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Goldbach v. NCL Ltd

Goldbach v. NCL Ltd., No. 06-21248-CIV (S.D.Fla. 12/20/2006)

CASE No. 06-21248-CIV
December 20, 200

The opinion of the court was delivered by: Paul C. Huck United
States District Judge


THIS MATTER is before the Court upon Defendant's Motion for
Summary Judgment, filed November 8, 2006. The Court has considered the
Motion, Plaintiff's Response thereto and Defendant's Amended Reply in
further support thereof. The Court is duly advised in the premises.


This is an action for a personal injury sustained by Plaintiff,
Barbara Goldbach, on the May 22, 2005 sailing of Defendant's cruise ship,
the Norwegian Dawn. While at sea, Plaintiff attended a show in the ship's
"Stardust Theater" by a performer named Edzui "Edge" Szumowski. Szumowski
was an independent contractor employed by a talent agency, Blackburn
International. During the course of the show, Szumowski dropped an object
from the stage and into the audience. After Plaintiff returned the object
to the stage, Szumowski threw it back, directly toward Plaintiff's face.
Szumowski did so because he "thought it would be funny" and make the
audience laugh. Plaintiff successfully blocked the object with her right
hand, but was injured in the process.

On May 18, 2006, Plaintiff filed her three-count Complaint against
the Defendant cruise line. In Count I, Plaintiff claims that Defendant is
directly liable for negligence. In Count II, Plaintiff seeks to hold the
Defendant cruise line vicariously liable for the injury she sustained on
account of the performer, Szumowski's battery upon her. Finally, in Count
III, Plaintiff seeks to hold Defendant vicariously liable for the injury
she sustained on account of Szumowski's negligence. Defendant has moved
for summary judgment on all three Counts of Plaintiffs Complaint.


Summary judgment is appropriate if the pleadings, depositions, and
affidavits show that there is no genuine issue of material fact, and that
the moving party is entitled to judgment as a matter of law. Fed. R. Civ.
P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). An issue of
fact is "material" if it is a legal element of the claim under applicable
substantive law which might affect the outcome of the case. Anderson v.
Liberty Lobby, 477 U.S. 242, 248 (1986); Allen v. Tyson Foods, 121 F.3d
642, 646 (11th Cir. 1997). An issue of fact is "genuine" if the record
taken as a whole could lead a rational trier of fact to find for the
non-moving party. Allen,121 F.3d at 646. On a motion for summary judgment,
the Court must view all the evidence and all factual inferences drawn
therefrom in the light most favorable to the non-moving party, and
determine whether that evidence could reasonably sustain a jury verdict.
Celotex, 477 U.S. at 322-23; Allen, 121 F.3d at 646.

While the burden on the movant is great, the opposing party has a
duty to present affirmative evidence in order to defeat a properly
supported motion for summary judgment. Anderson, 477 U.S. at 252. A mere
"scintilla" of evidence in favor of the non-moving party, or evidence that
is merely colorable or not significantly probative is not enough. Id.; see
also Mayfield v. Patterson Pump Co., 101 F.3d 1371, 1376 (11th Cir. 1996)
(conclusory allegations and conjecture cannot be the basis for denying
summary judgment).


In Count I of her Complaint, Plaintiff seeks to hold Defendant
directly liable for negligence. Plaintiff claims that Defendant was
directly negligent by (1) failing to use reasonable care under the
circumstances, (2) allowing an unsafe and hazardous condition to exist on
board the ship, (3) failing to properly and adequately warn her as to the
dangerous condition; (4) failing to properly evaluate Szumowski's
performance; and (5) failing to perform a background check on Szumowski.
Defendant argues that it is entitled to summary judgment on Count I
because it seeks to extend Defendant's duty of care beyond what is
reasonable under the circumstances and, instead, make Defendant an insurer
of its passengers' safety.

Defendant first challenges Plaintiffs allegations of "dangerous
conditions" by noting that the performer in this case was a natural person
and not a "condition." Plaintiff do not respond to this aspect of
Defendant's Motion and appear to have abandoned this theory of liability.
Instead, Plaintiff focuses her Response on Defendant's alleged failure to
investigate the character of Szumowski's act and provide adequate warnings
as to the reasonably foreseeable dangers it posed. While Defendant is
correct in asserting that a cruise line is not the insurer of its
passengers' safety, it still owes a duty to its passengers to exercise
reasonable care under all the circumstances. McCormick Shipping Corp. v.
Warner, 129 So.2d 448 (Fla. 3d DCA 1961); Carlisle v. Carnival Corp., 864
So.2d 1 (Fla. 3d DCA 2003). This duty includes a duty to warn passengers
of dangers the cruise line knows or reasonably should have known. See
Carlisle v. Ulysses Line Ltd., S.A., 475 So.2d 248 (Fla. 3d DCA 1985). The
question of whether Defendant knew or should have known of the danger
posed by Szumowski's performance is a genuine issue of material fact
precluding summary judgment.

Although Defendant makes much of the fact that Plaintiff and
Plaintiff's husband acknowledged in their depositions that Szumowski's
action in throwing the object that injured Plaintiff was not a planned
part of the show, Plaintiff has adduced sufficient evidence of the
physical and highly audience-interactive nature of Szumowski's act from
which a reasonable fact finder could infer that Defendant was directly
negligent in failing to warn audience members or take other measures to
protect their safety. Specifically, Plaintiff has submitted a promotional
video of Szumowski's act which indicates that the act was somewhat
improvisational. The video shows Szumowski throwing things at audience
members for the entertainment of the audience. Moreover, Plaintiff cites
Szumowski's own deposition statement that he threw the object in question
here because he thought it would be funny and entertain the crowd. In view
of the foregoing, it appears that Plaintiff's own assessment of whether
Szumowski's conduct was part of the show is not dispositive of the
question of whether the Defendant cruise line knew or should have known
that Szumowski's act posed a danger of physical injury to audience
members. Therefore, the Court will not enter summary judgment as to Count

I. As for Counts II and III, however, summary judgment in favor of
Defendant is appropriate. Counts II and III seek to hold Defendant
vicariously liable for Szumowski's alleged battery and negligence,
respectively. It is undisputed that Szumowski was an independent
contractor. Where a performer is on board a vessel pursuant to an
agreement between the cruise line and the performer's employer, and
there is no evidence that the is permanently attached to the ship as a
crew member, that the cruise line has the right to control how the  
performer's act is performed, or that the performer's salary is paid by
the cruise line, the performer's negligence cannot be imputed
vicariously to the cruise line. McCann v. SeaEscape, Ltd., Inc., 641  
So.2d 892 (Fla. 3d DCA 1994).

Plaintiff seeks to avoid summary judgment on its Counts based on
vicarious liability by asserting that Szumowski was cloaked in apparent
agency. Apparent agency is established where (1) the alleged principal
makes some sort of manifestation causing a third party to believe that
the alleged agent had authority to act for the benefit of the
principal, (2)that such a belief was reasonable and (3) that the
claimant reasonably acted on such belief to her detriment. See Doonan
v. Carnival Corp., 404 F.Supp.2d 1367 (S.D.Fla. 2005). Other than her
conclusory statement in paragraph 18 of the Complaint that "Defendant
held the entertainment on the vessel as [its] own, such that a
reasonable person would believe the performer was an employee of []
Defendant", Plaintiff has neither alleged nor proven the elements noted

Even if Plaintiff had alleged the elements of apparent agency as
set forth in Doonan, other courts in this District have been unwilling to
allow recovery based on a theory of apparent agency in admiralty cases.
Id. (citing Warren v. Ajax Navigation Corp., 1995 AMC 2609 (S.D.Fla.
1995)). The court in Doonan accordingly limited its holding to the unique
facts alleged in the case before it. There, a plaintiffsought to hold a
cruise line vicariously liable for the negligence of a ship's doctor on a
theory of apparent agency. The allegedly negligent doctor wore a cruise
line uniform, ate with the ship's crew and was held out to the passengers
as an officer of the ship. Doonan, 404 F.Supp.2d at 1372.

While Plaintiff here attempts in her Response to the Motion for
Summary Judgment to establish that the performer Szumowski was similarly
"held out" as Defendant's agent, she falls short.

Plaintiff's deposition testimony that Szumowski's show was listed
in the ship's daily guide of on board activities and the fact that the
cruise line's website touts the Norwegian Dawn's Broadway style theater
and entertainment do not create the appearance that Szumowski was
Defendant's agent. As was the case in Warren, where recovery on a theory
of apparent agency was not allowed, such materials do not rise to the
level of a "true holding out" or "a manifestation that an agency existed"
between Defendant and Szumowski. Therefore, summary judgment in favor of
Defendant is appropriate with respect to Counts II and III. Accordingly,
it is

ORDERED that Defendant's Motion for Summary Judgment is DENIED as
to Count I of the Complaint and GRANTED as to Counts II and III. Summary
judgment is hereby entered in favor of Defendant with respect to Counts II
and III.

DONE AND ORDERED in Chambers, Miami, Florida, December 20, 2006.

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Cruise Ship Injury Case - Struck by Object
A Cruise Ship Injury Case Involving a Passenger
Injury from being struck by an object thrown from
the stage by a cruise ship entertainer. The cruise
ship passenger stated that the entertainer threw an
object at her face. This was following the
entertainer, an independent contractor dropping
the object into the audience and this cruise ship
passenger retrieving it and handing it back.
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