Davis v. Bahamas Paradise Cruise Line, LLC

Filing 39

ORDER ON DEFENDANTS MOTION FOR SUMMARY JUDGMENT re 36 MOTION for Summary Judgment filed by CRUISE OPERATOR, INC. d/b/a BAHAMAS PARADISE CRUISE LINE, LLC. ORDERED AND ADJUDGED that Defendants Motion for Summary Judgment, ECF No. 36 , is GRANTED. To the extent not otherwise disposed of, all pending motions are DENIED as moot. Signed by Judge Beth Bloom on 7/18/2017. (kpe)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
Case No. 16-cv-62391-BLOOM/Valle
CATHY DAVIS,
Plaintiff,
v.
CRUISE OPERATOR, INC.,
d/b/a BAHAMAS PARADISE CRUISE LINE, LLC,
Defendant.
_____________________________________________/
ORDER ON DEFENDANT’S MOTION FOR SUMMARY JUDGMENT
THIS CAUSE is before the Court upon Defendant Cruise Operator, Inc.’s (“Defendant”)
Motion for Summary Judgment, ECF No. [36] (the “Motion”). The Court has carefully reviewed
the Motion, the record, all supporting filings, 1 the exhibits attached thereto, and is otherwise
fully advised in the premises. For the reasons that follow, Defendant’s Motion is granted.

1

Plaintiff did not file a Response in Opposition to Defendant’s Motion. Her Response was originally due
by June 8, 2017. Having failed to file anything by the deadline, the Court ordered Plaintiff to file her
Response no later than June 19, 2017. See ECF No. [37]. In the Order, Plaintiff was warned that
“[f]ailure to respond by the above deadline may result in Defendant’s Motion being granted without
further notice.” Id. As of the date of this Order, Plaintiff has yet to file a Response to the Motion. The
Court also notes that, according to Defendant’s Certificate of Service, Defendants served Plaintiff with
the Motion via U.S. mail and via e-mail. See ECF No. [36] at 18. In addition, the Clerk of Court
separately delivered notice of these filings via U.S. mail at Plaintiff’s address of record. Therefore,
Plaintiff’s failure to respond is not due to lack of notice. The Court also issued an Order Providing
Instructions to Pro Se Litigants in which Plaintiff was informed that, if she wishes to oppose a motion,
she must do so in writing within the time periods provided by the rules of procedure. See ECF No. [35] at
2. Plaintiff was amply aware of the requirement to file a timely response – a response that was due more
than four weeks ago - and she chose to forego that opportunity.

Case No. 16-cv-62391-BLOOM/Valle
BACKGROUND 2

I.

This case involves allegations of negligence against Defendant arising from Plaintiff’s
contraction of Norwalk Virus/Norovirus (“Norovirus”) as a result of food contamination and
unsanitary conditions on board a cruise ship. See ECF No. [5]. From October 9 through October 11,
2015, Plaintiff was a passenger on board the Grand Celebration. See ECF No. [36-1] at 55, 56, and
79. 3 Prior to boarding the ship, Plaintiff and her sister visited their mother in Lake City, Florida
where Plaintiff ate eggs, grits, toast and coffee at her mother’s house. Id. at 58-59. She then traveled
by car with her sister to meet her husband at their home in DeBary, Florida before continuing to West
Palm Beach to board the cruise ship. Id. at 58. During the drive from Lake City to DeBary, Plaintiff
stopped at McDonald’s where she drank an iced tea. Id. at 57-58. Thereafter, while picking up her
husband, Plaintiff packed Powerade, ice, ham, bread, and potato chips for the drive to West Palm
Beach. Id. at 59-60. During the drive, Plaintiff again stopped at McDonald’s where she purchased
and drank another iced tea. Id. at 61-62. She also stopped to refuel and, while doing so, she used the
“little mom and pop” gas station restroom. Id. at 61-63. After checking into a hotel room for the
night, Plaintiff ate at Denny’s with her husband and sister, but could not recall what she ate. Id. at
67-68.
On the next day, Plaintiff checked in at the port and, in doing so, she used a pen provided at the
desk but did not sanitize it. Id. at 82. She then checked into her room, walked around the ship, took
pictures, and went to the buffet where she ate several types of fruit and salad. Id. at 82-83. After
eating, Plaintiff changed and visited the pool area where she drank a rum and coke. Id. at 93.

2

Local Rule 56.1(b) provides that “[a]ll material facts set forth in the movant’s statement filed and
supported as required above will be deemed admitted unless controverted by the opposing party’s
statement, provided that the Court finds that the movant’s statement is supported by evidence in the
record.” See S.D. Fla. L.R. 56.1(b). To date, Plaintiff has not responded or otherwise controverted
Defendant’s Statement of Material Facts. Thus, to the extent that record evidence supports Defendant’s
Statement of Material Facts, these facts are deemed admitted and are undisputed.
3
The pinpoint citations refer to the page of the applicable deposition transcript, not the CM/ECF page
number.

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Case No. 16-cv-62391-BLOOM/Valle
On the following morning, Plaintiff had a breakfast consisting of Jell-O, watermelon, kiwi,
cantaloupe, and strawberry. Id. at 99-100. Plaintiff and her husband then disembarked in the
Bahamas to participate in a shore excursion, but she could not recall whether she used the handrail on
the gangway during the disembarkation process. Id. at 106. While travelling by bus to the excursion,
Plaintiff used the railings on the tour bus but did not sanitize them before touching them. Id. at 111.
Upon her arrival at the excursion, it was determined that Plaintiff and her husband should not
participate. Id. They were placed on a different bus for their return to the ship and Plaintiff recalled
using the handrails on that bus. Id. at 110. After returning to the ship, Plaintiff ate soup and Jell-O
for lunch, continuing to drink four liters of Powerade a day. Id. at 113-114. Plaintiff felt nauseous as
she ate. Id. at 114-116. Later, Plaintiff and her husband walked around the ship and she played the
slot machines in the casino. Id. at 92.
On the next day, after returning to the Port of Palm Beach, Plaintiff disembarked and traveled
toward her house in DeBary, stopping three times along the route. Id. at 127. She then travelled
from DeBary to Daytona Beach for a “Sister Day” at Ormond by the Sea. Id. at 128. Plaintiff and
her sister stayed the night in Ormond by the Sea and drank Gatorade and juice that night. Id. at 128129. Plaintiff ate oatmeal on the following morning. Id. at 129-130. Although Plaintiff testified she
was vomiting during this timeframe, she did not see a doctor. Id. at 135-137. Her symptoms of
vomiting and diarrhea continued over the next two days until she collapsed on the morning of
October 15, 2015. Id. Her husband then drove her to the emergency room where she remained
hospitalized until October 21, 2015. Id. at 137 and 144. During her hospitalization, Plaintiff
underwent laboratory tests, which were negative for Norovirus or other infection. Id. at 145; ECF
No. [36-2].
Since Grand Celebration began its service on February 3, 2015, there have been no reports of
Norovirus or other gastrointestinal illness.

See ECF No. [36-3]. During this timeframe,

approximately 30,500 passengers and crew members have sailed on the ship. Id. All crew members

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Case No. 16-cv-62391-BLOOM/Valle
on board the Grand Celebration must abide by the hand-washing guidelines promulgated by the
Centers for Disease Control and Prevention (“CDC”), including rubbing their hands together for
twenty seconds with soap and water before preparing food. Id. To further ensure food safety, whole
fruits for buffets undergo a micro-chlorine solution at a washing station before being placed on the
buffet lines. Id. Defendant also sends a Gastrointestinal Illness Confirmation Report to the CDC’s
Maritime Illness and Death Reporting System (“MIDRS”) after each sailing and no reports of
gastrointestinal illness have been logged with the CDC’s MIDRS since the vessel began sailing. Id.
Every food outlet on the ship strictly adheres to the Food and Drug Administration’s (“FDA”)
Hazard Analysis Critical Control Point (“HACCP”) standards for food, temperature, and time
control. Id. The United States Public Health Department (“USPHD”) also performs two yearly
inspections on the ship with the most recent pre-incident inspection occurring one month before
Plaintiff’s voyage, on September 5, 2015, scoring 98 out of 100 possible points. Id.
In the Amended Complaint, Plaintiff sued Defendant for negligence arising from her alleged
contraction of Norovirus while on the Grand Celebration. See ECF No. [5]. Plaintiff alleges that
Defendant owed her a duty to serve uncontaminated food and to sanitize and disinfect the Grand
Celebration to prevent an outbreak of Norovirus or other infectious disease. Id. The Amended
Complaint alleges that Defendant breached that duty by: (a) failing to properly sanitize and/or
disinfect the ship; (b) serving contaminated food; (c) failing to serve uncontaminated food; (d) failing
to practice safe and sanitary food practices; (e) failing to properly eradicate the virus thought to be
Norovirus or some other virus-causing illness; (f) failing to take adequate steps to prevent an
outbreak of Norovirus or other infectious diseases when it knew or should have known that such
outbreaks occurred on prior voyages; (g) failing to warn passengers of the dangers and risks of
Norovirus or other infectious diseases; (h) failing to timely diagnose Norovirus and or other
infectious diseases; (i) failing to perform testing on ill passengers to confirm the type and nature of
the virus; (j) failing to have adequate policies and procedures in place to manage and contain the

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Case No. 16-cv-62391-BLOOM/Valle
outbreak and spread of Norovirus or other infectious diseases; (k) failing to provide a sanitary vessel
and food to prevent outbreaks of infectious disease; and (l) failing to take adequate steps to contain
the spread of Norovirus and/or other infectious diseases, which it knew or should have known could
cause other dangerous medical conditions. Id. Defendant has since moved for summary judgment
on all claims pled in the Amended Complaint. See ECF No. [36]. Although the Court has given
Plaintiff ample opportunity to respond, Plaintiff has not done so to date and has not otherwise sought
an extension of time to do so. The Motion is now ripe for adjudication.

II.

LEGAL STANDARD
A court may grant a motion for summary judgment “if the movant shows that there is no

genuine dispute as to any material fact and the movant is entitled to judgment as a matter of
law.” Fed. R. Civ. P. 56(a). The parties may support their positions by citation to the record,
including, inter alia, depositions, documents, affidavits, or declarations. See Fed. R. Civ. P.
56(c).

An issue is genuine if “a reasonable trier of fact could return judgment for the

non-moving party.” Miccosukee Tribe of Indians of Fla. v. United States, 516 F. 3d 1235, 1243
(11th Cir. 2008) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986)). A fact
is material if it “might affect the outcome of the suit under the governing law.” Id. (quoting
Anderson, 477 U.S. at 247-48). The court views the facts in the light most favorable to the
non-moving party and draws all reasonable inferences in the party’s favor.

See Davis v.

Williams, 451 F.3d 759, 763 (11th Cir. 2006). “The mere existence of a scintilla of evidence in
support of the [non-moving party’s] position will be insufficient; there must be evidence on
which a jury could reasonably find for the [non-moving party].” Anderson, 477 U.S. at 252. The
Court does not weigh conflicting evidence. See Skop v. City of Atlanta, Ga., 485 F.3d 1130,
1140 (11th Cir. 2007) (quoting Carlin Comm’n, Inc. v. S. Bell Tel. & Tel. Co., 802 F.2d 1352,
1356 (11th Cir. 1986)).
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The moving party shoulders the initial burden to demonstrate the absence of a genuine
issue of material fact. See Shiver v. Chertoff, 549 F.3d 1342, 1343 (11th Cir. 2008). If a movant
satisfies this burden, “the nonmoving party ‘must do more than simply show that there is some
metaphysical doubt as to the material facts.’” Ray v. Equifax Info. Servs., L.L.C., 327 F. App’x
819, 825 (11th Cir. 2009) (quoting Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475
U.S. 574, 586 (1986)). Instead, “the non-moving party ‘must make a sufficient showing on each
essential element of the case for which he has the burden of proof.’” Id. (quoting Celotex Corp.
v. Catrett, 477 U.S. 317, 322 (1986)). The non-moving party must produce evidence, going
beyond the pleadings, and by its own affidavits, or by depositions, answers to interrogatories,
and admissions on file, designating specific facts to suggest that a reasonable jury could find in
the non-moving party’s favor. Shiver, 549 F.3d at 1343. But even where an opposing party
neglects to submit any alleged material facts in controversy, a court cannot grant summary
judgment unless it is satisfied that all of the evidence on the record supports the uncontroverted
material facts that the movant has proposed. See Reese v. Herbert, 527 F.3d 1253, 1268-69,
1272 (11th Cir. 2008); United States v. One Piece of Real Prop. Located at 5800 S.W. 74th Ave.,
Miami, Fla., 363 F.3d 1099, 1103 n.6 (11th Cir. 2004).
III.

DISCUSSION
In support of summary judgment, Defendant advances three arguments: (1) Plaintiff cannot

prove that Defendant acted negligently, (2) Plaintiff cannot prove she contracted Norovirus, and
(3) even if she can prove that she contracted this virus, she cannot prove she contracted it on the
Grand Celebration. The Court agrees with all three.

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A.

Negligence

Federal maritime law governs torts occurring on navigable waters. Everett v. Carnival
Cruise Lines, 912 F.2d 1355, 1358 (11th Cir. 1990); Isbell v. Carnival Corp., 462 F. Supp. 2d
1232, 1236 (S.D. Fla. Nov. 20, 2006). “When neither a uniform statutory or judicially-created
maritime rule provides an answer to a specific legal question, a court may apply state law, as
long as application of the state law does not frustrate national interest in having uniformity in
admiralty law.” Jackson v. Carnival Cruise Lines, Inc., 203 F. Supp. 2d 1367, 1373 (S.D. Fla.
May 21, 2002). In a negligence action, a plaintiff must prove that the defendant owed a duty, the
defendant breached that duty, the breach was the proximate cause of the injury, and the plaintiff
suffered damages. Isbell, 462 F. Supp. 2d at 1236. These elements are each essential to the
negligence claim and a plaintiff cannot resort to allegations to defeat summary judgment on any
of the elements. Id.
Under maritime law, a shipowner owes its passengers the duty to exercise reasonable care
under the circumstances. Id. The “‘benchmark against which a shipowner’s behavior must be
measured is ordinary reasonable care under the circumstances, a standard which requires, as a
prerequisite to imposing liability, that the carrier have actual or constructive notice of the riskcreating condition.’” Everett, 912 F.2d at 1358 (quoting Keefe v. Bahama Cruise Line, 867 F.2d
1318, 1320-21 (11th Cir. 1989)) (rejecting argument that a ship owner should have known there
was a risk of injury simply because it owned and operated the ship and finding that such a
circular argument would defeat the limitation on shipowner liability explained in Keefe); see also
Isbell, 462 F. Supp. 2d at 1237-38 (granting summary judgment in favor of cruise ship owner
when the plaintiff did not provide any evidence of a dangerous condition on the excursion or any
evidence that the defendant had constructive notice of the alleged danger).

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It is undisputed that Defendant had neither actual nor constructive notice of an alleged
dangerous condition on board the ship (i.e. the presence of Norovirus). Defendant has presented
unrebutted evidence demonstrating that, since the Grand Celebration began its service on
February 3, 2015, there have been no reports of Norovirus or other gastrointestinal illness on the
ship. See ECF No. [36-3]. Defendant submits a Gastrointestinal Illness Confirmation Report to
the CDC’s MIDRS after each sailing, yet no reports of gastrointestinal illness have been logged
since the vessel’s maiden voyage.

Id.

In the Amended Complaint, Plaintiff alleges that

Defendant “fail[ed] to take adequate steps to prevent an outbreak of the Norovirus or other
infectious diseases when it knew or should have known that such outbreaks occurred on prior
voyages,” “fail[ed] to warn passengers of the dangers and risks of the Norovirus or other
infectious diseases,” “fail[ed] to perform testing on ill passengers to confirm the type and nature
of the virus,” fail[ed] to have adequate policies and procedures in place to manage and contain
the outbreak and spread of Norovirus or other infectious diseases,” and “fail[ed] to take adequate
steps to contain the spread of the Norovirus and/or other infectious diseases, which it knew or
should have known could cause other dangerous medical conditions.” See ECF No. [5]. Each of
these assume the existence of a prior Norovirus outbreak on board the ship. However, Plaintiff
has not submitted any evidence to demonstrate that the Grand Celebration had any previous
outbreaks of Norovirus or another gastrointestinal disease so as to trigger a duty to prevent
subsequent outbreaks, to warn passengers of such outbreaks, or create policies that would
contain the spread of the virus. In addition, these allegations presuppose that Norovirus was, in
fact, present on the ship – another fact that Plaintiff failed to prove as further discussed below.
The Amended Complaint also alleges that Defendant was negligent in several others respects
– none of which are supported by the record. For example, Plaintiff alleges Defendant was

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negligent by “failing to properly sanitize and/or disinfect the ship,” “failing to practice safe and
sanitary food practices,” and “failing to provide a sanitary vessel and food to prevent outbreaks
of infectious disease.” See ECF No. [5]. Defendant, however, has presented undisputed evidence
of its food safety and sanitary practices. For example, every food provider on the ship strictly
adheres to the FDA’s HACCP standards for food, temperature, and time control and the USPHD
performs two yearly inspections on the Grand Celebration. See ECF No. [36-3]. One of those
inspections occurred one month before Plaintiff’s voyage and the ship received a score of 98 out
of 100 possible points. Id. All crew members on board the Grand Celebration are also required
to abide by the hand-washing guidelines promulgated by the CDC, including rubbing their hands
together for twenty seconds with soap and water before preparing food, and all whole fruits
available in the ship’s buffet stations undergo a micro-chlorine solution at a washing station. Id.
The Court finds that Defendant satisfied its initial burden on summary judgment to demonstrate
that it followed appropriate sanitary and food safety standards, thereby shifting the burden to
Plaintiff to come forward with evidence in support of her claims. Plaintiff has presented no
evidence whatsoever, requiring entry of summary judgment in favor of Defendant on these
claims.
Finally, Plaintiff alleges that Defendant negligently “serv[ed] contaminated food” and
“fail[ed] to serve uncontaminated food,” but the record is devoid of any proof that the food
Plaintiff consumed on board the Grand Celebration was indeed contaminated. In fact, Plaintiff
has not come forward with any evidence, let alone medical evidence, to support her claim that
she contracted Norovirus. Defendant submitted copies of Plaintiff’s laboratory tests from her
hospitalization at Central Florida Regional Hospital following her voyage on the Grand
Celebration. See ECF No. [36-2]. The Discharge Summary Report indicates that Plaintiff was

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tested for Norovirus GI and Norovirus GII on October 16, 2015 and the results were negative.
Id. at 7. The burden, therefore, shifted to Plaintiff to produce evidence, going beyond the
pleadings, to suggest that a reasonable jury could find that she contracted this gastrointestinal
disease. Despite this, Plaintiff failed to present any medical records, affidavits, or deposition
testimony from any treating physicians or experts diagnosing her with this illness. See Hubbert
v. Carnival Corp., No. 12-23829-CIV, 2013 WL 4806908, *2 (S.D. Fla. Sept. 9, 2013) (granting
summary judgment in favor of cruise line when the plaintiffs “failed to provide the Court with
any evidence, other than their own conclusory assertions, that they actually suffered any
gastrointestinal illnesses”).
B. Proximate Cause
Even if the record contained such proof, Plaintiff has not submitted any evidence to
demonstrate she contracted the virus while on board the Grand Celebration. Id. (“Even if
Plaintiffs did suffer gastrointestinal illnesses during their cruise, however, to defeat Defendant’s
Motion, they must offer competent evidence that the actions or inaction of the Defendant caused
their injuries”).

“It is well settled that each element, including causation, is essential to

Plaintiff’s negligence claim for purposes of defeating summary judgment.” Isbell, 462 F. Supp.
2d at 1238.

Numerous courts within this district have granted summary judgment under

maritime law when the plaintiff failed to prove the essential element of proximate cause. See
Hubbert, 2013 WL 4806908 at *3 (“Because the record is devoid of any evidence that Defendant
caused Plaintiff’s alleged illnesses, Defendant is entitled to summary judgment”); Isbell, 462 F.
Supp. 2d at 1238 (granting summary judgment in favor of the cruise line when there was no
testimony or evidence, other than the plaintiff’s personal opinion, that the damages resulted from
a snake bite during a shore excursion); John Morrell & Co. v. Royal Caribbean Cruises, Ltd.,

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534 F. Supp. 2d 1345, 1353 (S.D. Fla. Feb. 8, 2008) (entering summary judgment for the
defendant when the plaintiff did not offer any evidence to demonstrate that a warning would
have impacted his decision to participate in the shore excursion); Jackson v. Carnival Cruise
Lines, Inc., 203 F. Supp. 2d 1367, 1378 (S.D. Fla. May 21, 2002) (granting summary judgment
in favor of cruise line when there was no evidence to prove the plaintiff became ill as a result of
the food and explaining that “the court will not make a cruise line an absolute guarantor of its
passengers’ safety”).
Here, Plaintiff likewise failed to demonstrate a proximal connection between the food she
consumed on the Grand Celebration and the alleged Norovirus infection. It is undisputed that in
the days leading up to her vomiting and diarrhea, Plaintiff consumed food and beverages at
numerous locations other than the Grand Celebration, such as McDonald’s, Denny’s, her
mother’s house, and even food she packed from her own house. In addition, Plaintiff admitted
that she came into contact with numerous public surfaces and objects, such as hand rails, pens,
table tops, hotel rooms, restrooms, etc. in the days leading up to her symptoms. There is no
evidence linking Plaintiff’s alleged gastrointestinal illness to her consumption of food on board
the Grand Celebration as opposed to another possible source, such as the other food outlets or
other public surfaces with which she came into contact.

For example, there is no expert

deposition testimony or affidavits connecting the timing of Plaintiff’s food or beverage
consumption on the Grand Celebration to the onset of her symptoms. Even in the absence of
such expert testimony, there is no evidence that other passengers on board the same voyage on
the Grand Celebration suffered from a gastrointestinal illness to create an issue of fact on
proximate cause.

Without any supporting evidence, Plaintiff’s bare allegations amount to

speculation and do not satisfy this necessary element of her claim. Because Plaintiff failed to

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offer any evidence whatsoever in support of proximate cause, the Court finds that her negligence
claim fails on this basis as well. Isbell, 462 F. Supp. 2d at 12378 (“Plaintiff’s failure to prove an
essential element necessarily renders all other facts immaterial and requires the court to grant the
motion for summary judgment”).
IV.

CONCLUSION
For the reasons stated herein, it is ORDERED AND ADJUDGED that Defendant’s

Motion for Summary Judgment, ECF No. [36], is GRANTED. To the extent not otherwise
disposed of, all pending motions are DENIED as moot. Final Judgment will be entered by
separate order.
DONE AND ORDERED in Miami, Florida this 18th day of July, 2017.

_________________________________
BETH BLOOM
UNITED STATES DISTRICT JUDGE
Copies to:
Counsel of Record
Cathy Davis
6335 South Sunrise Valley Drive
Tucson, AZ 85706
PRO SE

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