             Case: 14-11955    Date Filed: 06/30/2016   Page: 1 of 14


                                                             [DO NOT PUBLISH]

               IN THE UNITED STATES COURT OF APPEALS

                        FOR THE ELEVENTH CIRCUIT
                          ________________________

                           Nos. 14-11955 & 14-14324
                            Non-Argument Calendar
                          ________________________

                       D.C. Docket No. 1:12-cv-20662-JG

THOMAS FRASCA,

                                                                Plaintiff–Appellant,

                                      versus

NCL (BAHAMAS), LTD., d.b.a. NCL, et al.,

                                                            Defendants–Appellees,

                          ________________________

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

                                 (June 30, 2016)

Before JORDAN, JULIE CARNES, and JILL PRYOR, Circuit Judges.

PER CURIAM:

      Plaintiff Thomas Frasca slipped and fell on the deck of a cruise ship

operated by Defendant NCL (Bahamas) Ltd. Plaintiff sued Defendant alleging,

among other things, that Defendant negligently failed to warn of the deck’s
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slippery condition and that Defendant negligently maintained the deck. The

district court granted summary judgment in favor of Defendant. Plaintiff appealed.

Because Plaintiff raised a genuine issue of material fact as to whether Defendant

breached its duty to warn Plaintiff, we reverse and remand the district court’s grant

of summary judgment in favor of Defendant. Further, because Defendant never

moved for summary judgment as to Plaintiff’s negligent maintenance claim, the

district court’s entry of summary judgment in favor of Defendant as to that claim is

likewise reversed.

                                 I. BACKGROUND

      On March 18, 2011, Plaintiff and his wife traveled from their home in

Illinois to Honolulu. The following day, Plaintiff, his wife, and their friends, Tish

and Steve Stanner, boarded the Pride of America, a cruise ship operated by

Defendant. After dinner that evening, the couples set off to explore the ship. They

exited to an outside deck through a sliding glass door. Plaintiff was the last to exit.

After taking a couple of steps, he slipped and fell. Plaintiff testified that he was

“up all night” in “excruciating pain.” The next morning, the ship arrived at the

Maui port, where Plaintiff and his wife disembarked the ship and went to the

emergency room. Plaintiff was given crutches and pain medication. He spent the

remainder of the cruise in significant pain.




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       Back in Illinois, Plaintiff had an MRI, which revealed that his right

hamstring had become detached from the bone. Plaintiff underwent surgery to

repair his hamstring, followed by more than a year of physical therapy. As of the

date of his deposition, Plaintiff was still experiencing “continuous pain,”

significantly impaired mobility, and “a tremendous amount of social anxiety” as a

result of the fall. His personal relationships and his professional life diminished

due to the accident.

       Plaintiff sued Defendant, alleging a single count for negligence.1 The case

was referred to a magistrate judge with the consent of the parties. Defendant

moved for summary judgment on Plaintiff’s failure to warn claim. The magistrate

judge granted Defendant’s motion. Defendant then filed a motion to tax costs

against Plaintiff, which the magistrate judge granted in part and denied in part.

Plaintiff appeals both orders.

                                       II. DISCUSSION

       The district court granted Defendant’s summary judgment motion on three

grounds. First, Plaintiff alleged in his complaint that the water on the deck had

come from a leak in the ceiling overhanging part of the deck. Yet Plaintiff

presented no evidence that water from a leaky ceiling caused his fall. Instead, as



1
  Plaintiff’s complaint also asserted a count for loss of consortium, but that count was later
voluntarily dismissed under Federal Rule of Civil Procedure 41.

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the litigation progressed, it became clear that the water on the deck resulted from

precipitation. But Plaintiff never amended his complaint to that effect. Second,

the district court concluded that Plaintiff saw that the deck was wet before he

slipped, and Defendant was under no obligation to warn Plaintiff of such an “open

and obvious” condition. And third, the district court held that Plaintiff adduced

insufficient evidence to show that Defendant was on notice that the deck was

dangerously slippery when wet. The district court also entered summary judgment

in favor of Defendant on Plaintiff’s negligent maintenance claim. The court

explained that Plaintiff had not adequately pled such a claim, and, even if he had,

there was no evidence in the record to establish a genuine issue of material fact.

      On appeal, Plaintiff contends that the district court erred by holding that

(1) Plaintiff had to amend his complaint to correct his allegation as to the source of

the water on the deck, (2) record evidence did not raise a genuine issue of material

fact as to Defendant’s prior notice of the deck’s dangerous condition, (3) the

dangerously slippery nature of the deck was open and obvious, and (4) Plaintiff

did not plead a claim for failure to properly maintain the deck surface.

      A. Standard of Review

      “We review de novo a district court’s grant of summary judgment, resolving

all reasonable factual disputes in favor of the non-moving party.” Liebman v.

Metro. Life Ins. Co., 808 F.3d 1294, 1298 (11th Cir. 2015). “Summary judgment


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is appropriate if there are no genuine issues of material fact and a party is entitled

to judgment as a matter of law.” Gennusa v. Canova, 748 F.3d 1103, 1108 (11th

Cir. 2014) (citing Fed. R. Civ. P. 56(a); Bradley v. Franklin Collection Serv., Inc.,

739 F.3d 606, 608 (11th Cir. 2014)). On the other hand, summary judgment is

improper “if the evidence is such that a reasonable jury could return a verdict for

the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).

We review the district court’s fact-finding for clear error. Levinson v. Reliance

Std. Life Ins. Co., 245 F.3d 1321, 1325 (11th. Cir. 2001).

      B. Analysis

      Federal maritime law governs this dispute because (1) the alleged tort

occurred on navigable waters, (2) the incident (i.e., injury on a cruise) has the

potential to disrupt maritime commerce, and (3) the general activity giving rise to

the incident (i.e., transporting passengers on a cruise ship) has a substantial

relationship to traditional maritime activity. See Doe v. Celebrity Cruises, Inc.,

394 F.3d 891, 900 (11th Cir. 2004) (citing Jerome B. Grubart, Inc. v. Great Lakes

Dredge & Dock Co., 513 U.S. 527, 534 (1995)). In order to prevail on a maritime

tort claim, a plaintiff must show that “(1) the defendant had a duty to protect the

plaintiff from a particular injury; (2) the defendant breached that duty; (3) the

breach actually and proximately caused the plaintiff’s injury; and (4) the plaintiff

suffered actual harm.” Chaparro v. Carnival Corp., 693 F.3d 1333, 1336 (11th


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Cir. 2012). Regarding the breach element, “the benchmark against which a

shipowner’s behavior must be measured is 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).

             1. Plaintiff’s failure to warn claim.

      Defendant does not dispute that under federal maritime law, an operator of a

cruise ship has a duty to warn of known dangers that are not open and obvious.

Isbell v. Carnival Corp., 462 F. Supp. 2d 1232, 1237 (S.D. Fla. 2006) (quoting

Luby v. Carnival Cruise Lines, Inc., 633 F. Supp. 40, 41 (S.D. Fla. 1986), aff’d,

808 F.2d 60 (11th Cir. 1986) (unpublished)); Samuels v. Holland Am. Line–USA,

Inc., 656 F.3d 948, 954 (9th Cir. 2011) (“Because Holland American had neither

actual nor constructive notice of a dangerous condition on the Pacific Ocean side

of Lover’s Beach, it had no duty to warn Samuels about swimming there. For this

reason, we have no need to address whether the possible dangers of swimming at

that location were open and obvious . . . .”); c.f. N. V. Stoomvaart Maatschappij

“Nederland” v. Throner, 345 F.2d 472, 472 (5th Cir. 1965). Defendant argues,

however, that it did not have prior knowledge of the danger and that the danger

was open and obvious to Plaintiff. Thus, in order to defeat summary judgment in

favor of Defendant, Plaintiff must raise a genuine issue of material fact as to


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(1) whether Defendant had notice, either actual or constructive, of the deck’s

slipperiness and (2) whether the dangerous condition was open and obvious.

      We deal first with the question whether the dangerous condition was open

and obvious. At the outset, we note that, as with general tort law, our analysis is

guided by the “reasonable person” standard. Lamb by Shepard v. Sears, Roebuck

& Co., 1 F.3d 1184, 1189–90 (11th Cir. 1993) (applying Georgia law and stating

that “[w]hether a danger is open and obvious is determined ‘on the basis of an

objective view” and that “the subjective perceptions of the . . . injured party are

irrelevant”); Lugo v. Carnival Corp., ___ F. Supp. 3d ___, No. 1:15-cv-21319-

KMM, 2015 WL 9583280, at *4 (S.D. Fla. Dec. 31, 2015) (“[The plaintiff’s]

subjective observations are irrelevant in determining whether a duty to warn

existed.”). Thus, the question is whether a reasonable person would have observed

the deck’s wetness and appreciated its resultant slickness. The relevant facts are as

follows. Plaintiff, his wife, and their friends finished dinner and decided to explore

the ship’s outside deck. They exited the restaurant and walked through an

adjoining wine bar to access the deck via a glass sliding door. Although the sun

had set, it is undisputed that (1) the deck was well lit, (2) there was a “heavy fog”

or mist in the air, (3) the deck was visibly “wet and shiny,” and (4) there were

“puddles of water” on the deck’s surface. Under these circumstances, a reasonable

person approaching the outer deck would have perceived the outdoor conditions


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through the “ordinary use of [his] senses” and would have concluded based on

those conditions that the deck’s surface would likely be slicker than usual. Luby,

633 F. Supp. at 42.

       Importantly, however, Plaintiff introduced an expert’s report suggesting that

the deck in question is unreasonably slippery when wet. The report suggests that a

reasonable person would have known that the deck would be slippery, but not as

slippery as it actually was. A jury could credit the expert’s testimony and conclude

that the deck’s visible wetness and the weather conditions would not alert a

reasonable observer to the extent of the deck’s slipperiness. 2 This conclusion is

bolstered by the uncontroverted fact that Mr. Stanner, one of Plaintiff’s travel

companions, also slipped (though did not fall) when exiting onto the deck. Given

these facts, a reasonable jury could conclude that the degree of slipperiness on the

deck was not open and obvious. Thus, Plaintiff has raised a genuine issue of

2
   The magistrate judge held that there was “[i]nsufficient [e]vidence” to show that the deck was
unreasonably slippery. With respect to Plaintiff’s expert, the magistrate judge explained that the
expert did not test the exact spot of the deck on which Plaintiff slipped. Specifically: “[The
expert] tested six different locations on the ship, two of which admittedly were not where the
accident occurred. The other four locations tested were right outside of the wine bar[.]
. . . [H]owever, [the expert] tested the area outside the wrong doorway.” Frasca v. NCL
(Bahamas) Ltd., No. 12-20662-CIV-GOODMAN, 2014 WL 1385806, at *10 (S.D. Fla. Apr. 9,
2014) (internal citations omitted). On appeal, Plaintiff disputes this finding. But even if the
expert did not test the location where the slip occurred, the report would not be inadmissible on
that basis. See Rosenfeld v. Oceania Cruises, Inc., 654 F.3d 1190, 1194 (11th Cir. 2011) (“[The
ship owner] argues that [the expert]’s . . . [tests were] based on ‘incorrect assumption[s]’ about
the location of [the plaintiff]’s fall. However, . . . these arguments attack the weight and the
persuasiveness of [the expert]’s testimony, not its admissibility. [The ship owner] can raise these
arguments on retrial through ‘vigorous cross-examination’ and ‘presentation of contrary
evidence.’”).

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material fact as to that issue. The district court erred in granting Defendant

summary judgment on that ground.

       Defendant’s second argument is that summary judgment is warranted

because it lacked prior notice of the dangerous condition and therefore had no duty

to warn Plaintiff of the deck’s slickness. See Keefe, 867 F.2d at 1322. Plaintiff

points to three pieces of record evidence to show that Defendant did know about

the slippery condition: (1) a safety video that Defendant played on the televisions

in passenger cabins that warned passengers that the ship’s decks could be “very

slippery,” (2) testimony that there were prior slip and falls on the same surface,3

and (3) an expert report concluding that Defendant’s decks did not meet industry

standards for how slippery a cruise ship deck should be. We address only the first

piece of evidence, which is sufficient to raise a genuine issue of material fact

regarding Defendant’s prior notice of the dangerous condition on the deck.

       Defendant’s safety video for the Pride of America, which played on

televisions in passenger cabins, warns passengers that “outside decks will get wet

from salt spray and sea air and can become very slippery.” In analyzing whether

this video warning raises a genuine issue of material fact as to Defendant’s



3
  Plaintiff also points to an injury log detailing accidents that occurred on the ship during the
week of his cruise. The log shows that other passengers also slipped and fell on the decks during
the cruise. However, each slip-and-fall listed occurred after Plaintiff’s. Therefore, those falls
are not probative of Defendant’s knowledge of the dangerous condition prior to Plaintiff’s fall.

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knowledge, our recent decision in Sorrels v. NCL (Bahamas) Ltd., 796 F.3d 1275

(11th Cir. 2015), is instructive. There, we held that the plaintiff had raised a

genuine issue of material fact as to the cruise ship operator’s prior knowledge

where there was testimony that “warning signs were sometimes posted on the pool

deck after rain” to warn passengers of the deck’s slipperiness. Id. at 1288–89. We

find no meaningful distinction between the practice of displaying warning signs on

the one hand and of showing warning videos on the other. Each allows the

inference that the cruise ship operator had “actual or constructive knowledge that

the [surface in question] could be slippery (and therefore dangerous) when wet.” 4

Id. at 1288. It follows that the safety video warning of the decks’ slipperiness

when wet is enough to withstand summary judgment as to Defendant’s notice.

       There is also testimony that Defendant warned passengers about the decks’

slippery nature during a safety drill on the first day of the cruise. Although

Plaintiff does not cite this testimony in support of his argument regarding

Defendant’s prior notice of the dangerous condition, we note that it is probative of

Defendant’s knowledge, just as the warning video is.5



4
  We assume that Defendant’s staff members were aware of the weather conditions, just as we
explained above that a reasonable passenger would have known of the conditions. In any event,
Defendant has not produced any evidence to suggest that its staff were unaware of the weather
conditions at the relevant times.
5
  Plaintiff asserts that he did not see the safety video or hear the warnings concerning wet decks
during the safety drill. But even if Plaintiff did see the warning in the video or hear the warning
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                                               ***

       In sum, Plaintiff raised a genuine issue of material fact as to (1) whether the

slippery condition on the deck was open and obvious and (2) whether Defendant

had prior notice of the slippery condition. Accordingly, the district court erred in

granting Defendant’s motion for summary judgment. 6

               2. Plaintiff’s negligent maintenance claim.

       After Defendant moved for summary judgment, Plaintiff and Defendant

filed a joint stipulation of facts, in which Plaintiff asserted that Defendant “did not




during the drill, a fact-finder will determine whether such warnings were sufficient under the
circumstances.
6
   We disagree with the magistrate judge’s conclusion that summary judgment was also
warranted because Plaintiff’s complaint erroneously alleged that the water on the outer deck
came from a leak in the ceiling rather than rainwater. It is true, as the magistrate judge stated,
that a party cannot raise a new claim at the summary judgment stage. E.g., Gilmour v. Gates,
McDonald & Co., 382 F.3d 1312, 1314–15 (11th Cir. 2004) (rejecting the plaintiff’s attempt to
assert a contract claim in his response to the defendant’s summary judgment motion where the
plaintiff had asserted only tort claims in his complaint). However, the magistrate judge took that
proposition too far when it relied on a footnote in GeorgiaCarry.Org, Inc. v. Georgia, 687 F.3d
1244, 1258 n.27 (11th Cir. 2012), to support the idea that a party cannot introduce additional
facts at the summary judgment stage. The pertinent footnote in GeorgiaCarry.org states that a
plaintiff may not convert a count that fails to state a claim into a count that states a claim by
alleging new facts in response to a summary judgment motion. Here, however, Plaintiff’s
complaint stated a claim for negligence. That claim was premised on Plaintiff’s slip and fall on a
slippery deck on Defendant’s cruise ship, whatever the source of the water causing the fall may
have been. In any event, Defendant was aware of Plaintiff’s causal theory at least two-and-a-half
months before Defendant moved for summary judgment. And Defendant knew that the deck
was wet from “rain and sea spray” long before that. Furthermore, the parties appear to have been
operating under a mutual understanding that rain, rather than a leaky ceiling, was the culprit.
Accordingly, we have no reason to believe that Defendant was ambushed by the erroneous
statement in Plaintiff’s complaint.

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take the appropriate action to construct and maintain the deck in reasonable non-

skid transition and/or warn of the dangerous condition of the deck when wet.” In

response, Defendant moved in limine to exclude all evidence of theories not

presented in Plaintiff’s complaint, including Plaintiff’s theory of negligent

construction and maintenance of the deck.

       The magistrate judge addressed Defendant’s motion in limine in his

summary judgment order, explaining that Plaintiff’s complaint “does not allege a

negligent design, maintenance, selection, or construction theory.” This factual

finding is clearly erroneous, in part. Plaintiff’s complaint does assert a negligent

maintenance claim. 7 Specifically, the introductory section of Plaintiff’s complaint

states that “[Defendant] breached its duty to [Plaintiff] by failing to maintain this

area in a reasonably safe condition under the circumstances.” And Count I alleges

that Defendant “had a duty to operate and maintain its [] cruise ship . . . in a

reasonably safe condition under the circumstances, and to warn of and correct any

dangerous or defective conditions of which [Defendant] knew or should have

known existed or which it created in or near the area where [Plaintiff] was

injured.” Count I goes on to allege, among other things, that Defendant breached

its duty to Plaintiff by “negligently fail[ing] to maintain [the] vessel” and “b.



7
  The magistrate judge correctly concluded, however, that Plaintiff’s complaint does not assert a
negligent design, selection, or construction theory.

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negligently fail[ing] to warn [Plaintiff] about the slippery wet conditions on [the]

deck.” Thus, Plaintiff unambiguously alleged that Defendant was negligent by (1)

failing to maintain the deck in a reasonably safe condition and (2) failing to warn

Plaintiff of the deck’s slippery condition. The magistrate judge clearly erred by

finding otherwise.

      The magistrate judge compounded his error by granting summary judgment

in favor of Defendant on Plaintiff’s negligent maintenance claim because

Defendant’s summary judgment motion addressed only Plaintiff’s failure to warn

claim. Federal Rule of Civil Procedure 56 states that a party seeking summary

judgment must “identify[] each claim . . . or the part of each claim . . . on which

summary judgment is sought.” Fed. R. Civ. P. 56(a). A court may grant a motion

for summary judgment on grounds not raised by a party only “[a]fter giving notice

and a reasonable time to respond. . . .” Fed. R. Civ. P. 56(f). There is no evidence

in the record to suggest that the magistrate judge provided the parties such notice.

Thus, the magistrate judge erred by sua sponte entering summary judgment in

favor of Defendant on Plaintiff’s negligent maintenance claim. See Gentry v.

Harborage Cottages-Stuart, LLLP, 654 F.3d 1247, 1261 (11th Cir. 2011) (“In this




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case, the court entered judgment on claims not identified by Plaintiffs in their Rule

56 motion and without advance notice. This was error.”). 8

                                    III. CONCLUSION

       The magistrate judge’s order granting summary judgment and order

awarding costs to Defendant are REVERSED. See Sorrels, 796 F.3d at 1279 n.1

(“Because we vacate the district court’s summary judgment order, we vacate the

award of costs.”). This action is REMANDED for further proceedings consistent

with this opinion.




8
  The magistrate judge’s conclusion is also problematic insofar as it conflates a negligent
maintenance claim with a negligent construction, design, or selection claim. The evidence
needed to prevail under these theories is different, as is the evidence necessary to withstand
summary judgment. And it is not at all clear that the magistrate judge considered whether there
was any record evidence to support a negligent maintenance theory. Indeed, the judge reasoned
that “[t]o be liable for negligent design or construction, a defendant must have played some role
in the design or construction.” Frasca, 2014 WL 1385806, at *9. But no such showing is
required to prevail on a negligent maintenance claim.

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