Chang v. Carnival Corp. – Cruise Ship Slip-and-Fall Lawsuit Dismissed Time Limits, Improper Forum
Gregg Hollander | October 14, 2016 | Boating Accidents
Statutes of limitations are pertinent to any personal injury lawsuit filed. Although these limits vary from state-to-state, the purpose is to avoid giving those injured an unlimited window in which to file a claim. In Florida, F.S. 95.11 allows for up to four years to file an injury lawsuit based on negligence (though only two years if it’s medical negligence). There are of course some caveats and exceptions, but usually, you’re not going to be able to successfully file anything beyond that four-year cutoff.
Cruise ship injuries are different. Although these cruise ships are docked at Florida ports and that’s where most paying customers board, most of these companies are actually headquartered in other countries (usually the Bahamas). The applicable law that governs the statute of limitations would be Maritime Law, which usually gives injured persons three years to file a lawsuit. However, courts have said it’s perfectly legal for cruise ship companies to prohibit injury lawsuits against their companies after one year from the date of the incident. That is just one year for adults who are injured on cruise ships. Children may have up to three years, though if the child turns 18, he or she has to file the case within one year of turning 18.
The recent case of Chang v. Carnival Corp., recently before the U.S. Court of Appeals for the Eleventh Circuit, dealt with the issue of cruise ship injury and this statute of limitations, as well as the issue of the proper forum in which to file these claims.
According to court records, plaintiff suffered an injury on a cruise ship due to a slip-and-fall in December 2012.
The cruise ship ticket issued to the plaintiff had a number of restrictions governing her right to sue the cruise line. Those restrictions included a provision that banned any claim filed by an adult to be filed more than one year after the injury. The “fine print” on the back of the ticket also stipulates that any personal injury lawsuit filed against the cruise line must be done in federal court. Only if subject matter jurisdiction is lacking, the language stated, could plaintiff file a lawsuit in a state court, which in this case would be one located in Miami-Dade County.
Plaintiff hired an out-of-state attorney from California to represent her in the slip-and-fall claim. When defendant cruise ship became aware of the lawsuit, it twice informed plaintiff attorney it did not plan to waive its forum selection clause rights. About a month later, in November 2013, she switched attorneys, opting instead for one based in Florida. A few days before that one-year deadline, plaintiff filed her claim in state court – not federal court.
Defendant moved for a dismissal, asserting plaintiff violated the forum selection clause of her ticket/ contract. While the motion to dismiss was pending, in March 2014, plaintiff filed a parallel federal action. However, this occurred just three months after the one-year statute of limitations was up. In that case, defense moved for summary judgement based on a time limit violation. The court granted that motion.
Plaintiff appealed. She argued that while, yes, she did file her federal claim more than a year after the injury, the time limit that normally would have applied was equitably tolled by the state court filing.
Equitable tolling can be used in some cases, though the U.S. Supreme Court made it clear in the 1993 case of Justice v. U.S. that it’s an extraordinary remedy to be used only sparingly. The proof burden is on plaintiff to show he or she did due diligence and the action wasn’t simply filed late even though plaintiff knew or should have known the limitations period was running.
In this case, however, plaintiff had been specifically warned of the applicable statute of limitations as well as the correct forum, and the failure to heed those warnings was not excused, the court ruled.
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Chang v. Carnival Corp., Oct. 6, 2016, U.S. Court of Appeals for the Eleventh Circuit
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