Thank you for sharing!

Your article was successfully shared with the contacts you provided.
The Florida 4th District Court of Appeal has lowered the boom on a cruise line, ruling that in some circumstances it may owe a greater duty of care to its passengers than a landowner owes to potential slip-and-fall victims. The ruling in Kalendareva v. Discovery Cruise Line Partnership, No. 4D00-4151, means that injured passengers like Sara Kalendareva will not be held to the same burden of proof as their land-based counterparts before being allowed to take their cases to a jury. In 1998, Kalendareva was in a lounge chair on the third deck of a Discovery cruise ship as it docked at a Broward County, Fla.-owned port. A county employee threw a weighted rope toward the second deck, overshot his mark and struck Kalendareva, according to the court’s opinion. Her trial attorney, Akiva Ofshtein of Brooklyn, N.Y., said she suffers from permanent numbness in one arm, among other injuries. Last year, a jury found Broward County liable for $150,000. But Circuit Judge Estella May Moriarty never let the jury rule on Kalendareva’s claim against Discovery. Moriarty held that, like a plaintiff in a slip-and-fall case, Kalendareva had the burden of proving that Discovery knew or should have known that such an accident could occur. Discovery’s attorney, Scott DiSalvo of Fort Lauderdale, Fla.’s Fazio, Dawson, DiSalvo, Cannon, Abers, Podrecca & Fazio, said that Kalendareva presented no evidence that weighted lines were commonly used in the shipping industry or that Discovery had ever docked at the Broward County port before. Ofshtein does not dispute that, but said that the cost of proving the practices of the unfamiliar shipping industry would have kept his client out of court altogether. The appellate court reversed Moriarty, ruling that a maritime passenger is not comparable to a slip-and-fall plaintiff, who has the burden of proving that a landowner had notice of a dangerous condition. Quoting a 1983 federal case, the court said that a slip-and-fall plaintiff isusually injured by dangers that “he meets … daily in his home or his office or on the street, and from which he easily and completely protects himself.” The dangers facing the maritime passenger, on the other hand, “are different from those encountered in daily life and involve more danger.” The court directed Moriarty to conduct a new trial. According to Ofshtein, the court clarified what was already the dominant trend in maritime law. DiSalvo believes that the facts do not support sending this case to a jury, but was not surprised by the appellate court’s legal analysis.

This content has been archived. It is available through our partners, LexisNexis® and Bloomberg Law.

To view this content, please continue to their sites.

Not a Lexis Advance® Subscriber?
Subscribe Now

Not a Bloomberg Law Subscriber?
Subscribe Now

Why am I seeing this?

LexisNexis® and Bloomberg Law are third party online distributors of the broad collection of current and archived versions of ALM's legal news publications. LexisNexis® and Bloomberg Law customers are able to access and use ALM's content, including content from the National Law Journal, The American Lawyer, Legaltech News, The New York Law Journal, and Corporate Counsel, as well as other sources of legal information.

For questions call 1-877-256-2472 or contact us at [email protected]

Reprints & Licensing
Mentioned in a Law.com story?

License our industry-leading legal content to extend your thought leadership and build your brand.


ALM Legal Publication Newsletters

Sign Up Today and Never Miss Another Story.

As part of your digital membership, you can sign up for an unlimited number of a wide range of complimentary newsletters. Visit your My Account page to make your selections. Get the timely legal news and critical analysis you cannot afford to miss. Tailored just for you. In your inbox. Every day.

Copyright © 2021 ALM Media Properties, LLC. All Rights Reserved.