John Morrell & Co. v. Royal Caribbean Cruises, Case No. 06-60786-CIV.

• Citation: 534 F.Supp.2d 1345
• Decision Date: 08 February 2008
• Docket Number: Case No. 06-60786-CIV.
• Parties: JOHN MORRELL & CO., Plaintiff, v. ROYAL CARIBBEAN CRUISES, LTD., Defendant.
• Court: U.S. District Court — Southern District of Florida

Page 1345

534 F.Supp.2d 1345

JOHN MORRELL & CO., Plaintiff, v. ROYAL CARIBBEAN CRUISES, LTD., Defendant.

Case No. 06-60786-CIV.

United States District Court, S.D. Florida, Miami Division.

February 8, 2008.

Jennifer Elaine Simpson, Scott John Topolski, Buckingham, Doolittle & Burroughs, LLP, Boca Raton, FL, for Plaintiff.

Jeffrey Eric Foreman, Darren Wayne Friedman, Kristen Alexandra Rosenthal, Maltzman Foreman PA, Miami, FL, for Defendant.

ORDER ON MOTION FOR SUMMARY JUDGMENT

CECILIA M. ALTONAGA, District Judge.

THIS CAUSE came before the Court for a hearing on November 15, 2007, upon Defendant, Royal Caribbean Cruises, Ltd.'s ("Royal Caribbean[']s") Motion for Final Summary Judgment ("Motion") [D.E. 77]. Royal Caribbean moves for summary judgment, pursuant to Rule 56 of the Federal Rules of Civil Procedure, on both counts against it in Plaintiff, John Morrell & Co.'s ("Morrell[']s") Complaint ("Compl.") [D.E. 1]. The Court has carefully considered the parties' written submissions, the record, the oral arguments, and applicable law.

I. BACKGROUND

Defendant, Royal Caribbean, is a cruise ship operator with its headquarters in Miami, Florida. Plaintiff, Morrell, is the employer of Jane Weiler ("Weiler"). (See Compl. at ¶ 11). On June 2, 2005, Weiler and eleven other Morrell employees from around the United States began a company-sponsored cruise on the Empress of the Seas (the "Empress"), one of Royal Caribbean's cruise ships. (See Affidavit of David Charles Hines ("Hines Aff.") [D.E. 102-2] at ¶¶ 3, 6-8). On June 4, 2005, the Empress arrived in Cozumel, Mexico, where the passengers were offered the opportunity to take part in a "Dune Buggy Beach and Snorkel" shore excursion (the "Shore Excursion"). (See id. at ¶¶ 7-8; Shore Excursion Brochure ("Excursion Brochure") [D.E. 77-7] at 7).

The Excursion Brochure distributed by Royal Caribbean described the Shore Excursion as follows:

Drive a modern dune buggy; snorkel crystal waters and relax on an amazing beach. Then end your tour by shopping at the best place in town. This "Combo" package begins at the pier where your bilingual guide meets you for an exploration of Cozumel. The experience begins with traveling around the island in a customized dune buggy, visiting Cozumel's most beautiful and rugged areas.

(Excursion Brochure at 7). The Excursion Brochure also contained a disclaimer:

Shore excursions are offered for sale by Royal Caribbean International as a convenience to our guests. While great care has been taken to offer the finest excursions available at each port, these tour services are provided by independent tour operators, and Royal Caribbean International will not be responsible or liable for any loss, damage, injury, costs, or delays resulting from, or in connection with, your use of these services.

(Id. at 3).

Passengers wishing to purchase tickets for the Shore Excursion were able to do so through Royal Caribbean. (See Affidavit of Patrick Schneider ("Schneider Aff.") [D.E. 119-3] at ¶¶ 5-6). Each shore excursion ticket issued by Royal Caribbean also contained a disclaimer:

The arrangements set forth on this ticket for transportation, excursions, ground tours, restaurants or similar activities of services are made solely for the convenience of the ticket holder and are at the ticket holder's risk.... The providers of such services are independent contractors and are not acting as agents or representatives of Royal Caribbean Cruises, Ltd.... no event shall [Royal Caribbean] be liable for any accident or harm to ticket holders, which occurs as a result of any acts, omissions or negligence, of any independent contractors.

(Schneider Aff. at ¶ 7; Shore Excursion Ticket [D.E. 77-9]). Beyond the quoted disclaimers, Royal Caribbean did not give the passengers on the Empress any additional warnings regarding the Shore Excursion. (See Hines Aff. at ¶ 10).

Pelicanos Tours, S.A. ("Pelicanos") is a company located in Cozumel, Mexico, that owned and operated the Shore Excursion. (See Schneider Aff. at ¶ 13). Royal Caribbean had an oral agreement with Pelicanos to provide the Shore Excursion and promoted it onboard the Empress. (See id. at ¶ 15). Royal Caribbean did not provide any of the facilities for the Shore Excursion, and did not own, lease, or maintain any of the dune buggies or equipment used. (See id. at ¶¶ 13-15).

Weiler was one of the passengers who purchased a ticket for the Shore Excursion. (See Hines Aff. at ¶ 9). The participants on the Shore Excursion, including Weiler, were taken from the Empress by shuttle vessel to the dock at Cozumel. (See id. at ¶ 9). Once they arrived at the dock, the passengers walked to Pelicanos' dune buggy rental business which was located approximately one-sixth of a mile inland. (See id. at ¶ 7). None of the Empress' crew accompanied the participants to Pelicanos' rental business. (See id. at ¶ 15). Royal Caribbean did not have any role in hiring any of Pelicanos' employees. (See Schneider Aff. at ¶ 16). Additionally, none of Pelicanos' employees wore Royal Caribbean uniforms or identified themselves as employees of Royal Caribbean. (See id. at ¶ 17).

The Shore Excursion was scheduled for approximately half a day and was intended to cover approximately 20 to 25 miles of driving round trip. (See Hines Aff. at ¶ 14). Weiler rode in one of the dune buggies driven by another Morrell employee. (See Deposition of Wayne A. Ure ("Ure Dep.") [D.E. 102-4] at 56:20-57:4). Approximately halfway through the Shore Excursion, the dune buggy in which Weiler was riding was involved in an accident involving a moped owned by another Cozumel company called JB Rentals, and driven by an individual named Tania Lynn Twito ("Twito"). (See Compl. at ¶ 15). Twito's moped struck the dune buggy in front of the one in which Weiler was riding, causing Weiler's dune buggy to swerve and roll over. (See id.). As a result of the accident, Weiler suffered serious physical injuries which rendered her unable to return to her previous job in sales and marketing at Morrell. (See Ure Dep. at 28:22-29:4).

Weiler subsequently filed a worker's compensation claim for her injuries in Ohio, where she lives. (See Compl. at ¶ 17). Morrell is self-insured for worker's compensation in Ohio. (See id. at 16). Consequently, Morrell has paid approximately $150,000 in medical bills with respect to Weiler's injuries, and an additional $20,000 in temporary disability benefits. (See id. at ¶¶ 18-19).

Morrell filed this action on June 2, 2006, asserting claims for subrogation and/or reimbursement from Royal Caribbean pursuant to Ohio Revised Code Section 4123.93 et seq., to recover all money paid to Weiler with regard to her worker's compensation claim. Morrell's Complaint alleges two causes of action against Royal Caribbean.¹ Morrell's first claim against Royal Caribbean, for negligence, is that Pelicanos, "as an agent of Royal Caribbean, negligently operated the subject dune buggy excursion, resulting in the accident." (Id. at ¶ 25). Morrell's second claim against Royal Caribbean, for negligent supervision, is that Royal Caribbean had "a duty to supervise the activities of Pelicanos to ensure that Pelicanos owned and/or operated the dune buggy excursion with reasonable or due care" (id. at ¶ 34), but "failed to properly supervise Pelicanos' actions...." (Id. at ¶ 35). Royal Caribbean now moves for summary judgment on the grounds that: (1) it is not liable for the alleged negligence of Pelicanos, an independent contractor;² and (2) Morrell cannot satisfy its burden of establishing a prima facie case of negligence or negligent supervision.

II. LEGAL STANDARD

Summary judgment shall be rendered "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 a judgment as a matter of law." Fed.R.Civ.P. 56(c). In making this assessment, the Court "must view all the evidence and all factual inferences reasonably drawn from the evidence in the light most favorable to the nonmoving party." Stewart v. Happy Herman's Cheshire Bridge, Inc., 117 F.3d 1278, 1285 (11th Cir.1997) and "must resolve all reasonable doubts about the facts in favor of the non-movant." United of Omaha Life Ins. Co. v. Sun Life Ins. Co. of Am., 894 F.2d 1555, 1558 (11th Cir.1990).

"By its very terms, this standard provides that the mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) (emphasis in original). "As to materiality, the substantive law will identify which facts are material. Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment. Factual disputes that are irrelevant or unnecessary will not be counted." Id. at 248, 106 S.Ct. 2505. Likewise, a dispute about a material fact is a "genuine" issue "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Id.

"For factual issues to be considered genuine, they must have a real basis in the record ... mere conclusions and unsupported factual allegations are legally insufficient to defeat a summary judgment motion." Ellis v. England, 432 F.3d 1321, 1326 (11th Cir.2005) (citations omitted). The moving party "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 the affidavits, if any, which it believes demonstrate the absence of a genuine issue of material fact." Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d...