IN - Grandfather charged in cruise ship death of toddler Chloe Wiegand #6

[LietKynes]

Most definitely did, shoulders, head & arms to take photos.

Yes and it was obvious S.A. leaned forward and held Chloe outside of the window in the video-- as you just see his back from a profile view and his head/shoulders are outside the window.
He did dangle and drop her.

 

[justice4allnow]

I think so. Here's one of the videos that include that scene. Starts around the 0:35 mark. There are others but this is the best one I could find right now. I believe these are LE officers.

MsMarple, thank you

 

[LietKynes]

I don't think they ruled it out, so much as decided it would be too hard to prove beyond a reasonable doubt.

Every time I come back, there are so many comments to read that I lose track of my questions and comments before I get to the end.

Earlier, someone made a comment to the effect of "IF the lawyer could withdraw from the case." Does this mean that a lawyer, working on contingency, in a civil case cannot?

I will be on Adventure of the Seas at the end of next month. I will be sure to see if I can lean out, and take a picture.

bbm
You're correct.
They said this was a possible homicide from the beginning as well as negligent homicide which carries a lighter sentence.
Nothing has been ruled out.

 

[katydid23]

Somebody thought that it was not applicable to cruise ships. Winkleman, as a maritime lawyer, knows what is and what is not applicable to cruise ships, and that even if it was not at the time applicable to cruise ships, does not mean that a judge cannot find it relevant and decide to make it applicable.

Winkleman may know what is or isn't applicable to cruise ships, legally----but I don't trust him to be honest with that information in his statements. He has said many other things which are misleading, incorrect or wrong, so I have no faith that these 'safety standards' are indeed applicable to cruise liners. Especially when they were written for hotels.

 

[katydid23]

Even though it won't really impact the case I find the incongruities frustrating! Another example, my bolding...

From the Complaint:
17. There was not a single, adequate indication that this wall of glass panes was not actually a wall of fixed glass panes, but instead a wall of glass with glass panes that could actually slide and remain open, as windows. For instance, none of the glass panes, which were mere feet from the kids’ H2O Zone, contained a warning, design decal on the glass, or anything to warn passengers, such as Mr. Anello, of the hidden danger that some of the glass pane windows in the middle row may be slid open
Complaint - Wiegand vs Royal Caribbean Cruises LTD - LMAW, PA
From the Preliminary Response to Dismiss:
Distance from H2O Zone to window = 43.33 feet.
Wiegand Prelim Response to Dismiss 3.pdf

Good point.

And they failed to mention that the windows were tinted, so there was VISUAL EVIDENCE that some windows were open as opposed to being closed.

Once the jury sees pictures of that 'wall of glass' it will be obvious which ones were open, which were not.

 

[katydid23]

Yup, he can still be found to be negligent. That is for the judge and jury to decide. But there are two cases, one to decide SA's negligence, and one to decide RCCL's negligance. What he did is one part, what the conditions of the ship was is another.

The 'conditions' of the ship? You mean the fact that the highest row of windows could be slid open for air?

 

[Lawsmygame2]

I thought I would share my research on civil suits claiming negligence and criminal charges for negligent homicide. I apologize if this has previously been discussed by others. Disclaimer: This research is not based on, and does not include, court opinions (case law). This research is basic and is only a starting point (not all inclusive) to very complex issues. Based on my research:

For a civil claiming negligence, to be successful the plaintiff(s) must prove: 1. Duty; 2. Breach; 3. Causation; and 4. Damages.

For a conviction for negligent homicide, the prosecution must prove the defendant killed another person through gross negligence or without malice.

In a civil suit for negligence, if the plaintiff fails to prove just one element, the plaintiff may not be able to prove negligence. Example: As in the Wiegand’s suit, if RCCL acted with reasonable care, then the plaintiff may not be able to prove negligence.

In the civil suit, the defendant (RCCL) can overcome a negligence complaint by showing:

Assumption of Risk - If the defendant can show the plaintiff was doing something dangerous that could cause harm to the person but that person was made aware of the risk and understood that the situation was dangerous and could possibly cause injuries but accepted the risk.

For example:

Comparative Fault - If the defendant can prove the plaintiff contributed to his own injury.

Intervening or Superseding Act - If a defendant can show that he may have been negligent but his negligence did not cause the plaintiff’s injury but another unforeseeable occurrence caused the injury.

In the criminal negligent homicide case, the prosecution must prove that the defendant (SA) acted in a way that is an extreme departure from the way a “reasonable” person would act in the same or similar situation and involves an indifference or disregard for human life or for the safety of other individuals. (May vary by states).

Civil negligence cases involve a lesser “burden of proof” compared to criminal negligence cases. The plaintiff in a civil negligence case only has to prove by a preponderance of evidence that the defendant was negligent. In a criminal negligence case, the prosecutor is required to prove “beyond a reasonable doubt” that the defendant is guilty.

IMO, although SA/MA are pushing the colorblind story hard, for obvious reasons SA will be found guilty of negligent homicide and the Wiegand’s will lose their civil suit claiming negligence.

 

[katydid23]

Not if the windows in question are remedied to be prevented from opening more than 4 inches.

Sure they can. There are balconies and the ship's railings. Or are we going to put a big huge cage around the boat from now on?

 

[LietKynes]

Yup, he can still be found to be negligent. That is for the judge and jury to decide. But there are two cases, one to decide SA's negligence, and one to decide RCCL's negligance. What he did is one part, what the conditions of the ship was is another.

Emph. mine

I wouldn't know about the conditions of the ship but from the videos and photo evidence presented -- the conditions of RCCL's ships are not at fault.
Plus, I wasn't there for a cruise at that time or any other time.
Were you there when this happened ?
Serious question as you seem to point out in post # 1771 that a newborn's head could not breech a 4 inch window gap; but everyone knows this already.
They do not need to lock all of the window due to negligent homicide or worse.

 

[katydid23]

It is not the circumstances, or how it happens. The common and preventable element in other hypothetical cases would be the open window.

"How would that future hypothetical have anything to do with this particular case, which is nothing like thAt? In Chloe's tragic death, her caregiver physically placed her in a deadly situation and she died a brutal death."

Because there was an open window.

But that open window was TOO HIGH up for the child to get to. And there was a guard rail in place, to prevent adults from placing children or objects past that barrier.

Grandpa breached that barrier and placed a vulnerable helpless baby on that dangerous ledge.

A reasonable person woulds have recognised the danger. A reasonable person would have known that window was open.

A reasonable person would not have placed a child up and over that protective guard rail.

 

[they'll get you]

Were you able to put your head out the window or if you didn't, would you think you would've been able to?

Most definitely did, shoulders, head & arms to take photos.

 

[katydid23]

Part II - Conversely, a question for the jury - should RCCL have foreseen that the open windows in that area could have contributed to a child falling out and off the ship, especially when they also are charged with caring for the health and safety of minors?

I don't think RCCL should have foreseen this tragedy.

Everyone who sees what this man did is shocked and repulsed by his recklessness. Who would have thought an adult would put their baby up in that window ledge---open or closed?

 

[katydid23]

I think you have a good understanding of what is being alleged by both parties.

One thing I would like to add is - and I've only recently found this out - is that there apparently is no objective definition of a responsible person.

"In law, a reasonable person, reasonable man, or the man on the Clapham omnibus[1] is a hypothetical person of legal fiction crafted by the courts and communicated through case law and jury instructions.[2]"

"Strictly according to the fiction, it is misconceived for a party to seek evidence from actual people in order to establish how the reasonable man would have acted or what he would have foreseen".

"While there is a loose consensus in black letter law, there is no accepted technical definition."
Reasonable person - Wikipedia

One question for a jury to decide is "Could a reasonable person have thought that an open window was closed?".

Well, if we look at the legal definition of a 'reasonable person', Grandpa fails the test.

"Reasonable Person. A phrase frequently used in tort and Criminal Law to denote a hypothetical person in society who exercises average care, skill, and judgment in conduct and who serves as a comparative standard for determining liability."

So, Is SA someone who ' exercises average care, skill, and judgment in conduct ?'

Does SA exercise 'average care' with his grand baby? I say NO. I think any reasonable jury will say no.

Does he have average skill level in his endeavour? Again, I'd say NO. He failed miserably at the task of childcare. Very poor skills.

How about his judgment? Ummmmm....very poor judgment. Very very poor judgment.

And his conduct?


I'd say that Grandpa failed the 'reasonable person' standard, no doubt at all.

 

[they'll get you]

@ 0:52 there is a woman standing relaxed at the window.
She is slumped and leaning on the railing.
If she straightened up and stretched herself you can see she’d be able to look out, armpits and head and then be able to stretch her arms a further 2’ out.

Our favourite video yet again.

 

[al66pine]

Upcoming Features for Freedom of the Seas.

"Next drydock Jan 19 to Mar 1, 2020. Adding Hooked Seafood, .... Laser Tag, the Perfect Storm (waterslide), Sky Pad (bungee trampoline). "

Trampolines: More or less dangerous than being w SA?
----------------------------------------------------------------------------------
^ Info per cruisedeckplans.com. Freedom of the Seas Deck 11 Deck Plan Tour
Bungee Trampoline is shown as also available on Enchantment of the Seas. Pix at ---
Royal Caribbean Enchantment of the Seas Photo Slideshow
Royal Caribbean Enchantment of the Seas Photo Slideshow

 

[katydid23]

No, I am just presenting the other side of the case.

IMO, Not sure he can actually be proved to be lying. The simplest explanation might be that he really did think there was glass there, and what does that mean, if he is not lying about that?

They really do seem to be a close-knit and loving family, seemed to love Chloe with all their hearts.

I know everyone, myself included has experienced a lot of anger over the death of that poor little innocent girl and look for an explanation for how this could happen. However it happened, awareness should be raised about it, IMO, through discussion.

I don't see how the simplest explanation would be that he really thought there was glass there.

There are so many things I need to ignore for that to be true.

 

[katydid23]

This one is a puzzler......

Unless, in a misguided fashion, SA thought he was being more careful by having Chloe at eye level, instead of trying to stoop down beneath the railing himself, where she was. Fateful decision. IMO

How could it possibly, by any measure, be seen as 'more careful' for him to put her up and over a guard rail, and stand her on the highest window ledge---as opposed to her simply standing at the bottom window, and looking through that glass?

If you are sincere when you say you are looking at this impartially, then I am baffled at the above statement.

 

[katydid23]

They have shown that they can "reach" their hand or arm out the window. They have not shown that they can reach their entire upper body out the window, which is RCCL says SA did. To do that, their feet would have to leave the floor. I have not seen any evidence to the contrary. IMO

But if SA reached his hand out the window, then he'd know there was no glass there, right?

 

[MassGuy]

How could it possibly, by any measure, be seen as 'more careful' for him to put her up and over a guard rail, and stand her on the highest window ledge---as opposed to her simply standing at the bottom window, and looking through that glass?

If you are sincere when you say you are looking at this impartially, then I am baffled at the above statement.

If the window is closed, he still risks serious injury to her if he drops her.

That alone is reckless.

Of course the window was open, and the worst possible thing happened.

 

[Wehwalt]

Earlier, someone made a comment to the effect of "IF the lawyer could withdraw from the case." Does this mean that a lawyer, working on contingency, in a civil case cannot?

A lawyer needs the court's permission to withdraw from a case. Contingency fee or otherwise, you still need permission.
Reasons for withdrawal might include the request of the client (i.e. being fired) or the client not fulfilling financial obligations. I had a case once where the client instructed me to lie in a pleading and I withdrew.