Cook v. Royal Caribbean Cruises, Ltd
Filing
122
ORDER granting in part and denying in part 61 Defendant's Motion in Limine to Preclude Evidence, Testimony, or Argument Regarding Inapplicable Recommendations and Guidelines as Irrelevant and Prejudicial. Signed by Magistrate Judge Jonathan Goodman on 5/15/2012. (dkc)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
MIAMI DIVISION
Case No. 11-20723-CIV-GOODMAN
[CONSENT CASE]
BONNIE COOK,
Plaintiff,
v.
ROYAL CARIBBEAN CRUISES, LTD, a Liberian
Corporation,
Defendant.
___________________________________1
ORDER ON DEFENDANT'S MOTION IN LIMINE
CONCERNING SAFETY RECOMMENDATIONS AND GUIDELINES
This cause is before the Court on Defendant's Motion In Limine to Preclude Evidence,
Testimony or Argument Regarding Inapplicable Recommendations and Guidelines as Irrelevant
and Prejudicial [ECF No. 61]. The Court has reviewed the motion, Plaintiffs Response [ECF
83] and additional post-hearing submissions [ECF Nos. 100; 111; 117; 119]. In addition, the
Court held an omnibus, multi-hour hearing on myriad in limine motions, including the one at
issue here. [ECF No. 97]. For the reasons below, the Court grants in part and denies in part
the motion.
I.
INTRODUCTION
Plaintiff alleges she was a passenger aboard the Defendant's cruise ship MJS 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 Cafe," causing a severely fractured left hip requiring
major surgery. [ECF No.1,
~~
8, 11]. According to Plaintiff, the change in elevation was in a
Case No. 11-20723-CIV-GOODMAN
[CONSENT CASE]
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."
Plaintiff therefore contends 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. [Id. at ~ 8] .
Based on Plaintiffs discovery and the deposition testimony and reports provided by her
expert witnesses, Royal Caribbean anticipates that Plaintiff will try to present evidence of certain
standards, guidelines and/or recommendations. Specifically, Royal Caribbean ' s motion 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 (PV AG) dated June 26 , 2008 , and the National Fire Protection Association (NFPA)
NFPA-I 0 I: "Life Safety Code."
Defendant brands these as "altogether irrelevant to determining whether Defendant
satisfied its duty of care to Plaintiff' and seeks to exclude them from the trial. [ECF No. 82, p.
61]. At bottom, Defendant contends that these sources have no force of law and are inapplicable
to the foreign-flagged cruise ship where Plaintiff purportedly fell. Royal Caribbean also argues
that evidence of these guidelines, standards and recommendations would confuse the finder of
fact (i.e., the Court) and would be unduly prejudicial.
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[CONSENT CASE]
Plaintiff, of course, objects to the motion . She responds that even non-binding standards
and regulations, which do not have the force of Jaw, are still admissible on the issue of
negligence and that a federal court (in a bench trial) or jury may evaluate them when determining
the applicable standard of care. She also posits that these sources are admissible to demonstrate
notice to the Defendant.
II.
DISCUSSION
This case involves an alleged tOlt 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). In Kermarec v. Compagnie Generale
Transatlantique, 358 U.S. 625, 632 (1959), the Supreme Court held 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).
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), cert. denied 470
U.S. 1004 (1985). A carrier is "liable to passengers ... only for its negligence." Id. at 1334.
The "benchmark against which a shipowner's behavior must be measured is ordinary reasonable
care under the circumstances, a standard which requires, as a prerequisite 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 clearl y linked to
nautical adventure."
Keefe , 867 F .2d at 1322 (involving claim brought by a cruise ship
passenger who slipped and fell on a wet spot while dancing at the ship's outdoor discotheque);
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see also Monteleone v. Bahama Cruise Line, Inc. , 838 F.2d 63, 64 (2d Cir. 1988) (noting that this
standard "parallels [the] treatment of landowners' liability for dangerous conditions" and
reversing judgment for plaintiff in bench trial because the 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 ashore.'" Monteleone, 838 F.2d at 65 (quoting G.
GILMORE &
c. BLACK, THE LA W OF ADMIRALTY 23 n.77 (2d ed . 1975)).
Analogizing cruise ship
liability to landowners ' liability is "especially apt where the hazard encountered is not unique to
the marine environment." Monteleone , 838 F.2d at 65 . For example, a screw protruding from
the edge of a step on a cruise ship is "a condition in no way peculiar to maritime travel" and
therefore a court judges a shipowner's culpability for injuries arising from this condition under
the same standard that applies to a landowner. Id.; see also Rainey v. Paquet Cruises, Inc., 709
F.2d 169, 172 (2d Cir. 1983) (holding that the standard applicable to landowners applied where a
passenger tripped over a stool on a ship's dance floor because there was no indication the stool
reached the dance floor as a result of any "condition ... peculiar to maritime travel ").
In the instant case, Plaintiff tripped and fell over a change in elevation outside of a
restaurant located in an open atrium area of a large passenger cruise ship. Plaintiffs allegations
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, in Keefe, 867 F.2d at 1321 -22, the Eleventh Circuit cited with approval cases
that applied the ordinary, reasonable landowner care standard to shipowners where the shipboard
hazard was of the type also found on land. See, e.g., Rainey, 709 F.2d at 172 (also suggesting
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that "[t]he extent to which the circumstances surrounding maritime travel are different from
those encountered in daily life and involve more danger to the passenger, will determine how
high a degree of care is reasonable in each case"). I
Defendant seeks 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., 5 19
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."
48393, at
* 10
Darville v. Rahming Shipping, Ltd., No. 85-1282-CIV-MARCUS, 1987 WL
(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").
The Keefe court described Rainey as a case "practically indistinguishable" from Keefe.
867 F.2d at 1322.
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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.3 d 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) ("[r]egulations that are not binding by force of law, and
therefore do not establish negligence per se, may nonetheless be admitted for the purpose of
aiding the finder of fact in determining the applicable standard of care"); Donlon v. Gluck Grp.,
LLC, No . 09-5379 (JEIIKMW), 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. Wy song & Miles Co., 486
So. 2d 673 (Fla. I st DCA 1986) (affirming j udgment 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).
Framed by these principles, the Court rejects Royal Caribbean's efforts to exclude all
evidence and use of four of the guidelines -- ASTM Designation: F 1637-95; IMO Circular 735;
Draft PYAG dated June 26, 2008; and NFPA-J OJ -- but grants its request to exclude all evidence
and use of the IES " Recommended Practice for Marine Lighting."
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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 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 actuaJly situated on land.
b. IMO Circular 75
Likewise, it would be premature to find that the TMO Circular 75 is altogether irrelevant
in this case. Defendant acknowledges 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 Plaintiff may well be classified as elderly. Royal Caribbean may
certainly 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 insufficient to preclude completely its use at trial (especially a bench trial,
where the Court can determine what weight, if any, to afford these recommendations).
c. Draft Passenger PVAG Dated June 26, 2008
The Court appreciates that the Draft Passenger Vessel Accessibility Guidelines are, as
their name suggests, only in draft form. Nevertheless, the Court finds 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 undermine the relevance of the
guidelines by arguing that they concern accessible walkways for disabled persons (and that
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Plaintiff is not disabled). However, these challenges relate to how much weight, if any, the court
should give the guidelines, and they do not generate sufficient reason to exclude all references to
them. Plaintiff might also be able to demonstrate that the draft guidelines somehow support her
theory that Defendant was on notice that the design of the change in elevation outside the
restaurant was unreasonably dangerous to passengers.
d. NFPA-IOI 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 and
Plaintiff tripped while walking into a restaurant.
And yes, the recommendations address the
means to escape from fire or other hazards but Plaintiff was not trying to avoid a fire.
Nevertheless, all of these distinctions may be addressed at trial in the form of the myriad
challenges the Court has already described.
e. IES "Recommended Practice for Marine Lighting"
The Court, however, grants the motion as to the IES " Recommended Practice for Marine
Lighting." As its name suggests, this standard deals exclusively with " lighting." Plaintiff does
not allege that deficient lighting caused her to trip and Plaintiffs expert witnesses do not base
their conclusions on this rES recommended lighting practice.
This standard is therefore
irrelevant and Plaintiff may not rely on this standard at trial or in her proposed findings of fact
and conclusions of law.
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III.
CONCLUSIONS
The Court grants Royal Caribbean's motion in limine concerning the IES "Recommended
Practice for Marine Lighting" but denies it as to the other four guidelines/recommendations.
These rul ings, of course, do not mean that Royal Caribbean cannot challenge further the
four standards to which its motion is denied. 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 Plaintiffs experts about the voluntary nature or alleged inapplicability of
these guidelines.
Defendant may also elicit 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 sufficient 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 aJlowed ample opportunity to present evidence and jury
argument that the ANSI standards admitted into evidence were too nebulous to constitute proof
of the appl icable safety standards in the press brake industry").
DONE and ORDERED, in Chambers, in Miami, Florida, this
Copies furnished to: All counsel of record
9
/,.J1-)
---1l-
day of May, 2012.
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