Joann Yusko v. NCL (Bahamas), Ltd.


USCA11 Case: 20-10452 Date Filed: 07/12/2021 Page: 1 of 13 [PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT ________________________ No. 20-10452 ________________________ D.C. Docket No. 1:19-cv-20479-KMM JOANN YUSKO, Plaintiff-Appellant, versus NCL (BAHAMAS), LTD., d.b.a. Norwegian Cruise Line, Defendant-Appellee. ________________________ Appeal from the United States District Court for the Southern District of Florida ________________________ (July 12, 2021) Before MARTIN, GRANT, and BRASHER, Circuit Judges. BRASHER, Circuit Judge: This appeal requires us to decide whether a shipowner is liable under maritime law when its employee negligently injures a passenger. After falling during a dance USCA11 Case: 20-10452 Date Filed: 07/12/2021 Page: 2 of 13 competition on a cruise ship, passenger Joann Yusko sued the ship’s owner NCL (Bahamas), Ltd., for negligence. She alleged that her partner in the competition—a professional dancer and cruise ship employee—released her hands as she leaned away from him during a dance move, causing her to fall backward and hit her head on the deck. The district court granted summary judgment in favor of NCL because NCL did not have actual or constructive notice of a risk-creating condition on the ship. But the district court applied the wrong standard. Our precedent assumes—and today we expressly hold—that when a passenger makes a maritime negligence claim against a shipowner based on an employee’s negligence under a theory of vicarious liability, the passenger need not establish that the shipowner had actual or constructive notice of a risk-creating condition. Accordingly, we reverse and remand. I. BACKGROUND NCL owns a cruise ship called the Norwegian Gem. Near the end of 2017, Yusko—who was 64 years old at the time—boarded the Norwegian Gem for a ten- day cruise. One evening during the cruise, Yusko volunteered to participate in a dance competition called “Dancing with the Stars.” The “stars” in question were crewmembers employed by the ship, and the competition was an informal event where passengers were judged based on how entertaining they were. The organizers of the competition paired Yusko with crewmember and 2 USCA11 Case: 20-10452 Date Filed: 07/12/2021 Page: 3 of 13 professional dancer Michael Kaskie. While dancing, Kaskie performed multiple dance movements in which he spun Yusko while holding her arms. Yusko danced for less than a minute before falling backward and hitting her head during one of those movements. After the fall, Yusko received treatment onboard the ship and completed the cruise. Upon her return home, multiple physicians diagnosed her with a traumatic brain injury as a result of her fall. Yusko sued NCL in the United States District Court for the Southern District of Florida. In her amended complaint, Yusko alleged that NCL through its agents and employees was negligent in (1) its own failure to exercise reasonable care under the circumstances and (2) Kaskie’s failure to act reasonably and in a manner that would keep Yusko safe. After discovery, NCL moved for summary judgment. In its order granting NCL’s motion, the district court cited our decision in Keefe v. Bahama Cruise Line, Inc., 867 …

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