Open and Obvious Danger? Not always.
Petersen v. NCL (Bah.) Ltd., U.S. App. LEXIS 25162 (2018).
By: Taylor C. Lombardo
When Mr. Peterson, plaintiff, took a cruise to Bermuda he did not expect to end his cruise in bed in pain. While cruising on NCL ship, M/V BREAKWAY, he and his wife decided to stay on board while docked in Bermuda. While walking on a wet deck he slipped so hard both of his feet came out from underneath him causing him to suffer a small brain bleed.The deck itself was made out of Bolidt Bolideck Select Soft material. Plaintiff presented evidence that sixty other patrons of the ship had fallen on the M/V BREAKWAY where the deck was made of this material. Plaintiff also introduced evidence that NCL had been using “Bolidt Super Stripper” to clean the deck, a solution that was not recommended for the Bolidt Bolideck Select Soft material. It was recommended that decking of this material be cleaned with a mild soap rather than a stripping agent that could damage the deck.Plaintiff filed a complaint based for negligence and seeking damages also for loss of consortium. In the complaint, he contended that NCL owed a duty to passengers to exercise reasonable care in keeping conditions safe on board the ship. Plaintiff also alleged that “NCL was negligent in ‘fulfilling this duty by failing to warn passengers of the dangerous conditions of the walking surface of the deck or floor,’ as well as failing to promulgate and/or follow procedures for monitoring the slipperiness and keeping the walking surface of the deck or floor reasonably safe for passengers.” Petersen v. NCL (Bah.) Ltd., U.S. App. LEXIS 25162 (2018).NCL moved for summary judgment asserting that (1) it had no duty to warn plaintiff of the dangerous condition because the dangerous condition was open and obvious, (2) it had no duty to warn of the dangerous condition because the company had no notice of the dangerous condition, and lastly (3) that maritime law does not recognize a claim for loss of consortium. Id.at 6. The magistrate judge recommended granting the motion for summary judgment to which the district court accepted. Yet, neither the magistrate judge nor the district court addressed the complaint that NCL negligently maintained its deck.Plaintiff appealed the matter contending that (1) the district court erred in granting summary judgment on the matter that there was no duty to warn because the risk was open and obvious, (2) the district court erred in not addressing the complaint that NCL negligently maintained their deck, and (3) the district court erred in denying relief for Mrs. Peterson’s loss of consortium claim.The court of appeals found that though the danger of slipping on water on the deck was open and obvious, a reasonable person would not expect for the deck to be as slippery as it was. They found the deck to be slippery to an unreasonable amount and reversed summary judgment remanding the matter to the court so that NCL could make an alternative argument to this claim.Secondly, the court of appeals found that the district court did err in not addressing the claim that NCL negligently maintained the deck. This analysis should have been applying the general principles of negligence law. The court reversed summary judgment and remanded this matter to be properly analyzed.Lastly, on the claim of loss of consortium the court of appeals affirmed the district court’s motion for summary judgment. Generally, loss of consortium is not a claim under maritime law. Though prior recent jurisprudence has allowed for damages for loss of consortium under maritime law, this is not the norm. The prior jurisprudence showed exceptional circumstances and allegations of intentional conduct. See, Atlantic Sounding Co. v. Townsend, 557 U.S. 404 (2009); In Re Amtrack, 121 F.3d 1421, 1429 (11th Cir. 1997). Plaintiff’s claim here lacked those circumstances, thus the district court was correct in granting summary judgment on this matter.
