In this week’s article, we examine the case of Blair v. NCL (Bahamas) Ltd., 2016 WL 5717560 (S.D. Fla. 2016) an action which “arises from the drowning and near drowning of two children aboard Defendant NLC (Bahamas) Ltd.’s ship. Plaintiff, Colleen Blair, is the mother of the two children and another child who witnesses the events. Plaintiff has sued NCL (Bahamas) Ltd. (NCL) and the ship’s medical personnel…While the Death on the High Seas Act is the exclusive remedy for Plaintiff’s child’s death, the Act does not preclude Plaintiff’s separate emotional distress claims. However, for the reasons set forth below, Plaintiff’s intentional infliction of emotional distress claims…are dismissed without prejudice, Plaintiff’s negligent infliction of emotional distress claims brought on behalf of herself and her child not directly involved in the incident are dismissed with prejudice”.
Terror Targets Update
In Gettlemen, Kuki Gallmann, “I Dreamed of Africa” Author, Is Shot in Kenya, nytimes.com (4/23/2017) it was noted that “Over the past few days, Mrs. Gallmann, one of Kenya’s most famous conservationists and the author of the best-selling book, ‘I Dreamed of Africa” sent me a flurry of increasingly distressed text messages. Heavily armed pastoralists had invaded her ranch in northern Kenya and were edging closer and closer to her house….On Sunday morning, Mrs. Gallmann, 73, was driving across her vast ranch to visit a lodge that the raiders had just ransacked…She saw a group of raiders on a hill…Several shots were fired…Mrs. Gallmann was hit in the hip…leaving her gravely wounded…The attack of Mrs. Gallmann was the latest sign of the chaos and violence ripping through northern Kenya an area celebrated for its wondrous wildlife but plagued by lawlessness”.
In Ahmed, In Mexico, ‘It’s Easy to Kill a Journalist’, nytimes.com (4/29/2017) it was noted that “The calls come often now: another body discovered, broken and left in rags, felled by bullets. They surface at daytime, midnight and dawn, the deaths keeping to no clock….’We have lived in this hell for some time now’ said Octavio Bravo, a journalist staring at the coffin of a colleague gunned down in Veracruz last year…Mexico is one of the worst countries in the world to be a journalist today. At least 104 journalists have been murdered in this country since 2000, while 25 others have disappeared, presumed dead. On the list of the world’s deadliest places to be a reporter, Mexico falls between the war-torn nation of Afghanistan and the failed sate of Somalia”.
Much To Do About Bumping
In Wise & Smith, U.S. airlines overhaul overbooking after United fiasco, reuters.com (4/28/2017) it was noted that “The backlash against the rough removal of a United Airlines (UAL.N) passenger to make room for a crowded flight has opened a divide in the U.S. industry over how to manage flight overbooking with some renouncing the practice and others offering richer incentives to give up seats. Overbooking is likely to be on the agenda when members of Congress hold hearings on industry behavior in coming weeks…United on Thursday increased its maximum incentive to $10,000 for volunteers on overbooked flights…United on Thursday agreed to a settlement with undisclosed terms with Dr. David Dao, 69, who was dragged down the aisle of a plane in Chicago on April 9. Southwest Airlines said on Thursday it would no longer overbook flights. The company had the highest forced bumping rate among large U.S. carriers in 2016…Delta increased the maximum passenger incentive to $9,950 …American Airlines…updated its conditions of carriage to state that it would not ‘remove a revenue passenger who has already boarded in order to give a seat to another passenger”.
Undisclosed Drink Prices
In Booth, NJ Supreme Court to Decide If Undisclosed Restaurant Drink Prices Can Be Basis of Class-Action Suit, njlawjoutrnal.com (4/4/2017) it was noted that “A $9 Mojito or an $8 Margarita. Different prices for a beer served at a restaurant’s bar instead of the same beer served at the table. When those price differences are not disclosed on a restaurant’s menu, which often don’t list drink prices at all, can those nondisclosures be the basis for class-action suits? The New Jersey Supreme Court will soon give an answer. The Court on Tuesday heard arguments over whether restaurants violate state consumer protection laws then they fail to list mixed drink or beer prices on their menus. The cases are Dugan v. TGI Friday’s and Bozzi v. OSI Restaurant Partners”. Stay tuned.
Apple’s Self-Driving Cars
In Goel, Apple Gets Permit to Test Self-Driving Cars in California, nytimes.com (4/14/2017) it was noted that “Apple plans to start testing self-driving cars on California roads, the clearest signal yet that the world’s most valuable technology company wants to design or build autonomous vehicle technology. On Friday, the California Department of Motor Vehicles granted Apple an official test permit that the agency said would allow the company to test autonomous driving technology in three 2015 Lexus RX 450h luxury hybrid sport utility vehicles. The permit authorizes six people to take control of the vehicles if necessary”.
Spanish Travel Law Journal
We wish to announce the publication of a Spanish Travel Law Journal, Revista Internacional De Derechio Del Turismo Ridetur available at uco.es/servios/ucopress/ojs/index.php/ridetur/issue/view/603/showToc. Congratulations.
Uber In India
In Manjo, Uber Wants to Rule the World. First It Must Conquer India, nytimes.com (4/14/2017) it was noted that “Ms. Balasubramanva’s (office in Bangalore, India) is just one of hundreds of UberDost (friend of Uber) offices that Uber has set up across India, where the ride-hailing company now operates like a military division bent on subcontinental conquest. After last year’s bruising retreat from China, where the company was outgunned by local incumbent Didi Chuxing, Uber is driving fully into this nation of 1.3 billion people, pouring money, engineers and logistical expertise into dominating what could one day be the world’s largest market for transportation services. Uber is famously aggressive, and that trait shines through in its ambitions for India. Relatively few people own cars here, so Uber’s long-term goal is to leapfrog Western-style car-ownership and move directly into a society where people don’t buy cars. They hail them”. Good luck.
Uber Tipping Option App
In Brustein, New York City Plans to Force Uber to Add Tipping Option in App, msn.com (4/18/2017) it was noted that “New York City’s taxi and black car regulator plans to require Uber…to add a tipping feature to its app by July. Drivers have long complained that Uber has resisted such a move, even as other ride-hailing companies offer a way for customers to add gratuity. Uber is facing a similar push in California, where a state lawmaker introduced a bill early this year that would require ride-hailing companies to accept tips via credit cards. If Uber is forced to adopt tipping in its two most important U.S. markets, it wouldn’t make much sense to refuse to do so elsewhere. Uber drivers have been asking for a tipping option for years”.
Jurisdiction In Travel Law Cases
In Pounian & Green, General Personal Jurisdiction in Aviation Cases After Daimler, newyorklawjournal.com (4/10/2017) it was noted that “In its 2014 landmark decision Daimler AG v. Bauman, 134 S. Ct. 746 (2014) the U.S. Supreme Court held that a corporation is only subject to general jurisdiction when it has such constant and pervasive affiliations with the state where the suit is brought that it can be deemed ‘at home’ in that state…Daimler has had a profound effect on aviation cases because they usually involve multi-jurisdictional contacts. Aviation accidents often occur in fortuitous locations and involve plaintiffs and defendants from different states or nations. A typical case may involve a crash in one jurisdiction, a pilot from a second, passengers from a third, an aircraft maintenance outfit from a fourth and an aircraft manufacturer from a fifth. Even before Daimler it was frequently impossible to join all defendants in one action, but post-Daimler aviation cases invariably require plaintiffs to file multiple ‘protective actions’ to guard against jurisdictional dismissals”. Cases cited include Brown v. Lockheed Martin, 914 F. 3d 619 (2d Cir. 2016) (asbestos related claims); Siswanto v. Airbus S.A.S., 153 F. Supp. 3d 1024 (N.D. Ill. 2015) (wrongful death); Merritt v. Airbus Americas, 202 F. Supp. 3d 294 (E.D.N.Y. 2016) (personal injuries); Lubin v. Delta Airlines, 2015 WL 4611759 (S.D. Mich. 2015) (serious injury descending stairs); Martinez v. Aero Caribbean, 754 F. 3d 1062 (9th Cir 2014) (air crash in Cuba killing all abroad).
That Uneasy Feeling
In Glusac, In the Air, That Uneasy Feeling of Us vs. Them, nytimes.com (4/12/2017) it was noted that “When a passenger was forcibly removed from his seat…the video taken by onlookers seemed to capture the mood in the Air: us versus them…How the industry reached the unfriendly skies is a journey that goes back to 9/11, which ushered in greater security regulations and carry-on restrictions. In the aftermath of 9/11, ‘not following crew instructions immediately could be seen as a threat, and they take all threats seriously’, Mr. Leff said. ‘Airline employees are in positions of extreme power and authority’”.
Delta Hikes Payouts
In Sasso & Moritz, Delta hikes payouts for overbooked fliers after United furor, msn.com (4/15/2017) it was noted that “Delta Air Lines has increased the payouts its airports can offer passengers on overbooked flights, moving to prevent a public relations nightmare similar to the one plaguing United Continental Holdings, Inc. Customer service agents will be able to offer ;passengers as much as $2,000 when they’re asked to give up a seat on an oversold flight, up from $800 according to a memo seen by Bloomberg. Managers can offer as much as $9,950 more than seven times the previous cap of $1,350″.
Air Ambulance Fees
In Thompson, Rising complaints about sky high air ambulance fees, komonews.com (4/12/2017) it was noted that “In a true emergency, if you call a ground ambulance, your insurance company is likely to pay most of the cost, but insurance companies say air ambulances charge such huge bills, they’re only willing to pay a fraction of the cost, and that means you as the consumer are stuck to pay the rest of the bill. And that cost can be high. Consumer Reports says the average bill for medical helicopters is more than $30,000…Be aware that in many states, including the state of Washington, insurance regulators have no jurisdiction over medical air transport companies. A federal law passed in 1978 prohibits states from regulating price, routes or service of air ambulance operators”.
Hotels Combat Airbnb
In Benner, Inside the Hotel Industry’s Plan to combat Airbnb, nytimes.com (4/16/2017) it was noted that “Yet there is now little mistaking that Airbnb is encroaching on the traditional hotel business. The company which is based in San Francisco was founded in 2008 as a way for people to easily list and rent out their spare rooms or their homes online. Since then, about 150 million travelers have stayed in three million Airbnb listings in more than 191 countries, according to the company…Airbnb has brought hotel pricing down in many places during holidays and other big events when room rates should be at their highest…The industry’s plan against Airbnb shows ‘the hotel cartel is intent on short-sheeting the middle class so they can keep price-gouging consumers’, Nick Papas, a spokesman for Airbnb wrote in an email…The national hotel association said its push against Airbnb was not about the platform’s financial impact of hotels. ‘Airbnb is operating a lodging industry, but it is not playing by the same rules’, Troy Flanagan, the American Hotel and Lodging Association’s vice president for state and local government affairs, said in an interview. The main prongs of the association’s plan to constrain Airbnb include lobbying politicians and state attorneys general to reduce the number of Airbnb hosts, funding studies to show Airbnb is filled with people who are quietly running hotels out of residential buildings and highlighting how Airbnb hosts to not collect hotel taxes and are not subject to the same safety and security regulations that hotel operators must follow”.
This Week’s Travel Law Case
“Plaintiff, Colleen Blair, brings this action on behalf of herself, individually; as personal representative of the estate of her deceased minor child KAB; and as parent and guardian of her two surviving minor children, KB and BB. In May 2015, Plaintiff and her three children were passengers aboard NCL’s ship, the Norwegian Gem”.
A Bag Of Inoperable Medical Equipment
While on board, Plaintiff and the children went to one of the ship’s pools. Plaintiff briefly lost sight of KAB and BB while they were in the pool. The next thing she knew, Plaintiff’s children KAB and BB were being pulled out of opposite ends of the pool by other passengers. KAB’s body was lifeless and passengers began yelling for medical equipment and staff. Approximately 10 minutes after the drowning occurred, a bag of medical equipment arrived on the scene. However, the bag lacked proper and/or working medical equipment to aid in the resuscitation efforts of KAB. The bag contained a suction device that did not work and by the time NCL medical personnel arrived on the scene, nearly 15 minutes after KAB was pulled from the pool, it was too late to use the automated external defibrillator because KAB no longer had a pulse. Because of the delay…passengers with medical backgrounds began resuscitation attempts on KAB. While KAB died…BB did not sustain any serious physical injuries. Plaintiff BB and KB witnessed the other passengers’ attempts to save KAB and the death of KAB”.
“Kid Friendly” Cruises?
“Plaintiff maintains that NCL advertises its cruises as ‘family friendly’ and ‘kid friendly’. Despite this, NCL does not have lifeguards who monitor the pool area. Further, NCL does not keep lifesaving equipment at or near the pool area in case of an emergency. Nor does NCL staff the pool area with people trained in dealing with medical emergencies”.
“Counts I-V are all brought pursuant to the Death on the High Seas Act (DOHSA). Plaintiff’s first count alleges negligence…Count II alleges negligence…based on a theory of respondent superior for the alleged negligence of the medical defendant. Count III alleges negligence…for the acts of medical defendants based on apparent authority. Counts IV and V allege negligence against the medical defendants. Count VI, directed against all Defendants, is a claim for intentional infliction of emotional distress by Plaintiff. BB and KB. Count IX is Plaintiff’s claim against all defendants for negligent infliction of emotional distress. Count X is brought on BB’s behalf for negligent infliction of emotional distress…Count XI is brought on KB’s behalf for negligent infliction of emotional distress…NCL’s motion seeks to dismiss all claims against it…”
Intentional Infliction Of Emotional Distress
“To determine that a defendant engaged on outrageous conduct, a plaintiff must allege facts that show that a defendant’s actions were ‘so outrageous and utterly intolerable is a civilized community’…Plaintiff maintains that the following circumstances taken as a whole, amount to extreme and outrageous conduct by NCL: NCL’s failure to employ lifeguards, while advertising itself as ‘family friendly’ and ‘kid friendly’; NCL’s failure to keep lifesaving equipment on the pool deck; NCL’s failure to have staff stationed on the pool deck who are prepared for a medical emergency; and the length of time it took for NCL medical personnel to arrive, approximately 15 minutes, after KAB was pulled from the pool. While the consequence of these actions were heartbreaking, such conduct simply does not reach the level required for an intentional infliction of emotional distress claim.”
Absence Of Lifeguards Acceptable
“As NCL points out, many hotel pools do not have lifeguards or medical personnel nearby. Thus, given how common it is not to have lifeguards or medical personnel at pools, their absence must be generally accepted by society. Thus, such a situation clearly does not amount to behavior ‘so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious and utterly intolerable in a civilized community’. Further, Plaintiff has not cited to any statutes or other legal authority indicating that the law requires the presence of lifeguards or medical personnel near pools. Consequently, NCL’s actions do not constitute extreme and outrageous conduct. Plaintiff’s intentional infliction of emotional distress claims…must be dismissed…without prejudice”.
Negligent Infliction Of Emotional Distress
“In order to state a claim for negligent infliction of emotional distress a plaintiff must allege ‘mental or emotional harm (such as fright or anxiety) that is caused by the negligence of another and that is not directly brought about by a physical injury, but that may manifest itself in physical symptoms’…While different jurisdictions have adopted different standards for what sort of harm a plaintiff must suffer, federal maritime law has adopted the ‘zone of danger’ test which allows recovery if a plaintiff sustains a physical impact or is placed in immediate risk of physical harm by a defendant’s negligent conduct”.
Zone Of Danger
“Plaintiff maintains that she and her surviving children were all within the zone of danger. Plaintiff urges that the law be changed and the Court apply the ‘relative bystander’ test, not the zone of danger test. The Court, however, is bound of the rulings of the Eleventh Circuit…Plaintiff argues that the zone of danger was the subject pool and the area immediately surrounding the pool because Plaintiff and KB were exposed to the risk of physical harm based on the lack of a lifeguard…According to Plaintiff…once they saw KAB and BB drowning in the pool, Plaintiff and KB had to make a decision as to whether to put their own lives at risk in order to save KAB and BB”.
“First, according the Amended Complaint, Plaintiff did not see either KAB or BB drown or go under water…neither Plaintiff nor KB had to make a decision as to whether to get into the pool. Second, given that neither Plaintiff nor KB ever left the pool deck area…they were in no immediate risk of physical harm based on NCL’s failure to employ lifeguards. Further, because neither Plaintiff nor KB needed medical attention, they were never in fear for their safety as a result of the alleged negligence relating to the delayed and inadequate medical care provided…Plaintiff’s claims for negligent infliction of emotional distress…are dismissed”.
“BB who was pulled out of the pool at the same time as KAB is in a different position that plaintiff and KB. According the Amended Complaint, BB not only witnessed his sister’s drowning and failed attempts to save her, but also was himself placed in immediate risk of physical harm by his own near drowning in the pool caused by NCL’s failure to have a lifeguard. Taken in the light most favorable to Plaintiff, such allegations of his risk of physical harm are sufficient to state a cause of action of negligent infliction of emotional distress on behalf of BB because they place BB in the zone of danger”.
The Near Drowning
“The Amended Complaint alleges that the lack of a lifeguard itself was negligent. Thus, to be in the zone of danger, BB did not need to seek medical care as argued by NCL…while the Amended Complaint alleged that BB suffered distress as a result of watching his sister’s death, it also alleges that BB suffered distress as a result of his own near-drowning…Plaintiff’s claim for negligent infliction of emotional distress to BB sufficiently states a cause of action based on his emotional distress from his own near drowning, only”.
The Delayed Medical Care
“The Amended Complaint also alleges that BB suffered emotional distress from ‘seeing, hearing and witnessing the delayed and inadequate treatment’ KAB received and from witnessing KAB’s death. However, the Amended Complaint does not contain any allegations that BB needed or received medical treatment after being pulled from the pool. Thus, BB was not in the zone of danger created by any alleged negligence relating to the receipt of medical care…the potions of the claim based on witnessing the delay in and receipt of medical care by KAB are dismissed with prejudice”.
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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