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McDonough v. Celebrity Cruises

MCDONOUGH v. CELEBRITY CRUISES, INC., 64 F.Supp.2d 259 (S.D.N.Y. 08/26/1999)

United States District Court, Southern District of New York
No. 98 Civ. 1517
64 F. Supp.2d 259,
August 26, 1999


Brune & Richard, New York City, by Hillary Richard, of counsel,
Hooper, Hathaway, Price, Beuche & Wallace, Ann Arbor, Mi, by Mark R.
Daane, Angela L. Jackson, of counsel, for plaintiff.

Hill, Betts & Nash, New York City, by Gregory W. O'Neill, Martin
Domb, William F. Clair, Jr., of counsel, for defendants.

The opinion of the court was delivered by: Sweet, District Judge.

Defendants Celebrity Cruises, Inc. ("Celebrity") and the M/V
ZENITH (the "ZENITH") (collectively the "Defendants") move for an order of
summary judgment, pursuant to Rule 56 of the Federal Rules of Civil
Procedure, dismissing the claims brought against them by Susan C.
McDonough ("McDonough") and Arnold Sameroff ("Sameroff") (collectively the
"Plaintiffs"). For the reasons set forth below, the motion is granted in
part, and denied in part.

The Parties
McDonough and Sameroff are citizens of the State of Michigan, and
at all times relevant to the instant litigation were husband and wife.
Celebrity is a foreign corporation authorized to do business in
New York. Celebrity is the operator of the ZENITH, a passenger cruise

The Facts
In March of 1997, Plaintiffs and their minor daughter were
passengers aboard the ZENITH for a one week cruise embarking from San
Juan, Puerto Rico. Late in the evening of Wednesday, March 26, 1997, they
attended a buffet known as "Island Night." The buffet was served on Deck
11 of the ZENITH. On Deck 11 passengers were provided with a live band, a
dance floor, buffet tables at which food was served, tables and chairs for
their use, and two tables at which they could purchase alcoholic

During Island Night, passengers could obtain drinks either by
purchasing them at the two bar stations on Deck 11, or by ordering them
from waiters who circulated on Decks 11 and 12 of the ZENITH. Deck 12 is a
partial deck immediately above Deck 11, and contains a rectangular opening
over the area of Deck 11 in which the swimming pools, the dance floor, and
portions of the deck adjoining those areas are located. While passengers
are allowed to take food and drink with them to Deck 12, no tables or
chairs are provided on that deck. A gunwale six inches wide surrounds Deck
12, and the distance from the top of that gunwale to the floor of Deck 11
is sixteen feet.

One of the alcoholic drinks offered to passengers during Island
Night is a "specialty" beverage known as a "Coco Loco," which is served
inside a green, unhusked coconut. To prepare the drink, the top portion of
the coconut is removed, and the bottom portion is sliced to create a flat
base, approximately three inches in diameter. A coconut produced by
Defendants during discovery weighed four pounds in its unprepared state,
and it is uncontroverted that the Coco Loco drink is both heavier and more
difficult to hold than a regular glass.

Shortly after midnight on March 26th, McDonough, standing on Deck
11, was struck on the top of her head by an object that apparently fell
from Deck 12. Neither she nor Sameroff saw how the object had come to
strike her or who would have been responsible for dropping the object.
After she was struck, however, McDonough saw a pile of slush — which she
assumed to be the contents of a Coco Loco — approximately five feet away
from her. Sameroff saw something that looked like a coconut approximately
ten feet away from McDonough, located under one of Deck 11's tables.
Though no passengers came forward who had seen McDonough struck, an
investigation by the ship's Safety Officer concluded that the accident was
the result of the carelessness of a guest.

As a result of the blow she received, McDonough claims to have
suffered, in addition to other injuries, continuing neurological
complications such as "closed head disorder" and occilopsia. Her
continuing health problems have allegedly affected both the quality of her
daily life and her career.

Plaintiffs filed their complaint on March 22, 1998. Count I of the
complaint seeks recovery against the Defendants for negligence.*fn1 Count
II of the complaint seeks damages for Sameroff's loss of consortium due to
the injuries suffered by McDonough. Oral argument was heard on the instant
motion on April 7, 1999, at which time the motion was deemed fully

Summary judgment is appropriate only where the evidence is such
that a reasonable jury could not return a verdict in favor of the
non-moving party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
250-51, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Under Rule 56(c),
Fed.R.Civ.P., it shall be rendered "forthwith if the pleadings,
depositions, answers to interrogatories, and admissions on file, together
with the affidavits . . . show that there is no genuine issue as to any
material fact and that the moving party is entitled to a judgment as a
matter of law." As the Second Circuit has explained:

"As a general rule, all ambiguities and inferences to
be drawn from the underlying facts should be resolved
in favor of the party opposing the motion, and all
doubts as to the existence of a genuine issue for
trial should be resolved against the moving party."
However, where the nonmoving party will bear the
burden of proof at trial, Rule 56 permits the moving
party to point to an absence of evidence to support
an essential element of the nonmoving party's claim.

Bay v. Times Mirror Magazines, Inc., 936 F.2d 112, 116 (2d Cir.
1991) (quoting Brady v. Town of Colchester, 863 F.2d 205, 210 (2d Cir.
1988) (internal citations omitted)). Although courts are reluctant to
grant summary judgment in negligence cases, "the mere fact that [a] case
involves a claim of negligence does not preclude a granting of summary
judgment." Cummiskey v. Chandris, S.A., 719 F. Supp. 1183, 1186 (S.D.N.Y.
1989), aff'd, 895 F.2d 107 (2d Cir. 1990).

The standard of care used in maritime actions such as this is
"reasonable care under the circumstances." See Rainey v. Paquet Cruises,
Inc., 709 F.2d 169, 170 (2d Cir. 1983); Calderera v. Chandris, S.A., No.
91 Civ. 8181(KMW), 1993 WL 362406, at *3 (S.D.N.Y. Sept. 13, 1993); Turner
v. Phaidon Navigation S.A., No. 90 Civ. 2538(RWS), 1991 WL 280663, at *2
(S.D.N.Y. Dec. 23, 1991). As the Second Circuit has observed, the degree
of care demanded of a vessel owner or operator is itself dependant on
whether or not the circumstances of maritime travel differ from those of
ordinary activities conducted on terra firma:

"The extent to which the circumstances surrounding
maritime travel are different from those encountered
in daily life and involve more danger to the
passenger, will determine how high a degree of care
is reasonable in each case."

Monteleone v. Bahama Cruise Line, Inc., 838 F.2d 63, 64-65 (2d
Cir. 1988) (quoting Rainey, 709 F.2d at 172). Though often mentioned, it
is worth repeating that a vessel owner or operator is not the insurer of
the safety of its passengers. See Monteleone, 838 F.2d at 65; Friedman v.
Cunard Line Ltd., No. 95 Civ. 5232(CSH), 1997 WL 698184, at *2 (S.D.N.Y.
Nov.10, 1997).

Because the nature of McDonough's injury is in no manner peculiar
to maritime travel, ordinary negligence principles apply, see Turner, 1991
WL 280663, at *2, and the Defendants' conduct is measured against a
standard of ordinary, reasonable care. See Calderera, 1993 WL 362406, at
*3; cf. Jaques-Boyle v. Celebrity Cruise Lines, Inc., No. 95 CIV.
8788(JES), 1997 WL 685338, at *1 (S.D.N.Y. Nov. 4, 1997) ("When the risk
is tantamount to one that would exist on shore and raises no hazards
peculiar to navigation, then the duty is the same as that owed by a
land-based hotel.").

Defendants' essential contention is that, even assuming that
McDonough was struck on the head by a coconut provided to passengers as
part of their Island Night festivities, the absence of any prior notice
that Coco Locos could cause injuries to passengers standing below Deck
12's gunwale merits dismissal of the complaint. Defendants point out, and
Plaintiffs do not seriously contest, that Coco Locos have been served for
a number of years during Island Night buffets without incident — on the
ZENITH and on other cruise ships operated by Celebrity and its
predecessors — and posit that the wholesale absence of any coconut-related
accidents provides grounds for an order granting them summary judgment.
Defendants also contend that Plaintiffs' inability to establish the
precise manner in which the coconut struck McDonough militates in favor of
dismissal, as nothing Plaintiffs have presented rules out the possibility
that a coconut struck McDonough as the result of the intentional act of
another passenger.

Plaintiffs counter that the absence of previous injuries from
coconuts does not merit dismissal, as a demonstration of notice — actual
or constructive — is only required where a plaintiff's theory of liability
is based upon a "defect" unremedied by the defendant. Here, they contend,
the Defendants created the very circumstances that resulted in McDonough's
injuries, and those injuries were the foreseeable result of serving
coconut beverages in the way that they did. Plaintiffs point out that,
given the Coco Loco's flat bottom, it could well be expected that
passengers would place the drinks on a flat surface. They note that the
gunwale on Deck 12, while only six inches wide and hardly adequate to
prevent drinks from being knocked onto passengers below, would provide a
logical resting spot for a Coco Loco, especially given the absence of any
tables on Deck 12 or any other place upon which the drinks could be
conveniently rested. Furthermore, Plaintiffs contend, Defendants'
employees and agents regularly saw passengers drinking coconut drinks at
the Deck 12 gunwale while watching people below, and had been instructed
to pick up items left on that railing because of the possibility of injury
from items knocked to the deck below. Heavy, awkward, and difficult to
hold for some, so claim Plaintiffs, Coco Locos served on or brought to
Deck 12 were an accident waiting to happen to those at the buffet below.
In support of their contentions, Plaintiffs offer the opinion of an
asserted expert, the owner and director of International Bartenders
School, that specialty drinks such as the Coco Loco are designed to be
consumed only by seated customers and that "[a]llowing customers to stand
at the rail holding Coco Loco drinks is a recipe for disaster, an accident
waiting to happen." (Lessa Decl.  6.)

The parties' papers indicate a number of other disputes, the most
prominent of which concerns Defendants' policy of not permitting
passengers to use glassware on open decks such as Decks 11 and 12. This
policy is of moment, so the Plaintiffs claim, because the coconuts served
as part of Island Night were in violation of that policy. According to
Defendants, however, this policy is intended only to avoid the hazards
associated with broken glass, and not as a general policy to prevent
passengers from dropping heavy items, such as coconuts, on other
passengers. The parties also dispute the applicability of the doctrine of
res ipsa loquitur to the facts of this case.

To be sure, in a number of cases courts have granted summary
judgment or judgment as a matter of law in favor of defendants where the
plaintiff, injured while on a cruise due to a defective condition on-board
the ship, could proffer no evidence whatsoever that the ship's operator
had notice of the condition. See Monteleone, 838 F.2d at 65-66 (no notice
that defective screw protruded from brass stairway "nosing"); Rainey, 709
F.2d at 172 (no proof that appellee had actual or constructive notice of
presence of stool on dance floor); Cummiskey, 719 F. Supp. at 1188-90 (no
notice of wetness of ship's lounge area); Marchewka v. Bermuda Star Lines,
Inc., 937 F. Supp. 328, 335 (S.D.N Y 1996) (no notice of problems with
bunk bed ladder); Lee v. Regal Cruises, Ltd., 916 F. Supp. 300, 303
(S.D.N.Y. 1996) (no notice of presence of melting ice cubes on staircase),
aff'd, 116 F.3d 465, 1997 WL 311780 (2d Cir. 1997). Dismissal was
appropriate in those cases because, under "ordinary negligence
principles," a ship's owner or operator is "held responsible for defective
conditions aboard ship only when it had actual or constructive notice of
them." Calderera, 1993 WL 362406, at *3.

However, those cases involved "otherwise safe areas where the
sudden emergence or presence of an object (the protruding screw, the stool
on the dance floor) brought about a defective and dangerous condition,"
Friedman, 1997 WL 698184, at *3, and not a contention by the plaintiff
that the defendant(s) themselves created unsafe or foreseeably hazardous
conditions. This is an important distinction. See Lee, 916 F. Supp. at 303
n. 2 ("In a maritime case, of course, the owner may be liable also on the
basis of unseaworthiness or for negligently creating a dangerous condition
that causes an accident.") (citations omitted); Saia v. Misrahi, 129
A.D.2d 621, 621-22, 514 N.Y.S.2d 256 (2d Dep't 1987) ("Where . . . a
theory of liability submitted to the jury is that the appellant itself
created a dangerous condition which led to the . . . injury, notice is not
an essential part of the cause of action."). To require a plaintiff to
also establish notice in a case where the defendant's own activities
created a foreseeable and unreasonable risk of harm would be
inappropriate. Such a requirement would have the absurd result that
negligence actions could only be brought after a dangerous condition or
practice created by a defendant claimed a previous victim, whose own
recovery would be barred by the absence of notice.

Back to Top
Cruise Ship Injury Case - Object Fell on
Passenger from a Higher Level Deck
A Cruise Ship Injury Case Involving an
Object That Fell From Above. This case
involves a passenger who was injured
aboard the Cruise Ship Zenith when she
was struck in the head by a heavy tropical
drink that had fallen from one of the decks
above. The passenger on the deck below
sustained head injury as a result of this
accident. The drink that caused the
passenger’s injuries was called a “Coco
Loco”, served in an unhusked coconut. As
a result of her injury, the passenger on the
deck below brought an action against the
cruise ship line for negligence.
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