Yesterday, the 11th Circuit Court of Appeal sent the wrongful death case against Royal Caribbean Cruises by the parents of Chloe Weigand whose grandfather dropped her from an open window on deck 11 of the Freedom of the Seas, back to the trial court. In a comprehensive 21 page order replete with photographs of the scene of the accident, the appellate court reversed a summary judgment entered in favor of the cruise line by a federal district court judge.

The Accident and Lawsuit Allegations

In July 2019, the Wiegand family sailed aboard Royal Caribbean’s Freedom of the Seas to San Juan, Puerto Rico. Shortly after they boarded, the Wiegand family took Chloe to the H20 Zone, a children’s water park on deck 11 of the Royal Caribbean cruise ship. The little girl’s grandfather, Salvatore Anello, joined the family soon thereafter to watch over his granddaughter. Mr. Anello followed Chloe away from the pool toward a long exterior glass wall. He picked the child up and testified that he put Chloe’s feet on the windowsill where he thought the glass window was located. In fact, the window was open. Chloe slipped from her grandfather’s grip and fell about 150 feet to the concrete pier below.

Mr. Anello eventually pled guilty to negligent homicide in Puerto Rico.

We first reported on the tragic case in an article titled Child Dies After Falling From Freedom of the Seas and on the granting of the summary judgment in favor of Royal Caribbean in Royal Caribbean Wins Summary Judgment in Dropped Toddler Case.

The family’s lawsuit against the cruise line, filed by the Lipcon law firm, alleged three causes of action: (1) general negligence, (2) negligent failure to maintain the ship, and (3) negligent failure to warn. The trial court granted summary judgment for Royal Caribbean on all counts. On appeal, the 11th Circuit affirmed the dismissal of Count 3 (negligent failure to warn), but revered the dismissal of the other negligence counts.

The appellate court provided a detailed explanation for reviving this tragic case.

The Lawsuit

The Wiegands alleged that Royal Caribbean breached its duty to Chloe, among other ways, by violating hospitality industry standards that would have required fall prevention devices on Deck 11 windows or would have prevented Deck 11 windows from opening more than four inches wide.

Notice of Danger

The district court found that Royal Caribbean had no notice “of the risk-creating condition, which was Mr. Anello lifting the child through an open window.” The trial court found that Mr. Anello’s criminal conduct was unforeseeable and the sole proximate cause of Chloe’s death. The lower court held that Royal Caribbean was also entitled to judgment on Count 3 (negligent failure to warn) because the fully open window was an open and obvious danger.

The appellate court disagreed with the lower court and ruled that the Wiegands presented three pieces of evidence that when viewed in a light most favorable to the Wiegands, would allow a reasonable juror to find that Royal Caribbean not only knew that fully open windows on Deck 11 posed a risk. It also knew about the risk of adults holding children in front of fully open windows on Deck 11.

Key Testimony of RCCL Safety Officer

First, the Wiegand presented the testimony of ship employee Elton Koopman who worked as chief security officer on Royal Caribbean cruise ships, including the Freedom of the Seas. Koopman testified that he saw adults holding children in front of open windows on Deck 11, and that he and other crew members discussed at safety meetings the problem of adults holding children in front of open windows and children climbing on chairs in front of open windows. Officer Koopman testified that he previously saw adults hold children on the outer windowsill and had told the adults to bring the children back in and close the window. Officer Koopman testified that Royal Caribbean knew about the risk of children falling through open windows and adults holding children in front of open windows.

Royal Caribbean had tried to counter this aspect of the Wiegand’s case by arguing that Officer Koopman is a disgruntled ex-employee who shares an attorney with the Wiegands, so his testimony should be discredited.

But the lower court did not even address Officer Koopman’s testimony in its order granting summary judgment.

The appellate court ruled that if a reasonable juror believes Officer Koopman’s testimony, that juror could find that Royal Caribbean knew about the risks posed by fully open windows on Deck 11, including the risk of adults holding children in front of those windows. The appellate court held that this witness’ credibility was not a proper issue on appeal and Royal Caribbean can question Koopman about bias and credibility at trial.

The second piece of evidence presented by the Wiegands is the wood railing that keeps passengers 19 inches away from Deck 11’s open windows:

Royal Caribbean’s corporate representative testified that the rail was one of its “fall prevention measures” for “children and adults.” The ship’s captain, Frank Martinsen, confirmed that “the whole purpose” of the rail was “to prevent people from going overboard.”

The appellate court previously held that “evidence that a ship owner has taken corrective action can establish notice of a dangerous condition.” A reasonable juror could therefore find that Royal Caribbean added the rail in front of Deck 11’s windows because it knew that passengers, including children, could fall out of an open window.

The third piece of evidence presented by the Wiegands is Royal Caribbean’s Guest Conduct Policy, which prohibited passengers from “sitting, standing, laying or climbing on, over or across any exterior or interior rails or other protective barriers.” The appellate court held that “warning passengers about a danger posed by a condition” can be evidence of notice, if there is “a connection between the warning and the danger.” And evidence that a cruise line warned passengers not to “climb up rails, try to sit on them, or try to get selfies or lean over them because accidents can happen” was “enough to withstand summary judgment as to notice.” Accordingly, a reasonable juror could find that Royal Caribbean’s written policy against climbing on or over railings is proof that Royal Caribbean knew that passengers could fall overboard despite the railing.

In sum, the appellate court held that, when viewed in a light most favorable to the Wiegands, the combination of Officer Koopman’s testimony, the railing in front of Deck 11’s windows, and Royal Caribbean’s Guest Conduct Policy instructing passengers not to climb on or over the railing was enough to withstand summary judgment as to notice.

Foreseeability of Injury or Death

The district court held that Mr. Anello’s conduct (which he pled guilty to) was an unforeseeable, superseding cause that broke the chain between any negligence by Royal Caribbean and Chloe’s death.

The appellate court held that in some cases, criminal acts have been held to be foreseeable. If the superseding criminal act was foreseeable, then the criminal act does not break the causal chain between the defendant’s negligence and the plaintiff’s injury and the cruise line may be liable.

The district court held that the Wiegands “presented insufficient evidence to circumvent the presumption” that Mr. Anello’s criminal act was the sole proximate cause of Chloe’s death. Regarding foreseeability, the district court said that “the Plaintiffs have failed to present evidence indicating that Royal Caribbean knew or should have known that there was a risk of an adult lifting a child over the guardrail and through an open window.”

The appellate court held that the district court erred in ignoring Officer Koopman’s testimony that he watched adults “lift children up to the railing” in front of an open window “so that they could feel the breeze.” He testified that he watched adults extend children from the rail to the windowsill when the window was open, and he instructed those adults to bring the children “back into the vessel” and then “close the window.” Koopman testified that he voiced his concerns about the open windows at full team meetings when the ship returned to port.

Accordingly, the appellate court ruled that a reasonable juror could find that Mr. Anello’s superseding criminal act of holding Chloe either on the rail or the windowsill was foreseeable and did not break the causal chain between Royal Caribbean’s alleged negligence and the death of the child.

Open and Obvious Danger

The appellate court agreed with the district court that a reasonable person in Mr. Anello’s shoes would have known that the window was open and would have appreciated the danger of holding a toddler near an open window 150 feet above the surface.

Mr. Anello testified that he did not know that the window was open and thus believed Chloe was not in danger. But the appellate court held that the evidence must be viewed objectively to determine whether a reasonable person would have appreciated the danger, not whether Anello subjectively did. Two details in the video show that a reasonable person would have known that the window was open and thus presented a risk. First, the tinted coloring of the windows make it apparent which windows were open and which windows were closed:

The appellate court held that photographic evidence shows that an objective person who leaned over the railing as Mr. Anello did for 12 seconds before he picked up Chloe, then reached for the glass window after he picked up Chloe, would have realized that the window was open because otherwise he would have touched glass.

In sum, the appellate court held that the objective video and photographic evidence “blatantly contradicted” the Wiegands’ position that a reasonable person could not tell that the window was open, so the district court properly relied on that evidence to grant summary judgment on Count 3 (negligent failure to warn).

The 11th Circuit stressed that it was legally required to view the evidence in a light most favorable to the Wiegands. Although the court held that the Wiegands offered enough evidence to survive summary judgment (on counts 1 and 2), it made no judgment on the merits of any issue, including whether Royal Caribbean had notice of danger, whether Royal Caribbean breached a duty, or whether Mr. Anello’s actions proximately caused Chloe’s fall and death.

You can read the court’s entire 21 page opinion and view 13 photographs here.

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Image Credits: Freedom of the Seas – Beyond My Ken – wikipedia / commons CC BY-SA 4.0; 11th Circuit Court of appeal in Case No. 21-12506