Prerequisite to Proving Cruise Line Negligence

June 2018

PDF Version

Prerequisite to proving

The Eleventh Circuit Court recently affirmed the position that, in order for a cruise line to be considered negligent, a cruise passenger must prove the line had actual or constructive notice of conditions on board that caused the injury. The passenger had sought to appeal the decision of the District Court on the basis it had erred in not directing the jury that if the cruise line had created the dangerous condition, such actual or constructive notice was not required.   For the passenger to have been successful in her appeal, the Eleventh Circuit would have had to change the law or the current understanding of maritime negligence principles.  

Background

Antoinette Pizzino was a passenger on board the “Norwegian Sky” and fractured both of her wrists when she tripped and fell on board.   Pizzino filed suit against NCL (Bahamas) Ltd. (“Norwegian”), alleging that she slipped in an area where a Norwegian employee had spilt water.  

Pizzino’s accident occurred just after midnight, as she was walking along an interior hallway, with her husband.   Both Pizzino and her husband alleged that the granite tile floor was wet, and that Pizzino’s accident occurred after she stepped in liquid causing her to fall.   CCTV captured a crew member, carrying a bucket filled with liquid down the interior hallway on two separate occasions minutes before Pizzino’s fall. 

Pizzino and her husband both provided statements following the incident claiming the floor was wet.  From the CCTV it was impossible to determine if there was, in fact, any liquid on the floor at the time.  However the footage appeared to show Pizzino tripping over her own feet.  

The crew member testified that the floor was dry at the time of Pizzino’s fall and that he had not spilt any liquid whilst carrying the buckets and, had he done so, he would have immediately cleaned the area and put wet floor warning signs in place.   The CCTV showed the crew member wiping the floor with a paper towel following Pizzino’s accident. Although the crew member testified there was no liquid on the floor, his position was that he did this to appease Pizzino and her husband following the incident. 

The Claim and District Court Decision

Pizzino filed proceedings, alleging that Norwegian had negligently created and failed to eliminate a hazardous condition, the wet spot along the hallway, and that this negligence caused her injuries.   Norwegian’s liability was contingent on whether the jury believed (a) Pizzino’s theory that her foot slipped on liquid spilt by the crew member, or (b) that Pizzino simply tripped over her own feet whilst walking due to her own carelessness.  The trial took place in the U.S. District Court for the Southern District of Florida before Judge Moreno.  At trial Pizzino requested a jury instruction that:  

“where a cruise ship operator created the unsafe or foreseeably hazardous condition, a plaintiff need not prove notice in order to prove negligence.” 

Judge Moreno denied Pizzino’s jury instruction, alternatively giving an instruction that:

“to recover for injuries sustained in her fall, Mrs Pizzino, must prove either that Norwegian
(1) had actual notice of the alleged risk-creating condition of which she complains or,

(2) that the dangerous condition existed for such a length of time that in the exercise of ordinary care Norwegian should have known of it.”

Following a two day jury trial, the jury returned a verdict that Norwegian was not liable.  

Pizzino appealed to the Eleventh Circuit Court on a sole issue; was it necessary as a prerequisite to establishing liability to demonstrate that Norwegian had actual or constructive notice of liquid having been split on the floor.

Pizzino argued that because she believed that Norwegian’s employee, the crew member, had created the dangerous situation by spilling water from one of the buckets he carried, she was not required to prove that Norwegian had actual or constructive notice. 

Decision of the Eleventh Circuit Court

Liability was governed by US Federal maritime law, under which the owner of a ship in navigable waters owes passengers a duty of reasonable care taking account of the circumstances as established in Sorrels v. NCL (Bahamas) Ltd., F.3d 1275, 1279 (11th Cir. 2015). 

In order for Pizzino to succeed in her negligence claim, she was required to prove that:

  1. Norwegian had a duty to protect her form a particular injury;
  2. Norwegian breached that duty; 
  3. The breach actually and proximately caused her injury; and
  4. She suffered actual harm. 

In addition, the Eleventh Circuit determined it was for Pizzino to prove:

“that Norwegian had actual or constructive notice of the risk-creating condition, at least where….the menace is one commonly encountered on land and not clearly linked to nautical adventure.”  

The two leading judgments as to the requisite notice are Keefe v. Bahama Cruise Line, Inc., 867 F.2d 1318, 1322 (11th Cir. 1989) and Everett v. Carnival Lines, 912 F.2d 1355, 1358 (11th Cir. 1990). Both judgments require that a cruise line be “on notice” as a threshold to imposing liability for negligence in relation to slip and fall accidents caused by transitory substances.

In Keefe, a passenger slipped and fell on a wet spot whilst dancing in a night club.  The Court held that:

“the benchmark against which a shipowner’s behaviour must be measured is ordinary reasonable care under the circumstances, a standard which requires, as a prerequisite to imposing liability, that the carrier have had actual or constructive notice of the risk creating condition, at least where, as here the menace is one commonly encountered on land and not clearly linked to nautical adventure”.

In Everett, the passenger tripped over the metal threshold cover of a fire door.  The threshold had been installed by the cruise ship operator, and there was no indication that the passenger’s fall was caused by anything other than the presence of the threshold.   Everett argued that notice could be imputed to the cruise line because it “created” and “maintained” the threshold that caused her fall. The Eleventh Circuit commented that such “reasoning is circular and defeats the limitation on the shipowner’s liability imposed by Keefe”. 

Pizzino put forward the argument that numerous District Courts – all in the Southern District of Florida – had concluded that notwithstanding the Court’s comments in Everett a cruise ship operator can be liable, absent notice, where it created the dangerous condition.   The Eleventh Circuit rejected the possibility that a cruise ship operator could be found liable in the absence of actual or constructive notice and concluded that the District Court cases referred to had been wrongly decided.

Comment

The Eleventh Circuit affirmed the decision of the District Court in favour of Norwegian.   In affirming, the Appellate Court confirmed that it is a requirement under federal maritime law that a cruise passenger must prove that a cruise line was “on notice” even when the cruise line had created the risk-creating condition. 

This judgment is a landmark decision for Norwegian, and the cruise industry as a whole.   The judgment makes clear that a passenger must prove actual or constructive notice for every theory of a cruise line’s negligence. 

 

Article by Lynne Crossey

Syndicate Associate

Americas Syndicate