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JOHNSON v. COMMODORE CRUISE LINES

July 25, 1995

BARBARA JOHNSON, JAUNICE HENDERSON, JERRY RILEY and KAREN RILEY, Plaintiffs, against COMMODORE CRUISE LINES, LTD., Defendant.


The opinion of the court was delivered by: WHITMAN KNAPP

 WHITMAN KNAPP, SENIOR D.J.

 This is an action for the intentional and negligent infliction of emotional distress, and for fraud and deceit, based upon an alleged conspiracy on the part of defendant's employees to conceal the rape of plaintiff Barbara Johnson ("Barbara") while she was a passenger on board one of defendant's cruise ships. By Memorandum and Order dated October 11, 1994, we dismissed all of plaintiffs' causes of action resulting from the alleged rape as claims for "bodily injury" which were time barred under a one-year time-to-sue provision in plaintiffs' passage contracts. *fn1" We granted plaintiffs leave to amend their complaint, however, to assert claims based upon the alleged misconduct of defendant's employees after the rape occurred.

 Plaintiffs filed their amended complaint on October 20, 1994. Defendant moves once again for summary judgment on all claims. For the reasons that follow, we grant defendant's motion for summary judgment on the intentional infliction of emotional distress, fraud and deceit claims, but deny it with regard to plaintiffs' claims for negligent infliction of emotional distress.

 BACKGROUND

 This being a summary judgment motion, we interpret the facts most strongly against the movant. As so interpreted, the relevant facts are as follows:

 In addition to Barbara, plaintiffs are Jaunice Henderson, Barbara's mother; Karen Riley, Barbara's sister; and Jerry Riley, Barbara's brother-in-law. In February and March 1992, all four plaintiffs purchased passenger tickets in Mississippi, their state of citizenship, for a cruise on defendant's ship, the "ENCHANTED SEAS" ("the ship"). The tickets included a passage contract which provided that (Def. Exh. E. at 4):

 
The Passenger or Passengers named herein, by accepting or using this passage contract, and the Carrier Commodore Cruise Line, Limited by issuing the same, mutually agree that the Carrier will provide the Passenger with passage as stated herein subject to the terms appearing herein...

 Plaintiffs boarded the ship on April 26, 1992.

 At some time on the afternoon of May 1, 1992, Barbara went to the ship's infirmary and reported to the ship's doctor and nurse that she had been raped by a crew member, whom she identified as Hipolito Chavez. While in the infirmary, the doctor told Barbara that she was suffering from a heart attack and, despite her objections, injected her with 15 milligrams of morphine. The ship's captain and hotel manager then assisted the doctor in arranging for Barbara to be placed on a gurney and transported to a hospital in Cozumel, where the ship was docked. At the hospital, two doctors found that Barbara had not suffered from a heart attack, diagnosed severe emotional distress and administered Elavil, an anti-depressant medication.

 The other plaintiffs were not on board the ship at the time Barbara went to the ship's doctor and was sent to the hospital. When plaintiffs returned to the ship after such time, the doctor told them that Barbara had suffered a "massive heart attack"; that she had only a fifty percent chance of surviving; that she was "brain dead" and would be a "vegetable" requiring constant care if she survived.

 The ship's hotel manager directed his staff to pack plaintiffs' bags and instructed the plaintiffs to disembark the ship immediately. Plaintiffs were not permitted to use a telephone before leaving. After Barbara was released from the hospital and informed her family that she was not, in fact, suffering from a heart attack, all four plaintiffs were refused reentry onto the ship. Plaintiffs were left stranded in Mexico with neither passports nor money.

 Barbara provided defendant with notice of claim by a letter dated October 23, 1992. In addition to stating causes of action on Barbara's own behalf, the letter alleged that

 
statements were also made by the ship doctor to the other members of my party concerning my condition which caused great stress, mental anxiety, mental anguish and emotional distress. Specifically, the ship's doctor informed my mother, my sister, and my brother-in-law that I only had a fifty-fifty (50/50) chance of survival due to the massive nature of the heart attack * * * the statements ...

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