UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA CASE NO CIV-LENARD/GOODMAN

Transcription

1 Case 1:13-cv JAL Document 62 Entered on FLSD Docket 04/10/2015 Page 1 of 18 CREODA MILLS, v. Plaintiff, NCL (BAHAMAS) LTD., Defendant. / UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA CASE NO CIV-LENARD/GOODMAN ORDER GRANTING DEFENDANT S MOTION FOR SUMMARY JUDGMENT (D.E. 42) THIS CAUSE is before the Court on Defendant NCL (Bahamas), Ltd. s ( Defendant ) Motion for Summary Judgment, filed January 20, ( Motion, D.E. 42.) Defendant s Statement of Material Facts Not in Dispute is incorporated into its Motion. (Id. at 2-5.) Plaintiff, Creoda Mills, filed a Response (D.E. 44) and Statement of Material Facts (D.E. 45) on February 3, 2015, to which Defendant filed a Reply on February 11, 2015 ( Reply, D.E. 47). As an initial matter, Defendant argues that its Statement of Facts should be deemed admitted due to Plaintiff s non-compliance with Local Rule 56.1 and this Court s Order of January 21, (Reply at 1-2.) Local Rule 56.1 requires a motion for summary judgment to be accompanied by a statement of material facts as to which it is contended that there does not exist a genuine issue to be tried consisting of separately numbered paragraphs. S.D. Fla. L.R. 56.1(a)(3). Statements of material facts 1

2 Case 1:13-cv JAL Document 62 Entered on FLSD Docket 04/10/2015 Page 2 of 18 submitted in opposition to a motion for summary judgment shall correspond with the order and with the paragraph numbering scheme used by the movant[.] S.D. Fla. L.R. 56.1(a). All material facts set forth in the movant s statement filed and supported as required above will be deemed admitted unless controverted by the opposing party s statement, provided that the Court finds that the movant s statement is supported by evidence in the record. S.D. Fla. L.R. 56.1(b). On January 21, 2015, the Court issued its Twenty-One Day Notice of Consideration of Motion for Summary Judgment. ( January 21 Order, D.E. 43.) Therein, the Court echoed the Local Rules, ordering that [a]ll material facts set forth in the moving party s statement of material facts that are not specifically controverted by the statement of the opposing party s will be deemed admitted. (Id. 3 (citing old S.D. Fla. L.R. 7.5(D)).) 1 The January 21 Order continues: Accordingly, in order to ensure the fair application of Local Rule [56.1(b)] and to guarantee that no fact is deemed admitted without the opposing party s intention to do so, the opposing party is hereby instructed to file a Statement of Material Facts in Dispute that satisfies the following requirements. First, the Statement should correspond, on a paragraph by paragraph basis, with the moving party s statement of undisputed material facts. Specifically, the opposing party shall state, for each of the moving party s numbered paragraphs, whether the facts alleged therein are disputed or undisputed. Second, if a fact is identified as disputed, the opposing party shall cite to the record in support hereof, e.g. to specific depositions, interrogatory answers, admissions, affidavits, or other evidence on file with the Court. 1 In 2011, Local Rule 7.5 was renumbered 56.1 and amended to eliminate unnecessary language. See S.D. Fla. L.R commentary. 2

3 Case 1:13-cv JAL Document 62 Entered on FLSD Docket 04/10/2015 Page 3 of 18 Third, the opposing party shall also concisely state why the dispute is material. (Id.) The Court s January 21 Order concludes by noting that a party s failure to respond adequately to this Notice and the Motion may result in a final judgment adverse to the opposing party being entered without the benefit of trial. (Id. 5.) Plaintiff failed to heed the Local Rules or the Court s January 21 Order. Defendant s Statement of Material Facts Not in Dispute consists of twenty-two (22) separately-numbered paragraphs. (See D.E. 42 at 2-5.) Plaintiff s Statement of Material Facts Not in Dispute consists of six (6) numbered paragraphs two of them are numbered Paragraph 3. (See D.E. 45.) Plaintiff s Facts do not correspond to Defendant s Facts as ordered by the Court and required by the Local Rules. 2 Local Rule 56.1(a) is designed to make it easier for the Court to determine whether a genuine issue of material fact exists. See S.D. Fla. L.R commentary (explaining that the rule was amended to ensure that statements of material facts filed by movants and opponents shall correspond with each other in numerical order so as to make 2 For example, Paragraph 1 of Plaintiff s Facts states, without citation to the record, that she controverts the facts contained in paragraphs 9, 16, 17, 18, 19, 20, 21, and 22 of Defendant s Facts because they ignored relevant aspects of Plaintiff s deposition and the depositions of certain witnesses. (Id. 1.) Paragraph 2 informs the Court that evidence showing that a genuine dispute exists is cited in Plaintiff s Response brief, (id. 2), even though she was specifically ordered to cite such evidence in her statement of facts, (Jan. 21 Order 3). Paragraphs 3, 3, and 4 contain citations to deposition transcripts reflecting that witnesses heard a noise emanating from a rope and the cruise ship before the accident occurred, although it is unclear which, if any, of Defendant s facts these statements are intended to refute. (Id. 3, 3, 4.) Paragraph 5 (which is actually the sixth paragraph) is not a fact, but rather an admonishment that the Court may only interpret Plaintiff s Facts in her favor to defeat Defendant s Motion: The Statements of Fact and related Deposition transcripts and attachments should be considered by the Court but not in any manner which would waive or foreclose Plaintiffs ability to contest the facts and contentions submitted. (Id. 5.) 3

4 Case 1:13-cv JAL Document 62 Entered on FLSD Docket 04/10/2015 Page 4 of 18 review of summary judgment motions less burdensome to the Court ). As the official comments to Local Rule 56.1 explain, the rule s clear procedural directive is intended to reduce confusion and prevent the Court from having to scour the record and perform time-intensive fact searching. Joseph v. Napolitano, 839 F. Supp. 2d 1324, 1329 (S.D. Fla. 2012). The rule thus reflects a clear policy that it is not the court s obligation to scour the record for a factual dispute that precludes summary judgment. Id. Rather, it is the nonmovant s obligation to specifically bring the factual dispute to the court s attention by rebutting the movants factual statements on a paragraph by paragraph basis and with specific citations to the record. Id. When a party opposing a motion for summary judgment fails to file a statement of facts that complies with Local Rule 56.1(a), subsection (b) requires that the movant s facts be deemed admitted if they are supported by record evidence not as a Courtimposed sanction, but by operation of the rule. See Gossard v. JP Morgan Chase & Co., 612 F. Supp. 2d 1242, (S.D. Fla. 2009). In Gossard, the plaintiff failed to file a proper statement of material facts in opposition to the defendant s motion for summary judgment. Id. at After a thorough examination of Local Rule 7.5 the predecessor to Rule Judge Zloch concluded: Local Rule [7.5.D] prescribes the proper course for Plaintiff s failure to controvert Defendant s Undisputed Statement Of Facts. All facts stated therein and supported by the record are deemed admitted by Plaintiff based on her failure to controvert the same. S.D. Fla. L.R. 7.5.D. The Court wants to make plain that this ruling should not be looked at as a sanction 3 As mentioned in Note 1, supra, in 2011, Local Rule 7.5 was renumbered 56.1 and amended to eliminate unnecessary language. S.D. Fla. L.R commentary. 4

5 Case 1:13-cv JAL Document 62 Entered on FLSD Docket 04/10/2015 Page 5 of 18 against Plaintiff or her Counsel. Because Plaintiff did not abide by Local Rule 7.5 regarding her Statement Of Facts, by operation of the same Local Rule and not by calculated choice of this Court Defendant s uncontroverted facts are deemed admitted to the extent supported by the record. Id. The Eleventh Circuit has upheld this Rule. Digioia v. H. Koch & Sons, 944 F.2d 809, 811 n. 6 (11th Cir. 1991) (upholding operation of former Local Rule 10.J.2, the predecessor to 7.5.D.); Calmaquip Eng g W. Hemisphere Corp. v. W. Coast Carriers, Ltd., 650 F.2d 633, 636 (5th Cir. Unit B 1981) (same). 4 Id. at ; see also Mid-Continent Cas. Co. v. Basdeo, 742 F. Supp. 2d 1293, 135 (S.D. Fla. 2010) (finding that where the non-movant violates the Local Rule by failing to direct the Court to evidentiary support in the record for any proposed contravening material fact, the Court deems the corresponding proposed uncontroverted material fact admitted for purposes of the Motions for Summary Judgment, provided that the Court finds the statement of material fact at issue to be supported by the evidence ). Because Plaintiff s statement of material facts completely fails to comply with Local Rule 56.1 and the Court s January 21 Order, the Court deems Defendant s facts admitted to the extent that they are supported by record evidence. See id.; Gossard, 612 F. Supp. 2d at However, statements in the form of issues or legal conclusions (rather than material facts) will not be considered by the Court. Fin. Fed. Credit Inc. v. Boss Transp., Inc., 456 F. Supp. 2d 1367, 1371 (M.D. Ga. 2006). 4 In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), the Eleventh Circuit adopted as binding precedent all decisions of the former Fifth Circuit handed down prior to October 1,

6 Case 1:13-cv JAL Document 62 Entered on FLSD Docket 04/10/2015 Page 6 of 18 I. Background 5 On January 13, 2013, Plaintiff was a cruise passenger on the Norwegian Gem ( the ship ) with her friend, Kim Williams. (Def. Facts 1.) The ship arrived in the port of St. Maarten that morning at approximately 9:00 AM. (Id. 2-3.) Plaintiff and Ms. Williams disembarked around 12:00 PM to visit various stores, and returned to the ship around 2:45 PM. (Id. 4-5.) On her way back to board the ship, while walking on the pier but before reaching the gangway, something hit Plaintiff from the back and she fell to the ground. (Id. 6.) Plaintiff did not see what hit her, either before or after it happened. (Id. 7.) Other witnesses saw a rope fray, break, or come undone, which then struck Plaintiff and/or caused a guardrail or barricade to strike her. (Id. 10.) The rope had been attached to the ship and to an anchor, or bollard, on the pier. (Id. 11.) On November 18, 2013, Plaintiff filed a one-count Complaint alleging negligence against Defendant. (D.E. 1.) On August 29, 2014, Plaintiff filed the operative Second Amended Complaint, alleging one count of negligence. ( Am. Compl., D.E. 32.) Plaintiff did not serve any written discovery on Defendant. (Def. Facts 13.) Plaintiff did not request, notice, or depose any of Defendants employees, agents, or corporate representatives. (Id. 14.) Plaintiff did not depose any representative of the entity that owned and operated the pier. (Id. 15.) 5 Unless otherwise noted, the following facts are taken from Defendant s Statement of Material Facts Not in Dispute. ( Def. Facts, D.E. 42 at 2-5.) 6

7 Case 1:13-cv JAL Document 62 Entered on FLSD Docket 04/10/2015 Page 7 of 18 II. Legal Standard On a motion for summary judgment, the Court is to construe the evidence and factual inferences arising therefrom in the light most favorable to the nonmoving party. Adickes v. S.H. Kress & Co., 398 U.S. 144, 157 (1970). Summary judgment can be entered on a claim only if it is shown 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). In addition, under Federal Rule of Civil Procedure 56(f)(1), the Court may grant summary judgment for the non-moving party [a]fter giving notice and a reasonable time to respond. Fed. R. Civ. P. 56(f)(1); see also Gentry v. Harborage Cottages-Stuart, LLLP, 654 F.3d 1247, 1261 (11th Cir. 2011). The Supreme Court has explained the summary judgment standard as follows: [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. Celotex Corp. v. Catrett, 477 U.S. 317, (1986) (internal quotation omitted). The trial court s function at this juncture 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 v. Liberty Lobby, Inc., 477 U.S. 242, (1986). A dispute about a material fact is genuine if the evidence is such that a reasonable fact-finder could return a verdict for the 7

8 Case 1:13-cv JAL Document 62 Entered on FLSD Docket 04/10/2015 Page 8 of 18 nonmoving party. Id. at 248; see also Barfield v. Brierton, 883 F.2d 923, 933 (11th Cir. 1989). The party moving for summary judgment 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 affidavits, if any, which it believes demonstrate the absence of a genuine issue of material fact. Celotex, 477 U.S. at 323. Once the movant makes this initial demonstration, the burden of production, not persuasion, shifts to the nonmoving party. The nonmoving party must go beyond the pleadings and by [its] own affidavits, or by the depositions, answers to interrogatories, and admissions on file, designate specific facts showing that there is a genuine issue for trial. Id. at 324; see also Fed. R. Civ. P. 56(c). In meeting this burden the nonmoving party must do more than simply show that there is a metaphysical doubt as to the material facts. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). That party must demonstrate that there is a genuine issue for trial. Id. at 587. An action is void of a material issue for trial [w]here the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party. Id. III. Applicable Law Federal maritime law applies to actions arising from alleged torts committed aboard a ship sailing in navigable waters. Smolnikar v. Royal Caribbean Cruises LTd., 787 F. Supp. 2d 1308, 1315 (S.D. Fla. 2011) (citing Keefe v. Bahama Cruise Line, Inc., 867 F.2d 1318, 1321 (11th Cir. 1989)). 8

9 Case 1:13-cv JAL Document 62 Entered on FLSD Docket 04/10/2015 Page 9 of 18 This principle extends to torts occurring at offshore locations or ports-ofcall during the course of a cruise. See Doe v. Celebrity Cruises, Inc., 394 F.3d 891, 901 (11th Cir. 2004). See also Isbell v. Carnival Corp., 462 F. Supp. 2d 1232, 1236 (S.D. Fla. 2006) (applying federal maritime law in negligence action against cruise line company stemming from accident occurring during an offshore excursion). General maritime law is an amalgam of traditional common-law rules, modifications of those rules, and newly created rules. See East River Steamship Corp. v. Transamerica Delaval, Inc., 476 U.S. 858, , 106 S. Ct. 2295, 90 L. Ed. 2d 865 (1986). See also Brockington v. Certified Elec., Inc., 903 F.2d 1523, 1530 (11th Cir. 1990). In the absence of welldeveloped maritime law pertaining to [Plaintiff s] negligence claims, [the Court] will incorporate general common law principles and Florida state law to the extent they do not conflict with federal maritime law. See Just v. Chambers, 312 U.S. 383, 388, 61 S. Ct. 687, 85 L. Ed. 903 (1941) ( With respect to maritime torts we have held that the State may modify or supplement the maritime law by creating liability which a court of admiralty will recognize and enforce when the state action is not hostile to the characteristic features of the maritime law or inconsistent with federal legislation. ). See also Becker v. Poling Transp. Corp., 356 F.3d 381, 388 (2nd Cir. 2004) ( federal maritime law incorporates common law negligence principles generally, and [state] law in particular ); Wells v. Liddy, 186 F.3d 505, 525 (4th Cir. 1999) (in the absence of a well-defined body of maritime law relating to a particular claim, the general maritime law may be supplemented by either state law or general common law principles). Id.; see also Hesterly v. Royal Caribbean Cruises, Ltd., 515 F. Supp. 2d 1278, 1282 (S.D. Fla. 2007). IV. Discussion To satisfy the burden of proof in a negligence action, plaintiff must show: (1) that defendant owed plaintiff a duty; (2) that defendant breached that duty; (3) that this breach was the proximate cause of plaintiff s injury; and (4) that plaintiff suffered damages. Isbell, 462 F. Supp. 2d at 1236 (citing Hasenfus v. Secord, 962 F.2d 1556, (11th Cir. 1992)). 9

10 Case 1:13-cv JAL Document 62 Entered on FLSD Docket 04/10/2015 Page 10 of 18 A. Duty and Breach A cruise operator owes its passengers ordinary reasonable care under the circumstances, a standard which requires, as a prerequisite to imposing liability, that the carrier have had actual or constructive notice of the risk-creating condition.... Keefe, 867 F.2d at 1322; see also Chaparro v. Carnival Corp., 693 F.3d 1333, 1336 (11th Cir. 2012). With respect to dangers awaiting off the ship, the duty of reasonable care is limited to the duty to warn of known dangers beyond the point of debarkation in places where passengers are invited or reasonably expected to visit. Chaparro, 693 F.3d at 1336; see also Koens v. Royal Caribbean Cruises, Ltd., 774 F. Supp. 2d 1215, (S.D. Fla. 2011) ( [T]he duty to warn is limited to dangers known to exist in the particular place where the passenger is invited to, or reasonably may be expected to visit. ) (quoting Carlisle v. Ulysses Line Ltd., 475 So. 2d 248, 251 (Fla. Dist. Ct. App. 1985)). The Second Amended Complaint alleges that Defendant breached its duty of ordinary care under the circumstances by: a. Failing to make adequate and/or proper inspections and repairs to prevent the development of a defective and hazardous condition; b. Failing to adequately and properly manage, maintain, supervise and provide appropriate devices for use in securing the rope and guardrail present on the Norwegian Gem; c. Failing to prevent the development of a dangerous, defective, hazardous and trap-like condition; d. Failing to adequately and properly furnish and erect an appropriate device so as to give proper protection to the Plaintiff Creoda Mills; 10

11 Case 1:13-cv JAL Document 62 Entered on FLSD Docket 04/10/2015 Page 11 of 18 e. Failing to adequately and properly construct, shore, equip, guard, arrange, operate and construct the Norwegian Gem so as to provide reasonable and adequate protection and safety to the Plaintiff Creoda Mills; f. Failing to provide the Plaintiff Creoda Mills with a safe ingress and egress on the Norwegian Gem; g. Failing to employ and/or implement proper and adequate safety devices to prevent the rope and guardrail from falling on the Plaintiff Creoda Mills; h. Failing to warn the Plaintiff Creoda Mills herein that there existed a dangerous, defective, hazardous and trap-like condition; i. Failing to place warning signs, barriers or any other indications in and around the dangerous condition; j. Causing, permitting and allowing the Plaintiff Creoda Mills herein to be exposed to the hazards thereon; k. Failing to provide the Plaintiff Creoda Mills with proper and adequate safety protection; l. Failing to supervise and control the inspection, maintenance and operation activities of its agents, servants and/or employees; m. Failing to inspect the premises for necessary safety measures; n. Failing to have and employ adequate, properly trained and sufficient personnel for the purposes of supervision, inspection, maintenance, repair and/or securing the rope and guardrail from striking the Plaintiff Creoda Mills; o. Hiring and employing incompetent, untrained, inadequate and insufficient personnel to perform supervision, inspection, maintenance, repair and/or securing the rope and guardrail from striking the Plaintiff Creoda Mills; p. Allowing an ongoing, recurring, continuous and/or repetitive problem to occur or to remain on the premises which would cause accidents or injuries; q. Providing negligent maintenance to the area or to the premises; r. Utilizing or allowing negligent method of operations; 11

12 Case 1:13-cv JAL Document 62 Entered on FLSD Docket 04/10/2015 Page 12 of 18 s. Failing to otherwise maintain the subject area and the premises of the Norwegian Gem Cruise Line in a safe and reasonable manner; [and] t. Failing to otherwise provide its passengers with a safe place to walk[.] (Am. Compl. 13.) Because the accident occurred off-ship, the only duties Defendant could be liable for breaching are the duties to warn contained in Paragraphs 13(h) and (i), unless it can be established that Defendant owned or maintained the pier, rope, guardrail, or barricade. 1. Paragraphs 13(a)-(g) and (j)-(t). Defendant argues that there is no evidence that it owned or maintained the pier, rope, guardrail, or barricade. (Motion at 11-13; Reply at 7-10.) In support of its argument, Defendant cites Plaintiff s deposition testimony: Q. Okay. Do you have any information Norwegian owned the pier? A. No, I do not. Q. Do you have any information that Norwegian was responsible for maintaining the pier? A. No, I don t. [ ] Q. Okay. Did anybody tell you that Norwegian owns and operates the pier? A. No. (Pl. Depo. at ) Additionally, both Plaintiff and Ms. Williams testified that they did not know who owned the guardrails or who put them on the pier. (See id. at ; Williams Depo. at 37.) Plaintiff fails to cite any evidence establishing that Defendant owned or maintained the pier, rope, guardrail, or barricade. Instead, she improperly attempts to 12

13 Case 1:13-cv JAL Document 62 Entered on FLSD Docket 04/10/2015 Page 13 of 18 shift the burden to Defendant to prove non-ownership of the pier, rope, and barricade, and non-responsibility for tying the rope to the pier: Defendant s Rule 26 Disclosures failed to reveal any evidence to suggest that its lacks ownership, maintenance, supervision and/or control of the rope and the barricade in question. 99. A reasonable person may logical [sic] deduce that the Defendant s failure to do so may very well reflect that the Defendant did indeed own, maintain, supervise and/or control the subject rope and barricade The Defendant created nothing more than smokescreen by alluding that it may not have owned, maintained, supervised and/or control [sic] the said rope and barricade However, a reasonable person may draw a negative inference that the Defendant was inextricably linked to the rope and barricade because the Defendant, although having an obligation to do so, has failed to produce any form of record to the contrary The Defendant once again implies that it may not have been the responsible party to tie the rope to the bollard Again, the Defendant has not presented an iota of evidence that the rope was tied by another party and so a reasonable person may infer that the Defendant did indeed tie the rope A jury can reasonable [sic] deduce that the Defendant had failed to properly secure the rope, among other things By extension, a jury can logically conclude that the Defendant created the unsafe, dangerous and hazardous condition. (Response ) In a maritime negligence action, the plaintiff bears the burden of proving the essential elements of duty, breach, proximate causation, and damages. See Isbell, 462 F. Supp. 2d at Furthermore, on a motion for summary judgment, Rule 13

14 Case 1:13-cv JAL Document 62 Entered on FLSD Docket 04/10/2015 Page 14 of 18 56(e) requires the nonmoving party to go beyond the pleadings and by her own affidavits, or by the depositions, answers to interrogatories, and admissions on file, designate specific facts showing that there is a genuine issue for trial. Celotex, 477 U.S. at 324. Plaintiff wholly failed to carry her burden with respect to ownership or control of the pier, rope, barricade, or guardrail; consequently, she failed to carry her burden of establishing the duties and breaches alleged in Paragraphs 13(a)-(g) and (j)-(t) of the Second Amended Complaint. Because a complete failure of proof concerning an essential element of the nonmoving party s case necessarily renders all other facts immaterial, Celotex, 477 U.S. at 323, Defendant is entitled to summary judgment on the claims alleged alleged in Paragraphs 13(a)-(g) and (j)-(t). 2. Paragraphs 13(h) & (i) Because the accident occurred off-ship, the applicable duty of care is a duty to warn of dangers known to exist in the particular place where the passenger is invited to, or reasonably may be expected to visit. Carlisle, 475 So. 2d at 251; see also Chaparro, 693 F.3d at 1336; Koens, 774 F. Supp. 2d at This duty to warn of known dangers extends to dangers of which the shipowner had constructive notice. See Burdeaux v. Royal Caribbean Cruises, Ltd., 562 F. App x 932, 937 (11th Cir. 2014) ( Neither affidavit creates a genuine issue of material fact regarding Royal Caribbean s actual or constructive knowledge of the dangers of sexual assaults or rape in Cozumel. ); Lapidus v. NCL Am. LLC, 924 F. Supp. 2d 1352, (S.D. Fla. 2013); Isbell, 462 F. Supp. 2d at Constructive notice requires that a defective condition exist for a sufficient interval of time to invite corrective measures. Mirza v. Holland Am. Line 14

15 Case 1:13-cv JAL Document 62 Entered on FLSD Docket 04/10/2015 Page 15 of 18 Inc., No. C , 2012 WL , at *3 (W.D. Wash. Nov. 6, 2012) (quoting Monteleone v. Bahama Cruise Line, Inc., 838 F.2d 63, 65 (2d Cir. 1988)). Construing the evidence in the light most favorable to Plaintiff, a jury could reasonably conclude that Defendant had constructive notice of a dangerous condition. Witness Sheila Anderson testified that when she disembarked in St. Maarten, the rope was creaking.... I told Yvette, I said, ooh, that don t sound good. (Anderson Depo. (D.E. 44-7) at 14.) Witness Alecia Lucas also testified that she heard the noise after she disembarked in St. Maarten. (Lucas Depo. (D.E. 44-8) at 15, 18.) After disembarking, Ms. Lucas took a 15 to 20 minute taxi ride to the beach, stayed at the beach for approximately 90 minutes, went to a liquor store for 20 minutes, and then returned to the ship. (Id. at ) Plaintiff was injured after Ms. Lucas returned to the ship. (Id. at 20, 31.) The witnesses observed the ship swaying from side to side. (Id. at 18, 30; Rouse Depo. (D.E. 44-9) at ) Ms. Lucas testified that when she returned to the ship, she observed [t]he Norwegian Gem hitting the dock, and then the rope frayed and swept the plaintiff off her feet, and the gate... fell on her. (Lucas Depo. (D.E. 44-8) at 31.) Based on this evidence, a jury could reasonably conclude that a defective condition existed for a sufficient interval of time to place Defendant on constructive notice and to trigger its duty to warn. See Mirza, 2012 WL , at *3 (quoting Monteleone, 838 F.2d at 65). 6 6 The court finds that Plaintiff has not presented sufficient evidence that Defendant had actual notice of a dangerous condition. Plaintiff cites to Yvette Rouse s testimony that she saw a man wearing a white uniform looking out a porthole window at the rope prior to the accident. (Response 66 (citing Rouse Depo. (D.E. 44-9) at 20-21, 75-76).) However, as 15

16 Case 1:13-cv JAL Document 62 Entered on FLSD Docket 04/10/2015 Page 16 of 18 Accordingly, Plaintiff has presented sufficient evidence to create a genuine issue of material fact as to whether Defendant breached its duty to warn Plaintiff of an off-ship danger of which it had constructive notice. B. Causation Next, Defendant argues that even assuming there is sufficient evidence of a breach, there is no evidence that the breach proximately caused Plaintiff s injuries. (Motion 13.) Plaintiff completely fails to respond to Defendant s argument or otherwise address the proximate causation element of a maritime negligence action. Failure to respond to the opposing party s summary judgment arguments regarding a claim constitutes an abandonment of that claim and warrants the entry of summary judgment for the opposing party. Burnette v. Northside Hosp., 342 F. Supp. 2d 1128, 1140 (N.D. Ga. 2004) (citing Bute v. Schuller Int l, Inc., 998 F. Supp. 1473, 1477 (N.D. Ga. 1998) ( Because plaintiff has failed to respond to this argument or otherwise address this claim, Defendant correctly observes, [t]here is no evidence regarding who this man was[ or] what he knew.... (Reply at 4.) Additionally, while Plaintiff cites evidence that cruise passengers Sheila Anderson and Yvette Rouse expressed concerns to each other about the sound of rope and the movement of the cruise ship, (Response 78), there is no evidence that anyone reported, complained of, or expressed concerns to any of Defendant s personnel. Plaintiff did not serve any written discovery on Defendant, (Def. Facts 13); she did not request, notice, or depose any of Defendants employees, agents, or corporate representatives, (id. 14); and she did not depose any representative of the entity that owned and operated the pier, (id. 15). Accordingly, there is no evidence concerning what Defendant s personnel actually knew. Therefore, the Court finds that Plaintiff failed to present evidence that Defendant had actual knowledge of a dangerous condition. See Cohen, 945 F. Supp. 2d at 1355 ( There is no evidence in the record of any accident reports, passenger comment reviews or forms, or reports from safety inspections alerting Carnival of any potential safety concern at the steps at the end of their gangplanks. ) (citing Smolnikar, 787 F. Supp. 2d at ( [T]here is no evidence that Royal Caribbean received any form of notice regarding the existence of an alleged danger, as there were no accident reports from [the tour operator], or passenger comment forms or reviews, alerting Royal Caribbean as to a potential safety concern at traverse # 6 of the tour ); Samuels v. Holland Am. Line-USA, Inc., 656 F.3d 948, (9th Cir. 2011)). 16

17 Case 1:13-cv JAL Document 62 Entered on FLSD Docket 04/10/2015 Page 17 of 18 the Court deems it abandoned. ); Welch v. Delta Air Lines, Inc., 978 F. Supp. 1133, 1137 (N.D. Ga.1997) ( Plaintiff s failure to respond to Defendant s argument alone entitles Defendant to summary judgment on these claims. )). For this reason alone, Defendant is entitled to summary judgment on the failure to warn claims. See id.; Evans v. Pemco Aeroplex, Inc., No. CIVACV96-S-2801-S, 1998 WL , at *12 (N.D. Ala. Feb. 23, 1998) ( Evans fails to respond to Pemco s argument, and summary judgment therefore is appropriate for that reason alone. ) (citing Brewer v. Purvis, 816 F. Supp. 1560, 1579 (M.D. Ga. 1993), aff d 44 F.3d 1008 (11th Cir. 1995) ( Summary judgment is appropriate since Plaintiff failed to respond to [defendant s] argument on this issue )). Regardless, Plaintiff failed to present any evidence that Defendant s failure to warn her of a dangerous condition was the proximate cause of her injuries. Plaintiff s failure to present affirmative evidence on proximate causation necessarily renders all other facts immaterial. See John Morrell & Co. v. Royal Caribbean Cruises, Ltd., 534 F. Supp. 2d 1345, 1353 (S.D. Fla. 2008) (granting summary judgment for the defendant where the plaintiff failed to present any evidence as to proximate cause); Isbell, 462 F. Supp. 2d at 1238 (same). Defendant is therefore entitled to summary judgment on the failure to warn claims. (See Am. Compl. 12(h) & (i).) V. Conclusion Accordingly, it is ORDERED AND ADJUDGED that: 1. Defendant s Motion for Summary Judgment (D.E. 42), filed January 20, 2015, is GRANTED; 2. All pending Motions are DENIED AS MOOT; and 17

18 Case 1:13-cv JAL Document 62 Entered on FLSD Docket 04/10/2015 Page 18 of This case is now CLOSED. DONE AND ORDERED in Chambers at Miami, Florida this 10th day of April, JOAN A. LENARD UNITED STATES DISTRICT JUDGE 18