Larsen v. Carnival Corp., Inc.

• Decision Date: 24 January 2003
• Docket Number: No. 02-20218-CIV-GRAHAM.,02-20218-CIV-GRAHAM.
• Citation: 242 F.Supp.2d 1333
• Parties: Steven LARSEN and Kimberly Larsen, Plaintiffs v. CARNIVAL CORP., INC., et al., Defendant.
• Court: U.S. District Court — Southern District of Florida

242 F.Supp.2d 1333

Steven LARSEN and Kimberly Larsen, Plaintiffs v. CARNIVAL CORP., INC., et al., Defendant.

No. 02-20218-CIV-GRAHAM.

United States District Court, S.D. Florida, Miami Division.

January 24, 2003.

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Robert Cary Maland, Miami, FL, Matthew Wilson Dietz, Matthew W. Dietz, Coral Gables, FL, for Steven Larsen, Kimberly Larsen, his wife plaintiffs.

Thomas Richard Julin, Ted Christopher Craig, Dorothy Patricia Wallace, Christina T. Ng, Hunton & Williams, Miami, FL, Carolyn Doppelt Gray, Michael B. Lehrhoff, Epstein Becker & Green, Washington, DC, for Carnival Corp., defendant.

Richard Randall McCormack, Mark Gerard Keegan, Hayden & Milliken, Coral Gables, FL, Henry H. Bolz, III, Keller & Bolz, Miami, FL, for Hallmark Reporting dba Hallmark Stevedoring Company, defendant.

ORDER

GRAHAM, District Judge.

THIS CAUSE came before the Court upon the Defendant's Motion for Summary Judgment (D.E.68) and Plaintiffs' Motion for Partial Summary Judgment (D.E .64).

THE COURT has considered the motions, the pertinent portions of the record, and is otherwise fully advised in the premises.

I. FACTUAL BACKGROUND

At the heart of this case, involving claims under Title III of the Americans with Disabilities Act of 1990, 42 U.S.C. §§ 12182, et seq. ("ADA"), is a dispute over the medical disembarkation of Plaintiff Steven Larsen from one of Carnival's cruises on January 22, 2001. Since 1989, Steven Larsen has been a paraplegic and utilizes a motorized wheelchair. Since 1997, Steven Larsen was diagnosed with severe obstructive sleep apnea, severe morbid obesity at approximately 450 lbs., and chronic obstructive pulmonary disease, and has utilized a prescribed Bi-Pap ventilator ("Bi-Pap") and oxygen concentrator at night to help him breathe during sleep. See Deposition Transcript of Dr. Dan Vardi ("Dr. Vardi Dep.") at 6; Deposition Transcript of Steven Larsen ("Larsen Dep.") at 68, 70; Deposition Transcript of Dr. Rodney Benjamin ("Dr. Benjamin Dep.") at 8, 21. Mr. Larsen's obstructive sleep apnea is so severe that according to his primary treating physician, Dr. Vardi, Steven Larsen has "the most complex case that [one] can possibly have." Dr. Vardi Dep. at 51-52.

In order to treat Steven Larsen's severe obstructive sleep apnea, Dr. Vardi testified that the prescribed therapy for Mr. Larsen's pulmonary difficulties is the use of a Bi-Pap ventilator machine in conjunction with an oxygen concentrator. See Dr. Vardi Dep. at 18-19. The Bi-Pap utilized by Steven Larsen is an expensive prescription device that facilitates breathing by forcing bi-level pressure into the lungs in order to prevent the patient from stopping breathing through upper airway obstruction. See Dr. Benjamin Dep. at 15; Dr. Vardi Dep. at 14-15.

During his deposition, Dr. Vardi, Plaintiffs treating physician, elaborated that "[m]ost of the time, I'd rather—I'd rather that he use both [the Bi-Pap and the oxygen concentrator.] It's better for him to use both of them all the time. At night. Every night." Dr. Vardi Dep. at 30. Dr. Vardi further testified that he never recommended to Steve Larsen that it was acceptable to simply use the concentrator instead of the Bi-Pap at night. See Dr. Vardi Dep. at 30.

Dr. Vardi has never advised Steven Larsen that it is safe or acceptable for him to go even one night without a functioning Bi-Pap or oxygen concentrator. Indeed, Dr. Vardi stated at his deposition that "I cannot say for sure that it is safe. This is a toss of a coin. When he is absolutely okay and doesn't have any infection, he could probably get by. But to say it's safe, it's a stretch." Id. at 59.

Specifically, Dr. Vardi testified that Steven Larsen is at higher risk for respiratory failure than most other patients when he has an infection or is having difficulty breathing and his Bi-Pap ventilator is not available to him. See id. at 38. One of the risks of respiratory failure for Steven Larsen is death. Id. Steven Larsen has been advised and is fully aware that during such times when he is not well physically, he may suffer respiratory failure, and may die if he does not use his Bi-Pap at night. See id. at 49-50.

In September 2000, Plaintiffs Steven and Kimberly Larsen sailed as cruise passengers—without incident—on the M/S Ecstasy to Key West, Florida and Cozumel, Mexico. See Deposition Transcript of Kimberly Larsen ("K. Larsen Dep.") at 47. For that trip, the Larsens checked in the Bi-Pap machine with the curbside porter. Based upon their positive experience with Carnival on the September 2000 cruise, the Larsens decided to purchase tickets for another trip on the M/S Ecstasy for the same itinerary in January 2001. See Larsen Dep. at 130-131.

Prior to the January 2001 trip, Steven Larsen submitted a Special Requirements Information form to Carnival indicating, among other things, that he was a paraplegic, that he utilized an electric wheelchair, that the width of his electric wheelchair was 28]d inches, and that he utilized a "Bi Pap." See Appendix to Defendant's Statement of Undisputed Facts ("Appendix"), Tab 7. In making arrangements in preparation for the January 2001 trip, Steven Larsen spoke with Carnival representatives and was informed of the dimensions of his modified, wheelchair-accessible cabin. See Larsen Dep. at 141.

Kimberly Larsen packed the Bi-Pap for the January 2001 cruise in the same way she had packed it for the September 2000 trip, by wrapping it in a towel and placing it in a soft duffel bag. Kimberly Larsen advised the porter of the fragile contents of the bag, and requested to carry it on board with her. See K. Larsen Dep. at 54-55. As with the September 2000 cruise, the Larsens checked in their Bi-Pap for the January 2001 cruise by giving it to the curbside porter, after they were told they could not bring it on board with them. Id. Carnival does not dispute that the Larsens were erroneously advised by the curbside porter regarding Carnival's policy of allowing guests to carry on medical equipment with them. The parties do dispute, however, whether the curbside porters assisting Carnival with the boarding of Carnival passengers onto Carnival vessels were employees or agents of Carnival.

Upon boarding the vessel and during the check-in process, the Larsens were separated briefly; Steven Larsen was taken up the elevator to the second floor, while Kimberly Larsen walked up the stairs with other able-bodied passengers. Steven Larsen did not need any medical assistance or care from Kimberly Larsen during the time that they were separated. See Larsen Dep. at 153-155.¹

Once they boarded the ship, the Larsens immediately went to their assigned modified cabin for the disabled, Cabin E-116, located along the same row of cabins as the rest of the Larsens' traveling party, except for Mr. Larsen's daughter, who made her booking late. See Larsen Dep. at 140-141. This modified room, however, was not accessible to Steven Larsen.

Around noon, the Larsens informed the purser's desk that the cabin in which they were originally booked was not accessible to Steven Larsen. See Larsen Dep. at 160-162. The purser's desk advised the Larsens that they would attempt to locate a larger modified cabin for them, but had to first determine if the other guests assigned to the cabin needed a modified cabin themselves. Id.² The Larsens claim they were told that if no accessible cabin was available, they would be required to disembark the ship. Larsen Dep. at 160.

Carnival located another cabin for the Larsens within about half an hour of the Larsens' request for a different cabin, and paged the Larsens at least twice through the ship's public announcement system to ask them to come to the purser's desk so they could be informed regarding the cabin reassignment. See Haughey Dep. at 58-60. The Larsens, for their part, claim that they were not assigned another room until at least 3:30 p.m., nearly four hours after notifying the purser of their needs.

Steve Larsen knew that there were wheelchair accessible restrooms available in the terminal used by the Larsens to board the M/S Ecstasy at the Port of Miami. Steve Larsen did not, however, ask anyone if he could use the terminal restrooms, or any other restroom. See Larsen Dep. at 165-166. Kimberly Larsen contends that although Steve Larsen did not indicate any immediate need to use the restroom, she knew it was getting "pretty close to the time." See K. Larsen Dep. at 63. Kimberly Larsen claimed she and her husband asked if there were other restrooms, but was advised that "there were only handicapped bathrooms in the handicap rooms." Id. at 54. However, the Larsens did not specifically request to use any restroom, either on or off the vessel.

Around 3:30 to 4 p.m., the Larsens were successfully reassigned to Cabin M298, a wheelchair-accessible cabins. See id. at 160-161; Strawderman Dep. at 61. Cabin M298 had a larger entry doorway and interior cabin size, and the same decor as Cabin E116. See id. at 61.

The M/S Ecstasy was scheduled to sail at 4 p.m. on January 22, 2001. See Larsen Dep. at 167. At around 4:30-5 p.m., all the guests were onboard the ship and the passenger gangway through which the Larsens had originally boarded the ship was removed in preparation for departure. See Haughey Dep. at 45-46.

At around 4:30 p.m., half an hour after the ship was originally scheduled to set sail, Steven Larsen discovered that his Bi-Pap machine was not functioning properly, and went to the purser's desk to attempt to obtain a replacement Bi-Pap. See Larsen Dep. at 168-173. The Larsens did not know first-hand of any medical supply companies in Miami from where they could obtain a replacement Bi-Pap. See Larsen Dep. at 206-207.

Lincare, the medical supply company used by the Larsens for their Bi-Pap, is based in Port Charlotte, Florida and did not have an office in or provide service to Miami-Dade County. See Deposition Transcript of John Sims ("Sims...