USCA11 Case: 19-13605 Date Filed: 11/20/2020 Page: 1 of 13
[DO NOT PUBLISH]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.
3
USCA11 Case: 19-13605 Date Filed: 11/20/2020 Page: 4 of 13
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.
4
USCA11 Case: 19-13605 Date Filed: 11/20/2020 Page: 5 of 13
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
9
USCA11 Case: 19-13605 Date Filed: 11/20/2020 Page: 10 of 13
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
10
USCA11 Case: 19-13605 Date Filed: 11/20/2020 Page: 11 of 13
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
11
USCA11 Case: 19-13605 Date Filed: 11/20/2020 Page: 12 of 13
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
12
USCA11 Case: 19-13605 Date Filed: 11/20/2020 Page: 13 of 13
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
Janet Francis v. MSC Cruises, S.A.
Combined Opinion