Bryant v. Cruises, Inc.

• Decision Date: 26 March 1998
• Docket Number: No. CIV.A. CV-97-S-1539-M.,CIV.A. CV-97-S-1539-M.
• Citation: 6 F.Supp.2d 1314
• Parties: Agatha BRYANT, Plaintiff, v. CRUISES, INC., Defendant.
• Court: U.S. District Court — Northern District of Alabama

Page 1314

6 F.Supp.2d 1314

Agatha BRYANT, Plaintiff, v. CRUISES, INC., Defendant.

No. CIV.A. CV-97-S-1539-M.

United States District Court, N.D. Alabama, Middle Division.

March 26, 1998.

William D. Davis, III, Davis, Dorin, Curtis & Neil, Birmingham, AL, for Plaintiff.

John E. Norris, Burr & Forman, Birmingham, AL, Rodney E. Gould and Craig Harwood, Rubin, Hay & Gould, P.C., Framingham, MA, for Defendant.

MEMORANDUM OPINION

SMITH, District Judge.

This action is before the court on defendant's motion for summary judgment. Upon consideration of the pleadings, briefs, and evidentiary submissions, this court concludes the motion is due to be granted.

I. SUMMARY OF FACTS

Defendant, Cruises, Inc., is a New York corporation with its principal place of business in Syracuse, New York. It is a retail travel agency specializing in vacation voyages on deep-water vessels. (Christen Affidavit ¶ 2.) Agatha Bryant, a resident of Centre, Alabama, visited defendant's Gadsden, Alabama office to discuss arrangements for a family reunion on an ocean liner. (Complaint at 1; Bryant Affidavit at 1.) Bryant alleges that she

explained to them what we wanted and asked for their assistance. They arranged the transportation back and forth to the cruise and the cruise itself. Cruises, Inc., picked out the cruise line and the ship that we took. Cruises, Inc., was going to be responsible from the day we left for providing the facilities, services and back-up if needed.

(Id.) Bryant booked passage through defendant's agents on Carnival Cruise Lines' ship, Fantasy, beginning July 11, 1996. (Christen Affidavit ¶ 3.) Bryant was injured on the third day of the cruise, July 13, 1996, when she fell down a ship stairwell.

After we arrived on the ship and began our cruise, the special events that they provided for us began. During one of these events, we were in the lounge area watching video of the previous days events, when I approached the bar to get directions and before I could reach the bar, I fell down a stairwell which blended in with the area. There was a "watch your step" sign on the other side, but not the side I fell from.

(Bryant Affidavit at 2.)

Bryant asserts two claims against defendant. Count One alleges that Cruises, Inc. "negligently controlled, planned, designed, constructed, and inspected and cleaned the premises involved in this lawsuit." (Complaint at 2.) Count Two asserts identical allegations, except that Bryant contends her injuries were caused by "the wantonness of the defendants." (Id. at 5 (emphasis supplied).) Bryant seeks damages in each count for the sum of $75,000.00, plus interest and costs, for the following injuries:

a bruised tailbone, injuries to her back; she was caused to be bruised, contused, strained, sprained and otherwise greatly battered; she was caused to suffer excruciating physical pain and suffering; she was caused to suffer severe mental anguish and stress; she was caused to be both temporarily totally disabled and permanently partially disabled; she was caused to incur medical expenses in the form of drug costs, physicians charges, hospital charges and other medical charges in obtaining treatment for herself and she will be in the future caused to incur medical expenses for treatment for herself; she was caused to lose time from gainful employment and hence suffer lost wages; her earning capacity was caused to decrease, all to her detriment.

(Complaint at 3 and 5.)

II. FEDERAL JURISDICTION

Bryant curiously asserts jurisdiction "[p]ursuant to the Federal Tort Claims Act, Title 28 U.S.C. § 2674 and under Title 28 U.S.C. § 1346(b) ...." (Complaint ¶ 2.) No conceivable construction of the alleged facts renders either statute applicable to this case. The Federal Tort Claims Act (FTCA), enacted in 1945, authorizes suits against the United States, exclusively in district courts, for money judgments for personal injuries caused by government employees acting within the line and scope of their federal employment. "The FTCA operates as a limited waiver of the federal government's sovereign immunity for certain common-law torts" committed by federal employees or agencies. Ivey v. United States, 873 F.Supp. 663, 667 (N.D.Ga.1995). On the other hand, 28 U.S.C. § 1346(b) recites that district courts "shall have exclusive jurisdiction of civil actions on claims against the United States, for money damages, ... for ... personal injury ... caused by the negligent or wrongful act or omission of any employee of the Government...." (Emphasis added.) Thus, the United States is the only proper defendant under either statute relied upon by plaintiff. Bryant is not asserting tort claims against the United States or any of its employees or agencies, however.

Bryant's claims, which hinge primarily on events occurring aboard a cruise ship while at sea, are more properly pled in admiralty. See, e.g., Kermarec v. Compagnie Generale Transatlantique, 358 U.S. 625, 628, 79 S.Ct. 406, 408, 3 L.Ed.2d 550 (1959)(legal rights and liabilities arising from conduct allegedly causing injury aboard ship on navigable waters is "within the full reach of the admiralty jurisdiction and measurable by the standards of maritime law"). Under admiralty law, "a ship, as a common carrier, owes a special duty to its passengers." Kornberg v. Carnival Cruise Lines, Inc., 741 F.2d 1332, 1334 (11th Cir.1984)(citing Defrier v. The Nicaragua, 81 F. 745 (S.D.Ala.1897)("the carrier must subject his passengers to no suffering or inconvenience which can be avoided by reasonable care and effort")). A breach of that duty by the carrier is a "maritime tort." Kornberg, 741 F.2d at 1334.

Plaintiff does not expressly assert admiralty jurisdiction. She does allege, however, that "[t]he defendant, Cruises, Inc., owned and operated a cruise ship known as the Fantasy." (Complaint at 1 (emphasis supplied).) Moreover, she contends that Cruises, Inc. had a duty to "either warn the plaintiff of the dangerous and defective condition or to make the premises safe." (Id. at 2.) Those allegations expose a fundamental error underlying this action. Plaintiff presents no evidence to establish that Cruises, Inc. either owned or operated the Fantasy, or that, as her travel agent, it had a duty to warn her of dangers on a ship it neither owned nor controlled. Indeed, the affidavit of Holley S. Christen, defendant's chief financial officer, effectively rebuts plaintiff's allegations.

Cruises Inc. has never owned, operated, managed, controlled or had any financial interest in Fantasy or any other cruise ship. Rather, Fantasy is owned and operated by Carnival. Cruises Inc. has never owned, operated, managed, or controlled Carnival or been owned, operated, managed, or controlled by Carnival, and neither corporation owns stock of or has any other financial interest in the other. The two corporations have no officers, directors, or employees in common. The only connection between the two corporations is that, as a retail cruise agency, Cruises Inc., like thousands of other retail travel agencies, sells, for a commission, cruises operated by Carnival as well as for other cruise lines.

(Christen Affidavit ¶ 4.) Plaintiff makes no effort to challenge Christen's testimony. Because plaintiff has not asserted admiralty jurisdiction, and because plaintiff has not sued the owner/operator of the cruise ship on which she was injured, this court will not assume admiralty jurisdiction.

Nevertheless, it is apparent that an alternate source of federal jurisdiction over plaintiff's claims may exist. Plaintiff's claims involve citizens of different states and an amount in controversy that exceeds $75,000. (See Complaint at 3 and 4.) Even though the complaint is silent on this point,¹ jurisdiction in this court is proper, if at all, under the diversity statute. 28 U.S.C. § 1332. Accordingly, the court will assume diversity jurisdiction of the controversy.

III. SUMMARY JUDGMENT STANDARD

Rule 56(c) of the Federal Rules of Civil Procedure provides that summary judgment "shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." The moving party has the initial burden of showing the absence of a genuine issue as to any material fact. Allen v. Tyson Foods, Inc., 121 F.3d 642, 646 (11th Cir.1997)(citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986)). In determining whether this burden is met, the court must view the evidence "and all factual inferences arising from it in the light most favorable to the nonmoving party." Id. (quoting Adickes v. S.H. Kress & Co., 398 U.S. 144, 157, 90 S.Ct. 1598, 1608, 26 L.Ed.2d 142 (1970)).

Once the movant's initial burden is met, "the burden shifts to the nonmovant to `come forward with specific facts showing that there is a genuine issue for trial.'" Id. (quoting Matsushita Electric Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986)). In meeting its burden, a "mere `scintilla' of evidence supporting the [nonmoving] party's position will not suffice; there must be enough of a showing that the jury could reasonably find for that party." Walker v. Darby, 911 F.2d 1573, 1577 (11th Cir.1990)(citing Anderson, 477 U.S. at 242, 106 S.Ct. 2505, 91 L.Ed.2d 202). "Where the record taken as a whole could not lead a rational trier of fact to find for the non-moving party, there is no genuine issue for trial." Matsushita, 475 U.S. at 587, 106 S.Ct. at 1356 (citation omitted).

IV. DISCUSSION

There is another fundamental problem with this case, which neither party has addressed in brief. As previously observed, if this court has jurisdiction of this action at all, it attaches because of the diversity statute. In such cases, the court is bound by the Er...