Parrish Appeals

Florida Appellate Law Firm

The Eleventh U.S. Circuit Court of Appeals Rules that Cruise Lines Cannot Limit Their Liability for Increasingly Dangerous Onboard Activities Such as Rock Climbing Walls, Zip-lining, and Simulated Surfing

By Philip Parrish on Posted in Admiralty Law

Johnson v. Royal Caribbean Cruises, Ltd., 2011 WL 6354064 (11th Cir. 2011).

You have no doubt seen the cruise line commercials which depict happy passengers engaging in physical activities normally found ashore – rock climbing walls; zip-lines; and FlowRider simulated surfing attractions. These commercials, utilized to entice passengers and their families to choose cruising as their vacation destination do not mention the release of liability form which passengers are quickly shown in a 3 inch x 5 inch electronic keypad, such as one signs at the grocery store checkout counter when paying by credit card, with fine print that purports to release the cruise line from even its own negligence.

Charlene Johnson was a passenger aboard the “Oasis of the Seas,” the first of the new “Genesis” class of mega cruise ships being touted as floating cities. It offers the cruising public exciting recreational activities such as rock climbing walls, zip-lines and FlowRiders. Royal Caribbean’s own promotional material notes that the FlowRider “draws the most challenging demographic to retain the 13 to 21-year olds,” and Royal Caribbean’s Director of Brand Innovation and Alliance Marketing, Jessica Correa, acknowledged that that demographic drives “70% of our guests’ vacation planning decisions.” That same promotional material stated that because the FlowRider “is money in the bank” because it appeals to kids. The promotional materials contain assertions that “our ride is designed to handle any wipe-outs,” and brag that the “FlowRider waveform is a proprietary composite membrane ride surface that absorbs the energy of impacts. The FlowRider may wipe-out, but they will get back up again and again and again.”

Johnson received instruction for the body boarding portion of FlowRider from an instructor employed by Royal. Johnson was instructed to stand on the body board while the instructor was holding it. When he released the board, Johnson fell off the board and suffered a fractured ankle. The maneuver attempted by Royal’s instructor was in violation of Royal’s safety guidelines for the FlowRider attraction. These guidelines specifically state that the boards for the surfing portion can be stood upon, while the boards used for the body boarding portion should only be used while lying down.

A United States District Court Judge granted Royal Caribbean’s Motion for Summary Judgment based upon the release which Johnson had signed. However, that release violates a Federal Statute enacted by Congress in 1936 which prohibits a common carrier (such as a cruise line) from attempting to limit its liability via contract for its own negligence for personal injury or death to passengers. The potential impact of the District Court’s decision was significant, as it would be fatal to the claims of many passengers who are injured onboard cruise line vessels while engaged in such activities every year.

On December 20, 2011, the Eleventh Circuit Court of Appeal reversed the District Court’s grant of summary judgment in favor of the cruise line, and remanded the case back to the District Court for trial. In its unpublished opinion, the Court agreed with Ms. Johnson that the Federal Statute absolutely prohibited the cruise line from enforcing such a waiver:

“Congress has spoken on this very type of waiver and has unequivocally prohibited it and rendered it void. 46   U.S.C.  § 30509(a)(2). The statute contains no exceptions regarding the type of activity – whether recreational, ultra hazardous, or otherwise – in which the passenger is partaking when the injury occurs nor where the particular provision is found – whether on the back of a ticket or in a separate, signed, electronic document as here. See 46 U.S.C. § 30509.”

Mr. Parrish represented Ms. Johnson in her successful appeal to the Eleventh Circuit Court of Appeal.

Third DCA: Statute Requires Developer to Establish Two Separate Escrow Accounts

By Philip Parrish on Posted in Florida Cases of Interest

CRC 603 and CRC 1103, LLC v. North Carillon, LLC, 2011 WL 3916151 (Fla. 3d DCA Sept. 7, 2011)

This case is a South Florida special, arising out of the purchase of high-end condominium units in 2006. Borrowing a phrase from former Fed. Chairman Alan Greenspan, Judge Vance Salter referred to the period as “an irrationally exuberant real estate market.” At issue were deposits, exceeding $176,000.00 a piece, on two units. Pursuant to Florida Statute §718.202, a purchase contract is voidable (and the deposits recoverable by the buyers) if the developer failed to comply with the statute, which in §1 requires the developer to hold a deposit of up to 10% of the sales price in an escrow account, and in §2 requires any amounts in excess of 10% of the sales price to be held in a “special escrow account. ” The issue in the case was whether a developer could use a single escrow account versus two separate accounts. The trial court had dismissed the buyers’ action against the developer and the escrow agent.

Judge Salter and his colleagues at the Third DCA found the opinion of federal Judge Cecilia Altonaga, in Double AA International Investment Group, Inc. v. Swire Pacific Holdings, Inc., 674 F.Supp.2d 1344 (S.D. Fla. 2009), to be persuasive. Judge Altonaga ruled that given the plain language of the statute by giving meaning to each word as written, and avoiding an interpretation that would render portions of the statute surplusage (i.e., the use of the word “special,” in §2) the Court concluded that the statute requires the developer to establish two separate escrow accounts.

Simple enough?  Not quite. In the spring of 2010, at the behest of developers, and in response to the December 2009 opinion from Judge Altonaga, Florida’s Legislature amended §718.202.  The amendment purported to be a “clarification” of the statute, and permitted use of a single escrow account. The buyers argued, and the Third District agreed, that the 2010 amendment could hardly have been intended to “clarify” a set of escrow requirements that were enacted by the Legislature more than 25 years ago. Furthermore, even if the 2010 amendment was intended as a clarification, and therefore could be applied retroactively, the Third District found that retroactive application would be unconstitutional as it would impair the buyers’ vested contractual rights in violation of Article I, §10, of the Florida Constitution. The court did, however, affirm the dismissal of the claims against the escrow agent.