Summary
noting that courts found "summary judgment inappropriate"
Summary of this case from Morrison v. Royal Caribbean Cruises, Ltd.Opinion
CASE NO. 15-24410-CIV-ALTONAGA/O'Sullivan
08-31-2016
David A. GEYER, Plaintiff, v. NCL (BAHAMAS) LTD., Defendant.
Glenn J. Holzberg, Law Offices of Glenn J. Holzberg, Miami, FL, for Plaintiff. Darren Wayne Friedman, Jenna Francine Gushue, Jeffrey Eric Foreman, Foreman Friedman, PA, Geoffrey Edward Probst, Norwegian Cruise Lines Inc., Miami, FL, for Defendant.
Glenn J. Holzberg, Law Offices of Glenn J. Holzberg, Miami, FL, for Plaintiff.
Darren Wayne Friedman, Jenna Francine Gushue, Jeffrey Eric Foreman, Foreman Friedman, PA, Geoffrey Edward Probst, Norwegian Cruise Lines Inc., Miami, FL, for Defendant.
ORDER
CECILIA M. ALTONAGA, UNITED STATES DISTRICT JUDGE
THIS CAUSE came before the Court upon Defendant, NCL (Bahamas) LTD.'s ("Norwegian['s]") Motion for Summary Judgment ("Motion") [ECF No. 30], filed July 5, 2016. Plaintiff, David A. Geyer ("Plaintiff") filed a Response ... ("Response") [ECF No. 43] on July 29, 2016; and Norwegian filed a Reply ... ("Reply") [ECF No. 52] on August 10, 2016. The Court has carefully considered the parties' submissions, the record, and applicable law.
The materials include Norwegian's Statement of Undisputed Facts ("Norwegian's SUF"), submitted in its Motion (see Mot. 2–6); Plaintiff's Statement of Undisputed Facts ("Plaintiff's SUF"), submitted as part of his Response (see Resp. 2–9); and Norwegian's Response ... ("Norwegian's SUF Response"), submitted in its Reply (see Reply 1–5).
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I. BACKGROUND
This is a maritime negligence action brought by Plaintiff against Norwegian, alleging he sustained a shoulder injury onboard the Norwegian Getaway when an unsupervised child collided with him at the kids' aqua park. (See generally Complaint [ECF No. 1] ). On July 14, 2014, Plaintiff and his two-year-old daughter were at the kids' aqua park. (See Norwegian's SUF ¶ 5). The aqua park is an active "splash area" with "kiddie" pools, water jets, a water slide, and cartoon characters. (See id. ¶¶ 7, 9; Norwegian's SUF Resp. ¶¶ 7–8, 14; Pl.'s SUF ¶ 6). Around 1:00 p.m., Plaintiff was walking through the aqua park carrying his daughter when a child "slid into his leg," causing him to fall. (Norwegian's SUF ¶ 14; Resp. 1–2). Before falling, Plaintiff observed children sliding on their stomachs between the kiddie pool and water jets. (See Norwegian's SUF ¶ 11; Resp. 1). As a result of the incident, Plaintiff suffered a shoulder injury requiring surgery. (See Resp. 2).
The aqua park has a sign titled "Kids Pool Safety Information" ("Safety Sign") that states: (1) no jumping or diving; (2) children under twelve must be accompanied by an adult; (3) running is not permitted; and (4) no beverages, food, or glass allowed. (Pl.'s SUF ¶¶ 8–10). Although Norwegian asks for adults "to be in the area," it does not ensure this occurs. (Deposition of Jane Kilgour, Corporate Representative [ECF No. 30-3] 89:19–21). Norwegian does not supervise the kids' aqua park, and there are no lifeguards at any of the pools. (See id. ; Pl.'s SUF ¶ 1). II. LEGAL STANDARD
Summary judgment is rendered if the pleadings, the discovery and disclosure materials on file, and any affidavits show there is no genuine issue as to any material fact and the movant is entitled to judgment as a matter of law. See FED. R. CIV. P. 56(a), (c). An issue of fact is "material" if it might affect the outcome of the case under the governing law. See Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). It is "genuine" if the evidence could lead a reasonable jury to find for the non-moving party. See id. ; see also Matsushita Elec. Indus. Co. v. Zenith Radio Corp. , 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986).
At summary judgment, the moving party has the burden of proving the absence of a genuine issue of material fact, and all factual inferences are drawn in favor of the non-moving party. See Allen v. Tyson Foods Inc. , 121 F.3d 642, 646 (11th Cir.1997). The court must consider the entire record and not just the evidence singled out by the parties. See Clinkscales v. Chevron U.S.A., Inc. , 831 F.2d 1565, 1570 (11th Cir.1987). The non-moving party's presentation of a "mere existence of a scintilla of evidence" in support of its position is insufficient to overcome summary judgment. Anderson , 477 U.S. at 252, 106 S.Ct. 2505.
If there are any factual issues, summary judgment must be denied and the case proceeds to trial. See Whelan v. Royal Caribbean Cruises Ltd. , No. 1:12–CV–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) ). 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." Id. (alteration added). "If reasonable minds might differ on the inferences arising from undisputed facts, then the [c]ourt should deny summary judgment." Id. (alteration added). Additionally, the court cannot weigh conflicting evidence. See Skop v. City of Atlanta, Ga. , 485 F.3d 1130, 1140 (11th Cir.2007) (citation omitted).
III. ANALYSIS
Plaintiff brings a single negligence count against Norwegian alleging, among other things, Norwegian created a dangerous condition, failed to adequately supervise the children in the aqua park, and failed to comply with its own safety rules by allowing unsupervised children to use the aqua park. (See generally Compl.). Norwegian seeks summary judgment on two grounds: (1) Plaintiff cannot establish Norwegian had actual or constructive notice of the alleged dangerous condition; and (2) even if Norwegian had notice, the dangerous condition was open and obvious. (See Mot. 8–14). Plaintiff disagrees, insisting: (1) Norwegian knew of and created the dangerous condition; and (2) the dangerous condition was not open and obvious. (See Resp. 11–17). The Court addresses each argument.
A. Actual or Constructive Notice
Plaintiff states Norwegian created the dangerous condition (see id. 14); and knew of the "dangers created by passengers running, jumping, and diving in its pools" (id. 12), as evidenced by the Safety Sign (id. 16–17). According to Norwegian, it was not "aware of a danger of collision posed by children sliding on the kid's [sic] pool deck" (Mot. 8), and there is no evidence of substantially similar collision incidents or "for how long the alleged dangerous condition existed prior to this fall sufficient to charge Norwegian with constructive notice" (id. 10); thus, it cannot be held liable (id. 12).
"General maritime law governs tort actions between a cruise line and its passengers." Taiariol v. MSC Crociere, S.A. , No. 0:15–CV–61131, 2016 WL 1428942, at *3 (S.D.Fla. Apr. 12, 2016) (citing Keefe v. Bahama Cruise Line, Inc. , 867 F.2d 1318, 1320 (11th Cir.1989) ). "Under maritime law, the owner of a ship in navigable waters owes passengers a ‘duty of reasonable care’ under the circumstances." Sorrels v. NCL (Bahamas) Ltd. , 796 F.3d 1275, 1279 (11th Cir.2015) (citations omitted). The "reasonable care under the circumstances" standard "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 (alteration added). "However, a [p]laintiff need not prove notice where he also alleges that [the] [d]efendant created the dangerous condition." Whelan , 2013 WL 5583970, at *3 (alterations added); see also McLean v. Carnival Corp. , No. 12–24295–CIV, 2013 WL 1024257, at *4 (S.D.Fla. Mar. 14, 2013) (where the undersigned found no allegation of notice was necessary in complaint that stated the cruise line's disembarkation procedures created an unsafe or foreseeably hazardous condition).
Here, Plaintiff maintains Norwegian created the dangerous condition by allowing unsupervised children to run and slide at the kids' aqua park (see Resp. 14); thus, he does not need to prove notice in order to prevail in his negligence claim. Without commenting on the former contention, the Court most certainly agrees with the latter. To forestall summary judgment, Plaintiff need not show Norwegian had notice of the danger created by unsupervised kids running and sliding at the aqua park because he presents evidence Norwegian created the unsafe condition. The Court may not weigh the evidence and make determinations of fact. See Skop , 485 F.3d at 1140. There are issues of material fact regarding whether Norwegian created the dangerous condition, and it is for the jury to determine these issues.
Furthermore, the Norwegian Safety Sign states no running is allowed and an adult must accompany children under twelve. (See Pl.'s SUF ¶¶ 8–10). The Safety Sign evinces Norwegian had at least constructive notice of the hazards created by unsupervised children running around in an aqua park.
In Frasca, the Eleventh Circuit Court of Appeals held warning signs posted by a cruise ship operator may be evidence the operator had actual or constructive notice of the danger. See Frasca v. NCL (Bahamas), Ltd. , 654 Fed.Appx. 949, 954, 2016 WL 3553217, at *4 (11th Cir.2016). In Frasca , the plaintiff slipped and fell on the cruise ship's deck. See id. at 950, 2016 WL 3553217, at *1. The cruise ship had played a safety video in passenger cabins warning passengers the deck could be slippery. See id. at 953, 2016 WL 3553217, at *3. The court held the warning video raised a genuine issue of material fact "to withstand summary judgment as to [the defendant's] notice." Id. at 954, 2016 WL 3553217, at *4 (alteration added). The court referenced Sorrel , where warning signs posted on the pool deck after it rained to warn passengers of the deck's slipperiness "raised a genuine issue of material fact as to the cruise ship operator's prior knowledge." Id. (citing Sorrels , 796 F.3d at 1288 ).
In light of this binding case law, the Safety Sign raises a genuine issue of material fact as to Norwegian's knowledge of the alleged danger. See also Harnesk v. Carnival Cruise Lines, Inc. , No. 87–2328–CIV–DAVIS, 1991 WL 329584 (S.D.Fla. Dec. 27, 1991) ("Defendants had actual notice of the unreasonably dangerous [condition] because they installed two strips of tape one inch thick lettered ‘Watch Your Step.’ " (alteration added)); Mabrey v. Carnival Cruise Lines, Inc. , 438 So.2d 937, 938 (Fla. 3d DCA 1983) ("[I]t is evident that the 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.’ " (alteration added)). Based on the record evidence, a reasonable jury may conclude Norwegian created or knew of the dangerous condition.
B. Dangerous Condition
Under federal maritime law, a cruise ship operator only has a duty to warn of dangerous conditions that are not open and obvious. See Frasca , 654 Fed.Appx. at 952, 2016 WL 3553217, at *2. "[T]here is no requirement to warn of dangers that are open and obvious." Lugo v. Carnival Corp. , 154 F.Supp.3d 1341, 1345 (S.D.Fla.2015) (alteration added). Norwegian next argues the alleged dangerous condition was open and obvious because it "was readily observable to, and indeed observed by Plaintiff, and would have been obvious to him, or any other passenger, upon casual inspection." (Mot. 14). Norwegian states Plaintiff had observed kids sliding on the deck before being hit, so the danger was obvious to him. (See id. 13–14). Plaintiff responds it is for a jury to determine whether the danger was open and obvious. (See Resp. 15–16).
In similar cruise ship cases where ship operators argued the plaintiffs were barred from recovery because the dangers were open and obvious, courts have found summary judgment inappropriate. See Merideth v. Ca r n i v a l Corp. , 49 F.Supp.3d 1090 (S.D.Fla.2014) (denying the cruise ship operator's motion for summary judgment determining the floor's slipperiness may not have been open and obvious). In Frasca , the Eleventh Circuit reversed the district court's grant of summary judgment to the cruise ship operator, stating "a reasonable jury could conclude that the degree of slipperiness on the deck was not open and obvious" even though the district court had determined a "reasonable person ... would have perceived the outdoor conditions ... and would have concluded based on those conditions that the deck's surface would likely be slicker than usual." 654 Fed.Appx. at 952, 2016 WL 3553217, at *3 (alterations added). In both Frasca and Merideth , the plaintiffs saw where they stepped beforehand, but still fell and were injured.
In Belik v. Carlson Travel Group., Inc. , 864 F.Supp.2d 1302 (S.D.Fla.2011), the undersigned denied the cruise ship operator's motion for summary judgment. See id. at *1314. The operator argued the dangers of "diving into shallow water, or water of indeterminate depth, are sufficiently open and obvious." Id. at *1308. There, the plaintiff had dived off a seawall at a bar, alleging he was unaware the water was shallow. See id. at 1306. When he jumped into the water, the plaintiff hit his head, causing him severe injuries. See id. The Court determined the danger was not open and obvious as a matter of law. See id. at 1308–09.
Here, even though Plaintiff saw the children sliding and continued to walk through the aqua park, he was injured, and a reasonable jury may conclude the danger was not open and obvious. Moreover, "even if the danger was open and obvious, this is not a total bar to recovery." Id. at 1309 (citing Kendrick v. Ed's Beach Serv., Inc. , 577 So.2d 936, 938 (Fla.1991) ("[E]ven when a person ... knows of an open and obvious danger, the person may still recover damages under the principles of comparative negligence if the elements of the tort have been proven." (alterations added))). The Court cannot say as a matter of law the danger was so open and obvious as to obviate Norwegian's duty to adequately supervise the kids' aqua park and maintain a safe environment. IV. CONCLUSION
Plaintiff has identified genuine issues of material fact as to: (1) whether Norwegian created, or had actual or constructive notice of, the alleged danger; and (2) whether the danger was open and obvious. Accordingly, it is
ORDERED AND ADJUDGED that Norwegian's Motion [ECF No. 30] is DENIED .
DONE AND ORDERED in Miami, Florida this 31st day of August, 2016.