Failure to Warn on the High Seas of the Eleventh Circuit
PabloGuevara v. NCL (Bahamas) Ltd., 920 F.3d 710, 2019 WL 1434939 (11th Cir.2019).
By: Gregory Burts
In this case, the Eleventh Circuit reversed and remanded in favor ofthe plaintiff-appellant that Norwegian Cruise Line breached its duty to warnpassengers of an abrupt step down from a landing on its cruise vessel. Thecircuit court affirmed in favor of the defendant-appellee in striking Guevara’sexpert’s [untimely] supplemental reports and granting summary judgment onGuevara’s negligent maintenance claim.[1] It isundisputed that the plaintiff-appellant slipped and fell late at night while“walking on an outdoor deck near the pool, searching for the ship’s cigarlounge.”[2] Uponfalling and breaking his arm, plaintiff-appellant noticed “water on the floorwhere he slipped” and an unilluminated lamp near a warning sign.[3] Shortlythereafter, plaintiff-appellant filed suit in the Southern District of Florida and“alleged that NCL negligently failed to (1) warn passengers of the step down,and (2) maintain and inspect the lighting in the area.”[4]
The deadline for plaintiff-appellant’s expert “disclosure deadline” wasset for June 18th, while “NCL’s expert disclosure deadline” was setfor July 2nd, The disclosure deadline for “any rebuttal expertwitness reports” was set for July 16th.[5] Nonetheless,plaintiff-appellant disclosed his expert and “served a copy of his report . . .two days after the expert disclosure deadline.”[6] Inaddition, plaintiff-appellant later served defendant-appellees with asupplemental expert report “on the eve” of his expert’s scheduled deposition,“which gave NCL little time to review or prepare questions on the newinformation.”[7]Based on these facts, the Eleventh Circuit affirmed the lower court’s decisionto strike “portions of Dr. Zollo’s First Supplemental Report” and the entiretyof “Dr. Zollo’s Second Supplemental Report.”[8]
On the issue of failure to warn, the court noted a similarity of thefacts in this case with the facts in Taiariol v. MSC CROCIERE S.A.[9] Theplaintiff in Taiariol “attempted to utilize the ‘watch your step’sticker as evidence of notice” that the steps were “slippery.”[10] Here, thecourt found that the “similarity of the signs establishes a sufficientconnection between the warning and the danger – the step down.”[11]Moreover, the court found no “distinction between a cruise line placing awarning sign on a ship and a cruise line having knowledge of a permanentlyaffixed warning sign that has been present on its ship for years.”[12] Thus,the court narrowly held “that a cruise ship operator has notice of a condition– and thus a duty to warn – if a sign is posted on a ship warning about thecondition.”[13]The court noted, however, that “this decision does not mean that a cruise shipoperator is automatically liable any time a passenger is injured in the area ofthe sign.”[14]
The court rejected plaintiff-appellant’s theory that NCL was liable fornegligent maintenance due to the presence of “the unilluminated lightbulb.”[15] The courtreasoned that plaintiff-appellant “failed to adduce evidence proving that NCLhad actual or constructive notice that the subject lightbulb was out on thenight that Guevara fell.”[16]Furthermore, NCL produced records demonstrating that it “retained fourelectrical engineers who were responsible for inspecting the lighting” on thevessel at regular intervals “each day.”[17] Giventhe evidence produced by NCL, and the lack of evidence produced byplaintiff-appellant, the court concluded “that Guevara failed to create atriable issue of fact on whether NCL had notice of the allegedly dangerouscondition posed by the unilluminated lightbulb.”[18]
[1]Pablo Guevara v. NCL (Bahamas) Ltd., 920 F.3d 710, 714 (11th Cir. 2019).
[2]Id. at .715.
[3]Id.
[4]Id.
[5]Id.
[6]920 F.3d at 715.
[7]Id. at 719.
[8]Id.
[9]677 Fed. Appx. 599 (11th Cir. 2017).
[10]Pablo Guevara v. NCL (Bahamas) Ltd., 920 F.3d at 721; See Taiariol v.MSC CROCIERE S.A., 677 Fed. Appx. at 601.
[11]Pablo Guevara v. NCL (Bahamas) Ltd., 920 F.3d at 721
[12]Id.
[13]Id. at 722.
[14]Id.
[15]Id. at 723.
[16]Id.
[17]Id.
[18]920 F.3d at 723.
