ATLANTA (CN) - The parents of an 18-month-old girl who died after falling through an open cruise ship window took their fight against Royal Caribbean to the 11th Circuit on Thursday, after a Florida federal judge ruled in favor of the cruise line in a negligence lawsuit.
Alan Wiegand and Kimberly Schultz-Wiegand sued Royal Caribbean Cruises after the July 2019 death of their daughter, Chloe Wiegand. The toddler fell from her grandfather's arms and through an open window on a cruise ship docked in San Juan, Puerto Rico, plummeting 150 feet to the pier below.
A Florida federal judge threw out the lawsuit two years later, ruling that the grandfather, Salvatore "Sam" Anello, was responsible for the child's death, not Royal Caribbean.
An attorney for the Wiegands asked a three-judge panel of the 11th Circuit on Thursday to reverse the decision, arguing that a jury should decide whether the cruise company should have known such a deadly incident was possible and put preventative measures in place.
The panel of judges seemed to agree that some danger was present that day on the cruise ship, but questioned whether the cruise line could have anticipated that a child would fall out of the 11th floor window in the specific circumstances of this case.
The Wiegands attorney, Michael Winkleman of Lipcon Margulies & Winkelmann, told the panel that Royal Caribbean failed to utilize fall prevention devices recommended by the American Society for Testing and Materials despite estimates showing more than 5,000 children are injured in window falls in the United States annually.
Winkleman argued that Royal Caribbean knew the windows were a fall hazard, pointing to the cruise line's guest conduct policy against standing or climbing "on, over or across" railings. The attorney also said that the company did not adequately mark the open windows.
"Mr. Anello's conduct is completely irrelevant because if they had had a screen on there, or guards on there, or if they had a window that only opened four inches - Chloe could not have died in those circumstances," Winkleman said. "If they didn't want to follow any of those well-established guidelines, then put a warning on [the window.]"
An attorney for Royal Caribbean told the panel that there was simply no way the cruise company could have foreseen Anello's decision to lift the toddler over the railing and into the open window.
"The bottom line here is this incident has never occurred before. This ship has been sailing since 2004 and there has been no incident where any passenger has fallen out one of these windows," attorney Michael Dono of Hamilton Miller & Birthisel argued on behalf of the cruise company.
Though Anello repeatedly said he did not know the window in a children's play area of the ship was open when he held his granddaughter up to it, he testified in court that he did not feel any glass when he leaned forward.
According to court filings, Anello lifted Chloe to the railing so she could bang on the glass just like she enjoyed doing at her older brother's hockey games. The toddler leaned forward and, without any glass to support her weight, slipped out of her grandfather's arms.
Anello pleaded guilty to negligent homicide and was sentenced to three years of probation.
U.S. District Judge Donald Graham ruled that the danger of lifting the child over the handrailing and holding her out to an open window was so obvious that the cruise line did not have a duty to warn passengers that it might be unsafe to do so.
"The danger associated with Mr. Anello's conduct bears no significant connection to [Royal Caribbean's] warnings to passengers," the George H.W. Bush appointee ruled, adding that "a reasonable person through ordinary use of his senses would have known of the dangers associated with Mr. Anello's conduct."
Dono urged the panel to uphold Graham's findings, arguing that there is a "general fall hazard" on a cruise ship but that there is no reason Royal Caribbean should have known that Anello would put his granddaughter over the railing and onto the windowsill.
U.S. District Judge Corey Maze, sitting by designation from the Northern District of Alabama, questioned whether the measures the cruise company did take to prevent people from falling out of windows could poke holes in its arguments.
"You've taken measures to make it harder for somebody to fall out the window. You have the distance between the window and rail. Which means you can at least - that theoretically it's possible someone could fall out the window, right? Maybe not the way this happened, but in a general sense," asked Maze, a Trump appointee.
Obama-appointed U.S. Circuit Judge Jill Pryor also questioned whether testimony from a former Royal Caribbean chief security officer who saw many instances of adults holding children up to windows and on railings wouldn't have alerted the cruise company to a problem.
But Dono countered that the security officer was concerned about people putting children on railings, not extending them out into a windowsill. Surmounting one of the safety measures does not necessarily lead directly to falling out of the window, the attorney said.
"You had a person who deliberately picked up this child and put them outside on the windowsill," Dono said. "The issue is the danger presented by the window, not the railing."
Pryor and Maze were joined on the panel by U.S. Circuit Judge Britt Grant, a Trump appointee.
The panel did not indicate when they will issue a decision in the case.
Source: Courthouse News Service