Samuels v. Holland American Line-USA Inc.

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

GERALD E. SAMUELS, 

Plaintiff-Appellant,

v. No. 10-35933

HOLLAND AMERICAN LINE–USA  D.C. No.

2:09-cv-01645-RSL

INC; HAL NEDERLAND NV CORP;

HOLLAND AMERICAN LINE NV; OPINION

HOLLAND AMERICA LINE INC,

Defendants-Appellees.



Appeal from the United States District Court

for the Western District of Washington

Robert S. Lasnik, Chief District Judge, Presiding

Argued and Submitted

July 15, 2011—Seattle, Washington

Filed September 2, 2011

Before: Ronald Lee Gilman,* Richard R. Clifton, and

N.R. Smith, Circuit Judges.

Opinion by Judge Gilman

*The Honorable Ronald Lee Gilman, Senior Circuit Judge for the Sixth

Circuit, sitting by designation.

16819

16822 SAMUELS v. HOLLAND AMERICAN LINE–USA

COUNSEL

Thomas A. Geisness, The Geisness Law Firm, P.S., Seattle,

Washington, Robert A. Clough, The Geisness Law Firm, P.S.,

Seattle, Washington, (on briefs) for the plaintiff-appellant.

Louis A. Shields, Nielsen Shields, PLLC, Seattle, Washing-

ton, for the defendant-appellee.

OPINION

GILMAN, Senior Circuit Judge:

Gerald E. Samuels and his children were passengers on a

seven-day cruise with the Holland American Line. During the

time that the cruise ship was anchored in Cabo San Lucas on

Mexico’s Baja Peninsula, the Samuels family visited the

nearby Lover’s Beach on their own. Samuels was seriously

injured by turbulent wave action while in the Pacific Ocean

at that location. He sued Holland American, alleging that the

cruise line breached its duty to warn him of the dangers asso-

ciated with swimming there.

The district court granted summary judgment in favor of

Holland American, holding that the cruise line did not have

a duty to warn Samuels because the conditions of the ocean

at Lover’s Beach were open and obvious and because there

was no evidence of particularly hazardous conditions or of

prior accidents at that location. Samuels now appeals from

that decision. For the reasons set forth below, we affirm the

judgment of the district court.

SAMUELS v. HOLLAND AMERICAN LINE–USA 16823

I. BACKGROUND

On November 22, 2008, Samuels and his two teenaged

children embarked on a seven-day cruise aboard a Holland

American vessel. The ship arrived in Cabo San Lucas, Mex-

ico, its first stop, on the morning of November 24, 2008, with

a scheduled departure time of 5:00 p.m.

Because he had never been to Cabo San Lucas before,

Samuels made several inquiries of unidentified Holland

American staff members regarding possible shore activities.

Samuels asserts that the staff assured him that he could visit

Cabo San Lucas and take a skiff to Lover’s Beach before

returning to the ship in time for the scheduled departure at

5:00 p.m.

When Samuels and his two children arrived at the pier in

Cabo San Lucas, they were met by several skiff-boat opera-

tors. Samuels made arrangements with one of the operators to

drop the three of them off at Lover’s Beach on the Sea of Cor-

tez side. Because Lover’s Beach is situated at the very tip of

the Baja peninsula, visitors have access to both the Sea of

Cortez and the Pacific Ocean. Lover’s Beach is a public beach

where no lifeguards are on duty and no warning signs are

posted regarding possible dangers in the area.

Samuels waded in the Sea of Cortez for about five minutes.

He then walked over to the Pacific Ocean side of Lover’s

Beach where he noticed about 20 people swimming in the

ocean. After observing that the waves did not seem particu-

larly rough, he entered the ocean for a few minutes before

returning to the beach. Shortly thereafter, Samuels reentered

the ocean in the same place and again waded in chest-deep

water. The next thing he remembers is feeling a “tremendous

pull up and back and then being upside down.” Samuels hit

his head on the ocean floor as he somersaulted, causing severe

neurological damage. He was carried to shore by bystanders

because the tumble had caused him to lose function in his

16824 SAMUELS v. HOLLAND AMERICAN LINE–USA

limbs. Samuels was later diagnosed with central-chord syn-

drome and is now classified as a high-functioning quadriple-

gic with significant pain and mobility limitations.

Prior to Samuels’s injuries, Holland American had been

sailing to Cabo San Lucas for 27 years. Approximately

96,000 Holland American passengers sailed on ships anchor-

ing in Cabo San Lucas in 2008 alone. Based on the sworn

declaration of the director of Holland American’s Risk Man-

agement Department, the cruise line’s claims database shows

no claims or complaints associated with the Pacific Ocean

side of Lover’s Beach. In addition, the director of Holland

American’s Fleet Security stated in his sworn declaration that

he was “not aware of any warnings provided by sister cruise

ship companies or Mexican authorities regarding unusual

risks associated with swimming” at Lover’s Beach on the

Pacific Ocean side. He also stated that Holland American has

“no control over the independent tour operators or water taxis

who promote their tours or services on the Cabo San Lucas

public pier and marina.” Holland American itself does not

own any property at Lover’s Beach.

As a result of his injuries, Samuels sued Holland American

for negligence, alleging that the cruise ship’s staff should

have warned him of the dangers of swimming on the Pacific

Ocean side of Lover’s Beach and that, had he received such

warnings, he would not have entered the ocean. Holland

American moved for summary judgment. In opposition to

Holland American’s motion, Samuels submitted the declara-

tions of two proffered experts, Dwight Hutchinson and Karin

Larson. Hutchinson worked in the cruise-line industry from

1987 until 2000, and between 1994 and 2000 he was the

Guest Programs Manager for Cruise West, a small-ship cruise

operator. He had never been to Lover’s Beach, and the last

time he dealt with shore excursions in Cabo San Lucas was

in 2000. In preparation for his deposition, Hutchinson

searched the internet for information regarding Lover’s Beach

for about an hour and spoke to a few former colleagues who

SAMUELS v. HOLLAND AMERICAN LINE–USA 16825

have worked in the cruise-line industry. He did not contact

any cruise lines comparable to Holland American for informa-

tion. Hutchinson also conceded at his deposition that he had

not done any research into the standard of care for the opera-

tion of shore-side activities by a cruise line since 2000.

In his sworn declaration, Hutchinson stated that “[i]t has

been common knowledge in the cruise industry for years that

entering the water on the Pacific Ocean side of Lover’s Beach

is extremely dangerous and should not be attempted.” But at

his deposition, Hutchinson was unable to point to any materi-

als from the cruise-line industry that supported this statement.

He also stated that he was unaware of any injuries, other than

Samuels’s, that have occurred on the Pacific Ocean side of

Lover’s Beach.

Larson was the other person that Samuels proffered as an

expert witness. She has worked in the travel industry since

1972, most recently for a company that offers custom travel

planning. Larson has traveled to Cabo San Lucas and has per-

sonally visited Lover’s Beach. In her sworn declaration, Lar-

son stated as follows:

I have been aware, since I first traveled to Cabo

San Lucas in 1976, that entering the water in any

way on the Pacific Ocean side of Lover’s Beach is

extremely dangerous. The danger is due to the con-

fluence of waters of the Pacific Ocean and the Sea

of Cortez which creates hazardous current condi-

tions, undertows[,] and varying wave action which

are not readily apparent. The danger presented and

the cause of the danger has been well known

throughout the travel industry for years.

Because of the danger of entering the water on the

Pacific side of Lover’s Beach, it was always my

practice and policy to advise any of our clients that

we directed to Lover’s Beach to avoid entering the

16826 SAMUELS v. HOLLAND AMERICAN LINE–USA

water on the Pacific Side and to only enter the water

on the Sea of Cortez side. I understand this to be an

industry wide practice.

Larson did not provide any information in her declaration

regarding where she had acquired this information or how she

derived her conclusions. Nor did Samuels present any evi-

dence in his opposition to Holland American’s motion for

summary judgment that contradicts the sworn declarations

made by the Holland American officials that the cruise line

had never received any claims or complaints regarding the

Pacific Ocean side of Lover’s Beach prior to Samuels’s inju-

ries.

The district court granted summary judgment in favor of

Holland American. In doing so, it struck the material portions

of Hutchinson’s and Larson’s declarations. It reasoned that

Hutchinson was not qualified to testify as an expert given his

lack of personal knowledge with regard to Lover’s Beach, his

lack of training in beach safety, his failure to establish that he

has the requisite knowledge of the cruise-line industry’s stan-

dard of care for warning passengers, and the fact that he had

not dealt with Cabo San Lucas shore excursions in more than

ten years. The material portions of Larson’s declaration were

similarly stricken “because she [did] not establish[ ] that she

is qualified to testify as an expert on the safety or the standard

of care for cruise lines.”

Having stricken these declarations, the district court held

that no genuine issue of material fact existed regarding

whether Holland American had a duty to warn Samuels about

the Pacific Ocean side of Lover’s Beach. The court concluded

that the ocean conditions at Lover’s Beach were open and

obvious, and because “there [was] no evidence of particularly

hazardous conditions or of prior accidents at Lover’s Beach,”

Holland American did not have a duty to warn Samuels about

swimming there.

SAMUELS v. HOLLAND AMERICAN LINE–USA 16827

On appeal, Samuels raises the following three arguments:

(1) that the district court abused its discretion in excluding the

testimony of Hutchinson and Larson, (2) that “the district

court erred in concluding that there was no evidence of the

existence of hazardous conditions at Lover’s Beach,” and (3)

that “the district court erred in concluding that the hazardous

conditions at Lover’s Beach were open and obvious as a mat-

ter of law.”

II. ANALYSIS

A. Standard of review

We review the district court’s grant of summary judgment

de novo. Chale v. Allstate Life Ins. Co., 353 F.3d 742, 745

(9th Cir. 2003). Summary judgment is proper where no genu-

ine issue of material fact exists and the moving party is enti-

tled to judgment as a matter of law. Fed. R. Civ. P. 56(a). In

considering a motion for summary judgment, we must draw

all reasonable inferences in favor of the nonmoving party.

Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S.

574, 587 (1986). The central issue is “whether the evidence

presents a sufficient disagreement to require submission to a

jury or whether it is so one-sided that one party must prevail

as a matter of law.” Anderson v. Liberty Lobby, Inc., 477 U.S.

242, 251-52 (1986).

We review a district court’s decision to exclude expert tes-

timony under the abuse-of-discretion standard. United States

v. Morales, 108 F.3d 1031, 1035 (9th Cir. 1997) (en banc). “A

district court abuses its discretion when it bases its decision

on an erroneous view of the law or a clearly erroneous assess-

ment of the facts.” Id. Under this deferential standard of

review, a “trial court has broad discretion in assessing the rel-

evance and reliability of expert testimony.” United States v.

W.R. Grace, 504 F.3d 745, 759 (9th Cir. 2007) (internal quo-

tation marks omitted).

16828 SAMUELS v. HOLLAND AMERICAN LINE–USA

B. Exclusion of expert testimony

[1] Rule 702 of the Federal Rules of Evidence provides

that expert testimony is admissible “[i]f scientific, technical,

or other specialized knowledge will assist the trier of fact to

understand the evidence or to determine a fact in issue.” A

witness who is qualified to testify as an expert through

knowledge, skill, experience, training, or education,

may testify thereto in the form of an opinion or oth-

erwise, if (1) the testimony is based upon sufficient

facts or data, (2) the testimony is the product of reli-

able principles and methods, and (3) the witness has

applied the principles and methods reliably to the

facts of the case.

Fed. R. Evid. 702.

[2] The district court’s gatekeeper role “entails a prelimi-

nary assessment of whether the reasoning or methodology

underlying the testimony is . . . valid and of whether that rea-

soning or methodology properly can be applied to the facts in

issue.” Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579,

592-93 (1993). This “duty to act as gatekeeper and to assure

the reliability of proffered expert testimony before admitting

it applies to all (not just scientific) expert testimony.” United

States v. Hermanek, 289 F.3d 1076, 1093 (9th Cir. 2002) (cit-

ing Kumho Tire Co. v. Carmichael, 526 U.S. 137, 147

(1999)). And “the word ‘knowledge’ connotes more than sub-

jective belief or unsupported speculation.” Daubert, 509 U.S.

at 590. The Daubert factors that a district court chooses to

consider will depend “on the nature of the issue, the expert’s

particular expertise, and the subject of his testimony.” Kumho

Tire Co., 526 U.S. at 150 (internal quotation marks omitted).

[3] In the case before us, the district court excluded the

sworn declarations proffered by Samuels’s expert witnesses to

the effect that entering the water on the Pacific Ocean side of

SAMUELS v. HOLLAND AMERICAN LINE–USA 16829

Lover’s Beach is extremely dangerous and that this danger is

commonly known throughout the cruise-line industry. As for

Hutchinson, he was unable to provide any materials from the

cruise-line industry to support his statement that it is common

knowledge that the Pacific Ocean side of Lover’s Beach is

extremely dangerous. Nor did Hutchinson contact any other

comparable cruise lines to inquire whether they warn passen-

gers about Lover’s Beach when they anchor in Cabo San

Lucas. Finally, he had not done any research into the standard

of care for shore-side activities since he left Cruise West in

2000. Given these facts, and the fact that Hutchinson’s

research included little more than a quick internet search

regarding Lover’s Beach and a few telephone calls, we con-

clude that the district court did not abuse its discretion in

striking the material portions of Hutchinson’s declaration.

[4] We also conclude that the district court did not abuse

its discretion by excluding the material portions of Larson’s

declaration. Her declaration established that she has worked

in the travel industry for over 30 years, but never for a cruise

line. More importantly, she failed to specify in her declaration

what information she relied on in reaching her conclusions.

Given the paucity of information relating to Larson’s qualifi-

cations as an expert on the possible dangers that exist on the

Pacific Ocean side of Lover’s Beach, and the absence of any

support for her opinions, the district court did not abuse its

discretion in striking the material portions of her declaration.

C. Duty-to-warn claim

[5] “To recover for negligence, a plaintiff must establish:

(1) duty; (2) breach; (3) causation; and (4) damages.” Morris

v. Princess Cruises, Inc., 236 F.3d 1061, 1070 (9th Cir. 2001).

“[T]he owner of a ship in navigable waters owes to all who

are on board . . . the duty of exercising reasonable care under

the circumstances of each case.” Kermarec v. Compagnie

Generale Transatlantique, 358 U.S. 625, 632 (1959); Peters

v. Titan Navigation Co., 857 F.2d 1342, 1344 (9th Cir. 1988)

16830 SAMUELS v. HOLLAND AMERICAN LINE–USA

(concluding in a maritime-tort action for negligence that,

because the plaintiff was not a seaman, the duty owed to him

was the “ordinary negligence duty of reasonable care under

the circumstances”).

[6] The degree of care considered reasonable in a particu-

lar circumstance depends upon the “extent to which the cir-

cumstances surrounding maritime travel are different from

those encountered in daily life and involve more danger to the

passenger.” Rainey v. Paquet Cruises, Inc., 709 F.2d 169, 172

(2d Cir. 1983) (affirming the district court’s dismissal of the

complaint where the alleged dangerous condition—the stool

over which the injured passenger tripped while dancing on the

ship’s dance floor—was “in no way peculiar to maritime trav-

el” and where the cruise line had no actual or constructive

notice that the stool in question was dangerous). Where the

condition constituting the basis of the plaintiff’s claim is not

unique to the maritime context, a carrier must have “actual or

constructive notice of the risk-creating condition” before it

can be held liable. Keefe v. Bahama Cruise Line, Inc., 867

F.2d 1318, 1322 (11th Cir. 1989) (establishing this require-

ment in a slip-and-fall case aboard a cruise ship); Isbell v.

Carnival Corp., 462 F. Supp. 2d 1232, 1237-38 (S.D. Fla.

2006) (applying this standard for injuries that a passenger sus-

tained while participating in an optional excursion in a rain-

forest).

[7] Construing the facts here in the light most favorable to

Samuels, there is no genuine dispute of material fact that

would require that this case be submitted to a jury. Samuels’s

wading on the Pacific Ocean side of Lover’s Beach was not

uniquely associated with maritime travel. And the record does

not include any evidence (particularly because the material

portions of the declarations made by Samuels’s experts were

properly stricken) that Holland American knew or should

have known that the Pacific Ocean side of Lover’s Beach was

so dangerous that it needed to warn passengers not to swim

there. With the exception of Samuels, 96,000 Holland Ameri-

SAMUELS v. HOLLAND AMERICAN LINE–USA 16831

can passengers visited Cabo San Lucas in 2008 without a sin-

gle report that any of those passengers who chose to visit

Lover’s Beach were injured while doing so.

Nor was Holland American aware of any similar accident,

or any accident at all, that had previously occurred while a

Holland American passenger was swimming on the Pacific

Ocean side of Lover’s Beach. See Isbell, 462 F. Supp. 2d at

1237-38 (concluding that Carnival Cruise Line did not have

constructive notice of the possible danger of a passenger

being bitten by a snake during an off-the-ship excursion in a

rain forest where Carnival had no report of this ever happen-

ing before to one of its passengers). Samuels has failed to pro-

vide any evidence to the contrary.

[8] Because Holland American had neither actual nor con-

structive notice of a dangerous condition on the Pacific Ocean

side of Lover’s Beach, it had no duty to warn Samuels about

swimming there. For this reason, we have no need to address

whether the possible dangers of swimming at that location

were open and obvious, or whether that question is an appro-

priate one for decision on summary judgment. We conclude,

in sum, that the district court properly granted summary judg-

ment in favor Holland American.

III. CONCLUSION

For all the reasons set forth above, we affirm the judgment

of the district court.