In Carroll v. Carnival Corp., No. 17-13602, 2020 U.S. App. LEXIS 11860 (11th Cir. Apr. 15, 2020), the Eleventh Circuit Court of Appeals found that where a cruise ship passenger tripped over the leg of a lounge chair while she was walking through a narrow pathway on a cruise ship, summary judgment on the open and obvious doctrine was not warranted where there was an inference that a reasonable person may not have observed the chair leg obstructing her path.
The general rule is that an operator of a ship has a duty to warn only of known dangers that are not open and obvious. In evaluating whether a danger is open and obvious, courts are guided by the reasonable person standard and not the plaintiff’s subjective perspective. Carroll had argued that while walking behind her heavy-set husband, due to the narrowing of the walkway she was transiting, her right foot clipped the leg of one of the lounge chairs, causing her to fall and suffer injuries. Carnival moved for summary judgment, arguing that the lounge chairs did not constitute a dangerous condition and even if they somehow did, it had no duty to warn of the condition because it was open and obvious and because Carnival had no notice of the hazard. Thus the issue framed by the Court was “whether a reasonable person would have observed the chair leg and appreciated the risk of walking through the narrow passageway under the circumstances.” Id. at *6.
The Court adopted the Third Restatement of Torts, which distinguishes between failure to warn claims and negligent maintenance claims in finding that the fact that a dangerous condition is open and obvious bears on the assessment of whether reasonable care was employed, but it does not pretermit the liability of the defendant. In other words, the Court found that while the Third Restatement of Torts treats the open and obvious nature of a dangerous condition as factor to be considered in a comparative fault analysis, it is not a bar to liability for negligently maintained premises.
This finding by this panel changes the tenor of open and obvious claims and increases litigation costs for marginal claims against shipowner defendants. While the Court properly applies “landlubber” principles to determine negligence of shipowners with respect to notice of defective or dangerous conditions aboard their vessels, the Court fashions the adoption of the Third Restatement of Torts from “whole cloth” by citing to an Eastern District of Virginia case so holding. The Court attempts to state that this approach is also dictated by the former Fifth Circuit decision in Arthur v. Float Mercante Gran Centro Americana S.A., 487 F.2d 561 (5th Cir. 1973), but in Arthur, the plaintiff was not a passenger but a “seaman.” Of course, the vessel owner owes a different duty to a different classes of persons aboard their vessels and the Court so noted in a footnote. Id. at *17, n.5.
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