In the case of Tesoriero v Carnival Corporation d/b/a Carnival Cruise Line decided by the federal 11th Circuit Court of Appeal on July 14, 2020, the appeal was decided in favor of the cruise line. The case involved the collapse of a wooden vanity chair in the cabin of plaintiff. There was no outward sign of any defect in the chair before the incident. This case is a good explanation of the duty owed to a passenger and the burden of proof for a plaintiff on liability.
A few key principles guide the analysis in this case.
First, a cruise line “is not liable to passengers as an insurer,” but instead is liable to passengers “only for its negligence.” The elements of a maritime negligence claim, in turn, are well-established, and stem from general principles of tort law. A cruise passenger must show that:
(1) the defendant had a duty to protect the plaintiff from a particular injury,
(2) the defendant breached that duty,
(3) the breach actually and proximately caused the plaintiff’s injury, and
(4) the plaintiff suffered actual harm.
Thus, the scope of Carnival’s duty to Tesoriero was one of “ordinary reasonable care under the circumstances.” This standard required, “as a prerequisite to imposing liability, that the carrier have had actual or constructive notice of the risk-creating condition,” at least so long as “the menace is one commonly encountered on land and not clearly linked to nautical adventure.”
In other words, a cruise ship operator’s duty is to shield passengers from known dangers (and from dangers that should be known), whether by eliminating the risk or warning of it. Liability for a cruise ship operator thus “hinges on whether it knew or should have known about the dangerous condition.”
There is a way to show this “knowledge” by demonstrating “constructive notice” existed. A plaintiff can establish constructive notice by showing that a “defective condition existed for a sufficient period of time to invite corrective measures.” Or, alternatively, a plaintiff can show evidence of “substantially similar incidents in which conditions substantially similar to the occurrence in question must have caused the prior accident.” But, the mere fact that the cruise line runs the ship is not enough—constructive notice of a risk cannot be imputed merely because a shipowner “created or maintained” the premises.
In this case, the evidence did not show Carnival had actual notice that the chair was dangerous. There was no evidence of substantially similar incidents involving wooden cabin chairs. The daily inspection policy for the cruise line required stewards to report damaged furniture to a floor supervisor, and the supervisor was then responsible for documenting and addressing the issue. The lack of any such report noting structural damage to Tesoriero’s cabin chair—or any wooden cabin chair for that matter —indicated the chair was not in a condition that invited corrective measures.
There also was a discussion in the case of the doctrine of “res ipsa loquitur”.
Tesoriero argued even if she could not show Carnival had notice of the chair’s dangerous condition, the cruise line could still be held liable under the “res ipsa” doctrine because it eliminated the usual notice requirement. “Res ipsa loquitur” (Latin for “the thing speaks for itself”) is an evidentiary doctrine that permits a trier of fact to infer a defendant’s negligence from unexplained circumstances. For the doctrine to apply, the plaintiff needs to show that:
(1) the injured party was without fault,
(2) the instrumentality causing the injury was under the exclusive control of the defendant, and
(3) the mishap is of a type that ordinarily does not occur in the absence of negligence.
However, for a plaintiff to rely on “res ipsa loquitur” to show a breach of duty, they still bear the burden of proving such a duty existed in the first place. And because notice is an integral part of duty, a passenger who relies on “res ipsa loquitur” still bears the burden of showing that the cruise line had notice.
As it applied in this case, Carnival’s duty was to protect Tesoriero from dangerous conditions that it was aware of or should have been aware of. But, as noted above, the defect in the chair was not known and was apparently hidden. Because “res ipsa loquitur” had no effect on the Court’s duty analysis, Tesoriero’s failure to prove Carnival had notice could not be cured by her reliance on “res ipsa loquitur”.
In sum, the Court concluded that Tesoriero did not establish that Carnival had actual or constructive notice that the chair was dangerous. This was fatal to her case and her failure to establish the duty element of her negligence claim could not be cured by her invocation of the “res ipsa loquitur” doctrine.
[NOTE: The chair was removed from the cabin and replaced. Ultimately, it could not be located and was not available to the plaintiff. She also sought in this case to have the Court invoke a negative presumption (“adverse inference sanction”) to be applied to Carnival to save her case. The Court concluded however there was no bad faith in the disposal of the chair and it did not rise to a level of bad faith to create a presumption of liability.]
Click here to read the decision in its entirety.