McDonnell v. Royal Caribbean Cruise Lines Ltd

Filing 76

ORDER granting in part and denying in part 41 Motion for Summary Judgment. Signed by Judge Robert N. Scola, Jr on 7/14/2017. (pes)

United States District Court
for the
Southern District of Florida
Kevin P. McDonnell, Plaintiff,
v.
Royal Caribbean Cruises Ltd.,
Defendant.

)
)
)
Civil Action No. 16-22044-Civ-Scola
)
)
)

Order Granting in Part and Denying in Part Defendant’s
Amended Motion for Summary Judgment
Plaintiff Kevin P. McDonnell says he “suffered severe injuries, requiring
surgery,” when he fell stepping down onto the floor of a multipurpose,
auditorium-type room while aboard a Royal Caribbean cruise ship. (Compl. ¶
10, ECF No. 3.) McDonnell alleges that the step down to the floor was
unreasonably dangerous because its depth was not apparent and was much
deeper than the rise of the staircase leading down to it. (Id. at ¶ 16.) In seeking
summary judgment, Defendant Royal Caribbean Cruises Ltd. contends it is not
liable for McDonnell’s injuries because: (1) the step was not dangerous; or, if it
was, (2) the depth of the step to the floor was open and obvious; (3) Royal
Caribbean had neither actual nor constructive notice of the dangerousness of
the step; and (4) Royal Caribbean was not involved in the design of the step.
(Def.’s Mot. for Summary Judgment, ECF No. 41.) While the Court finds Royal
Caribbean’s last point well taken, there are indeed genuine issues of material
fact with respect to the first three issues raised. The Court therefore grants in
part and denies in part Royal Caribbean’s motion for summary judgment
(ECF No. 41) as follows.
1. Legal Standard
Summary judgment is proper if following discovery, the pleadings,
depositions, answers to interrogatories, affidavits and admissions on file show
there is no genuine issue as to any material fact and that the moving party is
entitled to judgment as a matter of law. Celotex Corp. v. Catrett, 477 U.S. 317,
322 (1986); Fed. R. Civ. P. 56. “An issue of fact is ‘material’ if, under the
applicable substantive law, it might affect the outcome of the case.” Hickson
Corp. v. N. Crossarm Co., 357 F.3d 1256, 1259–60 (11th Cir. 2004). “An issue
of fact is ‘genuine’ if the record taken as a whole could lead a rational trier of
fact to find for the nonmoving party.” Id. at 1260. All the evidence and factual

inferences reasonably drawn from the evidence must be viewed in the light
most favorable to the nonmoving party. Adickes v. S.H. Kress & Co., 398 U.S.
144, 157 (1970); Jackson v. BellSouth Telecomms., 372 F.3d 1250, 1280 (11th
Cir. 2004). “If more than one inference could be construed from the facts by a
reasonable fact finder, and that inference introduces a genuine issue of
material fact, then the district court should not grant summary judgment.”
Bannum, Inc. v. City of Fort Lauderdale, 901 F.2d 989, 996 (11th Cir. 1990).
Once a party properly makes a summary judgment motion by
demonstrating the absence of a genuine issue of material fact, whether or not
accompanied by affidavits, the nonmoving party must go beyond the pleadings
through the use of affidavits, documents, depositions, answers to
interrogatories, admissions, or other materials, and designate specific facts
showing that there is a genuine issue for trial. Celotex, 477 U.S. at 323–24;
Fed. R. Civ. P. 56(c)(1)(A). The nonmovant’s evidence must be significantly
probative to support the claims. Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
249 (1986). The Court will not weigh the evidence or make findings of fact. Id.
at 249; Morrison v. Amway Corp., 323 F.3d 920, 924 (11th Cir. 2003). Rather,
the Court’s role is limited to deciding whether there is sufficient evidence upon
which a reasonable juror could find for the nonmoving party. Morrison, 323
F.3d at 924.
2. Brief Factual Background
McDonnell embarked on a cruise aboard Royal Caribbean’s Oasis of the
Seas in September 2015. (Def.’s Mot. at 2; Pl.’s Resp., ECF No. 42, 3.) On the
first day of the cruise, he attended a happy-hour welcome event in a multipurpose auditorium, which also doubles as an ice-skating rink. (Def.’s Mot. at
4, 6; Pl.’s Resp. at 3, 5.) This space, referred to as “Studio B,” is comprised of a
u-shaped stadium-style seating area encircling a stage floor which is located
below the seating. (Def.’s Mot. at 4; Pl.’s Resp. at 3.) When Studio B is being
used as an ice skating rink, the wooden stage floor is removed to expose the ice
underneath. (Not. of Filing, Campos Dep. 64:6–10, ECF No. 42-3, 16.) During
the welcome event, McDonnell acknowledged watching other passengers
navigate the stairs down to the stage floor with difficulty. (Def.’s Mot. at 4; Pl.’s
Resp. at 3.) He also recalled that, during the welcome event, other passengers
were assisted when stepping from the seating area down to the stage floor and
he heard warnings that night, advising people to “be careful of the step down.”
(Def.’s Mot. at 4; Pl.’s Resp. at 3.)
Five days later, McDonnell attended another cruise event called the
“Quest Game Show.” (Def.’s Mot. at 4; Pl.’s Resp. at 3.) At some point during
the game, McDonnell says he was invited to the stage. (Def.’s Mot. at 2; Pl.’s

Resp. at 3.) As he attempted to step onto the stage floor, however, McDonnell
fell because, as he claims, he had not discerned a twelve-inch, or more, drop
from the seating area to the floor. (Def.’s Mot. at 6; Pl.’s Resp. at 3, 5; Not. of
Filing, McDonnell Dep. 92:5–18, ECF No. 32, 26.) As a result of the fall,
McDonnell claims to have sustained injuries to “both his body and mind.”
(Compl. ¶ 13.) McDonnell asserts that because he entered Studio B through a
different door, on the night of his fall, and because the room differed in
appearance as compared to the day of the welcome event, he didn’t realize he
had been in the same room five days earlier. (Pl.’s Resp. at 3.)
3. Discussion
Federal maritime law governs the substantive issues in this case. Everett
v. Carnival Cruise Lines, 912 F.2d 1355, 1358 (11th Cir. 1990). In order to
satisfy his burden of proof in this negligence action, McDonnell must show: (1)
Royal Caribbean had a duty to protect him from a particular injury; (2) Royal
Caribbean breached that duty; (3) the breach was the proximate cause of his
injuries; and (4) he suffered damages. Chaparro v. Carnival Corp., 693 F.3d
1333, 1336 (11th Cir. 2012); Hasenfus v. Secord, 962 F.2d 1556, 1559–60
(11th Cir. 1992). “Each element is essential to Plaintiff's negligence claim and
Plaintiff cannot rest on the allegations of [his] complaint in making a sufficient
showing on each element for the purposes of defeating summary judgment.”
Isbell v. Carnival Corp., 462 F. Supp. 2d 1232, 1236–37 (S.D. Fla. 2006)
(Moreno, J.). Royal Caribbean’s motion centers on issues related to the breach
element. “Regarding the breach element, ‘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 riskcreating condition.’” Frasca v. NCL (Bahamas), Ltd., 654 F. App’x 949, 952
(11th Cir. 2016) (quoting Keefe v. Bahama Cruise Line, Inc., 867 F.2d 1318,
1322 (11th Cir. 1989)).
A. McDonnell has established genuine issues of material fact with
respect to whether the step was a dangerous condition.
As a threshold issue, a plaintiff must establish that a dangerous
condition existed. “The mere fact that an accident occurs does not give rise to a
presumption that the setting of the accident constituted a dangerous
condition.” Reinhardt v. Royal Caribbean Cruises, Ltd., No. 1:12-CV-22105-UU,
2013 WL 11261341, at *5 (S.D. Fla. Apr. 2, 2013) (Ungaro, J.)

In arguing the step was not dangerous, Royal Caribbean points to the
fact that in the three years prior to McDonnell’s fall, there were only five
reported incidents relating to the stairs out of approximately 218,400
passengers who participated in the Quest Game aboard the same ship. (Def.’s
Mot. at 11.) Royal Caribbean also relies on its “review of repair orders in Studio
B from 2012 to 2015” which “shows no indication there were any issues
relating to the subject stairway.” (Id.) In response, however, McDonnell has
presented evidence demonstrating a genuine issue of material fact. To begin
with, McDonnell’s expert, Frank Fore, submitted a declaration indicating,
among other things: (1) the entirety of the staircase was steeper, overall, than
permitted by safety standards; (2) the variation between the steps leading to
the floor, or stage, of the studio was excessive; (3) the absence of a handrail at
the bottom of the stairs or step leading to the floor was in violation of safety
standards; (4) the riser height of the final step itself was double the height of all
the other steps leading down to the stage floor; and (5) this height difference
was not discernable or conspicuous. (Fore Stmt., ECF No. 42-2.) Based on this
evidence, McDonnell has established genuine issues of material fact regarding
whether or not the step leading to the stage floor was dangerous.
Royal Caribbean’s assertion that conclusory allegations must be
supported by specific facts, while a correct statement of the law, does not
support the granting of summary judgment with respect to the dangerous
condition of the step. Without actual examples of or citations to the specific
allegations Royal Caribbean finds lacking in factual support, the Court is
unable to assess the applicability of this basic standard to this case. Royal
Caribbean’s further contention then, that the Court should disregard Fore’s
declaration, without more, fails.
B. Royal Caribbean is not entitled to summary judgment
McDonnell’s allegation of Royal Caribbean’s failure to warn.

on

“[U]nder federal maritime law, an operator of a cruise ship has a duty to
warn of known dangers that are not open and obvious.” Frasca, 654 F. App’x at
952. Royal Caribbean argues that it was under no duty to warn because the
danger was either (1) open and obvious, or, in the alternative, (2) not known. In
opposition, McDonnell responds (a) the danger related to the step was, in fact,
not open and obvious, or (b) even if it was, Royal Caribbean still had a duty to
warn, and (c) Royal Caribbean was indeed on notice of the danger. The Court
finds Royal Caribbean’s arguments regarding both whether the danger was
open and obvious and whether it had notice unavailing.

(1) Open and Obvious
To begin with, in assessing whether the danger of the stepdown was open
and obvious, the Court’s “analysis is guided by the ‘reasonable person’
standard.” Frasca, 654 F. App’x at 952 (quoting Lamb by Shepard v. Sears,
Roebuck & Co., 1 F.3d 1184, 1189–90 (11th Cir. 1993). In other words, the
plaintiff’s “subjective observations are irrelevant in determining whether a duty
to warn existed.” Lugo v. Carnival Corp., 154 F. Supp. 3d 1341, 1346, (S.D. Fla.
2015) (Moore, J.). Here then, the question is whether a reasonable person
would have perceived the depth or even the existence of the final step down to
the stage floor. Royal Caribbean contends McDonnell “has not presented any
evidence to show that any danger posed by the subject stairway in Studio B
was not apparent and obvious.” (Def.’s Mot. at 11 (quotations omitted).)
According to Royal Caribbean, the configuration of the stairs and the final step
leading down to the stage floor, combined with the color differences between
the final step platform and the stage floor, rendered the twelve inch rise readily
observable. (Id. at 12.) Royal Caribbean also pointed to McDonnell’s own
testimony wherein he describes having watched other passengers being helped
down the final step to the stage floor five days earlier when he was in Studio B
for the welcome presentation. (Id.) In addition, Royal Caribbean submitted a
photograph it claims shows McDonnell would have had a clear view of the step
down on the other side of the room, which is a mirror image of the side where
McDonnell was seated on the night he fell. (Id. at 13; Not. of Filing, ECF No.
35.) Lastly, Royal Caribbean also claims McDonnell once participated in the
same event, on a prior cruise, aboard the same boat, and in the very same
room and had navigated the same step without incident. (Def.’s Mot. at 13.)
However, in response, McDonnell has adduced specific facts
controverting all of the issues raised by Royal Caribbean. First, according to
the observations of Fore, McDonnell’s expert, the final riser leading to the stage
floor is not visible as one descends the stairway, nor is the twelve-inch (or
more) drop discernible. (Pl.’s Resp. at 8.)1 Additionally, as stated by Fore, the
lighting arrangement around the stairs and the last step, combined with
distractions during the Quest game, would have also obscured the depth of the
step down to the floor. (Id.) Next, while McDonnell indeed acknowledged seeing
other passengers having trouble navigating the step down to the stage floor five
days earlier, he testified he had not realized he was in the same room on the
night he fell because he had entered through a different door and the lighting

1

 Royal Caribbean complains Fore’s statement here is nothing more than his opinion, based on
a conclusory allegation. However, Fore’s claim is based on what he himself states to have
“noted,” as well as on his “personal knowledge and [] expert review.” (Fore Stmt. at 1, 26.)
Without more, Royal Caribbean’s objections in this regard are thus unavailing. 

for the game changed the appearance of the room. (Id. at 3.) Moreover, Royal
Caribbean mischaracterizes McDonnell’s testimony regarding his previous
participation in prior versions of Royal Caribbean’s Quest game. While
McDonnell indeed acknowledged participating in the same Quest game, on a
prior cruise on the Oasis (McDonnell Dep. at 77:3–6.), his testimony alone does
not establish, at least for the purposes of summary judgment, that he had
necessarily navigated the same step down to the stage floor on the same ship.
Lastly, the photograph Royal Caribbean submitted, purporting to be a view
from where McDonnell may have been sitting, depicts an empty arena, with no
audience members and nothing on the stage floor, with lighting that likely
differs from the lighting as it appeared the night McDonnell fell. The Court,
therefore, does not find the photograph sufficient to establish that the step
down would have necessarily been open and obvious preceding McDonnell’s
fall. While the Court does not find the evidence in McDonnell’s favor to be
particularly strong, to find in Royal Caribbean’s favor, the Court would
necessarily have to weigh the evidence and make impermissible findings of fact.
For now, however, McDonnell has set forth enough evidence, though just
barely, upon which a reasonable jury could indeed find that the stepdown was
not open and obvious prior to McDonnell’s fall.
(2) Duty to Warn
As mentioned above, a cruise-ship operator’s duty of reasonable care
“includes a duty to warn passengers of dangers of which the carrier knows or
should know, but which may not be apparent to a reasonable passenger.” Poole
v. Carnival Corp., No. 14-0237-CIV, 2015 WL 1566415, at *5 (S.D. Fla. Apr. 8,
2015) (Cooke, J.). Royal Caribbean contends McDonnell has not established
that Royal Caribbean had either constructive or actual notice of the alleged
dangerousness of the step. (Def.’s Mot. at 16.) In support of its lack of notice,
Royal Caribbean points to its analysis that there had been only five reported
incidents, out of 218,400 passengers, “pertaining to the subject stairs” in the
three years prior to McDonnell’s fall. (Id. at 17.) Without more, Royal Caribbean
has not demonstrated the absence of a genuine issue of material fact regarding
notice. It appears to the Court that more than one inference could be construed
from Royal Caribbean’s notice of the five (or more, according to McDonnell)
reported incidents. That is, whether or not these five or so incidents suffice to
put Royal Caribbean on notice would be a question for the factfinder to resolve
after weighing the evidence. Royal Caribbean has not provided any support for
the notion that five incidents out of 218,400 are necessarily insufficient to
provide notice. Additionally, McDonnell presented Royal Caribbean’s corporate
representative’s testimony that Royal Caribbean uses a temporary portable step

on another ship where there is a comparable step and stage-floor configuration
in a similar venue. (Campos Dep. at 64:11–65:1.) The jury could infer from this
that Royal Caribbean was on notice that the twelve-inch-plus drop to the stage
floor was dangerous. Royal Caribbean’s motion for summary judgment with
respect to notice, and therefore the duty to warn, thus fails.2
C. There is no genuine issue of material fact regarding whether Royal
Caribbean created the dangerous condition or was involved in its
design of the step.3
Where there is “no evidence whatsoever” that a cruise line designed an
allegedly dangerous step, the cruise line cannot be held liable under a theory of
negligent design. Rodgers v. Costa Crociere, S.P.A., 410 F. App’x 210, 212 (11th
Cir. 2010). Royal Caribbean submits McDonnell has not presented any
evidence that Royal Caribbean was involved in the design of the step or area in
Studio B where McDonnell fell. (Def.’s Mot. at 17.) In response, McDonnell’s
contention seems to be that the original plans for the Studio B room of the
Oasis included portable steps but that those portable steps were never actually
included in the final build. (Pl.’s Resp. at 5–6, 11, 13.) Although McDonnell
notes Royal Caribbean could not explain why the steps were missing, he has
not set forth any evidence to support the contention that the inclusion of the
steps, or not, into the final build had anything to with Royal Caribbean. (Id. at
11.) In fact, Royal Caribbean’s corporate representative testified the shipbuilder
is the entity that would have made any decisions as to whether various design
elements were included or not in the final build of the Oasis. (Campos Dep. at
113:3–21.) McDonnell offered nothing to rebut this. Without more then,
McDonnell cannot establish that Royal Caribbean “actually created,
participated in or approved” the alleged improper design. Groves v. Royal
Caribbean Cruises, Ltd., 463 F. App’x 837 (11th Cir. 2012). The Court thus
grants summary judgment in Royal Caribbean’s favor with respect to any claim
McDonnell has regarding negligent design.

Because Royal Caribbean’s arguments regarding notice fail, the Court declines, at least at
this juncture, to evaluate McDonnell’s contention that even if the danger was open and
obvious, Royal Caribbean still had a duty to warn.
3 Royal Caribbean also complains, in cursory fashion, that McDonnell “would have this Court
find Royal Caribbean liable for merely allowing the subject stairway to exist.” (Def.’s Mot. at
18.) Royal Caribbean has not cited to, nor can the Court find, where McDonnell makes this
claim and therefore the Court declines to consider the issue. In a similar vein, Royal Caribbean
references McDonnell’s failure-to-maintain claim. Although McDonnell clearly does raise this
claim in his complaint, Royal Caribbean does not cite any legal support for its apparent
contention that if a cruise ship “has policies in place to inspect and clean public areas of the
ship,” it is automatically absolved from any liability for a failure-to-maintain claim. Because
Royal Caribbean does not further develop its argument, seemingly raised only in passing, the
Court also declines evaluate this issue as well.
2

4. Conclusion
In evaluating a motion for summary judgment, the Court is not permitted
to weigh the evidence or make findings of fact. Instead, the Court is limited to
deciding whether there is sufficient evidence upon which a reasonable juror
could find for McDonnell, the nonmoving party. Under this standard, Royal
Caribbean’s arguments for summary judgment based on (1) whether the step
was dangerous, (2) whether that danger was open and obvious, and (3) whether
Royal Caribbean was on notice of the danger both fail. Conversely, Royal
Caribbean is indeed entitled to summary judgment regarding its liability
premised on a theory of negligent design. Royal Caribbean’s motion for
summary judgment (ECF No. 41) is therefore granted in part and denied in
part.
Done and ordered at Miami, Florida on July 14, 2017.
___________________________________
Robert N. Scola, Jr.
United States District Judge