288 F. Supp. 3d 1302
S.D. Fla.2017Background
- On August 7, 2015, O'Brien was a passenger on Norwegian Sky; he entered a shallow children’s pool, smelled a strong chlorine/chemical odor, observed a white foamy residue near the pool, and later developed blistering/burning to his feet.
- Plaintiff alleged chemical burns from caustic deck-cleaning chemicals, Jacuzzi chemicals, and/or an overly hot pool deck; Norwegian contests all theories.
- Norwegian operates an automated ProMinent chemical feed system and performs manual pool checks (every 4 hours for pools, hourly for the Jacuzzi); Norwegian uses only soap and water to clean decks.
- No other similar injuries were reported aboard the ship during that cruise or in the three years prior; independent examiner found no evidence the burns were chemical in origin.
- Plaintiff did not designate an expert to establish medical causation and several expert/treating opinions on causation were struck for noncompliance with disclosure rules.
- Procedurally: Norwegian moved for summary judgment; Court granted summary judgment for Norwegian and entered final judgment, closing the case.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Existence of a dangerous condition (chemicals/hot deck) | Smell of chlorine, white foamy residue, and injuries show a dangerous condition existed | No admissible evidence chemicals were at unreasonable levels or that the deck posed an unreasonably dangerous condition | No genuine issue; plaintiff failed to present admissible evidence of a dangerous condition |
| Notice (actual/constructive) | Crew were present near the area for ~30 minutes—enough time to notice a leak | No evidence of prior incidents, leaks, or readings showing unsafe chemical levels | No evidence Norwegian had actual or constructive notice; summary judgment for defendant |
| Duty to warn for hot deck (open & obvious) | Concedes deck was open and obvious but invokes comparative negligence | Deck heat was open and obvious; Norwegian had no duty to warn | Condition was open and obvious; no duty to warn and no alternative negligence shown |
| Causation (medical causation) | Injuries consistent with chemical exposure; res ipsa loquitur invoked | No expert showing chemicals more likely cause; treating/expert opinions on causation were stricken or absent | Plaintiff failed to designate expert; causation beyond lay knowledge; summary judgment for defendant; res ipsa not established |
Key Cases Cited
- Adickes v. S.H. Kress & Co., 398 U.S. 144 (U.S. 1970) (summary judgment standard—construe evidence for nonmoving party)
- Celotex Corp. v. Catrett, 477 U.S. 317 (U.S. 1986) (movant’s initial burden and nonmovant’s need to show specific facts)
- Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (U.S. 1986) (definition of genuine dispute of material fact)
- Keefe v. Bahama Cruise Line, Inc., 867 F.2d 1318 (11th Cir. 1989) (carrier owes ordinary reasonable care and requires actual or constructive notice)
- East River Steamship Corp. v. Transamerica Delaval, Inc., 476 U.S. 858 (U.S. 1986) (maritime law as amalgam of common law and created rules)
- United States v. Baycon Indus., Inc., 804 F.2d 630 (11th Cir. 1986) (res ipsa loquitur in admiralty—elements and burden shift)