Resort Torts Case Law

    In general, every property owner or occupier has a duty to keep its premises in a reasonably safe condition and to protect the invitee from dangers of which the owner is or should be aware or which the owner might reasonably foresee.  Newalk v. Florida Supermarkets, Inc., 610 So. 2d 528 (Fla. 3d DCA 1993); Levy v. Home Depot, 518 So. 2d 941 (Fla. 3d DCA 1988);Winseman v. Travelodge Corporation, 205 So.2d 315 (Fla. 2d DCA 1967).  This duty applies to hotel owners/operators as the law specifically imposes on hotel owners the duty to keep their premises in a reasonably safe condition free of obstructions or hazards. Goldin v. Lipkind, 49 So.2d 539 (Fla. 1950); Marhefka v. Monte Carlo Management Corp. 358 So.2d 1171 (3rd DCA 1978).

    The owner of a hotel, resort, golf resort, amusement or theme park must also give timely notice of latent or concealed perils which are known or would be known but which are unknown to the invitee guest.  Post v. Lunney, 261 So.2d 146 (Fla. 1972); Pittman v. Volusia County, 380 So. 2d 1192 (Fla. 5th DCA 1980); and Sambito v. Southland Recreational Enterprises, Inc., 383 So.2d 989 (Fla. 2d DCA 1980). 

    Of course, the owner/operator of a hotel, resort, amusement of theme park is subject to the law of respondeat superior and actual and apparent agency to the same extent any other employer is.  Therefore, they are liable for the negligent acts and omissions of their employees and agents.

    Negligent security cases involving hotels, resorts, and amusement and theme parks  typically involve criminal assaults.  The law governing negligent security cases is largely derivative of general premises liability law.  The general statement of law is that one who possesses property (landlord/owner/lessee) owes a duty of care to the public (visitors, guests, invitees) to eliminate and protect them against accidental, negligent, and intentional acts of third parties.   See generally, Restatement (Second) of Torts, § 344 (1963) (land possessor entreating members of public to do business is subject to liability to public for physical harm caused by intentionally harmful acts of third persons on property and by land possessor’s failure to exercise reasonable care to provide adequate warning or protection).

The criminal act is not a supervening and intervening cause when the act is foreseeable and the defendant’s negligence permitted the criminal act to occur.  See generally, Holley v. Mt. Zion Terrace Apartments, Inc., 382 So. 2d 98 (Fla. 3d DCA 1980) (“We first reject, as entirely fallacious, the defendant's claim that the brutal and deliberate act of the rapist-murderer constituted an "independent intervening cause" which served to insulate it from liability. It is well-established that if the reasonable possibility of the intervention, criminal or otherwise, of a third party is the avoidable risk of harm which itself causes one to be deemed negligent, the occurrence of that very conduct cannot be a superseding cause of a subsequent misadventure).  

    As the Florida Supreme Court has stated, “...a negligent tortfeasor whose acts or omissions give rise to or permit an intentional tortfeasor’s actions....as a matter of public policy, negligent tortfeasors such as in the instant case should not be permitted to reduce their liability by shifting it to another tortfeasor whose intentional criminal conduct was a foreseeable result of their negligence....”  Merrill Crossings Associates v. Wal-Mart Stores, Inc., 705 So. 2d 560 (Fla. 1997).

Different types of premises can give rise to different duties. Here are some examples:

    Hotels:

    A hotel “had a non-delegable duty to guests to provide a reasonably safe premises, including reasonable protection against third party criminal attacks.”  U.S. Security Services Corp. v. Ramada Inn, 665 So. 2d 268 (Fla. 3d DCA 1996) (landowner can contract out performance of non-delegable duty, but he is still legally responsible)

    The law imposes on hotels, apartments, innkeepers, etc. the duty to keep their buildings and premises in a condition reasonably safe for the use of their guests.  The duty of maintaining safe premises cannot be delegated to another.  Goldin v. Lipkind, 40 So. 2d 539, 541 (Fla. 1950)

    Hotel owner’s actual or constructive knowledge, based on past experience, of the likelihood of disorderly conduct by third persons in general that may be a safety risk is sufficient to establish foreseeability.  Hardy v. Pier 99 Motor Inn, 664 So. 2d 1095 (Fla. 1st DCA 1995)

    The duty to provide reasonably safe premises is non-delegable, so even though hotel/motel may contract with an independent contractor to provide required security for guests, the hotel/motel is nonetheless vicariously liable for any negligence of the security service.  U.S. Security Services Corp. v. Ramada Inn, 665 So. 2d 268 (Fla. 3d DCA 1995)

    Gas Station:

    Self service gas station standard of care may include duty to protect customer from known ongoing attack.  Butala v. Automated Petroleum and Energy Co., 656 So. 2d 173 (Fla. 2d DCA 1995)(plaintiff attacked by another customer, who poured gas on him and ignited it)

    Bars and Nightclubs:

    Duty may arise on part of bar where there is chronic, long-standing violence at bar, the management fails to have proper security, and injury ensues.  Adelsperger v. Riverboat, Inc., 573 So. 2d 80 (Fla. 2d DCA 1990)(police officer injured – application of exception to ‟fireman’s rule”)

    If a bar proprietor knew or should have known of the likelihood of disorderly conduct by third parties which might endanger invitees, foreseeability exists.  Allen v. Babrab, Inc., 438 So. 2d 356 (Fla. 1983); see also Stevens v. Jefferson, 436 So. 2d 33 (Fla. 1983)(plaintiff need not show that particular assailant’s propensity for violence)

    A bar or saloon, although not an insurer of a patron’s safety, has a duty to ‟use every reasonable effort to maintain order among the patrons, employees, and those who come upon the premises” and are likely to produce disorder or cause injury.  Priester v. Grand Aerie of the Fraternal Order of Eagles, Inc., 688 So. 2d 376 (Fla. 3d DCA 1997)

    Evidence supported jury verdict that due to inadequate security, it was foreseeable that rowdy patrons would cause injury to others.  Hendry v. Zelaya, 841 So. 2d 572 (Fla. 3d DCA 2003); see also Hall v. Billy Jack’s, 458 So. 2d 760 (Fla. 1983); Holiday Inns, Inc. v. Shelburne, 576 So. 2d 322 (Fla. 4th DCA 1991); Smith v. Hooligan’s Pub & Oyster Bar, 753 So. 2d 596 (Fla. 3d DCA 2000); Daly v. Denny’s, Inc., 694 So. 2d 775 (Fla. 4th DCA 1997); Crown Liquors of Broward v. Evenrud, 436 So. 2d 927 (Fla. 2d DCA 1983).

    Just a few examples of cases in which Leesfield & Partners has represented clients against hotels/resorts/amusement and theme parks:

●    Hot coffee spilled by waitress at theme park into lap of restaurant patron

●    Slip and fall on wet marble floors in hotel entrance without any wet floor warning

●    Wrongful death resulting from burns at Carribean hotel

●    Honeymoon wrongful death due to gas leak at resort hotel in the Dominican Republic

●    Suit against Island of Jamaica for failure to provide adequate medical care for tourists

●    Trip and fall on hotel entrance sidewalk due to obstruction

●    Brain damage to child due to hot tub overheating caused by defective thermostat

●    Bicycle accident causing injuries to Key West tourist

●    Tourist assaulted at motel due to inadequate lighting and security

●    Child injured from untrained horse at riding stable

●    Malfunctioning suction jet at spa causing severe internal injuries to spa guest

●    Sexual assault of child at theme park by park employee

●    Sexual assault on hotel property

●    Assault and battery in hotel parking garage

●    Slip and fall on outdoor hotel stairway

●    Collapse of hammock at resort

●    Carbon monoxide poisoning due to faulty equipment at hotel in Key West

●    Fall on resort stairway due to excessive height gaps between steps


Cruise Ship, Motorboat, and Jet Ski Liability

    Entire volumes could be written regarding torts involving cruise ships, motorboats, and jet skis.  This outline can only touch on a few of the areas of significance.

    In the United States, claims for personal injuries and deaths that occur on or near navigable waters generally fall within a court’s admiralty jurisdiction and require the application of substantive maritime law, which is federal law.

    Federal maritime law provides that “an owner of a ship in navigable waters owes to all who are on board for purposes not inimical to his legitimate interests the duty of exercising reasonable care under the circumstance of each case.” See Kermarec v. Compagnie Generale Transatlantique, 358 U.S. 625, 632 (1958); Tittle v. Aldacosta, 533 F.2d 752 (5th Cir. 1977); Everett v. Carnival Cruise Lines, Inc., 912 F.2d 1355, 1358 (11th Cir. 1990); Kornberg v. Carnival Cruise Lines, Inc., 741 F.2d 1332, 1334 (11th Cir. 1984).  Because federal maritime law only applies if the injury or death occurred in navigable waters, the location of the incident is of crucial significance.

In 1920, the United States Congress enacted the Death on the High Seas Act (DOHSA), which provides a remedy for wrongful death which had not previously existed under general maritime law.  DOHSA provides that whenever the death of a person shall be caused by wrongful act, neglect, or default occurring on the high seas beyond a marine league ( three nautical miles) from the shore of any State, or the District of Columbia, or the Territories or dependencies of the United States, the personal representative for the decedent may maintain a suit for damages in the district courts of the United States, in admiralty. 46 U.S.C. app. §§761-767.  Unfortunately what Congress gave on the one hand, it took away on the other.  DOHSA only allows for the recovery of pecuniary losses actually suffered by the survivors.  Miles v. Apex Marine Corp., 498 U.S. 19 (1990).

    Several cases have addressed the situation where an accident occurs on the high seas but the death occurs elsewhere.  In Howard v. Crystal Cruises, Inc., 41 F.3d 527(9th Cir. 1994), a passenger sustained a laceration while disembarking from a cruise ship in Mexican territorial waters.  He was first treated on the vessel and then underwent surgery in Acapulco to repair the injury.  He returned home to Sacramento and died within a month from blood clots.  His widow filed a wrongful death suit against the operator of the cruise ship.  Finding it “undisputed that Howard died as the result of a wrongful act that occurred ‘beyond a marine league from the shore of any State,” the court applied DOHSA as the exclusive remedy.

    In Motts v.M/V GREEN WAVE, 210 F.3d 565 (5th Cir. 2000) the Fifth Circuit held that DOHSA’s reach “is not limited to negligent acts that actually occur on the high seas.”  Instead, the place negligence or wrongful act occurs is not decisive.  The place injury occurs and the function the injured person was performing are more significant.”  Based on its review of the case law, the Fifth Circuit reasoned that the cruise ship’s actions invoke DOHSA jurisdiction even though all of the ship’s actions and the decedent’s death occurred onshore.”  The Fifth Circuit concluded that the location of the accident determines whether DOHSA applies.  “That said, as long as the decedent is still on the high seas at the time the negligence begins, DOHSA must apply to post-accident negligence.”

    Courts have applied DOHSA to a variety of accidents in foreign territorial waters, including the death of a snorkeler from a heart attack in Mexican territorial waters during an expedition off the beaches of Cozumel, Moyer v. Klosters Rederi, 645 F. Supp. 620, 1987 (S.D. Fla. 1986); the death of a snorkeler in Jamaican waters when the decedent was struck by the propeller of a twenty-two foot motorboat; Kunreuther v. Outboard Marine Corp., 757 F. Supp. 633, (E.D. Pa 1991); and the death of a cruise ship passenger of complications from an injury sustained on a gangway of a vessel in Mexican territorial waters. Howard v. Crystal Cruises Inc., 41 F.3d 527, (9th Cir. 1994).

    In one of our firm’s recent cases, DOHSA was also applied to the death of a scuba diver in Bahamian territorial waters which was the result of cruise ship negligence.  The significance of the applicability of DOHSA in all of these cases is obvious.  The measure of damages set forth in DOHSA, 46 App. U.S.C.A. §762, authorizing recovery by a decedent’s survivors for their pecuniary loss, applies in the case of a death on the high seas, and survivors may not recover additional damages under general maritime law for loss of society or pre-death pain and suffering.

    In re Horizon Cruises Litigation, 101 F. Supp. 2d 204, 213 (S.D.N.Y. 2000) and In re Plaquemine Towing Corp., 190 F. Supp. 2d 889, 892-94 (M.D. La. 2002) both set forth an analytical framework for deciding the proper application of damages in claims brought under the general maritime law.  The Plaquemine court stated: A court must first evaluate the factual setting of the case and determine what statutory remedial measures, if any, apply in that context.  If the situation is covered by a statute like the Jones Act or DOHSA, and the statute informs and limits the available damages, the statute directs and delimits the recovery available under the general maritime law as well.  The general maritime law will not expand the available damages when Congress has spoken to the relief it deems appropriate or inappropriate. 
   
    A litigant may also be able to circumvent DOHSA in the following situation: Suppose for example that a cruise ship passenger suffers from a negligent act while on board the cruise ship, but is then transported from the cruise ship to the nearest foreign country for medical care, and subsequently dies on land from the lack of proper medical care both on board the ship and on land.  DOHSA might apply to the wrongful death of this passenger, since the negligence began while on the cruise ship.  However, the decedent’s spouse, while on land, in witnessing her spouse go through such horrific pain and trauma, may likely bring a claim against the carrier for negligent infliction of emotional distress since the tort occurred on land.  The spouse in this situation might be able to recover for her distress, although her deceased spouse’s damages would be capped by DOHSA. 
   
    As a common carrier, a cruise line has an obligation to use the highest degree of care that is consistent with its mode of transport to ensure the safety of its passengers.  This duty is not limited to the journey itself, but also requires carriers to provide a safe means of boarding and exiting a conveyance.  See e.g. Washington Metropolitan Area Transit Authority v. Reading, 674 A.2d 44 (Md.App. 1996).  Moreover, numerous cases deal specifically with the duty of vessels to provide  safe gangways. Bellocchio v. Italia Flotte Riunite Cosulich Line, 84 F.2d 975 (2d Cir. 1936). Tullis v. Fidelity and Casualty Co. of New York, 397 F.2d 22 (5th Cir. 1968); Marshall v. Westfal-Larsen & Co., 259 F.2d 575 (9th Cir. 1958); White v. United States of America 53 F.3d 43 (4th Cir. 1995), Florida Fuels, Inc. v. Citgo Petroleum Corp. 6 F.3d 330 (5th Cir. 1993) and Romero Reyes v. Marine Enterprises, Inc. 494 F.2d 866 (1974); Russell v. City Ice & Fuel Co., 539 F.2d 1318 (4th Cir. 1976); Kermarec v. Compagnie Generale Trans-Atlantic, 358 U.S. 625, 79 s.Ct 406 (1959); Marshall v. Westfal-Larsen Co., 259 F.2d 575 (9th Cir. 1958); Meyers v. M/V Eugenio C, 842 F. 2d 815 (5th Cir. 1988); Urian v. Milstead, 473 F.2d 948 (8th Cir. 1973). 

    The law provides that the duty of the carrier to provide for safe ingress and egress, as well as transportation, extends to the use of tender vessels.  Thus, a carrier that contracts to take a passenger on a cruise stopping at a designated foreign port has a duty if the vessel anchors in that harbor to provide him with safe transportation, under adequate supervision, to and from the dock. See Samuelov v. Carnival Cruise Lines, Inc., 2003 WL 22849633 (Fla. 3d DCA 2003).



    In Yamaha Motor Corp., U.S.A. v. Calhoun, 516 U.S. 199 (1996) the Court held that a state wrongful death and survival statute could supplement federal remedies when a nonseaman’s death occurred in territorial waters.  Yamaha involved a twelve-year old who was killed in a jet ski accident on a beachfront resort in Puerto Rico.  Finding that Congress had not prescribed a comprehensive tort regime for territorial waters, the Court held that the remedy for wrongful death was governed by state law.  Thus, Florida’s wrongful death statute governs the damages in a case where the incident causing the death occurs in navigable waters but which are less than 3 nautical miles from shore.

    By their nature, most Florida jet ski incidents typically occur in state territorial waters.  (Of course, jet ski accidents also occur outside of the U.S. as well).  If the incident does not occur on navigable waters, federal maritime law does not apply.  Instead, Florida law of personal injury and/or wrongful death applies.

    Even if, however, the jet ski incident occurs in territorial waters, if the location is in navigable waters, maritime law still applies.  See e.g., Tassinari v. Key West Water Tours, L.C., 2007 WL 942093 (S.D. Fla. March 29, 2007)(Tassinari also includes a discussion of claims for negligent infliction of emotional distress under maritime law).  For a discussion of the invalidity of a release signed by a parent on behalf of a child for jet ski rental from cruise operator in the Bahamas, see In re the Complaint of Royal Carribean Cruises, Ltd., 459 F. Supp.2d 1275(S.D. Fla., 2006).

    Florida’s Legislature has declared all vessels of whatever classification, to be dangerous instrumentalities in this state.  Fla. Stat. § 327.32.  The statute imposes of the operators of all vessels the highest degree of care in order to prevent injuries to others.  This standard of care is higher than that applied under maritime law, and only applies in cases to which maritime law does not govern.  See Rindfleisch v. Carnival Cruise Lines, Inc., 498 So.2d 488, 490 (Fla. 3d DCA 1986); Bradley v. Guy, 438 So. 2d 854 (Fla. 5th DCA 1983).  Jet skis and air boats are considered vessels.  In the Matter of the Complaint of Everglades Island Boat Tours, 2007 WL 1200961 (M.D. Fla. April 23, 2007); Keys Jet Ski, Inc. v. Kays, 893 F.2d 1225, 1230 (11th Cir. 1990).

    What the Legislature gave with one hand, it took away with the other.  Fla. Stat. § 327.32 limits liability for the reckless or careless operation of a vessel to the operator in immediate charge of the vessel.  Liability will not be imposed upon the owner of the vessel unless he is either the operator of the vessel or he is present in the vessel when the injury occurs.  This statute does not exonerate the absent boat owner for his own direct negligence in entrusting the boat to an incompetent operator.  Boland v. Suncoast Rent-A-Scooter, 439 So. 2d 916 (Fla. 2d DCA 1983); Cashell v. Hart, 143 So. 2d 559 (Fla. 2d DCA 1962).



    Currently, one of the hottest topics of debate in the United States courts concerns the nature and scope of the law governing cruise ship medical care.  For the past 100 years, most courts in the United States have followed the same basic tenant, i.e., when a carrier undertakes to employ a doctor aboard a ship for its passengers’ convenience, the carrier has a basic duty to employ a doctor who is competent and duly qualified.

If the carrier breeches its duty, it is responsible for its own negligence.  If the doctor is negligent in treating a passenger, that negligence will not be imputed to the carrier.  Barbetta v. S/S Bermuda Star, 848 F.2d 1364, 1371 (5th Cir. 1988); The Great Northern, 251 F. 826, 830-32 (9th Cir. 1918); Di Bonaventure v. Home Lines, Inc., 536 F. Supp. 100, 103-04 (E.D. Penn. 1982); Cimini v. Italia Crociere Int’l S.P.A., 1981 AMC 2674, 2677 (S.D.N.Y. 1981); Amdur v. Zim Israel Navigation Co., 310 F.Supp. 1033, 1042-43 (S.D.N.Y. 1969).

    A shipowner owes its injured passengers the “duty to exercise ‘reasonable care to furnish such aid and assistance as ordinarily prudent persons would render under similar circumstances,’” it is not legally obligated to provide a physician aboard its vessel.  Barbetta v. S/S Bermuda Star, 848 F.2d 1364, 1371 (5th Cir. 1988).  Accordingly, where it does provide a physician, the shipowner only has a duty to use reasonable care in the selection of such physician.

    Under federal maritime law, shipowners are most often not held vicariously liable for the negligence of the ship’s doctors in treating passengers.  See Barbetta, 848 F.2d at 1372; Cummiskey v. Chandris, 895 F.2d 107, 108 (2d Cir. 1990); Nanz v. Costa Cruises, Inc., (S.D. Fla. 1991), aff’d 932 F.2d 977 (11th Cir. 1992); Jane Doe v. Celebrity Cruises, Inc., 145 F. Supp. 2d 1337, 13454-46 (S.D. Fla. 2001); Gillmor v. Caribbean Cruise Line, Ltd., 789 F. Supp. 488, 491 (D.P.R. 1992); Hilliard v. Kloster Cruise, Ltd., 1991 AMC 314, 316-17 (E.D. Va. 1990); Mascolo v. Costa Crociere, 726 F. Supp. 1285, 1286 (S.D. Fla. 1989).

    In recent years however, a few federal and state courts have declined to follow the traditional rule that a carrier will not be held liable for negligent treatment rendered by its on-board doctor.  A federal district court first called the rule into question in 1959 in Nietes v. American President Lines, Ltd., 188 F. Supp. 219, 221 (N.D. Cal. 1959) where the court refused the defendant shipowner’s request to follow what it considered an outdated and “ancient rule” and dismiss, a wrongful death suit brought against the defendant pursuant to the doctrine of respondeat superior. 

    However, in Nietes, the court found the ship’s onboard physician to be an employee of the shipowner.  No court has not yet decided whether a shipowner may be held liable for an independent contractor physician, although the case of Fairley v. Royal Cruise Line, Ltd. 1993 A.M.C. 1633, 1634 (S.D. Fla. 1993) did address the issue by attempting to use the doctrine of apparent agency.

    In Fairley, the plaintiff sued Royal Cruise Line for negligence and negligent hiring arising out of the plaintiff’s injury and subsequent treatment by the shipboard’s doctor, which occurred while aboard the ship.  In denying Royal’s motion to dismiss, Judge Stanley Marcus discussed the potential, under certain circumstances, for an apparent agency theory of recovery.  The court stated: if the ship actually held the doctor out to be its agent, under circumstances suggesting that the doctor was treating the Plaintiff on behalf of the carrier, and the Plaintiff so relied to her detriment, then the Defendant could be liable for the ship doctor’s malpractice. 

Apparent agency was recently acknowledged as a viable claim, assuming all of the elements of apparent agency were properly alleged and could be proven, by the district court in Suter v. Carnival Corp., 2007 WL 46623144 (S.D. Fla. May 14, 2007).  In that case, Judge Altonaga stated that:

    Permitting a claim of vicarious liability based on the theory of apparent agency would not disturb those maritime principles [of harmony and uniformity] because cruise lines are well aware that if they affirmatively hold shipboard doctors out to passengers as their agents, they effectively lose their immunity from liability from any negligent acts of their shipboard doctors.  Indeed, courts upholding the majority rule enunciated in Barbetta have either permitted or alluded to the possibility of a passenger raising a claim against a cruise line for injury sustained due to the acts of a shipboard doctor on the theory of apparent agency.

Suter, at * 6.

    Even though the Fairley court could not hold for the passenger on the issue of imposing vicarious liability to the shipowner–the majority rule precluded such a finding–the court did agree that where the cruise line reaps the benefits of carrying a doctor aboard its vessels, there may be circumstances where it should be required to bear the consequences of negligent medical treatment by that doctor.

    The federal district court in South Florida again refused to dismiss a claim for medical negligence of a ship’s doctor in Huntley v. Carnival Corp., 307 F.Supp.2d 1372 (S.D. Fla. 2004).  On Carnival’s motion to dismiss, Judge King held that the cruise line was subject to vicarious liability for the ship doctor’s alleged medical negligence in treating a passenger.  He found particularly persuasive Judge Marcus’ opinion from Fairley that the cruise line has made an economic decision that it is most cost effective for the cruise line and most attractive to prospective passengers for it to employ a shipboard doctor with a well-equipped shipboard infirmary in order to discharge its duty to provide reasonable medical attention under the circumstances.  [Huntley further relied upon the decisions in Nietes and Carlisle v. Carnival.  See discussion below]

    Departures from traditional maritime law concerning the shipowner’s liability with regard to medical care occurred in the Florida state court decision of Carlisle v. Carnival Corp, 864 So.2d 1 (Fla. DCA 2003), rev’d, 2007 WL 471172 (Feb. 15, 2007), followed by the Illinois state court decision of Mack v. Royal Caribbean Cruises, Ltd., 838 N.E.2d 80, 2005 Ill. App. LEXIS 1035.  These cases are the first since Nietes to hold that a passenger injured by the negligent treatment of a cruise line’s on-board physician can maintain a vicarious liability cause of action against the cruise line. 

    A similar situation as the one in Carlisle occurred in Mack v. Royal Caribbean Cruises Ltd. The court stated: “While we acknowledge that we are bound by federal statute to follow federal maritime law in this matter (see U.S.C. § 1333(1) (2004); Offshore Logistics, Inc., 477 U.S. at 222-23, 91 L. Ed. 2d at 189-90, 106 S. Ct. At 2494), Nietes and the federal cases that have followed its reasoning and holding indicate that the question of whether a vicarious liability claim against a shipowner for the negligent treatment by its on-board doctor will stand under maritime law is not settled at this time.  Accordingly, for the reasons stated above, we elect to follow the holding of the federal courts in Nietes, Huntley,and Fairley.”  Despite such promising decisions, several cruise carriers have made significant legal changes with regard to the passenger/carrier relationship in response to these recent holdings. 

    Unfortunately, and to the extreme detriment of the cruising public, the Florida Supreme Court overturned the Carlisle decision citing the traditional maritime precedents.  The Florida Court’s final statement shows its frustration with the precedential maritime law:

    As earlier stated, we find merit in the plaintiff's argument and the reasoning of the district court.  However, because this is a maritime case, this Court and the Florida district courts of appeal must adhere to the federal principles of harmony and uniformity when applying federal maritime law.  At the time the instant case was decided by the Third District, with the exception of Nietes, the federal maritime law uniformly held that a ship owner is not vicariously liable for the medical negligence of the shipboard physician.

Carnival Corp. v. Carlisle, 953So. 2d 461, 470 (Fla. 2007).

    Cruise passengers have not fared any better when they have tried to assert breach of contract claims against cruise lines for failing to provide competent medical care.  In at least two cases from the Southern District of Florida, the district courts have dismissed claims for inadequate or incompetent medical care which were raised as contract claims.  In Doonan v. Carnival Corp., 404 F. Supp.2d 1367, 1373 (S.D. Fla. 2005), the Court dismissed the breach of contract claim, explaining that “maritime law will not support a passenger’s breach of contract claim unless there is an express provision in the contract of carriage guaranteeing safe passage.”  The Doonan opinion was cited as authority in Barnett v. Carnival Corp., 2007 WL 1746900 (S.D. Fla. June 15, 2007).



Statute of Limitations:

    There are several litigation roadblocks that frequently occur early on in a claim against a cruise carrier.  Federal maritime law imposes time constraints on an aggrieved cruise ship passenger.  For physical injuries occurring on cruise vessels that touch U.S. ports, passengers may be required to file a claim within six months and commence a lawsuit within one year. 
   
    Occasionally, courts may not enforce such restrictive limitations based on lack of notice, tolling for a minor passenger, equitable estoppel, contractual overreaching, accidents on shore, and settlement fraud.  For nonphysical injury claims, cruise lines may impose a shorter limitation period.  Most cruise lines require that written claims be filed within days as opposed to months after the accident.  Courts may decide not to enforce these limitations if they were unreasonable under the circumstances, or contrary to a state statute of limitations.  See Miles v. Apex Marine, 498 U.S. 19 (1990); Hughes v. Carnival Cruise Lines, Inc., 2003 WL 1740460, at *1 (S.D.N.Y. Mar. 31, 2003) (one-year time limitation period enforced); Angel v. Royal Caribbean Cruises, Ltd., 2002 WL 31553524, at *1, *5 (S.D. Fla. Oct. 22, 2002) (passenger fell overboard; one-year time limitation enforced); Stone v. Norwegian Cruise Line, 2001 WL 877580, at *1-*2 (E.D. Pa. May 15, 2001) (slip and fall in bathroom; time limitations period enforced); Tateosian v. Celebrity Cruise Servs., Ltd., 768 A.2d 1248, 1252 (R.I. 2001) (food poisoning; one year time limitation period enforced); Levick v. Steiner Transocean Limited, 2005 U.S. Dist. LEXIS 14770 (S.D. Fla. July 13, 2005) (one year passenger ticket limitation to file suit applied to claims against independent contractor who ran the spa on the ship, and filing suit in state court did not toll the time period to file suit in federal court); Gibbs v. Carnival Cruise Lines, 314 F.3d 125 (3d Cir. 2002) (minor burned feet on hot deck surface; one-year time limitations period tolled for minor until after parent began to serve as guardian ad litem after filing of lawsuit); Dillon v. Admiral Cruises, Inc., 960 F.2d 743, 746 (8th Cir. 1992) (trip and fall in ship’s lounge; cruise line may be estopped from relying on one-year time limitation).

Forum Selection Clauses:

    One of the foremost difficulties lies with forum selection clauses.  Through forum selection clauses, the cruise lines have limited the locations where claims may be brought to just a few cities where the large cruise ports are located, such as Miami, Seattle, and Los Angeles.

All cruise lines operating out of Florida cruise ports have forum selection and choice of law clauses in the passenger Ticket Contracts.  A typical clause reads as follows: It is agreed by and between the Guest and [cruise line] that all disputes and matters whatsoever arising under, in connection with or incident to this Contract or the Guest’s cruise, including travel to and from the vessel, shall be litigated, if at all, before the United States District Court for the Southern District of Florida in Miami, or as to those lawsuits to which the Federal Courts of the United States lack subject matter jurisdiction, before a court located in Miami-Dade County, Florida, U.S.A. to the exclusion of the Courts of any other county, state or country.  A Florida Third District Court of Appeal recently upheld the federal court forum clause in the Carnival Cruise Line ticket contract.  Leslie v. Carnival Corp., 2008 WL 34793 (Fla. 3d DCA Jan. 2, 2008).

    To be enforceable, forum selection clauses in cruise tickets or brochures must be fundamentally fair.  Carnival Cruise, Inc. v. Shute, 499 U.S. 585 (1991).  Fundamental fairness means: (1) that the forum was not selected to discourage pursuit of legitimate claims, (2) there was no fraud or overreaching, (3) the notice of the forum selected was adequate, and (4) the consumer had a reasonable opportunity to reject the cruise contract without penalty.

    Many courts have upheld the forum selection clauses in cruise line ticket contracts.  See e.g., Vega-Perez v. Carnival Cruise Lines, 361 F. Supp.2d 1 (D. Puerto Rico 2005); Pratt v. Silversea Cruises, Ltd., 2005 WL 1656891 (N.D. Cal. 2005); Wiggins v. Carnival Corp., 2005 WL 2086043 (W.D. Texas Aug 25, 2005); Powell v. Carnival Cruise Lines, 2005 WL 3080928 (E.D. Cal. Nov. 17, 2005); Elliott v. Carnival Cruise Lines, 231 F. Supp.2d 555 (S.D. Texas 2002); Lauri v. Cunard Line, Ltd., 2000 WL 791771 (E.D. Mich. May 15, 2000).

    Cases have been successful especially when the plaintiffs allege that they did not receive the cruise contract early enough to be able to cancel without being subject to a cancellation fee, and where a cruise line ticket was delivered 13 days before the cruise, and therefore adequate notice of the forum selection clause was not provided and would not be enforced.  See Carnival Cruise, Inc. v. Shute, 499 U.S. 585 (1991); Ward v. Cross Sound Ferry, 273 F.3d 520, 525 (2d Cir. 2001); Cismaru v. Radisson Seven Seas Cruises, Inc., 2001 WL 6546 (Tex. App. Jan. 2, 2001); Stobaugh v. Norwegian Cruise Lines, Ltd., 5 S.W. 3d 232, 235 (Tex. App. 1999).

    When arguing that a forum selection clause in a passenger cruise line ticket is unenforceable, the primary issue is notice.  If the passenger did not have adequate notice of the clause, and cancellation would result in forfeiture of the ticket price, there is a strong argument that the clause is fundamentally unfair under the circumstances and therefore should be stricken.  Casavant v. Norwegian Cruise Line, Ltd., 63 Mass. App. Ct. 785 (2005).

Choice of Law Clauses:

    The law applied to a claim may have a dramatic influence on the likelihood of recovering adequate damages.  Courts may consider several factors in determining whether choice of law clauses should be enforced such as (1) the place of the wrongful act, (2) the law of the flag, (3) the allegiance or domicile of the injured passenger, (4) the allegiance of the ship owner, (5) the place of the contract, (6) the inaccessibility of the foreign forum, and (7) the law of the forum.  Milanovich v. Costa Crociere, SPA, 954 F.2d 763, 768 (D.C. Cir. 1992).  A practitioner should not automatically assume that United States law always favors the plaintiff.  There may be cases where foreign law provides more favorable remedies than United States law.  See Klinghoffer v. S.N.C. Achille Lauro, 795 F. Supp. 112, 115-16 (S.D.N.Y. 1992). 


    Many of the previously mentioned situations concerning cruise ship liability are riddled with complexity.  Cruise ships are common carriers and are held to a reasonable standard of care under the circumstances.  Kermarec v. Compagnie Generale Transatlantique, 358 U.S. 625, 630 (1958).  Importantly, cruise ships that touch U.S. shores may not disclaim liability for loss, death, damage or delay caused or contributed to by the vessel’s negligence.  Although a passenger ticket may contain clauses which seek to disclaim liability for a variety of problems, instances of gross negligence and intentional misconduct may not be disclaimed by common carriers.  Royal Ins. Co. Of Am. v. Southwest Marine, 194 F.3d 1009, 1016 (9th Cir. 1999).

    In addition, many courts, including several cases that our firm has successfully handled, have held that disclaimers of simple negligence, particularly regarding the health and safety of the passengers, such as ingress and egress from the cruise ship, will not be enforced.  Provisions that try and disclaim liability for either gross or simple negligence are usually held to be void under common law and against public policy.

    In Kornberg v. Carnival Cruise Lines, 741 F.2d 1332(11th Cir. 1984), a case involving malfunctioning toilets, the court held that 46 U.S.C.A. §183c expressly invalidates any contract provision purporting to limit a ship’s liability for negligence to its passengers.  The federal statute provides that:  It shall be unlawful for the manager, agent, master, or owner of any vessel transporting passengers between ports of the United States or between any such port and a foreign port to insert in any rule, regulation, contract, or agreement any provision or limitation (1) purporting, in the event of loss of life or bodily injury arising from the negligence or fault of such owner or his servants, to relieve such owner, master, or agent from liability.

Unfortunately, the courts have been willing to enforce disclaimers of liability regarding accidents that occur during shore excursions.  See Henderson v. Carnival Corp., 125 F. Supp. 2d 1375, 1377 (S.D. Fla. 2000) (passenger injured on catamaran trip while on excursion from cruise; notwithstanding Carnival logo on catamaran and crew member shirts, cruise ship disclaimer of ownership or control of catamaran company enforced); Mashburn v. Royal Caribbean Cruises, Ltd., 55 F. Supp. 2d 1367, 1370 (S.D. Fla. 1999) (day trip to Coco Cay Island owned by cruise line; passengers rented Sea-Doo, signed waiver and were injured in accident; no negligence found); Dubret v. Holland Am. Line Westours, Inc., 25 F. Supp. 2d 1151, 1153 (W.D. Wash. 1998) (bus accident during shore excursion; disclaimer of liability enforced).
   
    Some courts have held that a disclaimer for an on-shore excursion may not be enforceable if the passenger relied upon representations or warranties regarding the safety, competence, and reliability of on-shore suppliers of travel services.  See e.g. Berzonzine v. Maui Classic Charters, 1995 AMC 2628 (D. Haw. 1995)(350-pound handicapped passenger broke ankle because of inattention and lack of assistance by crew; misrepresentations in brochure that cruses were “suitable for handicapped individuals).   Lastly, while disclaimers such as these might be enforceable against the cruise carrier, many courts have held that the ground service providers are not immune from liability.


    Yet another pitfall awaiting the plaintiff in a maritime action was imposed by the United States Congress in 1851 through the Limitation of Liability Act, 46 U.S.C. Appx. § 181-189.  This Act was passed to encourage ship building, to induce capitalists to invest money in this industry, and to protect the commercial interests of the United States.  This article merely touches upon the most pertinent aspect of the Act for most tort plaintiffs and is not meant to be a comprehensive treatise on the many particularities of the Act.

    The first two sections of the Act provide for exoneration from liability under certain conditions for certain enumerated types of cargo and for damages related to fire.  It is the third section of the Act which most affects tort plaintiffs.  Section 183 provides:

    The liability of the owner of any vessel, whether American or foreign, for any embezzlement, loss, or destruction by any person or any property, goods, or merchandise shipped or put on board of such vessel, or for any loss damage, or injury by collision, or for any act, matter, or thing, loss, damage, or forfeiture, done, occasioned, or incurred, without the privity or knowledge of such owner or owners, shall not, except in the cases provided for in subsection (b) of this section, exceed the amount or value of the interest of such owner in such vessel, and her freight then pending.

    Federal courts have exclusive admiralty jurisdiction to determine whether a vessel owners is entitled to exoneration or to limited liability under the Act.  Ex Parte, Green, 286U.S. 437 (1932).  In limitation of liability actions, as in all admiralty cases, there is no right to a jury trial.  Newton v. Shipman, 718 F.2d 959 (9th Cir. 1983).  The procedure which must be strictly followed by a vessel owner to bring an action for exoneration or limitation of liability is found in Rule F, Supplemental Rules for Certain Admiralty and Maritime Claims, Federal Rules of Civil Procedure.

    The determination of whether a shipowner is entitled to limit liability involves a two-step analysis.  First, the court must determine what acts of negligence or conditions of unseaworthiness caused the accident.  Second, the court must determine whether the shipowner had knowledge or privity of those same acts of negligence or conditions of unseaworthiness.  See e. g. American Dredging Co. v. Lambert, 81 F.3d 127 (11th Cir. 1996).

    Only if the owner is without privity or knowledge may he limit liability.  Otherwise, the owner retains personal liability.  For an excellent discussion of some of the things which may constitute privity and knowledge, see Joyce v. Joyce, 975 F.2d 379 (7th Cir. 1992); see also In re Hercules Carriers, Inc., 768 F.2d 1558 (11th Cir. 1985); Avena v. Florida Towing Corp., 322 F.2d 155 (5th Cir. 1963); Self v. Great Lakes Dredge & Dock Co., 832 F.2d 1540 (11th Cir. 1988).  Significantly, the Joyce court held that the tort of negligent entrustment defeats a claim for limitation of liability.

    It is estimated that more than nine million North Americans vacationed aboard cruise ships in 2005. With the number of passengers increasing significantly in just the past five years, the safety aboard these ships has not correspondingly increased.  These vessels are not merely common carriers, they are virtual floating cities and thus should be governed by the same laws as a land based entity.  Despite so many litigation hurdles, our firm has been quite successful in garnering more than adequate settlement recoveries for our clients, especially in the area of on-board cruise ship negligence.

    A few examples of cases in which Leesfield & Partners has represented clients involved in cruise ship and/or boating cases are:

●    Wrongful death of scuba diver on cruise excursion in the Bahamas

●    Cruise ship collision with cargo ship in middle of the night in English Channel

●    Wrongful death of motorboat passenger where boat operator crashed into residential dock

●    Wrongful death involving jet ski struck by motorboat in Key West

●    Head injury resulting from cruise ship mooring line snapping and hitting passenger in head

●    Slip and fall by cruise passenger on ship’s pool deck

●    Severe back injuries due to chair collapse on cruise ship

●    Negligent supervision of boating activities resulting in amputated leg by propeller

●    Defective automatic sliding door closing on cruise ship passenger

●    Cruise passenger amputation of finger due to collapsed lounge chair

●    Medical negligence claim for wrongful death against cruise line
●    Sinking of rented pleasure boat off Key West

●    Boat collision in Biscayne Bay for failure to yield right of way with severely injured passenger

●    Private fishing boat collision in Florida Keys channel for failure to yield right of way

●    Wrongful death for negligent entrustment of motorboat to a 6th grader by parents



    Rental car companies reap millions, if not billions of dollars, every year from Florida tourists.  Persons injured by rental cars are protected under Florida dangerous instrumentality doctrine which imposes strict vicarious liability upon motor vehicle owners when a non-owner, who is driving the vehicle with the owner’s permission, negligently causes injury.  Lewis v. Enterprise Leasing Co., 2005 WL 2447873 (Fla. 3d DCA 2005); Hertz Corp v. Jackson, 617 So. 2d 1051 (Fla. 1993).  Lamb v. Matetzschk, 906 So. 2d 1037 (Fla. 2005).  Thus, the rental car company owner of a motor vehicle is liable to third persons for injuries caused by the negligent operation or use of the motor vehicle by the person to whom the owner entrusted the vehicle.  Ryder TRS, Inc. v. Hirsch, 900 So. 2d 608 (Fla. 4th DCA 2005). 

    The rental car company owner is liable even where the vehicle has been rented to another and the renter permits someone else to drive the vehicle who then causes the injury, against the terms of the rental contract.  Susco Car Rental Sys. Of Florida v. Leonard, 112 So. 2d 832 (Fla. 1959); Stupak v. Winter Park Leasing, Inc., 585 So. 2d 283 (Fla. 1991).

The doctrine is premised on the theory that one who originates the danger by entrusting the vehicle to another is in the best position to make certain that there will be adequate resources with which to pay the damages caused by its negligent operation.   Southern Cotton Oil Co. v. Anderson, 86 So. 629 (Fla. 1920).  This principle has been consistently followed and reaffirmed by Florida courts to the present day.  See e.g., Ady v. American Honda Finance Corp., 675 So. 2d 577 (Fla. 1996).  The doctrine has been applied to automobiles as well as to golf carts.  Meister v. Fisher, 462 So. 2d 1071 (Fla. 1984).

    Car rental agencies also have a duty to warn renters of foreseeable criminal conduct particularly in light of the superior knowledge of the car rental company.  Shurben v. Dollar Rent-A-Car, 676 So.2d 467 (Fla. 3d DCA 1996)(renter was British tourist).

    Under pressure from the rental car industry, Florida’s Legislature amended its Financial Responsibility statute, Fla. Stat.§ 324.021, to limit the amount of damages a rental car company could be liable for based upon the negligence of a rental car driver to a maximum of $500,000.  That was still too much for the rental car companies.

    Effective August 10, 2005, a federal statute was enacted which purports to eliminate altogether all vicarious liability for rental car companies where there is no direct negligence or criminal wrongdoing on the part of the rental car company.  49 U.S.C. § 30106.  This statute, commonly referred to as the Graves Amendment, does not supercede any state laws which impose financial responsibility or insurance standards on the owner of a motor vehicle for the privilege of registering or operating a motor vehicle.

    Since August 10, 2005, car rental company defendants have challenged every tort lawsuit in Florida based upon 49 U.S.C. § 30106, contending that Fla. Stat. § 324.021(b)(2) is not a financial responsibility law and that the federal statute supercedes it.

    Most Florida trial courts have ruled in favor of the Plaintiffs, finding that Fla. Stat. § 324.021(b)(2) is a Financial Responsibility statute which is expressly exempted from 49 U.S.C. § 30106.  See for example, All State v. Hertz, Miami-Dade County; Bechina v. Enterprise Leasing Co., Miami Dade County; Datilma v. Progressive and U-Haul, Orange County; Garrison v. Enterprise, Volusia County; Gates v Rhoades and Enterprise, Seminole County; Gonzalez v.Pena Diaz, U-Save Auto Rental, Orange County; Hammond v. Enterprise, Brevard County; Hernandez v. U-Haul, Orange County; Lawson v. Enterprise, Duval County; Mumford v. Dollary Thrifty, Charlotte County; Poole v. Enterprise, 2006 WL 1388442 (Brevard County); Quiles v. Hertz, Orange County; Rivera v. Garcia, Rental Car Finance Group,  Miami Dade County; Rogers-Hutson v. Meoli, Hertz, Sarasota County; Rosado v. La Mondue Law firm, et al, Polk County; Trivess v. Alamo Financing, Orange County; Vega v. Penske, Miami Dade County. 

The only Florida Appellate Court in Florida to have ruled on the Graves Amendment has held that vicariously liability claims against the rental car companies are barred.  See Kumarsingh v. PV Holding Corp, (Avis Rent A Car), 2007 WL 2847956 (Fla. 3d DCA, Oct. 3, 2007); Bechina v. Enterprise Leasing Co., 2007 WL 4322303 (Fla. 3d DCA Dec. 12. 2007).  A motion for rehearing is currently pending in the Kumarsingh case. 

Several  federal District Courts have ruled in favor of the rental car companies.  See Garcia v. Vanguard Car Rental, 510 F. Supp.2d 821 (M.D. Fla. 2007); Dupuis v. Vanguard Car Rental USA, 510 F. Supp.2d980 (M.D. Fla. 2007); Seymour v. Pense Truck Leasing Co., L.P., 2007 WL 2212609 (S.D. Ga. July 30, 2007); Liberty Mut. Ins. Co. v. TCF Equipment Finance, Inc., 2007 WL 4557204 (M.D. Fla. Dec. 20, 2007).

The good news on the federal front is that an opinion out of the Southern District of Florida in a case brought by Leesfield & Partners attorneys, Thomas Scolaro and Patricia Kennedy, has held that the Graves Amendment is unconstitutional — in direct conflict with Garcia.  See Vanguard v. Huchon, 2007 WL 2875388 (S.D. Fla.  Sept. 14, 2007).  The Huchon case was followed by the same Judge in Vanguard Car Rental USA v. Drouin, 2007 WL 2915903 (S.D. Fla.  Oct. 5, 2007).  Both Garcia and Druoin are currently on appeal to the Eleventh Circuit Court of Appeal.

Please contact Partner Patricia Kennedy for more information .