Tesoriero v. Carnival Corp.

• Decision Date: 14 July 2020
• Docket Number: No. 18-11638,18-11638
• Citation: 965 F.3d 1170
• Parties: Irina TESORIERO, Plaintiff-Appellant, v. CARNIVAL CORPORATION, d.b.a. Carnival Cruise Line, Defendant-Appellee.
• Court: U.S. Court of Appeals — Eleventh Circuit

965 F.3d 1170

Irina TESORIERO, Plaintiff-Appellant,

v.CARNIVAL CORPORATION, d.b.a. Carnival Cruise Line, Defendant-Appellee.

No. 18-11638

United States Court of Appeals, Eleventh Circuit.

July 14, 2020

Elizabeth Letitia Bryan, John H. Hickey, Christopher Bond Smith, Hickey Law Firm, PA, Miami, FL, Paulo R. Lima, Elizabeth Koebel Russo, Russo Appellate Firm, PA, Miami, FL, for Plaintiff-Appellant.

Cameron Wayne Eubanks, Curtis J. Mase, Caroline Leigh Milewski, Royal Caribbean Cruises, Ltd., Miami, FL, John Michael Magee, Carnival Corporation, Doral, FL, for Defendant-Appellee.

Before ROSENBAUM, GRANT, and HULL, Circuit Judges.

GRANT, Circuit Judge:

When Irina Tesoriero sat on the vanity chair in her Carnival Cruise ship cabin, she was in for a terrible surprise—it collapsed. While she and her husband waited for help to arrive, they saw that a leg had fallen off the chair. Observing no other outward defects, they took some photos of the pegs that normally held the chair together, which became visible only after the chair broke. Still waiting for help, they let in a steward who came to replace the broken chair with a fresh one. Finally, the Tesorieros took matters into their own hands and went directly to the onboard medical center; there, they were told that Tesoriero's arm was not broken, and an x-ray was taken to be sure. The onboard doctor treated her with Tylenol

, ice, and a sling and sent the couple on their way.

Understandably frustrated that her injury continued to bother her, Tesoriero sought treatment at home after the cruise. Still no broken arm, but she was suffering from a terrible case of medial epicondylitis

and ulnar neurapraxia—a diagnosis Tesoriero describes as tennis elbow. Tesoriero was also understandably frustrated with Carnival, and filed suit against the cruise line, alleging that it had failed to inspect and maintain the cabin furniture (or else warn her of the danger the chair posed). Perhaps aware of the difficulty she may have in showing that Carnival had notice about the chair's dangers (especially given the photos suggesting no outward defects), she fought the usual notice requirement on two fronts: first, she alleged that res ipsa loquitur applied and meant that she did not need to show notice, and second, she claimed that Carnival should be sanctioned with an adverse inference on notice because it failed to preserve the broken chair.

The district court granted summary judgment in favor of Carnival. The court found that the cruise line did not have notice that the chair was dangerous, that res ipsa loquitur did not apply, and that the failure to save the chair was not sanctionable. Tesoriero now appeals those three conclusions. After careful review, we agree with the district court that Tesoriero failed to show that Carnival had actual or constructive notice that the chair was broken. Unlike the district court, we decline to consider whether res ipsa loquitur applies; even if it does, that doctrine cannot cure a defect in notice. Nor can the requested spoliation sanctions; even setting aside whether we think the chair itself could have provided any evidence of notice, Carnival's failure to preserve the chair was not shown to be in bad faith and is therefore not sanctionable. For all those reasons, we affirm.

I.

On June 26, 2015, Irina Tesoriero was getting ready for dinner in her cabin aboard the Carnival Splendor . She pulled a wooden chair "about a foot" away from the vanity and attempted to sit down, but it collapsed beneath her. Her right collarbone struck the vanity and her right arm was injured; initially, she believed that her arm was broken. Her husband, Joseph Tesoriero, witnessed the incident and called the front desk for help.

While waiting for help to arrive, Joseph inspected and photographed the chair. He saw that it "did not have any obvious or observable outward defects" before it broke. He also saw that the right front leg, which had been attached to the seat by pegs, had fallen off, and that the glue on the pegs was dried and chipped. In his opinion, it "was obvious from the appearance of the pegs—visible only after it fell apart—that the pegs had been unglued and loose for a long time." A steward came to the cabin, took away the broken chair, and replaced it with a new one. The chair was later disposed of by an unknown crew member because it could not be fixed.

Tesoriero and her husband waited around for medical staff, and went to the onboard medical center when in-cabin aid was not forthcoming. Tesoriero was then examined by a physician, who told her (correctly, as it turns out) that she did not have a fracture and gave her Tylenol

, ice, and an arm sling. Although an x-ray was taken, it was sent to Miami for review because it could not be read on the ship. While at the medical center, Joseph Tesoriero completed a "passenger injury statement" on his wife's behalf. The statement collected basic information, including the time, date, and location of the incident.

In accordance with Carnival's policy, because Tesoriero's injury only required first aid—and because she did not request an accident report—the medical staff classified the accident as "non-reportable." That meant that the security department, which is responsible for investigating accidents and, when necessary, preserving evidence, was asked to do neither. The room stewards, on the other hand, dispose of broken furniture that cannot be repaired and only preserve it if asked to do so. That general policy was followed here, so the chair was not preserved.

After Tesoriero disembarked, she received confirmation that her x-ray results did not show a broken arm. But the arm was not ready to make peace, and Tesoriero continued to experience pain and swelling. She was ultimately diagnosed with medial epicondylitis

and ulnar neurapraxia, which she described as "tennis elbow." Tesoriero struggled to get her arm back to full strength, undergoing injections, therapy, and surgery, apparently with little success; she says that she continued to require medical treatment into this litigation, and that she struggles with basic tasks like cooking, taking out the garbage, and carrying groceries.

A little less than a year after the cruise, Tesoriero filed a complaint against Carnival in the Southern District of Florida, asserting a single claim of negligence based on Carnival's alleged failure to inspect and maintain the cabin furniture and failure to warn passengers of the unsafe condition. Both parties moved for summary judgment. For its part, Carnival invoked a familiar defense, arguing that it was not responsible for Tesoriero's injury because it had neither actual nor constructive knowledge that the chair was unsafe prior to the incident.

During discovery, Tesoriero deposed the housekeeping manager who was aboard the ship at the time of the accident. The manager testified that stewards cleaned the cabins daily and were responsible for inspecting the cabin furniture. He explained that that process involved physical movement of the chairs in the course of vacuuming, as well as visual inspection of the entire cabin, including the furniture, for signs of damage. Damaged furniture was reported to a floor supervisor, who was tasked with making a record of the problem and addressing it. When repairs were possible, they were made, and when repairs were not possible, the items were disposed of.

Tesoriero's arguments—considering both her response to Carnival's motion and her own motion for summary judgment—were threefold. First , she said that the condition of the chair, coupled with Carnival's regular inspections of the cabin furniture, was enough to constitute constructive notice of the dangerous condition.¹ Second , she contended that the doctrine of res ipsa loquitur applied and eliminated the need for her to show that Carnival had notice in any event. Finally , she argued that Carnival's disposal of the broken chair amounted to spoliation of evidence and entitled her to an inference that Carnival had notice of the risk-creating condition.

A magistrate judge issued a report and recommendation on the competing motions. He said that the evidence demonstrated that "no reasonable inspection could have discovered the dangerous condition without first deconstructing the cabin chair." As to the res ipsa loquitur issue, the magistrate first concluded that the doctrine, if applicable, would indeed absolve Tesoriero of any need to show that Carnival had actual or constructive notice of the dangerous condition. Ultimately though, he decided that the doctrine did not apply because a collapsing chair can easily happen even without negligence. Finally, the magistrate declined to sanction Carnival for spoliation of evidence, seeing no evidence that Carnival reasonably anticipated litigation following the accident.

Over Tesoriero's objections, the district court affirmed and adopted the magistrate judge's report and recommendation and granted Carnival summary judgment. In adopting the recommendation, the court specifically ruled that res ipsa loquitur did not apply and that the facts surrounding the disposal of the broken chair did "not amount to spoliation such that an adverse inference is warranted." Tesoriero appealed.

II.

"We review a district court's grant of summary judgment de novo . Summary judgment is appropriate only when no genuine issue of material fact exists and the moving party is entitled to judgment as a matter of law." Lewis v. City of Union City , 918 F.3d 1213, 1220 n.4 (11th Cir. 2019) (en banc) (internal citation omitted). We view "the evidence and all reasonable inferences drawn from it in the light most favorable to the nonmoving party." Hornsby-Culpepper v. Ware , 906 F.3d 1302, 1311 (11th Cir. 2018). "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." Id. (quotation marks and citation omitted). "We review the district court's decision...