           Case: 17-15581   Date Filed: 09/05/2018   Page: 1 of 12


                                                         [DO NOT PUBLISH]

            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                        No. 17-15581 & 18-10513
                         Non-Argument Calendar
                       ________________________

                  D.C. Docket No. 1:16-cv-24421-FAM


ROBERT EDWARD PETERSEN,
ANN WILMA PETERSEN, his wife,

                                                          Plaintiffs-Appellants,


                                  versus


NCL (BAHAMAS) LTD. d.b.a.
Norwegian Cruise Line,

                                                          Defendant-Appellee.

                       ________________________

               Appeals from the United States District Court
                   for the Southern District of Florida
                      ________________________

                            (September 5, 2018)

Before MARTIN, JILL PRYOR, and ANDERSON, Circuit Judges.

PER CURIAM:
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       Plaintiff-Appellant Robert Petersen slipped and fell on the deck of a

Norwegian Cruise Line (“NCL”) cruise ship. He sued NCL, claiming that NCL

was negligent in several ways. Petersen’s wife, Plaintiff-Appellant Anne Wilma

Petersen, brought a loss of consortium claim. The district court granted summary

judgment in favor of NCL and the Petersens appealed. For the reasons discussed

below, we conclude that the district court prematurely granted summary judgment

regarding Mr. Petersen’s negligence claims but properly granted summary

judgment in favor of NCL on Mrs. Petersen’s loss of consortium claim.

Accordingly, we affirm with respect to the judgment of the district court regarding

Mrs. Petersen’s loss of consortium claim, but we reverse the grant of summary

judgment as to Mr. Petersen’s negligence claims and remand to the district court

for further proceedings on those claims. 1

                                    I.      STANDARD

       The Court reviews a district court’s order granting summary judgment de

novo, viewing the record, and all its inferences, in the light most favorable to the

nonmoving party. Zaben v. Air Prod. & Chemicals, Inc., 129 F.3d 1453, 1455

(11th Cir. 1997) (per curiam). Summary judgment is appropriate “if the movant


1
 The district court also entered an order taxing costs in favor of NCL. The Petersens separately
appealed from that order, and we consolidated that appeal with this one. Because we reverse the
district court’s grant of summary judgment regarding Mr. Petersen’s negligence claims, we also
vacate the award of costs.


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shows that there is no genuine dispute as to any material fact and the movant is

entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). Additionally, a

district court may grant summary judgment to a nonmovant or on grounds not

raised by the parties only “[a]fter giving notice and a reasonable time to respond.”

Fed. R. Civ. P. 56(f).

                               II.      BACKGROUND

          A. Mr. Petersen’s Fall and Injuries

      In October 2015, the Petersens took a cruise on NCL’s cruise ship, the

Breakaway. On October 22, 2015, the Breakaway docked in Bermuda. Rather than

go ashore, the Petersens stayed on the Breakaway and planned to soak in the hot

tub on deck 16. When the Petersens arrived at deck 16, Mrs. Petersen went to the

hot tub and Mr. Petersen went to the bar to get her a drink. According to Mr.

Petersen’s deposition, he recalls feeling strong wind as he stepped onto the deck.

He testified that he remembers the wind blowing water from decorative waterfalls

onto him and the deck. Mr. Petersen testified that he does not recall it raining but

does remember seeing water on the deck. As Mr. Petersen walked from the bar to

the hot tub, both of his feet slipped out from under him. He landed on his back and

hit his head on the deck. The ship’s closed-circuit television system (“CCTV”)

captured video footage of Mr. Petersen’s fall from several angles.




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      Mr. Petersen was knocked unconscious by the fall and taken to a hospital in

Bermuda. After an examination, Mr. Petersen returned to the Breakaway and

remained on board for the rest of the cruise. He sought additional medical

treatment when he returned home. According to Mr. Petersen’s treating physician,

the fall caused small areas of bleeding in Mr. Petersen’s brain. Mr. Petersen still

suffers from headaches, impaired vision, equilibrium problems, speech problems,

and memory problems due to the fall.

         B. Deck Material and Maintenance

      The deck material on which Mr. Petersen fell is called Bolidt Bolideck

Select Soft (“Bolidt Select Soft”). The Petersens offer evidence of sixty other NCL

passengers who slipped and fell on liquid on the Bolidt Select Soft decks on the

Breakaway during the three years before Mr. Petersen’s fall. The Petersens also

offer evidence suggesting that NCL used too strong of a detergent to clean the

Bolidt Select Soft deck material. Specifically, NCL’s “Deck Night Washing

Policy” suggests that NCL used a detergent called “Bolidt Super Stripper” to clean

all of its decks, including the Bolidt Select Soft. But the deck manufacturer’s

instructions recommend that cruise lines clean the Bolidt Select Soft deck material

with a “[m]ild soap cleaner for daily use” called “Royal Soft.” The instructions

recommend the use of a “[s]trong . . . cleaning/degreasing agent,” the “Bolidt

Super Stripper,” on a different kind of Bolidt deck but do not recommend its use


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on the Bolidt Select Soft. The instructions also warn: “Bolidt Super Stripper is to

be used only in the maximum concentrations specified. All traces of Super Stripper

should be removed after cleaning by washing with potable water. Prolonged

exposure to Super Stripper may permanently damage the deck surface.”

          C. District Court Proceedings

      The Petersons sued NCL for negligence and loss of consortium. In their

complaint, the Petersens claim that NCL was negligent in several ways.

Specifically, they allege, “[NCL] owed a duty to the passengers, and in particular

to the Plaintiffs, to exercise reasonable care to design, maintain and operate its

vessel Norwegian Breakaway in a reasonably safe condition.” They claim that

NCL was negligent in fulfilling this duty by “[f]ailing to warn passengers of the

dangerous conditions of the walking surface of the deck or floor,” as well as by

“[f]ailing to promulgate and/or follow proper procedures for monitoring the

slipperiness and keeping the walking surface of the deck or floor reasonably safe

for passengers.”

      NCL filed a motion for summary judgment, arguing that (1) NCL had no

duty to warn Mr. Petersen of the dangerous condition because the dangerous

condition was open and obvious; (2) NCL had no duty to warn Mr. Petersen of the

dangerous condition because it had no notice of the dangerous condition; and

(3) maritime law does not recognize a cause of action for loss of consortium. NCL


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did not address any claim that it negligently maintained the deck in the motion for

summary judgment. In their response in opposition to the motion for summary

judgment, the Petersens again referred to NCL’s allegedly negligent maintenance

of the deck, stating, “Defendant’s operations created the unreasonably dangerous

condition, by negligent maintenance . . . .” Moreover, at the hearing before the

magistrate judge regarding the motion for summary judgment, the Petersens’

counsel argued extensively regarding Mr. Petersen’s claim that NCL negligently

maintained the deck.

      The magistrate judge recommended that summary judgment was appropriate

on all of the Petersens’ claims. Regarding Mr. Petersen’s negligence claims, the

magistrate judge concluded that NCL had no duty to warn Mr. Petersen of the

slipperiness of the deck because the dangerous condition—the wet deck—was

open and obvious. The magistrate judge did not address negligent maintenance at

all in the report and recommendation. The Petersens objected to the report and

recommendation, arguing again in part that NCL negligently maintained the deck.

The district court adopted the magistrate judge’s report and recommendation. Like

the magistrate judge, the district court did not address negligent maintenance.

      On appeal, the Petersens argue that: (1) the district court erred by granting

summary judgment in favor of NCL on Mr. Petersen’s failure to warn claim based

on the open and obvious doctrine because the unreasonably slippery nature of the


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deck was not open and obvious; (2) the district court erred by granting summary

judgment in favor of NCL on Mr. Petersen’s negligent maintenance claim because

NCL did not seek summary judgment regarding that claim; and (3) the district

court erred by denying Mrs. Petersen’s loss of consortium claim.

                                III.   DISCUSSION

      The parties agree that, because Mr. Petersen’s injuries occurred on navigable

waters, federal maritime law controls this case. Everett v. Carnival Cruise Lines,

912 F.2d 1355, 1358 (11th Cir. 1990); see also Doe v. Celebrity Cruises, Inc., 394

F.3d 891, 901–02 (11th Cir. 2004) (holding that federal maritime law governed a

cruise passenger’s sexual assault case against a cruise ship even though the assault

took place while the ship was docked in Bermuda). In analyzing a maritime tort

case, the Court applies the general principles of negligence law. Chaparro v.

Carnival Corp., 693 F.3d 1333, 1336 (11th Cir. 2012) (per curiam). Under those

principles, a plaintiff must show that (1) the defendant had a duty, (2) the

defendant breached that duty, (3) the breach actually and proximately caused the

plaintiff’s injury, and (4) the plaintiff suffered actual harm. Id. A cruise line owes

its passengers a duty of “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 risk-creating condition.” Keefe v. Bahama

Cruise Line, Inc., 867 F.2d 1318, 1322 (11th Cir. 1989) (per curiam). The cruise


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line’s duty to its passengers includes “a duty to warn of known dangers . . . in

places where passengers are invited or reasonably expected to visit” that would not

be open and obvious to a reasonable person under the circumstances. Chaparro,

693 F.3d at 1336; Deperrodil v. Bozovic Marine, Inc., 842 F.3d 352, 357 (5th Cir.

2016) (“A vessel owner does not need to warn passengers or make special

arrangements for open-and-obvious risks.”).

         A. Negligent Failure to Warn

      The Petersens first argue that the district court should not have applied the

open and obvious doctrine to Mr. Petersen’s negligent failure to warn claim.

Specifically, they claim that, although it was obvious that the deck on which Mr.

Petersen fell was wet, it was not open and obvious that the deck was unreasonably

slippery. The Petersens offer the following evidence to support their claim that the

deck on which Mr. Petersen fell was unreasonably slippery: (1) the video footage

showing that both of Mr. Petersen’s feet slipped completely out from under him in

such a manner that a jury might find that the deck surface was unreasonably

slippery; (2) the fact that sixty other NCL passengers fell on Bolidt Select Soft

decking on the Breakaway during the three year period before Mr. Petersen fell;

and (3) the evidence suggesting that NCL used the Bolidt Super Stripper detergent

on the Select Soft deck, even though that was not recommended by the

manufacturer.


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        We agree with the Petersens that this evidence is sufficient for a reasonable

juror to conclude that the deck on which Mr. Petersen fell was unreasonably

slippery. Furthermore, we agree that, although the wetness of the deck was open

and obvious, the unreasonably slippery state of the deck may not have been open

and obvious to a reasonable person.2 Because there is evidence in the record from

which a reasonable juror could conclude that the deck was unreasonably slippery,

we reverse the district court’s grant of summary judgment on the failure to warn

claim based on its conclusion that the water on the deck was an open and obvious

risk.

        We recognize that in the district court NCL raised additional alternative

arguments in its defense against Mr. Petersen’s negligent failure to warn claim—

i.e., NCL’s alleged lack of notice of the risk-creating condition and its argument

that the warnings actually given were adequate. However, Mr. Petersen’s failure to

warn claim was rejected by the magistrate judge and the district court solely on the

open and obvious ground, and neither addressed NCL’s alternative grounds.

Having vacated the district court’s judgment with respect to the open and obvious




2
 We have reached this same conclusion in another unpublished case. See Frasca v. NCL
(Bahamas), Ltd., 654 F. App’x 949, 953 (11th Cir. 2016) (per curiam) (reversing the district
court’s grant of summary judgment in a case in which the plaintiffs presented evidence that the
deck was unreasonably slippery because, although it may be obvious that water on a deck will
make it slicker than usual, the deck’s visible wetness may not alert a reasonable person to the
extent of the deck’s slipperiness).

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ground, we remand Mr. Petersen’s failure to warn claim to the district court to

consider in the first instance NCL’s alternative arguments.

          B. Negligent Maintenance

      The Petersens next argue that the district court erred by granting summary

judgment with regards to their negligent maintenance claim. Specifically, they

claim that NCL did not move for summary judgment regarding this claim and that

the district court did not give them sufficient notice of its intent to grant summary

judgment on the claim. We agree with the Petersens that the district court did not

properly address their negligent maintenance claim.

      The Petersens’ complaint lists a single negligence count against NCL. But

the substance of the complaint makes clear that the Petersens claim that NCL was

negligent in several ways, including by negligently maintaining the deck material.

Moreover, counsel for the Petersens eliminated any uncertainty by arguing

extensively regarding Mr. Petersen’s negligent maintenance claim at the summary

judgment hearing. Nevertheless, the magistrate judge, who conducted the hearing,

did not address the negligent maintenance claim in his report and recommendation.

And despite the fact that the Petersens argued that the deck was negligently

maintained in their objections to the report and recommendation, the district court

also failed to address that claim. Given that NCL did not move for summary

judgment regarding Mr. Petersen’s negligent maintenance claim, the district court


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never addressed that claim, and there is evidence suggesting that NCL did not

follow the manufacturer’s instructions for cleaning the deck, we remand for the

district court to address Mr. Petersen’s negligent maintenance claim in the first

instance.

            C. Loss of Consortium

      This Court has held that plaintiffs may not recover loss of consortium

damages for personal injury claims under federal maritime law. See In re Amtrak

Sunset Ltd. Train Crash in Bayou Canot, Ala. on Sept. 22, 1993, 121 F.3d 1421,

1429 (11th Cir. 1997) (holding that the plaintiffs could not recover punitive or loss

of consortium damages for personal injuries sustained when a commercial vessel

crashed into a railway bridge); see also Lollie v. Brown Marine Serv., Inc., 995

F.2d 1565, 1565 (11th Cir. 1993) (per curiam) (“[N]either the Jones Act nor

general maritime law authorizes recovery for loss of society or consortium in

personal injury cases.”). “We are bound to follow a prior precedent or en banc

holding, except where that holding has been overruled or undermined to the point

of abrogation by a subsequent en banc or Supreme Court decision.” Tobinick v.

Novella, 884 F.3d 1110, 1118 (11th Cir. 2018) (quoting Chambers v. Thompson,

150 F.3d 1324, 1326 (11th Cir. 1998)).

      The Petersens recognize that this Circuit’s precedent precludes Mrs.

Petersen’s loss of consortium claim. Nevertheless, they argue that the Court should


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reexamine In re Amtrak in light of the Supreme Court’s more recent holding in

Atlantic Sounding Co. v. Townsend, 557 U.S. 404, 129 S. Ct. 2561, 174 L. Ed. 2d

382 (2009). In Atlantic Sounding, the Supreme Court held that, as a matter of

general maritime law, a seaman may recover punitive damages for the willful and

wanton disregard of the maintenance and cure obligation in the appropriate case.

Id. at 424, 129 S. Ct. at 2575. Nothing in that opinion undermines our holding in In

re Amtrak. See In re Amtrak, 121 F.3d at 1429 (suggesting that punitive or loss of

consortium damages may be available under federal maritime law “in exceptional

circumstances such as willful failure to furnish maintenance and cure to a

seaman”). That is, there are no exceptional circumstances in this case and no

allegations of intentional conduct. Accordingly, we affirm the district court’s grant

of summary judgment regarding Mrs. Petersen’s loss of consortium claim.

      AFFIRMED in part, REVERSED in part, and REMANDED with

instructions.




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