Lori Lucas v. Royal Caribbean Cruises, Ltd.

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[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 20-13702
Non-Argument Calendar
____________________
LORI LUCAS,
a resident and citizen of Canada,
Plaintiff-Appellant,
versus
ROYAL CARIBBEAN CRUISES, LTD.,
a Liberian Corporation,
Defendant-Appellee.
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2 Opinion of the Court 20-13702
____________________
Appeal from the United States District Court
for the Southern District of Florida
D.C. Docket No. 1:19-cv-20914-RNS
____________________
Before NEWSOM and LUCK, Circuit Judges. *
PER CURIAM:
Lori Lucas appeals the district court’s final judgment, after a
bench trial, for Royal Caribbean Cruises, Ltd. on her negligence
claims. We affirm.
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
In March 2018, Lucas and her family embarked on a cruise
on Royal Caribbean’s Harmony of the Seas. On the morning of the
last day of the cruise, Lucas and her family went ice skating
onboard the ship. That morning, Royal Caribbean had three em-
ployees monitoring the ice rink—one employee checked in guests,
a second employee provided ice skates and other equipment to the
guests, and a third employee assisted the first two and answered
guest questions. When Lucas and her family checked-in to the
rink, the check-in employee didn’t ask her to sign a waiver because
she had already signed a waiver earlier in the week on behalf of her
son. That waiver warned:
* This opinion is being entered by a quorum pursuant to 28 U.S.C. § 46(d).
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20-13702 Opinion of the Court 3
[I]ce is very slippery and depending upon individual
skill and experience level, ice skating may involve falls
upon the ice, collisions with other skaters, objects or
structures, and maybe [sic] therefore considered a
dangerous activity which skater . . . has elected to vol-
untarily particpate [sic] with full knowledge, ac-
ceptance and assumption of any and all risks of seri-
ous personal injury . . . .
The waiver also set out certain rules for ice skaters, including:
“avoid other skaters”; “do not skate against traffic”; “persons ahead
of you have the right of way”; “always keep moving”; “do not skate
faster than conditions permit”; and “no tricks, jumps, weaving or
horseplay.” There was no rule against skating backward.
After collecting her skates, Lucas began skating with her
family. About eight minutes after Lucas entered the rink, a male
skater also entered the rink. Two minutes later, when Lucas
turned to exit the ice rink, the male skater clipped the back of Lu-
cas’s skate while he was skating backward, knocking Lucas to the
ice. The male skater skated away, apparently unaware he had hit
Lucas’s skate. Lucas, however, fractured her left tibia when she
fell. After the ship docked the next morning, Lucas went to the
hospital and had surgery on her broken leg.
Lucas sued Royal Caribbean for (1) negligently supervising
the ice rink by failing to prevent backward skating, (2) failing to im-
plement and enforce a policy against backward skating, and (3) fail-
ing to properly train crew members to supervise the rink and
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prevent backward skating. Royal Caribbean responded that it was
not negligent for allowing backward skating and that the risks and
dangers associated with ice skating are open and obvious. Royal
Caribbean also contended that, even if it was negligent, its negli-
gence was not the proximate cause of Lucas’s injury.
The case proceeded to a bench trial. The district court heard
testimony from eight witnesses, including dueling experts on ice
rink safety. After the trial concluded, the district court found that
Royal Caribbean had not breached its duty to warn against, or pre-
vent injury from, backward skating, and that any breach was not
the proximate cause of Lucas’s injury.
First, the district court found that Royal Caribbean had “no
previous notice that would have required it to prohibit skating
backwards” since “[b]ackwards skating is not a prohibited activity
within industry standards.” Further, the district court explained
that although some other Royal Caribbean ships prohibited back-
ward skating, that “d[id] not impose a legal duty” on Royal Carib-
bean to prohibit it on all its ships. Thus, the district court con-
cluded that Royal Caribbean didn’t breach its duty to Lucas.
Second, the district court found that, “no matter how many
crewmembers had been monitoring the ice and even if a crew-
member were on the ice at the time of the incident,” Royal Carib-
bean’s employees couldn’t have prevented the accident because
there were only two seconds between when the male skater began
skating backward and his collision with Lucas. So, the district court
explained, even though the supervising Royal Caribbean
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employees were “not . . . paying as close attention as they should
have been . . ., even had they been watching, they still wouldn’t
have had time to intervene to prevent” Lucas’s accident. Thus, the
district court concluded that any failure to adequately supervise
“was not the proximate cause of the accident.”
Third, the district court found that “no credible evidence
was presented to show that, had [Royal Caribbean’s] staff previ-
ously warned the backward skater, he would not have resumed
skating backward, regardless, after being admonished not to.” Be-
cause Lucas presented no evidence that the backward skater would
follow a rule against backward skating, the district court found that
the failure to prohibit it was not the proximate cause of the acci-
dent.
Lucas moved for a new trial arguing (among other things)
that the district court erred by placing the evidentiary burden on
her to show that the male skater would have heeded a rule against
backward skating. The district court denied Lucas’s motion. It ex-
plained that Lucas “failed to establish at trial that Royal Caribbean
either had or should have had a policy against backward skating.”
Thus, the district court concluded, “the crewmembers had no duty
to admonish the male skater to stop skating backwards.” The dis-
trict court then reiterated that even if Royal Caribbean had a rule
against backward skating, “Lucas provide[d] no facts to support her
cursory conclusion that warning the male skater not to skate back-
ward would have stopped him from thereafter skating backward
for the rest of the skate session.” The district court explained that
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it remained Lucas’s burden to “submit evidence that proves the
facts upon which she relie[d].”
STANDARD OF REVIEW
On an appeal from a judgment in a bench trial, we review
de novo the district court’s conclusions of law and its application
of the law to the facts. U.S. Commodity Futures Trading Comm’n
v. S. Tr. Metals, Inc., 894 F.3d 1313, 1322 (11th Cir. 2018). “The
district court’s findings of fact, on the other hand, are evaluated un-
der the clear-error standard.” Id. “We will not find clear error un-
less our review of the record leaves us with the definite and firm
conviction that a mistake has been committed.” Id. (citation and
internal quotation marks omitted). When reviewing for clear er-
ror, we “draw[] all inferences in favor of the district court’s deci-
sion.” Fla. Int’l Univ. Bd. of Trs. v. Fla. Nat’l Univ., Inc., 830 F.3d
1242, 1253 (11th Cir. 2016).
DISCUSSION
This case is governed by federal maritime law, under which
the owner of a ship in navigable waters owes a passenger a duty of
reasonable care under the circumstances. Sorrels v. NCL (Baha-
mas) Ltd., 796 F.3d 1275, 1279 (11th Cir. 2015). To prevail on her
negligence claim, Lucas was required to prove that (1) Royal Car-
ibbean had a duty to protect her from a particular injury, (2) Royal
Caribbean breached that duty, (3) the breach actually and proxi-
mately caused her injury, and (4) she suffered actual harm. Yusko
v. NCL (Bahamas) Ltd., 4 F.4th 1164, 1167–68 (11th Cir. 2021).
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For a negligence claim based on Royal Caribbean’s direct li-
ability, the duty of reasonable care “standard requires, as a prereq-
uisite to imposing liability,” that Royal Caribbean “had actual or
constructive notice of the risk-creating condition, at least where, as
here, the menace is one commonly encountered on land and not
clearly linked to nautical adventure.” Guevara v. NCL (Bahamas)
Ltd., 920 F.3d 710, 720 (11th Cir. 2019) (quoting Keefe v. Bahama
Cruise Line, Inc., 867 F.2d 1318, 1322 (11th Cir. 1989)); but see
Yusko, 4 F.4th at 1170 (holding that, in negligence claims based on
vicarious liability, notice of the risk-creating condition is not re-
quired to hold a shipowner liable for the negligent acts of its em-
ployees). “In this circumstance, a cruise ship operator’s liability
hinges on whether it knew or should have known about the dan-
gerous condition.” Guevara, 920 F.3d at 720 (internal quotation
marks omitted).
On appeal, Lucas challenges only the third ground for the
district court’s ruling—its finding that there was no evidence the
backward skater would have followed a rule against backward skat-
ing. She argues that the district court erred by placing the burden
on her to prove that the male skater would have followed the rules
if warned. Rather, she contends that we should apply a “heeding
presumption” and “presume[] that the person receiving the warn-
ings will heed and respond to them.”
We assume (without deciding) that the heeding presump-
tion applies in negligence cases and that the district court erred by
not applying it. Even so, because Lucas fails to challenge the other
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two grounds for the district court’s decision—that Royal Caribbean
had no duty to prevent or warn about backward skating and that
any failure to supervise didn’t proximately cause her injury—we
must affirm. See Sapuppo v. Allstate Floridian Ins. Co., 739 F.3d
678, 680 (11th Cir. 2014) (“To obtain reversal of a district court
judgment that is based on multiple, independent grounds, an ap-
pellant must convince us that every stated ground for the judgment
against him is incorrect. When an appellant fails to challenge
properly on appeal one of the grounds on which the district court
based its judgment, . . . it follows that the judgment is due to be
affirmed.”).
First, the district court found that Royal Caribbean didn’t
have a duty to prohibit or warn about backward skating. The dis-
trict court credited Royal Caribbean’s expert’s testimony that “the
vast majority [of ice rinks] do not prohibit backwards skating.” In-
dustry standards also didn’t prohibit backward skating and “left [it]
up to each facility” to set rules for safe skating. Nor did Royal Car-
ibbean’s ships have a history of injuries involving backward skating
that would have required Royal Caribbean to warn about its risks.
Because Royal Caribbean had no notice that backward skating was
a “risk-creating condition,” it had no duty to prohibit or warn about
it. See Carroll v. Carnival Corp., 955 F.3d 1260, 1264 (11th Circ.
2020); Guevera, 920 F.3d at 720. Thus, the district court concluded
that Royal Caribbean didn’t breach its duty to Lucas.
Second, the district court also found that, even if Royal Car-
ibbean had a duty, any failure to supervise and prevent or warn
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about backward skating didn’t proximately cause Lucas’s injury.
Lucas turned into the path of the backward skater while she was
trying to exit the ice rink, and there were less than two seconds
between when the skater turned around and his collision with Lu-
cas. Thus, the district court found that, even if the backward skater
had been skating forward, he still would have collided with Lucas
and caused her injury. Skating forward or backward, the district
court found that two seconds was not enough time for the skater
to avoid the collision, regardless of how closely Royal Caribbean
was monitoring the rink.
In her reply brief, Lucas argues for that first time that even
if Royal Caribbean had no duty to prohibit or warn about backward
skating, Royal Caribbean still “violated its duty to supervise skaters
on the ice-skating rink and to enforce its own skating rules.” Ac-
cording to Lucas, the backward skater violated “multiple rules,”
and the failure to stop him caused Lucas’s injury. But arguments
raised for the first time in a reply brief are waived. See Sapuppo,
739 F.3d at 678.
Even if we considered Lucas’s argument, Royal Caribbean
had no rule against backward skating, and there wasn’t enough
time for Royal Caribbean’s employees to intervene. The district
court found that the backward skater was “skating skillfully and not
recklessly” before the accident. Thus, as the district court con-
cluded, even if Royal Caribbean’s employees had been monitoring
the ice more closely, they still couldn’t have prevented Lucas’s in-
jury. And Lucas doesn’t argue that any of the other alleged rule
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violations caused the accident, so the alleged failure to supervise
and enforce the rules didn’t cause her injury.
In sum, because Lucas doesn’t challenge the district court’s
conclusions that Royal Caribbean didn’t breach its duty to her by
failing to prohibit backward skating and that any failure to super-
vise and prevent or warn about backward skating didn’t cause her
injury, we AFFIRM the judgment.