Wilkinson v. Carnival Cruise Lines, Inc.

Decision Date15 January 1991
Docket NumberNo. 89-6180,89-6180
Citation920 F.2d 1560
Parties32 Fed. R. Evid. Serv. 25 Marjetta WILKINSON, Plaintiff-Appellee, v. CARNIVAL CRUISE LINES, INC., Defendant-Appellant.
CourtU.S. Court of Appeals — Eleventh Circuit

Rodney Earl Walton, Kelley, Drye & Warren, Smathers & Thompson, Miami, Fla., for defendant-appellant.

Joel S. Perwin, Miami, Fla., Grover Miskovsky, Oklahoma City, Okl., Roger A. Vaughan, Jr., Wagner, Cunningham, Vaughan & McLaughlin, Tampa, Fla., for plaintiff-appellee.

Appeal from the United States District Court For the Southern District of Florida.

Before FAY and EDMONDSON, Circuit Judges, and TUTTLE, Senior Circuit Judge.

FAY, Circuit Judge:

Defendant-appellant Carnival Cruise Lines, Inc. ("Carnival") appeals from a final judgment entered in favor of plaintiff-appellee Marjetta Wilkinson for personal injuries sustained by plaintiff in an accident aboard one of Carnival's cruise ships. Although we AFFIRM the district court's refusal to grant Carnival a requested jury instruction on plaintiff's susceptibility to psychiatric injury, we agree with Carnival that the trial court improperly admitted certain hearsay statements, as well as evidence of a subsequent remedial measure. We therefore REVERSE the judgment of the district court and REMAND for a new trial.


Marjetta Wilkinson was a passenger on board the "Tropicale," a cruise ship owned by Carnival. On the afternoon of September 30, 1983, after sunning herself for a short time by the pool on the Lido Deck, Ms. Wilkinson left the pool area and walked barefoot towards an automatic, electronically activated sliding glass door on the port side of the ship. As she walked through the door, it closed, running over the toes of her right foot.

Ms. Wilkinson sued Carnival, seeking recovery based upon a negligence theory. 1 She alleged, among other things, that Carnival had failed to maintain the sliding glass door in good operating condition, had failed to warn her of the door's propensity to close without warning, and that the door had failed to operate in a reasonable and safe manner.

As the parties proceeded to trial, Carnival filed a motion for summary judgment, which the trial court referred to a magistrate for consideration, report and recommendation. In its motion, the cruise line contended that the mere occurrence of Ms. Wilkinson's accident, standing alone, did not prove negligence. Further, Carnival argued that the plaintiff could offer no admissible evidence that Carnival had notice of any problems with the sliding glass door before the plaintiff's accident.

Plaintiff responded by characterizing the matter as a "classic, garden variety negligence issue for the jury." With regard to the notice issue, plaintiff submitted the deposition testimony of Tracie Sanders, Ms. Wilkinson's travelling companion and cabin-mate. 2 Although Ms. Sanders did not witness the accident, she testified to having a conversation with a cabin steward, identified simply as "Fletcher," 3 shortly thereafter. According to Sanders, the steward came in and we were discussing the accident, he was wondering what had happened, and after I told him, he was real--you know, he felt real bad and said that he hated that that had happened and that they had been having problems with the door and that he was, you know, hoping they would get it fixed before it happened to a child, because there were children on the ship.

Deposition of Tracie Sanders, (R4-63 at 20). 4

Carnival argued that Ms. Sanders' alleged exchange with Fletcher was inadmissible hearsay and could not be used to prove notice on the defendant's part of any problem with the door in question. Plaintiff, however, countered that steward Fletcher's statement constituted a vicarious admission by the cruise line through its employee, and was therefore not hearsay pursuant to Fed.R.Evid. 801(d)(2)(D).

In response to plaintiff's contention that Fletcher's statement was an admission by Carnival, defendant submitted the affidavit of Jack Stein, an employee of Carnival's Operations Department. The affidavit declared that room stewards, cabin stewards and bellboys are the most junior employees aboard Carnival's vessels; that the function of room stewards is to clean rooms; and that room stewards are not authorized to speak or make admissions on behalf of Carnival, or to work on or speak about electrically operated sliding glass doors. Most important, Stein stated that room stewards are restricted to crew areas of the ship; they are not permitted to be in the passenger area near the pool where the sliding glass door that injured Ms. Wilkinson is located. Applying Rule 801(d)(2), the magistrate found that "the affidavit establishes that the statement made by a room steward to Ms. Sanders did not concern a matter within the scope of his agency or employment and therefore is inadmissible hearsay." Accordingly, the magistrate recommended that summary judgment be entered in favor of Carnival on the issue of negligence.

The district court overruled the Report and Recommendation of the magistrate as to the propriety of summary judgment, despite acknowledging that plaintiff's claims were "weak, at best," and "a step away from being foreclosed by the sliding doors of summary judgment." Defendant renewed its objection to the admissibility of the Fletcher statement at the beginning of the trial, moving in limine that the statement should be excluded as hearsay. The district court denied the motion, permitting the statement to come into evidence as an admission by a party-opponent under Rule 801(d)(2)(D), and expressly overruling the Magistrate's Report and Recommendation on the merits. 5

In the same Motion in Limine, defendant also sought to preclude plaintiff from offering any evidence of subsequent remedial measures taken by Carnival. Specifically, several passengers testified that following Ms. Wilkinson's accident, the sliding glass door was kept locked in an "open" position for the remainder of the voyage. The trial court initially denied defendant's motion to have such testimony excluded, and evidence of the door being kept open was admitted over objection. The court reversed its ruling the next day, acknowledging As the trial progressed, the jury heard the videotaped deposition of Rafael Marcialis, a ship's officer working on board the Tropicale. Marcialis had inspected the door immediately following Ms. Wilkinson's accident. After conducting several walk-throughs, he determined the door to be in "normal operating condition." In addition, Marcialis rendered an opinion that the door allowed adequate time for a person to pass through, and that it had been properly maintained. Marcialis stated that he was not aware of any prior or subsequent accidents involving the sliding door in question. 7

that Carnival's keeping the door locked in an open position was a type of remedial measure. It instructed the jury to disregard witness testimony "to the effect that the doors in question had been kept open for the remainder of the cruise." 6

Because Marcialis had testified that upon inspection the sliding door was in "normal operating condition," the district court determined that the door had been sufficiently opened (no pun intended) for plaintiff to reintroduce the evidence of the subsequent remedial measure--the locking of the door in an open position for the remainder of the cruise--for impeachment purposes. 8 The court therefore allowed the plaintiff to introduce the previously excised testimony of several witnesses pertaining to the open status of the door. 9

The jury ultimately found in favor of the plaintiff and awarded her $260,000 dollars. This figure was reduced by twenty percent as a result of plaintiff's comparative negligence. The court entered a final judgment for plaintiff, and denied defendant's motions for judgment notwithstanding the verdict, or alternatively, for new trial or remittitur. This appeal followed.

I. Admissibility of the Cabin Steward's Hearsay Statement.

We first consider the admissibility of certain alleged comments by a room steward, identified only as "Fletcher," to the effect that the Tropicale "had been having problems with the door and that [the steward] was ... hoping they would get it fixed before it happened to a child." This testimony, adduced at trial through the video deposition of Tracie Sanders, was vital to the plaintiff's case, as it was the only evidence offered to prove that Carnival had actual or constructive notice of the risk-creating condition, i.e. previous problems with the sliding door in question. 10

The district court admitted the Fletcher statements as relevant, non-hearsay testimony pursuant to Rule 801(d)(2)(D) of the Federal Rules of Evidence. This Rule provides that a statement is not hearsay if it is offered against a party and is "a statement by the party's agent or servant concerning a matter within the scope of the agency or employment, made during the existence of the relationship." Fed.R.Evid. 801(d)(2)(D). Carnival contends that such a ruling was reversible error, and that the district court should have adopted the evidentiary recommendation of the magistrate, who found that the cabin steward Fletcher's statement to Tracie Sanders did not concern a matter within the scope of his agency or employment, and was therefore inadmissible hearsay. We agree.

Nothing in Rule 801(d)(2)(D) prevents the out-of-court statements of low-level employees from coming into evidence as non-hearsay admissions of a party-opponent in appropriate factual scenarios. See, e.g., Zenith Radio Corp. v. Matsushita Elec. Ind. Co., 505 F.Supp. 1190, 1247 (E.D.Pa.1980) (requirement "of managerial responsibilities, if it remains valid after the enactment of the [Federal Rules of Evidence], is pertinent only to authorized admissions" under 801(d)(2)(C), and "not to vicarious admissions" under 801(d)(2)(D)). We wholeheartedly agree with ...

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