On Wednesday, the District Court for the Central District of California granted Princess Cruise Line's ("Princess Cruises") Consolidated Motion to Dismiss all 13 "Fear Cases" stemming from the COVID-19 outbreak on the Grand Princess cruise ship. The Grand Princess, bound for Hawaii, originally departed San Francisco on February 21, 2020 with 2,422 passengers and 1,111 crewmembers onboard. On March 6, two weeks into the journey, of the 46 people tested on board, 21 people tested positive for COVID-19. Three days later, while docked at the Port of Oakland, two passengers, Ronald and Eva Weissberger (while still on the ship), filed a lawsuit against Princess Cruises alleging negligence and gross negligence for failing to take necessary precautions and employ proper screening protocols to keep its passengers and crew safe. Although the Weissberger's did not test positive for COVID-19 nor suffer any symptoms, they filed a lawsuit seeking to recover for emotional distressed based on their fear of contracting COVID-19 while quarantined on the ship. Soon after the Weissberger's filed their lawsuit, numerous virtually identical lawsuits were filed against Princess Cruises. These lawsuits, together with the Weissberger's lawsuit, were termed the "Fear Cases" by the Court as they all involve plaintiffs who did not test positive or manifest symptoms of COVID-19 but who sought to recover solely based on their fear of contracting COVID-19 while on the cruise ship. In an effort to preserve resources, Princess Cruise Lines filed a Consolidated Motion to Dismiss the 13 identical cases. 1

As the Plaintiffs sought to recover damages only for their emotional distress and trauma of the fear of contracting COVID-19 while on the ship, the Court found the Plaintiffs' claims for negligence and gross negligence were, in fact, claims for negligent infliction of emotional distress ("NIED"). As the alleged injury occurred on a vessel on or over navigable waters, federal maritime law applied to Plaintiffs' tort claims. In order to recover for NIED under federal maritime law, a plaintiff must satisfy the "zone of danger" test, which limits recovery for emotional injury to plaintiffs who either (1) sustain a physical impact as a result of a defendant's negligent conduct; or (2) are placed in immediate risk of physical harm by a defendant's negligent conduct.2 Under the first category, a plaintiff must allege that their emotional distress accompanies a "physical impact". The mere exposure that poses some future risk of disease that only causes emotional distress does not constitute "physical impact", rather, a plaintiff must manifest some symptom of the feared disease in order to recover. Under the second category, a plaintiff must allege that the defendant's negligent conduct placed that plaintiff in immediate risk of physical harm – for example, a "near-miss" collision case.

Here, Plaintiffs argued they were entitled to recovery for emotional distress under the second category of the "zone of danger" test as they experienced a "near miss" with COVID-19. As such, Plaintiffs did not need to demonstrate the manifestation of symptoms of COVID-19. Plaintiffs sought to create a "cruise ship exception" to the "zone of danger" where Plaintiffs could recover damages for emotional distress without manifesting any symptoms so long as they were in close proximity to an infected individual. In response, Princess Cruises argued that regardless of the category under the "zone of danger" test, "physical impact" or "near-miss", Plaintiffs' claims for disease-based emotional-distress were categorically barred because they failed to allege that they contracted the disease and/or exhibited symptoms of the disease.

The Court held Plaintiffs could not recover for NIED based solely on their proximity to the individuals with COVID-19 on the ship and the resulting fear of contracting the disease. The Court stated that a passenger aboard the Grand Princess who was merely exposed to an individual with COVID-19 could only recover under the first category of the "zone of danger" test ("physical impact") if they either contracted and/or manifested symptoms of COVID-19. Moreover, allowing for the creation of a "cruise ship exception" under the second category of the "zone of danger" test for recovery of emotional damages based solely on proximity – without any contraction and/or manifestation of symptoms – would be "nonsensical" and such an interpretation would lead to a "flood of trivial suits, and open the door to unlimited and unpredictable liability".

As such, the Court granted Princess Cruises' Consolidated Motion to Dismiss all 13 "Fear Cases" holding that the Plaintiffs' failed to state a claim because they failed to properly allege they were within the "zone of danger" in order to recover damages for their emotional distress and trauma of the fear of contracting COVID-19 while on the Grand Princess ship. The Court granted the Motion to Dismiss with prejudice – meaning that the cases are dismissed permanently and cannot be brought back into court – because the Plaintiffs have already disembarked the Grand Princess and there is no longer a risk of contracting COVID-19 on the ship.

This decision is noteworthy as the Court declined to recognize a new theory of liability for NIED claims, the "cruise ship exception", which would have opened the door to vast amounts of litigation based solely on proximity to an individual infected with COVID-19. If the Court had recognized the Plaintiffs' theory of liability for emotional distress detached from any physical harm, that would have likely opened the door to open-ended liability for businesses, schools, places of worship, municipalities, etc. that would further inhibit the economic recovery during the COVID-19 pandemic and would complicate the ability of businesses to reopen. While the Court may have declined to recognize this new theory of exposure without infection and/or manifestation of symptoms, businesses and places where people gather and congregate should still be cautious and continue to employ best practices for social distancing and sanitation, as well as taking necessary precautions and employing proper screening protocols.

Footnotes

1 The thirteen cases are: Weissberger v. Princess Cruise Lines Ltd, No. 2:20-CV-02267-RGK-SK (lead); Abitbol v. Princess Cruise Lines Ltd, No. 2:20-CV-02414-RGK-SK; Austin v. Princess Cruise Lines Ltd, No. 2:20-CV-02531-RGK-SK; Gleason v. Princess Cruise Lines Ltd, No. 2:20-CV-02328-RGK-SK; Jacobsen v. Princess Cruise Lines Ltd, No. 2:20-CV-02860-RGK-SK; Jones v. Princess Cruise Lines Ltd, No. 2:20-CV-02727-RGK-SK; Kurivial v. Princess Cruise Lines Ltd, No. 2:20-CV-02361-RGK-SK; Lane v. Princess Cruise Lines Ltd, No. 2:20-CV-02865-RGK-SK; Mendenhall v. Princess Cruise Lines Ltd, No. 2:20-CV-02753-RGK-SK; Sheedy v. Princess Cruise Lines Ltd, No. 2:20-CV-02430-RGK-SK; Chao v. Princess Cruise Lines Ltd, No. 2:20-CV-03314-RGK-SK; James v. Princess Cruise Lines Ltd, No. 2:20-CV-03868-RGK-SK; and Stramel v. Princess Cruise Lines Ltd, No. 2:20-CV-03960-RGK-SK.

2 See, Consolidated Rail Corp v. Gotshall, 512 U.S. 532, 547-48, 556 (1994); Stacy v. Rederiet Otto Danielsen, A.S., 609 F.3d 1033, 1034-35 (9th Cir. 2010)

Originally published 16 July, 2020

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