Eleventh Circuit Court of Appeals Sinks Open and Obvious Defense

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.

If you are interested in discussing this case further or receiving a copy of this decision, please feel free to reach out to me at blog@miamimaritimelaw.co or at 305.377.3700.

Navigational Limits Upheld in Eleventh Circuit

In Geico Marine Ins. Co. v. Shackleford, Case No. 18-12105, 2019 U.S. App. LEXIS 37228 (11th Cir. Dec. 17, 2019), the U.S. Court of Appeals for the Eleventh Circuit held that a marine insurance policy did not cover the loss because the policy unambiguously contained a navigational limit when the loss occurred, nothing in the record supported the conclusion that the insurer voluntarily and intentionally relinquished its right to enforce the navigational limit, the parties did not contract out of federal maritime law, which required absolute enforcement of express navigational limits and the vessel was outside of the covered navigational area when the loss occurred.

The facts in this case are a little convoluted, but ultimately, the insured had informed Geico Marine that he needed an updated policy to sail his vessel to Fort Lauderdale for repairs. However, when Geico Marine updated the policy to allow for navigation, it reinstated a previous navigational limit requiring the vessel to be “north of Capt Hatteras, NC from June 1 until November 1 annually.” When the insured had a casualty in Lake Sylvia in Fort Lauderdale in June and made a claim under the policy, Geico Marine denied coverage and filed a declaratory judgment action claiming, among other things, that coverage was barred by the policy’s navigational limit and that Florida law does not strictly enforce warranties in marine insurance contracts.

The insured alleged, among other things, that Geico Marine “waived” its right to enforce the navigation limit when it agreed that he could sail the vessel to Fort Lauderdale in late May. The Eleventh Circuit painstakingly reviewed the policy and found that the policy unambiguously contained a navigational limit when the loss occurred. The Court then found that under Florida law, Geico Marine did NOT waive its navigational limit requirement as “[n]othing in this record supports the conclusion that Geico Marine voluntarily and intentionally relinquished its right to enforce the navigational limit.”

More importantly, the Court address the insured’s argument that the parties contracted out of the federal maritime rule requiring absolute enforcement of express navigational warranties. The Court found that the federal rule of absolute enforcement of warranties, as opposed to the Florida rule which allows a marine insurer to avoid coverage based on an insured’s breach of warranty only if the breach “increased the hazard by any means within the control of the insured”, was controlling as the the federal maritime law is the default rule and displaces contrary state law when construing a marine insurance contract. Thus, “[b]ecause the parties did not contract out of maritime law, we must apply the federal rule requiring absolute enforcement of express navigational limits.”

This is a very important ruling post AIG Centennial, as prior to this, the courts had adopted a “entrenched federal precedent” standard. In other words, the court would have to find that the general maritime law was “entrenched federal precedent” before it would allow federal maritime law to displace state law.

If you are interested in receiving a copy of this decision or wish to discuss this decision further, please feel free to write to me at blog@miamimaritimelaw.co or you may call me at 305-377-3700.

No Dismissal of Rape Case Against Royal Caribbean on Motion to Dismiss

In K.T. v. Royal Caribbean Cruises, Ltd., No. 17-14237 (July 24, 2019), the Eleventh Circuit Court of Appeals reversed and remanded a District Court Judge’s order in dismissing, for failure to state a claim, an action against the cruise line alleging negligent failure to warn passengers and prospective passengers of danger of sexual assault on cruise ship and failure to take action to prevent physical assault, including sexual assault, suffered by the plaintiff.

According to the Complaint, the plaintiff, a minor, embarked on a 7-day cruise with her 2 sisters and her grandparents. Plaintiff alleged that on the first  night of the cruise, a group of nearly a dozen male passengers bought her multiple alcoholic drinks in a public lounge and other public areas of the ship. The plaintiff alleges she became “highly intoxicated” and “obviously incapacitated.” The group of nearly a dozen men then steered the plaintiff “to a cabin where they brutally assaulted and gang raped her.” The plaintiff alleged that everything, except the rape itself, happened in the view of multiple Royal Caribbean crewmembers and allegedly did nothing. Royal Caribbean filed a motion to dismiss, alleging that the plaintiff did not sufficiently allege that Royal Caribbean breached its duty of care or that any breach proximately caused the plaintiff’s injuries.

The appellate court held that the complaint sufficiently alleged that defendant breached duty of ordinary care owed to plaintiff when crewmembers did nothing to prevent large group of men from plying plaintiff, a minor at the time, with enough alcohol to incapacitate her and did nothing to stop the men from leading plaintiff away to a private cabin where she was brutally assaulted and gang raped. The Court also found that allegations in the complaint demonstrated that the cruise line had notice and actual knowledge of dangers that resulted in plaintiff's injuries.

Writing a special concurrence to his own opinion, Chief Judge Ed Carnes stated that generally when a concurring judge agrees with the opinion, “there is nothing else for the author of a majority opinion to say, but here there is…It is self-evident from the allegations of the complaint that but for Royal Caribbean’s breach of its duties of care to K.T. she would not have been brutalized and gang raped…If the allegations are true, Royal Caribbean proximately caused the alleged injuries.” Carnes added that publicly available data reinforces the plaintiff’s allegations that Royal Caribbean knew or should have known about the dangers of sexual assault on its ships. According to the opinion, this is due to cruise lines being required to keep records of all complaints of sexual assaults and other serious crimes since 2010, which are given to the FBI and the Department of Transportation. Carnes noted that the court can take judicial notice of those incident reports.

According to transcripts from oral arguments referenced in the opinion, there were more than 20 sexual assaults on Royal Caribbean’s ships between 2010 and 2015, not counting those which were still under investigation. Carnes said those numbers are likely understated, and yet amount to almost one-third of the number reported by all cruise lines. This information, Carnes wrote, reinforces plaintiff’s claims of negligence, particularly since there have been congressional reports on it.

This opinion is remarkable for drilling down into the facts of a case for purposes of a motion to dismiss. If you are interested in receiving a copy of this decision or have any questions regarding this decision, you may contact us at blog@miamimaritimelaw.co or 3053773700.
 

Florida Supreme Court Does 180-Degree Turn on "Daubert"

In Curiam, 2019 Fla. LEXIS 818 (Fla. May 23, 2019), the Florida Supreme Court reversed its course made in its earlier ruling that the ”grave constitutional concerns” were at play if the Daubert  standard were adopted in the State of Florida. See DeLisle v. Crane Co., 258 So. 3d 1221, 1229 (Fla. 2018).  In a nutshell, the ruling now finds that those “grave constitutional concerns” over adopting the more stringent Daubert  standard used in federal court now “appear unfounded.” The ruling made Florida the latest state (now the 37th state to do so) to adopt the Daubert  standard and reject Frye.

Daubert  (Daubert v. Merrell Down Pharm, Inc., 509 U.S. 579 (1993)) stems from a 1993 U.S. Supreme Court decision and includes a five-prong test to weigh the scientific validity of expert witness testimony. It creates a higher bar for experts, who, if challenged, may have to attend a hearing and pass judicial muster before they are permitted to testify at trial. Under the Frye standard, experts can testify based on their opinion, bringing evidence that could be somewhat new or novel, not necessarily repeatable or peer-reviewed.

The Florida Legislature passed the Daubert  standard as law in 2013, but the justices had previously ruled in Delisle that separation of powers invalidated that move because only the Court had the power to make it. But now, this apparently sudden “flip” has those of us taking cases to trial in the near future considering whether we now move to strike opposing parties’ experts for failing to meet the more stringent Daubert  standard.

The decision is still being editorially reviewed by the reporters, but we have the decision “hot off the presses.” If you wish a copy of the decision or wish to understand how this important ruling can affect a case you may have, please feel free to write us at blog@miamimaritimelaw.co.