         Case: 16-16580   Date Filed: 06/21/2018   Page: 1 of 13


                                                        [DO NOT PUBLISH]



           IN THE UNITED STATES COURT OF APPEALS

                   FOR THE ELEVENTH CIRCUIT
                     ________________________

                           No. 16-16580
                       Non-Argument Calendar
                     ________________________

                  D.C. Docket No. 1:15-cv-21854-RNS


FREDDIE APONTE,

                                                         Plaintiff - Appellant,

FANNY APONTE,

                                                                     Plaintiff,

                                versus

ROYAL CARIBBEAN CRUISE LINES LTD.,

                                                                   Defendant,

ROYAL CARIBBEAN CRUISES LTD.,

                                                        Defendant - Appellee.

                     ________________________

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

                            (June 21, 2018)
                Case: 16-16580       Date Filed: 06/21/2018       Page: 2 of 13


Before WILLIAM PRYOR, ROSENBAUM, and ANDERSON, Circuit Judges.

PER CURIAM:

       Freddie Aponte sued Royal Caribbean Cruises, Ltd. (“Royal Caribbean”), to

recover damages for injuries after he slipped and fell on a puddle of soap in the

restroom of one of Royal Caribbean’s cruise ships. The district court granted

summary judgment to Royal Caribbean, and Aponte appealed. Because genuine

issues of material fact remain in the record, we vacate and remand.

                                                I.

       We begin by summarizing the facts in the light most favorable to Aponte.1

Aponte and his wife Fannie were passengers on the Royal Caribbean cruise ship

Freedom of the Seas in May 2014. Late one evening, Aponte and Fannie went to

an upper deck (Deck 5) to get a snack. When they reached the top of the stairs,

Aponte decided to use the restroom.

       As Aponte entered the Deck 5 restroom, he saw to his left a crewmember

standing at the sink nearest the door (the “first sink”), dumping water into the sink

from a small, red bucket. Aponte walked past the crewmember and the restroom’s

four sinks—all to his left—to the urinals. He saw nothing on the ground as he

went. The crewmember left the restroom while Aponte was at the urinal. During


       1
          “[F]or summary judgment purposes, our analysis must begin with a description of the
facts in the light most favorable to the plaintiff.” Lee v. Ferraro, 284 F.3d 1188, 1190 (11th Cir.
2002).
                                                2
               Case: 16-16580       Date Filed: 06/21/2018      Page: 3 of 13


this time, Aponte did not hear any noise other than the door opening and closing.

Notably, he did not hear anything fall to the floor.

       Aponte washed his hands in the sink nearest the wall that divided the sinks

from the urinals (the “last sink”). He then decided to use the paper towel dispenser

near the first sink instead of the air dryer to his right. He turned to his left and

started walking toward the dispenser. As he reached out to grab a towel, he slipped

and fell, hitting the countertop with his arm on the way down and then landing on

the floor on his lower back. After he fell, he saw on the floor a puddle of soap

roughly one-and-a-half feet in diameter and a plastic soap bottle. The bottle was

roughly one foot tall and three inches in diameter.

       Aponte sued Royal Caribbean, alleging a single count of negligence. 2 He

claimed that, as a result of the accident, he sustained injuries to his neck and back,

which ultimately required two surgeries. He also testified that he suffered nerve

injuries to his right arm that affected him from his wrist to his neck.

       On cross-motions for summary judgment, the district court granted Royal

Caribbean’s motion and denied Aponte’s motion. The court determined that Royal

Caribbean was not negligent because there was no evidence that it had notice of

the puddle of soap and because the puddle of soap was an open and obvious


       2
          Fannie brought a claim for loss of consortium, which the district court dismissed and
which is not raised on appeal. Accordingly, we deem this claim abandoned. See Sapuppo v.
Allstate Floridian Ins. Co., 739 F.3d 678, 680–81 (11th Cir. 2014).
                                              3
             Case: 16-16580     Date Filed: 06/21/2018   Page: 4 of 13


condition. The court also found that Aponte “likely” could not establish a causal

link between the fall and his injuries. Aponte now appeals.

                                        II.

      Initially, we address a question of the district court’s subject-matter

jurisdiction. See Mallory & Evans Contractors & Eng’rs, LLC v. Tuskegee Univ.,

663 F.3d 1304, 1304 (11th Cir. 2011) (“We are obligated to raise concerns about

the district court’s subject matter jurisdiction sua sponte.”). We asked the parties

to address on what basis the court exercised jurisdiction—whether diversity

jurisdiction, 28 U.S.C. § 1332, or admiralty jurisdiction, 28 U.S.C. § 1333—and

whether that basis was adequately alleged in the complaint. After reviewing the

parties’ responses, we conclude, as both parties now agree, that the complaint

invoked and established admiralty jurisdiction.

      The district court had admiralty jurisdiction 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). The complaint’s ineffective jury demand does

not deprive the court of jurisdiction. Cf. St. Paul Fire & Marine Ins. Co. v. Lago

Canyon, Inc., 561 F.3d 1181, 1188 (11th Cir. 2009) (concluding, in an admiralty


                                         4
              Case: 16-16580    Date Filed: 06/21/2018   Page: 5 of 13


case, that the court did not err in striking a demand for a jury trial). And the

complaint did not need to comply with Rule 9(h), Fed. R. Civ. P., because that rule

applies only when “both admiralty and some other ground of federal jurisdiction

exist.” Id. Here, the parties are not diverse, so § 1333 is the sole basis for

jurisdiction. With the district court’s jurisdiction established, we turn now to the

merits of the court’s ruling.

                                        III.

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

considering the facts and drawing reasonable inferences in the light most favorable

to the non-moving party. Mann v. Taser Int’l, Inc., 588 F.3d 1291, 1303 (11th Cir.

2009). Summary judgment is appropriate when “the movant 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). “[G]enuine disputes of facts are those in

which the evidence is such that a reasonable jury could return a verdict for the non-

movant.” Mann, 588 F.3d at 1303 (quotation marks omitted).

      We review a district court’s application of its local rules for an abuse of

discretion, finding such abuse only when the plaintiff demonstrates that the district

court made a clear error of judgment. Id. at 1302.

                                         A.




                                         5
             Case: 16-16580     Date Filed: 06/21/2018   Page: 6 of 13


      We first consider the district court’s apparent decision to exclude certain

evidence cited by Aponte in his response to Royal Caribbean’s motion for

summary judgment under Northern District of Georgia Local Rule 56.1.

      Local Rule 56.1 “demands that the non-movant’s response contain

individually numbered, concise, non-argumentative responses corresponding to

each of the movant’s enumerated material facts.” Mann, 588 F.3d at 1302–03

(holding that plaintiffs’ response failed to comply with local rule 56.1 because it

was “convoluted, argumentative, and non-responsive”); see also N.D. Ga. R.

56.1(B)(2)a. In applying Local Rule 56.1 at the summary judgment stage, the

district court should “disregard or ignore evidence relied on by the respondent—

but not cited in its response to the movant’s statement of undisputed facts—that

yields facts contrary to those listed in the movant’s statement.” Reese v. Herbert,

527 F.3d 1253, 1268 (11th Cir. 2008).

      A Local Rule 56.1 statement, however, “is not itself a vehicle for making

factual assertions that are otherwise unsupported in the record.” Mann, 588 F.3d at

1303. Therefore, we must still review the materials submitted by the movant “to

determine if there is, indeed, no genuine issue of material fact.” Id. That is, even

where a summary-judgment motion is unopposed or deemed unopposed, the

moving party still bears the burden of showing, based on evidence in the record,

that it is entitled to judgment as a matter of law. Id. In evaluating whether an


                                         6
             Case: 16-16580     Date Filed: 06/21/2018   Page: 7 of 13


unopposed summary-judgment motion should have been granted, we “confine our

review of the record to the materials submitted by the [defendant]” in support of its

motion. Id.; Reese, 527 F.3d at 1269 n.26.

      In this case, the district court noted multiple instances of Aponte’s failure to

properly oppose Royal Caribbean’s statement of material facts. In some instances,

Aponte’s denial of a fact was paired with a citation to the entirety of a deposition,

rather than with “specific citations to evidence (including page or paragraph

number).” See N.D. Ga. R. 56.1(B)(2)a.(2); Doc. 82 at 4, ¶ 22 (“Denied. . . . (See

[Jamani] Stephen and Corporate Representative’s deposition)”); id. at 5, ¶ 25

(“Denied – disputed fact. (See Corporate Representative deposition)”). In other

instances, Aponte included argumentative statements that did not directly respond

to the fact at issue. See N.D. Ga. R. 56.1(b)(2)a.(2); Doc. 82 at 5, ¶ 31 (“[T]his is

an improper basis to challenge causation as this is a matter of proof for the jury,

and which is supported by Rule 26 disclosures and reports.”).

      The district court did not disregard Aponte’s response as a whole, however.

Rather, the court disregarded Aponte’s cited evidence when his response to one of

Royal Caribbean’s facts was inadequate. Altogether, it appears that the court did

not consider three pieces of evidence: (1) the deposition of Jamani Stephen, a

member of the custodial staff on the Freedom of the Seas; (2) the full deposition of

Royal Caribbean’s corporate representative; and (3) a Rule 26 expert report from


                                          7
              Case: 16-16580     Date Filed: 06/21/2018     Page: 8 of 13


Dr. Nizam Razack, who opined that Aponte needed surgery as a result of the

injuries he sustained on the cruise ship in May 2014.

      We cannot conclude that the district court clearly erred in excluding this

evidence for non-compliance with Local Rule 56.1. See Mann, 588 F.3d at 1302–

03. In conducting our review of the court’s summary-judgment ruling, therefore,

we largely “confine our review of the record to the materials submitted by [Royal

Caribbean]” in support of its summary-judgment motion. 3 See id. at 1303. While

Aponte denies that his response was inadequate under Local Rule 56.1, he also

argues that summary judgment was still inappropriate even if we look solely to the

materials submitted by Royal Caribbean. We consider that question now.

                                           B.

      Maritime law governs the liability of a cruise ship for a passenger’s slip and

fall. Sorrels v. NCL (Bahamas) Ltd., 796 F.3d 1275, 1279 (11th Cir. 2015). To

prevail on a maritime negligence 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 Cir. 2012).


      3
         Besides the excluded evidence and Aponte’s own deposition, which Royal Caribbean
submitted with its motion, Aponte’s response cited just a few other exhibits, including a
photograph of the restroom. These additional exhibits are not material to our decision.
                                           8
             Case: 16-16580     Date Filed: 06/21/2018   Page: 9 of 13


      “Under maritime law, the owner of a ship in navigable waters owes

passengers a duty of reasonable care under the circumstances.” Sorrels, 796 F.3d

at 1279 (quotation marks omitted). That standard 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). Regardless of notice, however, there is no duty to warn of

dangers that are open and obvious. See, e.g., Deperrodil v. Bozovic Marine, Inc.,

842 F.3d 352, 357 (5th Cir. 2016); Samuels v. Holland Am. Line-USA, Inc., 656

F.3d 948, 954 (9th Cir. 2011). Therefore, a cruise-ship operator is not liable if it

did not have notice of the danger or if the danger was open and obvious. See

Keefe, 867 F.2d at 1322; Deperrodil, 842 F.3d at 357.

      In granting Royal Caribbean summary judgment, the district court made two

key determinations. First, the court found that Royal Caribbean did not have actual

or constructive notice of the puddle of soap. While Aponte saw a crewmember in

the restroom, the court explained, there was no evidence establishing whether the

puddle was on the floor while the crewmember was there or whether the

crewmember was aware of the puddle or the soap bottle. Second, the court found

that Royal Caribbean had no duty to warn because there was “no dispute that the

puddle of soap was open and obvious,” citing Aponte’s testimony that he

“obviously” would have seen the puddle on the floor had he looked at it.


                                         9
             Case: 16-16580     Date Filed: 06/21/2018    Page: 10 of 13


      We conclude that there are genuine issues of material fact with respect to

both matters. With regard to notice, a reasonable factfinder could conclude that the

puddle of soap was on the floor before Aponte entered the restroom and while the

crewmember was at the sink.         Given Aponte’s description of the soap bottle

(roughly one foot tall and three inches in diameter) and the amount of soap on the

floor (roughly one-and-a-half feet in diameter), it is reasonable to infer both that

the soap on the floor came from the bottle and that Aponte would have heard the

relatively large bottle hitting the floor if it had fallen while he was in the restroom.

Yet Aponte testified that he did not hear anything hit the floor or any noise other

than the door opening and closing when the crewmember left the restroom. These

facts suggest that the soap bottle had fallen to the floor before Aponte entered the

restroom and that the puddle of soap was present on the floor while the

crewmember was dumping water into the first sink.

      Further, a reasonable factfinder could conclude that the crewmember knew

or should have known about the puddle of soap.              Aponte testified that the

crewmember was standing at the first sink. He also testified that he slipped on the

puddle of soap while reaching out to grab a towel at the dispenser to the left of that

same sink. These facts place the crewmember in the immediate vicinity of a

puddle of soap that was one-and-a-half feet in diameter. Drawing all reasonable

inferences in Aponte’s favor, a factfinder could conclude that the crewmember


                                          10
             Case: 16-16580    Date Filed: 06/21/2018   Page: 11 of 13


knew or should have known about the puddle of soap at his feet and either

removed the hazard or warned Aponte of it. Cf. Alterman Foods, Inc. v. Ligon,

272 S.E.2d 327, 330 (Ga. 1980) (“In some cases the proprietor may be held to have

constructive knowledge if the plaintiff shows that an employee of the proprietor

was in the immediate area of the dangerous condition and could have easily seen

the substance and removed the hazard.” (quotation marks omitted)).

      We also conclude that there is a genuine issue of material fact as to whether

the condition was open or obvious. To determine whether a condition is open and

obvious, we ask whether a reasonable person would have observed the condition

and appreciated the nature of the condition. See Lancaster v. Carnival Corp., 85

F.Supp.3d 1341, 1345 (S.D. Fla. 2015); Lugo v. Carnival Corp., 154 F.Supp.3d

1341, 1345–46 (S.D. Fla. 2015).

      Here, a reasonable factfinder could conclude that the puddle of soap was not

open and obvious to a reasonable person. Aponte described a “clearish” puddle of

soap on the tile of the restroom floor in the area immediately in front of the sinks.

He testified that he did not see anything on the floor when he walked past that area

to the urinals and that he was not looking at the floor when he slipped because he

was looking at and reaching for the paper towel dispenser. Although Aponte

testified that he “obviously” would have seen the puddle of soap if he had looked

directly at it, the fact that the puddle of soap was capable of being observed does


                                         11
             Case: 16-16580    Date Filed: 06/21/2018   Page: 12 of 13


not necessarily make it open and obvious to a reasonable person. What a plaintiff

actually perceives is, of course, relevant to the determination of what a reasonable

person would perceive under the same circumstances. But Aponte did not testify

that he saw the puddle and still stepped in it. Rather, his testimony was that he did

not see anything on the floor of the restroom until after he slipped. We cannot

conclude, as a matter of law, that a reasonably prudent person through the exercise

of common sense and the ordinary use of his senses would have clearly seen the

“clearish” puddle of soap on the floor.

      Beyond issues of notice and whether the condition was open and obvious,

the district court briefly addressed whether Aponte could establish a causal link

between his fall and his current injuries. The court stated that Royal Caribbean

“likely . . . would prevail on its argument that Aponte failed to show causation.”

But the district court did not actually find that Royal Caribbean met its initial

burden at summary judgment on that issue. See Mann, 588 F.3d at 1303.

      Royal Caribbean responds that we can affirm on any ground supported by

the record, and, in its view, it was clearly entitled to summary judgment. We are

not so sure, however. Royal Caribbean’s evidence—the deposition of Dr. Scott

Sherman, who treated Aponte before and after the accident—related to Aponte’s

back and neck injuries and did not address his claimed nerve injuries to his right

arm. In addition, there was some indication from the doctor’s testimony that


                                          12
              Case: 16-16580      Date Filed: 06/21/2018    Page: 13 of 13


Aponte’s back problems worsened after the accident, though perhaps not

significantly so. The court also did not decide whether Aponte’s injuries were of

the type requiring expert testimony to establish a causal link or whether a lay jury

could decide the matter based on common knowledge. Given the ambiguities and

unresolved issues in the record, and consistent with our general practice, we

decline to decide this matter in the first instance. See Wilkerson v. Grinnell Corp.,

270 F.3d 1314, 1322 & n.4 (11th Cir. 2001) (noting our preference for the district

court to address issues in the first instance).

                                           IV.

       For the reasons stated, we vacate the grant of summary judgment in favor of

Royal Caribbean and remand for further proceedings consistent with this opinion.4

       VACATED AND REMANDED.




       4
         Because we find a genuine issue of material fact as to whether Royal Caribbean had
notice of the dangerous condition, we need not and do not consider Aponte’s alternative
argument for holding Royal Caribbean liable in the absence of notice.
                                            13
