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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.

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