Susan Plott v. NCL America, LLC

• Court: Court of Appeals for the Eleventh Circuit
• Decided: September 9, 2019
• Docket: 19-10109
• Status: Unpublished

Opinion

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[DO NOT PUBLISH]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

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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.

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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

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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,

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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

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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.

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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.