Janet Francis v. MSC Cruises, S.A.

• Court: Court of Appeals for the Eleventh Circuit
• Decided: November 20, 2020
• Docket: 19-13605
• Status: Unpublished

Opinion

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[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT ________________________

No. 19-13605 Non-Argument Calendar ________________________

D.C. Docket No. 0:18-cv-61463-BSS

JANET FRANCIS,

Plaintiff - Appellant,

versus

MSC CRUISES, S.A.,

Defendant - Appellee.

________________________

Appeals from the United States District Court for the Southern District of Florida ________________________

(November 20, 2020) USCA11 Case: 19-13605 Date Filed: 11/20/2020 Page: 2 of 13

Before ROSENBAUM, JILL PRYOR and BRANCH, Circuit Judges

PER CURIAM:

Janet Francis appeals the grant of summary judgment in her negligence

action against MSC Cruises, S.A., following a slip and fall aboard the MSC

Davina. She argues that a genuine dispute of material fact exists as to whether

MSC was on notice about the presence of the slip hazard that caused her fall—a

piece of watermelon. She also argues that the court erred in granting summary

judgment sua sponte and without notice on two of her theories of negligence:

negligent design and negligent maintenance. After a careful review of the briefs

and the record, we conclude that no genuine dispute of material fact exists as to

whether MSC was on notice about the watermelon. However, we agree with

Francis that the court erred in granting summary judgment on the negligent design

and negligent maintenance theories. We therefore affirm in part and vacate in part.

I. BACKGROUND 1 One evening, while on a cruise aboard the MSC Davina, Francis and her

friend Regina Kenneweg went to a self-service buffet. To get to the buffet, they

walked through an interior corridor from an exterior deck. When they entered the

corridor, they noticed that the floor was dirty. It appeared as though passengers

1 Where facts are disputed in the record, we recount them here in the light most favorable to the plaintiff. See Smelter v. S. Home Care Servs., Inc., 904 F.3d 1276, 1284 (11th Cir. 2018) (on review of a district court’s grant of summary judgment, we construe all facts and draw all reasonable inferences in favor of the nonmoving party). 2 USCA11 Case: 19-13605 Date Filed: 11/20/2020 Page: 3 of 13

had been carrying food from the buffet through the corridor out to the deck, and

some of that food had spilled onto the floor. The two women walked carefully

through the corridor, making sure not to step on any of the spilled food. They

made it safely to the buffet.

Francis and Kenneweg disagree about how long they were at the buffet.

Francis believes they were there for 10 or 15 minutes. Kenneweg recalls that it

was closer to 30 minutes. When they left the buffet, they walked through the same

interior corridor to get to their room. Both Francis and Kenneweg noted that the

corridor had been cleaned in their absence. As far as they could see, there was no

longer food on the floor. Nevertheless, they walked through the corridor with extra

caution, actively looking for more fruit on the floor.

As they walked, Francis slipped and fell on a piece of watermelon. Francis

describes the watermelon as about an inch and a half to two inches in size;

Kenneweg remembers it being smaller than a quarter. Neither woman noticed the

watermelon before Francis slipped on it. When Francis fell, there was a group of

crewmembers wearing black uniforms, similar to what maids might wear, standing

approximately eight feet away.

Francis was taken to the ship’s infirmary where she was x-rayed and

misdiagnosed with a sprain. Upon returning home, Francis visited another doctor,

who diagnosed her with a broken tibia, which ultimately needed surgery to repair.

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Francis later sued MSC for a single count of negligence, alleging three different

theories of negligence: negligent design of the corridor’s floor, negligent

maintenance of the corridor’s floor, and negligent failure to warn about the slip

hazard.

During discovery, MSC conceded its knowledge that passengers often take

food from the buffets to eat in other parts of the ship and that food is often dropped

on the ship’s floors. MSC’s policies require crew members to identify slipping

hazards and remove them as quickly as possible.

Following discovery, MSC moved for summary judgment on the ground that

it had no actual or constructive notice of the slip hazard—the piece of watermelon

on the floor. Francis did not contend that MSC had actual notice of the

watermelon, and MSC argued that it had lacked constructive notice of this slip

hazard because there was no evidence of similar slip and fall incidents involving

food or beverages in this corridor or similar corridors or hallways in any of the

Davinia’s sister ships in the same class. Francis filed a cross motion for partial

summary judgment on the ground that there was no disputed issue of material fact

related to several issues in the case, including that the floor where she slipped was

not reasonably slip-resistant when contaminated with a slipping hazard and that

MSC was on notice of the piece of watermelon that caused her to fall.

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The magistrate judge granted MSC’s motion for summary judgment and

denied Francis’s.2 In granting MSC’s motion, the magistrate judge found that the

watermelon was not present in the hallway for long enough to invite corrective

measures and that there was no history of substantially similar incidents aboard the

Davina or her sister ships classwide. As a result, MSC had no actual or

constructive notice of the slip hazard and could not be held liable for Francis’s fall.

Following the grant of summary judgment, the magistrate judge entered a final

judgment in favor of MSC and against Francis, closed the case, and declared all

motions moot.

This is Francis’s appeal.

II. STANDARD OF REVIEW

“We review de novo the district court’s grant of summary judgment,

construing the facts and drawing all reasonable inferences in favor of the

nonmoving party.” Smelter v. S. Home Care Servs., Inc., 904 F.3d 1276, 1284

(11th Cir. 2018). Summary judgment is appropriate if the record gives rise to “no

genuine dispute as to any material fact,” such that “the movant is entitled to

judgment as a matter of law.” Fed. R. Civ. P. 56(a). A genuine dispute of material

fact exists when “the evidence is such that a reasonable jury could return a verdict

2 The parties consented to having a magistrate judge conduct all proceedings in the case. See 28 U.S.C. § 636(c)(1). 5 USCA11 Case: 19-13605 Date Filed: 11/20/2020 Page: 6 of 13

for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248

(1986).

“Even where the parties agree on the facts, if reasonable minds might differ

on the inferences arising from undisputed facts, then the court should deny

summary judgment.” Manners v. Cannella, 891 F.3d 959, 967 (11th Cir. 2018)

(internal quotation marks omitted). But conclusory allegations and speculation are

insufficient to create a genuine issue of material fact. See Cordoba v. Dillard’s

Inc., 419 F.3d 1169, 1181 (11th Cir. 2005) (“Speculation does not create a genuine

issue of fact; instead, it creates a false issue, the demolition of which is a primary

goal of summary judgment.”).

III. DISCUSSION On appeal, Francis challenges the grant of summary judgment on her theory

of negligent failure to warn, arguing that a reasonable jury could find that MSC

had constructive notice of the slip hazard. She also argues that the magistrate

judge erred in granting summary judgment sua sponte on her negligent design and

negligent maintenance claims.

Maritime law governs actions arising from alleged torts committed aboard a

ship sailing in navigable waters. Keefe v. Bahama Cruise Line, Inc.,

867 F.2d 1318, 1320–21 (11th Cir. 1989). “In analyzing a maritime tort case, we

rely on general principles of negligence law.” Guevara v. NCL (Bahamas) Ltd.,

6 USCA11 Case: 19-13605 Date Filed: 11/20/2020 Page: 7 of 13

920 F.3d 710, 720 (11th Cir. 2019) (alteration adopted) (internal quotation marks

omitted). To prevail on a negligence claim under maritime tort law, a plaintiff

must show that “(1) the defendant had a duty to protect the plaintiff from a

particular injury, (2) the defendant breached that duty, (3) the breach actually and

proximately caused the plaintiff’s injury, and (4) the plaintiff suffered actual

harm.” Id. (internal quotation marks omitted).

Generally, “a shipowner owes the duty of exercising reasonable care towards

those lawfully aboard the vessel who are not members of the crew.” Kermarec v.

Compagnie Generale Transatlantique, 358 U.S. 625, 630 (1959). Normally, this

duty of care “requires, as a prerequisite to imposing liability, that the carrier have

had actual or constructive notice of a risk-creating condition, at least where, as

here, the menace is one commonly encountered on land and not clearly linked to

nautical adventure.” Guevera, 920 F.3d at 720 (alteration adopted) (internal

quotation marks omitted). Under this standard, “a cruise ship operator’s liability

hinges on whether it knew or should have known about the dangerous condition.”

Id. (internal quotation marks omitted).

A. The District Court Did Not Err in Granting Summary Judgment on Francis’s Failure-to-Warn Claim.

Francis’s failure-to-warn claim rests on whether MSC had notice of the

piece of watermelon that caused her to fall. Absent actual notice, a plaintiff can

establish constructive notice by showing that a hazard existed for a sufficient 7 USCA11 Case: 19-13605 Date Filed: 11/20/2020 Page: 8 of 13

period “to invite corrective measures” or by providing evidence of substantially

similar incidents in the past. Guevera, 920 F.3d at 720.

Francis does not argue that MSC had actual notice of the slip hazard posed

by the piece of watermelon, nor does she provide evidence of substantially similar

previous incidents aboard the Davina. Therefore, her failure-to-warn claim rests

on establishing that the slip hazard existed long enough to invite corrective

measures.

There is no direct evidence in the record of how long the watermelon was on

the floor, so we are forced to rely on inferences based on the evidence that does

exist. The evidence shows the following: The floor of the corridor was dirty when

Francis and Kenneweg first walked through. They were gone for somewhere

between 10 and 30 minutes. While they were gone, someone cleaned the floor. As

she walked back through the corridor, Francis made sure to walk carefully and

“actively look[ed] for fruit on the floor.” Doc. 39-1 at 75.3 Even with this extra

care, Francis did not see the watermelon. When she fell, several crewmembers

were standing nearby talking amongst themselves. In addition, MSC’s policies

instruct crew members to look for slip hazards on the floor and remove them as

quickly as possible. Francis argues that these facts are enough for a reasonable

jury to draw the inference that the watermelon was on the floor for at least 30

3 “Doc.” numbers refer to the district court’s docket entries. 8 USCA11 Case: 19-13605 Date Filed: 11/20/2020 Page: 9 of 13

minutes and that the nearby crewmembers should have been aware of the

watermelon. These two inferences, Francis contends, would allow a jury to

conclude that MSC had constructive notice of the watermelon on the floor.

We disagree. Francis herself, though walking carefully and looking for fruit,

did not see the watermelon before she fell. We cannot say that a reasonable

factfinder could infer that crewmembers a short distance away should have noticed

a single small piece of watermelon. And Francis admits that she has no way of

knowing whether the watermelon fell to the floor before or after she entered the

buffet, so we cannot say how long the watermelon was there. Such speculation

cannot be the basis on which a party overcomes summary judgment. Cordoba,

419 F.3d at 1181.

Francis nonetheless argues that a reasonable jury could infer that MSC was

aware of the watermelon because in an unpublished maritime slip and fall case we

held that 30 minutes was sufficient time to invite corrective measures. But that

case is neither binding precedent nor does it offer a helpful comparison. See Plott

v. NCL America, LLC, 786 Fed. App’x 199 (11th Cir. 2019) (unpublished). The

hazard in Plott—large puddles of water on an interior floor—was more obvious

than a piece of watermelon small enough to go unnoticed by someone carefully

scanning the floor for it. Id. at 201. Our law does not require crew members to be

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on notice within 10 to 30 minutes of every small piece of food that falls to the

floor, on a ship where hundreds of passengers are walking with food each day.

Because there is no genuine dispute of material fact as to whether MSC was

on notice about the dangerous condition, the magistrate judge’s grant of summary

judgment was proper.

B. The District Court Erred When It Sua Sponte Granted Summary Judgment to MSC on Francis’s Theories of Negligent Design and Negligent Maintenance.

Francis next argues that the magistrate judge erred in sua sponte granting

summary judgment—without notice—on her negligent design and negligent

maintenance claims. In response, MSC argues that Francis did not plead negligent

design and maintenance theories in her complaint and that, even if she did, those

claims were addressed in the summary judgment briefing. MSC also maintains

that this argument has been waived because Francis failed to object before the

magistrate judge. We agree with Francis that the grant of summary judgment on

these claims was improper.

Francis’s complaint alleged that MSC breached its duty to her by, among

other things, “[c]hoosing and/or approving a deck material that was unreasonably

slippery,” “[c]hoosing and/or approving a deck material that was unreasonably

slippery when food and/or liquids was on it,” and “failing to reasonably inspect the

deck material, discover it was unreasonably slippery, and make it safer.” Doc. 1 at

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8. Francis alleged theories of negligent design or maintenance sufficient to meet

the notice pleading requirements of the Federal Rules of Civil Procedure. See Fed.

R. Civ. P. 8; Palm Beach Golf Center-Boca, Inc. v. John G. Sarris, 781 F.3d 1245,

1260 (11th Cir. 2015) (noting that a complaint “need only give the defendant fair

notice of what the plaintiff’s claim is and the grounds upon which it rests” (internal

quotation marks omitted)).

Federal Rule of Civil Procedure 56 states that a party seeking summary

judgment must “identify[] each claim . . . or the part of each claim . . . on which

summary judgment is sought.” Fed. R. Civ. P. 56(a). MSC’s motion did not state

the specific claims or theories on which it was moving for summary judgment, but

nothing in the motion suggests it was moving on any theory other than failure to

warn about the watermelon. The motion opens by noting that the “[p]laintiff

unequivocally testified that she slipped on fruit.” Doc. 43 at 2. It then goes on to

state that MSC is entitled to summary judgment because “there is no evidence

showing MSC had notice of the [watermelon].” Id. MSC argues that it addressed

the maintenance and design of the corridor when it discussed the slip resistance of

the floor material in other briefing—its response to Francis’s motion for summary

judgment and its reply brief in support of its own summary judgment motion.

Although these briefs mentioned the slip resistance of the floor, they did so only in

the context of discussing the duty owed to Francis to warn her about the

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watermelon. Furthermore, even if these briefs dealt directly with negligent design

or maintenance, discussion in response or reply briefs of claims on which MSC did

not move for summary judgment does not satisfy Rule 56(a). Therefore, the

court’s ruling on these claims was sua sponte.

Federal Rule of Civil Procedure 56(f) governs sua sponte grants of summary

judgment. Under this rule, a court must give the parties notice and an opportunity

to be heard before ruling sua sponte on a claim. Fed. R. Civ. P. 56(f). There is no

indication in the record that the magistrate judge gave notice about his intention to

rule on all of Francis’s theories of negligence. Thus, the sua sponte grant of

summary judgment on Francis’s negligent design and maintenance claims was

error. See Gentry v. Harborage Cottages-Stuart, LLLP, 654 F.3d 1247, 1261

(11th Cir. 2011) (“In this case, the court entered judgment on claims not identified

by Plaintiffs in their Rule 56 motion and without advanced notice. This was

error.”).

MSC argues that even if the grant of summary judgment below violated

Rule 56(f), Francis waived this argument by failing to object before the district

court. We reject this argument. Once the magistrate judge granted summary

judgment, he immediately entered final judgment and administratively closed the

case. The only way Francis could have objected to the sua sponte grant would

have been to file a motion for reconsideration. We have not required

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reconsideration motions to preserve objections to sua sponte grants of summary

judgment. See, e.g., Amy v. Carnival Corp., 961 F.3d 1303 (11th Cir. 2020)

(reversing sua sponte grant of summary judgment without requiring appellant to

have filed motion for reconsideration in district court). We will not do so here.4

IV. CONCLUSION

For these reasons, the grant of summary judgment on Francis’s failure-to-

warn theory is AFFIRMED. The grant of summary judgment on the negligent

design and maintenance theories is VACATED and remanded to the district court

for further proceedings not inconsistent with this opinion.

AFFIRMED IN PART, VACATED IN PART, and REMANDED.

4 MSC also argues in its brief that Francis’s negligent design and maintenance theories fail on the merits. Because this argument has not been brought before the magistrate judge or district court on a motion for summary judgment, we do not address it here. See Wilkerson v. Grinnell Corp., 270 F.3d 1314, 1322 & n. 4 (11th Cir. 2001) (expressing the preference that a district court address matters in the first instance before appellate review, even on summary judgment). We express no opinion about whether MSC can withstand summary judgment review on these grounds on remand. 13