Debra Cox et al v. Princess Cruise Lines Ltd et al

Filing 111

ORDER re: Defendant's Motion for Summary Judgment 86 by Judge Ronald S.W. Lew. The Court GRANTS in part and DENIES in part Defendant's Motion for Summary Judgment. Because Plaintiff's admissible evidence creates a genuine issue of material fact for each element of negligence, Defendants Motion for Summary Judgment as to Plaintiff's negligence claim is DENIED. Because Defendant is not a "person engaged in the business of selling [the ramp at issue] for use or consumption," Defendant is not subject to Plaintiff's strict product liability claim as a matter of law. The Court therefore GRANTS Defendant's Motion for Summary Judgment as to Plaintiff's strict liability claim. (jre)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 12 DEBRA COX, 13 Plaintiff, 14 v. 15 16 PRINCESS CRUISE LINES, LTD., 17 18 Defendant. 19 ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) CV-13-01765 RSWL (JEMx) ORDER re: Defendant’s Motion for Summary Judgment [86] 20 Currently before the Court is Defendant Princess 21 Cruise Lines, Ltd.’s (“Defendant” or “Princess”) Motion 22 for Summary Judgment, or in the alternative for Partial 23 Summary Judgment, or in the alternative for an Order 24 Treating Specified Facts as Established [86] 25 (“Motion”). Defendant’s Motion [86] arises out of 26 Plaintiff Debra Cox’s (“Plaintiff” or “Cox”) action 27 against Princess for claims of negligence and strict 28 1 1 liability in tort for an injury Plaintiff suffered 2 while traversing over a handicap accessible ramp 3 provided by Defendant on a cruise ship owned and 4 operated by Defendant. First Amend. Compl. (“FAC”) ¶¶ 5 8-26, ECF No. 32. 6 The Court, having reviewed all papers submitted and 7 pertaining to Defendant’s Motion [86], NOW FINDS AND 8 RULES AS FOLLOWS: The Court GRANTS in part and DENIES 9 in part Defendant’s Motion for Summary Judgment [86]. 10 I. BACKGROUND 11 A. Factual Background1 12 Plaintiff alleges that on October 24, 2012, 13 Plaintiff embarked on a fourteen-day round-trip cruise 14 from Los Angeles, California, to Hawaii aboard the 15 Golden Princess, a cruise ship owned and operated by 16 Defendant. FAC ¶ 8. Plaintiff has a disability 17 consisting of a below-the-right-knee leg amputation, 18 and she relies on a mobility scooter for 19 transportation. Id. ¶ 9. Prior to embarking on the 20 cruise, Plaintiff advised Defendant of her disability 21 and of her need for a handicap accessible room. Id. 22 Defendant Princess accommodated Plaintiff by placing 23 her in a handicap, wheelchair accessible cabin with a 24 balcony. Id. To allow disabled passengers to access 25 the balcony from the cabin, Defendant supplied a ramp 26 that enables wheelchairs and mobility scooters to go 27 28 1 These facts are supplied merely for context and are not “findings of facts.” 2 1 over the cabin door threshold and outside to the 2 balcony. Id. ¶ 8. The ramp consists of two metal 3 wedges that are not attached to each other or anything 4 else, but that merely sit on either side of a sliding5 door threshold between the cabin room and an outdoor 6 balcony. See Def.’s Mot. 4:12-17; Poczynock Decl. ¶ 9; 7 FAC ¶¶ 18-19. A metal flap attached to one side of the 8 ramp must be flipped over to rest across the gap 9 between the two wedge pieces before a wheelchair or 10 scooter traverses the ramp. 11 Cuaresma Decl. 20-34. See Tabale Decl. 23-43; One wedge is placed inside the 12 cabin, on carpeted flooring, while the other wedge is 13 placed on the outdoor deck, which has hard plastic 14 flooring. 15 See Poczynock Decl. ¶¶ 12, 16. Plaintiff alleges that two days into her cruise, on 16 October 26, 2012, Plaintiff used the ramp to go out 17 onto the cabin balcony. Id. ¶ 10. On her way back 18 into the cabin, Plaintiff alleges that the ramp pulled 19 apart, which caused Plaintiff’s mobility scooter to tip 20 over, resulting in a displaced intertrochanteric 21 fracture of Plaintiff’s right femur. Id. Upon these 22 and other facts, Plaintiff alleges claims of negligence 23 and strict liability against Defendant. Id. ¶¶ 7-26. 24 B. Procedural Background 25 Plaintiff and her husband, Ted Cox, filed the 26 instant Action against Defendant Princess on March 12, 27 2013 alleging several claims [1], some of which have 28 subsequently been dismissed [22]. 3 On October 30, 2013, 1 the Court granted [31] Plaintiffs’ request for leave to 2 file a first amended complaint. Plaintiffs’ FAC [32], 3 filed November 5, 2013, alleged Negligence and Strict 4 Liability in Tort against Defendant Princess and then5 Defendant Fincantieri-Cantieri Navali Italiana S.p.A., 6 the Italian company that built the Golden Princess, 7 including the ramp at issue in this case. Defendant 8 Fincantieri filed a Motion to Dismiss for lack of 9 personal jurisdiction [44] on April 7, 2014, which the 10 Court granted [52] on May 30, 2014. 11 On June 15, 2015, Defendant filed the present 12 Motion for Summary Judgment [86] as to both claims 13 asserted against it by Plaintiff. The Opposition [99] 14 and Reply [101] were timely filed. The Motion [86] was 15 set for hearing on August 13, 2015, and was taken under 16 submissions [100] on August 6, 2015. 17 II. LEGAL STANDARD 18 A “court shall grant summary judgment” when the 19 movant “shows that there is no genuine dispute as to 20 any material fact and the movant is entitled to 21 judgment as a matter of law.” Fed. R. Civ. P. 56(a). 22 The party moving for summary judgment has the initial 23 burden of proof to show no genuine dispute as to any 24 material fact. Nissan Fire & Marine Ins. Co. v. Fritz 25 Cos., 210 F.3d 1099, 1102-03 (9th Cir. 2000); see Fed. 26 R. Civ. P. 56(a). The burden then shifts to the non- 27 moving party to produce admissible evidence showing a 28 triable issue of fact. Fritz, 210 F.3d at 1102-03; see 4 1 Fed. R. Civ. P. 56(a). When a defendant moves for 2 summary judgment, summary judgment “is appropriate when 3 the plaintiff fails to make a showing sufficient to 4 establish the existence of an element essential to 5 [her] case, and on which [she] will bear the burden of 6 proof at trial.” Cleveland v. Policy Mgmt. Sys. Corp., 7 526 U.S. 795, 805–06 (1999). 8 9 A. 10 III. DISCUSSION Request for Judicial Notice Plaintiff requests that the Court take judicial 11 notice of a print-out of a page on Princess’s website 12 that advertises the “Princess AcessSM” program. Pl.’s 13 Requ. Judicial Not. 1, Ex. A, ECF No. 99-20. 14 Plaintiff’s request is DENIED AS MOOT because the fact 15 and content of the print-out are not relevant to the 16 Court’s determination of the present Motion for Summary 17 Judgment. Fed. R. Evid. 201(b); see Story, No. 2:14- 18 cv-02422-JAM-DAD, 2015 WL 2339437, at *1 (E.D. Cal. May 19 13, 2015) (denying a request for judicial notice when 20 the material underlying the request was found not 21 relevant to the issues presented by the motion). 22 B. Evidentiary Objections 23 Both Plaintiff and Defendant make evidentiary 24 objections. Pl.’s Evid. Objs., ECF No. 99-19; Pl.’s 25 Evid. Objs., ECF No. 103; Def.’s Evid. Objs., ECF No. 26 102. Because the Court only relies on admissible 27 28 5 1 evidence to determine a motion for summary judgment,2 to 2 the extent the parties object to evidence relied upon 3 by the Court, the objections are OVERRULED.3 4 C. Motion for Summary Judgment 5 Plaintiff’s claims are governed by federal maritime 6 law. See Order re: Defendant’s Motion to Dismiss 7 2 Regarding Defendant’s objections to the Rule 26 Reports on 8 hearsay grounds, the Court need not rely on the reports themselves to determine the present Motion, and thus the 9 objections are OVERRULED AS MOOT, but, nevertheless, see Fed. Rs. 10 Evid. 702-705; Fed. R. Civ. P. 56(c)(4); 28 U.S.C. § 1746; HTI 11 12 13 14 15 16 17 18 19 20 Holdings, Inc. v. Hartford Cas. Ins. Co., No. 10-cv-06021-TC, 2011 WL 4595799, at *3 (D. Or. Aug. 24, 2011) (in the context of summary judgment, overruling a hearsay objection to an expert report because “under Fed. R. Evid. 703, hearsay is admissible as a type of fact or data reasonably relied upon by an expert”); Reynolds v. Ala. Dep’t of Transp., No. 2:85cv665-MHT(WO), 2013 WL 6230491, at *9 n.8 (M.D. Ala. Dec. 2, 2013) (implying that an expert report could be considered at summary judgment if the expert provided affidavit attesting to his conclusions in the report); see also Hayes v. Douglas Dynamics, Inc., 8 F.3d 88, 92 (1st Cir. 1993) (“[N]onmovants may rely on the affidavits of experts in order to defeat a motion for summary judgment.”); Smith v. Prudential Ins. CO. of Am., 864 F. Supp. 2d 654, 659 (M.D. Tenn. 2012) (stating that unsworn expert reports may not be considered at the summary judgment stage, but that expert testimony may be considered in summary judgment proceedings “through an affidavit or declaration that satisfies the general requirements . . . in Fed. R. Civ. P. 56(c)(4)). 3 21 22 23 24 25 26 27 28 See, e.g., Caldwell v. City of Selma, No. 1:13–cv–00465–SAB, 2015 WL 1897806, at *2 n.2 (E.D. Cal. Apr. 16, 2015) (overruling evidentiary objections in a summary judgment context because the Court “relied only on admissible evidence” and stating that “[i]t is not the practice of the Court to rule on evidentiary matters individually in the context of summary judgment, unless otherwise noted,” which “is particularly true when the evidentiary objections consist of general objections such as relevance”); Capital Records, LLC v. BlueBeat, Inc., 765 F. Supp. 2d 1198, 1200 n.1 (C.D. Cal. 2010) (stating that the Court would not “scrutinize each objection and give a full analysis of each argument raised,” and that “[t]o the extent that the Court relied on objected-to evidence, it relied only on admissible evidence and, therefore, the objections are overruled”). 6 1 Portions of Plaintiff’s Complaint 5:1-6:6 (June 25, 2 2013), ECF No. 22 (holding that federal maritime law 3 applies to Plaintiff’s claims in this action). 4 1. Negligence Claim 5 The elements of a negligence cause of action in an 6 admiralty case are: 1) the existence of a duty of care 7 owed by the defendant to the plaintiff; 2) breach of 8 that duty of care; 3) a causal connection between the 9 offending conduct and the resulting injury (“proximate 10 cause”); and 4) actual loss, injury, or damage suffered 11 by the plaintiff. Ravins v. Alvarez, Nos. CV 01–4003 12 NM (MANx), CV 03–5793 NM, 2004 WL 5642455, at *8 (C.D. 13 Cal. July 29, 2004) (citing Pearce v. United States, 14 261 F.3d 643, 647–48 (6th Cir. 2001)); see also Cape 15 Flattery Ltd. v. Titan Maritime LLC, 607 F. Supp. 2d 16 1179, 1189 (D. Haw. 2009). 17 18 a. Duty “The question of the existence of a duty is a 19 matter of law . . . .” 20 912 n.8 (9th Cir. 1994). Sutton v. Earles, 26 F.3d 903, “[A] a shipowner owes a duty 21 of reasonable care to those aboard the ship who are not 22 crew members.” In re Catalina Cruises, Inc., 137 F.3d 23 1422, 1425 (9th Cir. 1998). Because Plaintiff was a 24 non-crewmember aboard Defendant’s ship, Defendant owed 25 Plaintiff at least “a duty of reasonable care.” In re 26 Catalina Cruises, Inc., 137 F.3d at 1425. 27 28 b. Breach “The degree of care required is always that which 7 1 is reasonable, but the application of reasonable will 2 of course change with the circumstances of each 3 particular case.” 4 F.3d at 1425. In re Catalina Cruises, Inc., 137 “‘What is required ... is merely the 5 conduct of the reasonable man of ordinary prudence 6 under the circumstances, and the greater danger, or the 7 greater responsibility, is merely one of the 8 circumstances, demanding only an increased amount of 9 care. In some instances, reasonable care under the 10 circumstances may be a very high degree of care; in 11 other instances, it may be something less.’” Id. In 12 other words, the greater the foreseeable risk, the 13 greater the care and precaution required for a finding 14 of reasonable care.4 15 Id. Plaintiff argues various theories of breach. One 16 theory is that Defendant breached its duty of care to 17 Plaintiff by supplying Plaintiff with an obviously 18 unsafe ramp because the ramp consisted of two wedges 19 that did not connect to each other or anything else, 20 4 See, Home WL 21 *3 (S.D.N.Y.e.g., Jaffess v. (“‘TheLines, Inc., 1988 the 42049, at Apr. 22, 1988) extent to which 22 circumstances surrounding maritime travel are different from 23 24 25 26 27 28 those encountered in daily life and involve more danger to the passenger, will determine how high a degree of care is reasonable in each case.’”). Plaintiff’s admissible evidence establishes a triable issue of fact as to whether Defendant was subject to a higher degree of care due to the greater risk and danger of the location (a ship at sea), Plaintiff’s characteristics (a handicapped individual), the chattel at issue (a ramp upon which a handicapped individual will traverse), and the location of the chattel at issue (extending from an outside balcony exposed to outdoor conditions into a cruise ship cabin). See In re Catalina Cruises, Inc., 137 F.3d at 1425. 8 1 and one side of the ramp was placed on a surface 2 without sufficient friction to hold that section of the 3 ramp in place when used for its intended purpose. See 4 Poczynok Decl. ¶ 9, 12, 15-16.; Debra Cox Decl. 72-76. 5 Plaintiff argues that because Defendant supplied and 6 installed the ramp, Defendant was on notice of the 7 ramp’s unsafe condition. 8 Plaintiff’s admissible evidence is sufficient to 9 create a genuine issue of material fact as to whether 10 Defendant’s act of supplying Plaintiff with the 11 unconnected ramp pieces and placing one of those ramp 12 pieces on a hard plastic outdoor deck created a 13 dangerous condition, or an unreasonable risk, that 14 Defendant failed to take appropriate measures to 15 mitigate. See, e.g., Dupuis v. Marriot Corp., No. 16 3:12–CV–00580–AC, 2014 WL 199096, at *8-*9 (D. Or. Jan. 17 15, 2014) (finding that when the parties disputed 18 whether a revolving door posed an unreasonable risk to 19 those passing through the door, and whether the 20 defendant took appropriate measures to address that 21 risk, that summary judgment on that issue was not 22 appropriate because “whether a risk was foreseeable and 23 whether the defendant’s conduct was reasonable are 24 empirical questions that should only be decided by the 25 court in extreme cases” (internal quotation marks 26 omitted)). 27 28 9 1 With regard to notice,5 Plaintiff’s admissible 2 evidence is sufficient to create a genuine issue of 3 material fact as to whether Defendant had at least 4 constructive notice of the dangerous condition of the 5 ramp. See Deykina v. Chattin, No. 12–CV–2678 6 (ARR)(CLP), 2014 WL 4628692 at *8 (E.D.N.Y. Sept. 15, 7 2014)(“Even if defendant lacked actual notice of a 8 structural defect . . . plaintiff could still recover 9 if a jury concluded that defendant should have known 10 about the defect.”). 11 “‘To constitute constructive notice, a defect must 12 be visible and apparent and it must exist for a 13 sufficient length of time prior to the accident to 14 permit [the defendant] to discover and remedy it.’” 15 Deykina v. Chattin, 2014 WL 4628692 at *8. Because 16 Defendant supplied and installed the ramp, Defendant 17 knew about the ramp, the disconnected nature of the 18 ramp, the fact that one side of the ramp was placed on 19 hard flooring on an outdoor deck, and that the ramp was 20 intended to be used by a handicapped individual in a 21 wheelchair or motorized scooter. The alleged defects 22 of the ramp and the ramp’s placement were all “visible 23 and apparent” to Defendant and existed for a long 24 enough period of time for Defendant to know about them 25 26 27 28 5 “Under maritime law, . . . a defendant is generally not liable for negligence unless it had actual or constructive notice of the particular hazard that led to the injury.” Mansoor v. ZAANDAM M/V, 274 F. App’x 553, at *1 (9th Cir. 2008). 10 1 and do something to mitigate the risk. See Deykina, 2 2014 WL 4628692 at *8-*9 (“Here, there can be no 3 question that an alleged structural defect in the 4 stairs existed for a sufficient length of time prior to 5 the accident . . . .”); See Eidem v. Target Corp., 2011 6 WL 3756144 (C.D. Cal. Aug. 24, 2011) (noting that 7 evidence of “notice” is required to ensure that 8 defendant had “notice of the defect in sufficient time 9 to correct [the defect]”). 10 As such, Plaintiff’s admissible evidence 11 establishes a triable issue of fact as to whether 12 Defendant was on at least constructive notice of the 13 allegedly dangerous condition created by the ramp and 14 the ramp’s placement. See, e.g., Deykina, 2014 WL 15 4628692 at *8 (noting that when a plaintiff alleges a 16 “readily obvious structural defect,” summary judgment 17 for the defendant is improper even if actual notice is 18 not established); Smith v. N.Y. Enter. Am., Inc., No. 19 06 Civ. 3082(PKL), 2008 WL 2810182, at *6 (S.D.N.Y. 20 July 21, 2008) (“‘[I]t is a matter of simple logic 21 whether [a certain fact scenario] may create a 22 hazardous and unsafe condition and that determination 23 should be for the finder of fact . . . .’”). 24 In light of the above analysis, the Court finds 25 that Plaintiff’s admissible evidence establishes a 26 genuine issue of material fact as to whether Defendant 27 28 11 1 breached a duty of reasonable care owed to Plaintiff.6 2 See Spry v. Carnival Cruise Lines, 951 F.2d 362 (9th 3 Cir. 1991) (affirming a finding of constructive notice 4 based upon a finding that there was a condition on the 5 ship that was unsafe because the condition “could 6 prevent a person from stepping on a secure, non-slip 7 surface” and because the “condition existed for a 8 sufficient time prior to plaintiff’s fall” to charge 9 defendant with constructive notice of the unsafe 10 condition). 11 12 c. Proximate Cause “Causation in fact is one necessary element of 13 proximate cause.” USAir Inc. v. U.S. Dep’t of Navy, 14 14 F.3d 1410, 1412-13 (9th Cir. 1994). Here, 15 Plaintiff’s admissible evidence creates a genuine issue 16 of material fact as to whether Defendant’s alleged 17 negligence was the cause-in-fact of Plaintiff’s injury. 18 19 20 21 22 23 24 25 26 27 28 6 Defendant argues that because Princess “simply placed the ramp (which the shipyard had provided) on the intended balcony floor surface (which the shipyard also provided),” Princess cannot be liable for breach of a duty of reasonable care. Def.’s Reply 6:20-28. Such logic is unsound; just because another entity built the product does not mean the party supplying the product is immune from negligence liability. For example, if the Supplier knew or should have known that the product had some characteristic that made it unsafe, and yet provided the product to the User without taking reasonable care to ensure the User’s safety, the Supplier can certainly be liable for negligence, even if the Supplier did not build the product at issue. See, e.g., Spry v. Carnival Cruise Lines, 951 F.2d 362 (9th Cir. 1991) (affirming negligence liability based upon an unsafe condition in the design of the stairs of a cruise ship based upon the defendant’s constructive notice of the unsafe condition and failure to take reasonable precautions to keep passengers safe). 12 1 Plaintiff’s admissible evidence supports a finding that 2 because the balcony-side portion of the ramp was not 3 connected to anything and was placed on a hard flooring 4 with insufficient friction, the ramp pulled apart 5 during Plaintiff’s foreseeable use of the ramp, which 6 caused Plaintiff to lose her balance, reach for help, 7 and fall to her injury. 8 Decl. See Poczynock Decl.; Debra Cox In other words, “but for” Defendant’s alleged 9 negligence, Plaintiff’s injury would not have occurred. 10 See USAir Inc., 14 F.3d at 1412-13 (stating that 11 “causation in fact asks whether negligent conduct was 12 necessary antecedent to the injury without which the 13 injury would not have occurred). 14 “The ‘larger, more abstract question’” is whether 15 Defendant’s alleged negligence was a proximate cause of 16 Plaintiff’s injuries, “that is, whether [the Defendant] 17 should be held liable for negligently causing [the 18 Plaintiff’s] injuries.” Id. at 1413. Proximate cause 19 includes the rule that an unforeseeable, intervening 20 cause (i.e., a “superseding cause”) of a plaintiff’s 21 injury cuts off the defendant’s liability for that 22 injury, even if the defendant’s actions were the cause23 in-fact of the plaintiff’s injury. Id. (“A superseding 24 cause must be something more than a subsequent act in a 25 chain of causation; it must be an act that was not 26 reasonably foreseeable at the time of the defendant's 27 negligent conduct.”). 28 Here, Defendant argues that Plaintiff’s shifting of 13 1 her weight and reaching for something to steady herself 2 was a superseding cause that cut off Defendant’s 3 liability. Def.’s Reply 10:1-7. However, Plaintiff’s 4 admissible evidence creates a genuine issue of material 5 fast as to whether Plaintiff’s movement was a 6 foreseeable act in the chain of causation. If 7 Plaintiff’s actions were foreseeable, Defendant’s 8 negligence would be the proximate cause of Plaintiff’s 9 injury. 10 11 See USAir Inc., 14 F.3d at 1413. d. Injury Plaintiff alleges physical injury, and Defendant 12 does not dispute the fact that Plaintiff was injured. 13 See FAC ¶ 10. 14 Because Plaintiff’s admissible evidence creates a 15 genuine issue of material fact for each element of 16 negligence, Defendant’s Motion for Summary Judgment as 17 to Plaintiff’s negligence claim is DENIED. 18 2. 19 Under strict liability, “fault lies in the placing Strict Liability Claim 20 of a defective product in the stream of commerce” that, 21 when “used in a reasonably foreseeable way” injures the 22 plaintiff. Emerson G.M. Diesel, Inc. v. Alaskan 23 Enters., 732 F.2d 1468, 1473 (9th Cir. 1984). The 24 Ninth Circuit uses the standard articulated in Section 25 402-A of the Restatement (Second) of Torts as the 26 applicable expression of strict product liability for 27 admiralty cases. Pan-Alaska Fisheries, Inc. v. Marine 28 Const. & Design Co., 565 F.2d 1129, 1134 (9th Cir. 14 1 1977). Section 402-A states the following: 2 (1) One who sells any product in a defective 3 condition unreasonably dangerous to the user or 4 consumer 5 liability for physical harm thereby caused to 6 the 7 property, if or ultimate to his user property or is consumer, subject or to to his 8 (a) the seller is engaged in the business of 9 selling such a product, and 10 (b) it is expected to and does reach the 11 user or consumer without substantial change 12 in the condition in which it is sold. 13 (2)The rule stated in Subsection (1) applies 14 although 15 (a) the seller has exercised all possible 16 care in the preparation and sale of his 17 product, and 18 (b) the user or consumer has not bought the 19 product from or entered into any contractual 20 relation with the seller. 21 Restatement (Second) Torts § 402-A; Pan-Alaska 22 Fisheries, 565 F.2d at 1135. 23 Comment “f” to Section 402-A explains that 24 liability “applies to any person engaged in the 25 business of selling products for use or consumption” 26 and is not limited to sellers “engaged solely in the 27 business of selling such products,” but, rather, the 28 defendant must simply be “engaged in [selling the 15 1 product] as a part of his business,” giving the example 2 of a movie theater that regularly sells candy. 3 Restatement (Second) Torts § 402-A, cmt. f; Pan-Alaska 4 Fisheries, 565 F.2d at 1135. 5 Defendant argues that as a matter of law, Defendant 6 is not liable for strict product liability because 7 Defendant did not and does not “sell” the allegedly 8 defective ramp. Defendant also argues that because the 9 transaction between Plaintiff and Defendant was 10 primarily for a service, not a product, Defendant is 11 excluded from liability for Plaintiff’s claim. 12 Plaintiff rebuts by arguing that because Defendant 13 designed the ramp, Defendant should be liable. 14 Upon review of Plaintiff’s admissible evidence, and 15 specifically the Tuck Declaration, the Court finds that 16 Plaintiff does not supply any evidence showing that 17 Defendant designed the ramp itself, including any 18 aspect of the ramp that is alleged to have been 19 dangerous. The Tuck Declaration does support a finding 20 that Princess directed the shipbuilder as to certain 21 aspects of the ship design, including characteristics 7 22 of the portable ramps, such as the slope of the ramps, 23 but there is no evidence that Princess designed the 8 Additionally, Plaintiff does not 24 actual ramp itself. 25 allege that Defendant sold the ramp to her but admits 26 27 7 See Tuck Dep. 49:19-70:17. 8 For instance, there is no evidence Princess chose to use 28 two unconnected wedge pieces as the ramp. 16 1 that Defendant merely provided the ramp to her for her 2 use while a passenger on the cruise ship. Because Defendant is not a “person engaged in the 3 4 business of selling [the ramp at issue] for use or 9 5 consumption,” Defendant is not subject to Plaintiff’s 6 strict product liability claim as a matter of law. 7 Pan-Alaska Fisheries, 565 F.2d at 1135. The Court See 8 therefore GRANTS Defendant’s Motion for Summary 9 Judgment as to Plaintiff’s strict liability claim. 10 IV. CONCLUSION 11 Based on the foregoing, the Court GRANTS in part 12 and DENIES in part Defendant’s Motion for Summary 13 Judgment [86]. 14 /// 15 /// 16 /// 17 /// 18 9 Regarding 19 Plaintiff was forwhether the atransaction between Defendant and primarily service, a reasonable jury could only conclude from the facts that the transaction between 20 Defendant and Plaintiff was for a service, and not for the ramp 21 as a product, as Plaintiff did not purchase the ramp from Defendant but, rather, Defendant supplied the ramp to Plaintiff See In re Dow Corning Corp., 220 F. App’x 457, 2007 WL 186303 at *1 (9th Cir. 2007) (stating that strict liability is not extended to “transactions whose primary objective is obtaining services” and “where the transaction’s service aspect predominates and any product sale is merely incidental to the provision of the service” (internal quotation marks omitted)); Haynes v. Nat’l R.R. Passenger Corp., 423 F. Supp. 2d 1073, 1085 (C.D. Cal. 2006) (“The defendant did not just provide the decedent with a seat to use, rather, it provided the decedent with transportation services from Chicago to Los Angeles, and the use of the seats was incidental to those services.”). 22 as incidental to the cruise ship services. 23 24 25 26 27 28 17 1 The Court DENIES Defendant’s Motion for Summary 2 Judgment with regard to Plaintiff’s negligence claim. The Court GRANTS Defendant’s Motion for Summary 3 4 Judgment with regard to Plaintiff’s strict liability 5 claim. 6 7 IT IS SO ORDERED. 8 9 DATED: August 25, 2015 10 HONORABLE RONALD S.W. LEW Senior U.S. District Judge 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 18

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