Opinion
Case Number: 10-21650-CIV-MORENO.
March 18, 2011
CLOSED CIVIL CASE ORDER GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT; ORDER DENYING PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT
This is a personal injury action against the cruise line arising out of an accident that occurred while Plaintiff was taking a private lesson on the FlowRider, a simulated surfing activity onboard the Defendant's cruise ship. Defendant argues that Plaintiff's suit is barred by her execution of a waiver which released Defendant from liability for any negligence or damages associated with Plaintiff's use of the FlowRider. Plaintiff contends that the waiver is void under 46 U.S.C. § 30509 and general maritime law, and in the alternative, that the waiver should not be enforced on equitable grounds. Both parties have moved for summary judgment. Because the simulated surfing activity is inherently dangerous and is not an essential function of a common carrier, the Court finds that the waiver is valid and enforceable, and accordingly, GRANTS Defendant's Motion for Summary Judgment and DENIES Plaintiff's Motion for Summary Judgment.
I. Background
On January 30, 2010, Plaintiff Charlene Johnson, a 35-year-old woman, departed on a seven-day cruise aboard the M/S Oasis of the Seas ("the vessel"), a cruise ship owned and operated by Defendant Royal Caribbean Cruises, Ltd. On January 31, 2010 Plaintiff purchased a private lesson on the FlowRider. Passenger participation in the FlowRider is voluntary and requires payment of a fee that is separate and distinct from the cruise fare. Prior to using the FlowRider, passengers must sign an electronic Onboard Activity Waiver ("Waiver"), which is presented to passengers in color on an electronic screen. The Waiver is attached hereto as Exhibit "A." The Waiver states at the top in bold, "Express Assumption of Risk — Waiver Release of Liability." 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.
Plaintiff signed and executed the Waiver, thereby agreeing to "fully release and forever discharge" Defendant from "any and all actions" arising from "any accident [or] injury" in any way connected to Plaintiff's use of the FlowRider. The Waiver expressly warns passengers that the "rider/participant can, intentionally or inadvertently, move quickly and unexpectedly from side to side or any direction, which will necessarily result in falls [or wipeouts] from the bodyboard" and which may cause serious 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.
Barbara Cobas, one of the defense witnesses, initially testified in her deposition that the safety video was not in circulation on the vessel at the time of the alleged incident. Ms. Cobas subsequently discovered that she was mistaken and that the video was in fact in circulation. Defendant accordingly filed an errata sheet, which Plaintiff then moved to strike. The Court, finding sufficient justification for the change, has denied Plaintiff's motion.
Before her private lesson on the FlowRider, Plaintiff had observed others using the device, and throughout her lesson she had ridden the FlowRider and fallen off her board multiple times. Approximately forty minutes into her private lesson, Plaintiff was instructed to stand on the board, and once Plaintiff was standing, the instructor let go of the board. Plaintiff immediately fell off the board and hit the back wall of the FlowRider, fracturing her right ankle. As a result, Plaintiff filed the instant negligence action against Defendant.
II. Standard of Review
Summary judgment is authorized when there is no genuine issue of material fact. Fed.R.Civ.P. 56(c). The party seeking summary judgment bears the initial burden of demonstrating the absence of a genuine issue of material fact. Adickes v. S.H. Kress Co., 398 U.S. 144, 157 (1970). The burden then shifts to the party opposing the motion, who must set forth specific facts and establish the essential elements of the case on which it will bear the burden of proof at trial. Celotex Corp. v. Catrett, 477 U.S. 317 (1986); Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). The nonmoving party may not simply rest upon mere allegations or denials of the pleadings; it must present more than a scintilla of evidence in support of its position. A jury must be able reasonably to find for the nonmovant. Anderson v Liberty Lobby, Inc., 477 U.S. 242, 254 (1986). In reviewing a motion for summary judgment, the Court must view the evidence and draw all reasonable inferences in the light most favorable to the non-moving party. Id. at 255.
III. Discussion
The parties have not cited any case with facts similar to this one-where the injury resulted from a recreational and inherently dangerous activity on board a cruise ship, for which a waiver was executed. The core issue presented by the parties' Motions for Summary Judgment is the validity and enforceability of the Waiver. Plaintiff argues that the Waiver is void under 46 U.S.C. § 30509 and general maritime law, and in the alternative, that the Waiver should not be enforced on equitable grounds. Defendant argues that general maritime law does not apply under the facts of this case, and even if it does, 46 U.S.C. § 30509 does not apply to invalidate the Waiver. Defendant also argues that equity does not prevent enforcement of the Waiver.
A. Whether General Maritime Law Applies
At the outset, the Court notes that admiralty jurisdiction must exist before the Court may apply admiralty law. See Doe v. Celebrity Cruises, Inc., 394 F.3d 891, 899 (11th Cir. 2004).Whether admiralty jurisdiction exists is an independent determination that must be made by the Court. See id. at 900. In order for admiralty jurisdiction to exist, two tests must be satisfied: the location test and the connection test. See Jerome B. Grubart, Inc. v. Great Lakes Dredge Dock Co., 513 U.S. 527, 534 (1995) ("[A] party seeking to invoke federal admiralty jurisdiction . . . over a tort claim must satisfy conditions both of location and of connection with maritime activity."). The location test, requiring that the incident causing the alleged harm occurred in navigable waters, is plainly satisfied.
The connection test has two prongs, both of which must be met: (1) the incident causing the alleged harm must have a potentially disruptive impact on maritime commerce; and (2) the activity giving rise to the incident must bear a substantial relationship to traditional maritime activity. See id.; Doe, 394 F.3d at 900. The Court finds that neither prong of the connection test is met. While the cruise line industry is itself maritime commerce, it is unlikely that the cruise line industry would be disrupted by future FlowRider-related injuries, as falling off the board and injuring oneself is an inherent and unavoidable risk of using the FlowRider, an activity which is completely voluntary and must be purchased separately from the cruise fare. Even assuming, arguendo, that the first prong of the connection test is satisfied, the second prong is clearly not, as the FlowRider is a purely recreational activity that bears no relationship to traditional maritime activities such as navigation, piloting, and shipping. See Foster v. Peddicord, 826 F.2d 1370, 1376 (4th Cir. 1987) ("[T]his case is about swimming and diving. . . . It is not about piloting, shipping, or navigational error, or other aspects of traditional maritime activity. There is simply no predicative relationship upon which an otherwise typical tort claim may properly be described as relating to `matters with which admiralty is basically concerned.'") (quoting Exec. Jet Aviation, Inc. v. City of Cleveland, Ohio, 409 U.S. 249, 270 (1972)). Therefore, because neither prong of the connection test is satisfied, Federal admiralty jurisdiction is not invoked and general maritime law does not apply.
B. Whether 46 U.S.C. § 30509 Applies
Even assuming, however, that admiralty jurisdiction exists and general maritime law applies, 46 U.S.C. § 30509-the statute under which Plaintiff challenges the Waiver-is inapplicable here. 46 U.S.C. § 30509, formerly cited as 46 U.S.C. § 183(c), reads in pertinent part as follows:
(a) Prohibition. —
(1) In general. — The owner, master, manager, or agent of a vessel transporting passengers between ports in the United States, or between a port in the United States and a port in a foreign country, may not include in a regulation or contract a provision limiting —
(A) the liability of the owner, master, or agent for personal injury or death caused by the negligence or fault of the owner or the owner's employees or agents; or
(B) the right of a claimant for personal injury or death to a trial by court of competent jurisdiction.
(2) Voidness. — A provision described in paragraph (1) is void.
Plaintiff argues that the Waiver in this case is void under § 30509 because it attempts to absolve Defendant from its own negligence in the operation, design, maintenance, and supervision of the FlowRider. This argument, however, ignores the policy rationale behind the statute, which is that common carriers should not be able to secure immunity from liability for their own negligence in providing transportation and other essential functions of common carriers. See Chervy v. Peninsular Oriental Steam Navigation. Co., 243 F. Supp. 654, 655 (S.D. Cal. 1964) ("[T]he provisions of Title [ 46 U.S.C. § 30509] . . . were intended to apply as between common carrier and passengers."); Weade v. Dichmann, Wright Pugh, 337 U.S. 801, 807 (1949) ("The duty of a common carrier . . . is to transport for hire whoever employs it."); Liverpool G. W. Steam Co. v. Phenix Ins. Co., 129 U.S. 397, 441 (1889) ("[T]he law does not allow a public carrier to abandon altogether his obligations to the public, and to stipulate for exemptions which are unreasonable and improper, amounting to an abnegation of the essential duties of his employment."); Shultz v. Florida Keys Dive Ctr, Inc., 224 F.3d 1269, 1271 (11th Cir. 2000) ("Congress enacted [§ 30509] . . . to put a stop to practices like providing [exculpatory clauses] on the reverse side of steamship tickets.") (internal quotations omitted); Chan v. Society Expeditions, Inc., 123 F.3d 1287, 1292 (9th Cir. 1997) ("[A]dmiralty law has generally prohibited carriers from limiting their liability for transporting passengers from ship to shore."); Kornberg v. Carnival Cruise Lines, Inc., 741 F.2d 1332, 1336 (11th Cir. 1984) (relying on § 30509 in holding that the provision of an adequate sanitary system on a cruise ship is an "essential function" for which a sea carrier cannot disclaim responsibility).
While courts have expanded the essential functions of a ship as common carrier to include the provision of "comfortable accommodations" to passengers, see id. at 1334, recreational and inherently dangerous activities such as the FlowRider can hardly be considered essential functions of a common carrier, nor are they at all related to a carrier's duty to provide safe transportation to its passengers. Plaintiff has cited to no case suggesting otherwise.
On the other hand, Defendant has cited to two scuba diving cases which, though not directly on point, are particularly illustrative. In Shultz, 224 F.3d at 1269, a widower sued a dive center for the wrongful death of his wife, who died of an apparent drowning while scuba diving on a trip conducted by the dive center. Id. at 1270. The district court granted summary judgment for the dive center on the basis of a liability release signed by the decedent which the court determined to be valid under 46 U.S.C. § 30509. The Eleventh Circuit, after examining the legislative history of § 30509, affirmed, finding that the statute did not cover the release. In particular, the court stated:
Congress enacted [§ 30509] . . . to `put a stop to' practices like `providing on the reverse side of steamship tickets that in the event of damage or injury caused by the negligence or fault of the owner or his servants, the liability of the owner shall be limited.' That `practice' that Congress intended to outlaw was much different than the practice here-requiring a signed liability release to participate in the recreational and inherently risky activity of scuba diving.Id. at 1271 (internal quotations omitted).
In Borden v. Phillips, 752 So. 2d 69 (Fla. 1st DCA 2000), a decedent's personal representative sued the defendant boat owner and operator for the wrongful death of the decedent, who died while participating in an advanced scuba diving course taught by the defendant. Prior to participating in the course, the decedent had signed a waiver releasing the defendant from liability for injuries related to the decedent's participation in the course. The court held that although 46 U.S.C. § 30509 applied to the dive boat's voyage because it was a vessel engaged in passenger transportation, id. at 72, the waiver was not void under § 30509, as the alleged negligence was related solely to the activity of scuba diving and the decedent's death had no relationship to the defendant's operation or maintenance of the vessel, id. at 73.
While both Shultz and Borden are distinguishable in several respects, as neither involved an injury on board a cruise ship, the Court nonetheless finds their reasoning persuasive and wholly applicable to the instant case. The FlowRider, like scuba diving, is a recreational and inherently dangerous activity. The alleged negligence here is related solely to the FlowRider, and Plaintiff's injury stems entirely from her use of the FlowRider and has no relationship to the operation or navigation of the cruise ship. The Waiver does not attempt to limit Defendant's liability associated with its duty to provide safe transport or any other essential functions, but applies solely to limit Defendant's liability associated with Plaintiff's use of the FlowRider, a recreational and inherently dangerous activity that Defendant would simply not be able to offer its passengers otherwise.
Moreover, courts have upheld waivers releasing land-based operators from liability for similarly inherently dangerous activities. See In re. Compl. of Royal Caribbean Cruises, Ltd., 403 F. Supp. 2d 1168 (S.D. Fla. 2005) (jet-skiing); Waggoner v. Nags Head Water Sports, Inc., 141 F.3d 1162 (4th Cir. 1998) (same); Theis v. J J Racing Promotions, 571 So. 2d 92 (Fla. 2d DCA 1990) (race car driving). To declare void an otherwise valid waiver simply because the complained-of injury occurred on board a cruise ship, even though the activity giving rise to the injury was totally unrelated to the ship's duty to provide safe transport or other essential functions, defies both the legislative history of § 30509 as well as common sense. Accordingly, the Court finds that 46 U.S.C. § 30509 does not apply to invalidate the Waiver here.
C. Whether the Waiver is Valid on Equitable Grounds
Finally, the Court rejects Plaintiff's argument that the Waiver should not be enforced on equitable grounds. The Waiver clearly and unambiguously released Defendant from liability for any negligence or damages associated with Plaintiff's use of the FlowRider. The bolded language at the top of the first page of the Waiver conspicuously indicated the nature and purpose of the document, and the second page of the Waiver specifically explained the potential risks associated with using the FlowRider. Furthermore, Plaintiff had observed others using the FlowRider, and had ridden the FlowRider and fallen off her board multiple times throughout her private lesson before injuring herself, so she clearly knew or should have known that she could fall and consequently injure herself while using the FlowRider. That Plaintiff was not provided a hard copy of the Waiver is irrelevant, as the Waiver is only three pages long and Plaintiff had to scroll through its entire language in order to execute her full signature on the third and final page. Moreover, it is Defendant's policy not to provide a hard copy of the Waiver to any of its passengers. Finally, while Plaintiff asserts she thought she was signing for a room charge when executing the Waiver, this mistaken belief is solely the result of her own failure to read the contractual language clearly presented to her, for which the law of equity provides no remedy.
IV. Conclusion
The Court finds the Waiver here-limited to the inherently dangerous simulated surfing activity-to be valid and enforceable. Because Plaintiff's execution of the Waiver released the cruise line from liability for any negligence or damages associated with Plaintiff's use of the FlowRider, Plaintiff's suit for negligence is barred. Accordingly, it is
ADJUDGED that Defendant's Motion for Summary Judgment (D.E. 93), filed on January 28, 2011 , is GRANTED. Further, it is
ADJUDGED that Plaintiff's Motion for Summary Judgment (D.E. 90), filed on January 28, 2011 , is DENIED.
DONE AND ORDERED in Chambers at Miami, Florida.
Oasis of the Seas — Onboard Activity Waiver Express Assumption of Risk — Waiver Release of Liability (This release shall be signed only once and remain current and binding for any or all of the shipboard activities Participant/Releasor/Guardian has selected for use throughout the entire cruise.) General Terms Conditions I, Johnson, Charleneparticipant/releasor/guardian (herein releasor/guardian), being over the age of 18, and In consideration of being permitted to participate in any or all of the shipboard activities participant/releasor/guardian has selected and further described herein, owned and/or operated by Royal Caribbean Cruises Ltd., do, for myself, my spouse, my heirs, executors, administrators, successors and assigns, hereby fully release and forever discharge Royal Caribbean Cruises Ltd., its employees, affiliates, successors, assigns, affiliated ships, respective masters, officers and crew, agents, operators, charterers and underwriters, including the ship's independent contractor physician(s), nurses and/or medical staff, its and/or their respective heirs, executors, administrators, successors and assigns (hereinafter all collectively referred to as "releasees"), of and from any and all actions, causes or right of action, suits, damages, judgments, executions, claims and demands whatsoever, either in law, admiralty, or equity, by reason of any matter, cause or thing whatsoever, known or unknown, from the beginning of the world to the end of time, arising from any accident, injury, death or property damage whatsoever related to. resulting from, or in any way connected with, participant/releasor/guardian's participation in any or all of the shipboard activities participant/releasor/guardian has selected, and further described herein.
This release contains the entire agreement between the parties hereto, shall not be altered except in writing, signed by both parties, and shall be considered a contractual agreement, and not a mere recital, and parties hereby agree that this Express Assumption of Risk and Waiver and Release of Liability shall be signed only once by participant/releasor/guardian and shall remain current, effective, and fully binding upon participant/releasor/guardian from the moment of signing and continuously throughout the entire cruise, regardless of how many times participant/releasor/guardian utilizes any or all of the shipboard activities participant/releasor/guardian has selected, and further described herein. Participant/releasor/guardian further states that he or she has carefully read this entire agreement, signed of his or her own free will, and, in so doing, acknowledges and agrees to abide by the following express terms and conditions:
• Participant/Releasor/Guardian is fully aware that participation in any or all of the shipboard activities Participant/Releasor/Guardian has selected and further described herein may be considered hazardous activities, and participant/releasor/guadian has elected to voluntarily participate in such activity/activities with full knowledge, acceptance and assumption of any and all risks of serious personal injury or death.
• Participant/Releasor/Guardian further warrants that noither participant/releasor/guardian, nor any minor children in his/her charge, have any known medical condition(s) or disabilities incompatible with the safe participation in any or all of the shipboard activities participant/releasor/guardian has selected, and further described herein. Participant/releasor/Guardian agrees to advise a staff member of any such medical conditions or disabilities so that the staff may assist in determining whether there Is any reasonable accommodation(s) which may be made.
• Participant/Releasor/Guardian agrees to indemnify releasee for any/all loss of or damages to any/all rental equipment, other than ordinary wear and tear. Participant/Releasor/Guardian further agrees to hold harmless and indemnify Releasees for any/all damages, injury or death to participant/releasor/guardian or other persons, including, but not limited to, loss or damage to any/all eyewear (prescription or non-prescription), eyeglasses, contact lenses, sunglasses, cash, jewelry, etc., caused by participant/releasor/guardian's use or participation in any or all of the shipboard activities participant/releasor/guardian has selected and further described herein.
• Participant/Releasor/Guardian acknowledges that any or all of the shipboard activities participant/releasor/guardian has selected and further described herein are completely optional, and not an integral part of participant/releasor/guardian's cruise with Royal Caribbean Cruises Ltd., but rather is an independent, voluntary activity undertaken by participant/releasor/guardian, independent of participant/releasor/guardian's cruise voyage.
• Except where such terms would be inconsistent with the terms of this Waiver Release of Liability, the terms and conditions of Particpant/Releasor/Guardian's Passage Contract are hereby incorporated herein by reference as though fully set forth herein, and shall be applicable to any claim, demand, suit or action arising from, or in any way connected with, Participant/Releasor/Guardian's rental, participation, use or operation of any or all of the shipboard activities Participant/Releasor/Guardian has selected and further described herein.
FlowRider(R)
Rider/Releasor/Guardian acknowledges that failure to observe and abide by the following Instructions may unnecessarily endanger life or limb, Including but not limited to the following*:
• NO more than one rider on flowrider at a time — no tandem or multi-person riding
• NO jumping onto or entering the ride quickly — you will fall!
• NO jewelry, hats, footwear, eyeglasses or loose articles of any type
• NO walking on ride surface — you may only stand to walk and exit after coming to a complete stop on the dark blue drain grating.
• NO barefoot or body surfing without bodyboard/flowboard
• NO tricks or stunts which exceed your skill level
• DO — Obey ride monitor at all times
• DO — Steer your board into the center of the FlowRider by gently shifting your weight slightly
• DO — Keep your board pointed in the direction of the oncoming water
• DO — Consider "cover-up's" — as flowing water may pull off bathing suit tops, bottoms or clothing
• Riders under the age of 18 must at all times be the responsibility of a parent or legal guardian. No one under 52" bodyboard/58" for flowboard in height may ride/particlpate in Wave Loch FlowRider ride/activity under any circumstances.
• Riders are not allowed to participate in the flow rider activity while under the influence of, or in any way impaired by, any drug (legal or illegal) or alcohol.
• NO riding after scheduled operational hours
• All guest acknowledge receiving all relevant safety and operational information and has the opportunity to ask any safety or operational questions of ride attendants regarding the Wave Loch FlowRider ride/activity before riding/participating.
* Violation of any of the above may result in immediate termination of ride.
Participant/Releasor/Guardian, understand that the Wave Loch FlowRider is a very aggressive, fast moving white water simulated surfing attraction/ride, in which the rider/participant lays, kneels, or stands/surfs on a small 52 inch long floatable board, known as a bodyboard or flowboard, to ride, glide, float or surf over the surface of an artificially generated very fast moving current of white water, above a stationary, tensioned vinyl matted fabric surface, 1-3 inches below the surface of the water, and, dependent upon individual skill level, balance, control and body weight distribution on the described bodyboard, rider/participant can, intentionally or inadvertently, move quickly and unexpectedly from side to side or any direction, which will necessarily result in falls from the bodyboard, Into the water and against the ride bottom, flow fence divider, support structures, flowboards, containment walls, entering or exiting riders, ride attendants or other components of the ride, which, due to the rapld water current, may result in the flow of waler picking up/lifting rider/participant and propelling, carrying or lhrowlng rider/participant in any direction and potenlially head-over-heels onto tensioned fabric or rigid or fiberglass or PVC subsurface which is partially covered by one inch of foam padding or one half inch of vinyl tube matting, towards and against the rear, side, or back of the ride potentially resulting in serious personal injury or death. As such, participant/releasor/guardian is aware that Wave Loch FlowRider ride/activity may be considered a hazardous activity, with inherent dangers that no amount of care, caution, instruction or expertise can eliminate, which rider/releasor/guardian has elected to voluntarily participate, with full knowledge, acceptance and assumption of any and all risks of serious personal bodily injury or death, whether forseeable or not, sustained, related to, resulting from, or in any way connected with, rider/releasor/guardian's use, misuse, operation, participation, or ride on the Wave Loch FlowRider ride/attraction, Including any/all accidents/incidents in pool areas, deck areas or other tiled, non-tiled, wooden deck or other wet areas.
Participant/Releasor/Guardian has been advised about the safety video available for this attraction and Particpant/Releasor/Guardian will not ride the attraction until the video has been viewed in its entirety and any questions about the ride have been answered to the Participant/Releasor/Guardian's full satisfaction.
Oasis of the Seas — Onboard Activity Waiver
Participant Information Last Name First Name Current Age Current Date Guardian Information Last Name First Name Current Age Current Date Johnson Charlene 34 01/31/2010 0 01/31/2010 You have chosen the following activities:[]FlowRider ®
My electronic signature below acknowledges that I have read, understand and agreed to the terms and conditions of the Onboard Activity Express Assumption of Risk and Waiver and Release of Liability. My signature further acknowledges that I have read, understand and agree to the specific terms and conditions of each individual activity waiver I have chosen above. I agree that I will not sign this electronic document unless I have been able to read or have read to me all terms and conditions in my native language. I understand that the final version of this waiver will be stored in the English language.Participants under the age of eighteen (18) must have this "Express Assumption of Risk and Waiver and Release of Liability" signed by a parent or guardian in order participate In any activity requiring a waiver. Releasor acknowledges that the following minors in releasor's care and control are also considered named releasor's who are fully covered and governed by this Express Assumption of Risk/Waiver and Release of liability.