Joann Yusko v. NCL (Bahamas), Ltd.

• Court: Court of Appeals for the Eleventh Circuit
• Decided: July 12, 2021
• Docket: 20-10452
• Status: Unpublished

Opinion

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[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT ________________________

No. 20-10452 ________________________

D.C. Docket No. 1:19-cv-20479-KMM

JOANN YUSKO,

Plaintiff-Appellant,

versus

NCL (BAHAMAS), LTD., d.b.a. Norwegian Cruise Line,

Defendant-Appellee. ________________________

Appeal from the United States District Court for the Southern District of Florida ________________________

(July 12, 2021)

Before MARTIN, GRANT, and BRASHER, Circuit Judges.

BRASHER, Circuit Judge:

This appeal requires us to decide whether a shipowner is liable under maritime

law when its employee negligently injures a passenger. After falling during a dance USCA11 Case: 20-10452 Date Filed: 07/12/2021 Page: 2 of 13

competition on a cruise ship, passenger Joann Yusko sued the ship’s owner NCL

(Bahamas), Ltd., for negligence. She alleged that her partner in the competition—a

professional dancer and cruise ship employee—released her hands as she leaned

away from him during a dance move, causing her to fall backward and hit her head

on the deck. The district court granted summary judgment in favor of NCL because

NCL did not have actual or constructive notice of a risk-creating condition on the

ship. But the district court applied the wrong standard. Our precedent assumes—and

today we expressly hold—that when a passenger makes a maritime negligence claim

against a shipowner based on an employee’s negligence under a theory of vicarious

liability, the passenger need not establish that the shipowner had actual or

constructive notice of a risk-creating condition. Accordingly, we reverse and

remand.

I. BACKGROUND

NCL owns a cruise ship called the Norwegian Gem. Near the end of 2017,

Yusko—who was 64 years old at the time—boarded the Norwegian Gem for a ten-

day cruise. One evening during the cruise, Yusko volunteered to participate in a

dance competition called “Dancing with the Stars.” The “stars” in question were

crewmembers employed by the ship, and the competition was an informal event

where passengers were judged based on how entertaining they were.

The organizers of the competition paired Yusko with crewmember and

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professional dancer Michael Kaskie. While dancing, Kaskie performed multiple

dance movements in which he spun Yusko while holding her arms. Yusko danced

for less than a minute before falling backward and hitting her head during one of

those movements. After the fall, Yusko received treatment onboard the ship and

completed the cruise. Upon her return home, multiple physicians diagnosed her with

a traumatic brain injury as a result of her fall.

Yusko sued NCL in the United States District Court for the Southern District

of Florida. In her amended complaint, Yusko alleged that NCL through its agents

and employees was negligent in (1) its own failure to exercise reasonable care under

the circumstances and (2) Kaskie’s failure to act reasonably and in a manner that

would keep Yusko safe.

After discovery, NCL moved for summary judgment. In its order granting

NCL’s motion, the district court cited our decision in Keefe v. Bahama Cruise Line,

Inc., 867 F.2d 1318 (11th Cir. 1989). Relying on that decision, it held that a

shipowner is not liable to a passenger under maritime negligence law unless it has

actual or constructive notice of the risk-creating condition that caused the

passenger’s injury. Because Yusko had not shown that NCL had notice of the risk-

creating condition that led to her injury—i.e., Kaskie’s allegedly negligent

dancing—the district court granted NCL’s motion for summary judgment. Yusko

timely appealed.

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II. STANDARD OF REVIEW

We review a district court’s grant of summary judgment de novo, viewing all

the evidence—and drawing all reasonable factual inferences—in favor of the

nonmoving party. See Amy v. Carnival Corp., 961 F.3d 1303, 1308 (11th Cir. 2020).

“A grant of summary judgment is proper if 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.” Id. (internal quotation marks omitted) (quoting FED. R. CIV. P. 56(a)). “But it

is improper if a reasonable jury could find for the non-moving party.” Id.

III. DISCUSSION

We have previously held that a passenger cannot succeed on a maritime

negligence claim against a shipowner unless that shipowner had actual or

constructive notice of a risk-creating condition. See Keefe v. Bahama Cruise Line,

Inc., 867 F.2d 1318, 1322 (11th Cir. 1989). On appeal, Yusko contends that the

district court should not have assessed her negligence claim under that standard. She

argues that the notice requirement from Keefe applies only to maritime negligence

claims based on a theory of direct liability. And she argues that her negligence claim

is based on a theory of vicarious liability. Under principles of vicarious liability,

Yusko argues, NCL is liable for its employee Kaskie’s negligence, even if it is not

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directly liable for anything that it did or failed to do. 1 She therefore concludes that—

contrary to the district court’s analysis—she was not required to establish that NCL

had notice.

We agree with Yusko. We have applied the notice requirement when a

shipowner is alleged to be directly liable for a passenger’s injuries through, for

example, the negligent maintenance of its premises. But the notice requirement does

not—and was never meant to—apply to maritime negligence claims proceeding

under a theory of vicarious liability.

We begin with some basic principles. General maritime law governs tort

claims, like this one, that arise on ships sailing in navigable waters. See Keefe, 867

F.2d at 1320. The Supreme Court has authorized the lower federal courts to develop

this law and formulate “flexible and fair remedies in the law maritime.” Franza v.

Royal Caribbean Cruises, Ltd., 772 F.3d 1225, 1231–32 (11th Cir. 2014) (quoting

United States v. Reliable Transfer Co., 421 U.S. 397, 409 (1975)). Congress has

neither imposed nor barred tort liability where—as here—a passenger sues a

shipowner for its employee’s negligence during recreational activities like dancing.

1 NCL argues that Yusko waived this vicarious-liability argument by failing to raise it in the district court. We disagree. Count II of Yusko’s amended complaint raises a claim based on the “failure of ship’s employee/agent who was the assigned dancing partner of Plaintiff to act reasonably and in a manner that would keep Plaintiff safe.” That kind of negligence is the hallmark of vicarious liability. Moreover, in her response to NCL’s motion for summary judgment, Yusko argued that the “negligent act that [she] has alleged in this case is NCL’s employee’s dangerous manner of dancing” and the “no-notice defense does not apply.”

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We are therefore “obliged to exercise our broad discretion in admiralty and maritime

to develop [the] law” regarding this issue. Id. at 1232.

When Congress has not spoken on a maritime matter, we rely on common law

principles. See Chaparro v. Carnival Corp., 693 F.3d 1333, 1336 (11th Cir. 2012).

To prove negligence under common law, a plaintiff must show that (1) the tortfeasor

had a duty to protect the plaintiff from a particular injury, (2) the tortfeasor breached

that duty, (3) the breach actually and proximately caused the plaintiff's injury, and

(4) the plaintiff suffered actual harm. See id. Common law also recognizes vicarious

liability and allows an employer to be held liable for its employee’s torts if

committed during the scope of the employment. See Restatement (Third) Of Agency

§ 7.07 (2006).

For its part, the notice requirement at the center of the parties’ dispute

originated in Keefe, in which we addressed the scope of a shipowner’s duty to keep

its passengers safe. There, a passenger on a cruise ship slipped and fell on a wet

surface while dancing and sued the shipowner for negligently maintaining its floor.

See Keefe, 867 F.2d at 1320. We had to determine “the correct standard of care

against which a shipowner’s conduct must be measured.” Id. at 1321. And we held

“that the benchmark against which a shipowner’s behavior must be measured is

ordinary reasonable care under the circumstances.” Id. at 1322. In evaluating the

shipowner’s duty to exercise ordinary reasonable care in that case, we held, “as a

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prerequisite to imposing liability, that the carrier [must] 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 nautical adventure.”

Id.

The following year, we reiterated that notice requirement in Everett v.

Carnival Cruise Lines, 912 F.2d 1355, 1358 (11th Cir. 1990). There, a passenger on

a cruise ship tripped and fell over a metal threshold for a fire door and sued the

shipowner for negligence. Id. at 1357. Relying on Keefe, we held again that, for the

passenger’s negligence claim to succeed, the shipowner must “have had actual or

constructive notice of the risk-creating condition.” Id. at 1358 (quoting Keefe, 867

F.2d at 1322). We then remanded the case for a new trial because the district court

had failed to apply Keefe’s notice requirement. Id. at 1359.

Over the intervening decades, we have continued to require plaintiffs in

maritime negligence cases to establish notice on the part of a shipowner. For

example, in Chaparro, a passenger left a cruise ship to explore an island and was

killed by gang-related gunfire. See 693 F.3d at 1335. Her parents and brother sued

the shipowner for negligently failing to warn her about the island’s crime problems,

gang violence, and potential for shootings. See id. In our analysis, we repeated the

notice requirement and held that “a cruise line owes its passengers a duty to warn of

known dangers beyond the point of debarkation in places where passengers are

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invited or reasonably expected to visit.” Id. at 1336 (emphasis added) (citing Carlisle

v. Ulysses Line Ltd., S.A., 475 So.2d 248, 251 (Fla. Dist. Ct. App. 1985)).

More recently, we applied the notice requirement in K.T. v. Royal Caribbean

Cruises, Ltd., 931 F.3d 1041, 1046 (11th Cir. 2019). There, a cruise-ship passenger

sued a shipowner for negligently failing to monitor the ship’s public areas and to

prevent her from becoming intoxicated and sexually assaulted by other passengers.

Id. at 1043, 1045. In reversing the district court’s decision to dismiss, we noted that

the passenger had alleged that the shipowner had actual knowledge of sex crimes

and violence between passengers and foresaw that alcohol would be served to minors

like the plaintiff to intoxicate and assault them. Id. at 1044. Accepting the truth of

those allegations as we were required to do, we concluded that the notice

requirement had been satisfied. Id. at 1045.

Against this backdrop, NCL argues that the district court below correctly

required Yusko to establish notice as a part of her negligence claim. This is so, NCL

argues, because the notice requirement applies regardless of whether a negligence

claim is based on a shipowner’s direct negligence or its vicarious liability for an

employee’s negligence. We disagree.

As an initial matter, NCL’s argument erroneously conflates the very different

concepts of direct and vicarious liability. Our caselaw’s notice requirement defines

the scope of a shipowner’s duty to exercise ordinary reasonable care to passengers.

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If a shipowner breaches that duty in a way that injures a passenger, then it may be

directly liable to that passenger under maritime law. In both Keefe and Everett, the

passengers sued the shipowners for negligent acts committed by the shipowners

themselves—the negligent creation or maintenance of their premises. Similarly, in

Chaparro, the passenger sued the shipowner for its negligent failure to warn of

known dangers on the island where the ship had stopped. And in K.T., the passenger

sued the shipowner for negligently failing to monitor its premises and prevent the

events that led to her sexual assault by other passengers. In all these cases, the notice

requirement governed because the passengers alleged wrongdoing by the shipowner

itself.

But the scope of a shipowner’s duty has nothing to do with vicarious liability,

which is not based on the shipowner’s conduct. When the tortfeasor is an employee,

the principle of vicarious liability allows “an otherwise non-faulty employer” to be

held liable “for the negligent acts of [that] employee acting within the scope of

employment.” Langfitt v. Fed. Marine Terminals, Inc., 647 F.3d 1116, 1121 (11th

Cir. 2011). Unlike a party that is directly liable for a tort, a party that is vicariously

liable “has not committed any breach of duty to the plaintiff but is held liable simply

as a matter of legal imputation of responsibility for another’s tortious acts.”

Restatement (Third) of Torts: Apportionment Liab. § 13 cmt. b (2000); see also 1

American Law of Torts § 4:1 (2021) (“‘Vicarious liability’ is a term generally

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applied to legal liability that arises solely because of a relationship and not because

of any act of negligence by the person held vicariously liable for the act of another.”).

In other words, an employer can be held liable under a vicarious liability theory even

if it has not violated any duty at all. See Meyer v. Holley, 537 U.S. 280, 285–86

(2003) (“The principal is liable for the acts and negligence of the agent in the course

of his employment, although he did not authorize or did not know of the acts

complained of[.]” (quoting New Orleans, M., & C.R. Co. v. Hanning, 15 Wall. 649,

657 (1873)). Accordingly, it makes very little sense to rely on caselaw about the

scope of a shipowner’s duty where, as here, the shipowner’s duty is irrelevant.

NCL’s argument is also inconsistent with our precedent about vicarious

liability. At first glance, it might seem that the scope of Keefe is as sweeping as NCL

argues. After all, we did not expressly limit the notice requirement to any particular

theory of liability. But our maritime precedent on employee-caused torts plainly

contemplates such a limitation.

For starters, we held in Franza that a passenger can rely on a theory of

vicarious liability “to impute to a cruise line liability for the medical negligence of

its onboard nurse and doctor.” 772 F.3d at 1228. We acknowledged that, usually, a

“shipowner is only liable to its passengers for medical negligence if its conduct

breaches the carrier’s more general duty to exercise reasonable care under the

circumstances.” Id. at 1233 (internal quotation marks omitted) (quoting Kermarec v.

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Compagnie Generale Transatlantique, 358 U.S. 625, 632 (1959)). But we observed

that the plaintiff “d[id] not argue that [the shipowner] violated this duty directly” and

that she instead sought to hold it “vicariously liable under the doctrine of respondeat

superior, precisely because [its] medical employees allegedly failed to treat her

father with appropriate care.” Id. In approving this theory, we explained that “the

Supreme Court and all of the federal circuits have for many years generally applied

[vicarious liability] rules across a rich array of maritime cases.” Id. at 1235. And we

noted that “we have regularly permitted passengers to invoke respondeat superior”—

a species of vicarious liability—to sue an employer for its employee’s negligence.

Id. at 1234 (emphasis omitted). Accordingly, we held that the shipowner could be

held vicariously liable for the negligence of its medical personnel without notice of

a risk-creating condition.

Likewise, in Doe v. Celebrity Cruises, Inc., we were asked to determine what

standard of care governed when a ship’s crewmember sexually assaulted a

passenger. See 394 F.3d 891, 893 (11th Cir. 2004). We held that shipowners are

strictly liable for such intentional torts, regardless of their lack of notice. See id. at

913 (relying on New Jersey Steam–Boat Co. v. Brockett, 121 U.S. 637 (1887), and

New Orleans & N.E.R. Co. v. Jopes, 142 U.S. 18 (1891)). We distinguished Keefe

and Everett as “physical-condition cases” that had no bearing on a shipowner’s

liability for “a crew member assault on a passenger.” Id. at 910. In doing so, we

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expressly cabined the scope of those cases—along with their notice requirement—

to allow vicarious liability for intentional sexual assaults.

Notwithstanding Franza and Doe, NCL argues that, unless we import a notice

requirement into our vicarious liability caselaw, the notice requirement in our direct

liability caselaw will be superfluous. After all, NCL argues, both Yusko and the

passenger in Keefe were injured while dancing on a cruise ship, so why should the

latter’s claim potentially fail and the former’s claim potentially succeed? Although

there is some intuitive pull to this argument, we are ultimately unconvinced. A

plaintiff is the master of his or her complaint and may choose to proceed under a

theory of direct liability, vicarious liability, or both. It may be true that, in some

cases, it will easier for a passenger to proceed under a theory of vicarious liability

than under one of direct liability. But common sense suggests that there will be just

as many occasions where passengers are limited to a theory of direct liability.

Sometimes, as in Keefe, a passenger will not be able to identify any specific

employee whose negligence caused her injury. In other cases, a passenger will seek

to hold a shipowner liable for maintaining dangerous premises (as in Everett), for

failing to warn of dangerous conditions off-ship (as in Chaparro), or for negligence

related to the actions of other passengers (as in K.T.). Accordingly, we are confident

that the notice requirement will have a robust field of operation despite our decision

not to extend it to vicarious liability.

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In short, we hold that a passenger need not establish that a shipowner had

actual or constructive notice of a risk-creating condition to hold a shipowner liable

for the negligent acts of its employees. Consequently, the district court erred in

granting summary judgment based on Yusko’s inability to establish that NCL had

actual or constructive notice of a risk-creating condition.

IV. CONCLUSION

For the reasons above, we REVERSE the district court’s grant of summary

judgment in favor of NCL and REMAND the case for further proceedings consistent

with this opinion.