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Cosmo v. Carnival Corp.

United States District Court, S.D. Florida

September 18, 2017

Wayne Cosmo, Plaintiff,
Carnival Corporation dba Carnival Cruise Line, Defendant.



         Plaintiff Wayne Cosmo was a passenger aboard Defendant Carnival Corporation's Miracle in August 2015 when he fell on his right wrist during an organized game, near a pool, where he alleges the floor was wet and slippery. According to Cosmo, he has suffered permanent damage as a result of fractures to his radius and ulna as well as depression, anxiety, and an exacerbation of his pre-existing ulcerative colitis. In its motion for summary judgment, Carnival submits that it should not be responsible for Cosmo's damages because (1) Cosmo's jumping over a lounge chair on a wet deck was the proximate cause of his own injuries; (2) Cosmo has not offered sufficient evidence that Carnival had either actual or constructive notice of the alleged dangerous condition; and (3) even if Carnival did have notice, the nature of the danger was open and obvious, thus obviating the need for Carnival to warn Cosmo of the danger. Because there is sufficient evidence upon which a reasonable fact finder could decide this case in Cosmo's favor, at least in part, the Court denies Carnival's motion for final summary judgment (ECF No. 76).

         1. Background

         While aboard Carnival's ship Miracle, Cosmo elected to participate in a cruise-organized game called “Last Man Standing.” The game is best described as a combination of a scavenger hunt and musical chairs. An emcee directs a number of participants-volunteer cruise-ship passengers-to retrieve items from around the lido deck, near the pool where the game is played, and to then return to the stage where the participants have assembled a row of chairs. Each time the players leave the stage area, a chair is removed. The last player in each round to return to the stage with the new item will not have a place to sit and is thus eliminated; the game proceeds until only one participant is left “standing.”

         Cosmo says that, after some cajoling by the emcee, Terrance Phillips, he agreed to participate in the game. For the initial round of the game, the players were told to each retrieve a chair from the deck and to return with it to the stage. Cosmo recalls a fellow player falling on the way back during this first round but didn't recall any details about the person who fell or why that person fell. Cosmo also alleges that yet another participant fell during the next round as well. And then, during the third round, as Cosmo was returning with the next item, a book he had taken from another passenger, he himself fell. A closed-circuit-television video of Cosmo's fall shows that Cosmo appears to have been running, or at least hurrying, down an aisle between lounge chairs, back towards the stage area. However, instead of proceeding to the end of the aisle, Cosmo attempted a shortcut, or was trying to avoid a collision with another passenger, by jumping over the last lounge chair in the row. The video doesn't clearly depict the jump or the fall itself (the camera's line of sight is partially obstructed by people walking into and out of the frame). But, between what is visible on the video and Cosmo's testimony, the inescapable conclusion is indeed that Cosmo jumped over the lounge chair.[1]

         According to Cosmo, after going over the chair, he “then slipped and fell” in a “big puddle of water from the pool.” (Cosmo Dep., ECF No. 79-1, 215:24- 25.) Cosmo testified that the puddle was not readily visible. (E.g., Id. at 222:20 - 223:2.) Further, one of his experts also opines that the slip resistance of the deck, as he measured it, is below industry standards and is too slippery. (Pl.'s Resp. at ¶ 3.)

         2. Summary Judgment Standard

         Summary judgment is proper if following discovery, the pleadings, depositions, answers to interrogatories, affidavits and admissions on file show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Fed.R.Civ.P. 56. “An issue of fact is ‘material' if, under the applicable substantive law, it might affect the outcome of the case.” Hickson Corp. v. N. Crossarm Co., 357 F.3d 1256, 1259-60 (11th Cir.2004). “An issue of fact is ‘genuine' if the record taken as a whole could lead a rational trier of fact to find for the nonmoving party.” Id. at 1260. All the evidence and factual inferences reasonably drawn from the evidence must be viewed in the light most favorable to the nonmoving party. Adickes v. S.H. Kress & Co., 398 U.S. 144, 157 (1970); Jackson v. BellSouth Telecomms., 372 F.3d 1250, 1280 (11th Cir. 2004).

         Once a party properly makes a summary judgment motion by demonstrating the absence of a genuine issue of material fact, whether or not accompanied by affidavits, the nonmoving party must go beyond the pleadings through the use of affidavits, depositions, answers to interrogatories and admissions on file, and designate specific facts showing that there is a genuine issue for trial. Celotex, 477 U.S. at 323-24. The nonmovant's evidence must be significantly probative to support the claims. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). The Court will not weigh the evidence or make findings of fact. Anderson, 477 U.S. at 249; Morrison v. Amway Corp., 323 F.3d 920, 924 (11th Cir. 2003). Rather, the Court's role is limited to deciding whether there is sufficient evidence upon which a reasonable juror could find for the nonmoving party. Id. “If more than one inference could be construed from the facts by a reasonable fact finder, and that inference introduces a genuine issue of material fact, then the district court should not grant summary judgment.” Bannum, Inc. v. City of Fort Lauderdale, 901 F.2d 989, 996 (11th Cir. 1990).

         3. Discussion

         A. Applicable Law

         Where a “[d]efendant's alleged tortious conduct occurred aboard a ship on navigable waters, federal admiralty law, not state law, governs [the p]laintiff's claims.” Stewart-Patterson v. Celebrity Cruises, Inc., No. 12-20902-CIV, 2012 WL 2979032, at *2 (S.D. Fla. July 20, 2012) (Cohn, J.). “But, when neither statutory nor judicially created maritime principles provide an answer to a specific legal question, courts may apply state law provided that the application of state law does not frustrate national interests in having uniformity in admiralty law.” Coastal Fuels Mktg., Inc. v. Florida Exp. Shipping Co., 207 F.3d 1247, 1251 (11th Cir. 2000). Similarly, in the absence of applicable maritime law, courts are also free to apply the reasoning used in other federal circuits, Isbell v. Carnival Corp., 462 F.Supp.2d 1232, 1236 (S.D. Fla. 2006) (Moreno, J.), as well as treatises and other scholarly resources, Exxon Co. U.S.A. v. Sofec, Inc., 517 U.S. 830, 839 (1996).

         B. Negligence

         “To state a negligence claim under maritime law, a plaintiff must allege that (1) the defendant had a duty to protect the plaintiff from a particular injury; (2) the defendant breached that duty; (3) the breach actually and proximately caused the plaintiff's injury; and (4) the plaintiff suffered actual harm.” Lipkin v. Norwegian Cruise Line Ltd., 93 F.Supp.3d 1311, 1319 (S.D. Fla. 2015) (Williams, J.) (citing Chaparro v. Carnival Corp.,693 F.3d 1333, 1336 (11th Cir.2012)). In contending that it has no liability for Cosmo's fall, Carnival's principal focus is on Cosmo's leaping over the chair. In that regard, Carnival argues: Cosmo's decision to jump over the chair was the proximate cause of his fall; Carnival had no actual or constructive notice of injuries resulting from people jumping over chairs on the lido deck; and the risk of falling after jumping over the chair alone, never mind on the pool deck where there were likely to be puddles, was open and obvious. Alternatively, Carnival also submits that Cosmo has produced no evidence that Carnival had actual notice of the puddle of water next to the chair where Cosmo fell. Carnival also contends that the nature of the Last Man Standing ...

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