In Alexander v. Carnival Corporation, 238 F.R.D. 318 (S.D. Fla. 2006), Bertha Alexander sued Carnival Corporation d/b/a Carnival Cruise Lines in United States District Court, S.D. Florida. The court issued an order on November 7, 2006.
Although this is an older case, it is still good law. Alexander and Carnival both used Miami lawyers. This makes sense since slip and fall cases against Carnival are required to be brought in Miami, Florida.
Alexander’s lawyer requested that Carnival provider him with accident reports of slip and fall incidents related to food on the teak portion of the Lido ( i.e. pool) decks of Carnival’s ships.
Her lawyer wanted these reports to show that food being on this portion of the Lido (i.e. pool) decks of Carnival’s ships was on ongoing problem. If it was a recurring issue, the injured person’s attorney can show that Carnival had constructive notice of this dangerous condition.
To win a slip and fall case against Carnival, you have to prove that they had actual or constructive notice of the dangerous condition that caused your slip and fall.
The court said that Carnival’s prior accident reports were privileged. Thus, Alexander was not entitled to them.
Suzanne Vazquez, Guest Claims Manager for Carnival’s Loss Prevention Department submitted an affidavit. An affidavit is a written statement confirmed by oath or affirmation, for use as evidence in court.
Paraphrased, it said:
“The experience of Carnival Cruise Lines is that some passengers who are involved in accidents seek to be compensated for their injuries. Carnival’s experience has also shown that frivolous or exaggerated claims of accidents and injuries are frequently made. This incidents often result in lawsuits.
It is the policy of Carnival Cruise Lines to investigate all claims of passenger injuries in anticipation of the litigation described above. When a passenger reports an incident resulting in injury, an accident report is prepared and photographs are taken to memorialize the results of the investigation in anticipation of litigation.
The accident report form utilized by Carnival was created by Carnival Cruise Lines lawyers. Every completed accident report, as well as photographs taken at the time of the accident, are then provided to Carnival’s lawyers.
These investigative procedures are followed by Carnival at the direction of Carnival’s attorney, to provide claims handling information to Carnival Cruise Lines and its attorneys in the anticipated lawsuit.
While it is Carnival Cruise Lines’ policy to prepare an accident report and take photographs in the case of every reported claim of passenger injury, the primary function is to assist Carnival Cruise Lines’ claims department and lawyers in the lawsuit.”
Alexander’s attorney took the deposition of Carnival’s claims manager, Vasquez. This is a portion of it:
“Q. But in terms of the accidents involving people slipping and falling, what makes it into the TECNO system is if the person either gets injured and reports it to the infirmary or if the claim is made; correct? (Mr. Foreman: Objection, form.)
A. Right, I mean, onboard the ship, the accident report is generated and when it’s clearly going to result in litigation or usually the policy is that if somebody is severely injured, we’d request, the legal department has requested them to get an accident report so that we can start handling the claim in anticipation that there’s going to be litigation.
Q. So in other words, if somebody slips on the Lido deck because there’s food there, even if they fall but they don’t get injured, nobody is going to prepare a report; correct? (Mr. Foreman: Objection, form.).
A. It depends if, even if — I mean, the general policy if somebody just reports with a scraped knee or something, because they fell or something happened, most of the time you’re not going to see an accident report from that or like a bruise, unless they want one or unless there’s, you know some reason to think that there is either a defective condition, there’s going to be litigation, you know, it’s the policy set by the attorneys to tell this ship what to do to help defend us, unfortunately we have to do that.”
Basically, the court ruled that Carnival does not have to give you past accident reports involving the dangerous condition, even after you sue them.
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