Opinion
Case No. 19-25245-CIV-GRAHAM
2021-06-15
Joseph SIMONE, Plaintiff, v. NCL (BAHAMAS) LTD., a Bermuda Company d/b/a Norwegian Cruise Line, Defendant.
David L. Markel, Edward Steven Schwartz, Nicholas I. Gerson, Philip Maurice Gerson, Gerson and Schwartz, P.A., Miami, FL, Raul Gabriel Delgado, II, Delgado Trial Attorneys, Miami, FL, for Plaintiff. Darren Wayne Friedman, Zachary Lincoln Foreman, Rachael Mitchell Fagenson, Thomas Dennis Alan Briggs, Foreman Friedman, PA, Miami, FL, for Defendant.
David L. Markel, Edward Steven Schwartz, Nicholas I. Gerson, Philip Maurice Gerson, Gerson and Schwartz, P.A., Miami, FL, Raul Gabriel Delgado, II, Delgado Trial Attorneys, Miami, FL, for Plaintiff.
Darren Wayne Friedman, Zachary Lincoln Foreman, Rachael Mitchell Fagenson, Thomas Dennis Alan Briggs, Foreman Friedman, PA, Miami, FL, for Defendant.
ORDER ON CROSS MOTIONS FOR SUMMARY JUDGMENT
DONALD L. GRAHAM, UNITED STATES DISTRICT JUDGE THIS CAUSE comes before the Court on Plaintiff's Motion for Partial Summary Judgment (ECF No. 53) and Defendants’ Motion for Summary Judgment (ECF No. 56).
THE COURT has considered the motions, the relevant portions of the record, and is otherwise fully advised in the premises. For the reasons set forth below, Plaintiff's Motion for Partial Summary Judgment (ECF No. 53) is denied and Defendant's Motion for Summary Judgment (ECF No. 56) is denied.
I. BACKGROUND
This is a maritime personal injury action wherein Plaintiff, Joseph Simone, alleges that he was injured while a passenger on the Norwegian Epic. (ECF No. 18, ¶¶11-16). Plaintiff claims that as a result of a malfunctioning right-side handrail on the escalator going between decks 5 and 6, he was pulled off balance, falling and sustaining injuries. Id. Plaintiff filed a four-count Complaint against Norwegian Cruise Line (NCL) for negligent operation (Count I), negligent maintenance (Count II), negligent failure to warn (Count III), and negligent instruction by crew (Count IV). (ECF No. 18).
Plaintiff moves pursuant to Rule 56(a), Federal Rules of Civil Procedure, for a partial summary judgment in his favor on the asserted defenses of alleged lack of notice of a dangerous condition, NCL's failure to exercise reasonable care, the allegedly open and obvious nature of the condition, and comparative negligence. (ECF No. 53). Plaintiff bases this motion on the testimony of Defendant NCL's corporate representative deposed pursuant to Rule 30(b)(6), Federal Rules of Civil Procedure. Id. Plaintiff asserts that NCL, through its representative, has admitted actual and timely notice of the material dangerous condition, a malfunctioning escalator, and has admitted NCL's deliberate decisions both to delay repairs to the escalator and to leave it in service pending repair without warning passengers. Id. These decisions, Plaintiff contends, led directly to Plaintiff's injury when he used the malfunctioning escalator the morning after NCL knew it was malfunctioning and had deliberately decided not to warn passengers or repair the malfunction until several days later. Id.
Conversely, NCL moves for summary judgment on Counts I, III, and IV, asserting that the danger of the stationary handrail alleged by Plaintiff was open and obvious as a matter of law. (ECF No. 56). Additionally, NCL moves for summary judgment on Count II, Plaintiff's negligent maintenance claim, contending that Plaintiff fails to adduce any evidence that NCL had actual or constructive notice that the stationary handrail posed as a danger to its passengers; or expert testimony which might have spoken to an alternate action NCL should have taken to prevent Plaintiff's accident. Id. Further, NCL argues, there is no indication of how the escalator was negligently maintained other than the threadbare allegations in Plaintiff's Complaint. Id.
II. FACTS
Plaintiff is a 78 year old, retired, resident of Hernando, Florida. (ECF No. 53-2, Deposition of Simone at 9:25-10:1, 9:13, 9:20, 11:22-23, 12:10-11, 12:24-25). Plaintiff suffers from chronic obstructive pulmonary disease (COPD). (ECF No. 53-2, Simone at 77:19-78:7, 79:18-80:1). Plaintiff is limited in his ability to walk long distances and uses a cane for assistance in walking. (ECF No. 53-2, Simone at 27:18-20, 28:6-29:25, 30:1-3). He also uses a mobility scooter for assistance in traversing long distances, but uses the scooter primarily when on a cruise ship. (ECF No. 53-2, Simone at 29:17-19). For two-weeks Plaintiff was a passenger on the Epic , a passenger cruise vessel operated by NCL. Various family members accompanied him at various points during the voyage. (ECF No. 53-2, Simone at 99:25-100:10).
Due to his preexisting mobility issues, Plaintiff used his cane and a mobility scooter while on the voyage. (ECF No. 53-2, Simone at 28:6-29:19, 103:1-6). On January 4, 2019, the next to last day of the cruise, at approximately 10:00 a.m. to 10:30 a.m., ship's time, Plaintiff wished to ascend from Deck 5 to Deck 6 to locate his wife. (ECF No. 53-2, Simone at 100:14-15, 102:3-11, 109:16-21, 111:15-19; ECF No. 53-3, Brett Berman at 24:18-19). The ship was docked in a port at the time. (ECF No. 53-2, Simone at 108:16-23). The escalator's handrails extend several feet beyond where the escalator stairs begin. (See ECF No. 53-1, Photographs of the escalator attached as exhibits to Plaintiff's Motion for Summary Judgment). Plaintiff ascended an escalator connecting Decks 5 and 6, designated in NCL's onboard numbering system as Escalator 4. (ECF No. 53-2, Simone at 111:10-12; ECF No. 53-3, Berman at 14:3-4). Plaintiff had not used or attempted to use Escalator 4 previously. (ECF No. 53-2, Simone at 102:20-22; 120:17-20).
Plaintiff held on to the right-side handrail on the escalator's landing before stepping onto the moving stairs. (See ECF No. 56-4, CCTV video at 12:14:43 according to the time stamp in the upper right side of the video). When Plaintiff boarded Escalator 4, he used his right hand to hold onto the right handrail and was holding his cane in his left hand. (ECF No. 53-2, Simone at 115:5-8; 117:17-19; 119:2-4). He gripped the right handrail at the same time as he stepped onto the escalator steps. (ECF No. 53-2, Simone at 123:4-9; 146:13-14). Both of Plaintiff's feet were on the same step of the escalator. (ECF No. 53-2, Simone at 124:15-18). Plaintiff was not using a telephone or other device and was not talking to anyone at the time he boarded the escalator. (ECF No. 53-2, Simone at 122:22-25). Plaintiff was holding only his cane in his left hand and holding the handrail with his right hand. (ECF No. 53-2, Simone at 123:1-3). Plaintiff stood on the escalator, with the assistance of his cane, and did not attempt to walk up the escalator steps. (ECF No. 53-2, Simone at 124:19-21). When the escalator steps and left side of the escalator moved upward, the right handrail did not move due to its malfunction. (ECF No. 53-2, Simone at 115:8-17). As a result of the non-synchronized movement of the escalator, with the right handrail remaining stationary as the escalator steps moved, Plaintiff lost his balance, fell backward onto the escalator steps, and sustained injuries including a degloving injury on the skin of his left arm, as well as right arm injuries, fractured ribs and a persistent blood clot. (ECF No. 53-2, Simone at 115:8-13; 119:8-11; 119:12-15; 124:4-8; 137:17-25; ECF No. 53-3, Berman at 23:9-16). Plaintiff's cane did not catch in the escalator steps or otherwise contribute to his fall. (ECF No. 53-2, Simone at 124:12-14). After Plaintiff's fall, the escalator was taken out of service and the right handrail was repaired. (ECF No. 53-3, Berman at 36:9-10).
On January 3, 2019 and January 4, 2019, before Plaintiff attempted to use Escalator 4, NCL did not inform passengers, by signage or otherwise, that the right handrail on Escalator 4 was malfunctioning or that the right handrail was not moving in synchronization with the remainder of the escalator. (ECF No. 53-2, Simone at 114:15-115:2; Berman at 29:24-30:2, 30:15-21). When Plaintiff boarded Escalator 4, no family members or other companions were with him; he was alone. (ECF No. 53-2, Simone at 100:21-23; 108:24-109:1). When Plaintiff boarded Escalator 4, there were no warning signs or notices near the escalator. (ECF No. 53-2, Simone at 114:15-115:2). Plaintiff did not hear or view any onboard announcements about the escalator. (ECF No. 53-2, Simone at 127:15-23).
On January 4, 2019, Escalator 4 was malfunctioning. Specifically, the rubber profile of an internal drive of the wheel on the right handrail of the escalator had detached, so that the right handrail on the escalator was stationary and did not move, while the left handrail and escalator steps continued to move at their previous speed. (ECF No. 53-3, Berman at 23:9-16; 27:3-12; 51:1-3). NCL knew of the malfunction in the right handrail of Escalator 4, at least as of January 3, 2019, the day before Plaintiff attempted use. Specifically, the ship's housekeeping department reported, at approximately 6:18 p.m. on January 3rd, that the right (port) side handrail on the escalator was "not working," and this information was entered into the ship's database. It is unknown how long the escalator had been malfunctioning before the report from the housekeeping department. (ECF No. 53-3, Berman at 24:9-15, 27:19-20, 42:12-13, 44:2-11, 44:20-25, 45:4-7, 45:14-17, 77:18-78:1). Repair of the right escalator handrail required gluing the rubber profile on the internal drive wheel, so that the right handrail would once again move in synchronization with the remainder of the escalator. (ECF No. 53-3, Berman at 28:1-5; 46:20-47:1). The escalator handrail malfunction was listed in the ship's database as a "high priority" issue, and NCL crew did communicate internally regarding the malfunction "right away" after receiving the report. (ECF No. 53-3, Berman at 45:22-46:2, 46:12-13).
Despite knowing of the right handrail malfunction at least as of the evening of January 3, 2019, NCL decided that it would wait until January 6, 2019, three days after it learned of the malfunction, to take the escalator out of service and repair it. (ECF No. 53-3, Berman at 28:7-9, 46:8-16). NCL delayed repair of the right handrail malfunction because it anticipated less passenger traffic in the area on January 6, 2019, after the current voyage had ended and the Epic would be used for a charter voyage. (ECF No. 53-3, Berman at 28:7-9). NCL "deemed" the malfunctioning right handrail not to be a safety hazard, and therefore concluded that it was not necessary either to warn passengers about it or to take the escalator out of service pending repair. (ECF No. 53-3, Berman at 28:9-12, 35:1-3, 35:14-17, 35:20-36:2). NCL, through its corporate representative Brett Berman, acknowledged that it would have been feasible either to place a warning sign near the malfunctioning escalator or to take the escalator out of service pending repair by placing barriers at the top and bottom of it. (ECF No. 53-3, Berman at 35:1-3, 35:14-17, 38:7-13). NCL decided not to place a warning or to take the escalator out of service because it deemed these steps unnecessary; NCL decided that the escalator handrail malfunction was an open and obvious condition that required no warning or precaution and that the malfunction, in its opinion, did not render the escalator unsafe to use. (ECF No. 53-3, Berman at 29:3-11, 30:22-25, 31:6-9. 31:19-32:3, 34:18-23, 35:1-3, 35:14-17, 35:20-36:2).
NCL performed a search of its database for recorded incidents involving malfunctioning escalator handrails for a period of three years prior to Plaintiff's claimed incident. The search revealed a single prior incident where a passenger was travelling down another escalator on the Epic and fell, purportedly losing her balance as a result of the right-side handrail moving slower than the escalator steps. (ECF No. 53-3, Berman at 83:16-25-84:1-4).
III. LEGAL STANDARD
Summary judgment is proper "if 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 a judgment as a matter of law." Fed. R. Civ. P. 56(c). The burden of establishing the absence of a genuine issue of material fact lies with the moving party. Celotex Corp. v. Catrett , 477 U.S. 317, 323, 106 S. Ct. 2548, 91 L.Ed.2d 265 (1986). A court's focus in reviewing a motion for summary judgment is "whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law." Allen v. Tyson Foods, Inc. , 121 F.3d 642, 646 (11th Cir. 1997). The Court should not grant summary judgment unless it is clear that a trial is unnecessary, see Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986), and any doubts in this regard should be resolved against the moving party. Adickes v. S.H. Kress & Co. , 398 U.S. 144, 157, 90 S. Ct. 1598, 26 L.Ed.2d 142 (1970).
If there are any factual issues, the Court must not decide them; it must deny the summary judgment motion, and the case then proceeds to trial. See Whelan v. Royal Caribbean Cruises Ltd. , No. 1:12CV-22481, 2013 WL 5583970, at *2 (S.D. Fla. Aug. 14, 2013) (citing Envtl. Def. Fund v. Marsh , 651 F.2d 983, 991 (5th Cir. 1981) ). The Court cannot weigh conflicting evidence to resolve factual disputes. See Skop v. City of Atlanta, Ga. , 485 F.3d 1130, 1140 (11th Cir. 2007) (citation omitted) (reversing in part summary judgment). Even when the parties "agree on the basic facts, but disagree about the inferences that should be drawn from these facts," summary judgment "may be inappropriate." Whelan , 2013 WL 5583970, at *2. See generally Johnson v. NCL (Bahamas) Ltd. , No. 16-21762, 2017 WL 1293770, at *2 (S.D. Fla. Feb. 3, 2017) (denying summary judgment motion in passenger's slip and fall lawsuit against cruise ship operator); Morrison v. Royal Caribbean Cruises, Ltd. , 2020 WL 5440580, at *5 (S.D. Fla. Sept. 10, 2020). This standard is not affected by the filing of cross motions for summary judgment, and the Court must determine for each side whether a judgment may be entered in accordance with Rule 56.
IV. ANALYSIS
A. Cross-Motions for Summary Judgment
Plaintiff moves for partial summary judgment in his favor on NCL's asserted defenses, finding as a matter of law, that NCL had timely actual and constructive notice of the material dangerous condition, the stationary right escalator handrail on onboard Escalator 4, that NCL failed to exercise reasonable care in addressing the known dangerous condition, that the condition was not open or obvious to a reasonable passenger under the circumstances prevailing when Plaintiff was injured, and that Plaintiff was not comparatively negligent.
Conversely, NCL moves for summary judgment on Counts I, III and IV, arguing that no dangerous condition existed because the stationary handrail was an open and objectively obvious condition to a reasonable person. (ECF No. 56). NCL also moves for summary judgment on Count II asserting that Plaintiff cannot prove a claim based on the theory of negligent maintenance. Id. This action is governed by federal maritime law because Plaintiff's injury occurred on a ship sailing in navigable waters. Carroll v. Carnival Corporation , 955 F.3d 1260, 1263–64 (11th Cir. 2020). In analyzing a maritime tort case, the Court relies on general principles of negligence law. Guevara v. NCL (Bahamas) Ltd. , 920 F.3d 710, 720 (11th Cir. 2019). To prevail on his maritime negligence claims, therefore, Plaintiff must show that (1) NCL had a duty to protect him from a particular injury; (2) NCL breached that duty; (3) the breach actually and proximately caused his injury; and (4) he suffered actual harm. Guevara , 920 F.3d at 720 (11th Cir. 2019).
With respect to the duty element in a maritime context, a cruise line owes its passengers a duty of "ordinary reasonable care under the circumstances, a standard which requires, as a prerequisite to imposing liability, that the carrier have had actual or constructive notice of the risk-creating condition." Keefe v. Bahama Cruise Line, Inc. , 867 F.2d 1318, 1322 (11th Cir. 1989) (per curiam). The cruise line's duty to its passengers includes "a duty to warn of known dangers ... in places where passengers are invited or reasonably expected to visit" that would not be open and obvious to a reasonable person under the circumstances. Chaparro v. Carnival Corp. , 693 F.3d 1333, 1336 (11th Cir. 2012) (per curiam); Deperrodil v. Bozovic Marine, Inc. , 842 F.3d 352, 357 (5th Cir. 2016) ("A vessel owner does not need to warn passengers or make special arrangements for open-and-obvious risks."); Petersen v. NCL (Bahamas) Ltd. , 748 Fed.Appx. 246, 250 (11th Cir. 2018). In this circumstance, a cruise ship operator's liability "hinges on whether it knew or should have known" about the dangerous condition. Id. Actual notice exists when the defendant knows of the risk-creating condition, while constructive notice exists when "the shipowner ought to have known of the peril to its passengers, the hazard having been present for a period of time so lengthy as to invite corrective measures." Gorczyca v. MSC Cruises, S.A. , 715 Fed.Appx. 919, 921 (11th Cir. 2017).
1. Notice
In order for NCL to be liable for negligence, it must have had actual or constructive notice that a condition creates a risk. Malley v. Royal Caribbean Cruises Ltd. , 713 Fed.Appx. 905, 908 (11th Cir. 2017). Knowledge that the condition exists is not sufficient, the defendant must also know that the condition is dangerous. See Chaparro v. Carnival Corp. , 693 F.3d 1333, 1337 (11th Cir. 2012). The Court cannot automatically impute awareness of the danger just because the defendant created the condition. Malley , 713 Fed.Appx. at 908. To demonstrate notice, the plaintiff can point to previous injuries or show that the defendant previously warned of the danger. See Sorrels v. NCL (Bahamas) Ltd. , 796 F.3d 1275, 1280 (11th Cir. 2015) (holding that the defendant had notice that a floor was slippery when wet because prior passengers had slipped and the defendant had previously posted a warning).
Here, the record evidence is that NCL had actual notice of the malfunctioning handrail prior to Plaintiff's incident. As NCL's corporate representative testified, a member of the NCL's housekeeping staff reported the stationary right-side handrail the day before Plaintiff's incident. NCL scheduled the malfunction for repair and noted in its database that the repair had a "high priority." This evidence alone, however, does not demonstrate that NCL knew that the stationary handrail created a risk to passengers.
Notwithstanding NCL's actual notice of the malfunctioning handrail the day prior to Plaintiff's injury, NCL acknowledges one previous incident, within the three years before Plaintiff was injured, in which a passenger on the Epic lost her balance and fell due to an escalator right-side handrail not moving in synchronization with the escalator. (ECF No. 57, Defendant's Statement of Material Facts at ¶10; ECF No. 53-3, Brett Berman at 83:16-25, 84:1-4). In that incident, the passenger was riding down an escalator from deck 6 to deck 5 onboard the Epic , holding the right-side handrail. Id. The passenger purportedly lost her balance and fell because of that handrail moving slower than the escalator steps. Id. Although this prior incident onboard the Epic involving a slower right-side escalator handrail involved a passenger descending at the time, a reasonable juror could find that this prior incident is substantially similar enough to Plaintiff's incident as to provide NCL with constructive notice that a moving escalator with a completely stationary handrail creates a risk to passengers. On this record, the Court finds, genuine issues of material facts preclude summary judgment and both motions as to notice are denied.
2. Failure to Warn/Open and Obvious
A defendant cannot be liable for failure to warn if the risk-creating condition is open and obvious to a reasonable person. Malley , 713 Fed.Appx. at 908. "Open and obvious conditions are those that should be obvious by the ordinary use of one's senses." Lugo v. Carnival Corp. , 154 F. Supp. 3d 1341, 1345-46 (S.D. Fla. 2015) (quoting Lancaster v. Carnival Corp. , 85 F. Supp. 3d 1341, 1344 (S.D. Fla. 2015) (noting that open and obvious conditions are "discernible through common sense and the ordinary use of eyesight")). The Court focuses on what an objectively reasonable person would observe and does not take into account the plaintiff's subjective perceptions. Lugo , 154 F.Supp.3d at 1345–46. Moreover, the question is not whether the condition itself was open and obvious, but instead whether the danger of the condition was open and obvious. See, e.g., Petersen v. NCL (Bahamas) Ltd. , 748 F. App'x 246, 250 (11th Cir. 2018) (reversing summary judgment for cruise ship on negligence claim in slip and fall case and explaining that "furthermore, we agree that, although the wetness of the deck was open and obvious, the unreasonably slippery state of the deck may not have been open and obvious to a reasonable person"); Frasca v. NCL (Bahamas), Ltd. , 654 F. App'x 949, 952 (11th Cir. 2016) (reversing summary judgment for cruise ship and noting that the deck's visible wetness and weather conditions might not alert a reasonable observer to the extent of the deck's slipperiness, thereby leaving the open and obvious issue for a jury); Knickerbocker v. Bimini SuperFast Operations, LLC, No. 13-24500, 2014 WL 12536981, at *8 (S.D. Fla. Nov. 21, 2014) (rejecting defendant's open and obvious argument because "it is the dangerous condition of an object which must be open and obvious, not simply the object itself"); Morrison v. Royal Caribbean Cruises, Ltd. , 2020 WL 5440580, at *7 (S.D. Fla. Sept. 10, 2020).
NCL concedes that, while it knew of the malfunction with the handrail, no warning signs were placed in the area because it determined that the handrail was not a danger to passengers; and that any reasonable person using the escalator would observe its open and obvious nature and act accordingly. Moreover, according to NCL, the condition caused no risk to passengers because the left-side handrail moved and the right-side handrail was still operational, it just wasn't moving. Specifically, NCL notes that any reasonable person, after grabbing hold of a stationary handrail, at least once, before stepping onto the moving escalator steps would have observed the malfunction and adjusted either by using the moving left-side handrail or lifting and placing hand on the stationary right-side handrail as the escalator ascended, the same as one would a stairway. NCL maintains that because Plaintiff touched the stationary handrail three times in the three feet leading to the moving steps, he should have been aware of the escalator's condition and adjusted accordingly. Plaintiff asserts that, because of Plaintiff's mandatory use of the cane in his left hand for support, he could only use his right hand to hold on to an escalator handrail. The parties agree that the CCTV video shows Plaintiff using a cane in his left hand. Plaintiff argues that, because of his impaired mobility and use of a cane, he was not able safely to maneuver while on the escalator, let go with his right hand as suggested by NCL, adjust his position while ascending, or quickly reverse his steps and step off the escalator. Neither party suggests that the malfunction was visible to reasonable passengers approaching the escalator or that Plaintiff should have detected anything wrong at least before actually reaching the escalator and touching the malfunctioning handrail.
On this record, a jury could find that a reasonable person in Plaintiff's circumstances would not have observed the stationary position of the right-side handrail or that Escalator 4 operated any differently from any other escalator prior to encountering the condition. Moreover, a reasonable jury could find that the danger of the stationary handrail created a risk that was not open or obvious to a reasonable person under the circumstances presented to Plaintiff. Based on the foregoing, the Court finds that there are genuine issues of material fact as to whether the danger associated with the stationary handrail was open and obvious. On this basis, both motions are denied.
3. Negligent Maintenance and Comparative Negligence
Even if the risk was open and obvious, which the Court has not determined that it was, that does not preclude Plaintiff's negligent maintenance claim. Carroll v. Carnival Corporation , 955 F.3d 1260, 1269 (11th Cir. 2020).
Count II of Plaintiff's Complaint alleges that NCL failed to take reasonable measures to maintain the escalator by correcting its defective condition, specifically by "failing to maintain the escalator in a reasonably safe condition; failing to maintain the escalator to prevent malfunctions of it and of its component parts, including the escalator's handrails; failing to ensure a safe handrail or alternative grip to allow passengers to brace themselves while riding the escalator; allowing the escalator [...] to continue in service pending repair or replacement [...]; or by failing to inspect, detect or discover the hazardous and then take appropriate corrective action." (ECF No 18, ¶¶ 26, 27). However, NCL asserts, Plaintiff has not put forth any evidence or expert testimony supporting any of the above allegations of negligent maintenance.
The record evidence is, despite knowing of the right handrail malfunction at least as of the evening of January 3, 2019, NCL decided that it would wait until January 6, 2019, three days after it learned of the malfunction, to take the escalator out of service and repair it. (ECF No. 53-3, Berman at 28:7-9, 46:8-16). NCL delayed repair of the right handrail malfunction because it anticipated less passenger traffic in the area on January 6, 2019, after the current voyage had ended and the Epic would be used for a charter voyage. (ECF No. 53-3, Berman at 28:7-9). NCL "deemed" the malfunctioning right handrail not to be a safety hazard, and therefore concluded that it was not necessary either to warn passengers about it or to take the escalator out of service pending repair. (ECF No. 53-3, Berman at 28:9-12, 35:1-3, 35:14-17, 35:20-36:2). NCL, through its corporate representative Brett Berman, acknowledged that it would have been feasible either to place a warning sign near the malfunctioning escalator or to take the escalator out of service pending repair by placing barriers at the top and bottom of it. (ECF No. 53-3, Berman at 35:1-3, 35:14-17, 38:7-13). NCL decided not to place a warning or to take the escalator out of service because it deemed these steps unnecessary. (ECF No. 53-3, Berman at 29:3-11, 30:22-25, 31:6-9; 31:19-32:3, 34:18-23, 35:1-3, 35:14-17, 35:20-36:2).
Based on this record, genuine issues of material facts exist regarding whether NCL negligently failed to maintain its vessel adequately by taking the escalator out of service pending repair, a step NCL admits it could easily have accomplished but deliberately decided not to undertake. Likewise, the Court finds the issue of comparative negligence is one for the jury. Accordingly, the motions for summary judgment as to negligent maintenance and comparative negligence are denied.
V. CONCLUSION
Based on the foregoing, it is hereby
ORDERED AND ADJUDGED that Plaintiff's Motion for Partial Summary Judgment (ECF No. 53) is DENIED. It is further
ORDERED AND ADJUDGED that Defendants’ Motion for Summary Judgment (ECF No. 56) is DENIED .
DONE AND ORDERED in Chambers at Miami, Florida, this 15th day of June, 2021.