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holding that evidence that substance was on floor for 15 to 20 minutes was sufficient to establish material issue of fact on constructive notice
Summary of this case from Plott v. NCL Am., LLCOpinion
Case No. 15–23035–CIV–WILLIAMS
08-25-2016
George THOMAS, Plaintiff, v. NCL (BAHAMAS), LTD., Defendant.
Michael T. Flanagan, The Flanagan Law Firm, Coral Gables, FL, Brandon L. Chase, Brandon L. Chase, P.A., Miami, FL, for Plaintiff. Brett Michael Berman, Noah Daniel Silverman, Amanda Jean Sharkey Ross, Brian Jonathan Abergel, Jeffrey Eric Foreman, Foreman Friedman, P.A., Marcus G. Mahfood, The Chartwell Law Offices, LLP, Miami, FL, for Defendant.
Michael T. Flanagan, The Flanagan Law Firm, Coral Gables, FL, Brandon L. Chase, Brandon L. Chase, P.A., Miami, FL, for Plaintiff.
Brett Michael Berman, Noah Daniel Silverman, Amanda Jean Sharkey Ross, Brian Jonathan Abergel, Jeffrey Eric Foreman, Foreman Friedman, P.A., Marcus G. Mahfood, The Chartwell Law Offices, LLP, Miami, FL, for Defendant.
ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT'S MOTION FOR SUMMARY JUDGMENT
KATHLEEN M. WILLIAMS, UNITED STATES DISTRICT JUDGE
THIS MATTER is before the Court on the motion for summary judgment filed by Defendant NCL (Bahamas) Ltd. d/b/a Norwegian Cruise Line ("NCL") (DE 31), to which Plaintiff George Thomas filed a response in opposition (DE 36), and NCL a reply. (DE 41). For the reasons set forth below, the motion is GRANTED IN PART AND DENIED IN PART.
I. BACKGROUND
This tort action arises from the injuries Plaintiff George Thomas sustained while a passenger aboard NCL's cruise ship, the Jewel, on March 12, 2015. (Deposition of George Thomas ("Thomas Dep."), DE 31-1 at 56). The single count of the Second Amended Complaint alleges that NCL's negligence makes it liable for Plaintiff's injuries that occurred when he slipped and fell on an exterior deck, causing him to fracture his leg. (DE 19 ¶ 7).Plaintiff's slip and fall occurred on Deck 13 of the Jewel at approximately 6:59 p.m. (DSF, DE 31 ¶ 4; PSF, DE 36 ¶ 4). Plaintiff testified that he was familiar with Deck 13 and was walking the deck in search of his family for dinner. (Thomas Dep., DE 31-1 at 85-86). According to Plaintiff's deposition testimony, while he was walking the deck, his right foot slipped forward. (Thomas Dep., DE 31-1 at 99). Plaintiff attempted to catch himself with his left leg, but he fell, fracturing his leg. (Id. ). He testified that he did not see a puddle or other liquid on the ground before his fall, but that when he sat up, there was a sizeable amount of fluid on his legs and clothes, which consisted of a clear, sticky, gooey substance. (Thomas Dep., DE 31-1 at 91-92). During his deposition, he described the substance as being dirty, with crystals in it, and likened the substance to a margarita. (Id. ).
Vitus Rodrigues, an NCL employee, was tasked with cleaning Deck 13 when Plaintiff's accident occurred. (DSF, DE 31 ¶ 4; PSF, DE 36 ¶ 4). According to Rodrigues' deposition testimony and the closed-circuit television ("CCTV") footage of Deck 13 submitted by NCL, Rodrigues was cleaning the deck, including the area where Plaintiff slipped and fell, five minutes before Plaintiff's accident. (DSF, DE 31 ¶ 6; PSF, DE 36 ¶ 6; DE 33). NCL has policies and procedures in place where an employee who spots a spill or puddle on the deck must block it off until it is cleaned up. (DSF, DE 31 ¶ 7; PSF, DE 36 ¶ 7). Rodrigues testified that he did not see a puddle, and therefore did not cordon off the area in which Plaintiff fell. (DSF, DE 31 ¶ 5; PSF, DE 31 ¶ 5).
After the close of discovery, NCL filed its motion for summary judgment on both Plaintiff's duty to warn claim regarding the puddle and Plaintiff's negligent installation or design claim regarding the surface of Deck 13. Plaintiff filed a response in opposition to NCL's motion, and NCL a reply. This Order follows.
II. LEGAL STANDARD
Summary judgment is appropriate "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). Under this standard, "[o]nly disputes over facts that might affect the outcome of the suit under the governing [substantive] law will properly preclude the entry of summary judgment." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Any such dispute is "genuine" only "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Id.
In evaluating a motion for summary judgment, the Court considers the evidence in the record, "including depositions, documents, electronically stored information, affidavits or declarations, stipulations ..., admissions, interrogatory answers, or other materials ...." Fed. R. Civ. P. 56(c)(1)(A). The Court "must view all the evidence and all factual inferences reasonably drawn from the evidence in the light most favorable to the nonmoving party, and must resolve all reasonable doubts about the facts in favor of the non-movant." Rioux v. City of Atlanta, 520 F.3d 1269, 1274 (11th Cir.2008) (quotation marks and citations omitted). At the summary judgment stage, the Court's task is not to "weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial." Anderson, 477 U.S. at 249, 106 S.Ct. 2505.
Claims arising from alleged tort actions aboard ships sailing in navigable waters are governed by general maritime law. Keefe v. Bahama Cruise Line, Inc., 867 F.2d 1318, 1320 (11th Cir.1989). Under maritime law, a shipowner has a duty to exercise reasonable care to those aboard the vessel who are not members of the crew. Kermarec v. Compagnie Generale Transatlantique, 358 U.S. 625, 630, 79 S.Ct. 406, 3 L.Ed.2d 550 (1959). However, a shipowner "is not liable to passengers as an insurer, but only for its negligence." Keefe, 867 F.2d at 1322. To prove negligence, Plaintiff must show: (1) that Defendant had a duty to protect Plaintiff from a particular injury; (2) that Defendant breached the duty; (3) that the breach was the actual and proximate cause of Plaintiff's injury; and (4) that Plaintiff suffered damages. Chaparro v. Carnival Corp., 693 F.3d 1333, 1336 (11th Cir.2012). In maritime claims against a vessel owner, a plaintiff must show that a shipowner had "actual or constructive notice of the risk-creating condition" before negligence liability can be imposed. Keefe, 867 F.2d at 1322. Finally, while maritime law controls, the Court may rely on state law to supplement maritime law so long as it does not alter or overrule maritime law. Fad d ish v. Buffalo Pumps, 881 F.Supp.2d 1361, 1368 (S.D.Fla.2012).
III. DISCUSSION
A. Plaintiff's Failure to Warn Claim
"[U]nder federal maritime law, an operator of a cruise ship has a duty to warn of known dangers that are not open and obvious." Frasca v. NCL (Bahamas) Ltd. , 654 F.Appx. 949, 952, No. 14–11955, 2016 WL 3553217, at *2 (11th Cir. June 30, 2016) (citations omitted). NCL argues that it did not have prior knowledge of the danger of the puddle, and that the danger was open and obvious to Plaintiff. Thus, in order to defeat summary judgment in favor of Defendant, Plaintiff must raise a genuine issue of material fact as to (1) whether Defendant had notice, either actual or constructive, of the puddle, and (2) whether the dangerous condition was open and obvious. See id.
In its motion, NCL relies principally on the deposition testimony of Rodrigues, the employee tasked with cleaning the area in which Plaintiff fell, who testified that he did not see a puddle while cleaning in and around the area minutes before Plaintiff's accident. NCL also relies on CCTV footage showing passengers passing in or near the area of the puddle without incident in the ten minutes before Plaintiff's accident. In addition, it points out that there is no evidence of previous slip and falls in the same area to provide it with constructive notice of the puddle.
In opposing NCL's motion, Plaintiff relies on his deposition testimony that the substance he slipped in was clear, slimy, and/or gooey, and that it was dirty or contained crystals. He likened the substance to that of a margarita. While Plaintiff did not see the puddle prior to his accident, he testified that a sizeable amount of the substance had gotten onto his clothes and legs in the course of his fall. In addition, Plaintiff argues that the CCTV footage and Rodrigues' testimony showing Rodrigues cleaning in and around the area of Plaintiff's fall approximately five minutes before Plaintiff's accident goes toward putting NCL on constructive notice of the puddle. Finally, Plaintiff argues that the CCTV footage, which begins fifteen minutes before Plaintiff's accident, does not show anyone or anything creating a puddle, which gives rise to an inference that the puddle existed at least that long before Plaintiff slipped.
Although NCL strenuously argues that Plaintiff cannot prove constructive notice because there is no evidence of other slip and falls on the deck to put it on constructive notice, evidence of substantially similar accidents is but one of the ways a plaintiff may prove a defendant's constructive notice of a defective condition. See, e.g., Jones v. Otis Elevator Co., 861 F.2d 655, 661–62 (11th Cir.1988) ("We have held that ‘evidence of similar accidents might be relevant to the defendant's notice ...’) (quoting Ramos v. Liberty Mutual Ins. Co., 615 F.2d 334, 338 (5th Cir.1980) ) (emphasis added); Doudeau v. Target Corp., 572 Fed.Appx. 970, 972 (11th Cir.2014) (testimony from defendant's employee that area of slip and fall was a known danger when it rained created an issue of fact regarding defendant's notice); Garcia v. Target Corp., No. 13–cv–60308, 2014 WL 505151, at *3 (S.D.Fla. Feb. 7, 2014) (witness testimony regarding footprints in water precluded summary judgment on defendant store's notice of a puddle). In premises liability cases, for example, a plaintiff may prove constructive notice if he shows that a dangerous condition existed on the floor for a sufficient length of time, which Florida courts have found to be 15-20 minutes. Hill v. Ross Dress for Less, Inc., No. 12–23368, 2013 WL 6190435, at *4 (S.D.Fla. Nov. 26, 2014) (citations omitted).
In addition, NCL's authority regarding notice is distinguishable on the facts and the law because the cases involve negligent installation or design theory of liability. For example, in Sorrels v. NCL (Bahamas) Ltd., 796 F.3d 1275, 1287–88 (11th Cir.2015), the Eleventh Circuit affirmed the district court's exclusion of evidence regarding 22 dissimilar slip and falls where the plaintiffs sought to introduce them to prove that NCL had installed a deck surface that did not comport with the industry standard for the deck's coefficient of friction. See also Taiariol v. MSC Crociere , S.A., 2016 WL 1428942, at *4–5 (S.D.Fla. Apr. 12, 2016) (finding no evidence of other accidents involving metal stair nosing that would put cruise ship on notice that use of nosing on theater's stairway was a dangerous condition) (on appeal); Cohen v. Carnival Corp., 945 F.Supp.2d 1351, 1356 (S.D.Fla.2013) (finding no actual or constructive notice of a defective gangplank where plaintiff failed to proffer evidence of substantially similar accidents of passenger's trip and fall on gangplank's stairs); Frasca v. NCL (Bahamas) Ltd., No. 12–20662–CIV–JG, 2014 WL 1385806 (S.D.Fla. April 9, 2014), rev'd and remanded by 654 F.App'x 949, 2016 WL 3553217 (11th Cir. June 30, 2016) (reversing summary judgment entered in favor of NCL where there were genuine issues of material fact regarding whether the slippery condition on the deck was open and obvious and whether Defendant had prior notice of the slippery condition where Plaintiff introduced expert report showing that deck in question was unreasonably slippery when wet).
The CCTV footage submitted by NCL begins fifteen minutes before Plaintiff's fall. The footage does not show anyone spilling a drink, or otherwise creating the puddle in which Plaintiff slipped, prior to his accident. Even though Rodrigues testified that there was no puddle, the Court must construe inferences in the light most favorable to Plaintiff. Here, that means the Court must infer that the puddle existed for at least fifteen minutes based on Plaintiff's testimony regarding the gooey substance on his legs and clothes after his fall and the CCTV footage showing no one creating the puddle within that timeframe. Accordingly, the Court finds that Plaintiff has created an issue of fact regarding NCL's constructive notice of the puddle's existence. See Hill, 2013 WL 6190435, at *4. Thus, summary judgment on this issue is not warranted.
NCL next argues that the puddle was an open and obvious condition, and therefore it had no duty to warn Plaintiff. The authority NCL relies on, however, is readily distinguishable from the instant case. Luther v. Carnival Corp., 99 F.Supp.3d 1368 (S.D.Fla.2015) (finding a slick deck caused by water from rain or mist was an open and obvious danger); Cohen v. Carnival Corp., 945 F.Supp.2d 1351 (S.D.Fla.2013) (trip and fall on stairs on a gangplank was open and obvious danger); Lancaster v. Carnival Corp., 85 F.Supp.3d 1341 (S.D.Fla.2015) (granting summary judgment in favor of cruise line where that a piece of luggage over which Plaintiff tripped and fell posed an open and obvious danger, but denying motion as to overcrowding in corridor during debarkation); Lugo v. Carnival Corp., 154 F.Supp.3d 1341 (S.D.Fla.2015) (bunkbed ladder that did not extend all the way to ground in Plaintiff's cabin was an open and obvious danger); Poole v. Carnival Corp., No. 14–20237–MGC, 2015 WL 1566415 (S.D.Fla. Apr. 8, 2015) (glass door that plaintiff ran into was open and obvious because she had passed through it before the incident, and the door was marked by stickers in the glass's center and on the handle and a warning sign on the frame). The Court finds there are disputed issues of material fact regarding whether a puddle consisting of a clear, gooey, slimy substance on a deck is an open and obvious danger. For these reasons, NCL's motion for summary judgment on Plaintiff's duty to warn claim is DENIED.
NCL's citation to Wish v. MSC Crociere S.A., Case No. 07–60980–CIV, 2008 WL 5137149, at *3 (S.D.Fla. Nov. 24, 2008) is not relevant to the Court's consideration of its summary judgment motion, as the district court in Wish determined the danger posed by rainwater gathered in a puddle on the deck was an open and obvious danger following a bench trial. In addition, the district court's grant of summary judgment in favor of NCL in Frasca v. NCL (Bahamas) Ltd., No. 12–20662–CIV–JG, 2014 WL 1385806 (S.D.Fla. Apr. 9, 2014) was reversed by the Eleventh Circuit because there were triable issues of fact regarding whether the deck surface was unusually slippery when wet. Frasca, 2016 WL 3553217 at *3.
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B. Plaintiff's Negligent Design Claim
NCL also moves for summary judgment on Plaintiff's negligent design claim because there is no evidence in the record that NCL designed, manufactured, or installed the flooring on Deck 13. (DE 31 at 15; DSF, DE 31 ¶ 19). In his Second Amended Complaint, Plaintiff asserted that NCL was negligent for failing to "install[ ] a surface with a high coefficient of friction to reduce slip and fall injuries." (DE 19 ¶ 11(c)). However, a cruise line cannot be held liable for an alleged improper design if the plaintiff does not establish that the ship-owner or operator was responsible for the alleged improper design. Mendel v. Royal Caribbean Cruises, Ltd., No. 10–23398–CIV, 2012 WL 2367853, at *2 (S.D.Fla. June 21, 2012) (citing Groves v. Royal Caribbean Cruises Ltd., 463 Fed.Appx. 837, ––––, 2012 WL 933236, at *1 (11th Cir.2012) ).
In his opposition to NCL's motion for summary judgment, Plaintiff does not address NCL's argument regarding his negligent design/installation theory of liability, and neither admits nor denies NCL's statement of fact that there is no evidence in the record that NCL installed, manufactured, or designed Deck 13's surface. (Compare DSF, DE 31 ¶ 19 with PSF, DE 36 at 5). The Court construes Plaintiff's silence as an admission that there is no such evidence in the record. S.D. Fla. L.R. 56.1(b); Fed. R. Civ. P. 56(c), (e) ; Black v. Kerzner Int'l Holdings Ltd., 958 F.Supp.2d 1347, 1350 (S.D.Fla.2013) (deeming "uncontested—or insufficiently contested—factual assertions to be admitted"). Because Plaintiff cannot prove that NCL installed, manufactured, or designed Deck 13's surface, NCL's motion for summary judgment on Plaintiff's negligent design and/or installation theory of liability is GRANTED.
IV. CONCLUSION
For these reasons, NCL's motion for summary judgment is GRANTED IN PART AND DENIED IN PART. NCL's motion is granted only to the extent that Plaintiff cannot proceed on a negligent design or installation theory of negligence at trial.
DONE AND ORDERED in chambers in Miami, Florida, this 25th day of August, 2016.