Lapidus v. NCL America LLC, 924 F. Supp. 2d 1352

Plaintiff, a 75-year-old fare-paying passenger on NCL’s Pride of America, participated in a Volcanoes National Park excursion while the ship docked in Hawaii.
NCL advertised the excursion as “level 1,” the easiest option, and claimed no notable health or safety restrictions for participants.
Plaintiff alleges he suffered a heart attack due to hazardous excursion conditions, including arduous hiking terrain and toxic volcanic gases (sulfur dioxide) inside a lava tube.
The Second Amended Complaint includes negligence theories against NCL and the Excursion Entities (Polynesian Adventure Tours) for various purported failures, and claims of apparent agency, joint venture, and third-party beneficiary status.
The Court granted in part and denied in part NCL’s motion to dismiss, dismissing several counts with prejudice while allowing one negligence claim (failure to warn of volcanic gases) to proceed.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Duty to warn under maritime law for onshore dangers	Plaintiff argues NCL could be liable for dangers not open/obvious.	NCL contends terrain and steps were open/obvious; no duty to warn.	Duty to warn found for volcanic gases; open/obvious terrain not for warning.
Knowledge of danger and duty to warn	NCL knew or should have known about NPS warnings and dangerous conditions.	NCL lacked superior knowledge and duty to warn absent specific danger.	Sufficient pleadings to claim duty to warn based on NPS warning about fumes.
First aid and medical care duty	NCL breached duty by inadequate first aid and delay in medical care.	Claims are conclusory and insufficiently pled.	Claims regarding first aid/medical care dismissed with prejudice.
Apparent agency/joint venture claims against Excursion Entities	Excursion Entities acted as apparent agents or in a joint venture with NCL.	No factual basis tying Excursion Entities to negligence by NCL.	Counts III and IV compellingly dismissed.
Third-party beneficiary claim failure	Contract between NCL and Excursion Entities intended to benefit Plaintiff.	No express provision or intended primary/direct benefit to Plaintiff.	Count V dismissed with prejudice for lack of plausible third-party beneficiary claim.

Kermarec v. Compagnie Generate Transatlantique, 358 U.S. 625 (U.S. 1959) (shipowner’s duty to exercise reasonable care with notice of risk; standard varies by dangers on land versus nautical context)
Keefe v. Bahama Cruise Line, Inc., 867 F.2d 1318 (11th Cir.1989) (duty to warn under maritime standard when dangers are not clearly nautical)
Carlisle v. Ulysses Line Ltd., S.A., 475 So.2d 248 (Fla. 3d DCA 1985) (duty to warn for dangers known or reasonably should be known about in the place visited)
Chaparro v. Carnival Corp., 693 F.3d 1336 (11th Cir.2012) (recent Eleventh Circuit on negligence against carrier for warnings in risky area)
Smolnikar v. Royal Caribbean Cruises, Ltd., 787 F.Supp.2d 1308 (S.D.Fla.2011) (district court on warnings and duties in cruise contexts)
Isbell v. Carnival Corp., 462 F.Supp.2d 1232 (S.D.Fla.2006) (on duty to warn about hazards in excursion contexts)
Balachander v. NCL Ltd., 800 F.Supp.2d 1196 (S.D.Fla.2011) (ocean hazard vs. onshore hazard warnings in cruises)
Henretig v. United States, 490 F.Supp. 398 (S.D.Fla.1980) (open/obvious conditions analysis for hiking hazards)
Daigle v. Point Landing, Inc., 616 F.2d 825 (5th Cir.1980) (foreseeability and dangers known to exist in a particular place)
Locke v. Liquid Air Corp., 725 F.2d 1331 (11th Cir.1984) (attribution on how to treat warnings and dangers given pre-1981 Fifth/Eleventh Circuit)
Bonner v. Prichard, 661 F.2d 1206 (11th Cir.1981) (binding as a basis for adopting Fifth Circuit precedents)