In Weiner v. Carnival Cruise Lines, No. 11-CV-22516, 2012 WL 5199604 (S.D. Fla. Oct. 22, 2012), Dennis M. Weiner sued Carnival Cruise Lines. He sued in the United States District Court, Southern District of Florida (in Miami, Florida).
Tip: In all passenger slip and fall cases against Carnival Cruise Lines, you must sue in federal court in Miami, Florida.
On October 22, 2012, the court dismissed the passenger’s case.
In order to be properly prepared in your passenger slip and fall claim against Carnival Cruise line, a passenger (or his or her lawyer) should read every single appellate decision in passenger cruise ship slip and fall cases.
He or she should also read every court order that either dismissed a cruise slip and fall case, or let it go to the a jury. You need to understand the reason behind the result.
This takes many months to do, if not a year or years. And that is just for starters. You, or your lawyer, need to know how federal judges think.
Several recent passenger cruise injury cases have cited Wiener, including:
- Thomas v. NCL (Bahamas) Ltd., Dist. Court, SD Florida 2014 (passenger bitten by bed bugs on Norwegian Cruise Line ship)
- Cohen v. Carnival Corp., 945 F. Supp. 2d 1351, 1357 (S.D. Fla. 2013) (passenger trip and fall down the stairs at the end of a gangplank on Carnival Cruise ship)
- Frasca v. NCL (BAHAMAS) LTD., Dist. Court, SD Florida 2014 (passenger slip and fall on moisture/rainwater on Norwegian Cruise Lines ship)
- Carroll v. Carnival Corp., Dist. Court, SD Florida 2013 (passenger broke her elbow when she slipped and fell in an elevator; broke her femur when she slipped and fell in a bathroom)
Facts
In August 2010, the Plaintiff, Dennis Weiner (“Weiner”), was a passenger aboard Carnival Valor (the “Valor”), a cruise ship operated by Carnival. On August 16, 2010, Weiner and his wife were taking a walk along the promenade deck of the Valor, near the Java Cafe coffee shop, when Weiner, who was wearing flip flops, slipped but did not fall.
Weiner claimed injuries to his right foot and Achilles tendon when he slipped. This accident, and Weiner’s resultant injury, was allegedly caused by the presence of a “foreign substance” on the tile floor.
According to Weiner’s wife, however, “if there was a liquid on the floor right there, you could not have seen it, because the floor was shiny.”
Although Weiner described in deposition that his foot “hydroplaned” and that his “flip-flop slipped on something,” no water or other liquid substance was found by him, his wife, or any crew member aboard the ship in the moments immediately after the accident.
Weiner agrees that he did not notice any “foreign substance” on the floor before the accident occurred or in the moments immediately after he slipped.
Likewise, the crew member who came to assist Weiner immediately after the accident was unable to identify any “foreign substance” or liquid on the floor in the area where he slipped, even after she and Weiner’s wife checked the floor together.
As the crew member stated in deposition (sworn verbal testimony), “we were actually both touching the tiles checking if there was something, but there was nothing. And we were looking at the tiles from each side. Nothing.”
Nor was anything observed on the floor by the crew member manning the coffee bar next to where Weiner’s accident occurred.
She stated that although she was not actively looking for spills and the like in the course of her work at the coffee bar, she did not observe any liquid, napkins, straws, or anything else on the floor in front of the cafe in the three hours preceding the accident.
Carnival states that its crew members routinely, and on a regular basis, observed and inspected the subject area, and Weiner has offered no evidence to challenge this claim. After the subject incident, Weiner returned home and received medical attention.
Later, on September 29, 2010, Weiner suffered a complete rupture of the right Achilles while walking from his kitchen to his living room, which required surgery.
Then, on October 13, 2010, Weiner sustained additional injuries to his neck and ribs when he fell down the stairs at his home, requiring further medical attention and surgery. He claims that these injuries were caused by, and related to, his impairment from the slip accident aboard the Valor.
Legal Analysis
The Court finds that Carnival is entitled to summary judgment (dismissal). Weiner has failed to show any evidence that Carnival had actual or constructive notice of the alleged “foreign substance,” or wet spot, on the promenade deck’s tile flooring.
Absent such, Carnival cannot be held liable for Weiner’s injuries. A carrier by sea does not serve as an insurer to its passengers; it is liable only for its negligence. Keefe v. Bahama Cruise Line, Inc., 867 F.2d 1318, 1322 (11th Cir. 1989). Generally, to win in a negligence lawsuit the injured person must show that:
(1) the defendant owed plaintiff a duty;
(2) the defendant breached that duty;
(3) the defendant’s breach was the proximate cause of plaintiff’s injuries; and
(4) the plaintiff suffered damages. See Isbell v. Carnival Corp., 462 F. Supp. 2d 1232, 1236 (S.D. Fla. 2006).
Because the accident in this case occurred aboard a cruise ship, these elements must be evaluated by reference to federal maritime law. See Smolnikar v. Royal Caribbean Cruises Ltd., 787 F. Supp. 2d 1308, 1315 (S.D. Fla. 2011) (Federal maritime law applies to actions arising from alleged torts ‘committed aboard a ship sailing in navigable waters.).
Under maritime law, a shipowner owes passengers the duty of exercising reasonable care under the circumstances. This standard of care “requires, prior to imposing liability, that the carrier have actual or constructive notice of the risk-creating condition.”
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.
In this case, Weiner tried to hold Carnival liable on the theory that a “foreign substance” – a wet spot – rendered the tile flooring of the promenade deck unreasonably dangerous to traverse. Carnival’s “liability thus hinges on whether it knew or should have known about the dangerous wet spot” alleged to exist.
Weiner presented no evidence that Carnival either knew, or should have known, of any liquid on the floor around the time of his accident. Neither he nor his wife saw any liquid on the floor immediately before or after his accident.
Nor did anyone else – even after looking and touching around the area. There was no evidence that any Carnival employee or other person saw, or had reason to know of, any wet condition on the floor prior to, or even after, the incident in question.
Without such evidence, Weiner has failed to create an issue of fact as to whether Carnival had a duty to warn of a dangerous condition. See, e.g., Isbell, 462 F. Supp. 2d at 1237 (granting summary judgment where plaintiff failed to show that cruise line had knowledge of a dangerous condition); Monteleone v. Bahama Cruise Line, Inc., 838 F.2d 63, 66 (2d Cir. 1988) (reversing, remanding, and ordering judgment for cruise line where the evidence showed that plaintiff tripped and fell, but “no witness testified to seeing the protruding screw prior to the accident,” and “the only witness to inspect the scene immediately after the accident, found nothing wrong”).
The Court is was not persuaded by Weiner’s arguments, premised on Florida state court negligence cases, that summary judgment (dismissal) is inappropriate where there is even “the slightest doubt that an issue of fact might exist.”
In deciding a motion for summary judgment in federal court, courts are guided by federal procedural standards, not state court standards. See Wilson v. Target Corp., 2011 WL 3878366, at *2 (S.D. Fla. Sept. 1, 2011) (Marra, J.) (“The Florida rule does not apply in this federal case, and neither do the cited Florida cases discussing Florida’s procedural summary judgment standard.”).
In any event, there is not even “the slightest doubt” in this case. Weiner argued that summary judgment (dismissal) is improper because he testified that “his left flip flop hydroplaned on a liquid as he and his wife were walking” on the promenade deck after breakfast.
According to Weiner, his testimony in and of itself creates a genuine issue of material fact that is in dispute in this case and for a jury to decide.” Not so. In order to impose liability, Weiner must show that Carnival had “actual or constructive notice of the risk-creating condition.”
That Weiner perceived his slip was caused by liquid on the floor is not evidence showing that Carnival knew or had reason to know of a dangerous condition at the time of the accident. See Isbell, 462 F. Supp. 2d at 1237 (rejecting argument that the cruise line “should have known” of dangerous condition simply because plaintiff suffered an accident); Wish v. MSC Crociere S.A., 2008 WL 5137149 (S.D. Fla. Nov. 24, 2008) (Marra, J.) (“A cruise line does not become liable to a passenger solely because an accident occurs.”).
In an effort to avoid this result, Weiner also offers the expert report and testimony of Mr. Lawrence Dinoff.
Dinoff’s opinion was that the promenade deck flooring was dangerous and slippery when wet and that a wet condition caused Weiner to slip and injure himself on the day of the accident.
When asked at deposition to reconcile these opinions with the fact that no liquid was seen, found, or felt on the floor immediately before or after the incident, Dinoff testified that it was not clearly visible to start with and was most likely a small amount of liquid, which had been smeared to the degree of either being not identifiable or evaporated after Weiner slipped.
He further stated that after the accident, the liquid or wetness “was not identifiable by someone who was looking to see it” because in the course of slipping, the “small amount of water” at issue was smeared or wiped to oblivion.
These opinions, which border on speculation, do not help Weiner’s cause.
To accept Dinoff’s premise – that the amount of liquid on the floor was so small and so undetectable – leads to the inescapable conclusion that Carnival had no reason to know the floor was wet in the first place; and, consequently, no duty to warn Weiner or other passengers about any dangerous condition.
Put differently, there is no evidence that Carnival had actual notice of the wet and dangerous floor; and, if the amount of liquid was that small and inconspicuous, then Carnival plainly cannot be charged with constructive notice either.
Absent such, Carnival had no duty to cure the dangerous condition, or to warn passengers of it.
Dinoff offers additional opinions to the effect that it was foreseeable spills would occur on the promenade deck because several bars and cafes were situated there and “the flooring material Carnival installed on the ship’s deck was extremely slippery and dangerous when wet.”
He further says “it’s a bad floor” and “there is no excuse for having a floor in a location like this that’s dangerously slippery when wet because you know it’s going to get wet.” The judge said that these opinions miss the mark.
Weiner cannot avoid summary judgment (dismissal) on some generalized theory of foreseeability that is divorced from the particular events in question. See, e.g.,:
- Bencomo v. Costa Crociere, S.P.A. Co., Case No. 10-cv-62437-WPD [ECF No. 18], at 4-5 (S.D. Fla. Nov. 14, 2011) (Dimitrouleas, J.), aff’d 476 F. App’x 232, 232-33 (11th Cir. 2012) (“an argument that wet decks occurred regularly and thus were ‘foreseeable’ is not sufficient to create constructive notice.”);
- Stewart-Patterson v. Celebrity Cruises, Inc., 2012 WL 2979032, at *3 (S.D. Fla. July 20, 2012) (Cohn, J.) (“maritime law does not support a stand-alone claim based on” cruise line’s alleged duty to take actions to reduce or eliminate foreseeable risks before they manifest, where such claim is “unconnected to [passenger’s] specific accident”);
- Hickey v. Washington Metro. Area Transit Auth., 360 F. Supp. 2d 60, 63 (D.D.C. 2004) (Leon, J.) (argument that floors “can become wet and slippery due to tile and lighting design” was insufficient to defeat summary judgment because “even if accepted by the Court, [it] would not prove that [defendant] should have known, prior to the plaintiff’s accident, of the wet condition at the accident site and therefore should have addressed the problem”);
- Everett v. Carnival Cruise Lines, 912 F.2d 1355, 1358-59 (11th Cir. 1990) (rejecting argument that “Carnival should have known that there was a danger of passenger injury because it was the owner and operator of the ship,” and that “notice of the defect can be imputed to Carnival inasmuch as it created the threshold and maintained it”);
- Galentine v. Holland Am. Line-Westours, Inc., 333 F. Supp. 2d 991, (W.D. Wash. 2004) (Pechman, J.) (rejecting argument that cruise line should be held liable absent actual or constructive notice “if it created an unsafe or foreseeably hazardous condition”).
Even if such a theory were viable, Weiner never pled it in his lawsuit. See Gilmour v. Gates, McDonald & Co., 382 F.3d 1312, 1314-15 (11th Cir. 2004) (plaintiff cannot avoid summary judgment on the basis of claims never stated in lawsuit).
Weiner’s claims, as stated in his lawsuit, relate only to Carnival’s negligence in allowing a spill to be present and in failing to clean it up and/or warn Weiner and other passengers of it.
The lawsuit claims that Carnival was negligent in:
- allowing a dangerous condition to exist on the premises by virtue of a foreign substance to be present on the floor;
- failing to adequately clean the area after learning of the presence of a foreign substance on the floor;
- failing to provide adequate warning of the dangerous condition;
- failing to cordon off the area preventing foreseeable falls which would be caused by the foreign substance on the floor;
- failing to implement appropriate policies and procedures with reference to the clean-up of hazardous conditions or substances on the floor; and in
- failing to properly train its staff regarding the clean-up of hazardous conditions or substances on the floor.
These claims all relate to the presence of a “foreign substance” – a spilled liquid – on the promenade deck floor that caused Weiner to slip and injure himself.
Thus, to get to a jury, Weiner must show there is a genuine issue of material fact that Carnival was on notice of a dangerous condition created by the presence of liquid on the promenade deck floor, at the time Weiner passed through on August 16, 2010. He failed to do so.
Even under a general foreseeability theory, there is no evidence that spills and accidents of the sort experienced by Weiner “occurred with enough frequency to impute constructive notice” of a dangerous condition on the promenade deck to Carnival. See:
- Peer v. Home Depot U.S.A., Inc., 2012 WL 1453573, at *3 (S.D. Fla. Apr. 26, 2012) (Moore, J.) (while the customer can establish Home Depot’s constructive notice if the condition occurs with regularity and thus is foreseeable, in this case there is no evidence that such a hazard occurred with enough frequency to impute constructive notice);
- Mercer v. Carnival Corporation, 2009 WL 302274 (S.D. Fla. Feb. 9, 2009) (Moreno, C.J.) (rejecting argument that cruise line “had actual or constructive notice of the dangerous propensities of high gloss hardwood floors being in close proximity to the bathroom,” where plaintiff fell after exiting the shower, because plaintiff failed to produce “any evidence to support his contention that cruise line had notice of the allegedly dangerous condition”).
Dinoff’s opinions about foreseeability are not evidence that spills actually frequently occurred on the promenade deck floor, making it unreasonably dangerous to traverse.
To the extent Dinoff seeks to draw into question the design of the flooring and lighting on the promenade deck, Weiner has presented no evidence that Carnival had any say or participation in such design decisions. Absent such, there can be no liability under a negligent design theory. See, e.g.,:
- Groves v. Royal Caribbean Cruises, Ltd., 463 F. App’x 837, 837 (11th Cir 2012) (plaintiff presented no evidence that cruise line actually created, participated in, or approved the alleged negligent design of these areas near the dining room where he was injured, and “under the law in this circuit, cruise line can be liable only for negligent design of the dining area if it had actual or constructive notice of such hazardous condition”);
- Mendel v. Royal Caribbean Cruises, Ltd., 2012 WL 2367853, at *2-*3 (S.D. Fla. June 21, 2012) (King, J.) (“A cruise line is not liable for any alleged improper design if the plaintiff does not establish that the ship-owner or operator was responsible for the alleged improper design.”);
- Rodgers v. Costa Crociere, S.P.A., 410 F. App’x 210, 212 (11th Cir. 2010) (affirming summary judgment on negligent design theory “where there was no evidence whatsoever that cruise line actually designed the stairs or the hand rails”).
For all of these reasons, Dinoff’s opinions, no matter how viewed, are insufficient to defeat summary judgment (dismissal)( under the particular circumstances of this case.
Conclusion
Although Weiner’s injuries are surely unfortunate, liability cannot rest on sympathy alone. See Young v. Carnival Corp., 2011 WL 465366, at *4 (S.D. Fla. Feb. 4, 2011) (King, J.).
Carnival “is not the insurer of the safety of the passengers,” and does not become liable to a passenger merely because an accident occurs.
Here, for the reasons explained above, Weiner has failed to present any evidence creating a genuine issue of material fact that Carnival knew, or should have known, that the floor on the promenade deck was dangerously wet on the morning of August 16, 2010, when Weiner slipped and injured himself. This failure of proof dooms his case, thus entitling Carnival to summary judgment.
The case was dismissed. The injured person gets nothing.
Bottom Line
The injured passenger in this case claimed that Carnival was negligent in allowing a wet spot to be on the floor. However, no one (including the injured passenger) testified that the floor was wet.
His expert said that the floor had issues but I am not aware that the expert tested the slip resistance of the floor. The judge basically considered the expert’s opinion as worthless in this case.
If, after the fall, the injured person would have seen a liquid on the floor that had characteristics of age, he may have been able to get the case to a jury.
For example, if the liquid had skid marks, was dirty or had footprints in it, this may have been enough to show that Carnival should have known the liquid was there before the fall.
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