Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Williford v. Carnival Corp.

United States District Court, S.D. Florida

November 22, 2019

DIANE WILLIFORD, Plaintiff,
v.
CARNIVAL CORPORATION, Defendant.

          ORDER DENYING PLAINTIFF'S MOTION FOR PARTIAL SUMMARY JUDGMENT

          MARCIA G. COOKE, UNITED STATES DISTRICT JUDGE.

         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., 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 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. ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.