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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 17-14819
Non-Argument Calendar
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D.C. Docket No. 1:16-cv-22810-RNS
JANET KRUG,
Plaintiff-Appellant,
versus
CELEBRITY CRUISES, INC.,
Defendant-Appellee.
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Appeal from the United States District Court
for the Southern District of Florida
________________________
(August 14, 2018)
Before JORDAN, ROSENBAUM, and JULIE CARNES, Circuit Judges.
PER CURIAM:
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In this maritime tort action, Plaintiff Janet Krug appeals the district court’s
grant of summary judgment to Defendant Celebrity Cruises. Plaintiff sued
Defendant following serious injuries she sustained while playing a music trivia
game aboard one of Defendant’s cruise ships. After careful review, we affirm the
district court’s grant of summary judgment in favor of Defendant.
I. BACKGROUND
A. Facts
In January 2016, Plaintiff and her husband were passengers on Defendant’s
Infinity cruise ship. At the time of the cruise, Plaintiff was 61 years old and had
suffered from back pain for nearly 20 years. She takes hydrocodone for the pain
and has undergone four back surgeries, including the implantation of a spinal cord
stimulator. She cannot walk more than two blocks, stand longer than 15 minutes,
run, jump, or carry anything of significant weight. Because of the pain, she
stopped working in 2015 and began receiving full disability.
On the final full day of the cruise, January 16, 2016, Plaintiff took one
hydrocodone pill in the morning and one in the afternoon. While having an early
lunch, she had one or two cocktails and a couple sips of a glass of wine. After
lunch, Plaintiff and her husband participated in a music trivia game called “Name
that Tune” in the Constellation Lounge. They had played the game twice before in
the same location—a large room that had a dance floor and a raised stage. Plaintiff
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had previously walked across the dance floor and never had any difficulty or
noticed it to be in disrepair.
To play the game, contestants chose teams and the host passed out slips of
paper for the contestants to write the name of the song played by the host. On the
day of the incident, there was a tie among several teams. As a result of the tie, the
host asked a member from each team to line up at the end of the dance floor. He
explained that he would put a microphone on the edge of the stage and then play a
song. He told contestants that when they knew the name of the song, they should
run up to the stage, grab the microphone, and shout the name of the song.
As the representative from her team, Plaintiff lined up on the dance floor
with the other contestants. When the host started playing the song, Plaintiff
recognized it as her wedding song. She remembered thinking, “I need to win this,”
so she ran or quickly stepped across the dance floor toward the stage. The next
thing she remembered was lying face down on the floor. She did not know what
caused her to fall, nor did she remember slipping, tripping, or colliding with
anyone. As a result of the fall, she hit her head on the stage. Plaintiff suffered
serious injuries and had to be air-lifted off of the ship to undergo surgery.
B. Procedural History
Plaintiff subsequently sued Defendant, asserting one count of negligence and
one count of vicarious liability. Specifically, she alleged that Defendant was
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negligent for creating an unreasonably dangerous condition and failing to warn
passengers about it. The parties filed cross motions for summary judgment. 1 The
district court denied Plaintiff’s motion and granted Defendant’s motion.
In granting Defendant’s motion for summary judgment, the district court
first concluded that Defendant had no duty to warn Plaintiff of any alleged danger
in playing the tiebreaker game because it was open and obvious. The court then
concluded, however, that even if the risks inherent in the tiebreaker game were not
apparent, Plaintiff had failed to present any evidence showing that Defendant had
actual or constructive notice of the allegedly dangerous condition. Moreover,
Plaintiff failed to establish that Plaintiff’s operation of the game violated industry
standards. Finally, the court declined to rule on Defendant’s motion to strike the
opinions of Plaintiff’s experts because the experts merely speculated about what
could have caused Plaintiff to fall and therefore their opinions were insufficient to
withstand summary judgment, in any event. Plaintiff now appeals that order.
II. DISCUSSION
A. Standard of Review
We review the district court’s grant of summary judgment de novo, utilizing
the same legal standards as the district court. Royal Ins. Co. of Amer. v. Whitaker
1
Defendant also moved to strike the opinions of Plaintiff’s experts, David Pecoraro and Jeffrey
Perlstein.
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Contracting Corp., 242 F.3d 1035, 1040 (11th Cir. 2001). “Summary judgment is
appropriate where there is no genuine issue as to any material fact and the moving
part is entitled to judgment as a matter of law.” Jurich v. Compass Marine, Inc.,
764 F.3d 1302, 1304 (11th Cir. 2014). To make this determination, we view all
facts and resolve all doubts in favor of the nonmoving party. Feliciano v. City of
Miami Beach, 707 F.3d 1244, 1247 (11th Cir. 2013). We may affirm an order
granting summary judgment based on any reason supported by the record. Wright
v. City of St. Petersburg, Fla., 833 F.3d 1291, 1294 (11th Cir. 2016).
B. Applicable Law
This action is governed by federal maritime law because Plaintiff’s injury
occurred on a ship sailing in navigable waters. Everett v. Carnival Cruise Lines,
912 F.2d 1355, 1358 (11th Cir. 1990). “It is a settled principle of maritime law
that a shipowner owes a duty of exercising reasonable care towards those lawfully
aboard the vessel who are not members of the crew.” Doe v. Celebrity Cruises,
Inc., 394 F.3d 891, 908 (11th Cir. 2004) (alteration omitted) (quotation marks
omitted). However, “[a] carrier by sea [] is not liable to passengers as an insurer, []
only for its negligence.” Kornberg v. Carnival Cruise Lines, Inc., 741 F.2d 1332,
1334 (11th Cir. 1984). To prevail on a negligence claim under federal maritime
law, a plaintiff must show that “(1) the defendant had a duty to protect the plaintiff
from a particular injury; (2) the defendant breached that duty; (3) the breach
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actually and proximately caused the plaintiff’s injury; and (4) the plaintiff suffered
actual harm.” Chaparro v. Carnival Corp., 693 F.3d 1333, 1336 (11th Cir. 2012).
C. Analysis
Plaintiff argues that the district court erred by granting summary judgment in
favor of Defendant because Defendant’s operation of the tiebreaker game was
negligent. Specifically, Plaintiff argues that: (1) the dangers associated with the
tiebreaker game were not open and obvious; (2) Defendant had actual or
constructive notice of the risk-creating condition; and (3) the operation of the game
violated industry standards. We discuss each argument in turn.
1. Open and Obvious
Plaintiff alleges that Defendant had a duty to warn her of the latent dangers
associated with the tiebreaker game because they were not open and obvious.
Under federal admiralty law, a cruise ship has no duty to warn of known dangers
that are open and obvious. See Keefe v. Bahama Cruise Line, Inc., 867 F.2d 1318,
1322 (11th Cir. 1989); see also Chaparro, 693 F.3d at 1336 (explaining that “a
cruise line owes its passengers a duty to warn of known dangers”). An open and
obvious condition is one that should be obvious by the ordinary use of one’s
senses. See Lugo v. Carnival Corp., 154 F. Supp. 3d 1341, 1345–46 (S.D. Fla.
2015); Lancaster v. Carnival Corp., 85 F. Supp. 3d 1341, 1344 (S.D. Fla. 2015)
(noting that open and obvious conditions are “discernable through common sense
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and the ordinary use of eyesight”). We evaluate whether a danger would be open
and obvious from an objectively reasonable person’s point of view and do not
focus on the plaintiff’s subjective perspective. Lugo, 154 F. Supp. 3d at 1345–46.
Here, Defendant did not breach any duty to warn Plaintiff because there
were no hidden dangers in playing the tiebreaker game. According to Plaintiff,
Defendant had a duty to warn about the latent danger of accelerating and
decelerating in a small space on the ship. This alleged risk-creating condition,
however, was open and obvious to Plaintiff. In her deposition, Plaintiff stated that
the game show host explained the rules of the tiebreaker game before it began.
She also stated that she had previously walked across the dance floor without any
issues, and she and the other contestants stood in a row facing the stage. Further,
the CCTV footage of the incident showed that nothing obstructed Plaintiff’s view
of the stage. Any alleged danger posed by rushing the stage with other people in
order to win a game would have been apparent to a reasonably prudent person
through the exercise of common sense and the ordinary use of that person’s
eyesight. Cf. Coleman v. Ramada Hotel Operating Co., 933 F.2d 470, 474 (7th
Cir. 1991) (“The general possibility of injury to participants who compete in an
obstacle course under time pressure was certainly apparent.”). In short, Defendant
did not breach its duty of reasonable care by failing to warn Plaintiff of a condition
of which she, or a reasonable person in her position, would be aware.
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2. Notice
Plaintiff also argues that the district court erred by concluding that
Defendant did not have actual or constructive notice of the risk-creating condition.
Even assuming that the danger was not open and obvious, a cruise ship has no duty
to warn of a risk commonly encountered on land unless it has actual or
constructive notice. Keefe, 867 F.2d at 1322. A plaintiff may establish notice by
pointing to previous injuries or showing that the defendant had previously issued a
warning about the condition. See Sorrels v. NCL (Bahamas) Ltd., 796 F.3d 1275,
1287 (11th Cir. 2015).
Plaintiff presented no evidence that Defendant had actual or constructive
notice of the allegedly dangerous condition. She argues that Defendant had notice
of the allegedly dangerous condition because the cruise ship had used the same
tiebreaker in the past. She points to the declaration of the game show host, Richard
Alphonso, who attested that he had observed and personally used the same
tiebreaker in other activities aboard various cruise ships.
Alphonso’s declaration, however, establishes only that Defendant had used
the tiebreaker before, not that it had notice of any of the alleged dangers associated
with the game. Indeed, Plaintiff presented no evidence that anyone else had ever
fallen or suffered injuries from participating in the same competitive tiebreaker.
See Jones v. Otis Elevator Co., 861 F.2d 655, 661–62 (11th Cir. 1988) (indicating
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that evidence of similar accidents may be relevant to a defendant’s notice about a
defective condition); Smolnikar v. Royal Carribean Crusies Ltd., 787 F. Supp. 2d
1308, 1323–24 (S.D. Fla. 2011) (concluding that a cruise ship did not have actual
or constructive notice of any risk-creating condition because there was no evidence
of accident reports or passenger comments or reviews indicating any potential
safety concerns). Defendant’s lack of notice is further bolstered by Alphonso’s
statement that he was not aware that this tiebreaker game posed any danger until
the present incident occurred.
Plaintiff asserts that Alphonso’s statement prior to the start of the tiebreaker
game that “safety is always first” raises an issue of fact as to whether Defendant
had notice of the allegedly dangerous condition. 2 We disagree. In Sorrels, we
determined that evidence that a cruise ship posted signs after rain to warn
passengers that the deck may be wet created an issue of fact as to whether the
cruise ship had knowledge that the deck could be slippery and dangerous when
wet. See Sorrels, 796 F.3d at 1288–89. However, there was evidence in that case
indicating that the cruise ship knew the deck became slippery when wet and had
therefore provided a warning for that specific purpose. See id. In the present case,
there is no evidence indicating that the general safety instruction given by
2
In the Security Incident Statement that Alphonso filled out on the same day as the accident, he
stated that he told the contestants prior to the start of the game to “please keep in mind that safety
is always first.”
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Alphonso was intended to warn passengers about the specific dangerous condition
alleged by Plaintiff: the accelerating and decelerating in a small space on a ship.
In short, Plaintiff has failed to cite any evidence establishing that Defendant had
actual or constructive notice of the allegedly dangerous condition.
3. Expert Testimony Regarding Industry Standards
Finally, it appears Plaintiff also attempts to establish the duty element
through expert testimony purportedly showing that Defendant violated industry
standards. Indeed, she asserts that the district court erred by disregarding the
testimony of her maritime and stage event experts—Captain Jeffrey Perlstein and
David Pecoraro, respectively—concerning how Defendant’s operation of the
tiebreaker game violated industry standards. The district court noted, however,
that Plaintiff’s experts failed to identify which industry standards Defendant
violated through its operation of the tiebreaker game. Moreover, Captain Perlstein
acknowledged that he was not aware of any standard prohibiting running on a ship,
aside from the fact that it went against “best practices and common sense.”
Captain Perlstein also stated that most ships have a running track where people are
supposed to run.
In short, contrary to Plaintiff’s contention, the district court did not disregard
the experts’ opinions. Instead, the court considered the opinions and determined
that neither opinion supported Plaintiff’s argument that the tiebreaker game
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violated industry standards. But more importantly, the court determined that
because neither expert opined about what actually caused Plaintiff to fall, the
opinions were insufficient to avoid summary judgment. We agree with the district
court’s determination.
III. CONCLUSION
For the above reasons, the judgment of the district court is AFFIRMED.
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