Opinion
Case No. 20-22755-Civ-TORRES
2021-08-20
Noel DIAZ, Plaintiff, v. CARNIVAL CORPORATION, Defendant.
Eduardo Jesus Hernandez, Eduardo J. Hernandez, LLC, Miami, FL, for Plaintiff. David James Horr, Horr Novak & Skipp, P.A., Stephanie Hurst Wylie, Sioli Alexander Pino, Valentina M. Tejera, Carnival Corporation, Miami, FL, Mitchell Issa, Barakat Law, P.A., Key Biscayne, FL, for Defendant.
Eduardo Jesus Hernandez, Eduardo J. Hernandez, LLC, Miami, FL, for Plaintiff.
David James Horr, Horr Novak & Skipp, P.A., Stephanie Hurst Wylie, Sioli Alexander Pino, Valentina M. Tejera, Carnival Corporation, Miami, FL, Mitchell Issa, Barakat Law, P.A., Key Biscayne, FL, for Defendant.
ORDER ON DEFENDANT'S MOTION FOR PARTIAL SUMMARY JUDGMENT
EDWIN G. TORRES, United States Magistrate Judge
This matter is before the Court on Carnival Corporation's ("Defendant") motion for partial summary judgment against Noel Diaz ("Plaintiff"). [D.E. 56]. Plaintiff responded to Defendant's motion on June 1, 2021 [D.E. 68] to which Defendant replied on June 8, 2021. [D.E. 70]. Therefore, Defendant's motion is now ripe for disposition. After careful consideration of the motion, response, reply, relevant authorities, and for the reasons discussed below, Defendant's motion for partial summary judgment is GRANTED in part and DENIED in part .
On August 17, 2020, the parties consented to the jurisdiction of the undersigned Magistrate Judge. [D.E. 12].
I. BACKGROUND
This is a maritime personal injury action where Plaintiff alleges that he sustained injuries as a passenger onboard Defendant's cruise vessel, the Carnival Victory. Plaintiff claims that his injury took place in a lobby near guest services where a motorized scooter struck his right foot and ankle. Plaintiff's theory is that one of Carnival's female employees attempted to move the scooter out of a crowded area, but mistakenly accelerated it and struck him in the process. Guest services accompanied Plaintiff after the incident to the ship's infirmary where medical personnel took x-rays of his ankle and found the results unremarkable. When the cruise ended on September 22, 2019, Plaintiff visited his primary care physician and underwent surgeries to treat his injuries. Plaintiff has now been disabled for over one year and, as a result, he filed this action with one count of negligence.
II. APPLICABLE PRINCIPLES AND LAW
The court shall grant summary judgment 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:
A party asserting that a fact cannot be or is genuinely disputed must support the assertion by: (A) citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials; or (B) showing that materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact.
Fed. R. Civ. P. 56(c)(1). On summary judgment, the inferences to be drawn from the underlying facts must be viewed in the light most favorable to the party opposing the motion. See Matsushita Electric Indus. Co. v. Zenith Radio Corp. , 475 U.S. 574, 597, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986) (quoting another source).
In opposing a motion for summary judgment, the nonmoving party may not rely solely on the pleadings, but must show by affidavits, depositions, answers to interrogatories, and admissions that specific facts exist demonstrating a genuine issue for trial. See Fed. R. Civ. P. 56(c) ; Celotex Corp. v. Catrett , 477 U.S. 317, 323-24, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The existence of a mere "scintilla" of evidence in support of the nonmovant's position is insufficient; there must be evidence on which the jury could reasonably find for the nonmovant. See Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 252, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). That is, a court need not permit a case to go to a jury when the inferences that are drawn from the evidence, or upon which the non-movant relies, are implausible. See Mize v. Jefferson City Bd. of Educ. , 93 F.3d 739, 743 (11th Cir. 1996) (citing Matsushita , 475 U.S. at 592-94, 106 S.Ct. 1348 ).
At the summary judgment stage, the Court's function 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. In making this determination, the Court must decide which issues are material. A material fact is one that might affect the outcome of the case. See id. at 248, 106 S.Ct. 2505 ("Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment. Factual disputes that are irrelevant or unnecessary will not be counted."). "Summary judgment will not lie if the dispute about a material fact is genuine, that is, if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Id.
III. ANALYSIS
Defendant seeks partial summary judgment on several theories of negligence liability presented in Plaintiff's complaint. These theories include, among others, a failure to undertake crowd control and a failure to train or supervise crewmembers. Defendant says that all of Plaintiff's theories fail because there is either insufficient evidence to support them or the record is otherwise undisputed that they do not apply. While Defendant concedes that there is a genuine issue of material fact on the question of who operated the motor scooter (i.e. a guest member or a Carnival employee), Defendant asks that the Court enter partial summary judgment on all but two of Plaintiff's negligence theories. To inform the analysis that follows, we first consider the general principles of federal maritime law.
The two theories of liability that are not at issue are the alleged failure to exercise reasonable care for Plaintiff's safety and the failure to properly operate a motorized scooter. [D.E. 56 at 1 ("Concededly, there is a genuine issue of material fact as to whether another guest operated the scooter at the time of impact or whether a guest services agent stood next to the scooter with her hands on the handlebars and hit the accelerator, causing it to come into contact with Plaintiff's foot. Due to this factual dispute, Defendant is not pursuing summary judgment on Plaintiff's theory of Defendant's vicarious liability for negligence of the crewmember.")].
A. General Principles of Federal Maritime Law
Federal maritime law governs claims arising from alleged tort actions aboard ships sailing in navigable waters. See Keefe v. Bahama Cruise Line, Inc. , 867 F.2d 1318, 1320 (11th Cir. 1989). Under federal maritime law, a shipowner has a duty to exercise reasonable care to those aboard a vessel who are not members of the crew. See Kermarec v. Compagnie Generale Transatlantique , 358 U.S. 625, 630, 79 S.Ct. 406, 3 L.Ed.2d 550 (1959). However, while a shipowner "is not liable to passengers as an insurer, but only for its negligence," this standard of care "requires, as a prerequisite to imposing liability, that the carrier have had actual or constructive notice of the risk-creating condition." Keefe , 867 F.2d at 1322.
To prove negligence, a plaintiff must show: (1) that the defendant had a duty to protect the plaintiff from a particular injury, (2) that the defendant breached the duty, (3) that the breach was the actual and proximate cause of the plaintiff's injury, and (4) that the plaintiff suffered damages. See Chaparro v. Carnival Corp. , 693 F.3d 1333, 1336 (11th Cir. 2012). "The failure to show sufficient evidence of each element is fatal to a plaintiff's negligence cause of action." Taiariol v. MSC Crociere, S.A. , 2016 WL 1428942, at *3 (S.D. Fla. Apr. 12, 2016) (citing Isbell v. Carnival Corp. , 462 F. Supp. 2d 1232, 1237 (S.D. Fla. 2006) ("Each element is essential to Plaintiff's negligence claim and Plaintiff cannot rest on the allegations of [the] complaint in making a sufficient showing on each element for the purposes of defeating summary judgment.")). While the Court may rely on state law as a supplement, those principles cannot alter or overrule federal maritime law. See Faddish v. Buffalo Pumps , 881 F. Supp. 2d 1361, 1368 (S.D. Fla. 2012).
B. Whether Defendant Failed to Undertake Crowd Control
The first question is whether Plaintiff's theory on crowd control fails to meet the required elements to prove negligence. Defendant say yes because, while there is some evidence that the lobby of the cruise ship was filled with guests and that passengers engaged in unpleasant exchanges while waiting in line, there is nothing to show that Defendant failed to control a crowd or that a crowd caused Plaintiff's injuries. [D.E. 56 at 5 ("Plaintiff presented no evidence whatsoever to even suggest his incident is the result of any crowd control issue.")]. Thus, Defendant's position is that two negligence elements – breach and causation – have not been met and that partial summary judgment should be granted. To begin, there is an abundance of evidence that the guest services area where Plaintiff suffered his injury was filled with angry passengers and a large crowd. Starting with the number of Carnival employees working on the day in question, Carnival employee – Holli Steadman ("Ms. Steadman") – testified that Defendant "most likely" had four to five employees working behind the guest services desk:
This theory focuses on a failure to properly undertake crowd control. The parties also included arguments on a failure to train and supervise crewmembers in crowd control, but we discuss those theories in the section that follows.
There is no dispute between the parties that crowd control is a recognized duty under federal maritime law and that Plaintiff suffered damages because of a motor scooter striking him. Because no dispute exists as to these elements, we limit our analysis accordingly.
Plaintiff alleges that Ms. Steadman is the Carnival employee that struck him.
Q. Right. Let's talk about embarkation day September 20, 2019. How many employees were at the Guest Services desk that day?
A. I can't say for sure but most likely there would have been at least four of us if not four or five on the desk, as well as the rest of the team come in just before the safety briefing because they need to walk the line so that the guests -- we can get moving the guests quicker.
[D.E. 56-3 at 50:9-17]. Ms. Steadman also testified that, on the day of Plaintiff's injury, it was one of the busiest times for guest services because passengers boarded the vessel and wanted to speak with crewmembers prior to a safety briefing:
Q. Okay. And, I'm sorry, I think you told me this happened before the ship sailed -- before the safety briefing around between three and four, right?
A. Yes.
Q. All right. We can agree that this is one of the busiest times at that desk?
A. Yes.
Q. Right?
A. Specifically at that moment just before the safety briefing, that is the busiest time, because all the guests are on board and they want to get to see us before the safety briefing. So, yes, at that particular time, yes, it's very busy there. There would be a lot of people around.
Id. at 75:9-22.
The record further shows that there was disorder and arguments among passengers while people waited in line:
Q. So when you got to the front desk, describe the scene for me. What was going on there?
A. What was happening, there was a lot of noise and commotion and argument going on. There was a great mess. It was great disorder there.
Q. Was it crowded?
A. Too much. You couldn't fit someone else. You couldn't fit someone else there anymore.
Q. Did it appear to you that a lot of passengers had different issues that they were wanting to bring up with guest services?
A. Well, what we saw there, there was a lot of argument going on with a group of about 10 people, 10 guests that were arguing with the people there.
Q. What I meant was, did it appear that there was a lot of passengers that had issues to address with guest services?
A. Yes, there was a lot of argument between them, and those that were claiming issues weren't getting anything resolved, and everybody was upset.
[D.E. 56-1 at 131:15-132:17 (deposition of Plaintiff)].
Defendant argues that this evidence is inconsequential because, while some verbal altercations took place among passengers, there is nothing to show that Carnival breached a duty to control a crowd. Defendant claims, for example, there is no evidence of any physical altercations or that passengers "were organized in a horde-like manner." [D.E. 70 at 4]. Defendant also suggests that noise and verbal arguments are to be expected with a large group of passengers and that nothing shows a breach or causation in connection with Plaintiff's injuries. So, given that Plaintiff has failed to present any evidence to show otherwise, Defendant concludes that Plaintiff's crowd control theory must fail.
Defendant's arguments are unavailing because Plaintiff has pointed to several instances in the record where Carnival arguably failed to control a crowd in front of the guest services area and specifically the guests in and around the motorized scooter. Plaintiff testified, for instance, that he observed passengers around the scooter having a "loud and hard" verbal altercation prior to the scooter striking him and that no Carnival employee took any preventative measures to separate the individuals:
Q. While you were in line waiting to get up to the front, did you observe or hear this lady on the scooter have a verbal altercation with another passenger?
A. Yes. With another guest, they were having a really hard argument and very hard. I couldn't understand a thing, but it was loud and hard.
...
Q. Listen to my question. I'm asking before you got up to the counter, when the lady in the scooter was arguing with the other passenger, did any crew member come out to, you know, calm them down?
A. No. No one came out.
[D.E. 56-1 at 133:12-19; 134:1-6].
Plaintiff's wife also testified that she overheard, prior to the scooter striking her husband, a male passenger warning a female guest about the motorized scooter and the need to remove it from the line:
Q. Who was arguing and screaming?
A. Several people, including that female passenger with someone next to her because he was telling her precisely about that, you don't need to be in line with that scooter because you can hit someone.
[D.E. 56-2 at 42:15-20 (deposition of Disley Cruz)]. And given the absence of any Carnival personnel monitoring the passengers or the operation of the scooter, no employees took any action prior to Plaintiff's injury:
Q. During that time that you were standing in line for guest services waiting for your turn, were there any guest services or other crew members going up and down the line to address any issues people had?
A. Not at all. That was something that caught my attention. The lack of organization, that left me so dissatisfied that I thought I would never go back there throughout the whole cruise, none at all.
Id. at 45:2-11.
Defendant downplays this evidence because no physical altercation took place among passengers and the line facing the guest services desk flowed in a specific direction. Neither argument is persuasive when measured against the summary judgment standard that requires us to confer all reasonable inferences in the non-movant's favor. In doing so there is a sufficient record basis to question whether Carnival knew or should have known of a raucous crowd in the guest services area, failed to take any preemptive measures to calm the passengers, and whether all of this taken together caused the scooter to strike Plaintiff. Defendant says no for the reasons already stated. But, given that only four to five employees were working behind the guest services desk at the time of Plaintiff's injury, there is sufficient evidence that Carnival arguably breached its duty to control the crowd if the factfinder were to find Plaintiff's witnesses credible or reliable on this point.
Defendant notes in passing that Plaintiff failed to retain a liability expert. True enough but this is not dispositive as Carnival fails to rely on any authority that a liability expert is needed to prove the breach of a duty of care where the injury is both readily apparent to a lay person and within the understanding of the average jury. See, e.g. , In re Amtrak Sunset Ltd. Train Crash in Bayou Canot, Alabama, on Sept. 22, 1993 , 188 F. Supp. 2d 1341, 1349 (S.D. Ala. 1999) (stating that common law negligence claims only require expert testimony "where they involve issues ... beyond the common experience and understanding of the average jury.") (citing cases); see also McCasland v. Pro Guard Coatings, Inc. , 799 F. App'x 731, 733 (11th Cir. 2020) ("[I]n cases where a jury is asked to assess complex medical or scientific issues outside the scope of a layperson's knowledge, an expert's testimony is required."). Defendant should have presented a substantive argument in support of this position and referenced the necessary legal authorities. Given that Defendant failed to do so, the argument is, for all practical purposes, abandoned with no need to go any further. But in any event Carnival does not dispute that it owes some duty of care to maintain order and supervise its customers on board so that other passengers will not be injured. The duty is thus well established without the necessity of any liability expert that reenforces that principle. And there is no dispute that Plaintiff is claiming that this breach caused him to be injured. So, a liability expert is not always required to establish a common law negligence claim like this one.
In the light most favorable to Plaintiff, the breach occurred because there is evidence that Carnival knew or should have known of the unruly behavior of its passengers (specifically those around the scooter) and did nothing to calm them or otherwise protect other passengers in the area. The causation element is also met because, by allowing a crowd to engage in prolonged arguing and screaming, there is evidence that a Carnival employee may have attempted to safely remove the scooter when the crowd was already out of hand but failed to do so and negligently struck Plaintiff. The failure to control the crowd is thus tied directly to Plaintiff's theory of liability because, given the size of the crowd, the scooter could not be safely removed. This meets every element to sustain a negligence claim, assuming of course that the trier of fact credits Plaintiff's version of the events. If, on the other hand, the jury agrees with Defendant that there was no ruckus at the time or a basis to exercise greater crowd control, and further that Carnival's employees did nothing to contribute to Plaintiff's alleged accident, then Defendant's theory would be sustained.
But, for now, Defendant's motion for partial summary judgment on Plaintiff's allegation that Carnival failed to undertake crowd control is DENIED .
C. Whether Defendant Failed to Train and Supervise
Defendant's second argument takes aim at Plaintiff's allegations that the cruise line failed to properly train and supervise crewmembers in the operation of motor scooters. [D.E. 1 at ¶¶ 16(d)-(e)]. Defendant claims that Plaintiff's allegations fall outside the scope of a cruise line's duties under federal maritime law and that Plaintiff has no authority to show otherwise. Defendant says, for example, that passengers often rent scooters from third-party sources and that those distributors have contracts requiring guests to contact those companies – not Carnival – if any mechanical issues arise. Defendant also states that guests sometimes bring their own scooters onboard the vessel or that that they borrow them from other passengers. It is thus unclear, in Defendant's view, as to how it has any duty to train or supervise employees on motor scooters when employees do not operate them onboard the vessel. Alternatively, if Carnival has a maritime duty to train and supervise crewmembers in the operation of motor scooters, Defendant says that Plaintiff's negligence claims fail because Carnival employees are trained on how to handle these devices:
Q. And when you became a straight Carnival employee in March of 2019 you didn't receive any training specific to mobility scooters again, right, either, I should say?
A. Not by Carnival, no.
Q. Did you receive it from anyone?
A. I had spoken with the guy that brings on the mobility scooters. They come on and they speak with us during embarkation day, so if we had a question or anything about the scooters we could ask at that time, perhaps with the guy before.
...
Q. What kind of questions about scooters did you have?
A. We have had it previously. The guests have – normally have issues with their scooter and in the fact that they don't know how to use them, so things like the brakes or actually getting it to turn on, these kinds of basic things on how to use the scooters.
Q. And this was before September 20 of 2019, right?
A. Yes. It was towards the end of my contract then so I would have had quite a lot of experience by them.
[D.E. 56-3 at 54:14-24;56:4-15 (deposition of Ms. Steadman)]. Either way, Defendant concludes that there is insufficient evidence that a lack of supervision or training had anything to do with the accident that took place, and that summary judgment should be granted as to both theories of liability.
Negligent supervision and negligent training are both recognized duties under federal maritime law. Negligent supervision "occurs when, during the course of employment, the employer becomes aware or should have become aware of problems with an employee that indicated his unfitness, and the employer fails to take further actions such as investigating, discharge, or reassignment." Cruz v. Advance Stores Co. , 842 F. Supp. 2d 1356, 1359 (S.D. Fla. 2012). On the other hand, negligent training occurs when an employer "was negligent in the implementation or operation of the training program" and the negligence causes a plaintiff's injury. Id. ; see also Gutman v. Quest Diagnostics Clinical Labs., Inc. , 707 F. Supp. 2d 1327, 1332 (S.D. Fla. 2010) ; Wynn v. City of Lakeland , 727 F. Supp. 2d 1309, 1317 (M.D. Fla. 2010).
The biggest problem for Plaintiff is that he has both a pleading defect in his complaint as well as a hole in this record with respect to his theories premised on negligent supervision and training, including his related allegations on crowd control that we omitted earlier. Plaintiff alleges, in a single sentence, that Defendant failed to properly train and supervise crewmembers in the operation of motorized scooters and crowd control. [D.E. 1 at ¶¶ 16(d)-(g)]. These allegations are insufficient, however, because these causes of action have a specific set of requirements that must be pled (and now supported with evidence at summary judgment) to state a claim. Negligent supervision requires, for example, "that (1) the employer received actual or constructive notice of an employee's unfitness, and (2) [that] the employer did not investigate or take corrective action such as discharge or reassignment." Doe v. NCL (Bahamas) Ltd. , 2016 WL 6330587, at *4 (S.D. Fla. Oct. 27, 2016) (quoting Cruz , 842 F. Supp. 2d at 1359 ). Yet, none of the elements for negligence supervision are included in Plaintiff's complaint.
Defendant should have raised these issues in a motion to dismiss, but Defendant answered the complaint instead. This is why the Court has not previously considered Plaintiff's pleading defects, including the likelihood that the entire complaint is a shotgun pleading for including 11 theories of negligence liability in a single count. See, e.g., Doe v. NCL (Bahamas) Ltd. , 2016 WL 6330587, at *3 (S.D. Fla. Oct. 27, 2016) (holding that Plaintiff's "boilerplate allegations" of breach of duty failed to state a claim for negligent hiring and retention, training and supervision under maritime law, and ordering Plaintiff to "allege each of these three claims in separate Counts" in an amended complaint); Garcia v. Carnival Corp. , 838 F. Supp. 2d 1334, 1337, n.2 (S.D. Fla. 2012) (dismissing maritime negligence claim that "epitomizes a form of ‘shotgun’ pleading," where the plaintiff alleged that the defendant owed a duty of "reasonable care under the circumstances," and then "proceed[ed] to allege at least twenty-one ways in which [the d]efendant breached this duty").
A similar misstep arises in connection with Plaintiff's negligent training theories because he fails to allege anything about a training program that Carnival implemented. See Gutman v. Quest Diagnostics Clinical Laboratories, Inc. , 707 F. Supp. 2d 1327, 1332 (S.D. Fla. 2010) ("Negligent training occurs when an employer was negligent in the implementation or operation of the training program.") (citing Mercado v. City of Orlando , 407 F.3d 1152, 1162 (11th Cir. 2005) ). And Plaintiff cannot state a claim for either negligent training or supervision with boilerplate allegations:
Plaintiff cannot state a claim for negligent hiring, retention, training or supervision based on boilerplate allegations that Defendant failed to, among other things: (1) implement adequate procedures; (2) supervise all its employees; (3) responsibly recruit all its crewmembers; (4) control and monitor all its employees; (5) adequately train all its crewmembers "not to fraternize with passengers;" and (6) otherwise "properly enforce rules, regulations, policies and procedures for NCL employees who fraternize with passengers." D.E. 1 p. 10; Iqbal , 556 U.S. at 678 (plaintiff must plead "more than a sheer possibility that a defendant has acted unlawfully"); Summers v. Carnival Corp. , 2015 WL 11983231, at *6 (S.D. Fla. Apr. 6, 2015) (granting motion to dismiss "because Plaintiff has failed to allege facts that are suggestive enough to render each element of his claim for negligent hiring, retention and training plausible").
Id.
Plaintiff tries to overcome these shortfalls in his response to Defendant's motion for summary judgment where he says that his negligent training and supervision claims are sufficient because "a reasonable [j]ury may infer that[,] although Defendant has a policy that an employee is not to move a scooter without being on it, its failure to train and supervise Ms. Steadman was the proximate cause of Plaintiff's injury." [D.E. 68 at 14]. Plaintiff's attempt to re-write his complaint at summary judgment is not allowed, however, because otherwise a plaintiff could forever rewrite his allegations until the eve of trial. See Monaghan v. Worldpay US, Inc. , 955 F.3d 855, 859 (11th Cir. 2020) ("[A] plaintiff cannot amend h[is] complaint through argument made in h[is] brief in opposition to [a] defendant's motion for summary judgment.") (quoting Miccosukee Tribe of Indians of Fla. v. United States , 716 F.3d 535, 559 (11th Cir. 2013) ).
However, even if we look beyond the pleading defects, Plaintiff's off-the-top-of-my-head theories cannot stand because the evidence in this record fails to meet the necessary elements to present these claims to a jury. Plaintiff never references, for example, how Carnival had actual or constructive notice that Ms. Steadman or any other employee was unfit to sustain a negligent supervision claim in the operation of motorized scooters or crowd control. See Doe , 2016 WL 6330587, at *4 (stating that negligent supervision requires actual or constructive notice of an employee's unfitness and that the employer did not investigate or take corrective action).
The same applies to Plaintiff's negligent training claims because these causes of action require a showing that an employee "was negligent in the implementation or operation of [a] training program," yet Plaintiff admits that Carnival never provided any training to its employees in the operation of its motorized scooters. Cruz , 842 F. Supp. 2d at 1359 ; see also [D.E. 68 at 6 ("Prior to and at the time of Plaintiff's injury, Defendant had not provided any training to its employee, Ms. Steadman, relative to mobility scooters[.]"); id. at 7 ("At the time of Plaintiff's injury, beyond inspecting them for size, Defendant had no policy in place to ensure that the motorized scooters its passengers brought aboard [the vessel] were operating properly.")]. This is also consistent with the testimony of Ms. Steadman:
Q. So getting back to training relative to the scooters, other than questions that you may have asked the Scootaround reps about, you know, how to turn it on, how to use the brakes, that type of thing, before September 20 of 2019 you had no formal training on scooters, on electric mobility scooters; can we agree on that?
A. Yes, agree.
Q. You have never taken a course? Carnival has never had you undergo a course, right?
A. No.
Q. You have never received any written materials, right?
A. No.
Q. Had you ever even ridden one?
A. I don't believe so.
[D.E. 56-3 at 58:11-59:1].
Plaintiff makes the same mistake with respect to his allegations that Carnival failed to train crewmembers in crowd control. Hence, irrespective of the pleading defects, Defendant's motion for summary judgment is GRANTED due to a lack of evidence on Plaintiff's theories of negligent training and supervision.
In addition to the lack of a training program, Plaintiff admits that "Defendant had no policy in place to ensure that passengers bringing scooters aboard [the vessel] knew how to properly operate his/her scooter." [D.E. 68 at 8].
D. Whether Defendant Failed to Implement Adequate Risk Management Procedures and Safety Standards for Scooters
Defendant's final argument seeks summary judgment on the four remaining negligence theories:
Failure to comply with safety codes and standards designed and promulgated to reduce the risk of the type of accident suffered by Plaintiff; and/or
Failure to have adequate risk management procedures in place designed to reduce the occurrence of the type of accident suffered by Plaintiff; and/or
Failure to implement available safety and ergonomic standards designed to reduce and/or prevent the type of accident suffered by Plaintiff; and/or
Failure to take steps as a result of prior similar incidents to reduce and/or prevent the type of accident suffered by Plaintiff.
[D.E. 1 at ¶¶ 16 at (h)-(k)].
Defendant says that these theories fail because "the subject incident may well have occurred even with the presence of a rule, regulation, or policy that reduces the risk." [D.E. 56 at 12]. Defendant also accuses Plaintiff of failing to identify any safety codes, procedures, or standards that the cruise line failed to comply with or a legal duty that requires Carnival to create policies and procedures in the first place. Defendant further asserts that there is no evidence of any similar incidents that could have put the cruise line on notice of a dangerous condition and that, while some prior events have included the presence of a scooter, none of them are similar to the injury that took place here. Thus, Defendant reasons that nothing triggered a legal duty for it to enact any policies or procedures and that summary judgment should be granted on all four theories of liability.
The prior incidents include facts where a guest flipped a scooter on its side, steered a scooter off a ramp, drove a scooter too close to a spiral staircase, drove a scooter into a door frame, and stepped on a passenger's foot while seated on a scooter.
There is no need to consider the allegations in subsections h and k of Plaintiff's complaint because he withdrew them in response to Defendant's motion for summary judgment. That means that there are only two theories left for disposition – the failure to have adequate risk management procedures and the failure to implement safety standards. Plaintiff says that Defendant's motion should be denied as to these theories because there is sufficient evidence that Defendant lacked (1) training available to employees on the safe use of scooters, (2) policies to ensure that scooters operated properly and in a safe manner, (3) oversight of third-party companies providing scooters to guests, and (4) supervision of passengers bringing their own scooters. Thus, given that Defendant failed to have certain policies and procedures in place prior to the injury that took place, Plaintiff asks that the motion for partial summary judgment be denied.
Because Plaintiff withdrew two of his negligence allegations, Defendant's motion for summary judgment is GRANTED on both theories of liability.
Neither party gave much consideration to these theories of liability. Plaintiff stated, on one hand, that a failure to have policies and standards constitutes negligence and referenced several instances in the record where Carnival lacked oversight, trainings, and policies. Defendant argued, on the other hand, that Plaintiff's position lacks merit but devoted a total of six sentences to the issue before concluding that Plaintiff failed to prove negligence. The Court is therefore left with few compelling arguments for or against the relief sought.
With that being said, the fundamental flaw with Plaintiff's final two theories of liability lies in the lack of any showing that the alleged breach of failing to have risk management procedures and safety standards is a recognized duty under federal maritime law. And based on the undersigned's independent review of relevant cases, it appears that Plaintiff is attempting to impose a heightened duty of care that is otherwise not recognized. See, e.g. , Mumford v. Carnival Corp. , 7 F. Supp. 3d 1243, 1248 (S.D. Fla. 2014) (granting motion to dismiss where plaintiff alleged, among other things, that the defendant failed "to have adequate procedures, policies or tools in place to ensure adequate communication with Carnival's shoreside medical department"). Yet, even if we assume that both theories meet this requirement, Plaintiff has not explained how the failure to implement risk management procedures and safety standards meets all four negligence requirements.
This is a fatal misstep for Plaintiff because "[e]ach element is essential to [a] negligence claim and Plaintiff cannot rest on the allegations of h[is] complaint in making a sufficient showing on each element for the purposes of defeating summary judgment." Isbell , 462 F. Supp. 2d at 1236-37 (citing Tipton v. Bergrohr GMBH-Siegen , 965 F.2d 994, 999 (11th Cir. 1992) ). Yet, this is exactly what Plaintiff has done because, other than pointing to the record where Defendant failed to implement certain policies or procedures, Plaintiff offers no explanation as to how either is a recognized duty under federal maritime law or law or how they caused his injuries. And without the satisfaction of either element – both of which are Plaintiff's burden to prove for summary judgment purposes – neither theory can be presented to a jury. See id. ("It is well-settled that each element, including causation, is essential to Plaintiff's negligence claim for purposes of defeating summary judgment and Plaintiff cannot rest on the allegations of her complaint.") (citing Tipton , 965 F.2d at 999 ). Accordingly, Defendant's motion for partial summary judgment is GRANTED as to these additional, but unsupported, theories of liability.
IV. CONCLUSION
For the foregoing reasons, it is hereby ORDERED AND ADJUDGED that Defendant's motion for partial summary judgment [D.E. 56] is GRANTED in part and DENIED in part :
A. Defendant's motion for summary judgment is DENIED as to the alleged failure to undertake crowd control. This claim, plus the vicarious liability claim arising from the employee's alleged negligent operation of the scooter, will be presented to the jury at trial.
B. In all other respects, Defendant's motion for partial summary judgment is GRANTED .
DONE AND ORDERED in Chambers at Miami, Florida, this 20th day of August, 2021.