United States District Court, S.D. Florida
S. SELTZER, UNITED STATES MAGISTRATE JUDGE.
CAUSE is before the Court on the Motion for Summary Judgment
filed by MSC Cruises, S.A. (DE 43) and the Motion for Partial
Summary Judgment filed by Plaintiff Janet Francis (DE 41).
The Court has carefully considered the motions, and the
record, and is otherwise fully advised. For the reasons that
follow, MSC's Motion for Summary Judgment (DE 43) is
GRANTED and Francis's Motion for Partial Summary Judgment
(DE 41) is DENIED.
Janet Francis (“Plaintiff” or
“Francis”) and her companion Regina Kenneweg
(“Kenneweg”) were passengers on a cruise ship
named the Divina operated by MSC Cruises, S.A.
(“Defendant” or “MSC”). In the
evening of July 10, 2017, Francis and Kenneweg went to a
self-service buffet restaurant on Deck 14 of the ship. (DE
41-5, Deposition of Janet Francis (“Francis
Dep.”) at 61-63; DE 41-7, Deposition of Regina Kenneweg
(“Kenneweg Dep.”) at 30). As Francis and Kenneweg
headed toward the buffet, they noticed food items on the
floor of the passageway. (Francis Dep. at 63; Kenneweg Dep.
at 30-31). Francis stated that the floor was “nasty and
dirty, ” which caused her to walk with a
“heightened awareness.” (Francis Dep. at 67).
spent 10 to 15 minutes at the buffet. (Id. at 63; DE
46: 7, Pl.'s Add'l Facts in Opp'n ¶ 19).
Upon exiting the buffet, Francis and Kenneweg approached the
same passageway where they previously had observed spilled
food, and they remarked to one another that the area had been
cleaned and food was no longer on the floor. (Francis Dep. at
63, 68; Kenneweg Dep. at 17, 37-38). Francis agreed that a
cleaning occurred “in the 10 to 15 minutes”
during which she was at the buffet. (Francis Dep. at 78).
However, the possibility that fruit remained on the floor
caused Francis to maintain a “heightened level of
awareness” on the way out of the buffet even though the
floor appeared clean. (Id. at 68, 74). Despite
“actively looking for fruit on the floor”
(Id. at 74), and “being cautious”
(Kenneweg Dep. at 42), Francis slipped on a piece of
watermelon and fell.
Francis nor Kenneweg knew how long the watermelon had been on
the floor, or where it had come from (Francis Dep. at 69-70;
Kenneweg Dep. at 45-46), but Kenneweg assumed that the fruit
spilled after the passageway had been cleaned (Kenneweg Dep.
at 46). Kenneweg further testified that the fruit was not
rotten or dried out. (Id. at 47). Although the
record reveals that that one or more crewmembers were in the
general vicinity of the buffet, there is no evidence that the
crewmembers had seen the watermelon, or were near the area of
the spill at the relevant time. (DE 41-4, Deposition of Sioni
Marana (“Marana Dep.”) at 26). The only
housekeeper in the area was inside a bathroom at the time and
did not witness the slip-and-fall incident. (Id. at
30-31). Francis recalled passing some crewmembers on the
deck, but they were “talking among themselves.”
(Francis Dep. 83-84; Kenneweg Dep. at 15).
did not reveal evidence of prior slip-and-falls involving
food or beverages in the passageways leading to the buffet
area on the Divina, or any of its sister ships, in
the three years prior to the incident. (DE 43-3, Def.'s
Supp. Resp. to Pl.'s 2d Interrogs.). Indeed, the record
contains no evidence of substantially similar incidents of
any kind. Nevertheless, MSC was generally aware that food can
be dropped on the floors of its ships, and that dropped food
can be a slipping hazard. (DE 41-6, Deposition of Ryan Allain
(“Allain Dep.”) at 88-89). Moreover,
Francis's expert witness, Dr. Reza Vaghar, opined that
the slip-resistance of the deck on which the fall occurred
was below industry standard and was generally unsafe. (DE
41-8, Deposition of Dr. Reza Vaghar (“Vaghar
Dep.”) at 26-28, 59-60).
on the slip-and-fall, Francis filed a one-count Complaint
alleging negligence in federal court. Both parties moved for
summary judgment on the question of whether MSC had
sufficient notice (and therefore a duty to warn) of the
purportedly dangerous condition that Francis encountered.
This matter is now ripe for review.
judgment is appropriate when “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). At
the summary judgment stage, the Court's function is not
to “weigh the evidence and determine the truth of the
matter but to determine whether there is a genuine issue for
trial.” Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 249 (1986). In making this determination, the Court
must construe the evidence in the light most favorable to the
nonmoving party and draw all reasonable inferences in that
party's favor. SEC v. Monterosso, 756 F.3d 1326,
1333 (11th Cir. 2014). “If reasonable minds could
differ on the inferences arising from undisputed facts, then
a court should deny summary judgment.” Carlson v.
FedEx Ground Package Sys., Inc., 787 F.3d 1313, 1317-18
(11th Cir. 2015) (quoting Allen v. Tyson Foods,
Inc., 121 F.3d 642, 646 (11th Cir.1997)). “This is
because ‘the drawing of legitimate inferences from the
facts are jury functions, not those of a judge.'”
Id. (quoting Reeves v. Sanderson Plumbing
Products, Inc., 530 U.S. 133, 150 (2000)).
movant “bears the initial responsibility of informing
the district court of the basis for its motion, and
identifying those portions of [the record] which it believes
demonstrate the absence of a genuine issue of material
fact.” Celotex Corp. v. Catrett, 477 U.S. 317,
323 (1986). Once this initial burden is met, “the
nonmoving party must offer more than a mere scintilla of
evidence for its position; indeed, the nonmoving party must
make a showing sufficient to permit the jury to reasonably
find on its behalf.” Urquilla-Diaz v. Kaplan
Univ., 780 F.3d 1039, 1050 (11th Cir. 2015). But if the
record, taken as a whole, cannot lead a rational trier of
fact to find for the non-moving party, there is no genuine
issue for trial, and summary judgment is proper.
Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,
475 U.S. 574, 587 (1986).
these standards to the present case, the Court concludes that
no genuine dispute as to material fact exists and that
summary judgment in favor of MSC is warranted.
axiomatic that “[a] carrier by sea is not liable to
passengers as an insurer, but only for its negligence.”
Kornberg v. Carnival Cruise Lines, Inc., 741 F.2d
1332, 1334 (11th Cir. 1984). To determine whether MSC was
negligent, the Court applies the standards recently