In Cook v. Royal Caribbean Cruises, Ltd. Dist. Court, SD Florida 2012, Bonnie Cook sued Royal Caribbean in the United States District Court, S.D. Florida, Miami Division.
She claimed that she tripped and fell on a change in elevation on the cruise ship. Magistrate judge Jonathan Goodman ruled on what the jury or court would be allowed to hear about the safety recommendations and guidelines for the cruise ship.
I. Introduction
Cook claimed she was a passenger aboard Royal Caribbean’s cruise ship M/S Oasis of the Seas on May 16, 2010, when she tripped and “fell on the abrupt change in elevation in the walkway near the entrance to the Park Café,” causing a severely fractured left hip requiring major surgery.
An image of a hip fracture with surgery, though not from this case, is below.
According to passenger, the change in elevation was in a designated, accessible pedestrian walkway but was an uncommon type of design or construction that “violated national and international codes, standards, guidelines, and recommendations applicable to changes in levels of such walkway surfaces.”
She therefore argued that Royal Caribbean negligently breached its duty to exercise reasonable care under the circumstances by designing (or approving the design of) the allegedly “abrupt change in floor level” near the restaurant entrance, by failing to correct the condition and by failing to sufficiently warn of its existence.
Based on the passenger’s discovery (information exchange) and the deposition (sworn verbal statement) and reports provided by her expert witnesses, Royal Caribbean believed that she will try to present evidence of certain standards, guidelines and/or recommendations.
Specifically, Royal Caribbean’s motion (request for a court to rule) targets the following guidelines and recommendations:
- the American Society of Testing and Materials (ASTM) Designation: F 1637-5,
- International Maritime Organization (IMO) MSC Circular 735,
- the Marine Committee of the Illuminating Engineering Society of North America’s (IES) “Recommended Practice for Marine Lighting,”
- the draft Passenger Vessel Accessibility Guidelines (PVAG) dated June 26, 2008, and
- the National Fire Protection Association (NFPA) NFPA-101: “Life Safety Code.”
Defendant says that these are “altogether irrelevant to determining whether Royal Caribbean satisfied its duty of care to passenger and wanted to exclude them from the trial. At bottom, Royal Caribbean argues that these sources have no force of law and are inapplicable to this foreign-flagged cruise ship where the passenger allegedly fell.
Royal Caribbean also argues that evidence of these guidelines, standards and recommendations would confuse the Court and would be unfairly prejudicial.
The passenger objected. She responded that even non-binding standards and regulations, which do not have the force of law, are still admissible on the issue of negligence. She said that a federal court (in a trial to be decided by a judge) or jury may evaluate them when determining the applicable standard of care.
She also said that these sources are admissible to demonstrate notice to the Royal Caribbean.
II. Discussion
This case involves an alleged tort committed aboard a ship sailing in navigable waters. General maritime law, as developed by the federal courts, therefore applies. Keefe v. Bahama Cruise Line, Inc., 867 F.2d 1318, 1320 (11th Cir. 1989).
Cruise line owes passengers duty to exercise reasonable care
In Kermarec v. Compagnie Generale Transatlantique, 358 U.S. 625, 632 (1959), the Supreme Court ruled that the owner of a ship in navigable waters “owes to all who are on board for purposes not inimical to his legitimate interests the duty of exercising reasonable care under the circumstances of each case.” The former Fifth Circuit Court of Appeals has held that this duty extends to a ship’s passengers. Gibboney v. Wright, 517 F.2d 1054, 1059 (5th Cir. 1975).
Cruise Lines are not automatically liable
A carrier by sea, however, is not an all-purpose insurer of its passengers’ safety. Kornberg v. Carnival Cruise Lines, Inc., 741 F.2d 1332, 1334 (11th Cir. 1984). A carrier is “liable to passengers . . . only for its negligence.”
A shipowner must use ordinary reasonable care under the circumstances, a standard which requires, before to imposing liability, that the carrier have 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 sea adventure.”
In Monteleone v. Bahama Cruise Line, Inc., 838 F.2d 63, 64 (2d Cir. 1988), the court said that this standard parallels the treatment of landowners’ liability for dangerous conditions” and reversing a win for a passenger at trial because the evidence record did not support the finding that the shipowner had constructive notice of the injury causing hazard.
Put another way, the principles of shipowner’s liability in negligence for injuries to passengers differ little from those in use on land. Analogizing cruise ship liability to landowners’ liability is especially appropriate where the hazard encountered is not unique to the marine environment.
For example, a screw protruding from the edge of a step on a cruise ship is a condition in not only occurs on the sea. Therefore, a court judges a shipowner’s responsibility for fault for injuries arising from this condition under the same standard that applies to a landowner.
In the instant case, Cook tripped and fell over a change in elevation outside of a restaurant located in an open atrium area of a large passenger cruise ship. Cook’s claims of negligence do not concern conditions unique to maritime travel.
To the contrary, the circumstances surrounding the injury could also exist on land and lead to a lawsuit filed, for example, by a person who tripped over a change in elevation leading up to a shopping mall restaurant. Thus, the Eleventh Circuit appeals court said the ordinary, reasonable landowner care standard to shipowners where the shipboard hazard was of the type also found on land.
However, if the circumstances surrounding maritime travel are different from those encountered in daily life and involve more danger to the passenger, the court will determine how high a degree of care is reasonable in each case.
Royal Caribbean Cruises tried to exclude the standards/guidelines at issue because they are not mandatory, do not have the force of law and are not always directly applicable to maritime conditions. But the law in the Eleventh Circuit, as established by the former Fifth Circuit, is that advisory guidelines and recommendations, while not conclusive, are admissible as bearing on the standard of care in determining negligence. Muncie Aviation Corp. v. Party Doll Fleet, Inc., 519 F.2d 1178 (5th Cir. 1975) (affirming admission of advisory materials published by the Federal Aviation Administration); Frazier v. Continental Oil Co., 568 F.2d 378 (5th Cir. 1978) (reversing trial judge’s order granting a directed verdict to defendant because district court improperly failed to consider expert witness testimony based on industry standards in the National Fire Protection Association Code).
District court judges in the Eleventh Circuit have followed the rule that failure to follow recognized rules that are not mandatory is admissible to show how a reasonable person might have acted. Darville v. Rahming Shipping Ltd., No. 85-1282-CIV-MARCUS, 1987 WL 48393, at *10 (S.D. Fla. Dec. 17, 1987) (rejecting argument that regulations for vessel of one size were irrelevant to one of a smaller size because it is arguable that defendant’s failure to fulfill non-binding Coast Guard or other maritime requirements still constituted some evidence of negligence.
Not surprisingly, other federal districts and circuits have followed this evidentiary rule, as have state appellate courts. See, e.g., Robertson v. Burlington N. R.R. Co.,32 F.3d 408 (9th Cir. 1994) (holding trial court did not err by admitting federal OSHA noise-level standards and advising the jury that they were not binding and could not, standing alone, be used to establish negligence as a matter of law); Giorgio v. Holland Am. Line, Inc., No. C05-0038JLR, 2006 WL 1042003, at *2 (D. Wash. Apr. 4, 2006) (“Regulations that are not binding by force of law, and therefore do not establish negligence per se, may nonetheless be admitted for the purpose of helping the court in determining the applicable standard of care”); Donlon v. Gluck Grp., LLC, No. 09-5379 (JEI/KMW), 2011 WL 6020574, at *6 (D.N.J. Dec. 2, 2011) (denying summary judgment motion filed by houseboat manufacturer in lawsuit filed by person who fell down the stairs of a houseboat, holding that non-binding standards promulgated by the American Society for Testing and Materials were admissible because a jury could use the evidence to conclude that the stairs “were defectively designed” and because the standards put defendant “on constructive notice of the potential danger of the stairs”); Alderman v. Wysong & Miles Co., 486 So. 2d 673 (Fla. 1st DCA 1986) (affirming judgment entered in defendant’s favor in a products liability action and rejecting argument that trial court improperly admitted evidence of industry standards provided by a private, voluntary organization).
The appeals court rejected Royal Caribbean’s efforts to exclude all evidence and use of four of the guidelines — ASTM Designation: F 1637-95; IMO Circular 735; Draft PVAG dated June 26, 2008; and NFPA-101. The court did agree to exclude all evidence and use of the IES “Recommended Practice for Marine Lighting.”
a. ASTM Designation: F 1637-95
Although the American Society of Testing and Materials “Standard Practice for Safe Walking Surfaces” is a land-based, voluntary recommendation with no force of law, it may still be used as some evidence of the applicable standard of care.
As discussed above, the injury here is the type which can and does also occur in similar ways on land. As a result, the Court said that it cannot conclude at this stage that a guideline for a land-based walkway is completely irrelevant to a passenger walkway on a large cruise ship, especially when the area involved is designed to look like a well-known park which is actually situated on land.
b. IMO Circular 75
The court said that it would be too early to find that the IMO Circular 75 is altogether irrelevant in this case. Royal Caribbean Cruises admits that this circular provides non-binding recommendations concerning “barrier free passage for elderly and disabled persons in public spaces on board” ferries, a type of ship, and Cook may well be classified as elderly.
Royal Caribbean may stress at trial that the publication applies by its terms to ferries, not cruise ships, and that the circular is non-binding. But given its application to ships and the elderly, these other considerations are not enough to completely prevent its use at trial (especially a trial by judge, where the Court can determine what weight, if any, to give these recommendations).
c. Draft Passenger PVAG Dated June 26, 2008
The Court knew that the Draft Passenger Vessel Accessibility Guidelines are only in draft form. Nevertheless, the Court found that this draft could be evidence relating to the applicable standard of care and notice.
Royal Caribbean may attack the guidelines as being only in draft form and may also seek to weaken the relevance of the guidelines by arguing that they concern accessible walkways for disabled persons (and that passenger is not disabled).
However, these challenges relate to how much weight, if any, the court should give the guidelines, and they do not generate enough reason to exclude all references to them.
Cook might also be able to demonstrate that the draft guidelines somehow support her theory that Royal Caribbean Cruises was on notice that the design of the change in elevation outside the restaurant was unreasonably dangerous to passengers.
d. NFPA-101 Life Safety Code
The Life Safety Code is subject to the same analysis — and conclusion — as the other standards. Yes, it is not binding. Yes, it concerns changes in level in means of egress (exit) and Cook tripped while walking into a restaurant. And yes, the recommendations address the means to escape from fire or other hazards but Cook was not trying to avoid a fire. Nevertheless, all of these distinctions may be addressed at trial in the form of the many challenges the Court already described.
e. IES “Recommended Practice for Marine Lighting”
As its name suggests, this standard deals only with “lighting.” Cook does not claim that deficient lighting caused her to trip and her expert witnesses do not base their opinions on this IES recommended lighting practice.
This standard is therefore irrelevant and Cook was may not allowed to use this standard at trial or in her proposed findings of fact and conclusions of law.
My thoughts: She may have been allowed to use the IES standard if she claimed that poor lighting caused her fall.
Conclusions
The Court granted Royal Caribbean’s request to prevent Cook from using the IES “Recommended Practice for Marine Lighting” standard. However, it allowed Cook to use the other four guidelines/recommendations.
These rulings, of course, do not mean that Royal Caribbean cannot challenge further the four standards later. The mere fact that the Court is not excluding these four guidelines/recommendations does not mean that the Court has already decided to place any substantive weight on them.
That decision must await trial, where Royal Caribbean is certainly free to cross-examine Cook’s experts about the voluntary nature or alleged inapplicability of these guidelines.
Royal Caribbean may also get testimony from its own experts about these guidelines. And it may even argue that the Court should give these guidelines little or no weight and reiterate these arguments in its proposed findings of fact and conclusions of law.
Such measures are enough to prevent unfair prejudice from the introduction of these standards in a bench trial. See, e.g., Darville, 1987 WL 48393, at *10 (explaining that defendant company which built the ship and installed the onboard pump “is entitled to refute the Plaintiffs’ contention that the vessel did not meet vessel construction standards”); Alderman, 486 So. 2d at 679 (noting that appellant plaintiff was allowed ample opportunity to present evidence and jury argument that the ANSI standards admitted into evidence were too unclear to constitute proof of the applicable safety standards in the press brake industry”).
Bottom Line
If you trip and fall on a change of elevation that you claim is dangerous on a cruise ship, you need an expert to explain that the cruise line violated the standard of care. Without an expert, you will lose your case.
Your expert may try to use standards, that he says the cruise line did not follow, to show that the cruise line breached its reasonable standard of care.
The cruise line can, and will, hire its own experts. Trip and fall cases are difficult because a jury can choose to believe your expert or the cruise line’s expert. If they believe that the cruise line was acting reasonably, then you may have no case.
I want to represent you if you were hurt in an accident on a Royal Caribbean cruise ship, or another cruise line or somewhere else in Florida.
Learn more about Royal Caribbean Cruise Line Accident Claims?
- Royal Caribbean Cruise Slip and Fall Accident Claims
- $55,000 Verdict For Shoulder Tear And Herniated Disc from Slip and Fall on Royal Caribbean Gangway
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