Kamens et al v. Holland America Line Inc et al, No. 2:2009cv01074 - Document 21 (W.D. Wash. 2010)
Court Description: ORDER granting 10 Defendants Motion for Partial Summary Judgment, by Judge James L. Robart.(MD)
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Kamens et al v. Holland America Line Inc et al Doc. 21 1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT SEATTLE 8 9 10 RHODA KAMENS, et al., Plaintiffs, 11 ORDER ON DEFENDANTS’ MOTION FOR PARTIAL SUMMARY JUDGMENT v. 12 13 CASE NO. C09-1074JLR HOLLAND AMERICA LINE, INC., et al., 14 Defendants. 15 I. INTRODUCTION 16 This matter comes before the court on Defendants Holland America Line, Inc., 17 HAL Antillen N.V., and Holland America Line N.V.’s (collectively, “HAL”) motion for 18 partial summary judgment (Dkt. # 10). HAL seeks summary judgment on the following 19 claims: (1) Plaintiff Rabbi Sylvan Kamens’s claim for loss of consortium; (2) Rabbi 20 Kamens’s claim for physical injuries sustained while caring for his wife, Plaintiff Rhoda 21 Kamens; and (3) the Kamenses’ claims for wages foregone by Rabbi Kamens while he 22 ORDER- 1 Dockets.Justia.com 1 was caring for Mrs. Kamens. The Kamenses did not file a response to HAL’s motion. 2 Having considered the motion and the materials in the record, and deeming oral 3 argument unnecessary, the court GRANTS HAL’s motion for summary judgment (Dkt. # 4 10). 5 6 II. BACKGROUND In October 2008, Rabbi and Mrs. Kamens were guests aboard the M/S Westerdam, 7 a cruise ship traveling from Seattle, Washington, to Fort Lauderdale, Florida. On 8 October 14, 2008, Mrs. Kamens fell and injured her knee on the Hydro Pool deck of the 9 ship. (Harris Decl. (Dkt. # 19) Ex. A.) At the time, the M/S Westerdam was sailing in 10 international waters. (Id. ¶ 6.) On July 28, 2009, the Kamenses filed a complaint against 11 HAL, the ship’s owner/operator, seeking damages resulting from HAL’s alleged 12 negligence. (Compl. (Dkt. # 1) at 3-5.) Specifically, the complaint includes demands for 13 pecuniary, physical, and emotional damages allegedly suffered by Mrs. Kamens, as well 14 as a demand for loss-of-consortium damages allegedly suffered by Rabbi Kamens. (Id. at 15 ¶¶ 21-23.) 16 On November 18, 2009, the Kamenses responded to HAL’s first set of discovery 17 requests. In response to Interrogatory No. 3, the Kamenses stated: 18 19 Plaintiff Sylvan Kamens did not sustain any physical injuries on Defendant’s vessel. As a result of caring for Rhoda [Kamens,] however, he did sustain some shoulder pain which is set forth below. 20 (Shields Decl. (Dkt. # 11) Ex. B at 3.) Additionally, in response to Interrogatory No. 17, 21 the Kamenses stated: 22 Because of Rhoda Kamens’ injury, Sylvan Kamens, her husband who is a ORDER- 2 1 Rabbi has been unable to take any additional interim rabbi positions which he has done in the past and expected to do in the coming period. His annual salary for those positions averaged $130,000 per annum plus benefits. 2 3 (Id. at 9.) 4 HAL now seeks summary judgment dismissal of Rabbi Kamens’s claims, which 5 HAL characterizes as follows: (1) a claim for loss of consortium; and (2) a negligence 6 claim for physical injuries sustained while caring for Mrs. Kamens. HAL also seeks 7 summary judgment with respect to the Kamenses’ claims for Rabbi Kamens’s lost wages. 8 HAL correctly notes that of the claims addressed in its motion, only Mr. Kamens’s claim 9 for loss of consortium and Mrs. Kamens’s claim for damages were stated in the 10 complaint. (Mot. at 2 n.1.) 11 III. ANALYSIS 12 A. Summary Judgment Standard 13 Summary judgment is appropriate if “the pleadings, the discovery and disclosure 14 materials on file, and any affidavits,” when viewed in the light most favorable to the non15 moving party, “show that there is no genuine issue as to any material fact and that the 16 movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(c)(2); Celotex 17 Corp. v. Catrett, 477 U.S. 317, 322 (1986); Galen v. County of Los Angeles, 477 F.3d 18 652, 658 (9th Cir. 2007). The moving party bears the initial burden of showing there is 19 no genuine issue of material fact and that he or she is entitled to prevail as a matter of 20 law. Celotex, 477 U.S. at 323. Although the court’s local rules provide that “if a party 21 fails to file papers in opposition to a motion, such failure may be considered by the court 22 ORDER- 3 1 as an admission that the motion has merit,” Local Rules W.D. Wash. CR 7(b)(2), the 2 court must, nevertheless, determine whether HAL has met its initial burden to show that 3 it is entitled to summary judgment, see Martinez v. Stanford, 323 F.3d 1178, 1183 (9th 4 Cir. 2003). 5 B. Rabbi Kamens’s Claim for Loss of Consortium 6 HAL contends that Rabbi Kamens’s loss-of-consortium claim should be dismissed 7 because it is not cognizable under general maritime law. (Mot. at 4.) General maritime 8 law does not recognize a claim for loss of consortium when the injury giving rise to the 9 claim occurred outside of state territorial waters, that is, beyond three nautical miles from 10 the United States shore. Chan v. Soc’y Expeditions, Inc., 39 F.3d 1398, 1407 (9th Cir. 11 1994) (citing Sutton v. Earles, 26 F.3d 903, 915 (9th Cir. 1994)). Here, the Kamenses 12 concede that Mrs. Kamens’s injury occurred outside of state territorial waters. (Waechter 13 Decl. (Dkt. # 20) at 2.) Thus, Mrs. Kamens’s injury does not give rise to a cognizable 14 loss-of-consortium claim under general maritime law, and HAL is entitled to prevail as a 15 matter of law with respect to Rabbi Kamens’s claim. See Celotex, 477 U.S. at 323. The 16 court therefore grants HAL’s motion for summary judgment with respect to Rabbi 17 Kamens’s loss-of-consortium claim. 18 C. Rabbi Kamens’s Claim for Physical Injuries 19 HAL contends that it is not liable for physical injuries that Rabbi Kamens 20 allegedly sustained while caring for Mrs. Kamens. Specifically, HAL contends that it 21 owed no duty to Rabbi Kamens while he was rendering such care. 22 To recover for negligence, Rabbi Kamens must establish four elements: (1) duty; ORDER- 4 1 (2) breach; (3) causation; and (4) damages. Morris v. Princess Cruises, Inc., 236 F.3d 2 1061, 1070 (9th Cir. 2001). Summary judgment is appropriate if the court concludes that 3 HAL owed no duty to Rabbi Kamens. See 1 DAN B. DOBBS, THE LAW OF TORTS § 149 4 (2001); see also Sutton, 26 F.3d at 912 n.8 (“The question of the existence of a duty is a 5 matter of law . . . in maritime law, just as it is in the common law of torts.”). 6 A ship owner owes those aboard its vessel a duty of “reasonable care under the 7 circumstances of each case.” Kermarec v. Compagnie Generale Transatlantique, 358 8 U.S. 625, 632 (1959). Because a ship owner’s duty depends on the circumstances, it 9 “may be a very high degree of care [or] something less.” Catalina Cruises, Inc. v. Luna, 10 137 F.3d 1422, 1425 (9th Cir. 1998) (quoting Rainey v. Paquet Cruises, Inc., 709 F.2d 11 169, 170-71 (2d Cir. 1983)). Factors the court should consider in determining the scope 12 of HAL’s duty to Rabbi Kamens include: (1) whether the danger Rabbi Kamens 13 encountered was peculiar to maritime travel; (2) HAL’s degree of control over Rabbi 14 Kamens; and (3) HAL’s ability to take appropriate precautions to protect Rabbi Kamens. 15 See Smith v. S. Gulf Marine Co. No. 2, Inc., 791 F.2d 416, 421 (5th Cir. 1986); see also 16 Kirk v. Holland Am. Line, Inc., 616 F. Supp. 2d 1101, 1104-05 (W.D. Wash. 2007) (“The 17 ‘totality of the circumstances’ . . . includes such factors as whether Plaintiffs had any 18 clear alternatives and whether they were still being controlled by the cruise ship . . . .”); 19 In re Catalina Cruises, Inc., 930 F. Supp. 1384, 1391 (C.D. Cal. 1996) (citing Smith, 791 20 F.2d at 421). 21 Considering these factors, and applying them to the facts viewed in the light most 22 favorable to Rabbi Kamens, the court concludes that HAL had no duty to protect Rabbi ORDER- 5 1 Kamens from physical injuries sustained while caring for Mrs. Kamens. Rabbi Kamens’s 2 alleged injuries occurred after he disembarked from the M/S Westerdam; they did not 3 result from dangers peculiar to maritime travel. He voluntarily undertook to care for Mrs. 4 Kamens; HAL did not control this decision. Finally, HAL had little ability to protect 5 Rabbi Kamens from injury after he disembarked from its vessel and returned home. 6 Because HAL had no duty to protect Rabbi Kamens while he cared for Mrs. 7 Kamens, HAL is entitled to prevail as a matter of law with respect to Rabbi Kamens’s 8 negligence claim. Accordingly, the court grants HAL’s motion for summary judgment 9 with respect to Rabbi Kamens’s claim for injuries he allegedly sustained while caring for 10 Mrs. Kamens. 11 D. The Kamenses’ Claims for Rabbi Kamens’s Lost Wages 12 HAL contends that neither Rabbi nor Mrs. Kamens is entitled to recover Rabbi 13 Kamens’s lost wages. (Mot. at 6-7.) Because Rabbi Kamens has alleged no viable 14 claims arising from HAL’s conduct, HAL is not liable to Rabbi Kamens for damages. 15 Accordingly, the court grants summary judgment in HAL’s favor to the extent that Rabbi 16 Kamens seeks damages for wages foregone while caring for Mrs. Kamens. 17 As to Mrs. Kamens, HAL contends that her recovery must be based on the 18 reasonable value of necessary care, not on the amount of wages foregone by Rabbi 19 Kamens. HAL does not identify any maritime cases that squarely address whether a 20 plaintiff may recover wages foregone by his or her spouse, nor has the court found any in 21 its own research. The court may, however, look to traditional common law for guidance. 22 See E. River S.S. Corp. v. Transamerica Delaval, 476 U.S. 858, 864-65 (1986) (“Drawn ORDER- 6 1 from state and federal sources, the general maritime law is an amalgam of traditional 2 common-law rules, modifications of those rules, and newly created rules.”); see also 3 Royal Ins. Co. of Am. v. Sw. Marine, 194 F.3d 1009, 1015 (9th Cir. 1999) (“[T]he court 4 ‘look[s] to the common law in considering maritime torts.’” (quoting Su v. M/V S. Aster, 5 978 F.2d 462, 472 (9th Cir. 1992))). 6 After reviewing the cases that have addressed the issue, the court is persuaded to 7 adopt the majority rule: Mrs. Kamens may recover, if proven, the reasonable value of the 8 care provided by Rabbi Kamens, but not Rabbi Kamens’s lost wages. See, e.g., Rios v. 9 Bigler, 847 F. Supp. 1538, 1547 (D. Kan. 1994) (applying Kansas law); Jackson v. U.S., 10 526 F. Supp. 1149, 1154 (D. Ark. 1981), aff’d, 696 F.2d 999 (8th Cir. 1982) (applying 11 Arkansas law); Rodriguez v. Bethlehem Steel Corp., 525 P.2d 669, 687 (Cal. 1974); 12 Armstrong v. Onufrock, 341 P.2d 105, 107 (Nev. 1959). But see Baltazar v. Neill, 364 13 S.W.2d 846 (Tex. Civ. App. 1963) (allowing jury to consider wages foregone as evidence 14 of the value of wife’s services). The court agrees that “[t]he only practical way for courts 15 to value a family member’s care is to determine the economic value as if the care had 16 been provided by a nonfamily member.” Hutchings v. Childress, 895 N.E.2d 520, 526 17 (Ohio 2008). The court therefore grants summary judgment in HAL’s favor to the extent 18 that Mrs. Kamens seeks damages for wages foregone by Rabbi Kamens while he cared 19 for her. 20 21 22 ORDER- 7 1 2 IV. CONCLUSION For the foregoing reasons, the court GRANTS HAL’s motion for partial summary 3 judgment (Dkt. # 10). 4 Dated this 12th day of May, 2010. 5 A 6 7 ____ JAMES L. ROBART United States District Judge 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 ORDER- 8
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