Filed 9/10/13 Senn v. Princess Cruise Lines CA2/2
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.


              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     SECOND APPELLATE DISTRICT

                                                  DIVISION TWO


DENNIS SENN et al.,                                                  B244101

         Plaintiffs and Appellants,                                  (Los Angeles County
                                                                     Super. Ct. No. PC048226)
         v.

PRINCESS CRUISE LINES, LTD.,

         Defendant and Respondent.




         APPEAL from a judgment of the Superior Court of Los Angeles County.
Melvin D. Sandvig, Judge. Affirmed.

         Weber & Baer, Jonathan S. Weber, Andrew L. Treger, and Eric G. Rudin for
Plaintiffs and Appellants.

         Maltzman & Partners, Jeffrey B. Maltzman, Teresa C. Senior, and Heather F.
Lunn for Defendant and Respondent.


                                              __________________
       Plaintiff Dennis Senn (Dennis) suffered injuries when using a mobility scooter on
a ramp on a cruise ship owned and operated by defendant Princess Cruise Lines, Ltd.
(Princess). In an effort to recover damages for his injuries, Dennis and his wife, plaintiff
Eva Senn, brought this action for damages against Princess for general negligence,
premises liability, and loss of consortium. Princess moved for summary judgment, and
the trial court granted Princess’s motion. Plaintiffs appeal, contending that a triable issue
of fact exists as to whether (1) the ramp on which Dennis fell constitutes a dangerous
condition, and (2) Princess had knowledge of the allegedly dangerous condition.
       We affirm.
                  FACTUAL AND PROCEDURAL BACKGROUND
The Parties
       Dennis suffers from a degenerative spinal condition, ankylosing spondylitis, and,
as a result, depends upon a motorized wheelchair or mobility scooter for travel. Princess
operates the Star Princess cruise ship. But, Princess did not participate in the design or
construction of the Star Princess.
Dennis Rented a Mobility Scooter
       Dennis and his wife purchased tickets to take an Alaskan cruise aboard the Star
Princess. Princess does not lease mobility scooters to its passengers, but its Web site
provides the contact information for companies that rent medical equipment to cruise
passengers. Ultimately, Dennis leased a mobility scooter from Special Needs Group, Inc.
(SNG). He specifically requested a heavy duty scooter; SNG selected a scooter and
delivered it to Dennis onboard the ship.
The Accident
       On May 31, 2009, Dennis and his wife boarded the cruise ship. Shortly after
boarding the ship, Dennis received his mobility scooter (without a manual) and began
using it. He went down a hallway, used an elevator, and approached a double door with a
ramp leading to the outside deck. When Dennis sought to negotiate the ramp, the scooter
tipped over backwards, falling onto him. Dennis suffered serious injuries.



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No Prior Accidents or Complaints
       There were no prior similar accidents at the location of the accident for at least
three years prior to May 31, 2009. There were no complaints by any passengers
regarding tipping while using mobility scooters at the location where Dennis fell for at
least three years prior to May 31, 2009.
The Ramp
       The ramp has a 10.82 degree grade. According to plaintiffs’ expert, the scope of
the ramp exceeds the safe design of the scooter provided to Dennis.
The Complaint
       Plaintiffs initiated this action on May 10, 2010. The second amended complaint
(SAC), which is the operative pleading, alleges four causes of action against Princess:
general negligence, premises liability, products liability, and loss of consortium. In
essence, the SAC alleges that Princess was negligent in failing to provide Dennis with an
adequate scooter and in failing to warn him of a dangerous condition, namely the ramp
where he fell.
The Motion for Summary Judgment
       On March 9, 2012, Princess filed a motion for summary judgment. Princess
argued that plaintiffs’ claims for negligence and premises liability failed because there
was no evidence that Princess had notice of the alleged dangerous condition. In addition,
Princess averred that it had no notice that Dennis was using a scooter that was inadequate
for him and unable to transport him safely. Moreover, with respect to the products
liability claim, Princess asserted that there is no agency relationship between SNG and
Princess; as such, Princess could not be liable for products liability. Finally, Princess
contended that it could not be liable for any design defects with respect to the ramp
because it did not design or construct the ramp.
       Plaintiffs opposed Princess’s motion. They argued, inter alia, that Princess had
actual notice of the alleged dangerous condition and failed to either correct it or warn
Dennis of its existence. Moreover, because Princess was responsible for the design of its
ship, it could be held liable for negligent design.

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       After entertaining oral argument, the trial court granted Princess’s motion. First, it
found that there was no evidence that Princess was SNG’s agent. As such, Princess had
no duty “to be aware of the limitations of every mobility device used by every potential
passenger and/or to warn of all such limitations.” It follows that Princess could not be
liable for negligence.
       Next, with respect to plaintiffs’ premises liability cause of action, the trial court
found that Princess “did not have notice, actual or constructive, of the purported
dangerous condition.” Absent notice, Princess could not be liable for premises liability.
       Alternatively, the trial court determined that it was undisputed that Princess did
not build or design the subject ramp; that ramp was designed and constructed by the
shipyard from which Princess purchased the vessel. Because a ship owner is only liable
for an alleged design or construction defect onboard its ship if he actively participated in
the design or construction of the alleged defect, Princess could not be liable to plaintiffs.
       Judgment was entered, and plaintiffs’ timely appeal ensued.
                                       DISCUSSION
       I. Standard of review
       “A trial court properly grants summary judgment where no triable issue of
material fact exists and the moving party is entitled to judgment as a matter of law.
(Code Civ. Proc., § 437c, subd. (c).) We review the trial court’s decision de novo.”
(Merrill v. Navegar, Inc. (2001) 26 Cal.4th 465, 476.)
       We review the trial court’s evidentiary rulings for abuse of discretion. (Biles v.
Exxon Mobil Corp. (2004) 124 Cal.App.4th 1315, 1322.)
       II. Princess is entitled to judgment
       According to their appellate briefs, plaintiffs theorize that Princess is liable for
Dennis’s injuries because the ramp constituted a dangerous condition on the ship and
Princess had notice of that allegedly dangerous condition.
       Assuming, without deciding, that the ramp constituted a dangerous condition,
plaintiffs’ claims against Princess fail. In order for a defendant to be liable for an
allegedly dangerous condition, the defendant must have “had notice, either actual or

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constructive, of the danger or risk of harm.” (Meyer v. Carnival Cruise Lines, Inc.
(N.D.Cal. Dec. 29, 1994, No. C-93-2383-MH) 1994 U.S.Dist. Lexis 21431, *17.) Here,
it is undisputed that Princess did not have notice that the ramp constituted a dangerous
condition. There were no prior similar accidents at the location of the accident for at
least three years prior to May 31, 2009. There were no complaints by any passengers
regarding tipping while using mobility scooters at the location where Dennis fell for at
least three years prior to May 31, 2009.
         Plaintiffs purport to dispute the foregoing evidence by directing us to a posting on
the Web site cruisereviews.com. But, as the trial court found, the posting is nothing more
than “inadmissible evidence of an unauthenticated [Web site] posting relating to a
different ship and different ramp. [And, even] if this information were not inadmissible,
the [Web site] posting proffered by [plaintiffs] does not indicate that Princess was ever
aware of this purported other accident.” Thus, we readily conclude that the trial court did
not abuse its discretion in disregarding this evidence.
         Plaintiffs further attempt to create a triable issue of fact by relying upon the
Access Board of the U.S. Department of Transportation DRAFT Passenger Accessibility
Guidelines. But, as plaintiffs’ expert acknowledges and as conceded in plaintiffs’
opening brief, these guidelines “were only proposed”; “the final version [has] not yet
[been] published for implementation.” It follows that we find no abuse of discretion in
the trial court’s rejection of this evidence on the grounds that (1) the guidelines were
never enacted; and (2) even if enacted, they would only apply to new construction of
ships.
         Plaintiffs also attempt to manufacture a triable issue of fact by pointing us to the
“applicable standards for land-based construction.” As aptly noted in the trial court’s
order granting Princess’s motion for summary judgment, “land[-]based ADA [Americans
with Disabilities Act] construction standards do not apply to cruise ships.” And, while
plaintiffs’ expert opined that the land-based guidelines are instructive, the trial court
sustained Princess’s objections to those portions of plaintiffs’ expert’s declaration. The
proffered evidence was rendered inadmissible, and on appeal plaintiffs do not challenge

                                                5
the trial court’s evidentiary ruling. Thus, plaintiffs have not demonstrated how the trial
court abused its discretion.
       It follows that we reject plaintiffs’ effort to liken this case to Galentine v. Holland
America Line-Westours, Inc. (W.D.Wash. 2004) 333 F.Supp.2d 991 (Galentine). In
Galentine, a passenger on a cruise ship was injured when he walked through a set of
automatic sliding doors. (Id. at p. 993.) The district court denied the cruise ship’s motion
for summary judgment on the grounds that there were disputed facts as to whether the
sliding doors operated according to the manufacturer’s installation manual or according
to industry standards. (Id. at p. 997.) But, in that case, the ship’s chief electrician
inspected the sliding doors on the ship weekly to determine whether it was necessary to
adjust the settings. (Ibid.) In contrast, in our case, the ramp is static; Princess had no
involvement in adjusting the ramp’s angle of incline.1
       The Galentine court also found disputed evidence concerning whether there had
been any prior incidents in which sliding doors struck passengers or crew members.
(Galentine, supra, 333 F.Supp.2d at p. 998.) As noted above, there is no evidence here of
any prior accidents on the subject ramp.
       Cook v. Royal Caribbean Cruises, Ltd. (S.D.Fla. May 15, 2012, No. 11-20723-
Civ-Goodman) 2012 U.S.Dist. Lexis 67977 (Cook) does not compel a different result. In
Cook, “evidence of non-binding industry standards [regulations regarding the volume of
the ship’s whistle] was admitted to establish the standard of care.” (Mirza v. Holland Am.
Line Inc. (W.D.Wash. Nov. 6, 2012, No. C11-1971-MJP) 2012 U.S.Dist. Lexis 159982,
*10 (Mirza).) But, Cook does “not stand for the proposition that industry standards
establish actual or constructive knowledge of a risk-creating condition.” (Mirza, supra,
at p. *10.) In other words, plaintiffs’ reliance upon Cook for the premise that the



1      In a similar vein, the fact that Jan Tuck, the manager of Access Compliance for
Princess, traversed the subject ramp does not mean that Princess had notice of an
allegedly dangerous condition.


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proposed guidelines and/or the land-based standards establish that Princess knew or
should have known that the subject ramp constituted a dangerous condition is misplaced.
       Finally, plaintiffs claim that Princess is liable for referring Dennis to SNG, who
allegedly was negligent for failing to provide Dennis with an adequate scooter and with a
manual regarding the use of the scooter that SNG supplied. According to plaintiffs’ reply
brief, Princess “could” have inquired as to which scooters were safe and “could” have
requested user manuals. Aside from the fact that this argument rests largely upon
speculation, it is unsupported by any legal authority; therefore, we may treat it as waived.
(Benach v. County of Los Angeles (2007) 149 Cal.App.4th 836, 852.)
                                     DISPOSITION
       The judgment is affirmed. Princess is entitled to costs on appeal.
       NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.




                                                 _____________________________, J.
                                                       ASHMANN-GERST

We concur:



______________________________, P. J.
           BOREN



______________________________, J.*
           FERNS




*       Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to
article VI, section 6 of the California Constitution.


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