
    Allison MCCLANAHAN, Plaintiff, v. NCL (BAHAMAS) LTD., a Bermuda company, d/b/a Norwegian Cruise Line, Defendant.
    CASE NO.: 15-24042-CIV-OTAZO-REYES
    United States District Court, S.D. Florida.
    Signed December 4, 2017.
    
      Andrew L. Waks, Waks & Barnett PA, Miami, FL, for Plaintiff. •
    Geoffrey Edward Probst, Norwegian Cruise Lines Inc., Richard James McAlpin, Walter Cooper Jarnagin, McAlpin & Con-roy P.A., Miami, FL, for Defendant.
   CONSENT CASE

ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT

ALICIA M. OTAZO-REYES, UNITED STATES MAGISTRATE JUDGE

THIS CAUSE came before the Court upon Defendant NCL (Bahamas) Ltd’s (“Defendant” or “NCL”) Motion for Summary Judgment [D.E. 42]. For the reasons stated below, the Court GRANTS Defendant’s Motion for Summary Judgment.

PROCEDURAL AND FACTUAL BACKGROUND

Plaintiff Allison McClanahan (“Plaintiff”) brings a negligence claim against NCL, alleging - that she sustained damages' on September 6, 2014 during a cruise aboard the Norwegian Star. See Compl. [D.E. 1 at 2]. Plaintiff alleges that she tripped and fell while walking down the steps of the ship’s Stardust .Theater and that, as a result, she sustained severe injuries to her left ankle. Id.

APPLICABLE LAW

I. Summary Judgment Standard

Under Federal Rule of Civil Procedure 56, “[t]he 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 inatter of law.” Fed. R. Civ. P. 56(a). When determining whether a genuine issue of material fact exists, courts “view all evidence and draw all reasonable inferences in favor of the non-moving party.” Smith v. Royal Caribbean Cruises, Ltd., 620 Fed.Appx. 727, 729 (11th Cir. 2015). Wet, the existence of some factual disputes between litigants will not defeat an otherwise properly grounded summary judgment motion; ‘the requirement is that there be no genuine issue of- material fact.’ ” Weiner v. Carnival Cruise Lines, No. ll-CV-22516, 2012 WL 5199604, at *2 (S.D. Fla. Oct. 22, 2012) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)). Indeed,

[t]he plain language of [Rule 56] mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party’s case, and on which that party will bear the burden of proof at trial. In such a situation, there can be no genuine issue as to any material fact, since a complete, failure of proof concerning an essential element of the non-moving party’s case necessarily renders all other facts immaterial.

Cohen v. Carnival Corp., 945 F.Supp.2d 1351, 1354 (S.D. Fla. 2013) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986)). Hence, the mere existence of a scintilla of evidence in support of the non-moving party’s position is insufficient; there must be evidence upon which a jury could reasonably find for the non-movant. Anderson, 477 U.S. at 251, 106 S.Ct. 2505.

II. Negligence Action

“A carrier by sea does not serve as an insurer to its passengers; it is liable only for its negligence.” Weiner, 2012 WL 5199604, at *2. To prove a claim for negligence, the plaintiff must, establish: “(1) that defendant owed plaintiff a duty; (2) that defendant breached that duty; (3) that this breach was the proximate cause of plaintiffs injury; and (4) that plaintiff suffered damages.” Isbell v. Carnival Corp., 462 F.Supp.2d 1232, 1236 (S.D. Fla. 2006). As the incident upon which this action is based “occurred aboard a cruise ship, these elements must be evaluated by reference to federal maritime law.” Weiner, 2012 WL 5199604, at *2.

“It is a settled principle of maritime law that a shipowner owes passengers the duty of exercising reasonable care under the circumstances.” Isbell, 462 F.Supp.2d at 1237 (citing Kermarec v. Compagnie Generale Transatlantique, 358 U.S. 625, 632, 79 S.Ct. 406, 3 L.Ed.2d 550 (1959)). This standard of care “requires, as a prerequisite to imposing liability, that the carrier have had actual or constructive notice of the risk-creating condition.” Keefe v. Bahama Cruise Line, Inc., 867 F.2d 1318, 1322 (11th Cir. 1989). Actual notice exists when the defendant knows of the risk-creating condition. Id. (“[Defendant’s] liability thus hinges on whether it knew ... about the treacherous wet spot.”). “Constructive notice arises when a dangerous condition has existed for such a period of time that the shipowner must have known the condition was present and thus would have been invited to correct it.” Bencomo v. Costa Crociere S.P.A. Co., No. 10-62437-CIV-DIMITROULEAS/SNOW, 2011 WL 13175217, at *2, 2011 U.S. Dist. LEXIS 157138, at *7 (S.D. Fla. Nov. 10, 2011), aff'd, 476 Fed.Appx. 232 (11th Cir. 2012).

“But federal courts need not even reach the defendant’s actual or constructive notice of a risk-creating condition if they determine that condition was an open and obvious danger. The duty to warn in the maritime tort context extends to only known dangers which are not apparent and obvious.” Smith, 620 Fed.Appx. at 730. “Open and obvious conditions are those that should be obvious by the ordinary use of one’s senses.” Lugo v. Carnival Corp., 154 F.Supp.3d 1341, 1345-46 (S.D. Fla. 2015). “Whether a danger is open and obvious is determined from an objective, not subjective, point of view.” Taiariol v. MSC Crociere, S.A, No. 15-cv-61131-KMM, 2016 WL 1428942, at *3 (S.D. Fla. Apr. 12, 2016).

UNDISPUTED MATERIAL FACTS

1. Plaintiff boarded the Norwegian Star in Copenhagen, Denmark, on September 4, 2014, for a nine (9) day Baltic Capitals cruise with her mother, Nancy Mikan, and her sister, Amy Barrett,

2. On the second full day of the cruise, Plaintiff walked along a walking path and had lunch by the pool. That night, Plaintiff ate dinner onboard the ship and either shared a bottle of wine or had a drink with her mother and sister. They then walked to the Stardust Theater to see a show.

3. Plaintiff has experience descending steps inside theaters from going to various shows and events in her hometown of Houston, Texas.

5. Once inside the theater, Plaintiff did not have any trouble observing the floor change from a flat surface to a flight of stairs.

6. The subject stairway in the theater is made up of a series of steps, consisting of one step between two landing areas. The landing areas are covered by carpet with a gold spiral pattern. The steps in between the landing areas are covered by carpet with a black trellis pattern. The last three landings at the bottom do not have a step in between them.

7. There is a black strip at the nose of each step and landing, and each black strip contains a string of rope light that illuminates the edges of both the steps and the landings.

8. The show had not yet started when Plaintiff, her mother, and sister entered the right side of the theater. Plaintiffs mother descended the theater steps first to find a seat, followed by Plaintiff, then Plaintiffs sister. Plaintiff observed her mother walking down the steps. Plaintiffs mother did not have any difficulty walking down the steps.

9. There were people on the steps and being seated as the show was beginning.

10. Prior to descending the theater steps, Plaintiff observed there were no handrails. To Plaintiff, it was “obvious” that there were no handrails in the theater because her mother is older and generally holds on to things. Plaintiff felt she could safely descend the stairs without a handrail. She did not ask for any assistance when she realized there was no handrail. She did not offer her mother any assistance to get down the steps.

11. Plaintiffs mother chose a seat in the second row from the stage.

12. Plaintiff walked down the steps from the top of the theater about three-fourths of the way down to the front of the stage before she fell.

13. Plaintiff believes she simply missed the step. She believes she missed the step because of the lighting, the pattern of the steps, and the lack of handrails.

14. Prior to falling, Plaintiff had traversed the steps in the long step, short step pattern without any trouble, and did not encounter any.other steps that she had difficulty judging or identifying.

15. Plaintiff did not observe anything physically wrong with the lighting strip on the step she fell on other than some of the internal bulbs being burned out.

16. Plaintiff did-not come into contact with anyone prior to her fall.

17. Plaintiff knew the lighting was dim as she was descending the stairs to get to her seat. She knew from her prior experience in theaters that lighting is typically dimmed before a show begins. Plaintiff did not take any additional precautions due to the dimmed lighting.

18. There is no evidence of any substantially similar incidents that occurred prior to Plaintiffs fall.

19. The day after the accident, Plaintiffs sister, Amy Barrett, went back to the theater. She took pictures of the steps showing the different sizes of the steps and the lights, which were out on the steps where Plaintiff fell.

DISCUSSION

Plaintiff contends that her fall was due to inadequate lighting; the long and short pattern of the steps; and the lack of crew member assistance given these conditions and the absence of handrails. Initially, the Court notes that the testimony of Plaintiffs expert Marc Wilson (“Wilson”) has been excluded for failure to comply with the Daubert requirements. See Order Granting Defendant’s Daubert Motion [D.E. 78]. Therefore, Plaintiff may not rely on Wilson’s expert testimony to establish that any of these alleged causes of her fall constitute a dangerous condition.

Moreover, with regard to lighting, Defendant argues that the dim lighting at the Stardust Theater was an open and obvious condition. It is undisputed that Plaintiff knew the lighting was dim as she was descending the stairs to get to her seat; that she knew from her prior experience in theaters that lighting is' typically dimmed before a show begins; and that she did not take any additional precautions due to the dimmed lighting. Therefore, whether viewed objectively or subjectively, the dim lighting at the Stardust Theater was an open and obvious condition. Given this conclusion, the Court need not reach the issue of Defendant’s actual or constructive notice of a risk-creating condition arising from the dim lighting. Smith, 620 Fed.Appx, at 730.

With regard to the long and short pattern of steps, it is undisputed that there is no evidence of actual or constructive notice of a risk-creating condition. Plaintiff has no expert testimony that the step pattern violates any safety standards. There is no evidence of any substantially similar incidents that occurred prior to Plaintiffs fall to establish that Defendant had constructive notice of a dangerous condition. See Bencomo, 2011 WL 13175217, at *2, 2011 U.S. Dist. LEXIS 157138, at *7 (“Constructive notice arises when a dangerous condition has existed for such a period of time that ‘the shipowner must have known the condition was present and thus would have been invited to correct it.”).

Plaintiff fares no better with her claim of lack of crew- assistance given these conditions and the absence of handrails. It is undisputed that Plaintiff did not ask for any assistance when she realized there was no handrail. It is also undisputed that Plaintiff walked down the steps from the top of the theater about three-fourths of the way down to the front of the stage before she fell, without, assistance from the crew.

Having considered and rejected all three of Plaintiffs alleged dangerous conditions as a basis for her negligence- claim, the Court concludes that Defendant is entitled to judgment as a matter of law.

CONCLUSION

Based on the foregoing considerations, it is

ORDERED AND ADJUDGED that Defendant’s Motion for Summary Judgment [D.E. 42] is GRANTED. In accordance with Fed. R. Civ. P. 58, the Court will enter judgment in favor of Defendant and against Plaintiff'by separate order.

DONE AND ORDERED in Chambers at Miami, Florida, this # day of December, 2017. ■  