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May 13, 2016 by admin

Torts — Negligence — Passenger on recreational voyage aboard ship who was struck by falling bunk bed is entitled to partial summary judgment as to liability, where there are no genuine disputes as to any material fact regarding breach of duty of care, causation of injury, or notice of dangerous condition

26 Fla. L. Weekly Fed. D17aTop of Form

Torts
— Negligence — Passenger on recreational voyage aboard ship who was struck by
falling bunk bed is entitled to partial summary judgment as to liability, where
there are no genuine disputes as to any material fact regarding breach of duty
of care, causation of injury, or notice of dangerous condition — Duty of care
— There can be liability for negligence when the absence of a precautionary
measure creates an unreasonable risk, and plaintiff adequately established that
failure of defendant’s employee to replace a pin installed to stabilize the
bunk bed, knowing it was missing, was unreasonable — Causation — Plaintiff
adequately established with reference to record evidence that absence of pin
was cause of the fall — Mere insinuation, without citation to record evidence,
that something other than missing pin caused bed to fall does not create an
issue of disputed material fact as to causation — Notice — To require
plaintiff, as a prerequisite to imposing liability, to demonstrate that cruise
operator had actual or constructive notice of an unsafe condition which cruise
operator created would lead to absurd result — Even if there were notice
requirement, six other passengers reported bunks falling on same ship

SAMIHA JABER, Plaintiff, v. NCL (BAHAMAS) LTD. d/b/a NCL,
Defendant. U.S. District Court, Southern District of Florida. Case No.
1:14-cv-20158-KING. March 2, 2016. James Lawrence King, Judge. Counsel: Ben
Murphey, Lawlor White & Murphey, LLP, Ft. Lauderdale; and Glenn Holzberg,
Holzberg Legal, Miami, for Plaintiff. Jerry Hamilton and Robert Oldershaw,
Hamilton Miller & Birthisel, LLP, Miami, for Defendant.

ORDER
GRANTING PLAINTIFF’S MOTION FOR

PARTIAL
SUMMARY JUDGMENT AND DENYING

DEFENDANT’S MOTION FOR SUMMARY JUDGMENT

THIS CAUSE comes before the Court upon cross motions for
summary judgment: Plaintiff SAMIHA JABER’s Motion for Partial Summary Judgment
(DE 79), filed on January 18, 2016, and Defendant NCL (BAHAMAS) LTD.’s Motion
for Summary Judgment (DE 81), filed on January 25, 2016. Plaintiff has moved
for partial summary judgment as to liability. Defendant has moved for
dismissal. The motions are fully briefed.

BACKGROUND

The undisputed material facts are as follows. The bunk beds
on Defendant’s ship, the Norwegian Star, were held up by a hydraulic
support system that would loosen over time and cause the beds to no longer
remain secure and upright. When the hydraulic support systems loosened,
Defendant’s policy was to have its carpenters drill a hole and insert a
stabilizing pin.

While on a recreational voyage aboard the Norwegian Star,
Plaintiff’s bunk bed fell open and struck her in the head.1 Defendant had installed the pinhole
mechanism in Plaintiff’s bunk. In the days prior to the accident, the steward
responsible for attending to Plaintiff’s cabin noticed that the pin was
missing. After the accident, the steward inspected the bunk and noticed that
the pin was still missing.

Defendant argues that Plaintiff has failed to meet its burden
on three grounds: (1) breach of a duty of care; (2) causation of injury; (3)
notice of the dangerous condition. Plaintiff claims that it has met its burden
as to liability and requests a trial on damages.

LEGAL
STANDARD

“The Court shall grant 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). A party
asserting that a fact cannot be or is genuinely disputed must support the assertion
by “citing to particular parts of materials in the record, including
depositions, documents, electronically stored information, affidavits or
declarations, stipulations (including those made for purposes of the motion
only, admissions, interrogatory answers or other materials; or showing that
materials cited do not establish the absence or presence of a genuine dispute,
or that an adverse party cannot produce admissible evidence to support the
fact.” Id. at 56(c)(1). “In determining whether summary judgment is
appropriate, the facts and inferences from the facts are viewed in the light
most favorable to the non-moving party, and the burden is placed on the moving
party to establish both the absence of a genuine material fact and that it is
entitled to judgment as a matter of law.” Matsushita Elec. Indus. Co. v.
Zenith Radio Corp.,
475 U.S. 574, 586-87 (1986).

In opposing a motion for summary judgment, the non-moving
party may not rely solely on the pleadings, but must show by affidavits,
depositions, answers to interrogatories, and admissions that specific facts
exist demonstrating a genuine issue for trial. See Fed. R. Civ. P.
56(c), (e); see also Celotex Corp. v. Catrett, 477 U.S. 317, 323-24
(1986). Further, the existence of a “scintilla” of evidence in support of the
non-movant’s position is insufficient; there must be evidence on which the jury
could reasonably find for the nonmovant. Andersen v. Liberty Lobby, Inc., 477
U.S. 242, 252 (1986). Likewise, a court need not permit a case to go to a jury
when the inferences that are drawn from the evidence, and upon which the
non-movant relies, are “implausible.” Matsushita, 475 U.S. at 592-94; Mize
v. Jefferson City Bd. Of Educ.,
93 F.3d 739, 743 (11th Cir. 1996).

At the summary judgment stage, the judge’s function 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, 477 U.S. at 249.
In making this determination, the Court must decide which issues are material.
A material fact is one that might affect the outcome of the case. Id. at
248. “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. The
Court must also determine whether the dispute about a material fact is indeed
genuine, that is, “if the evidence is such that a reasonable jury could return
a verdict for the nonmoving party.” Id.; see, e.g., Marine Coatings of Ala.,
Inc. v. United States,
932 F.2d 1370, 1375 (11th Cir. 1991).

DISCUSSION

I. No genuine dispute as to any material fact regarding
breach of duty of care

Defendant claims that there is no evidence that it breached
a duty of care because the evidence shows that it routinely inspected the bunk,
this particular bunk had not fallen open yet during this particular voyage, and
the missing pin was just a gratuitous precautionary measure. However, there can
be liability for negligence when the absence of a precautionary measure creates
an unreasonable risk. Plaintiff cites to deposition testimony which shows that
Defendant’s employees responsible for maintaining the bunk were aware of the
need for a pin to stabilize it and that the pin was missing. Plaintiff has
adequately established that the failure of Defendant’s employee to replace the
pin, knowing it was missing, was unreasonable.

II. No genuine dispute as to any material fact regarding
causation of injury

Defendant argues that Plaintiff has not definitively proved
that the missing pin was the cause of the bunk’s collapse. However, Defendant
admits that the pin was put in place to keep the bed upright and, without the
pin, it fell on Plaintiff’s head. The steward responsible for maintaining the bunk
bed tacitly concedes that missing pin caused it to fall:

Q:
But if it hit her in the head clearly it wasn’t holding?

A:
Yes sir.

DE 84-1 at 37. The mere insinuation, without citation to
record evidence, that something other than the missing pin caused the bed to
fall does not create an issue of disputed material fact as to causation.
Plaintiff has adequately established with reference to record evidence that the
absence of the pin was the cause of the fall.

III. No genuine dispute as to any material fact regarding
notice

Finally, Defendant argues that it had no notice and could
not have known of the dangerous condition of the bunk because none of the
ship’s other falling bunks were located in Plaintiff’s cabin. As previous
courts have recognized in analogous situations, to require Plaintiff, as a
prerequisite to imposing liability, to demonstrate that the cruise operator had
actual or constructive notice of an unsafe condition which the cruise operator
created would lead to an absurd result.2 See Rockey v. Royal Caribbean
Cruises, Ltd.,
No. 99-CIV-708-GOLD, 2001 WL 420993, at *3 (S.D. Fla. Feb.
20, 2001).

Therefore, it is ORDERED, ADJUDGED, and DECREED that
Plaintiff’s Motion for Partial Summary Judgment (DE 79) be, and the same is,
hereby GRANTED as to liability, and Defendant’s Motion for Summary Judgment (DE
81) be, and the same is, hereby DENIED. The trial scheduled on the two-week
calendar commencing March 21, 2016, at 9:00 a.m., be, and the same is, hereby
CANCELLED and RESCHEDULED for the two-week calendar commencing April 18, 2016
at 9:00 a.m., at the at the James Lawrence King Federal Justice Building, 99
N.E. 4th Street, Eleventh Floor, Courtroom #2, Miami Florida.

__________________

1In past voyages, six other
passengers on the Norwegian Star had reported being struck by falling
bunk beds.

2However, even if there were a notice
requirement, six other passengers reported bunks falling on the same ship.
Defendant did not need to be on notice that the specific bunk bed was
faulty. Defendant’s arguments regarding the absence of a duty to warn fail for
the same reasons.

* *
*

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