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Francis v. MSC Cruises, S.A.

United States District Court, S.D. Florida

September 5, 2019

JANET FRANCIS, Plaintiff,
v.
MSC CRUISES, S.A., Defendant.

          ORDER

          BARRY S. SELTZER, UNITED STATES MAGISTRATE JUDGE.

         THIS 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.

         I. FACTS

         Plaintiff 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).

         Francis 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.

         Neither 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).

         Discovery 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).[1]

         Based 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.

         II. LEGAL STANDARD

         Summary 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)).

         The 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).

         Applying 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.

         III. ANALYSIS

         It is 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 ...


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