Alan Wiegand, et al v. Royal Caribbean Cruises LTD.

[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 21-12506
____________________
ALAN WIEGAND,
Individually and as Personal Representative of the
Estate of Chloe Wiegand, deceased minor,
KIMBERLY SCHULTZ-WIEGAND,
Individually and as Personal Representative of the
Estate of Chloe Wiegand, deceased minor,
Plaintiffs-Appellants,
versus
ROYAL CARIBBEAN CRUISES LTD.,
Defendant-Appellee.
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2 Opinion of the Court 21-12506
____________________
Appeal from the United States District Court
for the Southern District of Florida
D.C. Docket No. 1:19-cv-25100-DLG
____________________
Before J ILL PRYOR and G RANT, Circuit Judges, and MAZE ,* District
Judge.
PER C URIAM :
Eighteen-month-old Chloe Wiegand escaped her grandfa-
ther’s grip and fell to her death through an open cruise ship win-
dow. Chloe’s parents sued Royal Caribbean Cruises, Ltd., alleging
general negligence, negligent failure to maintain, and negligent fail-
ure to warn. The district court granted Royal Caribbean’s motion
for summary judgment on all three counts. We affirm the district
court’s dismissal of Count 3 (negligent failure to warn) but reverse
the district court’s dismissal of Counts 1 and 2 (general negligence
and negligent failure to maintain, respectively) and remand on
those counts.
I. Background
The Wiegand family was set to cruise aboard Royal Carib-
bean’s ship,
Freedom of the Seas, in July 2019. Shortly after they
* Honorable Corey L. Maze, United States District Judge for the Northern Dis-
trict of Alabama, sitting by designation.
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21-12506 Opinion of the Court 3
boarded, Chloe’s mother and brother took Chloe to the H2O
Zone, a children’s water park on Deck 11. Chloe’s grandfather, Sal-
vatore Anello (“Anello”), joined soon after to watch over Chloe.
A. Deck 11
This is the H2O Zone:
The Court circles an open window because this case turns on
whether (a) Royal Caribbean knew that a child could fall through
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4 Opinion of the Court 21-12506
a fully-open window on Deck 11 and (b) whether Anello knew that
the window was open and thus dangerous when he held Chloe in
front of it.
B. The Fall
Security footage captured the minute and a half leading up
to Chloe’s fall. It starts with Anello following Chloe away from the
pool and toward the long exterior glass wall. The Court circles the
open window at issue in red and Chloe and Anello in green:
The duo crouched near a pole as another man walked up to the
open window and leaned on the rail:
After the unidentified man left, Chloe ran toward the window with
Anello trailing behind:
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21-12506 Opinion of the Court 5
Chloe reached the glass wall first and stood on the ground. When
Anello reached the wall, he leaned over the handrail, the back of
which was 19 inches away from the metal windowsill as shown in
the adjoining picture:
About 12 seconds later, Anello reached down and picked up Chloe.
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While it is unclear on the video, Anello testified that he put Chloe’s
feet on the windowsill, where he thought the glass was. About 36
seconds after Anello picked Chloe up, Chloe slipped from his grip
and disappeared from the security footage.
Chloe fell about 150 feet onto the pier below. She died from
the fall. Anello pleaded guilty to negligent homicide in Puerto Rico,
where the ship was docked.
C. The Litigation
Chloe’s parents, Alan Wiegand and Kimberly Schultz-Wie-
gand, sued Royal Caribbean Cruises, Ltd., alleging (1) general neg-
ligence, (2) negligent failure to maintain, and (3) negligent failure
to warn. The Wiegands alleged that Royal Caribbean breached its
duty to Chloe, among other ways, by violating hospitality industry
standards that would have required fall prevention devices on Deck
11 windows or would have prevented Deck 11 windows from
opening more than four inches wide.
The district court granted Royal Caribbean’s motion for
summary judgment on all three counts. The district court found
that Royal Caribbean was entitled to judgment on the duty ele-
ment for all three counts because Royal Caribbean had no notice
“of the risk-creating condition, which was Mr. Anello lifting the
child through an open window.” The court found that Royal Car-
ibbean was also entitled to judgment on the proximate cause ele-
ment for all three counts because Anello’s criminal conduct was
the unforeseeable, sole proximate cause of Chloe’s death. The
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21-12506 Opinion of the Court 7
court held that Royal Caribbean was also entitled to judgment on
Count 3 (negligent failure to warn) because the fully-open window
was an open and obvious danger. The Wiegands appeal.
II. Standard of Review
“This Court reviews
de novo summary judgment rulings
and draws all inferences and reviews all evidence in the light most
favorable to the non-moving party.”
Freixa v. Prestige Cruise
Servs., LLC, 853 F.3d 1344, 1346 (11th Cir. 2017) (quoting
Craig v.
Floyd Cnty., 643 F.3d 1306, 1309 (11th Cir. 2011)). A grant of sum-
mary judgment is proper “if the movant shows that there is no gen-
uine dispute as to any material fact and the movement is entitled
to judgment as a matter of law.” Fed. R. Civ. P. 56(a). Summary
judgment is improper if a reasonable jury could find for the non-
moving party.
Guevara v. NCL (Bahamas) Ltd., 920 F.3d 710, 720
(11th Cir. 2019).
III. Discussion
Chloe was on navigable waters when she fell, so federal mar-
itime law governs the substantive issues.
See Amy v. Carnival
Corp., 961 F.3d 1303, 1308 (11th Cir. 2020). The court relies on gen-
eral principles of negligence law when analyzing maritime negli-
gence claims.
Chaparro v. Carnival Corp., 693 F.3d 1333, 1336 (11th
Cir. 2012). That means the Wiegands must prove four elements for
each of their negligence-based claims: (1) Royal Caribbean had a
duty to protect against a particular injury; (2) Royal Caribbean
breached that duty; (3) the breach actually and proximately caused
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8 Opinion of the Court 21-12506
Chloe’s injury; and (4) Chloe suffered actual harm.
See Carroll v.
Carnival Corp., 955 F.3d 1260, 1264 (11th Cir. 2020).
The district court held that the Wiegands could not prove
the duty or proximate cause elements, meaning that none of the
Wiegands’ claims could survive summary judgment. The Court re-
views both rulings in turn, mindful that it must view the evidence
in a light most favorable to the Wiegands.
A. Duty to Protect
Under maritime law, a cruise line owes its passengers “a
duty of reasonable care” under the circumstances.
Id. (internal quo-
tation marks omitted). That duty arises only when the cruise line
has actual or constructive knowledge of the risk-creating danger
that caused the Plaintiff’s harm.
Id. So Royal Caribbean’s duty to
Chloe “hinges on whether it knew or should have known” of the
dangerous condition that caused her injury.
Id.
In granting summary judgment, the district court held that
“the true risk-creating danger here was Mr. Anello lifting a child up
to an open window. The Plaintiffs have provided no . . . notice of
that danger.” The Wiegands argue this ruling is wrong for two rea-
sons. First, the district court redefined the risk-creating danger that
caused Chloe’s injury. Second, the district court ignored a key piece
of the Wiegands’ evidence (
i.e., Elton Koopman’s testimony) and
failed to view the rest of the Wiegands’ evidence in a light most
favorable to the Wiegands. We address both arguments in turn.
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1. Defining the danger
Plaintiffs are generally the masters of their complaints and
can thus choose how to plead their theory of liability.
See Yusko v.
NCL (Bahamas) Ltd., 4 F.4th 1164, 1170 (11th Cir. 2021). This
Court routinely accepts the plaintiff’s definition of the dangerous
condition(s) that caused his injury.
See, e.g.,
Sorrels v. NCL (Baha-
mas) Ltd., 796 F.3d 1275, 1286 (11th Cir. 2015) (“[plaintiffs] argued
that NCL created a dangerous condition by failing to properly
maintain the pool deck where [one plaintiff] slipped and by failing
to warn passengers of the danger”);
Guevara, 920 F.3d at 717
(“[plaintiff] argued that NCL failed to adequately warn him of the
dangerous condition posed by the step down”).
In their complaint, the Wiegands pleaded that the dangerous
conditions that caused Chloe’s fall included (1) the lack of fall pre-
vention devices on Deck 11 windows, (2) the lack of signs or visual
clues to alert passengers which Deck 11 windows were open, and
(3) the lack of policies that governed when Deck 11 windows could
be opened.
The district court acknowledged that the Wiegands’ evi-
dence could prove that Royal Caribbean “was on notice of the risk
of children independently accessing windows, and individuals fall-
ing from windows generally.” But rather than finding that the Wie-
gands could therefore prove the duty element, the court redefined
the risk-creating danger: “However, the true risk-creating danger
here was Mr. Anello lifting a child up to an open window. The
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10 Opinion of the Court 21-12506
Plaintiffs have provided no evidence showing [that] [Royal Carib-
bean] was on notice of that danger.”
The district court erred. As discussed, this Court generally
allows the plaintiff to define the risk-creating condition, and we see
no reason to reject the Wiegands’ pleaded theory that fully-open
windows on Deck 11 created a risk. The district court’s point that
Anello
enhanced the risk of fully-open windows by holding Chloe
in front of a fully-open window is properly addressed in the proxi-
mate cause element, which allows Royal Caribbean to argue that
Anello was a superseding cause in Chloe’s death.1
See Part III(B).
2. Evidence of notice.
Our discussion of who defines the risk is largely academic
because the Wiegands presented three pieces of evidence that,
when viewed in a light most favorable to the Wiegands, would al-
low a reasonable juror to find that Royal Caribbean not only knew
that fully-open windows on Deck 11 posed a risk, it also knew
about the risk of adults holding children in front of fully-open win-
dows on Deck 11.
1 Royal Caribbean makes the same point in its brief: “In the end, these argu-
ments [about duty] ignore that Anello’s actions of placing Decedent on a win-
dowsill of an open window and letting the child slip from his hands were the
sole proximate cause of the accident.”
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21-12506 Opinion of the Court 11
First is the testimony of Elton Koopman. Koopman worked
as chief security officer on Royal Caribbean cruise ships, including
Freedom of the Seas. Koopman testified that he saw adults holding
children in front of open windows on Deck 11, and that he and
other crew members discussed at safety meetings the problem of
adults holding children in front of open windows and children
climbing on chairs in front of open windows. Koopman testified
that he saw adults hold children on the outer windowsill and that
he told the adults to bring the children back in and close the win-
dow. And Koopman testified that Royal Caribbean knew about the
risk of children falling through open windows and adults holding
children in front of open windows.
The district court did not address Koopman’s testimony in
its order granting summary judgment. Royal Caribbean argues that
Koopman is a disgruntled ex-employee who shares an attorney
with the Wiegands, so his testimony should be discredited. But we
can neither ignore nor disbelieve Koopman’s testimony; we must
view it in a light most favorable to the Wiegands because they are
the party opposing summary judgment.
See Freixa, 853 F.3d at
1346; Fed. R. Civ. P. 56(a). If a reasonable juror believes Koopman’s
testimony, that juror could find that Royal Caribbean knew about
the risks posed by fully-open windows on Deck 11, including the
risk of adults holding children in front of those windows. Royal
Caribbean can question Koopman about bias and credibility at trial.
The second piece of evidence is the wood railing that keeps
passengers 19 inches away from Deck 11’s open windows:
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12 Opinion of the Court 21-12506
Royal Caribbean’s corporate representative testified that the rail
was one of its “fall prevention measures” for “children and adults.”
The ship’s captain, Frank Martinsen, confirmed that “the whole
purpose” of the rail was “to prevent people from going overboard.”
This Court has said that “[e]vidence that a ship owner has
taken corrective action can establish notice of a dangerous condi-
tion.”
Amy, 961 F.3d at 1308 (cleaned up). A reasonable juror could
find that Royal Caribbean added the rail in front of Deck 11’s win-
dows because it knew that passengers, including children, could fall
out of an open window.
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21-12506 Opinion of the Court 13
The third piece of evidence is Royal Caribbean’s Guest Con-
duct Policy, which prohibited passengers from “[s]itting, standing,
laying or climbing on, over or across any exterior or interior rail-
ings or other protective barriers[.]” We have said that “warning
passengers about a danger posed by a condition” can be evidence
of notice, if there is “a connection between the warning and the
danger.”
Amy, 961 F.3d at 1309. And we have held that evidence
that a cruise line warned passengers not to “‘climb up rails’, ‘try to
sit on them’, [or] ‘try to get selfies or lean over’ them because ‘ac-
cidents can happen’” was “enough to withstand summary judg-
ment as to notice.”
Id. The same is true here; a reasonable juror
could find that Royal Caribbean’s written policy against climbing
on or over railings is proof that Royal Caribbean knew that passen-
gers could fall overboard despite the railing.
In sum, we find that, when viewed in a light most favorable
to the Wiegands, the combination of Koopman’s testimony, the
railing in front of Deck 11’s windows, and Royal Caribbean’s Guest
Conduct Policy instructing passengers not to climb on or over the
railing is enough to withstand summary judgment as to notice. The
district court erred in holding otherwise.
B. Proximate Cause
Under superseding cause doctrine, even if the Wiegands can
prove that Royal Caribbean’s failure to mitigate a known risk sub-
stantially contributed to Chloe’s death, Royal Caribbean is not lia-
ble if Chloe fell due to “a later cause of independent origin that was
not foreseeable.”
Exxon Co., U.S.A. v. Sofec, Inc., 517 U.S. 830, 837
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14 Opinion of the Court 21-12506
(1996). The district court held that Anello’s conduct was an unfore-
seeable, superseding cause that broke the chain between any neg-
ligence by Royal Caribbean and Chloe’s death.
The Wiegands argue that the district court erred for two rea-
sons. First, they argue that the superseding cause doctrine does not
apply when the superseding cause (Anello here) is not a party to
the litigation. Second, they argue that they presented enough evi-
dence of foreseeability to make superseding cause a question for
the jury. We disagree with the Wiegands’ first argument but agree
with the second.
1. Third party as superseding cause
The Wiegands rightly note that, in
Exxon, the plaintiff ship
captain was found to be the superseding cause of the accident, and
the Supreme Court held that the captain and his employer (Exxon)
could not recover any damages.
Id. at 840-41. But the plaintiffs’ in-
ability to recover did not spring from the captain’s status as a party.
Rather, the plaintiffs’ case failed because the captain’s negligence
broke the causal chain between the defendant’s negligence and the
plaintiffs’ injuries.
Id. at 837-39. Put another way, the plaintiffs
could not recover from the defendant because they could not prove
an essential element of their case against the defendant (
i.e., causa-
tion).
For more proof that a third party can break the causal chain,
we need only look to the same admiralty treatise that the Supreme
Court used to define the doctrine.
See id. at 837-38 (quoting 1 T.
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21-12506 Opinion of the Court 15
Schoenbaum,
Admiralty and Maritime Law, § 5-3 (2d ed. 1994)).
The current version of Professor Schoenbaum’s treatise—which
has been updated many times since
Exxon—states that “[i]n some
cases, the defendant may be at fault, but
the plaintiff or a third party
may have committed an act which supersedes, in terms of cause,
the fault of the defendant.” 1 T. Schoenbaum,
Admiralty and Mar-
itime Law, § 5:5 (6th ed. 2022) (emphasis added).
In short, Anello’s status as a third party does not affect
whether the case can go to the jury.
2. Foreseeability
We now turn to whether the Wiegands presented enough
evidence of foreseeability to allow a jury to decide whether
Anello’s actions were a superseding cause of Chloe’s fall. Anello
pleaded guilty to negligent homicide for dropping Chloe. The dis-
trict court correctly cited our statement that, “[g]enerally, inde-
pendent illegal acts of third persons are deemed unforeseeable and
therefore the sole proximate cause of the injury, which excludes
the negligence of another as a cause of injury.”
Wiegand v. Royal
Caribbean Cruises Ltd., Case No. 19-CV-25100-DLG, 2021 WL
3204459, at *4 (S.D. Fla. July 13, 2021). (quoting
Decker v. Gibson
Prod. Co. of Albany, 679 F.2d 212, 215 (11th Cir. 1982)). Of course,
the word “generally” means there are exceptions. Our next sen-
tence in
Decker named the exception: “In some cases, however,
criminal acts have been held to be foreseeable.”
Decker, 679 F.2d
at 215. If the superseding criminal act was foreseeable, then the
criminal act does not break the causal chain between the
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16 Opinion of the Court 21-12506
defendant’s negligence and the plaintiff’s injury.
See also Restate-
ment (Second) of Torts § 442B cmt. c (“tortious or criminal acts
may in themselves be foreseeable, and so within the scope of the
created risk, in which case the actor may still be liable for the
harm”).
The district court held that “Plaintiffs have presented insuf-
ficient evidence to circumvent [the] presumption” that Anello’s
criminal act was the sole proximate cause of Chloe’s injury. Re-
garding foreseeability, the district court said that “the Plaintiffs
have failed to present evidence indicating that the Defendant knew
or should have known that there was a risk of an adult lifting a child
over the guardrail and through an open window.”
This ruling suffers from the same problem as the district
court’s ruling on notice: it ignores Elton Koopman’s testimony.
Koopman, the ship’s chief security officer until 2018, testified that
he watched adults “lift children up to the railing” in front of an open
window “so that they could feel the breeze.” He testified that he
watched adults extend children from the rail to the windowsill
when the window was open, and he instructed those adults to
bring the children “back into the vessel” and then “close the win-
dow.” And Koopman testified that he voiced his concerns about
the open windows at full team meetings when the ship returned to
port.
While Royal Caribbean can raise Koopman’s bias and credi-
bility at trial, we cannot ignore his testimony. “Foreseeability is a
question of fact,”
Doe v. United States, 718 F.2d 1039, 1042 (11th
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21-12506 Opinion of the Court 17
Cir. 1983), and we must view Koopman’s testimony in the light
most favorable to the Wiegands,
see Freixa, 853 F.3d at 1346; Fed.
R. Civ. P. 56(a). Under that standard, a reasonable juror could find
that Anello’s superseding act of holding Chloe either on the rail or
the windowsill was foreseeable to Royal Caribbean. As a result, a
reasonable juror could find that Anello did not break the causal
chain between Royal Caribbean’s negligence (if any) and Chloe’s
death. The district court erred when it held otherwise.
C. Open and Obvious
Our rulings in Parts (A) and (B) mean that a jury must decide
Counts 1 and 2 (negligence and negligent failure to maintain). But
the Wiegands must clear another hurdle on Count 3, which alleges
that Royal Caribbean negligently failed to warn passengers about
the danger posed by fully-open windows on Deck 11. “An operator
of a cruise ship has a duty to warn only of known dangers that are
not open and obvious. In evaluating whether a danger is ‘open and
obvious’ we are guided—as in general tort law—by the ‘reasonable
person’ standard.”
Carroll, 955 F.3d at 1264 (citations omitted). The
Court applies this standard objectively,
id., meaning that we give
no deference to Anello’s subjective belief.
The district court held that a reasonable person in Anello’s
shoes would have known that the window was open and would
have appreciated the danger of holding a toddler near an open win-
dow 150 feet above the surface. We agree.
Anello testified that he did not know that the window was
open and thus believed Chloe was not in danger. Typically,
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18 Opinion of the Court 21-12506
Anello’s testimony would create a question of fact that requires a
jury trial. But this issue is atypical for two reasons. First, as dis-
cussed, we must view the evidence objectively to determine
whether a reasonable person would have appreciated the danger,
not whether Anello subjectively did.
Id. at 1264. Second, we have
video, and the Supreme Court has held that a factual dispute is not
‘genuine’ if video evidence “blatantly contradict[s]” one party’s ver-
sion of the facts to the point that “no reasonable jury could believe
it.”
Scott v. Harris, 550 U.S. 372, 380 (2007). We therefore look to
the videotape to determine whether a reasonable person would
have perceived that the window was open and thus presented a risk
to Chloe.
Two details in the video show that a reasonable person
would have known that the window was open and thus presented
a risk. First, the tinted coloring of the windows make it apparent
which windows were open and which windows were closed:
When counsel showed Anello the video at his deposition, Anello
testified that he could see the difference in color and that he could
now tell that the window he and Chloe approached was open. Pho-
tographic evidence confirms that a reasonable person would have
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21-12506 Opinion of the Court 19
noticed the tinting difference when approaching the windows from
the direction Anello and Chloe did:
Second, during the minute and a half of footage, three people
(Chloe, Anello, and an unidentified man) approached the same spot
on the glass wall—and
only that spot. First, the unidentified man
drank a bottle while standing over the rail and looking outside:
Here is Anello picking up Chloe in the same spot, about 40 seconds
later:
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The odds that everyone randomly chose the same spot along a wall
of closed glass windows is exceedingly thin. Viewing the video ob-
jectively, a reasonable juror would conclude that everyone chose
that spot because the window was open, so you could see and hear
through the opening as you leaned over the rail.
Finally, photographic evidence shows that an objective per-
son who leaned over the railing as Anello did for 12 seconds before
he picked up Chloe, then reached for the glass window after he
picked up Chloe, would have realized that the window was open
because otherwise he would have touched glass:
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21-12506 Opinion of the Court 21
In sum, objective video and photographic evidence “bla-
tantly contradicted” the Wiegands’ position that a reasonable per-
son could not tell that the window was open, so the district court
properly relied on that evidence to grant summary judgment on
Count 3.
Id.
IV. Conclusion
Our opinion is limited to finding that, when all the evidence
is viewed in a light most favorable to the Wiegands, the Wiegands
offered enough evidence to survive summary judgment on Counts
1 and 2. We make no judgment on the merits of any issue, includ-
ing whether Royal Caribbean had notice of danger, whether Royal
Caribbean breached a duty (an issue not raised here), and whether
Anello’s actions proximately caused Chloe’s fall.
Based on this limited finding, we REVERSE the district
court’s grant of summary judgment on Counts 1 and 2, and
AFFIRM the district court’s grant of summary judgment on Count
3. We REMAND the case to the district court on Counts 1 and 2.
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