Jim Porter: Cruise ship stops in Cabo San Lucas
Special to the Sun
TAHOE/TRUCKEE and#8212; Cabo San Lucas on Mexicoand#8217;s Baja peninsula is a great place to vacation, as is Cabo San Jose slightly to the north. Most of you have been there.
The last time I was in Cabo, many years ago, we drank all day at a bar on the beach called and#8220;the Library.and#8221; We didnand#8217;t do a lot of reading and I forget what happened after that. It wasnand#8217;t pretty.
But thatand#8217;s not the point of our story.
Cabo San Lucas stop
Gerald Samuels and his two teenage children were on a 7-day cruise aboard a Holland American ship which arrived in Cabo San Lucas for the day.
Several crew members suggested Samuels take a skiff to Loverand#8217;s Beach at the very tip of the Baja peninsula for the day. Indeed, Samuels and his two kids made arrangements with one of the skiff-boat operators on the pier and they were dropped off at Loverand#8217;s Beach. The unique thing about Loverand#8217;s Beach is that it is two sided. One side of the beach is on the Sea of Cortez and the other side is on the Pacific Ocean.
Samuels was wading on the less-protected Pacific Ocean side when he got turned upside down and hit his head on the ocean beach. He was carried to the shore by bystanders. Sadly, he is now a high-functioning quadriplegic.
Cruise ship sued
Samuels and his family sued Holland American for negligence alleging the crew should have warned him of the dangers of swimming on the Pacific Ocean side of Loverand#8217;s Beach.
To get by a Summary Judgment motion, Samuels presented declarations from two experts. One formerly worked for a small cruise ship operator but had never been to Loverand#8217;s Beach and had searched the Internet finding nothing negative. Nonetheless he swore it was and#8220;common knowledge that Loverand#8217;s Beach is extremely dangerous.and#8221;
Samuels other expert worked in the travel industry but had no knowledge of the cruise business, and although she had briefly visited Loverand#8217;s Beach, she was not an expert on safety or the standard of care on cruise lines. She too swore that Loverand#8217;s Beach was and#8220;extremely dangerous.and#8221;
The trial court threw out both of Samueland#8217;s expertand#8217;s declarations as neither qualified as an expert. Further, there was no evidence that Holland American knew or should have known that the Pacific Ocean side of Loverand#8217;s Beach was dangerous and the cruise line had no knowledge of any accidents at the beach. The court noted that Carnival Cruise Line was found not responsible for a passenger being bitten by a snake during an off-the-ship excursion in a rainforest when Carnival had no reports of previous snake bites.
The Court of Appeal upheld the trial judge who had ruled in favor of the cruise line because Holland American had no knowledge of dangerous conditions and therefore had no duty to warn Samuels, making it unnecessary to address whether the possible dangers of swimming at Loverand#8217;s Beach were and#8220;open and obvious.and#8221; If the danger was open and obvious it would have been another reason to rule for Holland American.
Porterand#8217;s travel tip
The take home point here is when you are in Cabo San Lucas for a day-visit off a cruise ship, stay on the beach all day at and#8220;the Libraryand#8221; and#8212; until youand#8217;re plastered. Let the crew gather you back onboard. Donand#8217;t drink and#8212; or swim in and#8212; the water.
Jim Porter is an attorney with Porter Simon, with offices in Truckee, South Lake Tahoe and Reno. He is a mediator and was the Governor’s appointee to the Fair Political Practices Commission and McPherson Commission, both involving election law and the Political Reform Act. He may be reached at email@example.com or at the firmand#8217;s website http://www.portersimon.com.
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