Williams v. Carnival Corporation, 2020 WL 837177 (S.D. Fla. Feb. 20, 2020): Carnival allowed a large puddle of water to accumulate on the open deck. Carnival’s puddle caused the Plaintiff to slip and fall and sustain severe and permanent injuries. Carnival filed a motion for summary judgment. The Court denied Carnival’s motion for summary judgment. The Court found a genuine issue of material fact existed as to whether the puddle was open and obvious and whether Carnival had constructive notice of the puddle.
OPEN AND OBVIOUS CONDITION: The Plaintiff testified that she walked throughout the open decks and did not encounter wet slippery decks. The Plaintiff did notice that the flooring in the area of the open deck Red Frog Rum Bar was discolored. However, the Plaintiff only noticed that the deck was all dark and that the puddle was latent in the dark area.
- “Based on this record, and in the light most favorable to Williams, we cannot conclude, as a matter of law, that a reasonably prudent person through the exercise of common sense and the ordinary use of her senses would have clearly seen a colorless puddle of water in a dark area just because there was some discoloration on other sections of the deck nearby. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) (“[A]t the summary judgment stage the judge’s function is not himself to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial.”).”
- “A reasonable factfinder could conclude that the puddle on which Williams slipped was not open and obvious because it had not been raining prior to William’s slip, it was in a shaded covered area, and Williams clearly testified she did not see the water prior to her fall. See, e.g., Aponte v. Royal Caribbean Cruise Lines Ltd., 739 F. App’x 531, 537 (11th Cir. 2018) (“We cannot conclude, as a matter of law, that a reasonably prudent person through the exercise of common sense and the ordinary use of his senses would have clearly seen the ‘clearish’ puddle of soap on the floor.”) (reversing summary judgment based in part on open and obvious condition); Belanger v. Bimini, 2018 WL 6250524, at *2 (S.D. Fla. Nov. 29, 2018)(denying motion for summary judgment on open and obvious condition where “Plaintiff testified that she did not see the metal threshold that caused the incident until after she had fallen to the ground.”); Sampson v. Carnival Corp., 2016 WL 7209844, at *3 (S.D. Fla. Dec. 7, 2017) (denying cruise line’s motion for summary judgment that argued presence of water on floor was open and obvious because “[p]laintiff testified that she did not notice the floor was wet before her fall despite looking down at the floor while walking onto the deck.”); Carminati v. NCL (Bahamas) Ltd., 2016 WL 7495126, at *3 (S.D. Fla. Aug. 11, 2016) (finding plaintiff “narrowly clears the hurdle of summary judgment” because, among other things, plaintiff “testified that she was not familiar with the area in which she fell, did not know where she was on the ship when she approached the doorway, and could not recall using the doorway at issue” prior to the incident in question).”
CONSTRUCTIVE NOTICE: “We must deny the Motion because Plaintiff’s description of events establishes a genuine issue of material fact as to whether Carnival needed to take corrective action and eliminate the hazardous condition. Keefe, 867 F.2d at 1322. According to Plaintiff, she slipped in a puddle that measured four by two feet. After her fall, she observed a slow drip of water coming from a leaky ice chest immediately next to the puddle of water – she estimated that it would have taken between 4-6 hours for that much water to pool based on the current pace of the drip. We must assume that her description of the size of the puddle and its probable source is true. See Cosmo v. Carnival Corp., 272 F. Supp. 3d 1336, 1342 (S.D. Fla. 2017) (“[A] court may not make credibility determinations in evaluating a motion for summary judgment.”).”
CONSTRUCTIVE NOTICE: “Under these circumstances, and in light of Plaintiff’s testimony, the pictures she provided, and that Carnival had multiple employees working close to the Red Frog Rum Bar trained to look for and remedy wet decks quickly, a reasonable jury could find that Carnival had constructive notice of the hazard. See Aponte, 739 F. App’x at 536 (“[The] facts place the crewmember in the immediate vicinity of a puddle of soap that was one-and-a-half feet in diameter. Drawing all reasonable inferences in [plaintiff’s] favor, a factfinder could conclude that the crewmember knew or should have known about the puddle of soap at his feet and either removed the hazard or warned [plaintiff] of it.”); Thomas, 203 F. Supp. 3d at 1193 (“In premises liability cases, for example, a plaintiff may prove constructive notice if he shows that a dangerous condition existed on the floor for a sufficient length of time, which Florida courts have found to be 15-20 minutes.”) (citation omitted); Stewart v. Carnival Corp., 365 F. Supp. 3d 1272, 1276 (S.D. Fla. 2019) (record evidence was enough to support an inference that Defendant had constructive notice for a long enough period of time to take corrective measures); Haiser v. MSC Cruises (USA) Inc., 2019 WL 4693200, at *5 (S.D. Fla. Aug. 9, 2019) (denying summary judgment in part where a “reasonable factfinder could conclude that crewmembers knew or should have known about the presence of water on floor since they were in the immediate vicinity and based on the amount of time the water was there.”).”