Williford v. Carnival Corporation

Filing 146

ORDER DENYING PLAINTIFF'S 80 MOTION FOR PARTIAL SUMMARY JUDGMENT. Signed by Judge Marcia G. Cooke on 11/22/2019. See attached document for full details. (smz)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
Case No. 17-21992-Civ-COOKE/GOODMAN
DIANE WILLIFORD,
Plaintiff,
vs.
CARNIVAL CORPORATION,
Defendant.
_______________________________________/
ORDER DENYING PLAINTIFF’S MOTION
FOR PARTIAL SUMMARY JUDGMENT
THIS MATTER is before the Court on Plaintiff’s Motion for Partial Summary
Judgment (ECF No. 80). The Motion is fully briefed and ripe for review. For the reasons set
forth herein, the Motion is denied.
I. BACKGROUND
This is a cruise-ship slip-and-fall case. Plaintiff Diane Williford, who took a cruise on
the Carnival Dream in June 2016, claims that she slipped and fell on a wet staircase while
descending from a deck with several “water features” and slides on it. Amend. Compl., ECF
No. 37, at p. 4; Resp. in Opp’n, ECF No. 85, at p. 3. As a result of the fall (as well as an
alleged misdiagnosis by the Dream’s medical staff, not at issue here), Plaintiff says that she
was catheterized and “forced to spend the remainder of her cruise strapped to a board.”
Amend. Compl., ECF No. 37, at pp. 5–6; Mot., ECF No. 80, at p. 1.
Plaintiff now moves for partial summary judgment on “the issue of notice.” Mot.,
ECF No. 80, at p. 1. That is, Plaintiff asks the Court to find, as a matter of law, that
Defendant had actual and/or constructive notice of the alleged dangerous condition on the
staircase. Id. at p. 8. As evidence, Plaintiff points to the presence of “caution cones” near
one of the slides on the deck she was leaving when she fell. Id. at p. 2; Williford Dep., ECF
No. 80-1, at pp. 22, 25. Plaintiff also recalls the presence of a “little man with [a] mop” on
the deck, from which she infers that “somebody knew there was water somewhere[.]” Mot.,
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ECF No. 80, at p. 3; Williford Dep., ECF No. 80-1, at pp. 22–23, 25. However, Plaintiff, who
has astigmatism, “can’t judge distance” and is unsure “[h]ow close” the man was “to the
steps.” Williford Dep., ECF No. 80-1, at p. 27. (Incidentally, Plaintiff is sure that the caution
cones were not “near the stairs.”) Id. at p. 25.
Additionally, Plaintiff has identified nine prior slip-and-fall incidents on Carnival
ships, including incidents on the Dream and even one incident in 2014 on the same staircase
where Plaintiff fell. Mot., ECF No. 80, at pp. 5–6; Ex. 5 to Mot., ECF No. 80-5, at p. 7.
Finally, Plaintiff offers the analysis of her “expert engineer,” who has made various findings
regarding the deck’s “defective water discharge,” as well as unsatisfactory “slip resistant
index values” in the vicinity where the accident occurred. Mot., ECF No. 80, at pp. 3–4.
In response, Defendant does not deny the prior incidents. Resp. in Opp’n, ECF No.
85, at pp. 6–7. Nor does Defendant deny the existence of the “little man” or the cones near
the slide. Id. at pp. 3, 8. Defendant does, however, question whether the prior incidents were
“substantially similar” to the one that occurred here. Id. at pp. 9–10. Defendant seeks to
distinguish Plaintiff’s accident from the prior ones based on the nature of Plaintiff’s injuries,
as well as her patronage of the Carnival “Cheers Program” (ordering four drinks in the
hours before she fell). Id. at pp. 9–10; Petisco Dep., ECF No. 85-1, at p. 19. 1
Even more to the point, Defendant denies that the steps on which Plaintiff fell were
wet at all. Defendant relies on a report prepared by Carnival employees who inspected the
scene “minutes after” Plaintiff fell and found that “[t]he area of the accident was . . . dry and
clear, with no apparent safety concerns.” Resp. in Opp’n, ECF No. 85, at p. 3; Petisco Dep.,
ECF No. 85-1, at p. 7. Defendant has also produced its own expert report, “review[ing] and
rebutt[ing]” the findings of Plaintiff’s “hired gun.” Resp. in Opp’n, ECF No. 85, at pp. 4, 11.
II. LEGAL STANDARDS
“A party may move for summary judgment, identifying each claim or defense—or
the part of each claim or defense—on which summary judgment is sought. The court shall
grant 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). “Genuine disputes are those in which the evidence is such that a reasonable jury
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Plaintiff counters that she “had only a fraction of one shot of Tequila, and her family members had
the rest of these drinks.” Reply in Supp., ECF No. 88, at p. 5.

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could return a verdict for the non-movant.” Ellis v. England, 432 F.3d 1321, 1325–26 (11th
Cir. 2005) (quoting Mize v. Jefferson City Bd. of Educ., 93 F.3d 739, 742 (11th Cir. 1996)).
“The general rule is that inadmissible hearsay ‘cannot be considered on a motion for
summary judgment.’” Macuba v. Deboer, 193 F.3d 1316, 1322 (11th Cir. 1999) (quoting
Garside v. Osco Drug, Inc., 895 F.2d 46, 50 (1st Cir. 1990)). However, “a district court may
consider a hearsay statement in passing on a motion for summary judgment if the statement
could be ‘reduced to admissible evidence at trial’ or ‘reduced to admissible form.’” Macuba,
193 F.3d at 1323. “The most obvious way that hearsay testimony can be reduced to
admissible form is to have the hearsay declarant testify directly to the matter at trial.” Jones
v. UPS Ground Freight, 683 F.3d 1283, 1294 (11th Cir. 2012).
“[M]aritime law . . . governs the liability of a cruise ship for a passenger’s slip and
fall.” Sorrels v. NCL (Bahamas) Ltd., 796 F.3d 1275, 1280 (11th Cir. 2015). “Under maritime
law, the owner of a ship in navigable waters owes passengers a ‘duty of reasonable care’
under the circumstances.” Id. “In this circuit, the maritime standard of reasonable care
usually requires that the cruise ship operator have actual or constructive knowledge of the
risk-creating condition.” Id. at 1286.
The “presence of warning cones” near an alleged slip and fall is evidence from which
“a reasonable jury could . . . infer that [the defendant] was on notice of the potentially
hazardous condition.” Merideth v. Carnival Corp., 49 F. Supp. 3d 1090, 1094 (S.D. Fla. 2014).
Another “way[] a plaintiff may prove . . . constructive notice of a defective condition” is
through “evidence of substantially similar accidents.” Thomas v. NCL (Bahamas), Ltd., 203 F.
Supp. 3d 1189, 1192 (S.D. Fla. 2016).
III. DISCUSSION
The Court finds that there are genuine disputes of material fact relating to “the issue
of notice” in this case. Mot., ECF No. 80, at p. 1. Indeed, much of the evidence that Plaintiff
points to in support of her Motion is equivocal. For instance, Plaintiff points to the presence
of “caution cones” and a “little man with [a] mop” as proof that Defendant was on notice of
the slippery condition of the stairs where she fell. Id. at pp. 2–3; Williford Dep., ECF No. 801, at pp. 22–23, 25. But Plaintiff also admits that the cones were not “near the stairs,” and
she does not know “[h]ow close” the man was either. Williford Dep., ECF No. 80-1, at pp.
25, 27. In Plaintiff’s own words, the only inference that arises from her testimony is that
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“somebody knew there was water somewhere” on the deck she was stepping down from.
Mot., ECF No. 80, at p. 3 (emphasis added). Given that the deck contained “a water park”
with “water features,” that point was never really in doubt. Id.
As for the Parties’ “hired gun[s],” they have done little more than cancel each other
out with their opposing expert opinions regarding “slip resistant index values.” Mot., ECF
No. 80, at pp. 3–4; Resp. in Opp’n, ECF No. 85, at pp. 4, 11.
Plaintiff’s reliance on the nine prior incidents aboard Carnival ships is somewhat
more compelling. In particular, Plaintiff points to a slip and fall that occurred two years
before her own, on exactly the same staircase where she herself fell. Mot., ECF No. 80, at p.
6; Ex. 5 to Mot., ECF No. 80-5, at p. 7. In that prior incident, as in the one here, the person
who fell claimed that the “steps were wet and that caused him to slip.” Ex. 5 to Mot., ECF
No. 80-5, at p. 7. Plaintiff argues that these prior accidents were “substantially similar” to
her own, and that they put Defendant “on notice of the risk creating condition of water
accumulating on the subject stairs.” Mot., ECF No. 80, at pp. 11–12.
Defendant, meanwhile, seeks to distinguish those prior accidents from the one here.
Specifically, Defendant claims that “the nine other passengers all suffered different injuries”
from the ones Plaintiff suffered. Resp. in Opp’n, ECF No. 85, at p. 10. Defendant also
emphasizes that Plaintiff, unlike the earlier slippers and fallers, had bought “four alcoholic
drinks over a few hours” before she went down the stairs. Id. at pp. 9–10.
The Court finds Defendant’s arguments flawed in several respects. In the first place,
“[t]he ‘substantial similarity’ doctrine does not require identical circumstances.” Sorrels, 796
F.3d at 1287. Rather, “[t]he conditions surrounding the . . . incidents” need only be “similar
enough to allow . . . a reasonable inference concerning [Defendant’s] ability to foresee this
type of [accident] and its results.” Id. at 1288.
True, in Magazine v. Royal Caribbean Cruises, which Defendant relies on, the court
found that prior incidents involving “sprained ankles and toe contusions” were “difficult to
characterize as . . . substantially similar to [the plaintiff’s] injury,” where the plaintiff
suffered “permanent nerve damage . . . and a pronounced limp.” 2014 WL 1274130, at *2,
*7 n.7 (S.D. Fla. Mar. 27, 2014). Here, however, “Plaintiff claims she injured her hips and
lower back.” Resp. in Opp’n, ECF No. 85, at p. 10. That is very similar indeed to what
happened to the person who fell on the same staircase in 2014, “injuring his back,” and
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another person who fell and “injur[ed] his back” while carrying “a bucket of beers” down a
stairway on the Carnival Breeze. Ex. 5 to Mot., ECF No. 80-5, at p. 7. Other individuals
injured their shoulders, legs, knees, and ankles—all injuries that are substantially similar to
Plaintiff’s, and equally likely to result from falling down the stairs. Id. at pp. 6–8.
Neither is the Court persuaded that Plaintiff’s participation in the Carnival “Cheers
Program” makes her accident different from the earlier ones. Resp. in Opp’n, ECF No. 85, at
p. 7. Even assuming that Plaintiff had several drinks before she fell—and Plaintiff insists she
“had only a fraction of one shot of Tequila”—she is not the only person to have done so.
Reply in Supp., ECF No. 88, at p. 5. The aforementioned individual with the “bucket of
beers” was “observed to have been under the influence of alcohol” when he slipped and fell
on the Breeze. Ex. 5 to Mot., ECF No. 80-5, at p. 7.
More fundamentally, Defendant’s argument about Plaintiff’s bar tab misses the point
underlying the substantial similarity doctrine. The question here is whether the earlier
incidents put Defendant “on notice of the risk creating condition of water accumulating on
the subject stairs.” Mot., ECF No. 80, at pp. 11–12. The Court would not be more likely to
answer that question in the affirmative if the passengers in those incidents had each
consumed “a frozen Miami Vice, one shot of Patron tequila, one frozen Kiss on the Lips,
and then another frozen Miami Vice,” as Plaintiff supposedly did. Resp. in Opp’n, ECF No.
85, at p. 7. If anything, Defendant would have been on higher constructive alert if everyone
who was injured on its stairways had been perfectly sober.
In short, Plaintiff has a reasonable argument that the prior incidents put Defendant
on notice of the risk of harm that was realized here. The problem for Plaintiff, however, is
that a reasonable argument is not enough for her to obtain summary judgment. Rather,
Plaintiff must “show[] that there is no genuine dispute as to any material fact” in connection
with “the part of [her] claim” on which she seeks judgment as a matter of law. Fed. R. Civ.
P. 56(a) (emphasis added). As Defendant correctly notes, Plaintiff has not shown that nine
prior accidents—on three ships over the course of three years, Ex. 5 to Mot., ECF No. 80-5,
at pp. 6–8—is “somehow the ‘magic number’ to . . . establish notice” in this case. Resp. in
Opp’n, ECF No. 85, at p. 9. While at least some of the accidents were, as the Court has
found, “substantially similar” to Plaintiff’s, the Court is unconvinced that Plaintiff has
proved either actual or constructive notice as a matter of law.
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Finally, Defendant has identified another dispute of fact that goes to the heart not
just of the notice issue but of the case as a whole: namely, whether the staircase was wet at
all when Plaintiff tumbled down it. Defendant relies on the deposition testimony of a
Carnival representative, who in turn based her testimony on an undisclosed report prepared
by the Dream’s staff shortly after Plaintiff’s fall. Resp. in Opp’n, ECF No. 85, at p. 3; Petisco
Dep., ECF No. 85-1, at p. 7. According to the report, staff members “inspected the area” just
“minutes after” Plaintiff’s fall and found it “in a safe condition,” without “any water or wet
spots on the stairs.” Petisco Dep., ECF No. 85-1, at p. 7. Needless to say, if the stairs were not
wet—if there was no dangerous condition for Defendant to have notice of—then Plaintiff is
not entitled to summary judgment on the notice issue.
Plaintiff objects that the statements in the report are hearsay, and that they “cannot
create a genuine issue of material fact since they are not based on admissible evidence.”
Reply in Supp., ECF No. 88, at pp. 1–3, 8. The Court need not reach this question, having
already found that there are genuine disputes of fact surrounding the notice issue itself. Still,
Plaintiff is probably wrong. The Supreme Court has explained that “the nonmoving party”
need not “produce evidence in a form that would be admissible at trial in order to avoid
summary judgment.” Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986) (“Obviously, Rule 56
does not require the nonmoving party to depose [its] own witnesses.”). Moreover, the
Eleventh Circuit has held that “a district court may consider a hearsay statement in passing
on a motion for summary judgment if the statement could be ‘reduced to admissible
evidence at trial.’” Macuba, 193 F.3d at 1323.
“The most obvious way that hearsay testimony can be reduced to admissible form is
to have the hearsay declarant testify directly to the matter at trial.” Jones, 683 F.3d at 1294.
Here, the observations in the accident report were made by Carnival staff members. Petisco
Dep., ECF No. 85-1, at p. 5, 7. Plaintiff does not deny that Defendant “fully and properly
disclosed” those witnesses during discovery. Def.’s Suppl. Br., ECF No. 142, at p. 2. 2 Thus,
“there [i]s every indication that [the] witnesses would be able to testify at trial from their
personal knowledge of the events recounted in the [report].” McMillian v. Johnson, 88 F.3d
1573, 1584 (11th Cir. 1996), aff’d sub nom. McMillian v. Monroe Cty., 520 U.S. 781 (1997); cf.,
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Despite Court Orders requiring supplemental briefing, End. Orders, ECF Nos. 136, 139, Plaintiff
has failed to meaningfully address the admissibility issue. See Pl.’s Suppl. Br., ECF No. 144.

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e.g., Pritchard v. S. Co. Servs., 92 F.3d 1130, 1135 (11th Cir. 1996) (nonmovant cannot defeat
summary judgment with hearsay “statements of unknown co-workers” as “[t]here is nothing
to indicate that [the] statements . . . will lead to admissible evidence” (emphasis added)).
In sum, there are triable disputes of fact as to whether Defendant was on notice of
the slippery condition of the stairs where Plaintiff fell—and even, it seems, whether the
stairs were slippery at all. Those disputes are for the jury to resolve, not the Court. Plaintiff’s
Motion for Partial Summary Judgment (ECF No. 80) is therefore denied.
DONE and ORDERED in Chambers, Miami, Florida, this 22nd day of November
2019.

Copies furnished to:
Jonathan Goodman, U.S. Magistrate Judge
Counsel of record

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