O'Brien v. NCL (Bahamas) Ltd., CASE NO. 16–23284–CIV–LENARD/GOODMAN

• Decision Date: 28 December 2017
• Docket Number: CASE NO. 16–23284–CIV–LENARD/GOODMAN
• Citation: 288 F.Supp.3d 1302
• Parties: Stephen Emmet O'BRIEN, Plaintiff, v. NCL (BAHAMAS) LTD., Defendant.
• Court: U.S. District Court — Southern District of Florida

288 F.Supp.3d 1302

Stephen Emmet O'BRIEN, Plaintiff,

v.NCL (BAHAMAS) LTD., Defendant.

CASE NO. 16–23284–CIV–LENARD/GOODMAN

United States District Court, S.D. Florida.

Signed December 28, 2017

Jessica Pierce Quiggle, John Fitzgerald Billera, Billera Law, PLLC, Boca Raton, FL, for Plaintiff.

Brett Michael Berman, Amanda Jean Sharkey Ross, Geoffrey Edward Probst, Norwegian Cruise Lines Inc., Jeffrey Eric Foreman, Noah Daniel Silverman, Raquel Lauren Loret de Mola, Sarah Dawn Schooley, Foreman Friedman PA, Miami, FL, for Defendant.

ORDER GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT (D.E. 42)

JOAN A. LENARD, UNITED STATES DISTRICT JUDGE

THIS CAUSE is before the Court on Defendant NCL (Bahamas) Ltd.'s ("Defendant" or "Norwegian") Motion for Summary Judgment, ("Motion," D.E. 42), filed June 16, 2017. Plaintiff Stephen Emmet O'Brien filed a Response on July 8, 2017, ("Response," D.E. 52), to which Defendant filed a Reply on June 17, 2017, ("Reply," D.E. 54). Upon review of the Motion, Response, Reply, and the record, the Court finds as follows.

I. Background¹

On August 7, 2015, Plaintiff was a passenger aboard Defendant's cruise ship, the Norwegian Sky . (Def.'s Facts ¶ 1.) According to Plaintiff's deposition testimony, he walked into a shallow children's pool and splashed water on his face, chest, back, and head. (Id. ¶ 9.) He testified that the water smelled "really chlorinated, ... like a heavy smell of chemicals." (O'Brien Dep. at 63:14–16.) He also testified that he observed a "white foamy" substance, "like a soap residue," near the children's pool. (Id. at 69:10–16.) Later the same day, Plaintiff felt a burning pain in his feet, (id. at 73:25), and noticed his feet were blistering, (Def.'s Facts ¶ 11). There were no other similar injuries reported on the day of the incident or during the subject cruise, (id. ¶ 20), and there were no other similar burn incidents being reported on the Norwegian Sky for the three years prior to the subject incident, (id. ¶ 12).

On December 3, 2016, Plaintiff filed the operative Corrected Amended Complaint for Negligence, (D.E. 22), in which he alleges to have sustained chemical burns to his feet from exposure to "caustic" chemicals used to clean Norwegian's decks and used at unreasonable levels in Norwegian's Jacuzzi,² and from the hot pool deck. (Def.'s Facts ¶ 6.)

To clean the decks, Norwegian uses only soap and water. (Id. ¶ 23.) To clean the pools, Norwegian utilizes the ProMinent water treatment control system which allows for the continuous monitoring and automatic delivery of pool chemicals based upon predetermined levels. (Id. ¶ 14.) Norwegian further performs manual chemical checks at each swimming pool every four hours and at the Jacuzzi every hour in order to validate the automatic readings of the ProMinent system. (Id. )

Plaintiff was diagnosed with type-two diabetes about eight years prior to the subject cruise. (Id. ¶ 3.) Although Plaintiff disputes Norwegian's statement that "Plaintiff has a long and well-documented history of not controlling his diabetes," (id. ¶ 4), Plaintiff's treating endocrinologist, Vivian Rose, (see D.E. 80 ¶ 32), testified at her deposition that when she saw him on May 29, 2015, his blood sugar was "unacceptably high," indicating that "he had not had any control of his diabetes [.]" (D.E. 54–1 at 21:22–25.) Additionally, Plaintiff's primary care physician, Dr. James Prine, (see D.E. 80 ¶ 23), testified at his deposition that when he saw Plaintiff in 2010 and 2012, Plaintiff's diabetes was out of control, (Prine Dep. at 16:21–24; 18:2–8). Prior to the subject cruise, two of Plaintiff's doctors advised him to take precautions with regard to his feet. (Def.'s Facts ¶ 5.)

II. Legal Standard

On a motion for summary judgment, the Court is to construe the evidence and factual inferences arising therefrom in the light most favorable to the nonmoving party. Adickes v. S.H. Kress & Co., 398 U.S. 144, 157, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970). Summary judgment can be entered on a claim only if it is shown "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). In addition, under Federal Rule of Civil Procedure 56(f)(1), the Court may grant summary judgment for the non-moving party "[a]fter giving notice and a reasonable time to respond." Fed. R. Civ. P. 56(f)(1) ; see also Gentry v. Harborage Cottages–Stuart, LLLP, 654 F.3d 1247, 1261 (11th Cir. 2011). The Supreme Court has explained the summary judgment standard as follows:

[T]he plain language of [ Rule 56 ] mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial. In such a situation, there can be no genuine issue as to any material fact, since a complete failure of proof concerning an essential element of the non-moving party's case necessarily renders all other facts immaterial.

Celotex Corp. v. Catrett, 477 U.S. 317, 322–23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) (internal quotation omitted). The trial court's function at this juncture 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, 249–50, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). A dispute about a material fact is genuine if the evidence is such that a reasonable fact-finder could return a verdict for the nonmoving party. Id. at 248, 106 S.Ct. 2505 ; see also Barfield v. Brierton, 883 F.2d 923, 933 (11th Cir. 1989).

The party moving for summary judgment "always bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of the ‘pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any,’ which it believes demonstrate the absence of a genuine issue of material fact." Celotex, 477 U.S. at 323, 106 S.Ct. 2548. Once the movant makes this initial demonstration, the burden of production, not persuasion, shifts to the nonmoving party. The nonmoving party must "go beyond the pleadings and by [its] own affidavits, or by the ‘depositions, answers to interrogatories, and admissions on file,’ designate ‘specific facts showing that there is a genuine issue for trial.’ " Id. at 324, 106 S.Ct. 2548 ; see also Fed. R. Civ. P. 56(c). In meeting this burden the nonmoving party "must do more than simply show that there is a metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). That party must demonstrate that there is a "genuine issue for trial." Id. at 587, 106 S.Ct. 1348. An action is void of a material issue for trial "[w]here the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party." Id.

III. Applicable Law

"Federal maritime law applies to actions arising from alleged torts ‘committed aboard a ship sailing in navigable waters.’ " Smolnikar v. Royal Caribbean Cruises Ltd., 787 F.Supp.2d 1308, 1315 (S.D. Fla. 2011) (citing Keefe v. Bahama Cruise Line, Inc., 867 F.2d 1318, 1321 (11th Cir. 1989) ).

General maritime law is "an amalgam of traditional common-law rules, modifications of those rules, and newly created rules." See East River Steamship Corp. v. Transamerica Delaval, Inc., 476 U.S. 858, 864–65, 106 S.Ct. 2295, 90 L.Ed. 2d 865 (1986). See also Brockington v. Certified Elec., Inc., 903 F.2d 1523, 1530 (11th Cir. 1990). In the absence of well-developed maritime law pertaining to [Plaintiff's] negligence claims, [the Court] will incorporate general common law principles and Florida state law to the extent they do not conflict with federal maritime law. See Just v. Chambers, 312 U.S. 383, 388, 61 S.Ct. 687, 85 L.Ed. 903 (1941) ("With respect to maritime torts we have held that the State may modify or supplement the maritime law by creating liability which a court of admiralty will recognize and enforce when the state action is not hostile to the characteristic features of the maritime law or inconsistent with federal legislation."). See also Becker v. Poling Transp. Corp., 356 F.3d 381, 388 (2nd Cir. 2004) ("federal maritime law incorporates common law negligence principles generally, and [state] law in particular"); Wells v. Liddy, 186 F.3d 505, 525 (4th Cir. 1999) (in the absence of a well-defined body of maritime law relating to a particular claim, the general maritime law may be supplemented by either state law or general common law principles).

Id.; see also Hesterly v. Royal Caribbean Cruises, Ltd., 515 F.Supp.2d 1278, 1282 (S.D. Fla. 2007).

IV. Discussion

Although the Parties do not address them individually, the Amended Complaint contains the following claims for relief:

• Count I: General Maritime Law Negligence—Failure to Provide a Reasonably Safe Vessel;

• Count II: Negligent Failure to Warn of a Dangerous Condition;

• Count III: Negligent Design;

• Count IV: Negligent Method of Operation;

• Count V: Negligent Failure to Maintain.

(D.E. 22.) The basis for each of these claims is that Plaintiff's injuries were caused by the hot pool deck, chemicals from the Jacuzzi, and/or caustic chemicals used for sanitizing the pool deck.³ (D.E. 22 ¶¶ 10–17.)

"To satisfy the burden of proof in a negligence action, plaintiff must show: (1) that defendant owed plaintiff a duty; (2) that defendant breached that duty; (3) that this breach was the proximate cause of plaintiff's injury; and (4) that plaintiff suffered damages." Isbell v. Carnival Corp., 462 F.Supp.2d 1232, 1236 (S.D. Fla. 2006) (citing Hasenfus v. Secord, 962 F.2d 1556, 1559–60 (11th Cir. 1992) ). With regard to the duty element, the Eleventh Circuit has stated that a cruise operator owes its passengers "ordinary reasonable care under...