Mack v. Royal Caribbean Cruises, Ltd.

• Decision Date: 28 November 2005
• Docket Number: No. 1-04-2168.,1-04-2168.
• Citation: 838 N.E.2d 80
• Parties: James MACK and Sheila Mack, Plaintiffs and Respondents-Appellees, v. ROYAL CARIBBEAN CRUISES, LTD., Defendant and Petitioner-Appellant.
• Court: Illinois Supreme Court

Page 80

838 N.E.2d 80

James MACK and Sheila Mack, Plaintiffs and Respondents-Appellees, v. ROYAL CARIBBEAN CRUISES, LTD., Defendant and Petitioner-Appellant.

No. 1-04-2168.

Appellate Court of Illinois, First District, Fourth Division.

October 20, 2005.

Rehearing Denied November 28, 2005.

COPYRIGHT MATERIAL OMITTED

Paul J. Kozacky & Associates, P.C., Chicago (Paul J. Kozacky, Jerome R. Weitzel, Jeffrey S. Becker), for Appellant.

Paul B. Episcope, LLC, Chicago (Michael T. Mullen, Anthony J. Masciopinto), for Appellee.

Justice GREIMAN delivered the opinion of the court:

Plaintiffs James and Sheila Mack brought suit against defendant Royal Caribbean Cruise Lines, Ltd., alleging that James cut his foot in the swimming pool area of a cruise ship owned and operated by defendant. Plaintiffs alleged that defendant was liable for negligently maintaining its swimming pool area; that defendant was vicariously liable for the negligent medical treatment James received from defendant's on-board physician; and that defendant was liable to Sheila for loss of consortium. Pursuant to Supreme Court Rule 308 (155 Ill.2d R. 308), defendant now appeals the trial court's interlocutory orders reinstating the plaintiffs' vicarious liability count and denying defendant's motion to dismiss.

Plaintiffs filed suit on November 29, 2001. Defendant moved to dismiss the vicarious liability and loss of consortium counts of plaintiff's complaint on the grounds that federal admiralty law did not recognize those causes of action. Initially, the trial court granted defendant's motion; however, on June 2, 2004, the trial court granted plaintiff's motion to reinstate the vicarious liability count after considering the recent holding of the Florida appellate court in Carlisle v. Carnival Corp., 864 So.2d 1 (Fla.App.2003), appeal allowed, 904 So.2d 430 (Fla.2005). Carlisle held that a passenger injured by the negligent treatment of a cruise line's on-board physician could maintain a vicarious liability cause of action against the cruise line.

Defendant also moved to dismiss the case on the grounds that the forum selection clause in the ticket contract between the parties required plaintiffs to bring suit in Miami, Florida. The case proceeded to an evidentiary hearing on this issue.

Nancy Calvo Varela testified that on March 2001, plaintiffs met with her to discuss Mediterranean cruises. Varela, a travel agent for American Express Travel, doing business as Crossroads Travel Service (hereinafter Crossroads Travel), provided plaintiffs with several brochures. Varela testified that on March 14, 2001, Sheila visited Crossroads Travel to place a deposit on a cruise offered by defendant. On June 8, 2001, Sheila visited Crossroads Travel to make final payment on the cruise. On June 28, 2001, Sheila visited Crossroads Travel a final time to pick up her trip information. Varela identified a ticket booklet at the hearing. While not identical, the booklet was essentially the same as the one Varela testified that she had given Sheila. It provided in relevant part:

"IT IS AGREED BY AND BETWEEN PASSENGER AND CARRIER THAT ALL DISPUTES AND MATTERS WHATSOEVER ARISING UNDER, IN CONNECTION WITH OR INCIDENT TO THIS CONTRACT SHALL BE LITIGATED, IF AT ALL, IN AND BEFORE A COURT LOCATED IN MIAMI, FLORIDA, U.S.A., TO THE EXCLUSION OF THE COURTS OF ANY OTHER STATE, TERRITORY, OR COUNTRY. PASSENGER HEREBY WAIVES ANY VENUE OR OTHER OBJECTION THAT HE MAY HAVE TO ANY SUCH ACTION OR PROCEEDING BEING BROUGHT IN ANY COURT LOCATED IN MIAMI, FLORIDA."

Varela testified that on June 28, 2001, when she gave Sheila the ticket booklet, she explained that Sheila should read the booklet and that it would need to be signed before the plaintiffs could board the ship. Varela did not discuss the substance of the booklet or specifically refer Sheila to the forum selection clause. Varela testified that the booklet would have contained both ground transportation vouchers that would have allowed plaintiffs to board the bus from the airport in Rome to the pier in Civitavecchia, Italy, and tickets that would allow them to board the ship once they arrived at the pier. Varela testified that if a cruise passenger arrived at the dock without a ticket, he would be required to sign a ticket dockside before boarding the ship.

Sheila testified that she, James and their daughter met with Varela in early March 2001 to discuss booking a cruise. On March 14, 2001, Sheila placed a deposit on the trip and Varela gave her an itinerary, a confirmation slip from Fun Jet airline and confirmation vouchers for plaintiffs' transportation from the airport to the ship. On June 8, 2001, James made the final payment on the trip. On June 28, 2001, Sheila received a folder from Varela that included plaintiffs' airline tickets and luggage tags. Sheila testified that she did not receive a ticket booklet. James testified that his wife was responsible for making all of the arrangements for the trip. He also did not receive a ticket booklet at any time.

Plaintiffs testified that upon their arrival in Rome, they were directed to a bus that would transport them to the cruise ship in Civitavecchia, Italy. Defendant's staff asked plaintiffs to present their ground transportation tickets, which they did not have. Nonetheless, plaintiffs were permitted to board the bus because their names appeared on the passenger list. Plaintiffs testified that when they arrived at the pier, defendant's representatives requested that plaintiffs present their tickets to board the ship, which plaintiffs also did not have. Plaintiffs were directed to wait in the "problem" line. Plaintiffs were each asked to sign a small perforated sheet that provided:

"THIS IS YOUR CRUISE TICKET CONTRACT. IT IS IMPORTANT THAT YOU READ ALL TERMS OF THIS CONTRACT (PP1-2). THIS TICKET IS NOT TRANSFERABLE AND IS NOT SUBJECT TO ALTERATIONS BY THE GUEST."

Plaintiffs testified that nothing was attached to the small sheet.

Plaintiffs signed the perforated sheet after being informed that no family member could board the ship without signing the document. Sheila assumed the document was to open an on-board charge account. James admitted that he did not scrutinize the perforated sheet. When the plaintiffs signed the perforated sheet, both were distracted by their young daughter and had had little rest since leaving for their trip.

Concerning the hardship that plaintiffs would endure if forced to litigate their case in Florida, Sheila testified that James is partially paralyzed and that he is unable to use the bathroom and must use a urine bottle when traveling. James testified that he must switch to a smaller wheelchair when he boards airplanes and must carefully monitor what he eats and drinks. James testified that both his wife and daughter would accompany him to Miami, Florida, to litigate the suit because he requires Sheila's help in traveling and his second-grade daughter would have nobody to take care of her in Chicago. Nonetheless, plaintiffs admitted that since his injury, James had taken trips to New York, Denver and Cancun.

On July 12, 2004, the trial court made several factual and legal findings. The trial court found that plaintiffs never received a complete ticket contract containing the forum selection clause, and the only portion of a ticket contract ever provided by defendants to plaintiffs was the perforated sheet to which nothing was attached. Furthermore, the trial court found that at no time was the forum selection clause otherwise communicated to plaintiffs by defendant or Crossroads Travel. Accordingly, plaintiffs never accepted the terms of the clause. The court further found that litigating the suit in Miami, Florida, would be "extremely difficult, if not impossible" for James, given his physical handicap and financial hardships. Accordingly, the trial court denied defendant's motion to dismiss.

The trial court certified the following two questions to this court:

"1. Under federal admiralty law, is a state court bound to apply federal admiralty precedent precluding vicarious liability claims against cruise lines for the alleged negligence of shipboard doctors, or is it free to permit such a vicarious liability claim against a cruise line?

2. Under federal admiralty law, does a passenger's signature on a ticket contract which contains a forum selection clause bind the passenger to the forum designated therein despite the passenger's claim that he did not timely receive or read the forum selection clause?"

On October 20, 2004, pursuant to Rule 308, we granted defendant's application to appeal. After the parties had fully briefed their arguments, on March 31, 2005, defendant moved to strike plaintiffs' argument that the forum selection clause should not be enforced because enforcement would cause them undue physical and financial hardship. According to the motion, on October 22, 2004, defendant served plaintiffs with interrogatories inquiring about any trips James had taken since his original deposition. Plaintiffs had failed to respond to the interrogatories. On April 11, 2005, we allowed the motion and took it with the case.

We will first address the outstanding motion. In reviewing the trial court's order denying defendant's motion to dismiss, this court is confined to consider evidence and matters considered by the trial court in issuing its order. Wieser v. Missouri Pacific R.R. Co., 98 Ill.2d 359, 363-64, 74 Ill.Dec. 596, 456 N.E.2d 98 (1983); Logan v. Old Enterprise Farms, Ltd., 139 Ill.2d 229, 237, 151 Ill.Dec. 323, 564 N.E.2d 778 (1990). The trial court's July 12, 2004, determination that the case should not be dismissed was based on the evidence presented during the evidentiary hearing. Defendant's interrogatories were served after this court had granted defendant's application for appeal. Because we review only the matters considered by the trial court, plaintiffs' failure to respond to the interrogatories at issue has no...