              Case: 19-10388    Date Filed: 01/24/2020   Page: 1 of 9


                                                            [DO NOT PUBLISH]



               IN THE UNITED STATES COURT OF APPEALS

                        FOR THE ELEVENTH CIRCUIT
                          ________________________

                             No. 19-10388; 19-12033
                             Non-Argument Calendar
                           ________________________

                      D.C. Docket No. 1:17-cv-21537-FAM



KARL M. BROBERG,
Individually, and as Administrator of the Estate
of Samantha Joyce Broberg, deceased,

                                                               Plaintiff-Appellant,

                                       versus

CARNIVAL CORPORATION,
a Panamanian Corporation
d.b.a. Carnival Cruise Lines,

                                                              Defendant-Appellee.

                           ________________________

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

                                (January 24, 2020)
                Case: 19-10388      Date Filed: 01/24/2020       Page: 2 of 9


Before WILSON, MARTIN, and ANDERSON, Circuit Judges.

PER CURIAM:

       This case concerns a maritime claim for negligent over service of alcohol

relating to the death of Samantha Broberg, who fell overboard while on a Carnival

Corporation cruise ship in May 2016. Her husband, Karl Broberg, brought this

case both individually and as administrator of her estate. After a bench trial, the

district court entered judgment in favor of Carnival and against Broberg. 1 Because

we conclude that the district court did not clearly err, we affirm.

                                               I

       The evidence presented at trial, which is largely undisputed, established the

following. Shortly before 1:00 p.m. on May 12, 2016, Mrs. Broberg embarked on

a cruise with two friends, Sarah Churman and Amy Brady. By 8:00 p.m. that

evening, Mrs. Broberg was served approximately ten drinks. At 10:30 p.m.,

Churman and Brady went to a comedy show, while Mrs. Broberg stayed in the

ship’s casino. Her friends returned at 11:30 p.m., saw Mrs. Broberg for the last

time, and then retired to their cabin. Mrs. Broberg was served six additional drinks

between 11:30 p.m. and approximately 1:00 a.m.




1
 In this opinion, we refer to Samantha Broberg as “Mrs. Broberg” and the appellant Karl
Broberg as “Broberg.”
                                              2
               Case: 19-10388   Date Filed: 01/24/2020   Page: 3 of 9


      Churman testified that she had known Mrs. Broberg since childhood and

was aware that she had a drinking problem in the past. When Churman returned to

the casino at 11:30 p.m., she thought that Mrs. Broberg appeared inebriated

because she was acting “animated” and socializing with people at the bar.

Churman stated that Mrs. Broberg was not physically out of control and she did not

think that Mrs. Broberg was in danger. Similarly, Brady testified that Mrs.

Broberg appeared inebriated when they left her around 11:30 p.m., but she was still

coherent, “not slipping off her chair or anything,” and appeared to be having a

good time.

      Tammy Ramirez, a passenger on the cruise, testified that she woke up

around 12:30 a.m. that evening. She realized her husband was not in the cabin and

went to look for him. Ramirez found him at the casino bar around 1:00 a.m. with

his arm around Mrs. Broberg. She testified that Mrs. Broberg appeared “totally

intoxicated” and that her husband was trying to stabilize Mrs. Broberg. Ramirez

took four photographs of her husband and Mrs. Broberg, which show Mrs. Broberg

leaning on her elbow at the bar, cigarette in one hand, with Ramirez’s husband’s

arm around her. Churman was shown the photos and testified that Mrs. Broberg

appeared more intoxicated in the photos than she had when she last saw her at

11:30 p.m. However, Churman stated that Mrs. Broberg did not appear in danger

or at risk in the photos.

                                         3
               Case: 19-10388    Date Filed: 01/24/2020   Page: 4 of 9


      Lorena Sanchez, a bartender employed by Carnival, testified that she

interacted with Mrs. Broberg for about two minutes that evening while serving her

drinks. She testified that Mrs. Broberg appeared sober, spoke clearly, was not

swaying or staggering, and had no trouble finding her ship credit card or signing

her receipt. Sanchez also testified that Carnival servers and bartenders undergo

alcohol-service training. They are trained to use a “traffic-light” system for

determining whether to continue to serve alcohol. Under this system, they are

trained to observe guest behavior and stop serving them if they are falling asleep,

swaying and staggering, slurring their speech, or spilling drinks. They are also

taught to keep an eye on such a guest and inform security of the situation.

      Another Carnival employee, Emil Plesioaica, was a casino supervisor on the

night of Mrs. Broberg’s fall. He testified that he saw Mrs. Broberg several times

that evening and saw her leave the casino around 2:00 a.m. with a man who was

later identified as Israel Cervantez. Plesioaica saw them leave the casino and go to

an elevator bank leading to the exterior decks. He testified that Mrs. Broberg

appeared okay and walking normally. He did not think she was in danger or

needed help.

      Mrs. Broberg and Cervantez proceeded to an exterior deck alone. A thermal

infrared camera aboard the ship showed that Mrs. Broberg sat on the exterior deck

railing and fell overboard at 1:57 a.m. Cervantez never reported her fall. Instead,

                                          4
                Case: 19-10388      Date Filed: 01/24/2020      Page: 5 of 9


he returned to the bar for another beer. 2 Churman and Brady realized that Mrs.

Broberg was missing the following morning and reported her missing at 11:00 a.m.

Carnival reported her as having fallen overboard to the authorities about 15 hours

after her fall, but her body was never recovered.

       The parties disputed whether Carnival served Mrs. Broberg several

additional drinks that evening which are not accounted for by receipts or Mrs.

Broberg’s ship credit card. Broberg’s toxicology expert opined that if Mrs.

Broberg was served those additional drinks, then she would have appeared visibly

intoxicated when she was last served drinks around 1:00 a.m. However, the expert

testified that if those drinks were excluded, then she would not have been visibly

intoxicated at the time of last service.

                                              II

       After a bench trial, the district court announced its findings of fact and

conclusions of law. The court stated that the key issue was whether “Mrs. Broberg

was under the influence of alcohol to such an extent as to be a danger to herself

and whether Carnival was on notice that she was so intoxicated, yet continued to

serve her alcohol, and as a result, she fell off the ship’s deck.” The court found

that Ramirez’s photos, taken of Mrs. Broberg at around 1:36 a.m., showed a “tired



2
 The FBI and the U.S. Attorney’s Office investigated the matter and determined that they were
unable to charge Cervantez with a crime.
                                              5
              Case: 19-10388     Date Filed: 01/24/2020    Page: 6 of 9


and . . . somewhat-intoxicated Mrs. Broberg,” in which she appeared “slouched

and with tired eyes,” but still holding a cigarette in her hand. The court concluded

that she was indeed intoxicated at that time. The court found that Sanchez, who

last served Mrs. Broberg at 12:51 p.m., testified that Mrs. Broberg did not appear

intoxicated at that time. It also found that Plesioaica testified that Mrs. Broberg

did not appear intoxicated when he last saw her. The court found that this was

consistent with the testimony of Mrs. Broberg’s friends, Churman and Brady, who

testified that they thought she was inebriated but appeared “fine” and in control of

her faculties at around 11:30 p.m. Accordingly, the court found that Carnival was

not on notice that Mrs. Broberg was intoxicated to the point of being in danger.

      The district court entered final judgment in favor of Carnival and entered a

cost judgment for $4,403.69 against Broberg for Carnival. Broberg separately

appealed from the final judgment and the cost judgment; the appeals have been

consolidated in this case.

                                          III

      On appeal from a district court’s judgment following a bench trial, we

review a district court’s factual findings for clear error and legal conclusions de

novo. HGI Assocs., Inc. v. Wetmore Printing Co., 427 F.3d 867, 873 (11th Cir.

2005). We may reverse a district court’s factual findings “if, after viewing all the




                                           6
               Case: 19-10388     Date Filed: 01/24/2020     Page: 7 of 9


evidence, we are ‘left with the definite and firm conviction that a mistake has been

committed.’” Id.

      Federal maritime law governs this appeal because the alleged tort occurred

on navigable waters. Everett v. Carnival Cruise Lines, 912 F.2d 1355, 1358 (11th

Cir. 1990). “Under maritime law, the owner of a ship in navigable waters owes

passengers a duty of reasonable care under the circumstances.” Sorrels v. NCL

(Bahamas) Ltd., 796 F.3d 1275, 1279 (11th Cir. 2015) (internal quotation marks

omitted). To prevail on a negligence claim in a maritime case, the plaintiff must

prove 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.” Franza v. Royal Caribbean Cruises, Ltd., 772 F.3d 1225, 1253 (11th Cir.

2014).

      When evaluating a cruise line’s conduct, “as a prerequisite to imposing

liability . . . the carrier [must] 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). A cruise line’s liability “hinges on whether it knew

or should have known about” the risk-creating condition. Id.

      Broberg argues that the district court clearly erred because it failed to

account for several additional drinks that Carnival served Mrs. Broberg, and failed

                                            7
              Case: 19-10388     Date Filed: 01/24/2020   Page: 8 of 9


to mention the testimony of Ramirez when it announced its findings of fact and

conclusions of law. Broberg also argues that the district court’s finding that

Carnival was not on notice of the extent of Mrs. Broberg’s intoxication was

implausible, given Ramirez’s testimony and the photos she took. Additionally,

Broberg contends that the court erred by comparing the testimony of Churman and

Brady with the testimony of the Carnival employees because they observed Mrs.

Broberg at different times.

      Although we have not previously considered a maritime negligence claim

based on over service of alcohol, the district court properly framed the question as

whether Carnival was on notice that Mrs. Broberg was intoxicated to the extent

that she was in danger. Keefe, 867 F.2d at 1322. The district court did not clearly

err in finding that Carnival was not on notice. At trial, Carnival’s employees

testified that when they observed Mrs. Broberg in the last hour before she fell

overboard, she was not visibly intoxicated. Churman and Brady testified that she

appeared inebriated at 11:30 p.m., but also that she appeared fine and that they

were not concerned for her safety. Indeed, they did not report her as missing for

approximately two hours the following morning because they did not suspect that

she was in any danger based on her behavior the night before. Broberg’s

toxicology expert testified that Mrs. Broberg would have appeared visibly

intoxicated if she had consumed every drink that Broberg argued she was given.

                                          8
              Case: 19-10388     Date Filed: 01/24/2020    Page: 9 of 9


But the expert also testified that she would not have appeared visibly intoxicated if

she consumed only the drinks for which there was documentation. Broberg

correctly asserts that the district court did not reference Ramirez’s testimony that

Mrs. Broberg appeared very intoxicated in its findings of fact. That does not mean

that the court ignored that evidence. Moreover, the court mentioned Ramirez’s

photos and found that her testimony regarding the timing of those photos was

likely inaccurate.

      Here, viewing all the evidence presented at trial, we are not left with a

“definite and firm conviction” that the district court erred in concluding that

Carnival was not on notice that Mrs. Broberg was so intoxicated that she was in

serious danger. See HGI Assocs., Inc., 427 F.3d at 873. Accordingly, we affirm.

AFFIRMED.




                                          9
