCL’s cleaning of the deck, as he stated in his interrogatory answer.
Rather, as Frasca now admits, he slipped and fell on a wet deck caused by rainwater or water from misting.
NCL’s Summary Judgment Motion (Request for Dismissal)
NCL moved for summary judgment (dismissal) on the following grounds:
(1) there is no evidence to support the only claim Frasca alleged in his lawsuit — that he slipped and fell on liquid which had accumulated on the deck from a leak in the ceiling;
(2) there is no evidence to support his claim in his interrogatory answer — that a cleanup operation caused liquid to accumulate;
(3) notwithstanding that Frasca’s lawsuit does not claim he slipped and fell on rainwater, NCL is not liable because it was not on notice and, even if it was, a wet deck from rain or mist is an open and obvious condition for which NCL has no duty to warn; and
(4) Frasca’s expert did not test the area where Frasca slipped, which means that his opinion is insufficient to preclude summary judgment.
Fact: You may need to hire an expert if you claim that the floor was unreasonably slippery (without a foreign substance on it). Experts usually require a nonrefundable up-front fee of about $1,200.
An attorney can advance this cost for you. If, and when, the case settles, the lawyer is paid this cost back after he is paid his attorney’s fees.
In response, Frasca says the allegation in the lawsuit about water leaking from the ceiling has been let go because it was in fact an “errant,” mistaken claim caused by a defective “cut and paste” from another lawsuit. He argues that NCL’s argument is “frivolous” because it has known about his theory of the case for some time.
Regardless of where the water actually came from, Frasca argues that:
(1) his actual theory of liability is that the deck becomes unreasonably slippery when wet;
(2) this theory does not relate to an open and obvious condition;
(3) NCL was on notice of this so-called dangerous condition; and
(4) NCL had a duty to warn.
Finally, Frasca argues that there is evidence establishing the existence of prior slip and falls, but NCL is refusing to provide it, which makes dismissal improper.
In its reply, NCL argues that Frasca has asserted two new and different theories not actually stated in his lawsuit and that it should not be forced to defend against them.
Additionally, NCL argues that although it did not have a duty to warn because the fact that rain may render a surface slippery is an open and obvious condition, it did in fact warn passengers about using care on the decks during wet conditions.
It also argues that Frasca has failed to demonstrate that there was even one substantially similar prior accident to put NCL on notice.
After NCL filed its summary judgment motion (request to have the case dismissed, Frasca argued another new theory of liability.
Frasca now claims that NCL “did not take the appropriate action to construct and maintain the deck in reasonable non skid transition and/or warn of the dangerous condition of the deck when wet.”
In response, NCL filed a motion to exclude all evidence or theories not in the lawsuit, including the new theory of negligent construction.
Discussion
As noted above, the Court dismissed the case on three independent grounds.
A. Frasca’s Attempt to Add New Facts and Theories Not Claimed in His Lawsuit at The Summary Judgment Phase is Inappropriate
1. Background
The only factual basis for Frasca’s lawsuit is where he claims that he was walking and “slipped and fell in an accumulation of liquid on the deck” that “had leaked from the ceiling.”
For example, Frasca claims that NCL:
- “negligently failed to warn Mr. Frasca about the slippery wet conditions on deck 5, which was known to and/or created by NCL;”
- “failed to have in place warning signs to alert Mr. Frasca to the dangers posed by the defective, dangerous condition;” and
- “negligently created said above-described dangerous and defective condition.”
The only “condition” that these claims can possibly refer to is the liquid from the ceiling leak which had pooled on the deck.
Frasca claims that “the defective dangerous condition was well known to NCL, its agents and/or employees, having been created by NCL.” Similarly, he also discusses “the above described incident” and claims that it caused Frasca to suffer severe and permanent injuries.
He claims that NCL breached its duty because it “negligently failed to maintain said vessel, and more particularly deck 5, in a reasonably safe condition.”
Similarly, he claims that NCL “knew of the existence of the dangerous and defective condition or, in the exercise of reasonable care, should have known of the existence of said dangerous condition and failed to remedy the dangerous condition.”
But the only incident described in the lawsuit is the claimed leaky ceiling and the resultant liquid which pooled on the deck, and this is the only context in which the claims can be evaluated.
Analysis
Frasca agrees that there is no evidence that NCL negligently allowed water to leak from the ceiling and puddle onto the deck causing him to slip and fall.
Frasca asks the Court to disregard this claim because his attorney informally explained it away by saying it is a mistaken allegation caused by a deficient cut and paste from another lawsuit.
Assuming that the critical paragraph was lifted from another, unidentified lawsuit, Frasca changed the paragraph to substitute his name for the plaintiff in the earlier lawsuit but, under his theory, did not also change the other critical factual allegations. There is, however, some evidence to support the cut and paste theory.
The cruise ship in this case is the Pride of America, but in his lawsuit he also mentions the vessel “Pride of Hawaii.”
The Court said it will assume that this portion of the lawsuit was truly a “cut and paste” from another lawsuit.
Even giving Frasca this benefit of the doubt, Frasca has been on notice that his lawsuit alleged only one factual theory which he admits is wrong. He has also been on notice that NCL objected to claims not stated by the lawsuit.
Even more, his lawyer explicitly recognized the need to amend the lawsuit at Dr. Gill’s deposition and stated that he would move to amend. Yet, for whatever reason, Frasca has never asked the court to allow him to edit his lawsuit.
Frasca’s case is similar to Weiner v. Carnival Cruise Lines, No. 11-CV-22516, 2012 WL 5199604 (S.D. Fla. Oct. 22, 2012). In Weiner, a passenger slipped while walking on the deck near an on-board coffee shop on a Carnival Cruise ship.
The slip was allegedly caused by the presence of a “foreign substance” on the tile floor. Weiner sought to hold Carnival liable on the theory that a foreign substance rendered the tile flooring unreasonably dangerous.
In an effort to avoid summary judgment (dismissal), Weiner relied on an expert witness, who testified that “the flooring material Carnival installed on the ship’s deck was extremely slippery and dangerous when wet.”
District Judge Robert Scola was not persuaded by the expert’s testimony — which is similar to the opinions offered by Frasca’s expert.
In analyzing why dismissal in Carnival’s favor was appropriate even though the expert testified to several negligent construction and selection theories, Judge Scola noted that Weiner “never pled” them in the lawsuit.
Judge Scola carefully dissected the allegations in the lawsuit and concluded that they all related to the presence of a foreign substance (just like Frasca’s allegations relate only to the pooled liquid from the leaky ceiling), not negligent construction and selection of the tile flooring.
Like in Weiner, the only claim pled is the one alleging that Frasca slipped because a leak in the ceiling caused liquid to pool on the deck. As Frasca now admits, that claim has no factual support. As such, summary judgment for NCL is warranted.
B. NCL Had no Duty to Warn Frasca of an Open And Obvious Condition
Even if Frasca slipped and fell because water from mist or rain made the deck slippery (a theory not stated in the lawsuit), NCL is still entitled to summary judgment (dismissal) because a slick deck caused by water from rain or mist is an open and obvious condition.
1. Applicable Legal Standard
General maritime law, as developed by federal courts, applies to an alleged tort committed aboard a ship.
To win on his negligence claim, Frasca must show that:
(1) NCL owed him a duty;
(2) NCL breached that duty;
(3) NCL’s breach was the proximate cause of his injury; and
(4) he suffered damages. Carroll v. Carnival Corp., No. 11-23372-CIV, 2013 WL 1857115, at *2 (S.D. Fla. May 2, 2013).
The duty a ship owner owes to its passengers is reasonable care under the circumstances of each case. A ship owner, however, is not an all-purpose insurer of a passenger’s safety.
A cruise line’s duty of reasonable care includes a duty to warn passengers of dangers of which the carrier knows or should know, but which may not be apparent to a reasonable passenger. Cohen v. Carnival Corp., 945 F. Supp. 2d 1351, 1357 (S.D. Fla. 2013).
The duty to warn, however, does not extend to dangers that are open and obvious. Magazine v. Royal Caribbean Cruises, Ltd.,No. 12-23431-CIV, 2014 WL 1274130, at *4 (S.D. Fla. March 27, 2014); Luby v. Carnival Cruise Lines, Inc., 633 F. Supp. 40, 41 n.1, (S.D. Fla. 1986) (affirming dismissal of passenger’s claim because the presence of a ledge behind a shower curtain was an open and obvious condition), aff’d, 808 F.2d 60 (11th Cir. 1986).
2. Analysis
In this case, the rainy/misty condition itself serves as an adequate warning that the deck would be wet and slick because it is obvious to a reasonable person. Coto v. Hyannis Air Serv., Inc., No. CIV. 2005-191, 2008 WL 5632264, at *6 (D.V.I. Jan. 31, 2008).
Federal Courts Often Dismiss Rainwater Slip and Fall Cases
Federal courts routinely dismiss cases or grant summary judgment (dismissal) for defendants in similar cases involving accumulated rainwater which made a surface slippery. See, e.g., Id.; Gunter v. United States, 10 F. Supp. 2d 534 (M.D.N.C. 1998)(granting summary judgment and holding that rainwater that accumulated on floor was open and obvious hazard); Faircloth v. United States, 837 F. Supp. 123 (E.D.N.C. 1993) (“Everybody knows that the hallways … during a continued rainstorm are tracked all over by the wet feet of people coming from the wet sidewalks, and are thereby rendered more slippery than they otherwise would be.”).[2]
The court said that Frasca’s reliance on two state court cases on this point is not convincing.
Unlike Frasca’s slip and fall on an exterior deck covered with rainwater, the plaintiff in Kloster Cruise Ltd. v. Grubbs, 762 So. 2d 552 (Fla. 3d DCA 2000) was injured when she slipped and fell on an interior metal threshold in a doorway.
In Samuelov v. Carnival Cruise Lines, Inc., 870 So. 2d 853 (Fla. 3d DCA 2003), the plaintiff was injured while getting off the ship for an excursion when he slipped and fell on an upper deck because of the rain and wind. However, the plaintiff there had to cross the wet exposed upper deck because there was no room for him in the lower deck, which was covered from the elements. That is not the case here (Frasca).
Moreover, Frasca and his companions knew that the deck was wet from rain or mist once they exited the sliding doors.[3] According to Mrs. Stanner, “we noticed that it had rained or it was raining and that the flooring surface was wet,” and “the decking surface was wet and we looked and could tell it was misting.”
Mrs. Frasca testified that, “we were all surprised that the deck was wet,” “I remember Steve Stanner saying that to me that it was slick,” and “the deck just was wet and shiny and there were some puddles of water.” Frasca, himself, also testified that “it was misting,” and “I saw, you know, what possibly could have been a wet deck, was a wet deck turned out to be.”
The court said that Frasca tried to avoid his deposition testimony by pointing to other deposition quotes suggesting that he did not realize the deck was wet or that it was raining or misting. Those efforts, however, rely on tortured interpretations which do not generate a real factual dispute and which cannot change the inescapable point that Frasca admitted to seeing a wet surface before he stepped out.
The undisputed facts establish that Frasca was aware of an open and obvious danger, an outside deck which was wet from rain or mist and which therefore could be slippery. NCL had no duty to warn him of this. It was entitled to summary judgment (dismissal).
C. There is Not Enough Evidence to Show That NCL had Notice of Prior Similar Accidents or that the Deck was Unreasonably Slippery
One of Frasca’s main arguments against summary judgment (dismissal) was that NCL was on notice of prior similar accidents or that NCL was on notice that the deck material it used on the ship was “unreasonably slippery” when wet.
The problem with these arguments is two-fold.
First, despite approximately two years of discovery (requesting information from NCL), Frasca has provided insufficient evidence of prior similar accidents and provided no evidence regarding NCL’s selection or construction of the deck material.
Second, Frasca’s claim that NCL knew the deck material it used was unreasonably slippery when wet goes to a negligent deck selection/construction theory of liability. That theory, however, was not claimed in his lawsuit.
1. Applicable Legal Standard
To impose liability on a cruise line, the cruise line must have had “actual or constructive notice of the risk-creating condition …” However, where there is a claim that the cruise line created the unsafe or hazardous condition, a passenger does not need to prove notice.
Instead, an injured person must show only that the cruise line created the dangerous condition. Long v. Celebrity Cruises, Inc., No. 12-22807-CV, 2013 WL 6043918, at *3-4 (S.D. Fla. Aug. 1, 2013).
2. Analysis
a. Insufficient Evidence of Prior Similar Accidents
In a strikingly similar case where a passenger fell on a wet deck aboard an NCL ship because of rainwater, another court in this district granted NCL summary judgment (dismissal) because the passengers “produced no substantial evidence that NCL created a dangerous condition on its ship and thereby breached its duty of reasonable care.” Sorrels v. NCL (Bahamas) LTD., No. 13-21413-CIV, 2013 WL 6271522, at *1, *10 (S.D. Fla. Dec. 4, 2013). The Court finds persuasive the rationale in Sorrels on this particular point.
In dismissing the case, the Sorrels court noted that under the substantial similarity doctrine,[5] the passengers failed to establish that conditions substantially similar to Sorrels’ fall also caused the prior incidents.
In particular, the court noted the following:
- the incidents occurred at a variety of locations on the deck and none of them occurred where Sorrels fell;
- most of the prior incidents involved unknown wet substances; and
- many of the prior accidents did not involve rainwater.
The court reasoned that despite the claim of prior accidents aboard the ship, there was no evidence that a similar accident occurred where Sorrels fell. Furthermore, these so-called similar accidents actually varied among the types of liquids or substances: unknown wet substances; water left over from cleaning; spilled ice cream, etc.
Here, despite trying to show that similar accidents occurred on decks using the Bolidt decking, Frasca has been unable to show that another passenger slipped and fell where Frasca fell, under similar conditions.
Frasca argues that the evidence of some prior falls establishes notice, but the mere fact that another passenger somehow slipped and fell on a deck somewhere aboard a cruise ship does not establish the requisite similarity.
There are too many other unknown factors to conclude that the incidents are sufficiently similar. For instance, were the prior falls on a rain-soaked deck or was the deck wet or slippery because of another substance?
What type of shoes, if any, was the passenger wearing? Was the passenger engaged in an activity other than walking, such as running or playing a game? Did the fall occur on the same deck surface? Frasca has provided no answers to these types of questions to help the Court.
Frasca argues that he would have been able to produce this information had NCL not committed discovery violations and adequately responded to his discovery requests. Frasca’s attempts to blame NCL are misguided.
Frasca had approximately two years to obtain discovery. During that span, the Court held numerous discovery hearings to help the parties obtain the discovery they needed.
Frasca, however, did not move to compel information regarding prior slip and falls until it was simply too late. And even then, he never provided the Court any reasonable explanation about why he delayed seeking this discovery.
As such, the Court denied his late motions. Nevertheless, Frasca was able to obtain deposition testimony from NCL’s representatives about prior slip and falls. The deposition testimony, however, did not produce the answers Frasca was looking for.
At bottom, there was no testimony about prior instances of substantially similar slip and falls and Frasca never followed up with additional deposition questions to determine if any prior slip and falls were substantially similar.
The appeals court said that Frasca has no one to blame but himself and he cannot defeat NCL’s summary judgment (dismissal) motion because of his discovery procrastination.
Frasca has obtained some evidence of prior falls aboard the ship. But he never established where, when, why, or how the falls occurred. Thus, there is no evidence of substantially similar slip and falls on the same deck near where Frasca fell.
In addition, NCL’s corporate representative testified that there were no substantially similar incidents on the deck on the same side of the ship.
b. There is no Claim That NCL Negligently Designed or Selected the Deck Material And There is Not Enough Evidence on This Point
To be liable for negligent design or construction, a cruise line must have played some role in the design or construction. Rodgers v. Costa Crociere, S.P.A., 410 F. App’x 210, 212 (11th Cir. 2010) (affirming summary judgment in favor of cruise ship operator on negligent design theory in lawsuit filed by passenger who slipped and fell down a flight of stairs because there was no evidence that the cruise ship operator designed the stairs or the hand rails).
Ignoring the already-discussed point that Frasca’s lawsuit does not allege a negligent design, maintenance, selection, or construction theory, the result here (i.e., summary judgment – dismissal – for NCL) would be the same even if a claim had been made — because Frasca has not offered any competent evidence to establish the allegation. Magazine, 2014 WL 1274130 (entering summary judgment for cruise ship on most counts raised by passenger who was injured on an on-board surfing simulator); see also Weiner, 2012 WL 5199604, at *4-5 (granting summary judgment to cruise operator brought by passenger who slipped on a foreign substance and noting that plaintiffs presented no evidence that defendant had any say or participation in design decisions).
This lack of evidence (or claim) on this point also completely negates Frasca’s expert’s testimony. Like in Weiner, the center of his expert’s testimony is that the deck material itself is unreasonably slippery when wet.
But, just like in Weiner, there is not enough evidence that NCL negligently selected, installed, constructed, or maintained the deck material.
Moreover, Dr. Gill did not test the deck where Frasca fell. He tested six different locations on the ship, two of which admittedly were not where the accident occurred.
The other four locations tested were right outside of the wine bar, Dr. Gill, however, tested the area outside the wrong doorway. As such, the Court is not persuaded that Dr. Gill’s testimony, without more, can defeat NCL’s summary judgment motion. See Weiner, 2012 WL 5199604, at *5.
IV. Conclusion
Although Frasca’s injuries “are surely unfortunate, liability cannot rest on sympathy alone.” Weiner, 2012 WL 5199604, at *6. The Court granted summary judgment in NCL’s favor. The case was permanently dismissed.
The injured person did not get any money. This case is Frasca v. NCL (Bahamas) Ltd., 2014 WL 1385806 (S.D.Fla. Apr. 9, 2014).
Footnotes
[1] During Frasca’s expert’s deposition, Dr. Richard Gill, NCL’s attorney again brought up this allegation, and again Frasca’s attorney said, paraphrased:
“I don’t know why it keeps recurring, but upon return to Miami we’ll file a motion to amend the lawsuit to alleviate and remove this typographical error, cut-and-paste issue from a prior lawsuit. And you’ve taken all the depositions and nobody has said that anything was leaking or that there was any plastic on the deck and there’s no evidence to reflect that.”
Frasca’s attorney, however, never amended the lawsuit.
[2] See also Wish v. MSC Crociere S.A., No. 07-60980-CIV, 2008 WL 5137149 (S.D. Fla. Nov. 24, 2008) (granting directed verdict [dismissal] in a slip and fall case where plaintiff was aware that rain could cause a pool deck to become wet and slippery);
- Rodas v. Bi-Lo, Inc., No. 607CV029, 2008 WL 2415269 (S.D. Ga. May 21, 2008) (holding that rainwater tracked into a business is not an unreasonable condition, but an expected risk);
- Hackworth v. United States, 366 F. Supp. 2d 326, 331 (D.S.C. 2005) (granting summary judgment to defendant for slip and fall from rain in naval base store);
- Holland v. United States, 918 F. Supp. 87, 89 (S.D.N.Y. 1996);
- Hess v. United States,666 F. Supp. 666 (D. Del. 1987) (dismissing plaintiff’s claim for negligence after she slipped on a rainy day in the lobby of a post-office).
[3] For summary judgment (dismissal) purposes, the Court did not accept NCL’s position that it twice warned Frasca and his companions about the slippery-when-wet-conditions of the deck. Frasca and his companions did not recall receiving any such warnings, written or spoken.
[4] The doctrine “requires that before evidence of prior accidents or occurrences is admitted into evidence, the proponent of such evidence must show that conditions substantially similar to the occurrence caused the prior incidents.” Heath v. Suziki Motor Corp., 126 F.3d 1391, 1396, n.12 (11th Cir. 1997).
The doctrine, which applies when an injured person seeks to admit prior accidents or occurrences to show, for example, notice, is designed to “limit the substantial prejudice that might occur to a party should these past occurrences or accidents be admitted into evidence.” Tran v. Toyota Motor Corp., 420 F.3d 1310, 1316 (11th Cir. 2005).
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