Thomas Frasca v. NCL (Bahamas), Ltd.
654 F. App'x 949
11th Cir.2016Background
- On March 19, 2011, Thomas Frasca slipped on an outdoor deck of the cruise ship Pride of America operated by NCL (Bahamas) Ltd.; he suffered serious hamstring injury requiring surgery and ongoing pain and disability.
- Frasca sued for negligence alleging failure to warn of and negligent maintenance of a slippery deck; loss of consortium count was later voluntarily dismissed.
- The magistrate judge granted summary judgment for NCL on the failure-to-warn claim (and sua sponte on negligent maintenance), and awarded some costs to NCL; Frasca appealed.
- Key contested factual points: deck was visibly wet, well-lit, with puddles and heavy mist; plaintiff’s companion slipped as well; NCL showed a cabin safety video warning that outside decks can become “very slippery.”
- Frasca submitted an expert report opining the deck was unreasonably slippery when wet; NCL argued no prior notice and that the condition was open and obvious.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the dangerously slippery condition was open and obvious | Frasca: although deck looked wet, expert shows it was slipperier than a reasonable person would anticipate | NCL: deck was well-lit and visibly wet; condition was open and obvious so no duty to warn | A genuine factual dispute exists — a jury could find the degree of slipperiness was not open and obvious; summary judgment reversed |
| Whether NCL had actual or constructive notice of the dangerous condition | Frasca: cabin safety video and other warnings, prior incidents, and expert report show NCL knew or should have known decks get very slippery when wet | NCL: lacked prior notice of the specific dangerous condition | Safety video warning creates an inference of notice; genuine issue of material fact exists — summary judgment reversed |
| Whether plaintiff was required to amend complaint to change alleged water source (leak vs. rain) before contesting at summary judgment | Frasca: negligence claim covers slip on slippery deck irrespective of water source; parties and record showed rain was known earlier, so no unfair ambush | NCL: plaintiff changed theory after complaint, so summary judgment appropriate | Court: plaintiff need not amend; magistrate erred to deny facts introduced at summary judgment where defendant was not ambushed |
| Whether the court could enter summary judgment sua sponte on negligent maintenance when defendant moved only on failure-to-warn | Frasca: complaint sufficiently pled negligent maintenance; magistrate erred by granting judgment on an unpled ground without notice | NCL: (relied on magistrate’s finding that maintenance claim was not pled) | Court: magistrate clearly erred — complaint alleged negligent maintenance and court may not grant summary judgment on claims not moved on without notice; reversed and remanded |
Key Cases Cited
- Liebman v. Metro. Life Ins. Co., 808 F.3d 1294 (11th Cir. 2015) (standard of review for summary judgment)
- Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (U.S. 1986) (summary judgment and genuine issue standard)
- Chaparro v. Carnival Corp., 693 F.3d 1333 (11th Cir. 2012) (elements of maritime tort claim)
- Keefe v. Bahama Cruise Line, Inc., 867 F.2d 1318 (11th Cir. 1989) (carrier liability requires actual or constructive notice)
- Doe v. Celebrity Cruises, Inc., 394 F.3d 891 (11th Cir. 2004) (maritime jurisdictional test for torts aboard cruise ships)
- Sorrels v. NCL (Bahamas) Ltd., 796 F.3d 1275 (11th Cir. 2015) (warning practices can support inference of prior knowledge)