Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. PC041895, John P. Farrell, Judge.
Joseph Farzam for Plaintiff and Appellant.
Kaye, Rose & Partners, LLP, Edward C. Walton, Michelle E. Ceja and Aksana Moshaiv for Defendant and Respondent.
BIGELOW, P. J.
Mary Ann Fritsch slipped and fell while aboard a Princess Cruise Lines cruise ship. The trial court applied federal maritime law and granted summary judgment, finding the cruise line had no prior notice of a dangerous condition. Fritsch disagrees with the application of maritime law and contends there exist triable issues of material fact which preclude summary judgment. We affirm.
FACTS AND PROCEDURAL BACKGROUND
On the final day of a Mexican cruise aboard the Golden Princess in 2007, Fritsch fell and broke her wrist when she stepped out on to the balcony of her stateroom. At her deposition, Fritsch testified that the day was “damp” and the sea conditions were a “little wobbly.” She “stepped out with [her] right foot. And then [when she] brought [her] left foot out, it flew.” She put her hand out to stop herself from falling and broke her wrist. On December 12, 2007, Fritsch filed a complaint against Princess Cruise Lines alleging common carrier liability under Civil Code section 2100 and negligence.
Princess moved for summary judgment on October 1, 2008. Princess argued that “federal maritime law, which governs this action, provides a cruise line only owes passengers a duty to exercise ordinary and reasonable care under the circumstances [citation], and may only be found negligent in regard to an alleged defective or dangerous condition on board the ship when it has actual or constructive notice of the defect or danger.” As a result, Fritsch could not assert a state law claim for common carrier liability against Princess as a matter of law. Fritsch also could not establish Princess had actual or constructive notice of a dangerous or defective condition to prove negligence. In support of its motion, Princess presented the declaration of its supervisor of passenger and crew claims, who estimated that of the approximately 367, 380 passengers who sailed on the Golden Princess from 2004 to 2007, Fritsch was the only one who slipped on the stateroom balcony and sustained injury.
In opposition, Fritsch argued that her activity at the time of the accident was not “traditional maritime activity” and the Golden Princess was in territorial waters when the slip and fall occurred. As a result, Princess had failed to show federal maritime law applied or that California law could not also be asserted. Further, Fritsch contended there existed genuine issues of material fact which precluded summary judgment. “The disputed factual issues include whether Defendant breached its duty of care in failing to install hand holds and warning[] signs at the threshold between its cabins and balconies, given Defendant’s knowledge of past passenger falls over the thresholds and changing weather and sea conditions making this area of its ship particularly dangerous.” She submitted the deposition transcript of Princess’s former safety officer, who testified he conducted a search of incidents on balconies and recalled there were cases of passengers tripping over the threshold between the balcony and the cabin. She also submitted the declaration of a maritime safety consultant, who opined that Princess failed to conform to the industry standards of passenger vessel construction when it did not include handholds and signage.
We exclude those portions of the expert declaration to which Princess’ objections were sustained.
After an initial round of briefing and oral arguments, the trial court, on its own motion decided to continue oral argument and requested supplemental briefing and additional evidence on the negligence cause of action. Princess expanded its search of accidents on stateroom balconies to all of its ships and submitted supplemental evidence of a slip and fall on a different ship. Fritsch presented a supplemental declaration of a former Princess ship security officer who served on other Princess ships. His duties included investigating passenger injuries aboard ship. He interviewed witnesses, photographed the area and conducted “Slip Stop Tests, ” “using a device that takes measurements of how slippery the surface was where a passenger would slip and fall.” He recalled approximately five to six incidents where passengers slipped on the balcony of their staterooms on a different cruise ship, the Diamond Princess. “It was determined in most cases that the cause of the passengers slipping and falling was that the decking material on the balcony was slippery when wet from spray from sea or rain.” The security officer further stated that all the decking material on Princess ships were the same but did not provide the basis for this knowledge. He also noted that the accident investigation database kept aboard the ship, rather than the one kept at Princess’ offices, “would have provided Princess notice of conditions on the balconies which resulted in passenger injury.”
In a minute order on March 9, 2009, the trial court granted the motion, reasoning:
“Here there is no evidence of poor design of balcony or flooring which is defective. There is only one similar incident on some other balcony, not indicating anything wrong with the balconies in general. No evidence that handholds were reasonably necessary, customary, feasible or would have made a difference or that the surface in question was in fact unreasonably slippery and no notice thereof. No triable issue of fact on notice of defect.”
A formal judgment was issued on April 7, 2009, which incorporated the minute order from March 9, 2009. The trial court ruled:
“First the court finds California Civil Code Section 2100 and other California substantive law is inapplicable to a ship in maritime trade and in navigable waters, as Defendant’s vessel ‘GOLDEN PRINCESS’ was at the time of the alleged accident. United States admiralty and maritime law governs and controls plaintiff’s claims, and therefore there are no triable issues of material fact as to Plaintiff’s First Cause of Action.
“Plaintiff has also failed to raise a triable issue of material fact as to her Second Cause of Action for Negligence. The Court finds the threshold on the passenger cabin balcony is distinct from the balcony where the alleged accident occurred per plaintiff’s deposition testimony. Defendant met its evidentiary burden, thereby shifting the burden to plaintiff to produce some factual basis for liability.
“Viewing all the evidence presented in support of and in opposition to the motion for summary judgment in the light most favorable to Plaintiff, Plaintiff was unable to present any factual basis sufficient to raise material issues of fact that Defendant had notice of a dangerous condition that an alleged dangerous condition caused plaintiff’s injuries or that a dangerous condition existed. Plaintiff offered no competent evidence to support her argument the balcony was poorly designed or the flooring was defective. After a review of relevant prior incidents on defendant’s vessels, there was only one potentially similar incident on another balcony located on another cruise ship not indicating anything wrong with the balconies in general. There is no competent evidence supporting and therefore no triable issues as to whether handholds or signage were reasonably necessary, customary, feasible or would have made a difference or that the surface in question was in fact unreasonably slippery or there was notice thereof.”
Fritsch appealed.
DISCUSSION
I. Premature Appeal
Judgment was entered on April 7, 2009. However, Fritsch filed her notice of appeal three weeks prior to the entry of judgment, on March 16, 2009, “from the order of dismissal in favor of the Defendant and Respondent PRINCESS CRUISE LINES, LTD., entered on March 9, 2009.”
Princess moved to dismiss the appeal on the grounds Fritsch had failed to appeal from the final judgment of April 7, 2009. We denied the motion without prejudice and Princess renews its motion to dismiss in its respondent’s brief. The renewed motion is denied. We will treat Fritsch’s notice of appeal as timely referring to an appealable judgment, either the formal judgment of April 7, 2009, or the minute order of March 9, 2009 granting summary judgment. (Cal. Rules of Court, rule 8.104(e); Zwicker v. Altamont Emergency Room Physicians Medical Group (2002) 98 Cal.App.4th 26, 29.)
II. Federal Maritime Law Applies
The Supreme Court announced a two-part test for the application of admiralty jurisdiction. (Jerome B. Grubart, Inc. v. Great Lakes Dredge & Dock Co. (1995) 513 U.S. 527 (Grubart).) Under the location test, a court must “determine whether the tort occurred on navigable water or whether injury suffered on land was caused by a vessel on navigable water.” (Id. at p. 534.) Under the connection test, a court must first determine whether the incident has “ ‘a potentially disruptive impact on maritime commerce.’ ” It must then determine whether the activity giving rise to the incident shows a “ ‘substantial relationship to traditional maritime activity.’ ” (Ibid., quoting, Sisson v. Ruby (1990) 497 U.S. 358, 363-365.)
Here, Fritsch testified that the Golden Princess was on its way back to Los Angeles from Mexico when the incident occurred. Clearly, the Golden Princess was in navigable waters at the time. (Phillips Petroleum Co. v. Mississippi (1988) 484 U.S. 469, 490 [the ocean is “certainly” navigable].) That the ship may have been in “territorial” waters, as Fritsch claims, has no bearing on whether it was also in navigable waters. (See Escanaba Co. v. Chicago (1883) 107 U.S. 678, 682-683.) As to the connection prong of the test, “[i]njuries at sea invariably have such a potential [as to disrupt maritime commerce].” (McClenahan v. Paradise Cruises, Ltd. (D.Haw. 1995) 888 F.Supp. 120, 122; accord Grubart, supra, 513 U.S. at p. 540.) Further, the navigation of a cruise ship has a substantial relationship to traditional maritime activities. (Id. at p. 540; Wallis v. Princess Cruises, Inc. (9th Cir. 2002) 306 F.3d 827, 841.) In any case, California courts have long held that “[t]he duty of care of the owner of an excursion ship is a matter of federal maritime law.” (DeRoche v. Commodore Cruise Line, Ltd. (1994) 31 Cal.App.4th 802, 807; Nash v. Fifth Amendment (1991) 228 Cal.App.3d 1106, 1112, fn. 5.) Both the location and connection prongs are satisfied to invoke admiralty jurisdiction.
III. Application of California State Law
Having determined that admiralty jurisdiction applies to this matter, we now turn to Fritsch’s argument that California law can supplement federal maritime law in this case. Fritsch’s first cause of action for common carrier liability alleged that Princess failed to properly maintain the ship and to properly warn or care for her while she was aboard ship, all of which resulted in her injury. The California common carrier statute provides that “[a] carrier of persons for reward must use the utmost care and diligence for their safe carriage, must provide everything necessary for that purpose, and must exercise to that end a reasonable degree of skill.” (Civil Code, § 2100.) In its motion for summary judgment, Princess argued that federal maritime law, which requires a reasonable standard of care rather than utmost care and diligence, governs this action, not state law. (Kermarec v. Compagnie Generale (1959) 358 U.S. 625, 628 (Kermarec).) Fritsch contends the trial court erred when it found that a state cause of action “is not applicable to a ship in maritime trade and navigable waters.” Instead, California’s common carrier statute can be asserted to supplement federal maritime law. The cases relied upon by Fritsch, however, undermine her argument.
Curiously, Fritsch herself implies California’s common carrier statute imposes a different standard of care from federal maritime law when she argues, without citation, “nothing precludes California from increasing the standard of care based on the circumstances of this case[.]”
The California Supreme Court has explained, “The basis of admiralty jurisdiction of the federal courts is article III, section 2 of the United States Constitution, and under the supremacy clause of article VI, the admiralty rules are applicable in state court litigation. State law is inapplicable to a maritime cause of action if it works material prejudice to the characteristic features of the general maritime law or interferes with the proper harmony and uniformity of that law in its international and interstate relations. (Citation.)” (Fahey v. Gledhill (1983) 33 Cal.3d 884, 887.)
In Doe v. Celebrity Cruises, Inc. (11th Cir. 2004) 394 F.3d 891, 902, a case relied upon by Fritsch, the issue on appeal was “what standard of care governs when a cruise line’s crew member sexually batters a passenger.” (Id. at p. 893.) Holding that federal admiralty law applied even though the battery occurred in a port-of-call and not on the ship, the 11th Circuit court reasoned, “the purpose behind the exercise of this Court’s admiralty jurisdiction is to provide for the uniform application of general maritime law. Plainly, the standard of care that governs when a cruise line’s crew member assaults a passenger should be uniform and not vary from port to port on a single cruise.” (Id. at p. 902.) In Wilburn Boat Co. v. Fireman’s Ins. Co. (1955) 348 U.S. 310, 314, another case relied upon by Fritsch, the court explicitly left the regulation of maritime insurance to the states only because Congress had not taken over that body of law. There, the court declined to fashion judicial rules to govern the regulation of maritime contracts and insurance. (Id. at pp. 314-317.)
The Supreme Court has held that a cruise ship owes its passengers a duty to exercise reasonable care under the circumstances. (Kermarec, supra, 358 U.S. at p. 628; Chan v. Society Expeditions, Inc. (9th Cir. 1997) 123 F.3d 1287, 1290.) To allow Fritsch to proceed under the common carrier statute, which requires a higher standard of care, would “interfere[] with the proper harmony and uniformity of [federal maritime law.]” (Fahey v. Gledhill, supra, 33 Cal.3d at p. 887.)
Although we are not bound by the opinions issued by the lower federal courts, Diane J. Walther v. Hell’s Canyon Adventures, Inc. (D. Or. 1997) 1997 AMC 2098 is instructive. There, the plaintiff asserted common carrier liability for injuries she suffered as a passenger on a jet boat. The defendant moved for summary judgment as to her state law claims, asserting that federal maritime law preempts the plaintiff’s state law claims. (Id. at p. 2090.) Noting that “no cases cited or found by the court explicitly say that a plaintiff may not assert a maritime negligence claim and also state common law claims[, ]” the district court nevertheless concluded that the Ninth Circuit prohibits bringing both maritime and non-maritime claims for the same injury. (Id. at p. 2101.) We conclude the same.
Alternatively, Fritsch urges us to ignore Kermarec and its progeny and impose a high degree of care on cruise ships under maritime law. In support of her argument, Fritsch relies on a U.S. Supreme Court opinion from 1879 involving a passenger on a steamship who fell 20 feet into an uncovered hatchway. (The City of Panama (1879) 101 U.S. 453, 455.) The City of Panama court held: “Passengers must take the risk incident to the mode of travel they select, but those risks in the legal sense are only such as the utmost care, skill, and caution of the carrier, in the preparation and management of the means of conveyance, are unable to avert. When carriers undertake to convey persons by the powerful but dangerous agency of steam, public policy and safety require that they be held to the greatest possible care and diligence, the true requirement being that the personal safety of the passengers shall not be left to the sport of chance or the negligence of careless agents.” (Id. at p. 462.)
Although Kermarec did not expressly overrule The City of Panama, we decline to follow it strictly when it does not appear that any more recent federal or state courts have chosen to do so. In fact, our own cursory review of the law shows the Second, Fifth, Sixth, Eighth and Ninth Circuits haveexpressly adopted the “Kermarec rule of reasonable care under the circumstances... in passenger cases.” (Beard v. Norwegian Caribbean Lines (6th Cir. 1990) 900 F.2d 71, 73 (Beard); Chan v. Society Expeditions, supra, 123 F.3d at p. 1292; Rainey v. Paquet Cruises, Inc. (2d Cir. 1983) 709 F.2d 169, 171; Gibboney v. Wright (5th Cir. 1975) 517 F.2d 1054, 1059; Urian v. Milstead, (8th Cir. 1973) 473 F.2d 948, 951.) With the exception of two unconvincing citations, Fritsch has provided us with no legal support for the proposition that the rule under Kermarec does not apply here.
Fritsch disingenuously cites to Beard to support her argument that Kermarec never overruled The City of Panama but failed to include any reference to its ultimate decision to follow Kermarec. Similarly, Fritsch implies that the First, Fifth and Eighth Circuits agree with Professor Wyatt’s analysis when, in fact, they do not.
Fritsch further relies on a more recent Ninth Circuit opinion, Allen v. Matson Navigation Company (9th Cir. 1958) 255 F.2d 273, 277, and a law review article for her argument. In her article, Dr. Wyatt posits that courts have misinterpreted Kermarec for the last 50 years and that the standard of care for a passenger ship should be one of utmost care. (Marva Jo Wyatt, High Crimes on the High Seas: Re-Evaluating Cruise Line Legal Liability, 20 U.S.F. Mar. L.J. 147 [WL – 20 USFMLJ 147] (2007).) In Allen, the court noted, “In discussing the question of the duty which the defendant owed to its passengers, all of the parties agreed that the law of California is to be applied. The trial court made a like assumption. We find it unnecessary to indicate any view as to whether in this the parties were correct for as we see it, no matter which law applies, the rule is the same, whether that of California, or that of the maritime law.” (Allen v. Matson Navigation Co., supra, 255 F.2d at p. 277, fn. omitted.) We find neither of these citations compelling. Allen was decided one year before Kermarec and we decline to interpret it to impose a higher duty of care when more recent Ninth Circuit opinions involving cruise ships follow Kermarec. (Chan v. Society Expeditions, supra, 123 F.3d at p. 1292.)
III. Notice of Defect
Fritsch next argues there existed triable issues of material fact which precluded summary judgment on her negligence claim. The parties agree that the issue presented on the negligence claim is whether Princess knew or should have known of a dangerous condition on the stateroom balconies. The issue hinges on evidence of past accidents on stateroom balconies sufficient to give Princess notice that there was a problem with the balconies.
Code of Civil Procedure section 437c, subdivision (p)(2) sets forth a defendant’s burden of proof in moving for summary judgment or summary adjudication as follows: “A defendant or cross-defendant has met his or her burden of showing that a cause of action has no merit if that party has shown that one or more elements of the cause of action, even if not separately pleaded, cannot be established, or that there is a complete defense to that cause of action. Once the defendant or cross-defendant has met that burden, the burden shifts to the plaintiff or cross-complainant to show that a triable issue of one or more material facts exists as to that cause of action or a defense thereto. The plaintiff or cross-complainant may not rely upon the mere allegations or denials of its pleadings to show that a triable issue of material fact exists but, instead, shall set forth the specific facts showing that a triable issue of material fact exists as to that cause of action or a defense thereto.” On appeal from a ruling on a motion for summary judgment, the appellate court conducts its own independent review of the moving and opposition papers and applies the same standard as the trial court in determining whether the motion was properly granted. (California Aviation, Inc. v. Leeds (1991) 233 Cal.App.3d 724, 730-731.)
Princess has presented evidence that of the 367, 000 passengers aboard the Golden Princess in the two years prior to Fritsch’ fall, there was no record of another passenger slipping and falling. Princess then expanded its search to all of its other ships and found that from 2005 to 2007, there were only four reported accidents involving a stateroom balcony. Of those, three were completely dissimilar, involving tripping over the chair on the balcony or the threshold or slipping on a metal handicap ramp. On January 8, 2007, however, a passenger reported: “Slipped on balcony. Began raining. Slipped and fell over the lounger. Landed on left shoulder.” The accident occurred on the Royal Princess.
By contrast, Fritsch presented evidence from a former Princess ship security officer who recalled approximately five to six incidents where passengers slipped on the balcony of their staterooms on the Diamond Princess, yet another ship. “It was determined in most cases that the cause of the passengers slipping and falling was that the decking material on the balcony was slippery when wet from spray from sea or rain.” The security officer further stated that all the decking material on Princess ships were the same. Fritsch’s expert, on the other hand, makes no conclusions regarding notice of prior balcony accidents, instead only stating that Princess did not conduct a risk assessment of the balcony.
We find that Fritsch has failed to set forth “specific facts showing that a triable issue of material fact exists.” The declarations Fritsch submitted from her expert and from the former security officer are insufficient to raise a triable issue of fact as to whether there were prior similar accidents on stateroom balconies sufficient to give notice to Princess of a danger or defect. Declarations in support of or opposition to a motion for summary judgment or adjudication “shall be made by any person on personal knowledge, shall set forth admissible evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated in the affidavits or declarations.” (Code Civ. Proc., § 437c, subd. (d).) The security officer’s vague recollection that five or six accidents occurred on balconies on a different ship is not evidence that these accidents provided notice to Princess of a dangerous condition on the balcony of the Golden Princess. The security officer’s declaration provides no details as to how and when each accident occurred. It is unclear whether the design of the stateroom balcony on the Diamond Princess is the same as on the Golden Princess. Despite Fritsch’s claim that the trial court improperly weighed the credibility of the security officer’s declaration, we find that even if we were to accept everything in the declaration, it is insufficient to show that a triable issue of material fact exists. As the trial court aptly noted, “That would be like suing Hilton Hotels saying there was a slip and fall at the Hawaii Hilton; therefore, that’s notice of something in another Hilton somewhere else[.]”
DISPOSITION
The judgment is affirmed. Respondent is awarded costs on appeal.
We concur: RUBIN, J., LICHTMAN, J.
Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.