LIEBERMAN et al v. CARNIVAL CRUISE LINES et al

Filing 62

OPINION fld. Signed by Judge Jose L. Linares on 11/12/15. (sr, )

NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

TAMMY AND ERIC LIEBERMAN,
Plaintiffs,
V.

Civil Action No.: 13-4716 (JLL) (JAD)
CARNIVAL CRUISE LINES; JOHN/JANE DOES
(#1-10) (multiple, alternative, and fictitious
individuals and/or business entities), and ABC
business entities 1-10 (multiple, alternative, and
fictitious individuals and/or business entities),

OPINION

Defendants.

LINARES, District Judge.

matter comes before the Court by way of a motion for summary judgment filed by
Carnival Cruise Lines ("Defendant"), pursuant to Federal Rule of Civil Procedure 56. (ECF No.
4 7.)

Court has considered the parties' submissions and decides this matter without oral

argument pursuant to Rule 78 of the Federal Rules of Civil Procedure. For the reasons set forth
below, the Court denies in part and grants in part Defendant's motion for summary judgment.

BACKGROUND 1

February 25, 2013, Tammy and Eric Lieberman ("Plaintiffs") booked passage for a

1
These background facts are taken from the parties' statements of material facts, pursuant to Local Civil Rule 56.1.
(ECF No. 51, Defendant's Rule 56.1 Statement of Facts ("SMF"); ECF No. 58-3, Plaintiffs' Responses to Defendant's
Statement of Material Facts ("Opp. SMF"); ECF No. 58-4, Plaintiffs' Statement of Additional Material Facts
("SAMF"); ECF No. 60, Defendant's Reply to Plaintiffs' Statement of Additional Material Facts ("Reply SAMF")).
The Court will "disregard all factual and legal arguments, opinions and any other portions of the 56.1 Statement which
extend beyond statements of facts." Globespanvirata, Inc. v. Tex. Instrument, Inc., 2005 U.S. Dist. LEXIS 27820, at
*10 (D.N.J. Nov. 10, 2005); see also L. Civ. R. 56.1 ("Each statement of material facts ... shall not contain legal
argument or conclusions of law.").

cruise on Defendant's vessel, the Carnival Splendor. (Def. SMF ii 4.) Mrs. Lieberman has Stage
4 terminal cancer, and the Complaint alleges that she "is permanently disabled" as a result. (ECF
No.

("Compl.")

ii 7.)

Plaintiffs booked the cruise through a travel agent, who, under authority

from Plaintiffs, entered into a standard-form passenger contract on behalf of Plaintiffs. (Def. SMF

iii!

The contract contains clauses that generally limit Defendant's customers' ability to

assert claims against Defendant, and expressly directs readers' attention to those clauses. (Def.
SMF iii!

10.) Pertinent to this matter, the contract also provides that "[a]ny Guest with special
physical or other needs requiring medical attention or special accommodation during the

voyage is requested to notify Carnival in writing at the time of booking of such special need." (Id.

ii

1

Furthermore, the contract stipulates that passengers with special needs should contact

Defendant's Special Needs Desk to request special accommodations. (Id.) Defendants maintain
that

"acknowledged receipt and acceptance of the terms and conditions" of the contract

"prior to sailing," and that Plaintiffs never advised Defendant in writing of any special needs. (Def.
SMF ~[if 1-12.)
Plaintiffs do not dispute the terms of the contract itself; rather, they claim that the evidence
in the record "does not reflect that the Plaintiffs themselves acknowledged receipt and acceptance
of

Contract." (Pl. Opp. SMF

ii

11.) Indeed, Plaintiffs assert that Defendant never

produced "a signed contract by the Plaintiffs accepting any terms and conditions," and that
Plaintiffs notified both the travel agent and a representative for Defendant of Mrs. Lieberman's
disability. (Id.

iii!

11-12.) Plaintiffs further maintain that Defendant's representative assured

Plaintiffs that they would have a "handicapped room" and "24-hour medical assistance in the event
it was needed." (Id. (quoting ECF-No. 48-9 ("Tammy Lieberman Dep.") at 18:25-19:24, 20:8-

2

24.))
On March 31, 2013, Plaintiffs, along with their four children and Mrs. Lieberman's brother
and

John and Angel Gabriel, boarded the Splendor for an eight-day cruise from Manhattan

to the Bahamas. (Compl.

iii! 11,

13.) On April 1, Mrs. Lieberman slipped and fell on a puddle,

caused

a spilt drink, directly outside of the elevator on the Lido Deck of the Splendor. (Pl.

SAMF

iii! 1-4, 36.) John Gabriel ("Gabriel") observed Mrs. Lieberman's fall. (Id. ii 1.) Mrs.

Lieberman and Gabriel observed that the puddle included "glass," "melted ice," and "skid marks
that travelled all the way to the sliding doors" of a nearby pool, indicating that the spill had been
present for quite some time. (Id.

iii! 4-5.) The pair further observed one of Defendant's employees,

who saw the slip and fall and promised to return with help and a wheelchair; however, the
employee "never returned." (Id.

iii! 7-8.) Plaintiffs eventually returned to their room. (See Compl.

From April 1 to April 4, Plaintiffs attempted to get assistance from the Defendant's medical
facility to no avail. 2 (Pl. SAMF iii! 11-22, 42.) According to Defendant, the Splendor "is staffed
with two doctors and four nurses" and contains "a medical facility ... [that] is available twentyfour

per day." (Def. SMF

ii 31.)

Plaintiffs vigorously dispute that characterization. (Pl.

Opp. SMF ii 31-38.) Specifically, they state that from April 1 to April 4, they called the Splendor's
front

several times and each time were told that the medical facility was closed; that the

medical facility was closed upon visiting it on April 3; that the front desk repeatedly failed to send
a wheelchair to Plaintiffs' room despite promising to do so; and that medical staff was not available
at all times. (Pl. SAMF iii! 11-22, 42.)

2

While not explicitly mentioned in any of the statements of fact, the Complaint alleges that Mrs. Lieberman's left
foot was in "serious pain" for these three days, and that she could not easily walk. (See Compl. 'l!'ll 28-32, 35.)

3

On April 4, the Splendor docked in Freeport, Bahamas and Plaintiffs visited the beach.
(Def SMF

if 42.) Mrs. Lieberman's injury worsened as a result of her beach visit, to the point

where Defendant escorted her back to the Splendor with a wheelchair. (Id. iiiI 43-44.)
following facts are heavily disputed. Plaintiffs contend that upon returning to the
Splendor, they visited the medical facility, where Mrs. Lieberman "was examined by a male

nurse, who x-rayed her left foot. (Pl. SAMF

if 44.) The next day, Mrs. Lieberman visited the

facility, and was seen by a doctor, who again x-rayed Mrs. Lieberman's left foot because the initial
X-rays were irretrievably lost due to a malfunction. (Def. SMF if 46.) Plaintiffs maintain that they
did not

the medical facility again, nor did they see more than one doctor. To the contrary,

Defendant contends that Mrs. Lieberman saw a doctor, Dr. Marin, on her April 4 visit to the
facility, and saw a different doctor, Mr. Gonzalez, the next day. (Id. iii! 45, 46; ECF No. 48-13
("Gonzalez Dep.") at 19:7-9, 19:24-20:4.) Defendant also maintains that Mrs. Lieberman visited
the medical facility after April 5, where a doctor explained her X-ray results to her. (See ECF No.
48-

("Marin Dep.") at 51:24-52:3, 52:23-5.) In any event, the Defendant's medical staff

concluded that Mrs. Lieberman's left foot was not broken. (Def. SMF if 48.)
Plaintiffs returned to New Jersey on April 8, and Mrs. Lieberman saw her personal
orthopedist. (Id.

if 50.) After two months of various X-rays and an MRI, during which time Mrs.

Lieberman's orthopedist advised her to "stay off her foot for 6-8 weeks" and "wear a soft cast,"
Mrs. Lieberman was eventually diagnosed with a Jones fracture of her left foot. (Id. iiiI 51-54; Pl.
Opp. SMF if 51.)
light of the foregoing, Plaintiffs filed a seven-count complaint with this Court on August
6, 201

asserting negligence; violations to the New Jersey Consumer Fraud Act ("CF A"); breach

4

of contract; breach of good faith and fair dealing; violations to New Jersey's Law Against
Discrimination ("LAD"), the Rehabilitation Act of 1973, and the Americans with Disabilities Act
("ADA"); respondeat superior; and loss of consortium. 3 (Compl.) Plaintiffs premise this Court's
jurisdiction on diversity of citizenship, pursuant to 28 U.S.C. § 1332. (Id.
moves

if 2.) Defendant now

summary judgment on all counts. (See ECF No. 52 ("Mov. Br.").) Plaintiff filed

opposition (Opp. Br.) and Defendant replied (ECF No. 61 ("Reply Br.).)4

LEGAL STANDARD
A. Summary Judgment
Summary judgment is appropriate when, drawing all reasonable inferences in the nonmovant' s favor, there exists no "genuine dispute as to any material fact" and the movant is entitled
to judgment as a matter of law. See Fed. R. Civ. P. 56(a); Anderson v. Liberty Lobby, Inc., 477
U.S.

255 (1986).
moving party is entitled to judgment as a matter of law when the non-moving party

fails to make "a sufficient showing on an essential element of her case with respect to which she

3

The Court notes that Plaintiffs have voluntarily dismissed their New Jersey LAD claim, their Rehabilitative Act of
1973
and their ADA claim to the extent that it relies on Mrs. Lieberman's pre-injury disability, in their
Opposition Brief, pursuant to Federal Rule of Civil Procedure 4l(a). (ECF No. 58 ("Opp. Br.") at 18.)
4

As an initial matter, Defendant urges this Court to strike Plaintiffs' SAMF because Plaintiffs' statement "woefully
and purposefully fail[ s] to comply'' with Local Rule 56.1. (Reply Br. at 3 .) Although enforcement of the Court's
Local Rules is no doubt important, "the purpose of certain district court local rules pertaining to motions is the
'[f]acilitation of the court's disposition of motions, not punishment."' Boswell v. Eoon, 452 F. App'x 107, 111 (3d
Cir. 2011) (alteration in original) (citing Lorenzo v. Griffith, 12 F.3d 23, 28 (3d Cir. 1993)). To the extent that
Plaintiffs' SAMF is deficient, this Court finds that it is far from the deficiencies that warrant striking. See, e.g., Mason
v. Chase Home Fin., L.L.C., No. 11-4144, 2014 WL 37219, at *l n.3 (D.N.J. Jan. 6, 2014) (including 56.l statement
as part of a brief and including legal conclusions); Schneider v. Shah, No. 11-2266, 2012 WL 1161584, at *2-3 (D.N.J.
(filing only an opposition brief without a separate 56.1 statement and not specifically responding to each
Apr. 9,
disputed
The Court finds that Plaintiff's submission "meets the principle embodied by the rule-that the parties
narrow the key issues so the Court can adjudicate the motion without embarking on a judicial scavenger hunt for
relevant facts." Schecter v. Schecter, No. 07-419, 2008 WL 5054343, at *7 (D.N.J. Nov. 26, 2008).

5

has

burden of proof." Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). The Court must,

however, consider all facts and their reasonable inferences in the light most favorable to the nonmoving party. See Pa. Coal Ass 'n v. Babbitt, 63 F .3d 231, 236 (3d Cir. 1995). If a reasonable
3uror

return a verdict for the non-moving party regarding material disputed factual issues,

summary judgment is not appropriate. See Anderson, 477 U.S. at 242-43 ("At the summary
judgment stage, the trial judge's function is not himself to weigh the evidence and determine the
truth

matter but to determine whether there is a genuine issue for trial.").

B. Federal Maritime Law
their initial complaint, Plaintiffs premise this Court's jurisdiction on diversity of
citizenship, pursuant to 28 U.S.C. § 1332. (Compl.

i! 2.) However, in their briefs, both parties

invoke admiralty jurisdiction and cite almost exclusively to federal case law. (Mov. Br. at 11-12;
Opp.

. at 5.) "A plaintiff with a claim cognizable in the district court's admiralty jurisdiction

and actionable on other jurisdictional grounds may invoke which ever jurisdiction is desired."
Caribbean Cruise Lines, Ltd., 82 F.3d 69, 73 (3d Cir. 1996); see also Fed. R. Civ. P.
9(h).
However, while district courts are compelled to apply the forum state's law in diversity
suits, see Klaxon Co. v. Stentor Elec. Mfg. Co., Inc., 313 U.S. 487, 496-97 (1941), "if the case
sounds

admiralty, it would be inappropriate to apply New Jersey law or any other state's law,

instead of federal admiralty law." Gibbs ex rel. Gibbs v. Carnival Cruise Lines, 314 F.3d 125, 131
(3d

2002). For a case to "sound in admiralty," the injury must: (1) have occurred in navigable

water or have been caused by a vessel on land; (2) have a potential disruptive impact on maritime
commerce; and (3) bear a substantial relationship to maritime activity. Id. at 131-32 (quotation

6

marks omitted) (citing Jerome B. Grubart, Inc. v. Great Lakes Dredge &DockCo., 513 U.S. 527,
534
Court is satisfied that this case sounds in admiralty. First, Mrs. Lieberman's injury
occurred aboard the Splendor while on navigable waters. Second, cruise lines "are clearly engaged
m
at 1
to

Shute,

commerce," and tortious activity no doubt qualifies as potential disruptive impact. Id.
Finally, although tort and contract claims may not appear to bear a substantial relationship
activity, courts have routinely held otherwise. See, e.g., Carnival Cruise Lines v.
U.S. 585, 590 (1991) (finding breach of contract claims governed by federal law);
82 F.3d at 73 (3d Cir. 1996) (finding breach of contract, infliction of emotional distress,

and negligence claims governed by federal law).
although Plaintiffs initially invoked diversity jurisdiction, because this case sounds
in admiralty, this Court confers maritime jurisdiction to this matter, pursuant to 28 U.S.C. § 1333.
Admiralty jurisdiction does not preclude this Court from simultaneously exercising supplemental
jurisdiction over Plaintiffs' state law claims pursuant to 28 U.S.C. § 1367(a). See Grubart, 513
U.S. at

(O'Conner, J., concurring) (noting that courts are not required to "exercise admiralty

jurisdiction over all the claims"); Jn re Aramark Leisure Servs., 532 F.3d 1169, 1175 (10th Cir.
2008) (listing cases). Accordingly, federal maritime law applies to all but Plaintiffs' New Jersey
CFA

7

ANALYSIS

A. Negligence and Respondeat Superior Claims

Defendant principally argues that it had no notice of the spill, and therefore cannot be liable
for breaching the duty of reasonable care it owed to Mrs. Lieberman.

(Mov. Br. at 13.)

Specifically, Defendant contends that Plaintiffs cannot prove that the spill existed for a sufficient
length

time for Defendant's employees to take reasonable actions. (Id. at 14-16.) Defendant

argues that Plaintiffs' evidence of skid marks and ice cubes is speculative in nature and, even if
true, shows an open and obvious danger to Mrs. Lieberman. (Id.) Defendant further argues that
Plaintiffs' reliance on Defendant's knowledge of its slippery marble floors "is not a permissible
theory

liability" because no reasonable alternative flooring exists. (Id. at 16-18.) Defendant

also adds that because the marble flooring was not near an area likely to become wet, Plaintiffs
cannot prove that Defendant's choice of flooring was negligent. (Reply Br. at 8-9.)
response, Plaintiffs argue that sufficient, credible evidence exists to find Defendant
liable, proposing two theories of liability. (Opp. Br. at 6-7.) First, Plaintiffs argue that the spill
existed for a sufficient and discoverable length of time, arguing that the melted ice cubes, broken
glass, and nearby employee establish Defendant's actual or constructive notice. (Id. at 8-11.)
Second, Plaintiffs argue in the alternative that Defendant's use of its marble floors, known for their
slipperiness, constituted negligence. (Id. at 12-13.)
This Court agrees that a reasonable jury could find that Defendant had constructive or
actual or actual notice of the spill that caused Mrs. Lieberman's injury.
Negligence is a cause of action that has been recognized by federal maritime law "for more
than a century." Norfolk Shipbuilding & Drydock Corp. v. Garris, 532 U.S. 811, 820 (2001). A

8

ship-owner owes passengers a duty of reasonable care, and successful plaintiffs must prove that a
ship-owner breached that duty. See Filerv. Foster Wheeler L.L.C., 994 F. Supp. 2d 679, 693 (E.D.
(citing Norfolk Shipbuilding, 532 U.S. at 813-15). "The heart of [a] negligence case will

Pa.

tum on whether the vessel owner or operator had actual or constructive notice of the condition(s)
causing
Nov.

injuries alleged." Wolfv. Tica Travel, No. 10-2860, 2011WL5920918, at *6 (D.N.J.
2011) (citations omitted).

Here, the record contains sufficient evidence to infer that Defendant had constructive
notice. Specifically, the record discloses evidence, supported by several depositions, of melted ice
cubes, visible skid marks, and broken glass. See, e.g., Cousin v. White Castle Sys., Inc., No. 066335,

WL 1955555, at *8 (E.D.N.Y. July 6, 2009) (finding that proper evidence of

constructive notice constituted "melted ice, dirt, or track marks," which would suggest that a spill
"was on the floor for an appreciable amount of time"). A reasonable juror could find that the spill
existed

a lengthy period of time based on both the melted ice cubes and dirty track marks.

Likewise, a reasonable juror could infer that Defendant had constructive notice of the spill because
it should have heard the glass breaking on the floor.
Defendant counters that it could not have had constructive notice because the Lido Deck
was kept at warm temperatures. However, Defendant offers no evidence to support the claim that
the
would
may

must have melted quickly, aside from its contention that "it is impossible that ice cubes
remained solid for a 'long time."' (Mov. Br. at 14.) While Defendant's contention
true, it is an issue of material fact for the jury, not the province of this Court.
Furthermore, sufficient evidence exists that Defendant may have had actual notice of the

spill as well. Particularly persuasive to this Court is the evidence that one of Defendant's employee

9

was

area of the spill immediately after Mrs. Lieberman's slip and fall. Gabriel's deposition

indicates

following:
A. There was a worker in the area, it wasn't who helped [Mrs.
Lieberman] get up and the guy never came back ....
Q. Who was the worker that was there? How do you know he was
working?
A. He was wearing colors, he was wearing the logo, the Carnival
Cruise Line.
Q. Was he wearing clothing of some type?
A. He had clothing on, yeah. He was wearing Carnival Cruise Line
attire, he was an employee.

(ECF

48-11 ("Gabriel Dep.") at 28:17-29:4.) Defendant counters that an employee could not

have seen the spill because an incident report was not filed. (ECF No. 49 ("Romero Aff.") il 31.)
While
the

Court's role at this stage is not to weigh the evidence, this Court agrees that, viewed in
most favorable to the Plaintiffs, there exists sufficient evidence that a reasonable juror

could conclude that Defendant's employee observed Mrs. Lieberman's slip and fall, never returned
to the scene, and failed to file an incident report.
Defendant argues that even if it had actual or constructive notice, the spill must have been
an open and obvious danger. Generally, obvious dangers will absolve a defendant of negligence
in the premises liability context. See Restatement (Second) of Torts § 343A (Arn. Law Inst. 1965).
As a preliminary matter, Defendant fails to show that the doctrine of obvious dangers applies to
maritime law. However, even if the doctrine does apply, Defendant has not established a sufficient
factual basis for such a contention. Several depositions confirm that the spill was "clear," and thus
difficult to see. (See Tammy Lieberman Dep. at 67:5-8; Gabriel Dep. at 27:3-7.) No evidence
exists to show that Plaintiffs should have been aware of the spill, or that Defendant posted warning
signs about the slippery floors. Likewise, this Court is cognizant of the fact that courts usually

10

find obvious dangers to be questions for the jury. See, e.g., Davis v. Portline Transportes Maritime

Internacional, I 6 F .3d 532, 540 (3d Cir. 1994) ("In many cases, the obviousness of a hazard will
be a reasonably disputed issue of fact inappropriate for resolution by the district court on summary
judgment." (quoting Kirsch v. Plovidba, 971F.2d1026, 1030 (3d Cir. 1994))). Thus, Defendant's
counterargument is misplaced.
Because this Court has found sufficient, credible evidence on the record to support
Plaintiffs' first theory of negligence regarding notice, the Court need not discuss Plaintiffs' second
theory

negligence concerning Defendant's marble flooring. Likewise, Plaintiffs' respondeat

superior claim is insufficiently developed, and appears to this Court to be an alternative theory of
Defendant's liability, not a standalone claim. Thus, for the same reasons, the Court need not
address Plaintiffs' respondeat superior claim. Accordingly, Defendant's motion for summary
judgment as to the negligence cause of action is denied.

B. New Jersey CFA, Breach of Contract, Breach of Good Faith
Defendant argues that its actions plainly did not violate the New Jersey CFA, relying
heavily on Veverka v. Royal Caribbean Cruises, Ltd., No. 12-3070, 2015 WL 1270139, at *6-10
(D.NJ. Mar. 18, 2015), in which, Defendant argues, the court granted summary judgment on a
New
I

CFA claim because the non-movant failed to show sufficient evidence. (Mov. Br. at
Defendant maintains that the record here establishes that no misrepresentation occurred

because, among other reasons, the Splendor was staffed with around-the-clock medical care; the
medical facility was always open; and every customer could call the facility directly. (Id. at 21.)
Further, Defendant suggests that Mrs. Lieberman did not affirmatively seek medical attention, and
that Defendant's eventual care was not deficient. (Id. at 22-24.) Defendant further adds that

11

Plaintiffs' waiver ofits pre-injury ADA claims is "at least tacit acknowledgment" that the Splendor
had adequate medical care. (Reply Br. at 10-11.) With respect to the breach of contract and good
faith claims, Defendant incorporates the same arguments. (See Mov. Br. at 30; Reply Br. at 9-12.)
response, Plaintiffs argue that there is enough evidence in the record to support a CFA
claim and that Veverka is distinguishable. (Opp. Br. at 14-16.) Plaintiffs contend that there is
sufficient evidence to support a CFA claim premised on Defendants' alleged representation
pertaining to handicap-accessible accommodations for Ms. Lieberman and with respect to the
availability of medical care on the Splendor. (Id. at 15-17.) For example, Plaintiffs argue that
Mrs. Lieberman's allegedly unsuccessful attempts to seek medical attention for three and one-half
days, as well as Defendant's doctors' inconsistent testimonies, shows that Defendant clearly
misrepresented the nature of medical care aboard the Splendor. (Id.) With respect to the breach
of contract and good faith claims, Plaintiff incorporates the same arguments. (See Opp. Br. at 17.)
Court agrees with Plaintiff that Defendant is not entitled to summary judgment on the
CFA

contract claims. The Court finds that, viewing the record in the light most favorable to

Plaintiffs, Defendant fails to meet its burden of showing no genuine disputes of material facts.
The Court analyzes the CFA and contract claims separately.
1. New Jersey CFA

The New Jersey CFA requires a showing that "the defendant engaged in an unlawful
practice that caused an ascertainable loss to the plaintiff." Frederico v. Home Depot, 507 F.3d
188,

(3d Cir. 2007) (citing Cox v. Sears Roebuck & Co., 138 N.J. 2, 17-25 (1994)). The CFA

defines an unlawful practice as:
act, use or employment by any person of any unconscionable commercial
practice, deception, fraud, false pretense, false promise, misrepresentation, or the
12

knowing concealment, suppression, or omission of any material fact with intent that
others rely upon such concealment, suppression, or omission, in connection with
sale or advertisement of any merchandise ....
N.J.S.A. § 56:8-2. 5 Stated another way, "[u]nlawful conduct under the Act falls into three general
categories: affirmative acts and knowing omissions, and violations of regulations promulgated
under
558

Act." Francis E. Parker Mem 'l Home, Inc. v. Georgia-Pac. LLC, 945 F. Supp. 2d 543,
2013) (internal citations omitted). An affirmative misrepresentation "has to be one

which is material to the transaction ... [and] made to induce the buyer to make the purchase."

NYT Television, 370 N.J. Super. 282, 294 (N.J. Super. Ct. App. Div. 2004) (citing
Gennari

Weichert Co. Realtors, 148 N.J. 582, 607 (1997)).
legislative history of the CFA reveals that, without exception, it is remedial legislation

and, as such, "should be construed liberally." Harnish v. Widener Univ. School of Law, 931 F.
Supp.

641, 647 (D.N.J. 2013) (quoting Int'l Union of Operating Eng'rs Local No. 68 Welfare

Fund

Merck & Co., 192 N.J. 372, 377 n.1 (2007)); see also Gonzalez v. Wilshire Credit Corp.,

remedial purpose, namely, to root out consumer fraud, and therefore to be liberally construed in
favor

the consumer.") (internal citations and quotations omitted). Likewise, the CFA was

intended to be "one of the strongest consumer protection laws in the nation." Governor's Press
Release for Assembly Bill No. 2402, at 1 (June 29, 1971); see also Gennari v. Weichart Co.

Realtors, 148 N.J. 582, 604 (1997) ("The history of the [CFA] is one of constant expansion of
consumer protection."). In light of the CFA's legislative history, this Court construes Plaintiffs'
claim and supporting evidence liberally.

5

The CF A includes "services" in its definition of merchandise. N.J.S.A. 56:8-1 (c).

13

Defendant relies solely on the ''unlawful practices" prong in its CFA analysis, and does not
specifically address the loss or causation elements. Accordingly, the Court looks to the sufficiency
of the evidence only for material misrepresentations regarding the Splendor's medical care. 6
Court finds that Defendant has not made a prima facie showing that no genuine dispute
of material facts exist in regards to its representations about the availability of medical care. While
Defendant offers a recitation of its vessel's policies in regards to its medical facilities in general,
Defendant offers no feasible explanation for why Mrs. Lieberman in particular struggled to obtain
medical care aboard the Splendor for three and one-half days, aside from alleging that Mrs.
Lieberman acted in bad faith by refusing to seek out medical attention. (Mov. Br. at 22-24.)
However, Defendant points to no evidence on the record to establish Mrs. Lieberman's bad faith.
To

contrary, the record discloses that Mrs. Lieberman was in excruciating pain and that she

was concerned that her cancer may have spread to her foot. (Tammy Lieberman Dep. at 73:131

5; ECF No. 48-10 ("Eric Lieberman Dep.") at 23:18-21, 28:18-21.) A juror can

reasonably infer that a person in pain would affirmatively seek out medical attention. Thus, viewed
m

most favorable to Plaintiffs, this Court cannot accept Defendant's unsupported

allegations as true.

6

this Court is aware that
a private plaintiff under the CF A "must produce evidence from which a factfinder could find or infer
that the plaintiff suffered an actual loss." "[B]y the time of a summary judgment motion, it is the
plaintiff's obligation to be able to make such a demonstration or risk dismissal of the cause."
DepoLink Court Reporting & Litig. Support Servs. v. Rochman, 430 N.J. Super. 325, 340 (App. Div. 2013) (quoting
Thiedemann v. Mercedes-Benz USA, L.L.C., 183 NJ. 234, 251 (2005)). In light of this requirement, the Court finds
that sufficient evidence exists to support Mrs. Lieberman's actual loss. Specifically, the Complaint alleges
"aggravation of preexisting conditions, pain and suffering, disability, disfigurement, mental anguish, loss of capacity
for the enjoyment of life, surgery, medical care and treatment," all of which are "permanent or continuing." (Compl.
ii
Furthermore, Mrs. Lieberman's deposition also shows the aggravation of her injuries and resultant
complications. (See Tammy Lieberman Dep. at 138:6-139:9.)

14

Likewise, the record is replete with material, factual disputes that Defendant does little to
address. Perhaps the best example is whether Mrs. Lieberman saw a doctor on April 4. Mrs.
Lieberman's deposition discloses that she saw only a male nurse on April 4, who took X-rays and
wheeled her back to her room. (Tammy Lieberman Dep. at 90:11-92:4.) Dr. Marin's deposition,
however, discloses that he saw Mrs. Lieberman on April 4 for about a half hour and took her Xrays. (Marin Dep. at 35:19-36:17.) This dispute is significant because it goes to the heart of
Plaintiffs' claim that Defendant misrepresented the nature of the quality of the Splendor's medical
care. Weighing in on this matter would force the Court to make a credibility determination
between Mrs. Lieberman and Dr. Marin, which the Supreme Court has expressly directed against
at this stage. See Anderson, 477 U.S. at 255 ("Credibility determinations, the weighing of the
evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of a
judge ... ruling on a motion for summary judgment").
Furthermore, Defendant's reliance on this Court's decision in Veverka is unavailing. In
Veverka, the plaintiff, Ms. Veverka, slipped and fell on the cruise ship of defendant, Royal

Caribbean Cruise Lines ("RCCL"), suffering a broken hip. No. 12-3070, 2012 WL 6204911, at

*1

Dec. 11, 2012 ). RCCL attended to Ms. Veverka' s medical care shortly after the fall, as

she

overnight in the medical unit of the cruise ship" and "was taken by ambulance" to a

hospital once the ship landed. Id. Ms. Veverka then had hip surgery in New Jersey and suffered
several complications as a result, which greatly inhibited her daily living. Id. Ms. Veverka sued
RCCL for, inter alia, violations to the New Jersey CFA, alleging several misrepresentations,
including misrepresenting the quality of medical care aboard the vessel. Id. at *2. The court

15

granted RCCL's motion for summary judgment, largely because Ms. Veverka failed to show any
issues

material fact. Veverka, 2015 WL 1270139, at *6-10.
Veverka is distinct from the present matter for several reasons.

First, Ms. Veverka

presented murky and conclusory CFA claims that broadly alleged that RCCL failed to provide
"adequate medical care." Id. at *7. In contrast, Plaintiffs have alleged specific misrepresentations
made

Defendant, specifically access to "timely and high-quality medical care available at all

times.

(Compl.

ii 16.) Likewise, Ms. Veverka received medical care relatively promptly from

which undercut her claim as to the adequacy ofRCCL's medical care. See Veverka, 2015
WL

39, at *7-8. In contrast, the record in the present matter shows that Mrs. Lieberman had

difficulty

accessing Defendant's purportedly 2417 medical facilities, and thus buttresses

Plaintiffs' claim. (See, e.g., Gabriel Dep. at 35:20-24.)
Second, the Court in Veverka stressed the significance of the fact that the
misrepresentations about the medical care were not material to Ms. Veverka at the time of her
ticket purchase. Veverka, 2015 WL 1270139, at *8. Again, in contrast, Mrs. Lieberman expressed
the

importance of having high quality medical care to Defendant at the time of her ticket

purchase because of her terminal medical condition. (Compl. ii 15-17; Tammy Lieberman Dep. at
1

Finally, the plaintiff in Veverka pointed to almost no evidence on the record to substantiate
her claims at the summary judgment stage. Defendant affords much weight to that fact, arguing
that

Court should grant its motion because "Plaintiffs ... fail to submit sufficient evidence to

carry

burden." (Mov. Br. at 20.) However, as stated previously, the initial burden of proof is

on the movant to show that no genuine issue of material fact exists. Nothing in Veverka suggests

16

otherwise. See 2015 WL 1270139, at *3 ("The moving party must first show that no genuine issue
of material fact exists" (citing Celotex Corp., 477 U.S. at 323)). Furthermore, the record discloses
sufficient factual disputes to allow a reasonable juror to find for Plaintiffs. Plaintiffs point to
several depositions, which show Mrs. Lieberman's difficulty in obtaining health care aboard the
Splendor.

Specifically, the record shows that Plaintiffs called the front desk, and were

subsequently told the medical facility was closed. (Tammy Lieberman Dep. at 54:6-55:6.) The
record further discloses Plaintiffs' difficulty in obtaining a wheelchair, and Plaintiffs' discovery
that
at

medical facility was physically closed in the middle of the day. (Tammy Lieberman Dep.
1:3, 51:17-52:20, 76:23-77:6; Gabriel Dep. at 36:23-38:7). Such a well-developed

record is at odds with the record in Veverka, where the court routinely found that it failed to support
many

Ms. Veverka's contentions. See 2015 WL 1270139, at *7, *8, *9.
Thus, because Defondant has not made a prima facie showing that genuine disputes of

material facts do not exist, and in light of the CFA's broad, remedial purpose, this Court denies
Defendant's motion for summary judgment for the CFA claim.
2. Breach of Contract and Good Faith

order to state a claim for breach of contract in an admiralty case, a plaintiff must state:
(1) the terms of the maritime contract; (2) that the contract was breached; and (3) the reasonable
value
Inc.,
Inc.

purported damages." Overseas Philadelphia, LLC v. World Council of Credit Unions,
Supp. 2d 182, 188-89 (D.D.C. 2012) (citing Sweet Pea Marine, Ltd. v. APJ Marine,
F.3d 1242, 1249 (11th Cir.2005)); see also Exxon Corp. v. Cent. Gulf Lines, Inc., 500

U.S. 603, 605-06, (1991). Furthermore, "[e]verymaritime contract imposes an obligation of good
faith and fair dealing between the parties in its performance and enforcement." F. W.F., Inc. v.

17

Detroit Diesel Corp., 494 F. Supp. 2d 1342, 1359 (S.D. Fla. 2007) ajf'd, 308 F. App'x 389 (11th

Cir. 2009) (citing Flores v. Am. Seafoods Co., 335 F.3d 904, 913 (9th Cir.2003); Misano di
SpA v. United States, 968 F.2d 273, 274-75 (2d Cir.1992)). Under the implied

covenant of good faith and fair dealing, "neither party shall do anything to injure or destroy the
right

the other party to receive the benefits of the agreement." F. WF., 494 F.Supp.2d at 1359

(internal quotation marks and citation omitted). Accordingly, "[i]f the party to a contract evades
the spirit of the contract, willfully renders imperfect performance, or interferes with performance
by

other party, he or she may be liable for breach of the implied covenant of good faith and

fair dealing." Overseas Philadelphia, 892 F. Supp. 2d at 189-90 (citation omitted). A party to a
contract engages in bad faith by "violat[ing] standards of decency, fairness or reasonableness," or
"engag[ing] in any arbitrary or capricious action" towards the other party. Id.
The Court finds that Defendant is similarly not entitled to summary judgment on the
contract claims because it has not met its burden of showing no material fact disputes. First, the
Court notes the dispute as to whether the terms of the standard Cruise Contract apply. On the one
hand, Defendants maintain that Plaintiffs "acknowledged receipt and acceptance of the terms and
conditions" of the contract "prior to sailing." (Def. SMF il 11.) In support, Defendants provide
the "SPMS Cruise Ticket Contract Acceptance Report, a computerized file documenting the
history of Plaintiffs booking their cruise and related matters." (See ECF No. 49, Affidavit of Mario
Romero,

C.) By contrast, Plaintiffs claim that this evidence "does not reflect that the Plaintiffs

themselves acknowledged receipt and acceptance of the Cruise Contract." (Pl. Opp. SMF il 11.)
Furthermore, even if the Court were to determine that the terms of the Cruise Contract applied,
there is a dispute as to whether Plaintiffs adequately informed Defendants of Plaintiffs medical

18

needs. (Compare, Def. SMF

·with

if 21

("Plaintiffs did not contact Carnival's Special Needs Desk"),

Opp. SMF if 12 ("Plaintiff did inform Defendant Carnival of her special needs in advance

the availability of medical care.
Accordingly, the Court denies Defendant's motion for summary judgment with respect to

ADA
Defendant argues that Mrs. Lieberman does not qualify for protection under the ADA, and
that, even if she did, it did not have notice of her disability. (Mov. Br. at 27-30.) Defendant argues
that

Lieberman's pre-injury disability is undeveloped by the record, noting testimony

indicating that Mrs. Lieberman's cancer did not cause physical disability.

(Id. at 29-30.)

Additionally, Defendant contends that Plaintiffs did not follow the procedures in the standard-form
contract to request accommodation for a disability, namely contacting Defendant's Special Needs
Desk.

at 27-28.)
response, Plaintiffs argue that only Mrs. Lieberman's post-injury disability qualified for

protection under the ADA. (Opp. Br. at 18.) They argue that Defendant's failure to accommodate
Mrs. Lieberman after Defendant became aware of the injury constituted a violation. (Id.)
Court finds that Plaintiffs have no cognizable claim under the ADA. Section 12101(b)
defines the AD A's express purpose, notably "elimin[ating] discrimination against individuals with
disabilities" through "clear, strong, consistent, [and] enforceable standards." Likewise, under
Section

ll

the ADA borrows its remedies from Title VII, which include

injunctive and other equitable relief, accrual ofback pay and, through the enactment
the Civil Rights Act of 1991, compensatory damages for "future pecuniary
19

losses, emotional pain, suffering, inconvenience, mental anguish, loss of enjoyment
life, and other nonpecuniary losses" and punitive damages in the event the
employer acts "with malice or with reckless indifference to the [plaintiffs]
federally protected rights."

Apontik

Verizon Pa. Inc.,_ F.3d _, _, 2015 WL 2417659, at *3 (E.D. Pa. May 21, 2015)

(quoting Landgrafv. US! Film Prods., 511 U.S. 244, 253-54 (1994)). Nowhere in the statute does
Congress define the statutory purpose so broadly as to include common law claims in tort, nor
does it mention damages for personal irtjury.
Likewise, this Court would defy conventional canons of statutory construction to read in
such an expansive definition ofliability under the ADA. Generally, where Congress has expressed
its intentions in clear and plain language, courts will not disturb the statutory language. See, e.g.,

Bartok

DeAngelis, No. 11-3710, 2012 WL 664928, at *8 (D.N.J. Feb. 29, 2012). "The short

answer is that Congress did not write the statute that way. Indeed, the fact that it did not provides
strong affirmative evidence" of Congress's intentions. United States v. Naftalin, 441 U.S. 768,

Accordingly, this Court grants Defendant's motion for summary judgment on Plaintiffs
ADA claim.

D. Loss of Consortium
Defendant argues that "federal maritime law does not permit recovery ... for spouses of
passenger injury claimants," citing Siegel v. Norwegian Cruise Lines, No. 00-6271, 2001 WL
1905983, at *5 (D.N.J. May 14, 2001). (Mov. Br. at 31.) Plaintiffs do not contest this claim in
their Opposition Brief. 7

7

Despite Plaintiffs' unaddressed argument, this Court still has an obligation to ensure that the movant has met its
burden of proof to grant a motion for summary judgment. See Anchorage Assocs. v. V.I. Bd. of Tax Review, 922 F.2d
Cir. 1990) ("Where the moving party has the burden of proof on the relevant issues, this means that the
168, l 75

20

Court agrees with Defendant that general maritime law does not permit loss of
consortium claims for passengers. Although this Court recognizes that loss of consortium claims
for personal injury of non-seamen remains unaddressed by the Third Circuit, this Court notes that
the Supreme Court's movement toward a uniform, federal standard for maritime actions facilitates
this ho!ding. 8 See Miles v. Apex Marine Corp., 498 U.S. 19, 33 (1990). Indeed, the Miles Court
stressed the significance of uniformity in federal maritime law, finding that denying derivative
damages to seamen for wrongful death and survival claims is "in accordance with the uniform plan
created" and "restore[s] a uniform rule." Id. at 33, 37. Uniformity would hardly
exist

district if a plaintiff could recover loss of consortium damages for an injured cruise

ship passenger, but could not recover those same losses for a deceased seaman.
Accordingly, the Court grants Defendant's motion for summary judgment on Plaintiffs
loss

consortium claim.

CONCLUSION

the reasons above, the Court denies in part and grants in part Defendant's motion for
summary judgment. An appropriate Order accompanies this Opinion.

November

2015
.L ARES
TED STATES DISTRICT JUDGE

district court must determine that the facts specified in or in connection with the motion entitle the moving party to
judgment as a matter oflaw." (citing Celotex, 477 U.S. 317.))
8

This Court further notes that a number of circuits that have addressed the issue agree with this Court's position. See,
e.g., Jn Amtrak "Sunset Ltd." Train Crash, 121F.3d1421, 1429 (11th Cir. 1997) (denying loss of society damages
for maritime wrongful death and personal injury claims); Chan v. Soc'y Expeditions, Inc., 39 F.3d 1398, 1408 (9th
Cir.
(denying loss of society damages for an injured cruise ship passenger); Wahlstrom v. Kawasaki Heavy
4 F.3d 1084, 1091-93 (2d Cir. 1993) (same as In re Amtrak).

21