Susan Plott v. NCL America, LLC

Case: 19-10109 Date Filed: 09/09/2019 Page: 1 of 10
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 19-10109
Non-Argument Calendar
________________________
D.C. Docket No. 1:17-cv-22807-KMW
SUSAN PLOTT,
Plaintiff - Appellant,
versus
NCL AMERICA, LLC,
Defendant - Appellee.
________________________
Appeal from the United States District Court
for the Southern District of Florida
________________________
(September 9, 2019)
Before WILSON, MARTIN, and NEWSOM, Circuit Judges.
PER CURIAM:
Case: 19-10109 Date Filed: 09/09/2019 Page: 2 of 10
Susan Plott and her sister, Doris Guilfoyle, set sail on Pride of America, a
cruise ship owned and operated by NCL America, LLC. During the cruise, Plott
slipped and fell on a puddle inside the ship. Plott sued NCL,1 alleging that NCL
was negligent because it had notice of the puddle but failed to warn Plott of the
dangerous condition. NCL filed a motion for summary judgment, which the
district court granted. Plott now appeals, arguing that the district court erred in
granting summary judgment because: (1) Plott established that NCL had notice of
the dangerous condition and that the condition was not open or obvious; and (2)
the district court excluded certain opinions of Plott’s expert witness. Because
genuine issues of fact remain, we vacate and remand on the first issue. But the
exclusion of certain opinions of Plott’s expert was proper, and we thus affirm on
the second issue.
I. Background
A. Factual Background2
While aboard Pride of the America one night, Plott and Guilfoyle decided to
take a soak in a hot tub on Deck 11 of the ship. The hot tub is situated on an
exposed deck near a pool and outdoor showers. The hot tub is close to the Ocean
1
Under the mandatory forum selection clause in her cruise ticket, Plott sued in the Southern
District of Florida.
2
The facts are described in the light most favorable to Plott. See Lee v. Ferraro, 284 F.3d 1188,
1190 (11th Cir. 2002) (“[F]or summary judgment purposes, our analysis must begin with a
description of the facts in the light most favorable to the [non-movant].”).
2
Case: 19-10109 Date Filed: 09/09/2019 Page: 3 of 10
Drive Bar, which is immediately adjacent to the Conservatory—a three-sided glass
atrium that serves as a vestibule leading to the interior of the vessel. Just beyond
the Conservatory, inside the vessel and down two steps, is a bank of elevators that
take guests to their cabins.
While the sisters soaked in the hot tub, it started to rain moderately hard for
several minutes. When it started to rain, between 12 and 20 people in the exposed
bar area rushed to get out of the rain, passing the Ocean Drive Bar. Although no
one saw the group enter the Conservatory, the Conservatory is the closest entrance
to the ship from the bar area. There was no mat inside or outside the Conservatory
entrance. Plott and Guilfoyle stayed in the hot tub for about 10 to 15 minutes after
the rain stopped. Plott and Guilfoyle then exited the hot tub, took an outdoor
shower to rinse off, and dried off with towels. They retrieved their dry shoes,
wrapped themselves in towels, and walked to the Conservatory. When the sisters
passed the Ocean Drive Bar, two crewmembers were there working. This process
took about ten minutes. At this point, it had been as long as 25 minutes since the
rain stopped.
Inside the Conservatory, the sisters approached the set of stairs that lead to
the elevators. Plott slipped, fell down the two stairs, and landed on her left side.
The sisters each testified that they did not see anything on the floor until after Plott
slipped. After Plott slipped, Guilfoyle noticed colorless and odorless puddles on
3
Case: 19-10109 Date Filed: 09/09/2019 Page: 4 of 10
the floor. Guilfoyle, who was walking behind Plott when Plott slipped, testified
that there were puddles beyond where her sister fell, suggesting that the liquid did
not come from Plott.
NCL’s corporate representative testified that the interior of the glass
Conservatory could have been seen from the immediately adjacent bar. The record
indicates that from the time the group of passengers fled the deck to the time Plott
slipped was approximately half an hour. NCL conceded that the area was
“continuously monitored,” and the “entire crew” was responsible for identifying
and promptly addressing any safety concerns, including by placing warning signs
when appropriate. NCL’s corporate representative testified that if any NCL
employee saw an accumulation of water on the floor, the employee would be
expected to “either clean it up, cordon it off, and also put a warn[ing] sign.”
B. Procedural History
The district court granted NCL’s motion for summary judgment. The
district court concluded that (1) there was a genuine issue of material fact on
whether the Conservatory floor constituted a dangerous condition when wet, but
(2) even if the floor was slippery when wet and that this condition was dangerous,
NCL had no notice of this dangerous condition. The district court’s grant of
summary judgment for NCL thus turned on whether NCL had notice of the wet
floor.
4
Case: 19-10109 Date Filed: 09/09/2019 Page: 5 of 10
II. Summary Judgment
We review a district court’s grant of summary judgment de novo,
considering the facts and drawing reasonable inferences in the light most favorable
to the non-moving party. Mann v. Taser Int’l, Inc., 588 F.3d 1291, 1303 (11th Cir.
2009). Summary judgment is appropriate when “the movant shows that there is no
genuine dispute as to any material fact and the movant is entitled to judgment as a
matter of law.” Fed. R. Civ. P. 56(a). “[G]enuine disputes of facts are those in
which the evidence is such that a reasonable jury could return a verdict for the non-
movant.” Mann, 588 F.3d at 1303 (quotation marks omitted).
Maritime law governs the liability of a cruise ship for a passenger’s slip and
fall. Sorrels v. NCL (Bahamas) Ltd., 796 F.3d 1275, 1279 (11th Cir. 2015). To
prevail on a maritime negligence claim, 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 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).
“Under maritime law, the owner of a ship in navigable waters owes
passengers a duty of reasonable care under the circumstances.” Sorrels, 796 F.3d
at 1279 (quotation marks omitted). That standard requires, “as a prerequisite to
imposing liability, that the carrier have had actual or constructive notice of the
5
Case: 19-10109 Date Filed: 09/09/2019 Page: 6 of 10
risk-creating condition.” Keefe v. Bahama Cruise Line, Inc., 867 F.2d 1318, 1322
(11th Cir. 1989). Regardless of notice, however, there is no duty to warn of
dangers that are open and obvious. See, e.g., Deperrodil v. Bozovic Marine, Inc.,
842 F.3d 352, 357 (5th Cir. 2016); Samuels v. Holland Am. Line-USA, Inc., 656
F.3d 948, 954 (9th Cir. 2011). A cruise ship operator is thus not liable if it did not
have notice of the danger or if the danger was open and obvious. See Keefe, 867
F.2d at 1322; Deperrodil, 842 F.3d at 357.
“A maritime plaintiff can establish constructive notice with evidence that the
defective condition existed for a sufficient period of time to invite corrective
measures.” Guevara v. NCL (Bahamas) Ltd., 920 F.3d 710, 720 (11th Cir. 2019)
(internal quotations omitted).
We conclude that there are genuine issues of material fact that remain about
whether NCL had notice that the Conservatory floor was wet. A reasonable
factfinder could conclude that the puddle on which Plott slipped was water from
the group of passengers that fled the bar area. The sisters described the puddles as
colorless and odorless. Guilfoyle testified that there were puddles beyond where
her sister slipped, indicating that the liquid did not come from either sister. And
both sisters testified that, around the time the wet passengers fled the rainstorm,
6
Case: 19-10109 Date Filed: 09/09/2019 Page: 7 of 10
there were two crewmembers working at the Ocean Drive Bar.3 The Ocean Drive
Bar is also immediately adjacent to the see-through glass Conservatory, the nearest
entrance to the vessel for the group of wet passengers to avoid the rain. The
puddles remained in the area, which was “continuously monitored,” for about half
an hour before Plott slipped.
Drawing all reasonable inferences in Plott’s favor, as we must, a reasonable
factfinder could conclude that those crewmembers knew or should have known
about the wet Conservatory floor and should have either removed the hazard or
warned Plott of it. Cf. Alterman Foods, Inc. v. Ligon, 272 S.E.2d 327, 330 (Ga.
1980) (“In some cases the proprietor may be held to have constructive knowledge
if the plaintiff shows that an employee of the proprietor was in the immediate area
of the dangerous condition and could have easily seen the substance and removed
the hazard.” (quotation marks omitted)); Markowitz v. Helen Homes of Kendall
Corp., 826 So. 2d 256, 261 (Fla. 2002) (“The fact that there were three employees
in the vicinity of where the fall occurred is sufficient to create a jury question as to
whether [Defendant] exercised reasonable care under the circumstances to
3
The district court discounted this evidence by asserting that Plott failed to: identify the
employees by name, identify when exactly the employees were working, identify what the
employees’ responsibilities were at the time, or identify whether the employees actually saw the
other passengers walking into the Conservatory. Neither party presented evidence on these
issues. To require Plott to make those showings is inconsistent with the summary judgment
standard, which requires the district court to view all facts in the light most favorable to Plott, not
NCL. See Lee, 284 F.3d at 1190.
7
Case: 19-10109 Date Filed: 09/09/2019 Page: 8 of 10
maintain its premises in a safe condition.”); Thomas v. NCL (Bahamas) Ltd., 203
F. Supp. 3d 1189 (S.D. Fla. 2016) (holding that evidence that substance was on
floor for 15 to 20 minutes was sufficient to establish material issue of fact on
constructive notice).
We also conclude that a reasonable factfinder could conclude that the
condition was not open and obvious. The district court did not reach this issue. To
determine whether a condition is open and obvious, we ask whether a reasonable
person would have observed the condition and appreciated the nature of the
condition. See Lancaster v. Carnival Corp., 85 F. Supp. 3d 1341, 1345 (S.D. Fla.
2015); Lugo v. Carnival Corp., 154 F. Supp. 3d 1341, 1345–46 (S.D. Fla. 2015).
The sisters described the puddles as colorless and odorless. Plott and Guilfoyle
testified that they did not see anything on the floor until after Plott slipped and fell.
We cannot conclude, as a matter of law, that a reasonably prudent person through
the exercise of common sense and the ordinary use of her senses would have
clearly seen a colorless and odorless puddle on the floor. See Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 249 (1986) (“[A]t the summary judgment stage the
judge’s function is not himself to weigh the evidence and determine the truth of the
matter but to determine whether there is a genuine issue for trial.”).
III. Exclusion of Expert Testimony
8
Case: 19-10109 Date Filed: 09/09/2019 Page: 9 of 10
Plott also argues that the district court erred by excluding certain opinions of
her expert witness, William Martin. “We review the district court’s decision to
exclude expert testimony under Federal Rule of Evidence 702 for abuse of
discretion.” Sorrels v. NCL (Bahamas) Ltd., 796 F.3d 1275, 1281 (11th Cir. 2015)
(alterations and quotations omitted). “A district court abuses its discretion when it
makes a clear error in judgment or applies an incorrect legal standard.” Id.
The district court concluded that Martin could not testify that it was
“unreasonable” for NCL not to provide floor mats outside the Conservatory doors
and not to provide warning signs. The court correctly reasoned that those opinions
constitute legal conclusions, which are not a proper topic of expert testimony. See
Montgomery v. Aetna Cas. & Sur. Co., 898 F.2d 1537, 1541 (11th Cir. 1990) (“A
witness . . . may not testify to the legal implications of conduct; the court must be
the jury’s only source of law.”). The district court also excluded Martin’s opinions
that floor mats would have prevented the accident and that the floor was in fact wet
at the time of the accident because those opinions were based on pure speculation
and were therefore inadmissible. We agree with the district court that Martin’s
expert report did not demonstrate how his experience as an architect led to his
conclusions and opinions, why that experience was sufficient, or how his
experience applied to Plott’s case. We thus conclude that the district court did not
abuse its discretion in excluding those opinions. See Kumho Tire Co. v.
9
Case: 19-10109 Date Filed: 09/09/2019 Page: 10 of 10
Carmichael, 526 U.S. 137 (1999) (holding that Rule 702 imposes an obligation on
federal trial courts to ensure that every item of expert testimony has “a reliable
basis in the knowledge and experience of the relevant discipline.” (alterations and
quotations omitted)).
IV. Conclusion
The district court erred in granting summary judgment on whether NCL was
on notice of the dangerous condition because genuine issues of material fact
remain. We therefore vacate and remand on the first issue for further proceedings
consistent with this opinion. We affirm, however, on the second issue because the
district court did not abuse its discretion in excluding certain portions of Plott’s
expert’s testimony.
VACATED AND REMANDED IN PART, AFFIRMED IN PART.
10