I have investigated and successfully prosecuted cruise ship accident claims against Carnival and other major cruise lines since 1991. By far the most tragic and arguably preventable incidents our Miami cruise injury lawyers have seen that have occurred aboard cruise ships involve the needless drowning deaths of children. Equally tragic are those passengers who nearly drown and suffer debilitating injuries. Each of these tragedies results from the absence of swimming pool lifeguards.
Shockingly, most major cruise lines still refuse to post lifeguards at their pools aboard their ships. The recent case of Colleen Blair v. Norwegian Cruise Lines provides a painful insight into why: the cruise lines simply cower behind the archaic Death on the High Seas Act and other federal maritime statutes and case law. Meanwhile, their youngest and most vulnerable passengers die while the cruise lines' profits reach record highs.
Colleen Blair v. Norwegian Cruise Lines
In the case of Colleen Blair v. Norwegian Cruise Lines, Ms. Blair and her three small children were passengers aboard NCL's Gem in May 2015. As they were enjoying one of the ship's pools, Ms. Blair momentarily lost visual contact with two of the kids on the crowded pool deck. Unfortunately, one child drowned, the other nearly drowned, and the third witnessed the entire incident.
Mrs. Blair (who was represented by another cruise ship accident law firm) sued NCL and its ship's medical staff for the death of her child, alleging that NCL was negligent by failing to post lifeguards, failing to stock lifesaving equipment at the pool, failing to staff properly trained crewmembers to provide emergency first aid, delaying in attempting to resuscitate the child, and for the emotional distress the surviving children suffered--as well as her own from watching NCL's failed effort to revive her child.
According to the court records, it took NCL approximately 10 minutes to arrive at the pool after being alerted to the emergency, which was nearly 15 minutes after the child had been pulled from the pool by other passengers. Once NCL's crew members finally arrived, the equipment in their emergency response bag was not working properly. By that time, the child no longer had a pulse, and therefore the defibrillator could not be used. Thankfully, the other two children did not suffer serious physical injuries.
Norwegian Gets Case Dismissed
NCL successfully sought to have the entire case dismissed, citing that there was no legal obligation for it to post lifeguards at the pool--despite Ms. Blair's argument that NCL advertises itself as "family friendly" and "kid friendly."
NCL was able to convince the judge to dismiss the case, using the Death on the High Seas Act (DOHSA), under which the surviving family members' claims for emotional distress would be barred. Under DOHSA, no additional actions exist in general maritime law for wrongful death caused by negligence, including pain and suffering and emotional distress.
Ms. Blair's attorneys argued that the claims for emotional distress should not be barred by DOHSA because those claims are "separate and apart" from the death of the child. NCL argued that there is ample precedent to exclude the emotional distress claims and cited cases that were unsuccessfully brought by family members who had suffered emotional distress upon learning of the loss of loved ones aboard the U.S.S. Cole; those cases were dismissed because the plaintiffs were not physically present at the time and place of the deaths.
Ms. Blair further argued that her case was different because her own emotional distress was not caused by the same negligent actions that caused her child's death. Courts have allowed plaintiffs to pursue emotional distress claims when they actually witness the death. Ms. Blair contended that she sought to recover for the negligent infliction of emotional distress she and her surviving children incurred, not as a result of learning of her child's death, but as the result of NCL's actions directly affecting her and the other two children. In denying NCL's motion, the Federal Court Judge agreed that Ms. Blair's emotional distress claims are not barred per se by DOHSA, but indicated that she should file an amended complaint the better to describe the relief she is seeking.
Currently, the only way to prove a valid claim for the intentional infliction of emotional distress (in contrast to the aforementioned negligent or accidental infliction of emotional distress) is to demonstrate that NCL's conduct was both "extreme and outrageous" intent to cause emotional distress, the plaintiffs suffered severe emotional distress, and that the conduct complained of caused the severe emotional distress.
The court found that Ms. Blair failed to demonstrate that NCL's conduct was "so outrageous in character, and 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." Specifically, the court argued that lifeguards are not required at hotels and resorts, and therefore it should not be so shocking that there were no lifeguards aboard the Gem.
In other words, the Court found that the absence of lifeguards is "generally accepted by society." And therefore, NCL's conduct does fit the standard cited above as "intolerable." The Court also found that Ms. Blair was unable to cite any legal authority requiring lifeguards or lifesaving equipment near swimming pools.
Lastly, the Court evaluated whether or not Ms. Blair was in fact in the "zone of danger" at the time of the alleged emotional distress. While some courts interpret this differently, the federal courts have found that in order for plaintiffs to successfully prove emotional distress claims, they must either have received some direct physical impact, manifest some physical symptoms, or have been placed in "immediate risk of harm" by the cruise line's negligent conduct. The court then dismissed the claims of the mother and witnessing child because there was no evidence that they were, in fact, in fear for their own safety--while watching the other child die--and because neither the mother nor the surviving child actually entered the pool during the drowning or failed resuscitation efforts, and that they also never needed medical attention. Accordingly, all of their claims were dismissed.
The only surviving legal claim was that of the other sibling, who nearly drowned, and the court found the boy in "immediate risk of physical harm" by his own near-drowning in the pool caused by NCL's failure to post a lifeguard. Taken in the light most favorable to this claim, including the risk of physical harm, the court found that he had a sufficient allegation to plead a cause of action for negligent infliction of emotional distress.
It is important to clarify that the emotional distress the surviving sibling alleged from "seeing, hearing and witnessing the delayed and inadequate medical treatment" of his sister and from witnessing her death were dismissed, allowing the surviving brother to recover only for his own emotional distress arising from his own near-drowning.
This case is further evidence of the complex web of legal doctrines and case law that insulate and protect the cruise industry. A child died, a mother and two siblings watched helplessly, and they have no legal recourse against the cruise line for what most likely would have been prevented had NCL maintained appropriately trained crew.
I do not know how many children and their parents will suffer before cruise lines like NCL, RCCL, and Carnival step up and provide their passengers the degree of protection that is clearly needed. I urge cruise lines like NCL to put the law aside and think of the families whose lives are shattered because of a momentary lapse while on vacation. These are passengers, not trained lifeguards.
If you are going to promote your ships as providing family vacations, spend a few bucks an hour more and hire properly trained lifeguards. These are your passengers; protect them--especially the little ones, who are most innocent and helpless. I hope any parent who reads this will think twice before booking a cruise on a cruise line that refuses to post lifeguards at their pools. Most importantly, I hope the CEOs of Carnival, Royal Caribbean, Celebrity, and NCL will do what is right--hire lifeguards.