New York court shreds Tough Mudder online release and arbitration clause because the reader could assent to the release without reading the release.
Posted: August 24, 2020 Filed under: New York, Racing, Release (pre-injury contract not to sue) | Tags: acle Course, Arbitration, Arbitration clause, assent, box, click, click-wrap, conspicuous, Consumer, Electronic Release, hyperlink, Mediation, New York General Obligations Law, Notice, obstacle, online, prudent, Recreation, registered, Registration, Release, screen, screenshots, scrollable, scrolling, Tough Mudder, unenforceable, user, Venue, Void, webpage, website Leave a commentThe clauses in the release were not clearly identified and could be avoided by plaintiff. Release was found to be void because if violated New York General Obligations Law § 5-326
State: New York, Supreme Court of New York, Kings County
Plaintiff: Richard E. Scotti et al. (Richard E. Scotti and Joseph Russo)
Defendant: Tough Mudder Incorporated et al. (Tough Mudder Incorporated and Tough Mudder Event Production Incorporated)
Plaintiff Claims: Negligence
Defendant Defenses: Arbitration Clause & Release
Holding: for the Plaintiffs
Year: 2019
Summary
Tough Mudder has been having a tough time in court. This was another court that found several ways to void the release. Tough Mudder was attempting to compel arbitration; however, the arbitration clause in the release did not meet the legal requirements of New York Law. The release itself failed because if violated New York General Obligations Law § 5-326 which voids releases for recreation.
Facts
This personal injury action stems from an accident which occurred on July 23, 2016, when the plaintiffs Richard E. Scotti and Joseph Russo participated in the “Tough Mudder,” a physically challenging obstacle course event (hereinafter the TM event), which took place at 1303 Round Swamp Road, Old Bethpage, New York. Defendants Tough Mudder Incorporated and Tough Mudder Event Production Incorporated (collectively, Tough Mudder) are the business entities that organized the TM event. Plaintiffs commenced the within action on or about November 17, 2017, against Tough Mudder alleging that they each sustained injuries as a result of defendants’ negligent operation of an activity at the event, referred to as the “salmon ladder.” Tough Mudder joined issue on or about December 20, 2017, with the service of a verified answer. In their answer, Tough Mudder denied all material allegations and asserted various affirmative defenses, including that the plaintiffs’ action is barred by the participation/registration agreement, which included an arbitration clause.
Tough Mudder now moves, pursuant to CPLR 7501 and 7503, to compel arbitration, arguing that the plaintiffs are barred from pursuing the instant action in this court because they each waived the right to sue by virtue of agreeing to arbitrate any “disputes, controversies, or claims” arising out of their participation in the TM event. Tough Mudder claims that the plaintiffs each entered into an agreement to arbitrate all claims related to their participation in the TM event when they completed an online Internet registration form. In support of this contention, Tough Mudder has submitted the sworn affidavit of Jenna Best, the manager of customer relations for Tough Mudder Incorporated. Best avers that she is fully familiar with the TM event online registration process as it existed in 2016 when the plaintiffs registered for the TM event at issue. Tough Mudder has submitted copies of the online registration forms that the plaintiffs allegedly completed for the TM event (Cash affirmation, exhibit D). Best states that, during the online registration process, the plaintiffs were required to scroll down to a section containing the “Participant Waiver and Course Rules” (hereinafter PWCR), a document version of which has been submitted herein She contends that the full text of the PWCR was contained in a box on the screen, which could be read by scrolling down in the text box. Best contends that the initial visible content of the scrollable box, which preceded the full PWCR document, which could be read in its entirety by scrolling down…
Below the box containing the scrollable PWCR was another box next to the statement: “I agree to the above waiver.” Best avers that it was necessary for the plaintiffs, or any other registrant, to click on the box to indicate his or her consent to the PWCR in order for the registrant to complete his or her registration for the TM event. According to Best, the Internet registration form cannot proceed to the payment page, and registration cannot be completed, until the registrant checks the box indicating his or her consent to the PWCR She further avers that both plaintiffs did in fact click on the box indicating their consent to the PWCR, as otherwise they would not have been able to participate in the TM event. Based upon the foregoing, Tough Mudder contends that the plaintiffs agreed to the terms of the online waiver, which included the arbitration clause, and, therefore, are barred from pursuing the instant action.
Analysis: making sense of the law based on these facts.
The court looked at the plaintiff’s arguments first.
In opposition, plaintiffs argue that the arbitration provision at issue is unenforceable because Tough Mudder has failed to establish that they actually agreed to it. In this regard, plaintiffs point out that the webpage where the PWCR was located contained a text box that did not show the entire document. In order to read the full PWCR, including the arbitration provision, plaintiffs contend it would have been necessary to scroll down through many screens of text using the arrows on the right-hand side of the text box. The PWCR fills seven single-spaced pages of text.
On top of that, the court stated the evidence presented by the defendant Tough Mudder was not sufficient to prove that either plaintiff checked the box or agreed to the terms of the contract.
Plaintiffs further argue that Tough Mudder has failed to proffer any evidence that either plaintiff actually signed/checked the consent box, or any evidence identifying the computers or electronic devices from which their respective registrations were completed.
The burden was on Tough Mudder to prove the plaintiffs signed the agreement which contained the arbitration clause.
It is well settled that “[a] party to an agreement may not be compelled to arbitrate its dispute with another unless the evidence establishes the parties’ clear, explicit and unequivocal agreement to arbitrate” When one party seeks to compel the other to arbitrate any disputes between them, the court must first determine whether the parties made a valid arbitration agreement. The party seeking arbitration bears the burden of establishing that an agreement to arbitrate exists
To prove the existence of the contract and the agreement to the arbitration clause the courts look for evidence that the website user had actual or constructive knowledge of clauses in the contract.
The question of whether there is agreement to accept the terms of an online contract turns on the particular facts and circumstances. Courts generally look for evidence that a website user had actual or constructive notice of the terms by using the website. Where the person’s alleged consent is solely online, courts seek to determine whether a reasonably prudent person would be put on notice of the provision in the contract, and whether the terms of the agreement were reasonably communicated to the user. In Specht v Netscape Communications Corp, the court emphasized that “[r]easonably conspicuous notice of the existence of contract terms and unambiguous manifestation of assent to those terms by consumers are essential if electronic bargaining is to have integrity and credibility”
The seven-page agreement had no headings, no italics, no bold print, nothing to indicate the agreement covered more issues than were identified in the heading. The heading stated:
“ASSUMPTION OF RISK, WAIVER OF LIABILITY, AND INDEMNITY AGREEMENT “PARTICIPANTS: READ THIS DOCUMENT CAREFULLY BEFORE ACCEPTING. THIS DOCUMENT HAS LEGAL CONSEQUENCES AND WILL AFFECT YOUR LEGAL RIGHTS AND WILL ELIMINATE YOUR ABILITY TO BRING FUTURE LEGAL ACTIONS.”
No where in the heading was a mention of a mandatory arbitration clause. (Ambush by small print was eliminated by the courts in the 70’s, this lawsuit was in 2019; someone should have realized that by now.)
The court the defined the agreement as one of four types of agreements found online “the four “general types of online consumer contracts [are identified as] (a) browsewrap; (b) clickwrap; (c) scrollwrap; and (d) sign-in-wrap.”
Based on the evidence presented by the defendants the court found the agreement was a “clickwrap” agreement.
Here, the PWCR at issue appears to be a click-wrap agreement as identified in Berkson in that the clickable box is located directly below the scrollable text box that allegedly contained the full text of the agreement. Only by scrolling down in the text box would the user see all of the terms of the PWCR, including the arbitration clause at issue.
The court then held that you could agree to the agreement without scrolling through the agreement; therefore, you could sign the agreement without knowing what was in the agreement.
However, the user could proceed to complete the registration process without necessarily scrolling down through the text box to view the full document, thereby rendering it a click-wrap agreement.
The plaintiff could be bound by a clickwrap agreement, but only if they were given sufficient opportunity to read the agreement and agree to it. There must also be a way to decline a click-wrap agreement.
A party may be bound to a click-wrap agreement by clicking a button declaring assent, so long as the party is given a “sufficient opportunity to read the . . . agreement, and assents thereto after being provided with an unambiguous method of accepting or declining the offer.”
Then the court closed the door on the defendants attempt to compel arbitration.
…[a] court cannot presume that a person who clicks on a box that appears on a . . . screen has notice of all contents not only of that page but of other content that requires further action (scrolling, following a link, etc.). The presentation of the online agreement matters: Whether there was notice of the existence of additional contract terms presented on a webpage depends heavily on whether the design and content of that webpage rendered the existence of terms reasonably conspicuous. Clarity and conspicuousness of arbitration terms are important in securing informed assent.” (Internal quotation marks and citations omitted.)
Understand, the court did not say the contract was invalid; the court was only looking at the issue of the arbitration clause. Under New York law for the arbitration clause to be valid, the plaintiff had to “had actual or constructive notice of the terms….” Since there was no notice of arbitration in the heading, and you could agree to the agreement without reading it, the agreement failed the heightened requirements to prove an arbitration clause existed between the parties.
Thus, on a motion to compel arbitration, a valid agreement to arbitrate exists where the notice of the arbitration provision was reasonably conspicuous, and manifestation of assent is unambiguous as a matter of law. Therefore, the issue herein is whether Tough Mudder’s website registration screen put a reasonably prudent user on inquiry notice of the relevant terms of the PWCR, particularly the arbitration clause at issue.
Then the court jumped on the issue that the evidence in front of the court did not prove their argument. Black-and-white copies were provided to the court rather than color copies. The font size was small and barely legible.
In addition, the court notes that the purported copies of the plaintiffs’ respective online registration forms (screenshots) submitted by Tough Mudder are black and white copies of poor quality, the text of which is in an extremely small font size and is barely legible. Tough Mudder has not proffered any color copies of any screenshots depicting its online registration process. In addition, the full text of the PWCR, as provided by Tough Mudder, is not a screenshot but a black and white document, consisting of seven pages of single-spaced language, all in the same font and size, with no underlined, hyperlinked or bolded terms.
The court then attacked how the document would have been presented online from the evidence in front of it.
In order to view the “Mediation and Arbitration” clause, the plaintiffs, by using the arrows inside the text box, needed to scroll down significantly beyond what is initially visible, to page four of the seven-page single-spaced PWCR document. The court additionally notes that, as with the entire document, the arbitration provision is neither underlined, bolded nor hyperlinked. Further, since this court has only been provided with a black and white document, not screenshots, it is unable to discern how the subject arbitration clause actually appeared to the user. Indeed, “[i]n the context of web-based contracts, [courts] look to the design and content of the relevant interface to determine if the contract terms were presented to the offeree in a way that would put her [or him] on inquiry notice of such terms
It is laughable that in 2019 you read a case where the court complains about the type being too small to read.
The court found that based on the evidence in front of it, there was not an arbitration clause between the parties.
The court then looked at the release.
New York General Obligations Law § 5-32 voids releases for recreation activities where a fee is paid.
That statute protects consumers from the effect of form releases printed on membership applications and similar documents when such releases are offered in connection with the use of a “place of amusement or recreation” for which a fee is paid
The court found New York General Obligations Law § 5-32 voided the release.
The terms of this statute apply to the plaintiffs herein, who paid a fee to use Tough Mudder’s obstacle course, which, contrary to Tough Mudder’s assertion, is a place of recreation. Indeed, the nature of the TM event as described by Tough Mudder—a rigorous, athletic competition requiring proper training—is comparable to the other activities, such as horseback riding, auto racing, cycling and skiing, which have been held to be covered by General Obligations Law § 5-326.
The final issue was the agreement had a severability clause. This is a clause that states if a portion of the contract is found unenforceable or void by the court it does not void the entire document. Only the portions the court finds void, are severed from the document, and the document without those clauses can be used as evidence in court.
However, as Tough Mudder correctly argues, the unenforceable provisions of the PWCR do not nullify the entire agreement. Where an agreement consists partially of an unlawful objective, the “court may sever the illegal aspects . . . and enforce the legal ones, so long as the illegal aspects are incidental to the legal aspects and are not the main objective of the agreement.
Which is exactly what the court did.
Here, the waiver of liability provision in the PWCR releasing Tough Mudder from liability, as well as the arbitration clause, are severable from the remainder of the PWCR agreement on the ground that the unenforceable provisions are incidental to the legal aspects and not the main objective of the agreement. Further, the severability provision in the PWCR reflects the intent of the parties that the legal provisions of the agreement be severed from any provisions determined to be void and unenforceable.
So, hopefully the seven-page document had language that could be used to prove assumption of the risk by the defendants.
So Now What?
On paper, this release might have survived. However, there are more issues with online releases. This is the second case where the court found the proof offered by the defense to prove the release was signed was found to be lacking because of poor copies of the website. That is just stupid. With color printers now days, computers and monitors that can be brought into court or linked to in a document you should be able to have anyone see what the document actually looked and how the software performed.
When you have several different issues in a contract, it is common to identify the new issues with a heading or bold type. In this case not only where there are new issues in the release besides release language there was an arbitration agreement. New York, as most states, have specific language in how an arbitration agreement should be written. This release failed that test.
The arbitration agreement was an attempt to lose the value of the entire release because releases for recreation where a person pays money to recreation are void. New York General Obligations Law § 5-32
§ 5-326. Agreements exempting pools, gymnasiums, places of public amusement or recreation and similar establishments from liability for negligence void and unenforceable
Every covenant, agreement or understanding in or in connection with, or collateral to, any contract, membership application, ticket of admission or similar writing, entered into between the owner or operator of any pool, gymnasium, place of amusement or recreation, or similar establishment and the user of such facilities, pursuant to which such owner or operator receives a fee or other compensation for the use of such facilities, which exempts the said owner or operator from liability for damages caused by or resulting from the negligence of the owner, operator or person in charge of such establishment, or their agents, servants or employees, shall be deemed to be void as against public policy and wholly unenforceable.
The big issue the court seemed to be pushing was the game of hide and seek that Tough Mudder plays both with its courses and with the release. Contestants never know what they will encounter when competing in a Tough Mudder event. Consequently, you eliminate a lot of the defense of assumption of the risk. You can’t assume a risk you don’t know about.
Tough Mudder then tried that game with its release (or did not have an attorney write its release) and tried to slide the arbitration clause past the participants. It failed because the court held it must meet New York law and be written and visible in a way that the signor understands they are signing an arbitration agreement. That is a bigger burden then just signing a release.
What do you think? Leave a comment.
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The FlowRider looks fun because it has a lot of people trying it, falling and suing
Posted: October 6, 2014 Filed under: Assumption of the Risk, Florida, Release (pre-injury contract not to sue) | Tags: #Cruise, #FlowRider, Cruise ship, Electronic Release, Florida, Ltd., Release, Royal Caribbean Cruises, Royal Caribbean International, Surfing, United States District Court for the Southern District of Florida, Wave Loch Leave a commentIgnoring the risks that are presented by the defendant are not a way to prove your claim.
Magazine v. Royal Caribbean Cruises, LTD., 2014 U.S. Dist. LEXIS 41092
State: Florida, United States District Court for the Southern District of Florida
Plaintiff: Mary Magazine
Defendant: Royal Caribbean Cruises, LTD. d/b/a Royal Caribbean International
Plaintiff Claims: “(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
Defendant Defenses: release
Holding:
Year: 2014
The FlowRide is a surfing simulator. It consists of a sloped surface with water shooting up to the top. The water flowing up is similar to a wave and used to learn to ride a wave or just have fun. You can find Flowriders in stores along the ocean and in this case on a cruise ship.
The plaintiff was a 59 year old attorney that signed up for the cruise. The cruise is a “Card Player Cruise.” These cruises are pushed to poker players. The plaintiff signed up for the cruise two weeks in advance and registered to participate in several activities: ice skating, rock climbing, zip lining and the FlowRider. In doing so she signed an electronic release.
The defendant argued the plaintiff was warned of the risks. There was a “Caution” sign was located in the FlowRider viewing area. There was also a five-minute video that played on television channels on the cruise. There was a list of warnings on the bulletin board.
The plaintiff watched another person on the FlowRider and watched that person fall. The plaintiff’s turn came on the FlowRider. She alternated with other riders and fell 10- to 12 times before falling and breaking her leg. The FlowRider lessons were videotaped including the plaintiff’s fall which broke her leg.
Summary of the case
The court refers to the plaintiff by her last name, Magazine and to the defendant Royal Caribbean Cruises as RCL.
Because the accident occurred on a ship, the standard of care is different. “…a shipowner owes the duty of exercising reasonable care towards those lawfully aboard the vessel who are not members of the crew.”
The judge first throughout the negligent design claims. To be liable for negligent design a “defendant must have played some role in the design.” Because the defendant did not design the FlowRider that claim was thrown out. Also, the negligent maintenance claim was also thrown out.
A shipowner does have a duty to warn passengers of dangers which the shipowner knows or should know about “and which may not be apparent to a reasonable passenger”.
The duty to warn does not extend to dangers that are “open and obvious.” “The obviousness of a danger and adequacy of a warning are determined by a ‘reasonable person’ standard, rather than on each particular plaintiff’s subjective appreciation of the danger.
Whether adequate efforts were made to communicate a warning to the ultimate user and whether the warning if communicated was adequate are uniformly held questions for the jury.
The plaintiff argued that she did not see any of these warnings. However, the plaintiff also stated that even if she had seen the warnings “…she would not have heeded warnings anyway.” The court also stated that the risk of falling was an open and obvious risk in this case.
The court also looked at the requirements the plaintiff had to meet to prove her case. “Thus, to prove that a defendant’s failure to warn caused an injury, the plaintiff must show that the risk about which the defendant failed to warn the plaintiff caused the injury.”
Therefore, to prevail on a negligence claim predicated on a defendant’s failure to warn, a plaintiff must identify a specific risk (1) of which the defendant had notice or constructive notice, (2) that is not open and obvious, (3) about which the defendant failed to warn the plaintiff, and (4) that actually caused the plaintiff’s injury.
The plaintiff argued that it was not falling that caused her injury, but the specific way she fell, which was not identified as a risk of the activity. However, the court did not agree with the argument.
First, any failure by RCL to warn of this general risk did not proximately cause Magazine’s injury. Magazine expressly testified that a warning sign referring only to a “risk of serious bodily injury or death” would not have stopped her from participating in the FlowRider and there is no indication in the record that such a warning might have reduced the severity of her injury. Therefore, any breach by RCL of a duty to warn Magazine of the risk of serious bodily injury or death did not proximately cause Magazine’s injury.
Second, the general risk of injury on the FlowRide is open and obvious. The FlowRider is a recreational activity, and the risk of which Magazine argues she should have been warned is created by the FlowRider itself, rather than by an anomalous condition in an otherwise safe area, such as a protruding nail or slippery substance on a walkway.
The court then stated, “Courts routinely recognize that sports and similar recreational activities pose an inherent risk of injury and that such inherent risk, in the absence of some hidden danger, is open and obvious.”
The court then looked at the various other arguments of the plaintiff stating that the surface was not as the plaintiff had imagined that the medical issues suffered by the plaintiff were not related to the warnings and the FlowRider, and the Defendant had a duty to inform riders of other injuries participants had received. The court found all of these arguments of the plaintiff all failed because the risks were open and obvious.
Put simply, while Magazine contends that certain warnings should have been more prominently displayed, she has not identified any risk about which she should have been warned differently such that a warning might have made a difference.
The court then reviewed the negligent instruction claim of the plaintiff. The plaintiff argued that how she was instructed, and the methods used to teach here lead to her injury.
While the Court is not deciding this issue of law at this time, in a paid lesson for a sport or similar recreational activity such as the FlowRider, reasonable care by an instructor may include not exposing a plaintiff to risks beyond those inherent in the recreational activity itself, at least not before the plaintiff is ready to handle those risks.
The court found that the plaintiff may have a claim based on negligent instruction.
The relevant risk is not of falling but of falling in a way likely to result in injury, such as by losing control of the board while falling. RCL’s argument that “there is no record evidence that RCL was on notice that the use of the balance rope was a danger to any passenger” is also not dispositive, because the requirement of notice applies to risks created by passive conditions such as slippery walkways or protruding nails, not to risks created by a defendant’s actions.
The court then found that:
to (1) whether the instructors’ handling of the balancing rope breached their duty of reasonable care under the circumstances and (2) whether any such breach actually and proximately caused Magazine’s injury.
However, the court found the plaintiff’s arguments to be thin and thought she would have a hard time proving those elements at trial.
So Now What?
If you have warning signs, videos, or information of the risks of your activity and are using a release, put in the release that by signing the release the signor states they have seen the warnings and videos and reviewed the website.
During registration for your activity, tell people to read the warnings, watch the videos and read all warning signs.
If you are using methods to teach or use a device that are not suggested by the manufacture or are different from the standard of care for the activity, this case suggests you should inform people of those differences.
What do you think? Leave a comment.
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Magazine v. Royal Caribbean Cruises, LTD., 2014 U.S. Dist. LEXIS 41092
Posted: October 5, 2014 Filed under: Florida, Legal Case, Release (pre-injury contract not to sue) | Tags: #FlowRider, Curise, Electronic Release, Ltd., Release, Royal Caribbean Cruises, Royal Caribbean International, Surfing Leave a commentMagazine v. Royal Caribbean Cruises, LTD., 2014 U.S. Dist. LEXIS 41092
Mary Magazine, Plaintiff, v. Royal Caribbean Cruises, LTD. d/b/a Royal Caribbean International, Defendant.
CASE NO. 12-23431-CIV-SEITZ/SIMONTON
UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF FLORIDA
2014 U.S. Dist. LEXIS 41092
March 27, 2014, Decided
March 27, 2014, Filed
CORE TERMS: instructor, rope, warning, balancing, summary judgment, negligently, warn, lesson, duty to warn, passenger, falling, video, reasonable care, proximately, proximate, cruise, notice, ride, risk of injury, breached, surface, dangerous condition, serious bodily injury, unreasonably, contributed, failure to warn, nonmoving, aboard, warned, ship
COUNSEL: [*1] For MARY MAGAZINE, Plaintiff: Kate S. Goodsell, LEAD ATTORNEY, Michael Charles Black, Cassidy & Black, P.A., Miami, FL.
For Royal Caribbean Cruises, Ltd., doing business as Royal Caribbean International, Defendant: Bryan Edward Probst, LEAD ATTORNEY, Royal Caribbean Cruises, Ltd., Miami, FL; Curtis Jay Mase, LEAD ATTORNEY, Mase, Lara, Eversole PA, Miami, FL; Jennifer Nicole Hernandez, Mase Lara Eversole, P.A., Miami, FL; Lauren E DeFabio, Mase Lara Eversole, Miami, FL.
JUDGES: PATRICIA A. SEITZ, UNITED STATES DISTRICT JUDGE.
OPINION BY: PATRICIA A. SEITZ
OPINION
ORDER ON SUMMARY JUDGMENT
THIS MATTER is before the Court on Defendant’s Motion for Final Summary Judgment [DE-41]. This action arises from a broken leg suffered during a private lesson on the FlowRider, a surfing simulator aboard one of Defendant Royal Caribbean Cruises, Ltd. (“RCL”)’s cruise ships. The essence of Plaintiff Mary Magazine’s single-count complaint is that RCL failed to follow its own procedures and thus negligently increased the risk of Magazine’s injury, principally by failing to warn her of the risk of injury on the FlowRider and by negligently instructing her in its use.
Having considered the motion, the response [DE-48] and reply [DE-52] [*2] thereto, the oral argument of counsel on March 20, 2014, and all of the evidence in the light most favorable to the Plaintiff, the Court will grant the motion as to the allegations that RCL caused an unreasonably dangerous condition under the circumstances, negligently designed and maintained the FlowRider, and negligently failed to warn of the risk of injury therefrom. It will deny the motion as to the allegation that RCL negligently instructed Magazine in the use of the FlowRider, as the Parties’ papers have not addressed Magazine’s counsel’s argument at the March 20, 2014 hearing that the instructors’ hand-off of the balancing rope contributed to the risk of Magazine’s injury.
I. Factual Background
On September 18, 2011, Plaintiff Mary Magazine, a 59-year-old attorney and Miami, Florida resident, departed on a Card Player Cruise aboard the Allure of the Seas, one of RCL’s cruise ships. The FlowRider is a surfing simulator, installed on the Allure of the Seas and other RCL vessels, that uses powerful jets of water to create a continuous, artificial wave on which participants try to surf or ride using either a bodyboard or a surfboard (or “flowboard”). Unlike ocean waves, the FlowRider’s [*3] artificial wave consists of only 1 – 3 inches of water above a “stationary, tensioned vinyl matted fabric surface” above a “rigid or fiberglass or PVC subsurface.” (“Express Assumption of Risk – Waiver & Release of Liability – FlowRider Onboard Activity Waiver – General Terms & Conditions” [DE-41-3] (“FlowRider Waiver”) at 2.)
Almost 2 weeks earlier, on September 6, 2011, Magazine had electronically registered to participate in various activities on the cruise, including ice skating, rock climbing, zip lining, and the FlowRider. As part of the registration process, Magazine checked boxes for each activity and electronically signed the FlowRider Waiver.1 She knew at the time that checking boxes meant “signing something,” which may have included warnings, but does not recall seeing any of the content of the FlowRider Waiver. She did not take additional steps at the time to research any of the activities. Once aboard the ship, she signed up for a FlowRider lesson. Because she was taking a lesson, and because she had previously participated in numerous sports without injury, she did not expect to be injured on the FlowRider. (FlowRider Waiver; Dep. of Mary Magazine [DE-41-2] (“Magazine [*4] Dep.”) 44:1 – 53:4, 69:17 – 22, 122:15 – 123:1.)
1 The parties agree that the FlowRider Waiver is unenforceable under Johnson v. Royal Caribbean Cruises, Ltd., 449 F. App’x 846 (11th Cir. 2011).
RCL contends that it warns its passengers of the risks associated with the use of the FlowRider in several ways, all of which Magazine testifies she did not see before her accident. These include the FlowRider Waiver, a “Caution” sign in a viewing area near the FlowRider entrance, a 5-minute safety video that plays on certain television channels in the guests’ staterooms, and a 8.5″ x 11″ sheet on a bulletin board.
On September 20, 2011, Magazine and two other passengers participated in a private FlowRider lesson, which cost $60 per person. One of the instructors asked Magazine about the knee brace she was wearing, and she responded that she’d had a knee replacement and used a brace “just for stability purposes.” Neither instructor said anything further about her knee. (Magazine Dep. 76:17 – 78:6.) There is no evidence that any instructor at this time warned Magazine of any risks associated with the FlowRider or inquired as to her understanding of those risks.
During the lesson, Magazine received [*5] verbal instructions from two RCL FlowRider instructors, though she does not remember the instructions in detail. She first watched another member of her group practice balancing on the board while receiving instruction, lose his balance, fall to the back of the FlowRider, and return to wait in line to ride again. Then, on Magazine’s turn, an instructor initially held her hand while she practiced standing on and maneuvering the flowboard. She was barefoot at this time and throughout the lesson. The instructor then let go of her hand, and Magazine tried to maintain her balance on her own until she fell and was carried by the water to the back of the FlowRider. She returned to wait in line to ride again, ultimately falling and returning to practice riding the FlowRider a total of approximately 10 to 12 times. (See Magazine Dep. 78:10 – 81:3; Dep. of 30(b)(6) representative of RCL, Alison Frazier [DE-42-1] (“RCL Dep.”) 68:3 – 69:8; Pl.’s Notice of Serving Answers to Interrog. [DE-41-1] (“Pl. Interrog.”) ¶ 8.)
After several rides, once the instructor seemed to think Magazine could balance without assistance, the instructors started using a balancing rope. One instructor would give her a [*6] rope, held by a second instructor standing near the front of the FlowRider, to hold with her right hand, while the first instructor held her left hand. Eventually the first instructor would let go of Magazine’s left hand, and the second instructor would guide her with the rope towards the front and middle of the FlowRider, where the water flow was stronger than it had been further back and on the side. It is unclear how many times Magazine practiced with the balancing rope in this way before her injury. (See Magazine Dep. 108:16 – 109:12; Pl. Interrog. ¶ 8.)
During Magazine’s last ride, she was holding the rope while the second instructor guided her to the front and middle of the FlowRider as described above. The video of her accident 2 shows that the second instructor, who had initially been holding the rope, handed the rope to the first instructor. Soon thereafter, Magazine lost her balance and fell backwards into the water. Her legs separated and she lost control of the flowboard. Her fall resulted in a spiral fracture in her femur and ultimately in permanent nerve damage, numbness, tingling, and a pronounced limp. (See Magazine Dep. 112:7 – 119:8; Pl. Interrog. ¶¶ 8, 10; Dep. of [*7] Kevin Breen [DE-44-1] (“Breen Dep.”) 80:8 – 81:23; Def’s Mot. for Final Summ. J. [DE-41] (“SJ Mot.”) at 7 ¶ 27; Pl.’s Resp. in Opp’n to Def.’s Mot. for Final Summ. J. [DE-48] (“Response”) at 8 ¶ 27.)
2 The video of Magazine’s accident was not part of the summary judgment record, but the testimony in the record refers frequently to this video. (See, e.g., Magazine Dep. 23:17 – 19.) Thus, the Court asked the Parties to provide it to the Court at the March 20, 2014 hearing.
II. Legal Standard
General maritime law controls the present action, as it involves an alleged tort committed aboard a ship in navigable waters. Therefore, the elements of negligence are: “(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) (citing Zivojinovich v. Barner, 525 F.3d 1059, 1067 (11th Cir. 2008)). In the maritime context, “a shipowner owes the duty of exercising reasonable care towards those lawfully aboard the vessel who are not members of the crew.” Id. (quoting [*8] Kermarec v. Compagnie Generale Transatlantique, 358 U.S. 625, 630, 79 S. Ct. 406, 3 L. Ed. 2d 550 (1959)).
“Summary judgment is appropriate only when, after viewing the evidence and all reasonable inferences drawn from it in the light most favorable to the nonmoving party, the court nonetheless concludes that no genuine issue of material fact exists and the moving party is entitled to judgment as a matter of law. The moving party carries the initial burden of production, which can be met by showing that the nonmoving plaintiff has failed to make a showing sufficient to establish the existence of an element essential to that party’s case, and on which that party will bear the burden of proof at trial.” Fickling v. United States, 507 F.3d 1302, 1304 (11th Cir. 2007) (citations omitted).
Once the moving party’s burden is met, the nonmoving party, having had the opportunity to conduct full discovery, must demonstrate that there is factual support for each element necessary to establish each claim it wishes to pursue at trial. If the nonmoving party cannot do so, then summary judgment is proper because “a complete failure of proof concerning an essential element of the nonmoving party’s case necessarily renders all other [*9] facts immaterial.” Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986).
III. Analysis
Magazine alleges that RCL breached its duty of care in five ways: (1) by causing an “unreasonably dangerous condition” on the FlowRider; (2) by negligently maintaining and (3) negligently designing the FlowRider; (4) by failing to warn her of the risk of injury; and (5) by negligently supervising and instructing 3 her in its use.
3 Although the Complaint alleges that RCL “negligently supervised” Magazine, the Parties now characterize this claim as “negligent supervision and instruction.” (SJ Mot. at 16; Response at 25.) There is no evidence that RCL inadequately supervised or trained its instructors; rather, Magazine argues that RCL’s instructors were negligent towards her during her FlowRider lesson. As such, the claim is more accurately described as negligent instruction.
As to the claims of negligent design and negligent maintenance, Magazine’s counsel conceded at the March 20, 2014 hearing that RCL did not design the FlowRider and that there is no evidence of negligent maintenance. (See also SJ Mot. at 9 ¶¶ 34 – 37; Response at 10 ¶¶ 34 – 37.) To be liable for negligent design, a defendant must have [*10] played some role in the design. See Rodgers v. Costa Crociere, S.P.A., 410 F. App’x 210, 212 (2010) (affirming summary judgment for defendant where there was no evidence that defendant had actually designed the relevant area). Therefore, summary judgment is proper as to the claims of negligent design and negligent maintenance.
Magazine’s counsel also argued at the hearing that RCL’s “caus[ing] an unreasonably dangerous condition” was an independent theory of negligence. However, there is no evidence in the record supporting the existence of any such “unreasonably dangerous condition” that is distinct from the allegations of RCL’s failure to warn, negligent design, negligent maintenance, and negligent instruction. Therefore, summary judgment is proper as to a separate claim that RCL caused an unreasonably dangerous condition under the circumstances.
The Court now turns to the remaining theories of negligence: that RCL failed to warn Magazine of the FlowRider’s risks and negligently instructed her in its use.
A. RCL’s Duty to Warn
A shipowner’s duty of reasonable care includes a duty to warn passengers of dangers of which the shipowner knows or should know but which may not be apparent to [*11] a reasonable passenger. Cohen v. Carnival Corp., 945 F. Supp. 2d 1351, 1357 (S.D. Fla. 2013). The duty to warn does not extend to dangers that are “open and obvious.” Id. “The obviousness of a danger and adequacy of a warning are determined by a ‘reasonable person’ standard, rather than on each particular plaintiff’s subjective appreciation of the danger. Individual subjective perceptions of the injured party are irrelevant in the determination of whether a duty to warn existed.” John Morrell & Co. v. Royal Caribbean Cruises, Ltd., 534 F. Supp. 2d 1345, 1351 (S.D. Fla. 2008) (citations omitted).4
4 See also Restatement (Third) of Torts: Phys. & Emot. Harm § 18, cmt. f (2010):
[T]here generally is no obligation to warn of a hazard that should be appreciated by persons whose intelligence and experience are within the normal range. When the risk involved in the defendant’s conduct is encountered by many persons, it may be foreseeable that some fraction of them will be lacking the intelligence or the experience needed to appreciate the risk. But to require warnings for the sake of such persons would produce such a profusion of warnings as to devalue those warnings serving a more important [*12] function.
RCL maintains that it reasonably warned Magazine multiple times of the risks posed by the FlowRider. (SJ Mot. at 11 – 14.) RCL points to the FlowRider waiver, a “Caution” sign, a 5-minute safety video that plays on certain television channels in the guests’ staterooms, and a 8.5″ x 11″ sheet on a bulletin board.
“Whether adequate efforts were made to communicate a warning to the ultimate user and whether the warning if communicated was adequate are uniformly held questions for the jury.” Stapleton v. Kawasaki Heavy Indus., Ltd., 608 F.2d 571, 573 (5th Cir. 1979), modified on other grounds, 612 F.2d 905 (5th Cir. 1980). At summary judgment, the Court must accept Magazine’s testimony that she did not see any of these warnings.
Instead, as detailed below, the dispositive issues are (1) proximate causation and (2) the lack of duty to warn of open and obvious dangers. RCL has two arguments about these issues. First, any alleged failure to warn was not the proximate cause of Magazine’s injury because she “testified that she would not have heeded warnings anyway.” (SJ Mot. at 14.) Second, “the risk of falling and suffering an injury on the FlowRider is surely open and obvious under [*13] the facts of this case.” (Id. at 15 – 16.)
1. Applicable Law
In any negligence claim, the plaintiff must show that the defendant’s breach of duty actually and proximately caused the plaintiff’s injury. Hercules Carriers, Inc. v. Claimant State of Florida, 768 F.2d 1558, 1566 (11th Cir. 1985) (“[F]ault in the abstract is not sufficient. To produce liability, the acts of negligence . . . must be a contributory and proximate cause of the accident.”). This requires that the defendant’s breach “be a substantial factor in bringing about the harm.” Chavez v. Noble Drilling Corp., 567 F.2d 287, 289 (5th Cir. 1978). Thus, to prove that a defendant’s failure to warn caused an injury, the plaintiff must show that the risk about which the defendant failed to warn the plaintiff caused the injury.
In addition, as noted above, a defendant has no duty to warn a plaintiff about dangers that are open and obvious.5 Therefore, to prevail on a negligence claim predicated on a defendant’s failure to warn, a plaintiff must identify a specific risk (1) of which the defendant had notice or constructive notice, (2) that is not open and obvious, (3) about which the defendant failed to warn the plaintiff, and (4) [*14] that actually caused the plaintiff’s injury. See, e.g., Chaparro v. Carnival Corp., 693 F.3d 1333, 1336 (11th Cir. 2012) (plaintiffs had adequately stated claim that cruise line breached its duty to warn plaintiffs about the high prevalence of gang-related violence in Coki Beach that caused one plaintiff’s death). As neither party identifies the relevant risk with adequate specificity in their written or oral arguments, the Court must glean the types of potentially relevant risks from the Parties’ papers and the record. For the reasons stated below, the Court finds no evidentiary support for a reasonable jury to conclude that any risk exists in this case that meets all four criteria essential to a negligent-failure-to-warn claim.
5 The lack of a duty to warn of open and obvious dangers is related to the requirement of proximate causation because “warning of an obvious or generally known risk in most instances will not provide an effective additional measure of safety,” particularly as such warnings “may be ignored by users and consumers and can diminish the significance of warnings about non-obvious, not-generally-known risks.” Veliz v. Rental Serv. Corp. USA, Inc., 313 F. Supp. 2d 1317, 1323 (M.D. Fla. 2003) [*15] (citation omitted).
2. Identifying the Relevant Risk
a. Risk of Falling on the FlowRider
The relevant risk is not simply that one might fall on the FlowRider, as RCL appears to argue at times. (See, e.g., SJ Mot. at 16 (“Plaintiff’s expert and Carnival’s [sic] expert both agreed that falling on the FlowRider is an obvious risk.”).) A reasonable jury could conclude that a first-time participant is virtually guaranteed to fall on the FlowRider.6 However, a fall that results in a spiral fracture and permanent nerve damage is not in the same category as the 10 – 12 earlier falls that Magazine described as “actually kind of fun.” (Magazine Dep. 107:13.) In fact, RCL’s own expert stated that Magazine’s injury resulted from “nuances of how she fell on this occasion, and not the fact that she just fell.” (Expert Report of K. Breen [DE-43-2] at 7.)
6 In fact, RCL’s website advertises the opportunity to “cheer on friends from stadium seating with prime wipeout views” of the FlowRider, suggesting that RCL considers falling to be part of its appeal. Things to do onboard, Royal Caribbean International, http://www.royalcaribbean.com/findacruise/experiencetypes/category.do?pagename=onboard_cat_things_to_do [*16] (last visited Mar. 24, 2014).
b. Risk of Serious Bodily Injury or Death
Instead, the relevant risk is the general risk of serious bodily injury or death on the FlowRider. In the circumstances of this case, this is the same risk as what RCL characterizes as “the risk of falling and suffering an injury on the FlowRider” (SJ Mot. at 15 (emphasis added)) and what Magazine describes as “that there was a chance that she would get hurt while participating in the FlowRider” (Response at 9 ¶ 30). Having identified the relevant risk, the Court finds that summary judgment is proper here for two reasons.
First, any failure by RCL to warn of this general risk did not proximately cause Magazine’s injury. Magazine expressly testified that a warning sign referring only to a “risk of serious bodily injury or death” would not have stopped her from participating in the FlowRider (Magazine Dep. 111:22 – 112:2), and there is no indication in the record that such a warning might have reduced the severity of her injury. Therefore, any breach by RCL of a duty to warn Magazine of the risk of serious bodily injury or death did not proximately cause Magazine’s injury.
Second, the general risk of injury on the FlowRider [*17] is open and obvious. The FlowRider is a recreational activity, and the risk of which Magazine argues she should have been warned is created by the FlowRider itself, rather than by an anomalous condition in an otherwise safe area, such as a protruding nail or slippery substance on a walkway. Courts routinely recognize that sports and similar recreational activities pose an inherent risk of injury and that such inherent risk, in the absence of some hidden danger, is open and obvious. See Lapidus v. NCL Am. LLC, 924 F. Supp. 2d 1352 (S.D. Fla. 2013) (risk of heart attack from uneven terrain on a hike is open and obvious, but risk from invisible volcanic gasses might not be); Balachander v. NCL Ltd., 800 F. Supp. 2d 1196 (S.D. Fla. 2011) (risk of drowning while swimming in the ocean is open and obvious); Mendel v. Royal Caribbean Cruises, Ltd., No. 10-23398, 2012 U.S. Dist. LEXIS 86052, 2012 WL 2367853 (S.D. Fla. June 21, 2012) (risk of slipping while exiting a swimming pool is open and obvious); Young v. Carnival Corp., No. 09-21949, 2011 U.S. Dist. LEXIS 10899, 2011 WL 465366 (S.D. Fla. Feb. 4, 2011) (risk of tripping while hiking is open and obvious).
Although Magazine argues otherwise, there is no evidence that the Court can extract from the [*18] record supporting the existence of any other risk that is not open and obvious and that could have contributed to her injury. The Court will now address each of the three risks suggested in Magazine’s testimony and arguments.
c. Surface of the FlowRider
Magazine argues that she probably would not have participated in the FlowRider if she had known “that the floor of the FlowRider is a metal surface covered with foam and was as hard as it was.” (Response at 24.) She also testified that she had expected prior to her injury that the foam padding over the base of the FlowRider would be as thick as the padding at the back of the FlowRider (Magazine Dep. 102:6 – 103:3), in contrast to her understanding at the time of testimony that “[u]nderneath the surface of the FlowRider there’s some kind of metal.” (Magazine Dep. 88:7 – 9.)
If the FlowRider’s surface were somehow more dangerous than a reasonable person might expect, that might justify requiring a warning. See, e.g., Caldwell v. Carnival Corp., 944 F. Supp. 2d 1219, 1223 (S.D. Fla. 2013) (plaintiff had adequately stated claim that defendant breached its duty to warn of the slippery condition of its walkway). However, there is no evidence [*19] in the record, other than Magazine’s speculation, suggesting that the subsurface of the FlowRider is made of metal or that there is any less padding than would have been apparent to Magazine from her earlier 10 – 12 rides or to any other FlowRider participant who had the opportunity to walk barefoot on the FlowRider’s surface.
d. Particular Medical Conditions
Magazine testified in her deposition that the FlowRider Waiver was inadequate partially because “[t]here’s nothing . . . that I saw, that says if you have any kind of medical issues, that you should not go on this ride.” (Magazine Dep. 90:6 – 8; see also Response at 8 ¶ 29.) If the FlowRider posed a danger to people with particular medical conditions in ways that a reasonable person with such medical conditions might not expect, that too might justify requiring a warning. However, Magazine expressly states that her knee condition did not cause her injury (Magazine Dep. 126:5 – 127:17), and there is no evidence in the record suggesting that Magazine had any other such medical condition that contributed to her injury. Therefore, any failure to warn Magazine about a risk to those with particular medical conditions did not proximately [*20] cause Magazine’s injury.
e. Previous Injuries on the FlowRider
Magazine also appears to argue that RCL had a duty to inform her that people had previously been injured on the FlowRider. She states in her interrogatory responses that “if I had been advised of all the serious injuries that other RCL guests had experienced I would not have even taken a lesson.” (Pl. Interrog. ¶ 9.) In her deposition, Magazine described the FlowRider Waiver as inadequate partially because “they don’t tell you how many people have been injured on this thing.” (Magazine Dep. 90:2 – 13; see also Response at 8 ¶ 29.) Magazine now emphasizes that “at least one person died using the FlowRider and some 147 more were severely injured using it in the short time between the maiden voyages of the Allure of the Seas and Oasis of the Seas and Plaintiff’s accident” whereas “[n]o guest has ever died using any other onboard activities.” (Response at 27 – 28.)
This argument fails because it does not point to the existence of a non-open-and-obvious risk that could have proximately caused Magazine’s injury. It demonstrates that the FlowRider posed a risk of serious bodily injury or death and that RCL knew of this risk.7 However, [*21] RCL is not contesting these points; in fact, RCL’s primary argument is that RCL adequately warned Magazine of the risk of serious bodily injury or death. Magazine has pointed to no other authority, either in law or in customary practice, imposing a duty to inform passengers of specific numbers of injuries. (See Dep. of Daniel Connaughton, Ed.D. [DE-43-3] (“Connaughton Dep.”) 107:5 – 15.)
7 The list of injuries includes some fractures but also many sprained ankles and toe contusions, which are difficult to characterize as “severe” or as substantially similar to Magazine’s injury. (See Def.’s First. Suppl. Resp. to Pl.’s Req. for Produc. [DE-48-5]; Def’s Notice of Serving First Suppl. Resp. to Pl.’s Interrog. [DE-48-6].)
3. Failure of Proof on Essential Element of Claim
Put simply, while Magazine contends that certain warnings should have been more prominently displayed, she has not identified any risk about which she should have been warned differently such that a warning might have made a difference. The only risk that materialized was the general risk that one could fall and be injured on the FlowRider, which was so open and obvious that Magazine admits that a warning referring only to [*22] this general risk would not have mattered. Magazine has not pointed to any other risk about which there was any basis to expect a warning. As such, there is no genuine issue of material fact as to the claim that RCL breached its duty to warn.
B. Issues of Fact As To Negligent Instruction
RCL moves for summary judgment on Magazine’s negligent instruction claim on the grounds that (1) Magazine “avers that she received thorough instruction” from the instructors; (2) the “instructor’s use of a balancing rope to aid the FlowRider passengers was reasonable under the circumstances;” and (3) “there is no record evidence that RCL was on notice that the use of the balance rope was improper.” (SJ Mot. at 16 – 18.)
Magazine responds that (1) a reasonable instructor should ensure that participants understand the relevant risks, such as by requiring viewing of the safety video and providing an explicit opportunity for questions; (2) the use of a balancing rope is “not referenced anywhere as an acceptable balancing or teaching method” in the relevant FlowRider manuals (Response at 25); and (3) RCL failed to provide “reasonable instructional progression including the use of a bodyboard prior to stand-up [*23] riding, as suggested by Wave Loch/FlowRider.” (Report of Daniel Connaughton, Ed.D. [DE-40-1] at 7.) Additionally, at oral argument, Magazine’s counsel pointed to a few seconds of the accident video to support the argument that the hand-off of the balancing rope from one instructor to another contributed to Magazine’s loss of balance and subsequent injury.
The Court has already addressed RCL’s alleged failure to warn. Reasonable care by an instructor may very well include ensuring that participants understand the relevant risks. However, Magazine’s claim on this ground fails due to a lack of proximate causation and because the relevant risk was open and obvious.
As Magazine’s expert concedes, there is no evidence in the record that any failure by RCL to provide a bodyboard contributed to the risk of Magazine’s injury. (Connaughton Dep. 52:7 – 56:3.) Therefore, this argument fails as well.
However, because the Parties’ briefing did not address Magazine’s counsel’s argument at the March 20, 2014 hearing regarding the transfer of the balancing rope, the Court cannot conclude at this time, as a matter of law, that RCL’s instructors necessarily exercised reasonable care in their handling of [*24] the balancing rope, and that such breach did not heighten the risk of Magazine’s injury.8 While the Court is not deciding this issue of law at this time, in a paid lesson for a sport or similar recreational activity such as the FlowRider, reasonable care by an instructor may include not exposing a plaintiff to risks beyond those inherent in the recreational activity itself, at least not before the plaintiff is ready to handle those risks.9
8 There is no evidence undercutting RCL’s contention that the instructors had received all of RCL’s training to become a FlowRider instructor. (RCL Dep. 67:14 – 68:19; SJ Mot. at 6 ¶ 19; Response at 6 ¶ 19.) This may preclude a finding that their use of the balancing rope was inherently improper. (Connaughton Dep. 25:4 – 26:15.) However, this does not address whether the instructors exercised reasonable care in handling the balancing rope.
9 Federal courts exercising admiralty jurisdiction “may draw guidance from, inter alia, the extensive body of state law applying proximate causation requirements and from treatises and other scholarly sources.” Exxon Co., U.S.A. v. Sofec, Inc., 517 U.S. 830, 831, 116 S. Ct. 1813, 135 L. Ed. 2d 113 (1996). State law reveals a range of approaches. Compare, [*25] e.g., Alber ex rel. Albert v. Ober Gatlinburg, Inc., No. 3:02-CV-277, 2006 U.S. Dist. LEXIS 100150, 2006 WL 208580, at *5, *8 (E.D. Tenn. Jan. 25, 2006) (denying summary judgment on the grounds that (1) reasonable care meant not exposing skiers to risks that “were not an inherent risk of skiing” and (2) genuine issues of material fact remained as to “the adequacy of the ski lesson . . . and whether that lack of instruction was a proximate cause of [plaintiff’s] fall and injuries.”) and Derricotte v. United Skates of Am., 350 N.J. Super. 227, 794 A.2d 867, 871 (N.J. Super. Ct. App. Div. 2002) (“[P]laintiff’s fall as a result of the rink’s alleged negligence in teaching her how to skate was not an ‘inherent,’ ‘obvious’ or ‘necessary’ risk of skating.”) with Fredrickson v. Mackey, 196 Kan. 542, 413 P.2d 86, 89 (Kan. 1966) (offering horse-riding lessons does not turn a defendant into an “insurer against all possibility of injury or accident”).
Magazine testified that the instructor holding the rope pulled her closer to the front and the middle of the FlowRider, where the water flow was considerably stronger, before she was ready, resulting in her being unable to control the flowboard as she fell. (Magazine Dep. 116:10 – 17, 118:7 – 119:8.) Furthermore, [*26] a jury could view the video of Magazine’s accident as corroborating her testimony and as showing that the hand-off of the balancing rope contributed to the risk of Magazine’s injury.
The Parties’ papers did not address Magazine’s claim as framed in this fashion. Given this framing, these issues remain:
(1) Did the instructors’ handling of the balancing rope contribute to the risk of Magazine’s particular injury?
(2) Was the resulting risk greater than the inherent risk of injury on the FlowRider?
RCL’s response that “the rope helped to maintain Plaintiff’s balance before she fell” (SJ Mot. at 7 ¶ 24) does not adequately address these issues. The relevant risk is not of falling but of falling in a way likely to result in injury, such as by losing control of the board while falling. RCL’s argument that “there is no record evidence that RCL was on notice that the use of the balance rope was a danger to any passenger” (SJ Mot. at 18) is also not dispositive, because the requirement of notice applies to risks created by passive conditions such as slippery walkways or protruding nails, not to risks created by a defendant’s actions. See Long v. Celebrity Cruises, Inc., No. 12-22807, 2013 U.S. Dist. LEXIS 164035, 2013 WL 6043918, at *3 (S.D. Fla. Aug. 1, 2013) [*27] (collecting cases).
RCL also argues that Magazine’s testimony is speculative and therefore insufficient to defeat summary judgment. However, the direct testimony of an accident victim about her own accident is not “speculation.” The two cases that RCL cites are not applicable. (Def.’s Reply in Supp. of Mot. for Final Summ. J. at 10.) The first case, Putman v. Sec’y, Dep’t of Veterans Affairs, 510 F. App’x 827 (11th Cir. 2013), addresses the procedurally distinct burden-shifting framework of employment discrimination. The second case, Doe v. NCL (Bahamas) Ltd., No. 11-22230, 2012 U.S. Dist. LEXIS 162654, 2012 WL 5512347 (S.D. Fla. Nov. 14, 2012), involves a plaintiff’s initial speculation that contradicted that same plaintiff’s later representations to the court, rather than a plaintiff’s testimony on a subject about which she has personal knowledge.10
10 Magazine’s testimony about her accident thus differs from her speculation as to the composition of the FlowRider’s subsurface.
Because the Parties have not focused on the reframed issues, the Court cannot conclude at this time that there are no genuine issues of material fact as to (1) whether the instructors’ handling of the balancing rope breached their duty of reasonable [*28] care under the circumstances and (2) whether any such breach actually and proximately caused Magazine’s injury. The Court is mindful that accidents, sadly, do happen, and a cruise ship operator “is not an insurer of its passengers’ safety. There thus must be some failure to exercise due care before liability may be imposed.” Monteleone v. Bahama Cruise Line, Inc., 838 F.2d 63, 65 (2d Cir. 1988) (citation omitted). If Magazine fails to establish the necessary evidentiary support for this claim at trial, the Court will entertain a motion for a directed verdict after she rests her case.
IV. Conclusion
Accordingly, it is
ORDERED that
1. Defendant’s Motion for Final Summary Judgment [DE-41] is GRANTED IN PART AND DENIED IN PART as follows:
a) GRANTED WITH PREJUDICE with respect to Magazine’s allegation that RCL “caused an unreasonably dangerous condition under the circumstances.”
b) GRANTED WITH PREJUDICE with respect to Magazine’s allegation that RCL “negligently maintained the Flowrider in question.”
c) GRANTED WITH PREJUDICE with respect to Magazine’s allegation that “the Flowrider in which the Plaintiff fell was negligently designed.”
d) GRANTED WITH PREJUDICE with respect to Magazine’s allegation [*29] that RCL “failed to warn the Plaintiff and fellow passengers of a dangerous and hazardous condition about which it knew or should have known.”
e) DENIED with respect to Magazine’s reframed allegation that RCL negligently instructed her in the use of the FlowRider.
2. The deadline to file the Joint Pretrial Stipulation, proposed jury instructions and verdict form, and Motions in Limine and Responses [see DE-8 at 2] is EXTENDED to April 10, 2014.
3. The Pretrial Conference is RESCHEDULED to 1:30 pm on April 22, 2014.
4. Defendant’s Motion in Limine to Admit Evidence of Defendant’s Warnings Regarding the FlowRider [DE-29] is DENIED as failing to comply with the requirements set in this Court’s March 12, 2013 Order [DE-8 at 2].
DONE and ORDERED in Miami, Florida, this 27th day of March, 2014.
/s/ Patricia A. Seitz
PATRICIA A. SEITZ
UNITED STATES DISTRICT JUDGE
Electronic release upheld in Florida federal court for surfing on a cruise ship
Posted: June 18, 2012 Filed under: Florida, Release (pre-injury contract not to sue) | Tags: #Cruise, #FlowRider, Admiralty and Maritime Law, Admiralty Law, Electronic Release, Law, MS Oasis of the Seas, Negligence, Oasis of the Seas, Release, Royal Caribbean Cruises, Royal Caribbean International, Wave Loch Leave a commentJohnson v. Royal Caribbean Cruises, Ltd., 2011 U.S. Dist. LEXIS 28128; 2011 AMC 1171
Electronic releases are slowly gathering judicial precedent, if you can save paper and go electronic.
English: The Flowrider aboard the Royal Caribbean cruiseliner Freedom of the Seas (Photo credit: Wikipedia)
The defendant Royal Caribbean Cruises, Ltd had a ship, the Oasis of the Seas which had a FlowRider on it. A FlowRider is a wakeboard surfing device/pool/wave. The FlowRider was an amusement that was not part of the fees charged for the cruise, but required a separate sign up and fee payment by people wanting to ride the device.
The plaintiff rode the FlowRider for approximately 45 minutes, falling several times. On her last fall, she hit the rear wall and fractured her ankle. Prior to her injury, she had allegedly watched a safety video which was on the ship’s cabin TVs. She also watched other riders ride.
To ride the FlowRider the plaintiff had to read and sign an electronic release. The release was three pages long and designed so the readers had to scroll through all three of the pages before it could be signed. The plaintiff scrolled through all three pages and electronically signed the release. The plaintiff later argued she thought she was signing a room charge. (Room charges are three pages long?)
The plaintiff argued that admiralty law applied, which would prevent the use of the release and that the release was void based on equitable grounds. The decision was later overturned because the court found the admiralty statute was vague and the issue on whether the release worked in this case was an issue that should be litigated.
So?
The admiralty law argument states that if admiralty law applies, releases cannot be used to defeat a claim. The legal relationship is similar to the common carrier‘s duty to protect passengers, because the control of the transportation is outside of the ability of the passenger to control, the common carrier owes the highest degree of care to the passengers. You are not driving; you are a passenger. You can’t slow down, turn or hit the break from the rear of the cabin.
For admiralty law to apply it must meet a two-prong test. The incident causing the harm:
(1) must have a potentially disruptive impact on maritime commerce, and
(2) the activity must bear a substantial relationship to traditional maritime activity.
The judge quickly denied that argument. He found that the cruise line industry would not be disrupted because of FlowRider injuries in the future, and the activity is purely recreational and has no relationship to navigation, piloting or shipping: “…as the FlowRider can hardly be considered essential functions of a common carrier…”
The court then looked at whether the release was valid on equitable grounds. The release used bold language to point out the different important sections. The bold language also indicated the nature and purpose of the document. One page explained the potential risks associated with the activity.
The court found it irrelevant that the plaintiff had not been provided a hard copy of the release and found the plaintiff’s attempt to characterize the release as a room charge as a failure to read the language “clearly presented to her.”
So Now What?
Royal Caribbean International’s, “MS Oasis of the Seas” (Photo credit: Wikipedia)
If you do operate in a legal environment where all or part of your activities may be held to a higher standard of care such as admiralty law or as a common carrier, you can use a release to eliminate claims for associated or side line activities. To do so you will need to identify the actual nature of the activity and why it is not associated with the higher degree of care needed by the other part of the activity.
What also proved instrumental to the court was the video which was available to everyone on the ship and which the plaintiff said she had watched when she signed the release. It is difficult to argue you did not understand the risk, when you agreed to watch a video which explained the exact risk which you are claiming is the cause of your injury.
The Waiver further provides that the passenger agrees not to use the FlowRider until she has watched a safety video. At the time of the alleged incident, the FlowRider safety video was in circulation on the stateroom channel, which is available to all passengers on their cabin TVs.
Another factor the court found important was the fact that the release could not be signed without scrolling through all three of the electronic pages.
The Waiver is three pages long and is designed so that passengers must scroll through all of its language before execution; otherwise it is simply impossible to execute the Waiver.
The issue that the release was electronic was never brought up.
Also of importance and pointed out by the court several times was the fact the plaintiff had watched other riders on the FlowRider and had watched them fall as well as having ridden the FlowRider for 40 minutes before suffering her only injury. It is difficult to argue you did not assume the risk when you clearly saw then experienced the risk.
Even though the release was held effective to stop the suit, the judge pointed out the assumption of risk issues and the fact the injury the plaintiff claimed was pointed out both in the wavier and in the video.
· Electronic Releases are accepted and used.
· Include the risks in your release as well as the necessary legal language
· Make sure the important sections are not hidden, but specifically pointed out to the participant.
· If you can, and you should, have the participant watch a video of the risks and acknowledge that they watched the video in the release.
· Be able to prove other issues or facts that support the fact the participant knew and understood the risks of the activity.
However this decision was overturned in Johnson v. Royal Caribbean Cruises, Ltd, 449 Fed. Appx. 846; 2011 U.S. App. LEXIS 25240 because of the lack of clarity in the US Admiralty Statutes. The basis for overturning the decision was:
(1) the waiver was clearly a contract with a provision that limited the liability of the owner for personal injury or death caused by the negligence or fault of the owner or the owner’s employees or agents,
(2) the cruise ship owner undoubtedly was the owner of a vessel transporting passengers between a port in the United States and a port in a foreign country, and
(3) the statute contained no exceptions regarding the type of activity in which the passenger is partaking when the injury occurs nor where the particular provision is found.
The court did not overturn the issue of whether the electronic part of the waiver was at issue.
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