A Win for the Cruise Industry Regarding “Emotional Distress” Claims 

July 16, 2020

Class actions arising from exposure to COVID-19 against the cruise industry continue to multiply, including a new class action filed on July 14, 2020, against Princess Cruise Lines, Ltd. and Carnival Corporation in federal court in Los Angeles, see, O’Neill v. Carnival Corporation, et al., 2:20-cv-06218. However, there appears to be a glimmer of hope for the cruise industry for those claims alleging “emotional distress” where the plaintiffs never contracted the disease.

On July 14, Judge R. Gary Klausner of the U.S. District Court for the Central District of California, dismissed with prejudice the complaint and related cases brought by a couple who had booked a cruise from San Francisco to Hawaii, on the ill-fated Grand Princess, departing on February 21, 2020. The couple claimed a simple fear of contracting the COVID-19 virus (denominated, perhaps a bit sarcastically, the “Fear Cases” by the judge) as opposed to claiming that they were actually infected and suffered physical injury. Weissberger v. Princess Cruise Lines Ltd., 2:20-cv-02267-RGK (USDA CDCA)(dec. July 14, 2020).

The claim, in essence, alleged that Princess was negligent in allowing the cruise to proceed, despite the fact that two passengers on the previous voyage had been disembarked with symptoms of the coronavirus. The complaint also alleged that the defendant failed to warn passengers of the risk of contracting the disease and that health screening procedures implemented by the cruise line were grossly inadequate. The health screening procedures were limited to requiring passengers to simply fill out a form that they were not sick. The complaint further alleged that even though the plaintiffs were not infected, they were placed “in the immediate the risk of physical harm” and, therefore, could recover.

Accepting the plaintiffs’ allegations as true, which the court must do on a motion to dismiss, Judge Klausner essentially construed the plaintiffs’ claims as those for negligent infliction of emotional distress. By doing so, the judge then applied the well-known case of Consolidated Rail Corp. v. Gottshall, 512 U.S. 532 (1994), where in the Supreme Court, per Justice Thomas, ruled that the so-called “zone of danger” test applies to claims for negligent infliction of emotional distress in Federal Employers Liability Act (FELA) cases, thus under maritime law as well. Essentially, the zone of danger test requires that the plaintiff either prove a physical impact as a result of the defendant’s negligent conduct, or that the plaintiff be put in the “immediate risk of physical harm” by that conduct. The “bright line” set by Gottshall was intended to limit a flood of comparatively unimportant or trivial claims, by narrowing the scope of those who have standing to assert emotional distress claims.

The court went on to find that the plaintiffs failed to allege that they were within the zone of danger even though there may have been exposure to the virus. The court further held that mere “proximity” to individuals with the virus was not sufficient to sustain an emotional distress claim, and, having disembarked from the vessel, the plaintiffs no longer had a risk of contracting the disease. Moreover, the court found that mere exposure to the virus did not constitute “physical impact” under Gotshall. Of great significance to the cruise industry, in our view, is specific language in the opinion refusing to create a so-called “carve out” of the cruise industry as a business that creates an unreasonable risk of exposure to the virus. Interestingly, the court cited “restaurants, bars, churches, factories, nursing homes, prisons” and other establishments as posing a comparable, if not greater risk of exposure to the virus. Thus, the court refused to create a “cruise ship exception” to the zone of danger test. This would appear to be a significant holding, which should give comfort to one of the most battered and maligned targets of COVID-19 related lawsuits.

Although it is likely that the “tsunami” of COVID-19 related lawsuits against cruise lines will continue, a variety of valid defenses to many of these lawsuits remain. These include asserting foreign forum selection clauses, one of which was recently enforced in a claim for negligent misrepresentation against a French cruise line, handled by Cozen O’Connor. See, Moffatt Jones v. Ponant USA, LLC, 2020 U.S. Dist. LEXIS 85176, as well as problems of causation, given the lengthy incubation period and possible exposure from asymptomatic carriers. In addition, there are significant obstacles to class action certification, given that each passenger’s alleged exposure to the virus on board is unique and damages vary from claim to claim. Notwithstanding, it is expected that the onslaught of cases against the cruise industry will continue. However it appears that, at least for the time being, claims limited to emotional distress in the absence of actual illness will fail.