Radke v. NCL (Bahamas) Ltd.
| Decision Date | 03 May 2021 |
| Docket Number | Case No. 19-cv-23915-BLOOM/Louis |
| Citation | 536 F.Supp.3d 1313 |
| Parties | Margaret RADKE, Plaintiff, v. NCL (BAHAMAS) LTD., Defendant. |
| Court | U.S. District Court — Southern District of Florida |
Catherine Munch Saylor, Jacob John Munch, Munch and Munch, P.A., Tampa, FL, Patrick Alan Davis, Patrick A. Davis PA, Clearwater, FL, for Plaintiff.
Kassandra Cecilia Doyle Taylor, Richard James McAlpin, McAlpin Conroy, P.A., Todd L. Sussman, Norwegian Cruise Line, Miami, FL, for Defendant.
ORDER ON DEFENDANT'S MOTION FOR PARTIAL SUMMARY JUDGMENT
THIS CAUSE is before the Court upon Defendant NCL Bahamas Ltd.’s ("Defendant") Motion for Partial Summary Judgment and Supporting Memorandum of Law, ECF No. [57] ("Motion"), filed on February 17, 2021. The Court has carefully reviewed the Motion, all opposing and supporting submissions, the record in this case, the applicable law, and is otherwise fully advised. For the reasons set forth below, the Motion is denied.
On September 19, 2019, Plaintiff Margaret Radke ("Plaintiff") initiated the instant action against Defendant for personal injuries she sustained while onboard Defendant's cruise ship, the Norwegian Sky. ECF No. [1]. The Amended Complaint, ECF No. [34] ("Complaint"), alleges that on September 24, 2018, while walking past the elevators on Deck 11 near the Garden Café, Plaintiff slipped and fell on a wet liquid substance, thereby sustaining serious injuries. Id. ¶¶ 7, 9. Plaintiff explains that the floor immediately adjacent to where she was walking was wet due to "recent mopping, a spill or leak" and further states that, at the time of her fall, "there were no warning signs to alert passengers (including the plaintiff) that the floor was wet and a hazard for slipping." Id. ¶ 7. Based on these allegations, the Complaint asserts two counts against Defendant based upon negligence (Count I) and failure to warn (Count II). See generally id.
Regarding the instant Motion, ECF No. [57], Defendant has filed its corresponding Statement of Material Facts in Support of its Motion, ECF No. [56] ("Defendant's SMF"). Plaintiff filed a Response, ECF No. [77] ("Plaintiff's MSJ Response"), together with her Response to Defendant's SMF, ECF No. [76] ("Plaintiff's SMF Response"). Finally, Defendant filed a Reply in support of its Motion, ECF No. [83] ("Defendant's MSJ Reply"), and a Reply Statement of Material Facts, ECF No. [82] ("Defendant's SMF Reply").
Based upon the parties’ respective statements of material facts in support of and in opposition to the Motion, along with the evidence in the record, the following facts are not genuinely in dispute unless otherwise noted.
Plaintiff was a lawfully paying passenger onboard the Norwegian Sky. ECF Nos. [56] ¶ 1 and [76] ¶ 1. On September 24, 2018, Plaintiff woke up from bed at approximately 2:00 a.m., packed her belongings, and then proceeded to the casino onboard the cruise ship. ECF No. [76-1] at 80:20-81:14. Plaintiff left the casino at approximately 4:00 a.m. Id. at 81:10-19. Upon leaving the casino, Plaintiff returned to her room, and then left shortly thereafter to get coffee from the all-night buffet. Id. at 83:2-7.
At approximately 4:19 a.m., Plaintiff was walking past the rear elevators near the Garden Café on Deck 11, when she stopped to observe an altercation amongst passengers. Id. at 89:17-91:8; see also ECF No. [69-1] at 4:19:40-4:23:8.1 The CCTV footage depicts the altercation near the elevators, along with the walkway near the doorway to the galley for the Longboard Bar and Great Outdoor restaurants—i.e., the walkway where Plaintiff would later fall. See generally ECF No. [69-1]. The CCTV footage shows, in pertinent part, a crewmember holding a mop and observing the altercation, a yellow trifold caution positioned across from the crewmember, and a towel placed on the floor and along the galley door. Id. at 4:20:58-4:23:08. At approximately 4:23 a.m., Plaintiff left the scene of the altercation, and walked past the subject incident area. Id. at 4:23:00-4:23:09; see also ECF No. [76-1] at 89:17-25. Plaintiff testified that she saw the crewmember mopping the area and the caution sign. ECF No. [76-1] at 92:5-9, 97:23.
Plaintiff walked away for approximately ten minutes before returning to the subject area. Id. at 91:18-24; see also ECF No. [69-1] at 4:23:09-4:33:58. During that time, a crewmember moved the caution sign from its original position near the doorway to the carpeted area near the elevators, and the towel that was placed along the base of the galley doorway was pushed off to the corner of the door. ECF No. [69-1] at 4:27:12-4:27:53. The CCTV footage also depicts crewmembers walking in and out of the galley and through the subject area wearing rubber boots, rolling trays, or carrying items such as a bucket and a broom. Id. at 4:24:41-4:30:32.
At approximately 4:33 a.m., Plaintiff returned to the subject area and slipped and fell on a liquid substance adjacent to the door to the galley. ECF No. [69-1] at 4:33:58; see also ECF No. [76-1] at 96:7-97:6. Plaintiff testified that the liquid appeared to be water and had no odor. ECF No. [76-1] at 96:16-97:6. Plaintiff also explained that the water may have come from a "drink [that was] thrown" or from crewmembers "swabbing the deck." Id. 97:2-6. Immediately prior to her incident, Plaintiff did not see any warning signs or crewmembers mopping the area. Id. at 96:7-15, 97:15-23. Additionally, Plaintiff could not recall whether the she noticed the liquid substance on the floor, id. at 96:7-15, nor whether anyone advised her that the area was wet, id. at 112:3-113:14.
According to Defendant, although the original caution sign was moved from the subject incident area, a second caution sign was also present just outside the CCTV footage, which Plaintiff would have passed by prior to her fall. ECF No. [56] ¶ 16. In support of its position, Defendant points to a photograph taken approximately sixteen hours after Plaintiff's incident, which demonstrates where the caution sign "is regularly set up and where it would have been placed at the time of Plaintiff's incident." Id. ¶ 18, n.2; see also ECF Nos. [56-7] and [62-1] at 20:23-21:11, 57:2-60:4, 92:2-15. Additionally, Defendant's corporate representative testified that caution signs are placed in the subject area as a "precautionary measure" due to the "high traffic" nature of the location. ECF No. [62-1] at 20:23-21:11.
Plaintiff disputes that a second caution sign was present in the subject area at the time of her incident. ECF No. [76-1] at 97:15-23. Despite walking through the subject area multiple times while on the cruise ship, including at least ten minutes prior to her fall, Plaintiff maintains that the condition of the floor changed from her prior visits, and that Defendant did not provide adequate warning that the floor was wet. Id. at 91:18-93:8, 97:15-23. Plaintiff also highlights that the CCTV footage shows three passengers slipping near the subject area prior to her fall. ECF No. [69-1] at 4:15:33, 4:22:49, 4:31:15. Defendant objects to Plaintiff's characterization that these individuals "slipped" and argues that they either lost balance or stopped short. ECF No. [82] ¶ 27(a); see also ECF No. [62-1] at 76:1-7, 80:16-81-11, 87:1-88:22.
Defendant now moves for partial summary judgment, arguing that the wet floor was open and obvious. Alternatively, Defendant maintains that it satisfied its duty to warn by placing caution signs in the area of Plaintiff's fall.
A court may grant a motion for 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). The parties may support their positions by citations to materials in the record, including, among other things, depositions, documents, affidavits, or declarations. See Fed. R. Civ. P. 56(c). An issue is genuine if "a reasonable trier of fact could return judgment for the non-moving party." Miccosukee Tribe of Indians of Fla. v. United States , 516 F.3d 1235, 1243 (11th Cir. 2008) (quoting Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 247-48, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) ). A fact is material if it "might affect the outcome of the suit under the governing law." Id. (quoting Anderson , 477 U.S. at 247-48, 106 S.Ct. 2505 ).
A court views the facts in the light most favorable to the non-moving party, draws "all reasonable inferences in favor of the nonmovant and may not weigh evidence or make credibility determinations, which ‘are jury functions, not those of a judge.’ " Lewis v. City of Union City, Ga. , 934 F.3d 1169, 1179 (11th Cir. 2019) ); see also Crocker v. Beatty , 886 F.3d 1132, 1134 (11th Cir. 2018) (). "The mere existence of a scintilla of evidence in support of the [non-moving party's] position will be insufficient; there must be evidence on which a jury could reasonably find for the [non-moving party]." Anderson , 477 U.S. at 252, 106 S.Ct. 2505. "If more than one inference could be construed from the facts by a reasonable fact finder, and that inference introduces a genuine issue of material fact, then the district court should not grant summary judgment." Bannum, Inc. v. City of Fort Lauderdale , 901 F.2d 989, 996 (11th Cir. 1990). The Court does not weigh conflicting evidence. See Skop v. City of Atlanta, Ga. , 485 F.3d 1130, 1140 (11th Cir. 2007) (quoting Carlin Comm'n, Inc. v. S. Bell Tel. & Tel. Co. , 802 F.2d 1352, 1356 (11th Cir. 1986) ).
Initially, the moving party bears the "responsibility of informing the ... court of the basis for its motion, and identifying those portions of ‘the pleadings, depositions, answers to interrogatories, and...
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