# Burton v. Carnival Corporation

> District Court, S.D. Florida · December 28, 2021

URL: https://www.frixlaw.com/law-library/cases/10120001

## Case

- **Court:** District Court, S.D. Florida
- **Decided:** December 28, 2021
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

United States District Court
for the
Southern District of Florida

Theresa Burton and others, )
Plaintiffs, )
)
Civil Action No. 20-25013-Civ-Scola
v. )
)
In Admiralty
Carnival Corporation, dba )
Carnival Cruise Line, Defendant. )

Order Denying the Plaintiffs’
Motion for Partial Summary Judgment
The Plaintiffs, thirty-six passengers who were aboard the Carnival Glory
when it collided with the docked Carnival Legend in Mexico, seek to recover
damages from Defendant Carnival Corporation, for injuries they say they
sustained as a result of the crash. (Compl., ECF No. 1, 11.) The Plaintiffs have
filed a motion for partial summary judgment, submitting that, under the
doctrine of res ipsa loquitor, they are entitled to a finding of liability as to their
negligence claim, the sole count in the complaint. (Pls.’ Mot. for Part. Summ.
J., ECF No. 19.) Carnival opposes the motion, complaining that the Plaintiffs
have failed to comply with Local Rule 56.1 in presenting their statement of
undisputed facts and, therefore, their motion is wholly unsupported and must
be denied. (Def.’s Resp, ECF No. 20, 4.) The Plaintiffs have timely replied. (Pls.’
Reply, ECF No. 21.) For the reasons set forth below, the Court denies the
Plaintiffs’ motion for partial summary judgment (ECF No. 19).
1. Background
The Glory, operated by Carnival, collided with the Legend, which was tied
up to a pier in Cozumel, Mexico, on December 20, 2019. The Plaintiffs,
passengers on board the Glory, allege they suffered various injuries as a result
of the impact. They maintain that Carnival was negligent and is therefore liable
for their damages. Carnival denies being at fault.
2. Legal Standard
Under Federal Rule of Civil Procedure 56, “summary judgment is
appropriate where there ‘is no genuine issue as to any material fact’ and the
moving party is ‘entitled to a judgment as a matter of law.’” See Alabama v. N.
Carolina, 130 S. Ct. 2295, 2308 (2010) (quoting Fed. R. Civ. P. 56(a)). At the
summary judgment stage, the Court must view the evidence in the light most
favorable to the nonmovant, see Adickes v. S.H. Kress & Co., 398 U.S. 144,
158-59 (1970), and it may not weigh conflicting evidence to resolve disputed
factual issues, see Skop v. City of Atlanta, Ga., 485 F.3d 1130, 1140 (11th Cir.
2007). Yet, the existence of some factual disputes between litigants will not
defeat an otherwise properly grounded summary judgment motion; “the
requirement is that there be no genuine issue of material fact.” Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). Where the record as a whole
could not lead a rational trier of fact to find in the nonmovant’s favor, there is
no genuine issue of fact for trial. Matsushita Elec. Indus. Co. v. Zenith Radio
Corp., 475 U.S. 574, 587 (1986).
“[O]nce the moving party has met its burden of showing a basis for the
motion, the nonmoving party is required to ‘go beyond the pleadings’ and
present competent evidence designating ‘specific facts showing that there is a
genuine issue for trial.’” United States v. $183,791.00, 391 F. App’x 791, 794
(11th Cir. 2010) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986)).
Thus, the nonmoving party “may not rest upon the mere allegations or denials
of his pleadings, but [instead] must set forth specific facts showing that there is
a genuine issue for trial.” See Anderson, 477 U.S. at 248 (citation omitted).
“Likewise, a [nonmovant] cannot defeat summary judgment by relying upon
conclusory assertions.” Maddox-Jones v. Bd. of Regents of Univ. of Ga., 2011
WL 5903518, at *2 (11th Cir. Nov. 22, 2011). Mere “metaphysical doubt as to
the material facts” will not suffice. Matsushita, 475 U.S. at 586.
3. Analysis
In their motion, the Plaintiffs argue they are entitled to “partial summary
judgment as to liability based on the doctrine of res ipsa loquitur.” (Pls.’ Mot. at
4.) In support, the Plaintiffs say (1) they are completely without fault for their
injuries; (2) Carnival had exclusive control of the Glory; and (3) the Glory’s
crashing into the Legend would ordinarily not occur in the absence of
negligence. (Id. at 6–8.) In opposition, Carnival says the Plaintiffs fail to provide
sufficient facts, both in substance and in form, to support their motion. (Def.’s
Resp. 4.) Because the Court agrees with Carnival, that the Plaintiffs have failed
to meet their burden of showing a factual basis for their position, their motion
is denied.
To begin with, the Plaintiffs failed to comply with Local Rule 56.1 in
multiple ways. Notably, a movant’s statement of material facts is required to
“list the material facts that the movant contends are not genuinely disputed.”
L.R. 56.1(a)(1) (emphasis added). Instead of listing only facts, however, the
Plaintiffs’ statement is replete with improper legal conclusions. For example,
the Plaintiffs announce they “were completely without fault.” (Pls.’ Stmt. Mat.
Facts ¶ 6, ECF No. 19, 2.) They then go on to say that Carnival “acted
unreasonably in the navigation or control of the . . . ship” and that, “but for the
negligence of the master or other officers in charge of the navigation and
control of the . . . Glory, [it] would not have collided with the Carnival Legend.”
(Id. ¶ 15.) The legal conclusions continue, unabated, through the remainder of
the Plaintiffs’ statement: “Carnival [was] negligent in the navigation or control
of the movements of the . . . ship” (id. ¶ 16); Carnival’s “agents or employees . .
. were negligent which . . . was the cause of the . . . colli[sion]” (id. ¶ 17); “If not
for the negligence of Carnival . . . the Carnival Glory cruise ship would not have
collided” (id. ¶ 18); and, finally, “Carnival . . . is liable for any injuries to the
passengers . . . if those injuries were caused by the collision” (id. ¶ 19). None of
these statements are properly included in a statement of material “facts” and,
accordingly, the Court will disregard them for the purposes of evaluating the
Plaintiffs’ motion.
Next, in addition to failing to present their statement of facts as a
separate filing, the Plaintiffs also failed to support each factual statement “by
specific, pinpoint references to particular parts of record material.” L.R.
56.1(b)(1)(B). Virtually their entire statement is devoid of any citations at all
and not one fact references a pinpoint citation, as required.1 Under Rule 56.1,
based on this lack of compliance, the Court may, among other options, strike
the statement “or enter other sanctions that the Court deems appropriate.” L.R.
56.1(d). But, because the Plaintiffs’ material facts are insufficient, in any event,
to support their motion—largely because of the legal conclusions presented as
if they were facts—the Court declines to strike the statement in its entirety.
However, the Plaintiffs are forewarned: future noncompliance with the Court’s
rules will result in the striking of noncompliant statements or briefs or other
sanctions, as may be appropriate.2

1 In an attempt to address these errors, the Plaintiffs, in reply, attach proposed revisions to
both their motion and their statement of material facts. (Pls.’ Reply, ECF Nos. 12-1, 12-2.) Not
only is this an improper and ineffective way to amend their summary-judgment briefing, but
the amendments are, moreover, lacking substantively. For example, the Plaintiffs repeat the
legal conclusions they set forth in the last five paragraphs of their statement, adding pinpoint
citations to the record that merely establish that the Plaintiffs were passengers on the Glory,
that Carnival operated the ship on the day of the collision, and that the passengers witnessed
the collision. And, so, even if the Court were to accept the amended filings, the statement is sill
noncompliant.
2 Remarkably, Plaintiffs’ counsel complains that the Defendant, in pointing out the defects in
their statement of material facts, is unfairly “attempt[ing] to capitalize on former counsel’s
inexperience which included never responding to or filing a motion for summary judgment
before throughout her career.” (Pls.’ Reply at 2.) Plaintiffs’ counsel brushes off the Plaintiffs’
statement’s shortcomings, describing them as “minor error[s] of form not substance.” (Id.)
Counsel’s position is concerning for many reasons. First, it shows a lack of supervision within
Plaintiffs counsel’s firm. It also indicates a lack of familiarity with the Rules Regulating the
As to the merits of the Plaintiffs’ motion, it too is lacking. Res ipsa
loquitur is an evidentiary rule that “provides an injured plaintiff with a
common-sense inference of negligence where direct proof of negligence is
wanting.” Goodyear Tire & Rubber Co. v. Hughes Supply, Inc., 358 So. 2d 1339,
1341 (Fla. 1978). The doctrine of res ipsa loquitur applies if: (1) the injured
party was without fault, (2) the instrumentality causing the injury was under
the exclusive control of the defendant, and (3) the mishap is of a type that
ordinarily does not occur in the absence of negligence. United States v. Baycon
Indus., Inc., 804 F.2d 630, 633 (11th Cir.1986).
The Court agrees with the Plaintiffs that, by establishing their
undisputed status as passengers (Pls.’ Stmt. ¶ 5; Def.’s Resp. ¶ 5), they have
likely satisfied the first element—at least in terms of causing the collision itself.
However, the Plaintiffs have not alleged any facts whatsoever to demonstrate
that they have met either of the other two elements. Instead, they point to a
paucity of evidence showing that any other entity or force had control of the
ship’s movement or that the crash was the result of anything other than
Carnival’s negligence. But a lack of evidence showing that something or
someone else might have controlled, or led to a loss of control, does not
affirmatively show that Carnival, and only Carnival, had exclusive control of
the ship’s movements. Similarly, simply stating, without the support of any
actual facts, that the collision would ordinarily not occur absent Carnival’s
negligence, is insufficient to carry the Plaintiffs’ burden of showing there are no
genuine issues as to any material facts.
The Plaintiffs rely heavily on another district court case, where the
Plaintiffs were granted partial summary judgment on the basis of res ipsa
loquitur, to make their point. Terry v. Carnival Corp., 3 F. Supp. 3d 1363 (S.D.
Fla. 2014) (Graham, J.). The case the Plaintiffs present here, though, is a far
cry from the well-developed factual record described in Terry. Id. at 1372–73. In
Terry, the record evidence described in detail the precise mechanism and
location of the breakout of a shipboard fire and what specific entities had had
access to the vessel’s engine room where a flexible fuel hose for a diesel
generator had developed a leak. Id. Here, in contrast, the Plaintiffs merely
describe a collision between two ships. By the Plaintiffs’ logic, the plaintiffs in
Terry could have prevailed on a theory of res ipsa loquitur by simply pointing to

Florida Bar which require law firm partners, or those lawyers with comparable managerial
authority, to “ensure that inexperienced lawyers are properly supervised.” FL ST BAR Rule 4-
5.1 (cmt). Finally, it conveys a total disregard for the Court’s rules and an apparent view that
noncompliance can simply be brushed away and routinely chalked up to nothing more than
harmless error. The Court cautions counsel: moving forward, counsel’s compliance with the
Court’s rules is not discretionary and further nonobservance will warrant sanctions.
a shipboard fire. But the fact of an accident alone is insufficient to establish
the application of res ipsa loquitur. Without more, the Plaintiffs’ position falls
wide of the mark.
4. Conclusion
Because the Plaintiffs have not carried their burden of showing a basis
for their motion, the Court denies the Plaintiffs’ motion for partial summary
judgment (ECF No. 19).
Done and ordered, in Miami, Florida, on December 27, 2021.
(ee N. Scola, Jr.
United States District Judge

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10120001. Public record. Not legal advice.