Fedorczyk v. Caribbean Cruise Lines, Ltd.

• Decision Date: 26 April 1996
• Docket Number: No. 95-5462,95-5462
• Citation: 82 F.3d 69
• Parties: Elizabeth FEDORCZYK, Appellant, v. CARIBBEAN CRUISE LINES, LTD; Royal Caribbean Cruises, Ltd.; Royal Caribbean; Anders Wilhelmsen And Company; Kjell Karlsen.
• Court: U.S. Court of Appeals — Third Circuit

Page 69

82 F.3d 69

1996 A.M.C. 1604

Elizabeth FEDORCZYK, Appellant, v. CARIBBEAN CRUISE LINES, LTD; Royal Caribbean Cruises, Ltd. Royal Caribbean; Anders Wilhelmsen And Company Kjell Karlsen.

No. 95-5462.

United States Court of Appeals, Third Circuit.

Argued March 13, 1996.

Decided April 26, 1996.

On Appeal from the United States District Court for the District of New Jersey; John C. Lifland, Judge. No. 92-cv-04271.

Todd B. Eder (argued), Garruto Cantor, East Brunswick, NJ, for appellant.

John P. Flanagan (argued), Barry & McMoran, Newark, NJ, for appellees.

Before STAPLETON, SCIRICA and COWEN, Circuit Judges.

OPINION OF THE COURT

COWEN, Circuit Judge.

This case arises from a slip and fall incident in a bathtub aboard the M/V Sovereign, a vessel operated by defendants Caribbean Cruise Lines, Ltd. and Royal Caribbean Cruises, Ltd., et al. ("Royal Caribbean"). The district court granted Royal Caribbean's motion for summary judgment, holding that plaintiff Elizabeth Fedorczyk did not provide any evidence to support her claim that Royal Caribbean's failure to provide adequate abrasive strips in its bathtub was the proximate cause of her injuries. Because we agree with the district court that the evidence presented does not create a material issue of fact as to causation, which is an essential element of the tort of negligence, we will affirm the June 26, 1995 order of the district court.

I.

The following facts are not disputed. Fedorczyk sailed from Miami aboard the Sovereign, a cruise ship operated by Royal Caribbean. While on board she went to the pool area, applied sunscreen to her body, sunned herself, and swam in the pool. After approximately two hours Fedorczyk returned to her cabin to take a shower. She turned on the water, stepped into the middle of the bathtub and started to soap herself, at which time she slipped and fell onto the floor of the tub.

The tub in her cabin was about five and one-half feet long and two-feet, four-inches wide. It had four anti-skid strips, each running from the middle to the back of the tub. Fedorczyk has no recollection whether her feet were on or off the abrasive strips at the time of her fall. The tub was also equipped with a grab rail which Fedorczyk made a failed attempt to reach when she fell. After the accident she returned to the bathtub to ascertain the cause of the accident. She re-entered the tub and discovered that there was sufficient space between the abrasive strips so that her feet could just fit in between them. However, she does not know where her feet were at the time of the accident.

Fedorczyk's expert, an architect, testified that at the time he examined the bathtub, there were seven as opposed to four abrasive strips. Even with the seven abrasive strips, according to the expert, Royal Caribbean failed to provide a sufficiently large area of non-slip surface to permit its safe use. He based his finding on the fact that the tub failed to comply with the Consumer Products Safety Commission's standard for slip-resistent bathing facilities. This standard specifies that for any surface that is textured or treated with appliques, the pattern shall be such that a one and one-half by three inch rectangular template placed anywhere thereon shall cover some textured or treated area.

The expert also testified that beyond certain safety measures, there is no definite way of preventing slips altogether, and that falls can happen under any circumstances. He stated that the presence of bath oils and soap are large variables that can skew the correlation between the amount of textured surface area and safety. He concluded that Royal Caribbean deviated from an acceptable standard of care in failing adequately to treat or texturize the tub, and that the spacing between the nonslip strips was the direct cause of Fedorczyk's injuries.

II.

The district court had jurisdiction pursuant to 28 U.S.C. § 1332. We have appellate jurisdiction under 28 U.S.C. § 1291. "When reviewing an order granting summary judgment we exercise plenary review and apply the same test the district court should have applied." Armbruster v. Unisys Corp., 32 F.3d 768, 777 (3d Cir.1994). "Under Federal Rule of Civil Procedure 56(c), that test is whether there is a genuine issue of material fact and, if not, whether the moving party is entitled to judgment as a matter of law." Id. (quoting Gray v. York Newspapers, Inc., 957 F.2d 1070, 1078 (3d Cir.1992)). "In so deciding, the court must view the facts in a light most favorable to the nonmoving party and draw all reasonable inferences in that party's favor. Fed.R.Civ.P. 56(c)." Id. (quoting Gray, 957 F.2d at 1078.)

III.

A.

We first consider which substantive law applies. Fedorczyk's negligence cause of action, for the purposes of this matter, could have been brought under either admiralty or diversity jurisdiction. Substantive maritime law applies to a cause of action brought in admiralty. East River S.S. Corp. v. Transamerica Delaval, Inc., 476 U.S. 858, 864, 106 S.Ct. 2295, 2298, 90 L.Ed.2d 865 (1986). If brought under diversity of citizenship, the forum state's choice of law rules dictate which state law applies. Klaxon Co. v. Stentor Elec. Mfg. Co., 313 U.S. 487, 61 S.Ct. 1020, 85 L.Ed. 1477 (1941). Admiralty jurisdiction apparently exists since the injury occurred on navigable waters, Foremost Ins. Co. v. Richardson, 457 U.S. 668, 673, 102 S.Ct. 2654, 2657, 73 L.Ed.2d 300 (1982), and the incident has a nexus to "traditional maritime activity." Sisson v. Ruby, 497 U.S. 358, 110 S.Ct. 2892, 111 L.Ed.2d 292 (1990); Executive Jet Aviation, Inc. v. City of Cleveland, Ohio, 409 U.S. 249, 253-254, 93 S.Ct. 493, 497-98, 34 L.Ed.2d 454 (1972). A plaintiff with a claim cognizable in the district court's admiralty jurisdiction and actionable on other jurisdictional grounds may invoke whichever jurisdiction desired. Fed.R.Civ.P. 9(h). To invoke admiralty jurisdiction, however, a plaintiff must affirmatively insert a statement in the pleadings identifying the claim as an "admiralty or maritime claim." Id.; Bodden v. Osgood, 879 F.2d 184, 186 (5th Cir.1989).

Fedorczyk neither pled nor otherwise invoked the admiralty jurisdiction of the district court in the proceedings below. She filed her original complaint in state court, alleging causes of action under negligence and breach of implied and express warranties. Royal Caribbean removed the case to federal district court on the basis of diversity jurisdiction. The complaint was not amended to invoke admiralty jurisdiction. The district court entered a pretrial order without objection from the parties stating that the jurisdictional predicate was diversity of citizenship. It subsequently dismissed the case on summary judgment due to Fedorczyk's failure to prove that the defendants' negligence was the proximate cause of her injury. The plaintiff is the master of her complaint, and she never invoked admiralty jurisdiction. Indeed, the parties agreed at oral argument they are satisfied with the application of New Jersey state law. It is New Jersey law that we will apply.

B.

For Fedorczyk to prevail on her negligence claim, in addition to proving that Royal Caribbean was negligent, she must also prove that the Royal Caribbean's negligence caused her injury. Kulas v. Public Serv. Elec. and Gas Co., 41 N.J. 311, 196 A.2d 769, 772 (1964). Causation includes cause in fact and legal causation, which is often referred to as proximate cause. Courts have often conflated cause in fact and legal causation into "proximate cause," but the two are conceptually distinct. W. PAGE KEETON ET AL., Prosser and Keeton on the Law of Torts § 41, at 263 (5th ed. 1984) ("PROSSERER") ("There is perhaps nothing in the entire field of law which has called forth more disagreement ... [and] confusion.").

Causation in fact depends on whether an act or omission played a material part in bringing about an event. An act or omission is not regarded as a cause in fact of an event if the particular event would have occurred without it. PROSSER, supra, § 41 at 265; Kulas, 196 A.2d at 772. When more than one act or omission could have caused an event, then the negligent conduct must be shown to have been a substantial factor in causing the harm. RESTATEMENT (SECOND) OF TORTS § 432(2) (1965). See HARPER & JAMES, LAW OF TORTS § 20.2, at 1110, 1114 n.18 (1956). The New Jersey Supreme Court has adopted these principles. State of New Jersey, Dep't of Envtl. Protection v. Jersey Central Power & Light Co., 69 N.J. 102, 351 A.2d 337, 342 (1976); Kulas, 196 A.2d at 769.

On the issue of causation, as on any other essential element of the tort of negligence, the plaintiff has the burden of proof. Long v. Landy, 35 N.J. 44, 171 A.2d 1, 6 (1961); Hansen v. Eagle-Picher Lead Co., 8 N.J. 133, 84 A.2d 281, 284 (1951); PROSSER, supra, § 41, at 269. It is axiomatic that "the mere showing of an accident causing injuries is not sufficient from which to infer negligence. Negligence is a fact which must be proved; it will not be presumed." Hansen, 84 A.2d at 284. The plaintiff must introduce evidence which provides a reasonable basis for the conclusion that it was more likely than not that the negligent conduct of the defendant was a cause in fact of the injury. PROSSER, supra, § 41, at 269.

The core problem for Fedorczyk is she is unable to prove that the negligence of Royal Caribbean in fact caused her injury. Fedorczyk's expert testified that a person may fall in a bathtub under ordinary circumstances and the presence of bath oil and soap are "great variables" that could have caused the fall. Fedorczyk could have fallen in the bathtub for reasons other than Royal Caribbean's negligence. Therefore, Fedorczyk must show that Royal Caribbean's negligence was a substantial factor in causing her injury. Fedorczyk concedes that if she had been standing on any of the four abrasive strips at the time of the accident, she could not establish Royal Caribbean's...