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Under Federal Rule of Civil Procedure 56, "summary judgment is appropriate where there 'is no genuine issue as to any material fact' and the moving party is 'entitled to a judgment as a matter of law.'"
Entertainment & Travel Alternatives, Inc. ("ETA") sold group cruise ticket bookings and offers motorcycle tours for its clientele while in certain ports of call. ETA had no contract with and was not sponsored by Royal Caribbean. Instead, Steven Wallach, the owner and President of ETA, purchased cruise tickets for members of ETA excursions, and the cruise line permitted the excursion members to bring and store their motorcycles onboard the vessel. At each tour location, ETA selected the motorcycle tour routes through a local representative, and Royal Caribbean had no involvement once excursion members left the ship. John Kadylak (Plaintiff), through ETA, booked a specialty excursion on Royal Caribbean's Explorer of the Seas, departing on April 24, 2014 from New Jersey. ETA required the Plaintiff to complete a Registration Form to verify that he had a minimum of 3,000 miles of motorcycle riding experience. The Plaintiff also completed an ETA Motorcycle Information Sheet. Defendant Denysov was the Staff Captain of Explorer of the Seas. Denysov decided to ride a motorcycle on St. Maarten with ETA. Denysov was never a formal participant of the ETA tour. He neither paid ETA any fees nor signed any paperwork, including the Registration Form or Motorcycle Information Sheet. Denysov never claimed that he had a minimum of 3,000 miles of motorcycle riding experience. After the ETA excursion members offloaded their motorcycles, the group assembled in front of the ship with Wallach and the road captains. Wallach accompanied Denysov to a rental shop to rent a Harley Davidson. Denysov told Wallach that he did not have experience driving a Harley Davidson motorcycle. Wallach used his credit card to pay for Denysov's rental. Denysov then got on the bike, gave it a little bit of gas and collided with Plaintiff, crushing the Plaintiff's leg between his motorcycle and another rider's. He acknowledged that the accident was his fault. He did not have a valid motorcycle license, had never ridden a motorcycle with as much horsepower as a Harley Davidson, and had not ridden or owned a motorcycle in five years. ETA argued that it is entitled to summary judgment because the Plaintiff signed a waiver and it did not have a duty to warn the Plaintiff of an open or obvious condition. The Plaintiff asserted that he never agreed to release ETA from liability and that ETA owed the Plaintiff a duty to make sure all of the participants in the ride were qualified to safely operate a motorcycle. The Plaintiff also asserted claims against Royal Caribbean for its own negligence as well as vicarious liability for the negligence of Denysov.
1. Was ETA entitled to a summary judgment?
2. Was Royal Carribbean entitled to a summary judgment?
In HMC Technologies Corp. v. Siebe, Inc., No. E2000-01193-COA-R3-CV, 2000 Tenn. App. LEXIS 779, 2000 WL 1738860 (Tenn. Ct. App. Nov. 27, 2000), a Tennessee Court of Appeals analyzed a hold harmless provision similar to the one on ETA's Motorcycle Information Sheet. In that case, the plaintiff sued to enforce an indemnification provision which provided: It is expected that Robertshaw Tennessee will hold HMC Technologies harmless to any claim of injury due to either the normal operation or the misuse of the proposed machinery. The court found that the language of the contract was "general, broad, and seemingly all inclusive." 2000 Tenn. App. LEXIS 779, [WL] at *3. "It did not express in clear and unequivocal terms an intent to require Robertshaw to indemnify HMC against HMC's own culpable conduct." Instead, the language of the contract could "fairly be interpreted as covering claims arising from the culpable conduct of Robertshaw." In light of the Tennessee cases, holding that general hold harmless provisions like the one at issue here do not indemnify a party against its own culpable conduct, the Court found the waiver in the Motorcycle Information Sheet did not bar the Plaintiff's claims of negligence against ETA. In negligence cases, the Supreme Court has held that a "shipowner owes the duty of exercising reasonable care towards those lawfully aboard the vessel who are not members of the crew." Kermarec v. Compagnie Generale Transatlantique, 358 U.S. 625, 630, 79 S. Ct. 406, 3 L. Ed. 2d 550 (1959). Once the passenger leaves the ship, the cruise line only "owes its passengers a duty to warn of known dangers beyond the point of debarkation in places where passengers are invited or reasonably expected to visit." Chaparro v. Carnival Corp., 693 F.3d 1333, 1336 (11th Cir. 2012). The Plaintiff cited no facts from which it may be inferred that Royal Caribbean knew or should have known of any dangerous or unsafe condition associated with the ETA tour. General maritime law recognizes the traditional principles of agency. Archer v. Trans/Amer. Servs., Ltd., 834 F.2d 1570, 1573 (11th Cir. 1988). Therefore, an employer may be found liable for the negligent acts of an employee acting within the scope of his employment. Franza v. Royal Caribbean Cruises, Ltd., 772 F.3d 1225, 1235-36 (11th Cir. 2014). In this case, there were no facts establishing a triable issue of fact regarding Denysov's agency relationship. The undisputed facts showed that Denysov was on the ETA tour for his own personal enjoyment. He was not ordered to be there by Royal Caribbean and it was not part of his duties as Staff Captain. Under Federal Rule of Civil Procedure 56, "summary judgment is appropriate where there 'is no genuine issue as to any material fact' and the moving party is 'entitled to a judgment as a matter of law.'" For the following reasons, the Court denied ETA's motion for summary judgment and granted Royal Caribbean's motion.