Cruise passenger contracts Norovirus: Is cruise line liable?
Cruise passenger contracts Norovirus: Is cruise line liable?
In this week’s article, we examine the case of Davis v. Cruise Operator, Inc. d/b/a Bahamas Cruise Line, LLC, Case No. 16-cv-62391-BLOOM/Valle (S.D. Fla. 2017) the Court noted that “This case involves allegations of negligence against Defendant arising from Plaintiff’s contraction of Norwalk Virus/Norovirus as a result of food contamination and unsanitary conditions on board a cruise ship. From October 9 through October 11, 2015, Plaintiff was a passenger on board the Grand Celebration, Prior to boarding the ship…Plaintiff ate eggs, grits, toast and coffee at her mother’s house. She then traveled by car…to meet her husband at their home in DeBary, Florida… During the drive from Lake City to DeBary, Plaintiff stopped at McDonald’s where she drank an iced tea. Thereafter…Plaintiff packed Powerade, ice, ham, bread and potato chips for the drive to (the Port of Palm Beach) …She…stopped to refuel and while doing so, she used the ‘little mom and pop’ gas station restroom…On the next day, Plaintiff checked in at the port and, in doing so, she used a pen provided at the desk but did not sanitize it. (After a three-day cruise) Plaintiff disembarked (at Port of Palm Beach) and stayed the night in Ormand by the Sea…Plaintiff ate oatmeal the following morning. Although Plaintiff testified she was vomiting during this time frame, she did not see a doctor. Her symptoms of vomiting and diarrhea continued over the next two days until she collapsed…During her hospitalization, Plaintiff underwent laboratory tests, which were negative for Norovirus or other infection”. Defendant’s motion for summary judgment granted.
More Fire & Ice, Please
In Astor, How Hot Was It in Australia? Hot Enough to Melt Asphalt, nytimes (1/7/2018) it was noted that “You probably heard about the arctic blast that turned much of North America into a Popsicle last week, but in Australia, where Christmas is a summer holiday, it was so hot this weekend that the asphalt melted on a stretch of highway. Across large areas of Australia, temperatures hit life-threatening levels…over 117 degrees Fahrenheit”.
In McGheehan & Wu, JFK Travelers Ask: When Can I Catch a Flight Home?, nytimes (1/7/2018) it was noted that “Kennedy Airport remained in disarray on Sunday, three days after New York City’s first major snowstorm of 2018 disrupted operations. Since the storm, a lingering, bone-chilling cold and a series of missteps have contributed to a logjam that has left thousands of travelers stranded and caused hundreds of flights to be canceled or diverted. The disorder at J.F.K., one of the world’s busiest airports, rippled across the world, affecting passengers as Beijing”.
More Rain & Mud, Please
In Medina, Fuller & Arango, Mudslides Strike Southern California, Leaving at Least 13 Dead, nytimes (1/9/2018) it was noted “First came the fires. Now come the floods. Heavy rains lashed the hillsides of Santa Barbara County on Tuesday… At least 13 people…were killed on Tuesday and more than two dozen were injured as a vast area northwest of Los Angeles, recently scorched in the state’s largest wildfire on record, became the scene of another disaster, as a driving rainstorm, the heaviest in nearly a year, triggered floods and mudslides”.
Are Greece & Georgia? Seems So.
In Greece at the best level of new US Travel Advisory Program as ‘least risky’ country to visit, travelwirenews (1/11/2018) it was noted that “The US State Department’s new travel advisory program has categorized Greece as a low-risk area for safety and security”.
In Georgia amongst the safest countries in latest travel advisory for US travelers, travelwirenews (1/11/2018) it was noted that “Georgia is among the safest countries in the world in the latest travel advisory for United States (US) travelers published by the US State Department, Agenda reports”.
Travel In 2018 & Save Money
In Peterson, Frugal Traveler, Ways to Save in 2018, nytimes (1/5/2018) it was noted that “Last year may have been a disappointing Dumpster fire in countless ways, but it was a great year for travel deals-saving money has never been easier or more accessible to more people. Looking forward to 2018, there’s no reason to think it should be any different. Here are eight tips to help keep your travel expenses nominal and your wallet fat…Sign Up for Newsletters…Remember the Old Standbys…Save Money While Doing Some Good…Set Your Google Alerts…Get TSA PreCheck or Global Entry for Free…Money Back on Your Purchases…No More Pesky A.T.M. Fees…Protect Your Privacy”.
Are India & Mexico Safe? Not So Much
In US Issues New Travel Advisory, Asks Citizens Not To Travel To Jammu And Kashmir, travelwirenews (1/11/2018) it was noted that “Placing India on Level 2, the State Department identified ‘crime and terrorism’ for Americans to exercise increased caution. However, it asks Americans not to travel to Jammu and Kashmir, except for eastern Ladakh and Leh and not to venture within 10 miles of the India-Pakistan border due to the ‘potential of armed conflict’”.
In eNCA/US Travel warning puts Mexican states on par with war-torn nations, travelwirenews (1/11/2018) it was noted that “Rampant crimes and gang activity in Mexico prompted the US State Department on Wednesday to issue a stringent travel advisory, warning tourists to completely avoid five Mexican states, an advisory level often reserved for nations at war…the states of Colima, Michoacan, Sinaloa, Tamauilipas and Guerrero at the same warning level as war ravaged Syria, Afghanistan and Iraq. The advisory delivered a stark reminder of the formerly ritzy seaside city Acapulco fall from grace. Once a glamorous playground for the Hollywood jet set…the resort in Guerrero state now has one of the highest murder rates in the world, having fallen victim to vicious gang warfare in recent years”.
Stop Boiling Lobsters, Please
In Shell shock! Swiss govt bans boiling lobsters alive under new animal protection rules, travelwirenews (1/11/2018) it was noted “The Swiss government has gone against the wishes of restaurateurs and banned the practice of boiling live lobsters. It comes as part of sweeping new animal protection legislation, The law, which dictates that live lobster and crayfish must be stunned before killing, was passed by the Federal Council on Wednesday and it will come into effect on March 1″.
What To Expect In Travel 2018
In Rosenbloom, The Getaway, What to Expect in 2018, nytimes (1/8/2018) it was noted that “The year ahead is shaping up to be one of more change for travelers, with new airport security procedures and identification requirements, airline routes and airports, high-speed trains; and the reopening of more hotels in the Caribbean after a brutal hurricane season…In Paris, Airbnb announced that, beginning in January 2018, it will cap the number of days each year that hosts can rent out dwellings in neighborhoods in central Paris-the 1st, 2nd, 3rd and 4th Arrondissements-to comply with the country’s limit (120 days a year, according to Reuters) on short-term home rentals. Airbnb has already tested the cap in other major cities like London. For tourists, that could mean a more competitive rental market in Paris’s most popular arrondissements, so be sure to book early…In Israel, a new high-speed train connecting Tel Aviv and Jerusalem, slated to open in April, will be the country’s first electric railway line. The Israel Ministry of Tourism said the new train will take 28 minutes between the cities, down from the current 80 minutes it takes by bus”.
Crowdsourcing The Commute
In Kaysen, Crowdsourcing the Commute, nytimes (1/20/2018) it was noted that “Talk to (Ms. X), who commutes by bus from Livingston, N.J., to Midtown Manhattan, about what getting to work used to be like, and you’ll hear the all-too-familiar grievances about grinding traffic, suffocating crowds and cranky drivers. But then, in September 2016 she learned about OurBus, a new company willing to start a bus route in her area if enough people signed up…Commuting in the New York region has gotten decidedly worse in recent years…Over the past 25 years, rail trips in and out of Penn Station have nearly tripled, and bus trips increased by 83 percent…Over 1.6 million people commute into the city daily, with 320,000 coming from New Jersey”.
The Dream Job
In The 52 Places Traveler: Meet the Applicants, nytimes (1/8/2018) it was noted that “We received over 13,000 applications for our first-of-its-kind job: a traveler who will go to each and every place on this year’s Places to Go list. It sounded like a dream job to many: one that would take a traveler to all 52 destinations on this year’s Places to Go List. We received over 13,000 applications from an amazing variety of people, from a father-daughter team to a best-selling author”.
Southwest Settles & Cooperates
In Stevens, Southwest Airlines Settles Suit but Denies Colluding to Keep Prices High, nytimes (1/6/2018) it was noted that “A federal judge has approved a $15 million settlement between Southwest Airlines and members of a class-action lawsuit who allege that the company, along with three other airlines [American Airlines, Delta Air Lines and United Airlines], conspired to limit the number of seats available to customers and keep ticket prices high…As part of the agreement preliminarily approved on Wednesday, Southwest agreed to make the $15 million cash payment and also to provide what court documents called ‘extensive cooperation’…will include a ‘full account of facts’ relevant to plaintiff’s case as well as a series of informational meetings and interviews with industry experts and Southwest employees facilitated by the company.”
Price Guarantees & Price Matching
In Dickerson, Price Guarantees and Price Matching: Misleading and Deceptive?, newyorklawjournal (12/29/2017) [also available at consumerworld/pubs/travelbestpriceguarantees.pdf it was noted that “Online travel companies, hotels and airlines have on occasion asserted that their prices for various travel services are the ‘best’ or ‘lowest’. In addition, the ‘best’ or ‘lowest’ price may be ‘guaranteed’. Often these promises are coupled with a promise to match a lower price for the same service or product offered by a competitor, if you can find it in a short period of time, and, even, a promise to throw in a 10 percent bonus for finding such a ‘price match’. Are these common marketing promises misleading and deceptive and a violation of state consumer protection statutes”. And if so, under what circumstances?”.
Where, Oh Where Is Flight 370?
In Paddock, Another Search Begins for Long-Missing Malaysian Airliner, nytimes (1/10/2918) it was noted that “The government of Malaysia and an American ocean exploration company began a new effort on Wednesday to solve one of history’s greatest aviation mysteries: the disappearance of Malaysia Airline Flight 370 nearly four years ago. Ocean Infinity, a Houston-based company, could receive as much as $70 million if it finds the plane’s debris field or two data recorders within 90 days…But under the agreement the company will receive nothing if it does not find the missing Boeing 777, which disappeared over the Indian Ocean on March 8. 2014, with 239 people aboard”.
An Underfilled Latte, Please
In Stempel, Starbucks wins dismissal in U.S. of underfilled latte lawsuit, reuters (1/7/2018) it was noted that “Starbucks Corp has won the dismissal of a U.S. lawsuit accusing the coffee chain of overcharging customers by underfilling lattes and mochas to reduce milk costs. U.S. District Judge Yvonne Gonzalez Rogers on Friday found a lack of evidence that Starbucks cheats customers by making its cups too small, using ‘fill-to’ lines on baristas’ pitchers that are too low and instructing baristas to skimp on ingredients, such as by leaving a quarter-inch of space atop drinks. The Oakland, California-based judge also rejected a claim that milk foam added to lattes and mochas should not count toward advertised volumes. She said reasonable customers expect foam to take up some volume, and the plaintiffs conceded that the foam is an essential ingredient in their drinks”.
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Free, Free At Last In Sri Lanka
In Bottoms Up! Sri Lanka lets women buy booze at long last, travelwirenews (1/11/2018) it was noted that “Women in Sri Lanka will soon be legally allowed to treat themselves to their favorite tipple, after the country’s government announced that it has done away with a law banning them from buying alcohol”.
Motel 6 Sued For Disclosing Guest Lists
In Almasy, State of Washington sues Motel 6 for giving guest lists to feds, cnn (1/3/2018) it was noted that “Washington State’s attorney general is suing Motel 6, saying workers handed over guest lists to federal immigration agents in violation of state privacy laws. The suit alleges that agents from immigration and Customs Enforcement would visit Motel 6 locations in Washington and request a guest list from a receptionist without a warrant then try to find undocumented immigrants. ‘Motel 6 staff observed ICE identify guests of interest to ICE, including by circling guests with Latino-sounding names’, the lawsuit says. At least six guests were arrested or detained. Attorney General Bob Ferguson told reporters”.
Uber Preventing Access To Records
In Zaleski & Newcomer, Uber used a secret tool for keeping the authorities in the dark, msn (1/12/2018) it was noted that “At least two dozen times, the San Francisco headquarters locked down equipment in foreign offices to shield files from police raids. In May 2015 about 10 investigators for the Quebec tax authority burst into Uber Technologies Inc.’s office in Montreal…Like managers at Uber’s hundreds of offices abroad, they’ve been trained to page a number that alerted specially trained staff at company headquarters in San Francisco. When the call came in staffers quickly remotely logged off every computer in the Montreal office, making is practically impossible to the authorities to retrieve the company records they’ve obtained a warrant to collect. The investigators left without any evidence”.
Uber Settles Service Fees Lawsuit
In Uber to pay $3m to settle driver service fees class action in NY, techcrunch (1/10/2018) it was noted that “Uber has agreed to pay $3M to settle a proposed class action lawsuit brought by 2,421 drivers in New York who had accused the ride-sharing giant of docketing excessive fees from their fares…The original suit was filed in court in January 2016…The drivers accused Uber of breach of contract by including NY state sales tax and a state workers compensation fund surcharge, called the ‘Black Car Fund’ fee, when it calculated their service fees-thereby increasing how much they were being charged. The drivers also accused Uber of false advertising of offering guaranteed compensation without disclosing the conditions”.
Chinese Empire Reborn
In Wong, A Chinese Empire Reborn, nytimes (5/1/2018) it was noted that “The Communist Party’s emerging empire is more the result of force than a gravitational pull of Chinese ideas… From trade to the internet, from higher education to Hollywood, China is shaping the world in ways that people have only begun to grasp. Yet the emerging imperium is more a result of the Communist Party’s exercise of hard power, including economic coercion than the product of a gravitational pull of Chinese ideas or contemporary culture. Of the global powers that dominated the 19th century, China alone is a rejuvenated empire. The Communist Party commands a vast territory that the ethnic Manchu rules of the Qing dynasty cobbled together through war and diplomacy. And the dominion could grow: China is using its military to test potential control of disputed borderlands from the South China Sea to the Himalayas, while firing up nationalism at home. Once again, states around the world pay homage to the court, as in 2015 during a huge military parade. For decades, the United States was a global beacon for those who embraced certain values-the rule of law, free speech, clean government and human rights. Even if policy often fell short of those stated ideals…China’s rise is a blunt counterpoint. From 2009 onwards, Chinese power in domestic and international realms has become synonymous with brute strength, bribery and browbeating-and the Communist Party’s empire is getting stronger”.
Million Dollar Vodka, Anyone?
In Sorensen, Stolen Vodka Bottle, Said to be Worth #1.3Million, Is Found Drained and Dented, nytimes (1/6/2018) it was noted that “It was meant to be a collector’s secret, but someone knew the secret, stole the secret and, it seems drank the secret: what the owner calls ‘the most expensive vodka bottle in the world’. The bottle was created by Dartz Mororz, a car manufacturer in Riga, Latvia, and fitted with an original 1912 leather ribbon from the company’s first Monte Carlo rally car. The bottle is made of 6.6 pounds of gold and the equivalent of amount of silver and has a diamond-encrusted cap fashioned to resemble a vintage car front…The bottle was worth $1.3 million, according to the owner: The vodka: Russian”.
Travel Law Case Of The Week
In the Davis case the Court noted that “Since Grand Celebration began its service on February 3, 2015, there have been no reports of Norovirus or other gastrointestinal illness. During this time frame, approximately 30,500 passengers and crew members have sailed on the ship. All crew members on board the Grand Celebration must abide by the hand-washing guidelines promulgated by the Centers for Disease Control and Prevention (CDC) including rubbing their hands together for twenty seconds with soap and water before preparing food. To further food safety, whole fruits for buffets undergo a micro-chlorine solution at the washing station before being placed on the buffet lines. Defendant also sends a Gastrointestinal Illness Confirmation Report to the CDCs Maritime Illness and Death Reporting Service (MIDRS) after each sailing and no reports of gastrointestinal illness have been logged with the CDC’s MIDRS since the vessel began sailing. Every food outlet on the ship strictly adheres to the Food and Drug Administration’s (FDA) Hazard Analysis Critical Control Point (HACCP) standards for food, temperature, and time control. The United States Public Health Department (USPHD) also performs two yearly inspections on the ship with the most recent pre-incident inspection occurring one month before Plaintiff’s voyage on September 5, 2015, scoring 98 out of 100 possible points”.
“Plaintiff sued Defendant for negligence arising from her alleged contraction of Norovirus while on the Grand Celebration (alleging) that Defendant owed her a duty to sere uncontaminated food and sanitize and disinfect the Grand Celebration to prevent an outbreak of Norovirus or other infectious disease…Under maritime law, a ship owner owes its passengers the duty of reasonable case under the circumstances. The ‘benchmark against which a shipowner’s behavior must be measured is ordinary reasonable care under the circumstances, a standard which requires, as a prerequisite to imposing liability, that the carrier have actual or constructive notice of the risk-creating condition”.
No Notice, No Outbreaks
“It is undisputed that Defendant had neither actual or constructive notice of an alleged dangerous condition on board the ship (i.e. the presence of Norovirus),,,since the Grand Celebration began its service on February 3, 2015, there have been no reports of Norovirus or other gastrointestinal illness on the ship. Defendant submits a Gastrointestinal Illness Confirmation Report to the CDC’s MIDRA after each sailing, yet no reports of gastrointestinal illness have been logged since the vessel’s maiden voyage…Plaintiff alleges that Defendant ‘fail[ed] to take adequate steps to prevent an outbreak of the Norovirus…when it knew or should have known that such outbreaks occurred on prior voyages’, ‘fail[ed] to warn passengers of the dangers and risks of the Norovirus…”Each of these assume the existence of a prior Norovirus outbreak on board the ship. Plaintiff has not submitted any evidence to demonstrate that the Grand Celebration had any previous outbreaks of Norovirus…so as to trigger a duty to prevent subsequent outbreaks, to warn passengers of such outbreaks or create policies that would contain the spread of the virus”.
No Evidence Of Norovirus
“Plaintiff alleges that Defendant negligently ‘serv[ed] contaminate food’…but the record is devoid of any proof that the food Plaintiff consumed on board the Grand Celebration was indeed contaminated. In fact, Plaintiff has not come forward with any evidence, let alone medical evidence, to support her claim that she contracted norovirus. Defendant submitted copies of Plaintiff’s laboratory tests from her hospitalization at Central Florida Regional Hospital (wherein she tested negative for Norovirus)”.
“Even if the record contained such proof, Plaintiff has not submitted any evidence to demonstrate she contacted the virus while on board the Grand Celebration…Numerous courts within this district have granted summary judgment under maritime law when the plaintiff failed to prove the essential element of proximate cause…It is undisputed that in the days leading up to her vomiting and diarrhea, Plaintiff consumer food and beverages at numerous locations other than the Grand Celebration, such as McDonald’s, Denny’s, her mother’s house and even food she packed from her own house.
In addition, Plaintiff admitted that she came into contact with numerous public surfaces and objects, such as hand rails, pens, table tops, hotel rooms, restrooms, etc. in the days leading up to her symptoms. There is no evidence linking Plaintiff’s alleged gastrointestinal illness to her consumption of food on board the Grand Celebration as opposed to another possible source, such the other food outlets or public surfaces with which she came into contact…Defendant’s motion for summary judgment granted”.
The author, Thomas A. Dickerson, is a retired Associate Justice of the Appellate Division, Second Department of the New York State Supreme Court and has been writing about Travel Law for 41 years including his annually updated law books, Travel Law, Law Journal Press (2016), Litigating International Torts in U.S. Courts, Thomson Reuters WestLaw (2016), Class Actions: The Law of 50 States, Law Journal Press (2016) and over 400 legal articles many of which are available at nycourts.gov/courts/9jd/taxcertatd.shtml. For additional travel law news and developments, especially, in the member states of the EU see IFTTA.org
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