United States District Court, S.D. Florida
ORDER DENYING PLAINTIFF'S MOTION FOR PARTIAL
G. COOKE, UNITED STATES DISTRICT JUDGE.
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.
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.
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.
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
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.
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.
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)).
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).
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.
“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).