SUMMARY JUDGMENT DENIED IN CRUISE SHIP PASSENGER SLIP AND FALL ACTION WHERE PLAINTIFF WHERE PLAINTIFF WAS UNABLE TO SPECIFICALLY IDENTIFY SUBSTANCE SHE FELL IN.
2014 WL 4817478
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United States District Court,
S.D. Florida.
Tammy MERIDETH, Plaintiff,
v.
CARNIVAL CORPORATION, a Panama corporation d/b/a Carnival Cruise Lines, Inc., Defendant.
Case No. 13–CIV–23931. | Signed Aug. 18, 2014.
PROCEDURAL POSTURE: Passenger who slipped and fell on cruise ship brought negligence action against cruise line that owned the ship. Cruise line moved for summary judgment.
OVERVIEW: On the morning of May 22, 2013, Plaintiff passenger Tammy Merideth slipped and fell while attempting to navigate through a self-service dining establishment located on the M/S Carnival Magic, allegedly suffered extensive injuries, forcing her to remain in a Jamaican hospital before being air-ambulanced to her home state of Texas, where she underwent surgery and was further confined to a hospital. Carnival contends that Merideth has thus far failed to establish three facts that entitles it to summary judgment. Specifically, Carnival asserts that Merideth cannot establish: (1) what caused her to fall; (2) whether Carnival had notice of the allegedly dangerous condition; or (3) that said condition existed for a sufficient length of time to permit Carnival to correct it. Id. at 7–12. Alternatively, Carnival asserts that any alleged condition was open and obvious, thereby absolving Carnival of its duty to warn. Id. To the contrary, Merideth has introduced substantial evidence rebutting Carnival’s assertions. Carnival argues that because Merideth did not specifically identify in her deposition what caused her to slip, any negligence on the part of Carnival is entirely speculative. The Court rejects this argument. Testimony from various Carnival employees, demonstrates the more-than-speculative likelihood that condensation and/or the general condition of the tiles may have caused the floor to become slick. Merely because Merideth herself cannot identify whether there was a foreign substance on the floor prior to her slip and while she sat on the floor in pain, does not necessitate the conclusion that her theory of liability is entirely hypothetical. Carnival contends that if Merideth herself was unaware of any potentially dangerous condition, Carnival could not have been aware of the same, relying on Weiner, infra, and Gordon v. Target Corp., 2008 WL 2557509 (S.D.Fla. June 23, 2008). In Weiner, the Court granted summary judgment on this point when the record was “devoid of evidence that any Carnival employee or other person saw, or had reason to know of, any wet condition.” Id. In addition, the Court in Gordon held that a defendant was entitled to summary judgment where plaintiff’s claim of contamination was “grounded in no more than a guess or speculation, not founded on observable facts or reasonable inferences drawn from the record.” See id. at *5–6 (noting that “speculation does not create a genuine issue of fact; instead, it creates a false issue, the demolition of which is a primary goal of summary judgment” (citation omitted)). Unlike Weiner and Gordon, the record herein is not so sparse. Merideth has demonstrated that condensation may have been present, and, more critically, has introduced testimony indicating that Carnival was indeed aware of frequent condensation build-up near the area at issue. As a result of the condensation, cleanup, and potential presence of warning cones, a reasonable jury could likely infer that Carnival was on notice of the potentially hazardous condition. See Cohen, 945 F.Supp.2d at 1356–57 (finding a lack of warning sign or cone to be critical on the issue of notice); see also Harnesk v. Carnival Cruise Lines, Inc., 1991 WL 329584, at *3 (S.D.Fla. Dec.27, 1991) (noting that defendant had actual notice of the dangerous condition when they installed two “Watch Your Step” signs); Mabrey v. Carnival Cruise Lines, Inc., 438 So.2d 937, 938 (Fla. 3d DCA 1983) (noting that “defendant did have knowledge that the deck was dangerous, since it had posted at the entrance to the deck a sign warning ‘Slippery When Wet’ ”). The evidence presented here stands in contrast to that which the Court faced in Weiner and Gordon; the record reveals that Carnival may have been alerted to a general lack of slip resistance on the tile, or at the very least, a hazardous condition. Accordingly, as Merideth has presented evidence that Carnival had either actual or constructive notice of the potentially dangerous condition, Carnival is not entitled to summary judgment on this theory of liability. Cf. Cohen, 945 F.Supp.2d at 1355–56 (finding no actual or constructive knowledge when there was no record evidence of any accident reports, comments, or other testimony that would alert Carnival to a safety concern). While Carnival may be correct that the floor was clear and otherwise safe at the time of the incident, Merideth has introduced sufficient evidence to reveal genuine issues of material fact. Lastly, “A cruise line’s duty to warn extends to known dangers which are not apparent and obvious, and there is no duty to warn of dangers that are of an obvious and apparent nature.” Cohen, 945 F.Supp.2d at 1357 (internal quotation and formatting removed). Under this theory, Carnival asserts that Merideth had previously been in the area where she slipped and “had walked from tile to carpet before”; therefore, “Carnival had no duty to warn [her] of a condition of which she was already aware.” ECF No. [64] at 11. In Cohen, the court found that a plaintiff could not claim that a condition existing at the end of a gangplank used for ingress and egress was not open and obvious when the plaintiff had stated that he had been on several cruises prior to the incident and was aware of and familiar with cruise ships and the disembarkation process. Cohen, 945 F.Supp.2d at 1357–58. Hinging its decision on the fact that the plaintiff had used the gangplank prior to the injury without incident, the court noted that the presence of the alleged danger was, or should have been, obvious to the plaintiff through the ordinary use of his senses. Id. In the case at bar, there are no circumstances to suggest that the condition of the floor was visible or otherwise obvious to an individual utilizing their normal faculties. In Frasca v. NCL (Bahamas) Ltd., 2014 WL 1385806 (S.D.Fla. Apr. 9, 2014), the Court found that the fact it was “rainy/misty” outside provided adequate warning that the exterior deck would be wet and slick “because it is obvious to a reasonable person.” Id. at *6–7. Conversely, herein, the possible presence of condensation on the floor and/or the lack of slip resistance of the tiles themselves may not have been conspicuous to the naked eye. See Magazine v. Royal Caribbean Cruises, Ltd., 2014 WL 1274130, at *6 (S.D.Fla. Mar. 27, 2014) (implying that anomalous conditions in otherwise safe areas, such as a slippery substance on a walkway, generally are not open and obvious). Although, Carnival’s argument that Merideth had been in this location prior to her accident is relevant, it does not preclude the fact that the condition of the floor may have changed from Merideth’s prior visits to that particular location. There is insufficient evidence in the record to conclude that the possible cause of Merideth’s accident was open and obvious in nature. Drawing all reasonable inferences in her favor, Plaintiff Merideth has introduced sufficient evidence to create a genuine issue for trial so that a rational trier of fact could find in her favor.
OUTCOME: Defendant Carnival Corporation’s Motion for Final Summary Judgment was denied.
PUTATIVE CLASS ACTION BROUGHT ON BEHALF OF CREWMEMBERS ALLEGING VIOLATIONS OF DUTY TO PROVIDE MAINTENANCE AND CURE WAS DISMISSED, AND THE DISMISSAL WAS AFFIRMED ON APPEAL, WHERE PLAINTIFFS ATTEMPTED TO SUE CARNIVAL CORPORATION PLC, A DUAL LISTED CORPORATION. COURT HELD THAT CARNIVAL CORP. PLC WAS NOT A SUABLE ENTITY UNDER THE FACTS PRESENTED.
762 F.3d 1330
United States Court of Appeals,
Eleventh Circuit.
Zolt SABO, Ilija Janev, Stefan Vidojkovic, individually and on behalf of all others similarly situated, Plaintiffs–Appellants,
v.
CARNIVAL CORPORATION, d.b.a. Carnival Corporation & PLC, Carnival PLC, d.b.a. Carnival Corporation & PLC, Carnival Corporation & PLC, Defendants–Appellees.
No. 13–11765. | Aug. 12, 2014.
PROCEDURAL POSTURE: Workers on cruise ship brought putative class action against dual-listed company which owned cruise line, alleging failure to provide maintenance and cure in accordance with general United States maritime law and the Jones Act. The United States District Court for the Southern District of Florida, dismissed the action. Workers appealed.
OVERVIEW: Cruise ship employees of Cunard Line, Zolt Sabo, Ilija Janev, and Stefan Vidojkovic, all sustained back injuries that required land-based rest and recuperation. Each received three months of wages and two months of medical expenses per contracts with Cunard Celtic Hotel Services, Ltd., a company that operates under the corporate umbrella of Carnival Corporation & PLC—the dual-listed company (“DLC”) comprised of Carnival Corporation (a Panamanian corporation headquartered in Miami, FL) and Carnival PLC (a British corporation headquartered in Southampton, England).
Plaintiffs Sabo, Janev, and Vidojkovic filed a class action complaint against Defendants Carnival Corporation and Carnival PLC alleging failure to provide maintenance and cure in accordance with general United States maritime law and the Jones Act. Defendants responded by filing a Motion to Dismiss, arguing, among other things, that the Seafarers’ claims were due to be dismissed because (1) the district court lacked in personam jurisdiction over Carnival PLC, (2) Carnival Corporation was an improper party to the case (as it was adequately shielded from liability by its corporate form), and (3) the Complaint failed to meet federal pleading standards. The Seafarers’ Response made clear that they only intended to sue one defendant, Carnival Corporation & PLC,1 completely re-orienting the focus of the case and making Plaintiffs’ ability to bring suit against a DLC the operative issue. In its subsequent Order, the district court addressed the Seafarers’ newly articulated position, and wholly rejected the notion that it could exercise jurisdiction over a DLC, including Carnival Corporation & PLC. The district court did not completely foreclose the possibility that a DLC could be haled into court, but noted that “the case or controversy would have to arise from said corporate structure (i.e., the shared assets or investments [of the DLC] ).” The Seafarers appealed the district court’s Order, presenting the question that we answer today: based upon the record before us and the laws of Florida, was Carnival Corporation & PLC, a DLC, subject to suit as a corporation, according to the doctrine of estoppel, or under a joint venture theory of liability? The court concluded it was not. Court stated that just as the creation of Carnival Corporation & PLC involved significant tactical considerations, so too did the Seafarers’ decision to sue the DLC rather than its different corporate components. Instead of pursuing a complicated, convoluted case against Carnival Corporation & PLC, the Seafarers could have asserted claims against Cunard Celtic Hotel Services, Ltd. (their direct, contractual employer) or Carnival PLC (Cunard Celtic’s parent company). However, in this matter the Seafarers have charted a course less traveled, making the tactical choice to focus their suit on the DLC in hopes of reaping greater rewards. By suing the DLC, the Seafarers apparently hoped to (a) invoke U.S. maritime law, which affords injured seamen more extensive maintenance and cure than that provided under the Seafarers’ U.K.-based contracts, and (b) tap into a larger pool of potential class members, opening the class not only to workers from the Seafarers’ own Cunard Line, but also to employees from Carnival Corporation & PLC’s entire fleet. Indeed, the Seafarers took a gamble in solely pursuing the DLC, one that could pay off in broader, more viable claims, but only if they could demonstrate that a DLC is a properly suable entity.
OUTCOME: District Court’s dismissal was affirmed.
