Summary
granting summary judgment to defendant cruise ship operator because wet floor was an open and obvious danger
Summary of this case from Morrison v. Royal Caribbean Cruises, Ltd.Opinion
CASE NO.: 18-cv-21418-UU
2019-02-19
Christine CIGAINERO, Plaintiff, v. CARNIVAL CORPORATION, Defendant.
John Marcus Siracusa, Joseph William Janssen, III, Janssen & Siracusa, P.A., Mark Gerard Keegan, Janssen, Siracusa & Keegan, PLLC, West Palm Beach, FL, for Plaintiff. David James Horr, Stephanie Hurst Wylie, Horr Novak & Skipp, P.A., Donnise DeSouza Webb, Carnival Cruise Lines, Miami, FL, for Defendant.
John Marcus Siracusa, Joseph William Janssen, III, Janssen & Siracusa, P.A., Mark Gerard Keegan, Janssen, Siracusa & Keegan, PLLC, West Palm Beach, FL, for Plaintiff.
David James Horr, Stephanie Hurst Wylie, Horr Novak & Skipp, P.A., Donnise DeSouza Webb, Carnival Cruise Lines, Miami, FL, for Defendant.
ORDER
URSULA UNGARO, UNITED STATES DISTRICT JUDGE
THIS CAUSE comes before the Court upon Defendant's Motion for Summary Judgment (D.E. 30).
THE COURT has considered the motion, the pertinent portions of the record, and is otherwise fully advised in the premises.
For the reasons set forth below the motion is granted.
BACKGROUND
Except as otherwise noted, the following facts are undisputed. The Court notes that several of Plaintiff's facts in her responsive statement of facts are unsupported by record citations. See D.E. 35 ¶¶ 17, 58, 70. The Court has no obligation to go digging through the record to find the support that Plaintiff has omitted and therefore ignores those factual assertions. See Johnson v. City of Fort Lauderdale , 126 F.3d 1372, 1373 (11th Cir. 1997) ("[W]e are not obligated to cull the record ourselves in search of facts not included in the statements of fact.").
In May, 2017, Plaintiff boarded a cruise operated by Defendant. D.E. 30 ¶ 1. Plaintiff claims that on May 10, 2017, she slipped and fell on the deck. See D.E. 1. That fall gives rise to the present case. Id. I. Plaintiff's Medical History
Plaintiff has a variety of medical issues. Id. ¶ 3. She suffers from post-traumatic stress disorder ("PTSD"), Parkinson's disease, memory loss, an occasional inability to stay on her feet without support, Meniere's disease, fibromyalgia, major depressive disorder, and lower back pain which, in the past, she has rated "10 of 10." Id. (citing Plaintiff's deposition testimony, D.E. 30-1). For nearly two years before the cruise, Plaintiff used a rolling walker. D.E. 30 ¶ 4. She brought the walker with her on the cruise, but the record does not reveal whether she had it with her at the time of her fall because Plaintiff's testimony (which is the only evidence on this point) is contradictory. Id. ; Compare D.E. 30-1, 84:7–11 ("Q: Did you have your rolling walker with you? A: Yes.") with D.E. 30-1, 87:9–15 ("Q: What happened to your walker? A: I didn't have it then. Q: Was it in your room? A: Yes.").
II. Plaintiff's Alleged Fall
At about 3:00 p.m., after drinking two mojitos, Plaintiff approached an elevator lobby and saw a crewmember mopping the floor with a bucket nearby. D.E. 30-1 ¶¶ 7–10. She did not know where she was going at the time, could not remember what deck she was on, and subsequently could not identify the elevator lobby where she fell; she knew only that it did not happen by the glass elevators in the atrium. Id. ; D.E. 30-1, 81:18–19 ("Q: And where were you heading? A: I don't know."); 82:11–13 ("Q: Do you remember which deck it was on? A: I have no idea."); 102:3–5 ("Q: Were you ever able to identify the area for him? A: No.").
Plaintiff denies this fact in her responsive statement of fact, but in support, cites to the portions of her testimony quoted above. Because the record undermines Plaintiff's denial, the Court considers the fact undisputed. See Fed. R. Civ. P. 56(e)(2).
Plaintiff saw no water on the floor but noticed that the crewmember had a bucket nearby. D.E. 30 ¶ 8. She told the crewmember that she should put up a cone in the area. ID. ¶ 9. Plaintiff claims that the floor was wet and that the water caused her to slip and fall causing her severe back pain. D.E. 1.
Besides Plaintiff's testimony, no other evidence supports her description of the incident.
After she fell, Plaintiff returned to her room. D.E. 30 ¶ 10. The next day, Plaintiff disembarked. Id. ¶ 11. She testified that she may have gone on an excursion of some type that day. Id. Two days after her alleged fall, Plaintiff reported to the ship's medical clinic because she had back pain and felt dizzy and weak. Id. ¶ 12. She signed an intake form that included a provision making her responsible to pay for the costs of the medical services provided. Id. ¶ 13.
Again, Plaintiff denies this allegation but fails to support the denial with record citations. Instead, Plaintiff tries to create a false issue of fact by claiming that the incorrect date on the form (April 12, instead of May 12) undermines all of Defendant's witnesses' credibility. It is undisputed that Plaintiff was aboard the ship in May, not April, and that Plaintiff testified that she went to the medical center on May 12. Accordingly, the Court disregards Plaintiff's objection and considers the fact undisputed. See Cordoba v. Dillard's, Inc. , 419 F.3d 1169, 1181 (11th Cir. 2005) (holding that the primary goal of summary judgment is the demolition of false issues of fact.).
Pursuant to the ship's accident investigation protocol, a security officer attempted to investigate Plaintiff's claimed fall. Id. ¶ 15. He walked around the ship with Plaintiff to find the elevator lobby in question, but Plaintiff could not identify or locate it. Id. She was able only to say that the floor was a light-colored marble and that the elevators did not have glass doors. Id. ; D.E. 30-1, 102:3–5.
III. Plaintiff's Debarkation
On May 13, Plaintiff went through security to disembark at the end of the cruise, but an alarm went off, and a security guard told her that she needed to pay her medical bill at the guest services department. Id. ¶ 17; D.E. 30-1, 23:23–25. Plaintiff initially refused to go to, and she was angry and agitated. D.E. 30 ¶ 18. She ultimately went voluntarily but refused to pay the $ 338.52 bill. Id. ¶ 20. In the guest services department, Plaintiff was alone with the crewmember who worked at the desk and became agitated while refusing to pay the bill. D.E. 30-1 28:20–29:4.
What happened next is disputed. Plaintiff claims that four security personnel were called and stood menacingly behind her while the crewmember demanded she pay. She claims that she was kept at guest services against her will for four hours until she agreed to sign a promissory note. Defendant denies these allegations on the basis that, apart from Plaintiff's testimony, none of these facts is supported by any other evidence. Additionally, the ship's entry-exit tracking report indicates that Plaintiff first attempted to leave the ship at 9:34 a.m., and ultimately disembarked an hour-and-a-half later at 11:02 a.m. D.E. 30-2.
Because of her alleged fall and her experience in guest services, Plaintiff has sued Defendant for negligence and false imprisonment.
PROCEDURAL HISTORY
Plaintiff filed her complaint on April 10, 2018. D.E. 1. Defendant moved to dismiss the false imprisonment claim on the grounds that Plaintiff did not give Defendant notice of her false imprisonment claim within 30 days of the accident as required by the terms and conditions of her cruise ticket. D.E. 10. The Court denied that motion because Plaintiff alleged in her complaint that she satisfied all conditions precedent to filing suit, and the Court refused to convert the motion into one for summary judgment. Nevertheless, the Court warned Plaintiff that if discovery revealed that she brought her false imprisonment claim knowing that it was barred by the terms of the ticket, the Court would impose sanctions. D.E. 16.
LEGAL STANDARD
Summary judgment is authorized only when the moving party meets its burden of demonstrating that "the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed. R. Civ. P. 56. When determining whether the moving party has met this burden, the Court must view the evidence and all factual inferences in the "light most favorable to the non-moving party." Adickes v. S.H. Kress & Co. , 398 U.S. 144, 157, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970) ; Rojas v. Florida , 285 F.3d 1339, 1341-42 (11th Cir. 2002).
The party opposing the motion may not simply rest upon mere allegations or denials of the pleadings; after the moving party has met its burden of proving that no genuine issue of material fact exists, the non-moving party must "make a showing sufficient to establish the existence of an essential element of that party's case and on which that party will bear the burden of proof at trial." See Celotex Corp. v. Catrett , 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) ; Poole v. Country Club of Columbus, Inc. , 129 F.3d 551, 553 (11th Cir. 1997) ; Barfield v. Brierton , 883 F.2d 923, 933 (11th Cir. 1989).
If the record presents factual issues, the Court must not decide them; it must deny the motion and proceed to trial. Envntl. Def. Fund v. Marsh , 651 F.2d 983, 991 (5th Cir. 1981). Summary judgment may be inappropriate even where the parties agree on the basic facts, but disagree about the inferences that should be drawn from these facts. Lighting Fixture & Elec. Supply Co. v. Cont'l Ins. Co. , 420 F.2d 1211, 1213 (5th Cir. 1969). If reasonable minds might differ on the inferences arising from undisputed facts, then the Court should deny summary judgment. Impossible Elec. Techs., Inc. v. Wackenhut Protective Sys., Inc. , 669 F.2d 1026, 1031 (5th Cir. 1982) ; see also Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) ("[T]he dispute about a material fact is ‘genuine’ ... if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.").
Moreover, the party opposing a motion for summary judgment need not respond to it with evidence unless and until the movant has properly supported the motion with sufficient evidence. Adickes , 398 U.S. at 160, 90 S.Ct. 1598. The moving party must demonstrate that the facts underlying the relevant legal questions raised by the pleadings or are not otherwise in dispute, or else summary judgment will be denied notwithstanding that the non-moving party has introduced no evidence whatsoever. Brunswick Corp. v. Vineberg , 370 F.2d 605, 611-12 (5th Cir. 1967). The Court must resolve all ambiguities and draw all justifiable inferences in favor of the non-moving party. Liberty Lobby, Inc. , 477 U.S. at 255, 106 S.Ct. 2505.
DISCUSSION
Defendant moves to for summary judgment on Plaintiff's negligence claim arguing that Plaintiff cannot prove that Defendant had or breached any duty.
I. Count I: Negligence
Federal maritime law applies to actions arising from alleged torts committed aboard a ship sailing in navigable waters. Keefe v. Bahama Cruise Line, Inc. , 867 F.2d 1318, 1320 (11th Cir. 1989). Under federal maritime law "[a] carrier by sea ... is not liable to passengers as an insurer, but only for its negligence." Kornberg v. Carnival Cruise Lines, Inc. , 741 F.2d 1332 (11th Cir. 1984). To prevail on a maritime negligence claim, a plaintiff must show that "(1) the defendant had a duty to protect the plaintiff from a particular injury; (2) the defendant breached that duty; (3) the breach actually and proximately caused the plaintiff's injury; and (4) the plaintiff suffered actual harm." Leroux v. NCL (Bahamas) Ltd. , 743 Fed. App'x 407, 409 (11th Cir. 2018), cert. denied, ––– U.S. ––––, 139 S.Ct. 834, 202 L.Ed.2d 581 (2019) (citing Chaparro v. Carnival Corp. , 693 F.3d 1333, 1336 (11th Cir. 2012) ). With respect to an alleged duty to warn, that duty extends only to known dangers that are not open and obvious. Leroux , 743 Fed. App'x at 409. And a district court is permitted to cease its analysis of a maritime negligence claim if it concludes that the alleged danger was open and obvious. Id. ("[F]ederal courts need not even reach the defendant's actual or constructive notice of a risk-creating condition if they determine that condition was an open and obvious danger.").
Here, Plaintiff's claim fails because she cannot show that Defendant owed her a duty to warn or breached its duty of reasonable care. A cruise line must warn passengers "only of those dangers that ‘the cruise line knows or reasonably should have known,’ and ‘which are not apparent and obvious to the passenger.’ " Kadylak v. Royal Caribbean Cruise, Ltd. , 167 F. Supp. 3d 1301, 1309 (S.D. Fla. 2016), aff'd sub nom. Kadylak v. Royal Caribbean Cruises, Ltd. , 679 F. App'x 788 (11th Cir. 2017) (quoting Smolnikar v. Royal Caribbean Cruises Ltd. , 787 F.Supp.2d 1308, 1315 (S.D. Fla. 2011) ). A condition is open and obvious if it "should be obvious by the ordinary use of one's senses." Krug v. Celebrity Cruises, Inc. , 745 Fed.Appx. 863, 866 (11th Cir. 2018). Courts evaluate whether a danger is open and obvious "from an objectively reasonable person's point of view...." Id. (citing Lugo v. Carnival Corp. , 154 F. Supp. 3d 1341, 1345–46 (S.D. Fla. 2015) ).
As an initial matter, Plaintiff does not respond to Defendant's argument that she has failed to proffer evidence tending to show that the condition was open and obvious, and so has waved it. See Grant v. Maiami-Dade Cty. , No. 13-22008-CIV, 2014 WL 7928394, at *9 (S.D. Fla. Dec. 11, 2014), aff'd sub nom. Grant v. Miami-Dade Cty. Water & Sewer Dep't , 636 F. App'x 462 (11th Cir. 2015) (citing Mitchell v. ConAgra Foods, Inc. , 448 F. App'x 911, 914 (11th Cir. 2011) ).
Additionally, the evidence shows that the condition was open and obvious to Plaintiff. Leroux is instructive. 743 Fed. App'x 407. There the Eleventh Circuit affirmed a grant of summary judgment where the plaintiff admitted that she saw the raised threshold over which she tripped. Id. at 409. Likewise, here, Plaintiff testified that she saw a crewmember mopping the floor with a bucket nearby. D.E. 30 ¶ 8. She then told the crewmember that she should put up a cone in the area. ID. ¶ 9. Plaintiff was also aware that she had problems staying on her feet and required a walker. D.E. 30 ¶ 4. Accordingly, as in Leroux , the evidence shows that the danger was open and obvious and that "Plaintiff simply failed to negotiate a known and obvious hazard." Leroux , 743 Fed. App'x at 410. Accordingly, Defendant did not breach its duty to warn. See id.
Additionally, there is no evidence that Defendant breached its duty of reasonable care by mopping the floor. Again, Plaintiff does not respond to this argument and so waives it, but regardless, Plaintiff has proffered no evidence tending to show that the crewmember was mopping in a manner that was not reasonably careful. Neither has Plaintiff proffered evidence tending to show that Defendant negligently maintained or inspected the area. The record is entirely silent on this point. And, in fact, Plaintiff was unable to find the area where she slipped and, apparently, did not conduct further discovery into this issue. For these reasons, summary judgment for Defendant is appropriate on Count I.
II. Count II: False Imprisonment
Defendant moves for summary judgment on Plaintiff's false imprisonment claim on two grounds: first, that Plaintiff failed to provide required pre-suit notice, and second that Plaintiff has failed to prove the elements of the claim.
Plaintiff's ticket contract required her to give Defendant notice of any claim (besides personal injury claims) within 30 days. D.E. 1-1 ¶ 13(a). 46 U.S.C. § 30508 places certain restrictions on notice provisions in personal injury and death cases. Among other things, it provides that the notice period for personal injury claims must be at least six months long. 46 U.S.C. § 30508(b)(1). It also provides that failure to give notice of a personal injury claim is not a bar to recovery if the court finds that the defendant knew about the injury and was not prejudiced by the failure to provide notice. § 30508(c)(1).
For personal injury claims, the contract gave Plaintiff 185 days to provide notice.
As an initial matter, both parties misunderstand the import of the statute by stating that notice provisions are made possible by the statute. Not so. The statute serves only to put restrictions on notice provisions in the context of personal injury claims, but the notice provisions themselves exist simply as a matter of contract. See generally id. ; Abbasciano v. Home Lines Agency, Inc. , 144 F. Supp. 235, 236 (D. Mass. 1956).
Here, it is undisputed that Plaintiff failed to provide notice of her false imprisonment claim. Plaintiff argues that her failure is excused because the statute does not apply to cruises, like this one, that leave from and return to the same port. She also argues that her failure is excused because it did not prejudice Defendant. Her first argument fails because, again, the statute does not make notice provisions possible; it simply regulates them. Accordingly, if Plaintiff is correct that the statute does not apply to this cruise, then her ticket contract would not be subject to the statutes' restrictions. However, the notice would remain valid to the extent it complied with general contract law.
Plaintiff's second argument also fails because the statute applies only to personal injury and death claims. Thus, even if Plaintiff showed that Defendant had knowledge of and was not prejudiced by her failure to provide notice of her false imprisonment claim, she could not avail herself of subsection (c)(1). See § 30508(c)(1) ("When notice of a claim for personal injury or death is required by contract, the failure to give notice is not a bar to recover if....") (emphasis added). Regardless, even if subsection (c)(1) applied, Plaintiff cannot satisfy it. The Eleventh Circuit places the burden of proving that Defendant knew about the injury on Plaintiff. See Davis v. Valsamis, Inc. , 752 Fed.Appx. 688, 695–96 (11th Cir. 2018). And here, Plaintiff has not offered evidence tending to show that Defendant was aware of her false imprisonment claim. She argues that because she was detained upon disembarkation and (according to her) held by security for four hours, Defendant knew about her false imprisonment claim. But even if those facts were true, they would not give Defendant knowledge of the Plaintiff's claim, only of facts that might support such a claim. Accordingly, Plaintiff's false imprisonment claim fails for failure to provide the contractually required pre-suit notice.
Because Plaintiff failed to comply with the pre-suit notice requirement, the Court does not address the substantive elements of her false-imprisonment claim.
SANCTIONS
Early on in this case, Defendant moved to dismiss the false imprisonment claim for failure to give notice. D.E. 10. The Court denied that motion because Plaintiff alleged in her complaint that she satisfied all conditions precedent to filing suit. Nevertheless, the Court warned Plaintiff that if discovery revealed that she brought her false imprisonment claim without a good-faith basis or with knowledge that it was barred by the terms of the ticket, the Court would impose sanctions. D.E. 16, p. 3. Here Plaintiff based her false-imprisonment claim on an obviously erroneous reading of § 30508 and with knowledge that she did not satisfy the pre-suit notice requirement. Accordingly, pursuant to the Court's previous warning and Federal Rule of Civil Procedure 11, the Court will impose sanctions.
Here, Plaintiff and her attorneys violated two parts of Rule 11. First, they violated subsection (b)(2) because the false imprisonment claim was not warranted by existing law and was prosecuted under a plainly frivolous reading of § 30508(c)(1). Second, they violated subsection (b)(3) by falsely representing in the complaint that all conditions precedent to filing suit had been satisfied. See D.E. 1 ¶ 9. Sanctions for violating subsection (b)(2) can only be imposed against a party's attorney. Fed. R. Civ. P. 11(c)(5)(A). But violations for subsection (b)(3) may be imposed against a party. Accordingly, financial responsibility for the sanction shall be divided equally between Plaintiff and her attorneys. The sanction which the Court finds appropriate is: Defendant's attorney's fees incurred in drafting the motion to dismiss the false imprisonment claim (and the reply in support thereof) and those incurred in drafting the portion of Defendant's motion for summary judgment (and reply in support thereof) that pertains to the false imprisonment claim. Defendant may file a motion for sanctions setting forth the amount of fees so incurred.
CONCLUSION
For the reasons discussed above it is hereby
ORDERED AND ADJUDGED that the Motion (D.E. 30) is GRANTED. The Court will enter a separate judgment in favor of Defendant on all counts. It is further
ORDERED AND ADJUDGED that Defendant SHALL file its motion for sanctions no later than Friday, March 1, 2019. If Defendant fails to comply, the Court will not impose sanctions.
ORDERED AND ADJUDGED that the case is CLOSED for administrative purposes. All hearings are CANCELLED; all other motions are DENIED AS MOOT.
DONE AND ORDERED in Chambers at Miami, Florida, this 19th day of February, 2019.