Judge dismisses lawsuit brought against RCCL

[sparks1093]

Just now, chengkp75 said:

Interesting note, apparently from Anello's testimony at his trial, that he "reached out to the glass, but didn't feel any glass".

Yes, I saw that too. I'm still perplexed at it, but then it's early and I'm on my first cup of coffee.

[sparks1093]

19 hours ago, FloridaMommyof3 said:

Totally agree with the judge.  I think appealing this is a waste of time.

Now that I've taken a minute to think about it the appeal might have some merit. Summary judgment is not supposed to be a review of the evidence, only the undisputed facts and the law. If the judge actually looked at evidence too much in making his decision then an appeals court can still send it back for a trial. I can't access the link to the judge's decision but from reading the article he does talk about the evidence and if he stepped into the area reserved for the "trier of fact" (the jury) then that's a no-no. (At least that is my lay understanding of how summary judgment works.) 

Edited July 15, 2021 by sparks1093

[brillohead]

2 hours ago, sparks1093 said:

Now that I've taken a minute to think about it the appeal might have some merit. Summary judgment is not supposed to be a review of the evidence, only the undisputed facts and the law. If the judge actually looked at evidence too much in making his decision then an appeals court can still send it back for a trial. I can't access the link to the judge's decision but from reading the article he does talk about the evidence and if he stepped into the area reserved for the "trier of fact" (the jury) then that's a no-no. (At least that is my lay understanding of how summary judgment works.) 

Depends on what is considered "facts" and what is considered "evidence", I guess, from a legal standpoint.  (I have no legal education -- I'm a nurse, so all of this is my layperson's opinion, too.)

Because it's a fact that the ship's design meets industry safety standards, and it's a fact that this same identical design is present on pretty much all of the ships in the fleet for the past 20+ years, and it's a fact that despite literally millions of passengers on those ships, nobody has ever dropped a child out the window that they thought was closed.  

So even without the evidence of the grandfather sticking his head out the open window before picking up the child, it seems like the facts of the case make it a non-issue.

 

[sparks1093]

25 minutes ago, brillohead said:

Depends on what is considered "facts" and what is considered "evidence", I guess, from a legal standpoint.  (I have no legal education -- I'm a nurse, so all of this is my layperson's opinion, too.)

Because it's a fact that the ship's design meets industry safety standards, and it's a fact that this same identical design is present on pretty much all of the ships in the fleet for the past 20+ years, and it's a fact that despite literally millions of passengers on those ships, nobody has ever dropped a child out the window that they thought was closed.  

So even without the evidence of the grandfather sticking his head out the open window before picking up the child, it seems like the facts of the case make it a non-issue.

 

I don't disagree and as long as the judge only considered non-disputed facts it's a safe ruling. If he considered facts that are in dispute and that should have been decided by a jury though that would be something else. 

[boscobeans]

I imagine the court had every frame of every video of the entire incident studied one at a time with every enhancement feature available..

 

The video shows exactly what Mr. Anello stated. "Anello also testified that he first lifted Case 1:19-cv-25100-DLG Document 233 Entered on FLSD Docket 07/13/2021 Page 13 of 1514 the Decedent and placed her feet on the wooden handrailing (ECF No. 134-5 at 160). He states that he then reached his hand out to touch the window but did not feel any glass (ECF No. 134-5 at 160). Despite not feeling any glass in front of him, and without confirming that the window was closed, Mr. Anello lifted the Decedent beyond the wooden handrailing and extended her body closer to the window opening (ECF No. 134-5 at 160), exposing her to the open window and the dock beneath where she ultimately fell to her death

 

An appeal?? Based on what?

 

[BecciBoo]

13 hours ago, dobiemom said:

Such a sad story. While I can understand why the parents have chosen not to view CCTV of Chloe’s fall, if they did they would not try to sue/appeal. 

O yes they would....don't be naive.

[DaniDanielle]

Have to agree with you Becci

[brillohead]

1 hour ago, sparks1093 said:

I don't disagree and as long as the judge only considered non-disputed facts it's a safe ruling. If he considered facts that are in dispute and that should have been decided by a jury though that would be something else. 

I just read through the decision, and the judge pretty much said what I did in that post, only he used a bunch of big fancy words and included references to previous case law!  LOL  

But in a nutshell, his decision was that the Plaintiff, even after discovery, didn't have any facts to back up their case as having any basis in fact, and the things they were trying to say were "facts" were unrelated to the situation of this case.  Basically, he said any normal person would know the window was open, and RCI had no way of knowing that Anello would do such a boneheaded action... but with nicer sounding words! 😁

[sparks1093]

12 minutes ago, brillohead said:

I just read through the decision, and the judge pretty much said what I did in that post, only he used a bunch of big fancy words and included references to previous case law!  LOL  

But in a nutshell, his decision was that the Plaintiff, even after discovery, didn't have any facts to back up their case as having any basis in fact, and the things they were trying to say were "facts" were unrelated to the situation of this case.  Basically, he said any normal person would know the window was open, and RCI had no way of knowing that Anello would do such a boneheaded action... but with nicer sounding words! 😁

I haven't read the decision (the link above didn't work for me) and I'm sure that he used great reasoning and logic in his decision, but in the article he clearly makes reference to the video and what it shows. If the plaintiffs can show that video can be seen in a different way and that the judge relied too heavily on it then he used a disputed fact to reach his decision. The appeal isn't about whether the plaintiff's have a chance to win but whether or not they deserve their day in court. That the judge waited until the virtual eve of trial to rule may also come into play. (And don't get me wrong, I agree 100% with him.)

[Two Wheels Only]

6 hours ago, chengkp75 said:

Most likely that is UTC time, which is used on most ship's devices.

 

Thanks for the clarification. As always, your knowledge is much appreciated.

[brillohead]

10 minutes ago, sparks1093 said:

I haven't read the decision (the link above didn't work for me) and I'm sure that he used great reasoning and logic in his decision, but in the article he clearly makes reference to the video and what it shows. If the plaintiffs can show that video can be seen in a different way and that the judge relied too heavily on it then he used a disputed fact to reach his decision. The appeal isn't about whether the plaintiff's have a chance to win but whether or not they deserve their day in court. That the judge waited until the virtual eve of trial to rule may also come into play. (And don't get me wrong, I agree 100% with him.)

The link was to a PDF download, so that might be why it didn't work for you.

Hopefully it's okay for me to copy/paste parts of it, since it's a public document and not subject to copyright protections.  Italics are quotes, non-italics are me.  And I obviously left HUGE chunks out, as it's 15 pages of text plus the photos that are attached.  Just wanted you to be able to see that he wasn't JUST using his interpretation of the photos in his judgment.  (Just want to clarify that I'm not trying to argue here ... just provide you with info that you seem interested in!  We're both in agreement with the outcome here.)

Plaintiffs argue partial summary judgment should be entered against Defendant as to its negligence claims, as well as Defendant’s fourth affirmative defense, which alleges comparative negligence and superseding cause. Defendant argues summary judgment should be entered as to Plaintiffs’ negligent failure to warn claim because the danger of placing a child by or on an open window is open and obvious. Defendant further argues it is entitled to summary judgment as to Plaintiffs’ general negligence and negligent failure to maintain claims because it had no notice of the risk-creating danger, and Defendant is not liable for Mr. Case 1:19-cv-25100-DLG Document 233 Entered on FLSD Docket 07/13/2021 Page 4 of 15 5 Anello’s conduct, which Defendant argues was the sole proximate cause of the child’s death.

a. Defendant is entitled to summary judgment on Plaintiffs’ negligence claims because it had no notice of the risk-creating danger. 

 

Parents said that RCI was "on notice" of the danger/risk of a fall as evidenced by the fact that they warn people not to sit/stand/climb on railings.  Judge said that's not the same as knowing that someone might pick a child up and put them over the railing.  

Plaintiffs argue Defendant’s remedial measures and policies prohibiting passengers from sitting, standing, or climbing on railings indicate that Defendant had notice of the risk-creating condition. In support thereof, Plaintiffs quote Amy, an Eleventh Circuit case which states, “’warning passengers about a danger posed by a condition’ can establish notice of such dangerous condition.” (ECF No. 188). However, the very next line of that opinion states, “not all warnings ... will be evidence of notice; there must also be a connection between the warning and the danger.” Amy v. Carnival Corp., 961 F.3d 1303, 1309 (11th Cir. 2020)(internal citations and quotations omitted). Here, the Defendant’s warning for passengers not to sit, stand, or climb on railings is divorced from the risk-creating danger at issue in this case.  .............  The danger associated with Mr. Anello’s conduct bears no significant connection to the Defendant’s warnings to passengers. Accordingly, Plaintiffs’ argument that these warnings indicate the Defendant’s actual or constructive notice of the risk-creating danger must be rejected.


b. Plaintiffs are entitled to summary judgment on Defendant’s comparative negligence defense.

 

Defendant, in its Fourth Affirmative Defense, alleges, “Plaintiffs’ own acts of negligence amount to a superseding cause that cuts off any causal connection between RCL’s alleged negligence and Chloe’s injuries. Alternatively, RCL alleges that Chloe’s damages were caused either in whole or in part by the acts and/or omissions of third persons for whom RCL is not responsible and that amount to a superseding cause that cuts off any causal connection between RCL’s alleged negligence and Decedent’s injuries” (ECF No. 50).

Since the parents weren't the ones who were negligent (it was grandpa, who isn't a party to the suit), RCI can't say that it was their own negligence that caused the problem.  (While they are responsible in that they chose to let Grandpa watch the child, they had no way of knowing that he'd do such a boneheaded act, the same way RCI had no way of knowing the risk of letting this guy near a window.)

c. Defendant is entitled to summary judgment on Plaintiffs’ negligence claims because Mr. Anello’s conduct was a superseding cause of the incident, severing the chain of causation between the Defendant’s alleged negligence and the injury.  ........ In denying Defendant’s Motion to Dismiss (ECF No. 30), this Court stated, “the Defendant’s [proximate cause] argument would be more appropriately addressed after discovery...” (ECF No. 41). Despite conducting extensive discovery, the Plaintiffs have failed to present evidence indicating that the Defendant knew or should have known that there was a risk of an adult lifting a child over the guardrail and through an open window. Further, Defendant presents evidence indicating the U.S. Coast Guard has no record of any prior incident reports involving similar incidents on any vessel. In the absence of any evidence indicating that the Defendant knew or should have known that individuals would act in the manner Mr. Anello did, this Court finds that no reasonable juror could find that Mr. Anello’s conduct was foreseeable.

If Grandpa hadn't picked her up and put her over the railing, none of this would have happened.  Since Grandpa plead guilty in court, his actions are criminal and could not be foreseen by RCI.  

 

d. Defendant had no duty to warn of the open and obvious danger of placing a child on or through an open window.

A shipowner’s duty of care “includes a duty to warn passengers of dangers of which the carrier knows or should know, but which may not be apparent to a reasonable passenger.” Taiariol v. MSC Crociere, S.A., No. 0:15-CV-61131-KMM, 2016 WL 1428942, at *3 (S.D. Fla. Apr. 12, 2016). “Where a danger is open and obvious, there is no duty to warn.” Yusko v. NCL (Bahamas) Ltd., 424 F. Supp. 3d 1231, 1234 (S.D. Fla. 2020)(citing Smith v. Royal Caribbean Cruises, Ltd., 620 F. App'x 727, 730 (11th Cir. 2015). “Open and obvious conditions are those that should be obvious by the ordinary use of one's senses.” Lancaster v. Carnival Corp., 85 F.Supp.3d 1341, 1344 (S.D.Fla.2015). In the instant case, the danger of lifting the Decedent over the handrailing and extending her out to the open window was open and obvious such that Defendant owed no duty to warn its passengers of the dangers of such conduct.

RCI has no duty to warn people not to do blatantly obviously stupid stuff that any normal human would know not to do.

The judge also started off explaining about summary judgment, lots of quotes from case law, etc.... basically all the stuff you said about facts vs evidence in the first place.  

[sparks1093]

57 minutes ago, brillohead said:

The link was to a PDF download, so that might be why it didn't work for you.

Hopefully it's okay for me to copy/paste parts of it, since it's a public document and not subject to copyright protections.  Italics are quotes, non-italics are me.  And I obviously left HUGE chunks out, as it's 15 pages of text plus the photos that are attached.  Just wanted you to be able to see that he wasn't JUST using his interpretation of the photos in his judgment.  (Just want to clarify that I'm not trying to argue here ... just provide you with info that you seem interested in!  We're both in agreement with the outcome here.)

Plaintiffs argue partial summary judgment should be entered against Defendant as to its negligence claims, as well as Defendant’s fourth affirmative defense, which alleges comparative negligence and superseding cause. Defendant argues summary judgment should be entered as to Plaintiffs’ negligent failure to warn claim because the danger of placing a child by or on an open window is open and obvious. Defendant further argues it is entitled to summary judgment as to Plaintiffs’ general negligence and negligent failure to maintain claims because it had no notice of the risk-creating danger, and Defendant is not liable for Mr. Case 1:19-cv-25100-DLG Document 233 Entered on FLSD Docket 07/13/2021 Page 4 of 15 5 Anello’s conduct, which Defendant argues was the sole proximate cause of the child’s death.

a. Defendant is entitled to summary judgment on Plaintiffs’ negligence claims because it had no notice of the risk-creating danger. 

 

Parents said that RCI was "on notice" of the danger/risk of a fall as evidenced by the fact that they warn people not to sit/stand/climb on railings.  Judge said that's not the same as knowing that someone might pick a child up and put them over the railing.  

Plaintiffs argue Defendant’s remedial measures and policies prohibiting passengers from sitting, standing, or climbing on railings indicate that Defendant had notice of the risk-creating condition. In support thereof, Plaintiffs quote Amy, an Eleventh Circuit case which states, “’warning passengers about a danger posed by a condition’ can establish notice of such dangerous condition.” (ECF No. 188). However, the very next line of that opinion states, “not all warnings ... will be evidence of notice; there must also be a connection between the warning and the danger.” Amy v. Carnival Corp., 961 F.3d 1303, 1309 (11th Cir. 2020)(internal citations and quotations omitted). Here, the Defendant’s warning for passengers not to sit, stand, or climb on railings is divorced from the risk-creating danger at issue in this case.  .............  The danger associated with Mr. Anello’s conduct bears no significant connection to the Defendant’s warnings to passengers. Accordingly, Plaintiffs’ argument that these warnings indicate the Defendant’s actual or constructive notice of the risk-creating danger must be rejected.


b. Plaintiffs are entitled to summary judgment on Defendant’s comparative negligence defense.

 

Defendant, in its Fourth Affirmative Defense, alleges, “Plaintiffs’ own acts of negligence amount to a superseding cause that cuts off any causal connection between RCL’s alleged negligence and Chloe’s injuries. Alternatively, RCL alleges that Chloe’s damages were caused either in whole or in part by the acts and/or omissions of third persons for whom RCL is not responsible and that amount to a superseding cause that cuts off any causal connection between RCL’s alleged negligence and Decedent’s injuries” (ECF No. 50).

Since the parents weren't the ones who were negligent (it was grandpa, who isn't a party to the suit), RCI can't say that it was their own negligence that caused the problem.  (While they are responsible in that they chose to let Grandpa watch the child, they had no way of knowing that he'd do such a boneheaded act, the same way RCI had no way of knowing the risk of letting this guy near a window.)

c. Defendant is entitled to summary judgment on Plaintiffs’ negligence claims because Mr. Anello’s conduct was a superseding cause of the incident, severing the chain of causation between the Defendant’s alleged negligence and the injury.  ........ In denying Defendant’s Motion to Dismiss (ECF No. 30), this Court stated, “the Defendant’s [proximate cause] argument would be more appropriately addressed after discovery...” (ECF No. 41). Despite conducting extensive discovery, the Plaintiffs have failed to present evidence indicating that the Defendant knew or should have known that there was a risk of an adult lifting a child over the guardrail and through an open window. Further, Defendant presents evidence indicating the U.S. Coast Guard has no record of any prior incident reports involving similar incidents on any vessel. In the absence of any evidence indicating that the Defendant knew or should have known that individuals would act in the manner Mr. Anello did, this Court finds that no reasonable juror could find that Mr. Anello’s conduct was foreseeable.

If Grandpa hadn't picked her up and put her over the railing, none of this would have happened.  Since Grandpa plead guilty in court, his actions are criminal and could not be foreseen by RCI.  

 

d. Defendant had no duty to warn of the open and obvious danger of placing a child on or through an open window.

A shipowner’s duty of care “includes a duty to warn passengers of dangers of which the carrier knows or should know, but which may not be apparent to a reasonable passenger.” Taiariol v. MSC Crociere, S.A., No. 0:15-CV-61131-KMM, 2016 WL 1428942, at *3 (S.D. Fla. Apr. 12, 2016). “Where a danger is open and obvious, there is no duty to warn.” Yusko v. NCL (Bahamas) Ltd., 424 F. Supp. 3d 1231, 1234 (S.D. Fla. 2020)(citing Smith v. Royal Caribbean Cruises, Ltd., 620 F. App'x 727, 730 (11th Cir. 2015). “Open and obvious conditions are those that should be obvious by the ordinary use of one's senses.” Lancaster v. Carnival Corp., 85 F.Supp.3d 1341, 1344 (S.D.Fla.2015). In the instant case, the danger of lifting the Decedent over the handrailing and extending her out to the open window was open and obvious such that Defendant owed no duty to warn its passengers of the dangers of such conduct.

RCI has no duty to warn people not to do blatantly obviously stupid stuff that any normal human would know not to do.

The judge also started off explaining about summary judgment, lots of quotes from case law, etc.... basically all the stuff you said about facts vs evidence in the first place.  

Thank you for the quotes. The appellate court will of course review the whole file and should hopefully see that summary judgement was appropriate and dismiss the appeal, which should be the end of this sad saga.

[smalltimecruiser100]

The grandfather is the one who should be arrested and charged with the granddaughter's murder. 

[Baron Barracuda]

If the judge felt the outcome of the case was obvious perhaps he felt he was doing the parents a kindness by ending things now rather than forcing them to re-live the event throughout he trial.

[Tree_skier]

11 minutes ago, smalltimecruiser100 said:

The grandfather is the one who should be arrested and charged with the granddaughter's murder. 

He was. He pleaded guilty was given probation. 

[Two Wheels Only]

26 minutes ago, smalltimecruiser100 said:

The grandfather is the one who should be arrested and charged with the granddaughter's murder. 

 

14 minutes ago, Tree_skier said:

He was. He pleaded guilty was given probation. 

 

The guilty plea was for negligent homicide, not murder. 

[brillohead]

38 minutes ago, sparks1093 said:

Thank you for the quotes. The appellate court will of course review the whole file and should hopefully see that summary judgement was appropriate and dismiss the appeal, which should be the end of this sad saga.

You're very welcome.  Hopefully you can read the whole thing at some point -- I think you'll find it interesting.  

And yes, hopefully this whole thing will be finalized, at least legally.  While I can totally understand the parents' agony, it appears that their insistence on placing blame on RCI is not allowing them to move forward with their lives.

[time4u2go]

38 minutes ago, smalltimecruiser100 said:

The grandfather is the one who should be arrested and charged with the granddaughter's murder. 

You believe it was premeditated? 

[sparks1093]

35 minutes ago, Baron Barracuda said:

If the judge felt the outcome of the case was obvious perhaps he felt he was doing the parents a kindness by ending things now rather than forcing them to re-live the event throughout he trial.

If they didn't want to re-live the event then they shouldn't have brought suit.

[sparks1093]

2 minutes ago, time4u2go said:

You believe it was premeditated? 

I do have to admit (and I hate to) that part of me thought that while watching the video of the grandfather's actions. It was almost like he was scoping things out in order to do what he did. Of course that isn't sufficient to bring a murder charge without firmer evidence, but it was the first impression that I had.

[kearney]

I believe he pled guilty to a lesser charge... avoiding a trial for him and the cost of a trial for PR. I personally wonder if he had been drinking... originally thought perhaps he had vision issues..but that was never brought up...  Sad all the way around. The parents bringing suit made me think of the stages of grief... isn't the first denial? I mean..it must be very difficult to believe that your father or father in-law was responsible for the death of your child... seem automatic to look for a cause outside of...well ...the obvious. Really sad situation 

[rtazz17]

Agree with judge. No brainer imo,but you can start a lawsuit over anything. 

[smalltimecruiser100]

3 hours ago, Two Wheels Only said:

 

 

The guilty plea was for negligent homicide, not murder. 

In other words, he still got off. 

 

3 hours ago, time4u2go said:

You believe it was premeditated? 

No..Meant to say charge with her death not murder

[Tree_skier]

3 hours ago, Two Wheels Only said:

 

 

The guilty plea was for negligent homicide, not murder. 

I stand corrected.

[Another_Critic]

2 hours ago, kearney said:

I personally wonder if he had been drinking... originally thought perhaps he had vision issues..but that was never brought up...  

Anello said he had not been drinking.  He said he's color blind and therefore couldn't tell that there was an open window.  Apparently the story changed when that we debunked.