“Babies don't need a vacation, but I still see them at the beach... it pisses me off! I'll go over to a little baby and say 'What are you doing here? You haven't worked a day in your life!'"Steven Wright, comedian
This week, we head down to beautiful Montego Bay, Jamaica. A few years ago, while on a plane that had just landed at Montego Bay, with all passengers still seated, a tall, thin Jamaican flight officer appeared at the front of the plane’s cabin. The serious officer looked at everyone directly in the eye and pressed the push-to-talk button on the mic and said, without cracking a smile, “Yeah, mon!” The officer’s eyes warmed, wild applause and friendly chatter followed as the passengers eagerly began to disembark.
If you're in downtown Montego Bay, you can check out the Pork Pit on Gloucester Avenue. The jerk food there is cooked over big open fires fed with pimento wood, with a dry rub for flavor. The Pork Pit is just local enough that it's not overrun with tourists, the food is authentic, and it's a close walk away from the downtown nightlife zone.
But this week’s case is not about food. It is about responsibility. Let’s meet Holly.
Holly Smolnikarc was on vacation one July aboard the Liberty of the Seas, a 15-deck Royal Caribbean Cruises passenger vessel, built in Finland. The Liberty docked at Montego Bay Port to allow the passengers the option of exploring Mo’Bay and nearby areas. Holly decided that she was going to participate on an offshore "zip line" excursion tour in Montego Bay. While zip-lining, Holly slammed into a tree. Holly claimed that suffered a herniated disk in her neck (which required an immediate cervical fusion), as well as other minor injuries to her legs and arm. Holly sued Royal Caribbean.
TESTIMONY OF HOLLY SMOLNIKARC
Q: Before the accident took place, what was your understanding of the nature of zip-lining?
A: Well, the excursion company was Chukka Caribbean Adventures, and I checked out their website. It said that the zip line tour involves soaring through the trees using an intricate system of harnesses, pulleys and carabiners on horizontal traverses.
Q: What did that mean to you?
A: In essence, a person zips between trees that are high above ground and sometimes several hundred feet apart from one another, departing from and landing on platforms built on the trees.
Q: Where did the accident take place?
A: Traverse # 6 of the zip line tour. The tour guides indicated to me that this particular traverse was about 1,000 feet across from platform to platform, and that participants could reach up to 60 miles per hour.
Q: Please describe what happened when you were on the zip-line.
A: I ran straight into the tree with no stopping, no slowing down, no nothing, full force slamming into a tree.
Q: Did the tree have padding?
A: The tree that I slammed into did have padding, but it looked like a bed mattress strapped to the tree.
Q: Did you seek medical attention?
A: I did. On the ship. They administered morphine.
CROSS-EXAMINATION OF HOLLY SMOLNIKARC
Q: You did not inform your tour guide or anyone at Chukka that you had been injured or that you had been involved in an accident at the time it happened, right?
A: No, I didn’t.
Q: You also did not report the accident to anyone at Royal Caribbean upon re-boarding the ship the day of the accident, right?
A: That is right.
Q: In fact, you did not seek medical attention aboard the cruise ship until two days following the incident, right?
A: That is right.
Q: Now, Holly, I just want to talk to you about how you decided to go zip-lining. There was an ad that you read that got you interested in zip-lining?
A: Yes. Royal gave me a brochure. It said: “Soar through the jungle rain-forest on our extreme zip-lines.”
Q: And it said “extreme” zip-lining, right?
Q: And use of the word “extreme,” that suggested to you that it might be dangerous?
A: Well, it would have if said if it said, “Soar through the jungle rain-forest on our extreme zip-lines, and smash into a tree.” Then, yes, I would agree with that.
Q: Holly, I want to talk to you about the cruise ship and the zip-line tour company. Chukka was the name, right?
Q: Now, before actually going on the zip-line you were given safety instructions, right?
Q: And before actually going on the zip-line you read and signed a disclaimer form provided by Chukka, is that accurate?
A: Yes, but I didn’t really understand it.
Q: You signed it, right?
A: Yes. I did.
Q: Let me show you the disclaimer. It says, Holly, “I hereby indemnify and hold harmless... Royal Caribbean ... against any liability for personal loss [or] injury (whether or not resulting in death) ... whether or not arising from negligence or default of Chukka Blue Adventure Tours…” Do you see that?
A: I see it.
Q: But you sued Royal Caribbean anyway, right?
A: I did.
Q: And, by the way, the disclaimer also says that the tour "is not recommended for persons ... with ... back, neck or shoulder problems.” Correct.
A: Yes, I see that.
Q: In fact, you did injure your back before this accident, isn’t that true?
A: Yes, but those injuries were resolved.
Q: I see. Nothing further.
TESTIMONY OF ROYAL CARIBBEAN REPRESENTATIVE
Q: What is Chukka’s history with regard to accidents?
A: Royal Caribbean had an incident-free relationship with Chukka dating back 4-5 years before offering the Montego Bay tour.
Q: Has Royal ever been made aware of any accidents occurring on any of Chukka's other tours?
A: No. None.
Q: What about passenger complaints about Chukka?
A: We have only received positive feedback received from Royal Caribbean passengers who participated in Chukka's tours.
Q: Did Royal investigate Chukka’s reputation?
A: Chukka's reputation was a first-class tour operator.
Q: Was Royal aware of any other problems regarding the zip-line tour?
A: It was our understanding that Chukka had operated both the Montego Bay and Ocho Rios zip line tours without any problems.
Q: Did any of the other cruise lines use Chukka?
A: At least two other major cruise lines had been offering the Montego Bay zip line tour for approximately a year before we started recommending them.
ARGUMENT BY ROYAL CARIBBEAN
Royal Caribbean had nothing to do with Holly’s accident. Chukka is an independent company and is not under the control of Royal. As you will recall, the testimony of Royal’s representative clearly shows that Chukka was selected with care. This was an accident. And nothing more.
Also, Your Honor, the Chukka disclaimer form is a binding disclaimer that absolves Royal from any liability for any alleged injury sustained by Holly during the Chukka zip line tour.
ARGUMENT BY HOLLY
Though cruise ship owners, such as Royal Caribbean, cannot be held responsible for the negligence of an independent contractor, they may be liable for negligently hiring or retaining a contractor. Royal Caribbean was negligent in selecting and retaining Chukka to offer its Montego Bay zip-line tour to its passengers. They did nothing to assure the safety of their passengers when they encouraged them to go on this zip-line tour. For that reason, Royal Caribbean must answer to Holly.
With respect to Holly signing a disclaimer: Royal Caribbean is a "common carrier," which is prohibited by law from contractually limiting its liability for its own negligence. It must be held void. We ask for judgment in favor of Holly.
RULING OF THE JUDGE
Holly has brought claims against Royal Caribbean for the careless selection of Chukka as a zip-line tour operator.
First, Royal claims that they cannot be held accountable for any negligence because Holly signed a disclaimer. As to that issue: Royal Caribbean is a "common carrier" which is prohibited from contractually limiting its liability for its own negligence. On that point, therefore, I agree with Holly. The disclaimer is void.
Second, as to Holly’s claim that Royal was negligent in the selection of Chukka: There has been no evidence submitted by Holly that would show that Royal was careless in their selection. Holly submitted no evidence or even testimony that contradicts the testimony of Royal’s representative.
My ruling, then, is this: Royal CAN be held to answer for negligence even though a disclaimer was signed; but, NO NEGLIGENCE ON THE PART OF ROYAL CARIBBEAN HAS BEEN PROVED BY HOLLY -- CASE DISMISSED.
In the end, Holly received no compensation from anyone. There are three lessons here:
- Even though you sign a waiver, you still might be able to sue for injuries.
- Even though you can sue, you still have to prove wrongdoing.
- When you are outside of the U.S., you really have to be selective as to the type of recreation you choose to take part in.
Have fun. And, see you next week.