John Kadylak v. RCL, et al

Filing

Opinion issued by court as to Appellant John Kadylak. Decision: Affirmed. Opinion type: Non-Published. Opinion method: Per Curiam. The opinion is also available through the Court's Opinions page at this link http://www.ca11.uscourts.gov/opinions.

Case: 16-11294

Date Filed: 02/08/2017

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[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 16-11294
Non-Argument Calendar
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D.C. Docket No. 1:14-cv-24149-RNS
JOHN KADYLAK,
Plaintiff-Appellant,
SANDY KADYLAK,
Plaintiff,
versus
ROYAL CARIBBEAN CRUISES, LTD.,
d.b.a. Royal Caribbean International,
ENTERTAINMENT & TRAVEL ALTERNATIVES, INC.,
SERGEY DENISOV,
Defendants-Appellees.
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Appeal from the United States District Court
for the Southern District of Florida
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(February 8, 2017)

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Before MARCUS, WILLIAM PRYOR and FAY, Circuit Judges.
PER CURIAM:
John Kadylak appeals the summary judgment against his complaint of
negligence against Royal Caribbean Cruises, Ltd., for physical injuries caused by
its staff captain, Sergey Denisov, during a motorcycle excursion arranged and
conducted by Kadylak’s travel agency, Entertainment & Travel Alternatives, Inc.
Denisov joined the excursion while off duty and at the invitation of Steven
Wallach, the owner of Travel Alternatives. The district court ruled that Kadylak
failed to produce any evidence “from which it [could] be inferred that Royal
Caribbean knew or should have known of any dangerous or unsafe condition
associated with the [motorcycle excursion]” that would have “invoke[d] [its] duty
to warn” or that there were any “facts from which a reasonable juror could
conclude that” Royal Caribbean was vicariously liable for Denisov’s negligence.
The district court entered final judgment in favor of Royal Caribbean and issued a
certificate for an interlocutory appeal. See Fed. R. Civ. P. 54(b). We affirm.
I. BACKGROUND
The Kadylaks purchased from Travel Alternatives a nine-night specialty
cruise on the Explorer of the Seas, a ship operated by Royal Caribbean. Travel
Alternatives acquired tickets for the cruise from Royal Caribbean and sold the
tickets in a package that included motorcycle excursions that Travel Alternatives
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coordinated at certain ports of call. The travel company required its excursionists
to certify they had at least 3,000 miles of experience riding motorcycles, to
produce a license and insurance for their motorcycle, and to sign a disclaimer to
the effect that they would hold harmless Travel Alternatives and Royal Caribbean
for any damage or injuries incurred on the ship or during the motorcycle rides.
Royal Caribbean allowed the excursionists to store their motorcycles on the ship.
The owner of Travel Alternatives, Wallach, knew Denysov and the two men
had discussed Denysov’s experience with riding motorcycles. Denysov decided to
rent a motorcycle and ride with Travel Alternatives during its excursion on the
island of St. Maarten. Denysov did not pay Travel Alternatives or complete any of
the forms required from its excursionists.
After the Explorer reached St. Maarten, Denysov completed his duties and
went ashore. Denysov told the Captain and bridge personnel that he would be off
duty, and he signed the off duty log. When Denysov disembarked, he was not
wearing his uniform, a name tag, or any item that connected him to the ship.
The excursionists offloaded their motorcycles and met Wallach and the road
captains near the ship. Wallach introduced Denysov to the group as the Staff
Captain of the Explorer and accompanied Denysov to a motorcycle rental shop. At
the rental shop, Denysov told Wallach that he lacked experience driving a Harley
Davidson motorcycle. Wallach charged the rental motorcycle to his credit card.
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Denysov mounted the rental motorcycle, applied the accelerator, and lost
control. Denysov pinned Kadylak between two motorcycles, which crushed the
lower section of Kadylak’s right leg. Denysov blamed himself for the accident.
Later, Denysov admitted that he did not have a valid motorcycle license, had never
ridden a motorcycle as powerful as the Harley Davidson, and had not ridden or
owned a motorcycle in five years.
II. STANDARD OF REVIEW
We review de novo a summary judgment and view the evidence in the light
most favorable to the nonmovant. Flood v. Young Woman’s Christian Ass’n of
Brunswick, Ga., Inc., 398 F.3d 1261, 1264 (11th Cir. 2005). Summary judgment is
appropriate when “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).
III. DISCUSSION
Kadylak challenges the summary judgment in favor of Royal Caribbean on
three grounds. First, Kadylak argues that Royal Caribbean was strictly liable for
his injury because, as a common carrier, it undertook absolute responsibility to
protect him from harm. Second, Kadylak argues that summary judgment was
inappropriate “on his vicarious liability claim because there is a genuine issue of
material fact as to whether Denysov was acting within the course and scope of his
employment at the time he injured Kadylak.” Third, Kadylak argues that Royal
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Caribbean was negligent for “creat[ing] a foreseeably unsafe condition when it
allowed Denysov to participate in the motorcycle tour . . . without first determining
that he was capable of doing so without causing injury to passengers.” We address
each argument in turn.
Kadylak’s argument that Royal Caribbean is strictly liable for his injury
fails. A common carrier, by virtue of its contract for carriage, has unconditional
responsibility for “wanton and willful” misconduct that its employees inflict on its
passengers. See Doe v. Celebrity Cruises, Inc., 394 F.3d 891, 904–08, 913 (11th
Cir. 2004) (citing New Orleans & N.E.R. Co. v. Jopes, 142 U.S. 18, 27 (1891)).
We need not address whether Kadylak’s injury occurred in “the scope of the ongoing carrier-passenger relationship” he had with Royal Caribbean, id. at 914,
because we can dispose of Kadylak’s argument based on the lack of evidence of
tortious conduct by Denysov. Kadylak alleged that he was injured because of
“Denysov’s negligence,” and Kadylak does not dispute that the incident was an
“accident.” Kadylak argues that Denysov “intentionally misrepresented his
motorcycle riding experience,” yet that wrongdoing would have affected only
those individuals to whom it was communicated, which was limited, in Kadylak’s
words, “to Wallach and the owner of the motorcycle rental shop.” See Hasenfus v.
Secord, 962 F.2d 1556, 1561 (11th Cir. 1992) (“To prevail on [a] claim of
intentional misrepresentation, [a plaintiff] must show [that the defendant made] a
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false statement of fact . . . made for the purpose of inducing the plaintiff to act in
reliance” [and] action by the plaintiff in reliance on . . . the representation[].”). In
the absence of any “willful and wanton” misconduct by Denysov against Kadylak,
“[t]he liability basis is negligence,” Tullis v. Fid. & Cas. Co. of N.Y.C., 397 F.2d
22, 23 (5th Cir. 1968). See Kornberg v. Carnival Cruise Lines, Inc., 741 F.2d 1332,
1334 (11th Cir. 1984) (“A carrier by sea . . . is not liable to passengers as an
insurer, but only for its negligence.”).
The district court did not err by entering summary judgment against
Kadylak’s complaint that Royal Caribbean was vicariously liable for Denysov’s
negligence. Royal Caribbean was liable for Denysov’s conduct only if he was
acting as its agent when the accident occurred. See Franza v. Royal Caribbean
Cruises, Ltd., 772 F.3d 1225, 1235–36 (11th Cir. 2014). To impute liability, Royal
Caribbean had to have exercised control over Denysov’s participation in the
motorcycle excursion. See id. at 1236. Undisputed evidence established that
Denysov joined the excursion as a purely private activity; he did so while off duty
and using personal leave time; the excursion was not overseen by Royal Caribbean
or by Denysov; and Denysov was not wearing any clothing or credentials
identifying him in his official role. That Wallach introduced Denysov as Staff
Captain does not alter our analysis. The excursionists were entitled to an

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introduction to a newcomer to their outing. Denysov was not acting as an agent of
Royal Caribbean when he injured Kadylak.
The district court also did not err by entering summary judgment against
Kadylak’s complaint that Royal Caribbean was negligent. Royal Caribbean owed
to its passengers “the duty of exercising reasonable care under the circumstances.”
See Kermarec v. Compagnie Generale Transatlantique, 358 U.S. 625, 632 (1959).
That “standard . . . requires, as a prerequisite to imposing liability, that [Royal
Caribbean] 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.” See Keefe v. Bahama Cruise Line, Inc., 867
F.2d 1318, 1322 (11th Cir. 1989). Kadylak failed to introduce any evidence that
Royal Caribbean knew of any dangers related to the motorcycle excursion.
Kadylak alleged that Royal Caribbean had a “duty to prevent its staff and officers
from acting in a manner that foreseeably could cause injury to its passengers” and
breached that duty by “allowing [Denysov] to ride . . . when it knew or should
have known that Denysov [lacked] adequate training and experience,” but Travel
Alternatives conducted the excursion and selected its participants. Royal Caribbean
had no reason to inquire about Denysov’s experience with, representations related
to, or involvement in a motorcycle excursion. Even if Royal Caribbean had owed
Kadylak a duty to prevent his exposure to dangers, that duty extended only to
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hazards that were not open or obvious. See Roach v. M/V Aqua Grace, 857 F.2d
1575, 1583 (11th Cir. 1988). A motorcyclist can appreciate the dangers inherent in
operating a motorcycle, even if the motorcyclist suffers an unexpected injury from
another rider’s mishandling of a motorcycle.
IV. CONCLUSION
We AFFIRM the summary judgment in favor of Royal Caribbean.

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