The US 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, reports Lynne Crossey, Syndicate Associate, Americas Syndicate, Steamship Mutual.
A passenger had sought to appeal a lower court decision 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.
Antionette Pizzino was a passenger on board cruise ship Norwegian Sky. She fractured both 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 said that the floor was wet, but the CCTV did not determine whether any liquid was on the floor at the time. 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. Further, 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 explanation for the wiping with a paper towel was that he did this to appease Pizzino and her husband following the incident.
Pizzino filed, alleging that Norwegian had negligently created and failed to eliminate a hazardous condition and that this negligence caused her injuries. Norwegian’s liability was contingent on whether the jury believed
- Pizzino’s theory that her foot slipped on liquid spilt by the crew member, or
- that Pizzino simply tripped over her own feet whilst walking due to her own carelessness.
In the US District Court for the Southern District of Florida before Judge Moreno, 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 constrictive notice.
Liability was governed by US Federal maritime law. In order for Pizzino to succeed in her negligence claim, she was required to prove that:
- Norwegian had a duty to protect her form a particular injury;
- Norwegian breached that duty;
- The breach actually and proximately caused her injury; and
- 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 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 two District Court cases referred to had been wrongly decided.
Standard Club said that, in affirming, the Appellate Court confirmed that it was 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. Crossey wrote: “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.”