Parrish Appeals

Florida Appellate Law Firm

Maritime Medical Malpractice Claims

Posted in Admiralty Law

In Franza v. Royal Caribbean Cruises, Ltd., 772 F. 3d 1225 (11th Circuit 2014), the Eleventh Circuit Court of Appeals overturned 140 years of precedent by holding that cruise lines may be sued for the professional negligence of ships’ physicians and nurses. In this landmark case, I successfully represented the Personal Representative of Pasquale Vaglio, who died as a result of the medical negligence of RCCL’s medical staff in attending to a closed head injury sustained while on the cruise. Prior to the Franza decision, cruise passengers had no right to sue cruise lines for even the most egregious negligence on the part of the cruise lines’ physicians, even though the cruise lines employed the physician, and directly profited from the physician’s practice aboard its vessels. In Franza, the Eleventh Circuit, which has jurisdiction over federal maritime cases in Georgia, Alabama and, more importantly, cruise lines, Florida, refused to recognize the immunity defense which cruise lines raised, the roots of which, according to the court, “snaked back into a wholly different world . . . of 19th Century steamships . . . .” Instead, relying upon well-established maritime agency principles, the Eleventh Circuit acknowledged the 21st Century reality of medical care on modern cruise lines. Before addressing the opinion in detail, we will briefly revisit the history of maritime medical malpractice actions.

Beginning in the 1870’s, when physicians made horse and buggy house calls to assist with the delivery of infants in their parents’ homes, Mary O’Brien, an Irish immigrant from County Cork was sailing aboard a Cunard vessel as part of the massive Irish immigration to the United States in the second half of the nineteenth century. Boston, the port of entry, maintained strict quarantine regulations for immigrants to see that they were protected from smallpox by vaccination aboard vessels prior to debarkation. Approximately 200 female passengers were assembled below deck and those without marks on their arm were vaccinated by the ship’s physician. O’Brien claimed that she had previously been vaccinated even though there was no mark, but her claim of prior vaccination was rejected or ignored and she was vaccinated.

She sued the ship’s physician as well as Cunard. After a full bench trial, the court ruled against her on her claim of assault against the physician and also ruled that the steamship operator could not be held vicariously liable. The court held that it would be unreasonable to hold Cunard responsible for all of the particulars of the physician’s treatment of passengers. A few years later, a New York State Court of Appeals ruled in the same fashion, also following a bench trial, based upon the doctrine of charitable immunity with respect to hospitals. Yes, in the 1870’s, hospitals were immune from suit as charitable entities. Likewise, in the early 1900’s, the Ninth US Court of Appeals rejected claims for vicarious liability against ship owners following full bench trials.

As late as 1988, the Fifth Circuit Court of Appeal, which has jurisdiction over federal cases filed in Texas, Louisiana and Mississippi, likewise held that a cruise line could not be held liable under agency principles for the negligence of its shipboard physician. See, Barbetta v. S/S Bermuda Star, 848 F. 2d 1364 (5th Cir. 1988).

Although Barbetta followed some of the same legal principles that had been established 100 years earlier, it represented a stark procedural departure from that established law. Barbetta was decided at the summary judgment stage, rather than after a full trial, yet the Barbetta court stated that – as a matter of law – a passenger could never assert an agency claim against a cruise line for the negligence of its employed physicians. Two years after Barbetta was decided, the United States Supreme Court ruled that Carnival Cruise Line could require all of its passengers, no matter where they resided, to file suit against the cruise line in the cruise line’s home venue, i.e., Miami, Florida. See, Shute v. Carnival Corp.

Accordingly, the overwhelming majority of passenger lawsuits were filed in Florida State Courts. However, beginning in the mid to latter part of the first decade of this century, the cruise lines went a step further: They required their passengers to sue them in Federal District Court in the Southern District of Florida, to the exclusion of Florida’s State Courts. Thus, even though the Florida Supreme Court had followed Barbetta as late as 2007, the herding of all passenger claims into Federal District Court by the cruise lines left the issue of their vicarious liability for negligence of shipboard physicians open to challenge at the Eleventh US Court of Appeals, which had never addressed the issue.

Most of the United States District Court judges (trial level judges in the federal system) in the Southern District of Florida followed the so-called Barbetta Rule both with respect to allegations of actual agency, as well as apparent agency. Many district court judges granted motions to dismiss at the pleading stage. These decisions either were not appealed, or were settled by the cruise lines after notice of appeal was filed.

However, in late 2014, in Franza v. RCCL, the Eleventh Circuit noted that “although the general maritime law of the United States has long embraced the principles of agency law, the so-called “Barbetta Rule” immunizes a ship owner from respondeat superior liability whenever a ship’s employees render negligent medical care to its passengers . . . no matter how clear the ship owner’s control over its medical staff or how egregious the claimed acts of negligence.” 772 F. 3d at 1228. The Eleventh Circuit acknowledged that “Franza raises two questions of first impression.” Relying upon established maritime case law from both the United States Supreme Court and for the Eleventh Circuit the court observed that “[w]e have repeatedly emphasized that vicarious liability raises fact-bound questions, and we can discern no sound reason in law to carve out a special exemption for all acts of on-board medical negligence.” Id. Noting that much has changed in the quarter century since Barbetta, both in terms of the evolution of legal norms, the rise of a complex cruise industry, and the progression of modern technology, the court declined to adopt the Barbetta Rule.

The Eleventh Circuit called upon the United States Supreme Court’s proud tradition of “tak[ing] the lead in formulating flexible and fair remedies in the law maritime, and Congress ha[s] largely left to [the Supreme] Court the responsibility for fashioning the controlling rules of admiralty law.”

Thus, applying well established maritime law principles of agency, the Eleventh Circuit reviewed the complaint which the district court had dismissed, and found that it met federal pleading requirements to assert a claim for actual agency as well as apparent agency. Ultimately, the court concluded that “the Barbetta Rule now seems to prevail more by the strength of inertia than by the strength of its reasoning.”

Now, because of the cruise line’s federal only ticket contracts, the Eleventh Circuit’s ruling will apply to the vast majority of passenger claims filed by passengers on American cruises. Thus, for the cruise lines the Eleventh Circuit’s Franza opinion comes under the heading of “be careful of what you ask for” – or in this case, what you insist upon.

Putting the “Extraordinary” Back in the Extraordinary Writ of Certiorari

Posted in Florida Cases of Interest

         Today in a unanimous opinion, the Supreme Court of Florida quashed a petition for writ of certiorari which had been granted by the Third District Court of Appeal, and took the rather extraordinary step of disapproving of a half dozen other decisions in which district courts of appeal had previously granted writs of certiorari, including three decisions from the Third District; two from the Fifth; and one from the Fourth.  One of the decisions quashed by the Supreme Court dates all the back to 1986.  Today’s decision, Board of Trustees of the Internal Improvement Trust Fund v. American Educational Enterprises, LLC, Case No. 10-2251, can be found here.

          The Third District had granted the petition for certiorari because although the case involved a failure to disclose a 1999 appraisal in a bidding package for a 2001 purchase of property, the plaintiff requested, and the trial court ordered, the production of significant financial documents for the time period between 2005 and 2007.  In addition, the Third District found that the  requested documents were not relevant to the issues involved in the case. 

             The Supreme Court held that compelling overly broad disclosure of documents does not present a basis for certiorari review, and reestablished the principle that what is relevant for purposes of discovery is significantly broader than what is relevant for purposes of admission into evidence  at trial. 

             Lawyers will be well advised to review this most recent Supreme Court decision before advising their clients to pursue petitions for writs of certiorari of discovery orders which do not involve  claims of privilege.

Eleventh Circuit United States Court of Appeals Acknowledges Cruise Lines’ Duty to Warn Their Passengers of Dangers Ashore.

Posted in Admiralty Law, Florida Cases of Interest

In a historic and tragic case, the Eleventh Circuit Court of Appeals today acknowledged for the first time that cruise lines have a duty to warn their passengers of dangers ashore in places where their passengers are known or expected to visit during ports-of-call. You can read the opinion here. The case involves the shooting death of 15-year-old Liz Marie Perez Chaparro who was celebrating her quinceanera with her parents and brother on a cruise aboard the M/V Victory. One of the ports-of-call was St. Thomas, in the U.S. Virgin Islands. Unbeknownst to the Chaparros, but well known to Carnival, was the fact that the capital city of St. Thomas, and particularly an area known as Coki Beach, at Coki Point, had become the scene of rampant gang related violence and numerous shootings. In fact, just a few months before the incident in which Liz Marie was shot and killed, no less an authority than the Attorney General of the Virgin Islands had predicted that innocent bystanders would be caught up in these shootings. His predictions were quoted in U.S. Virgin Islands newspapers.

Nevertheless, cruise lines, including Carnival, continued to promote and sell excursions to Coki Beach/Coki Point. In fact, one of Carnival’s crew members recommended Coki Beach to the Chaparro family. The Chaparro family visited Coki Beach, although not on the Carnival-promoted and sold excursion, opting instead for a less expensive excursion to the area. When the excursion bus was leaving the area, Liz Marie was shot and killed, and died in her father’s arms, when gunfire broke out at the funeral of a gang member who had been killed only days before in a shoot-out.

Although the duty to warn is well established in state court, and has been accepted by most of the District Court Judges in the Southern District of Florida where the vast majority of cruise line cases are filed, the duty to warn passengers of dangers ashore had never previously been squarely addressed by the Eleventh Circuit. The duty emanates from a state intermediate appellate court decision issued over 25 years ago, Carlisle v. Ulysses Line Ltd., S.A., 475 So.2d 248 (Fla. 3DCA 1985).

When the Chaparros filed their lawsuit against Carnival arising out of their daughter’s death, and also brought a claim on behalf of her brother for the intentional infliction of emotional distress, the United States District Court Judge dismissed the claim, ruling that under the federal pleading standards, the Plaintiffs had failed to properly state a claim for relief. On appeal, in addition to defending that position, Carnival argued that the Third District Court of Appeal’s Carlisle decision represented an unwarranted expansion of maritime law beyond the boundaries of the cruise vessel itself. The Eleventh Circuit specifically rejected that argument, finding “the rule in Carlisle consonant with the federal maritime standard of ordinary reasonable care under the circumstances.”

The Chaparro family is represented by trial lawyers Jim Walker and Lisa O’Neill of Walker & O’Neill, in South Miami, and were represented on appeal by this office.

The Eleventh U.S. Circuit Court of Appeals Rules that Cruise Lines Cannot Limit Their Liability for Increasingly Dangerous Onboard Activities Such as Rock Climbing Walls, Zip-lining, and Simulated Surfing

Posted in Admiralty Law

Johnson v. Royal Caribbean Cruises, Ltd., 2011 WL 6354064 (11th Cir. 2011).

You have no doubt seen the cruise line commercials which depict happy passengers engaging in physical activities normally found ashore – rock climbing walls; zip-lines; and FlowRider simulated surfing attractions. These commercials, utilized to entice passengers and their families to choose cruising as their vacation destination do not mention the release of liability form which passengers are quickly shown in a 3 inch x 5 inch electronic keypad, such as one signs at the grocery store checkout counter when paying by credit card, with fine print that purports to release the cruise line from even its own negligence.

Charlene Johnson was a passenger aboard the “Oasis of the Seas,” the first of the new “Genesis” class of mega cruise ships being touted as floating cities. It offers the cruising public exciting recreational activities such as rock climbing walls, zip-lines and FlowRiders. Royal Caribbean’s own promotional material notes that the FlowRider “draws the most challenging demographic to retain the 13 to 21-year olds,” and Royal Caribbean’s Director of Brand Innovation and Alliance Marketing, Jessica Correa, acknowledged that that demographic drives “70% of our guests’ vacation planning decisions.” That same promotional material stated that because the FlowRider “is money in the bank” because it appeals to kids. The promotional materials contain assertions that “our ride is designed to handle any wipe-outs,” and brag that the “FlowRider waveform is a proprietary composite membrane ride surface that absorbs the energy of impacts. The FlowRider may wipe-out, but they will get back up again and again and again.”

Johnson received instruction for the body boarding portion of FlowRider from an instructor employed by Royal. Johnson was instructed to stand on the body board while the instructor was holding it. When he released the board, Johnson fell off the board and suffered a fractured ankle. The maneuver attempted by Royal’s instructor was in violation of Royal’s safety guidelines for the FlowRider attraction. These guidelines specifically state that the boards for the surfing portion can be stood upon, while the boards used for the body boarding portion should only be used while lying down.

A United States District Court Judge granted Royal Caribbean’s Motion for Summary Judgment based upon the release which Johnson had signed. However, that release violates a Federal Statute enacted by Congress in 1936 which prohibits a common carrier (such as a cruise line) from attempting to limit its liability via contract for its own negligence for personal injury or death to passengers. The potential impact of the District Court’s decision was significant, as it would be fatal to the claims of many passengers who are injured onboard cruise line vessels while engaged in such activities every year.

On December 20, 2011, the Eleventh Circuit Court of Appeal reversed the District Court’s grant of summary judgment in favor of the cruise line, and remanded the case back to the District Court for trial. In its unpublished opinion, the Court agreed with Ms. Johnson that the Federal Statute absolutely prohibited the cruise line from enforcing such a waiver:

“Congress has spoken on this very type of waiver and has unequivocally prohibited it and rendered it void. 46   U.S.C.  § 30509(a)(2). The statute contains no exceptions regarding the type of activity – whether recreational, ultra hazardous, or otherwise – in which the passenger is partaking when the injury occurs nor where the particular provision is found – whether on the back of a ticket or in a separate, signed, electronic document as here. See 46 U.S.C. § 30509.”

Mr. Parrish represented Ms. Johnson in her successful appeal to the Eleventh Circuit Court of Appeal.

Third DCA: Statute Requires Developer to Establish Two Separate Escrow Accounts

Posted in Florida Cases of Interest

CRC 603 and CRC 1103, LLC v. North Carillon, LLC, 2011 WL 3916151 (Fla. 3d DCA Sept. 7, 2011)

This case is a South Florida special, arising out of the purchase of high-end condominium units in 2006. Borrowing a phrase from former Fed. Chairman Alan Greenspan, Judge Vance Salter referred to the period as “an irrationally exuberant real estate market.” At issue were deposits, exceeding $176,000.00 a piece, on two units. Pursuant to Florida Statute §718.202, a purchase contract is voidable (and the deposits recoverable by the buyers) if the developer failed to comply with the statute, which in §1 requires the developer to hold a deposit of up to 10% of the sales price in an escrow account, and in §2 requires any amounts in excess of 10% of the sales price to be held in a “special escrow account. ” The issue in the case was whether a developer could use a single escrow account versus two separate accounts. The trial court had dismissed the buyers’ action against the developer and the escrow agent.

Judge Salter and his colleagues at the Third DCA found the opinion of federal Judge Cecilia Altonaga, in Double AA International Investment Group, Inc. v. Swire Pacific Holdings, Inc., 674 F.Supp.2d 1344 (S.D. Fla. 2009), to be persuasive. Judge Altonaga ruled that given the plain language of the statute by giving meaning to each word as written, and avoiding an interpretation that would render portions of the statute surplusage (i.e., the use of the word “special,” in §2) the Court concluded that the statute requires the developer to establish two separate escrow accounts.

Simple enough?  Not quite. In the spring of 2010, at the behest of developers, and in response to the December 2009 opinion from Judge Altonaga, Florida’s Legislature amended §718.202.  The amendment purported to be a “clarification” of the statute, and permitted use of a single escrow account. The buyers argued, and the Third District agreed, that the 2010 amendment could hardly have been intended to “clarify” a set of escrow requirements that were enacted by the Legislature more than 25 years ago. Furthermore, even if the 2010 amendment was intended as a clarification, and therefore could be applied retroactively, the Third District found that retroactive application would be unconstitutional as it would impair the buyers’ vested contractual rights in violation of Article I, §10, of the Florida Constitution. The court did, however, affirm the dismissal of the claims against the escrow agent.