Ewing v. Carnival Corporation

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

MIAMI DIVISION

CASE NO. 19-20264-CIV-GOODMAN

[CONSENT CASE]

ERIC EWING,

Plaintiff,

v.

CARNIVAL CORPORATION,

Defendant.

____________________________/

ORDER ON DEFENDANT CARNIVAL’S RENEWED MOTION

FOR JUDGMENT AS A MATTER OF LAW

Following a jury trial and a verdict in favor of Plaintiff Eric Ewing, and pursuant

to Federal Rule of Civil Procedure 50(b), Defendant Carnival Corporation filed [ECF No.

403] its Renewed Motion for Judgment as a Matter of Law. Plaintiff Ewing filed a

response and Carnival filed a reply [ECF Nos. 405; 407]. For the reasons outlined below,

the Undersigned denies Carnival’s motion.

However, for purposes of this succinct introductory summary, Carnival’s motion

provided, at best, a skewed and incomplete version of a critical fact underlying one of its

primary arguments. At worst, it was a misleading misrepresentation which seemed

designed to disguise a critical factual flaw in its argument. Either way, the presentation

was problematic, to say the least. More on this unfortunate circumstance later.

Factual/Procedural Background and the Parties’ Contentions

Ewing is a disabled veteran who filed this lawsuit against Carnival for head and

neck injuries he allegedly sustained while a passenger aboard the Carnival Ecstasy cruise

ship. Ewing alleges he was injured when an upper-stowed bunk bed in his cabin

suddenly and without warning deployed and struck him on the top of his head. At the

time, Ewing was sitting on the lower bed, eating a slice of pizza.

Ewing contends that the incident caused him to sustain a traumatic brain injury.

Both sides filed summary judgment motions, which the Court denied. [ECF No. 102].

After the Court issued its summary judgment motions ruling, the Eleventh Circuit

Court of Appeals issued Yusko v. NCL (Bahamas), Ltd., 4 F.4th 1164 (11th Cir. 2021), which

held that a passenger need not establish that a shipowner had actual or constructive

notice of a risk-creating condition to hold a shipowner vicariously liable for the negligent

acts of its employees. This ruling resolved an issue which the Undersigned flagged in the

earlier order on summary judgment motions.

Because of Yusko, the Court permitted Plaintiff to proceed at trial on both a theory

of vicarious liability and direct liability [ECF No. 178], which means that Ewing did not

need to prove that Carnival had actual or constructive notice of the bunk bed being

unlocked or of the loose screws (i.e., dangerous conditions) in order to prevail on a

vicarious liability theory.

At trial, Ewing’s primary theory was that (1) the lock on the bunk stowed above

his bed could be unlocked only with a key and that Carnival had not provided him with

a key; and (2) the Carnival employee who was required to lock the bunk and to check its

locked status by pulling down on it (i.e., Rudolf Williams) did not properly do what was

required.

Before trial, Carnival’s defense was that screws holding the lock in place could

have loosened without any negligence on its part and that this scenario explains how the

bunk bed could have fallen on Ewing’s head. Carnival retained an expert engineer to

provide opinion testimony about this loose screw theory.

The jury returned with a verdict of no liability in Carnival’s favor, but the

Undersigned granted Ewing’s motion for a new trial because the Court, over Plaintiff’s

objection, incorrectly permitted Defendant to show the jury an unauthenticated cellphone

video which suggested that Plaintiff had, in effect, vandalized a so-called tamper-proof

lock on a bunk bed stowed over his bed in a cruise ship cabin. [ECF No. 270]. Not only

was the video unauthenticated and unfairly prejudicial, but the Undersigned’s effort to

eliminate the prejudice through a curative instruction was woefully inadequate for

several reasons.

After granting Ewing’s new trial motion, the Undersigned held a second jury trial.

The jury determined that Carnival and Williams were negligent and that their negligence

was a legal cause of injury to Ewing. It also determined that Ewing was not negligent and

it awarded Ewing $275,000 for past damages and $400,000 for future damages, for a total

damages award of $675,000. [ECF No. 391].

Carnival filed a post-trial Renewed Motion for Judgment as a Matter of Law [ECF

No. 403]. Ewing filed a Response and Carnival filed a Reply [ECF Nos. 405; 407].

By way of summary, Carnival’s motion argues that there was no legally sufficient

evidence introduced which would permit a reasonable jury to find that (1) Williams

breached a duty; (2) Carnival breached a duty by supplying a defective pullman-type bed

in Ewing’s cabin, or (3) Carnival had actual or constructive notice of a risk-creating

condition.

Ewing’s theory at trial was that Williams failed to lock (or competently lock) the

pullman-type beds in Ewing’s cabin, as required by Carnival’s procedure. Carnival

argues that Ewing did not introduce any evidence to corroborate this theory at the second

trial and that the evidence actually “directly rebuts” this theory. [ECF No. 403, p. 4].

Carnival’s argument focuses on Williams’ testimony that he conducted a

pulldown test on the beds on January 25, 2018 to ensure that they were locked and that

he was satisfied that they were, in fact, locked on that date. It says that Ewing did not

produce any evidence to show that Williams failed to properly lock the beds. Instead,

Carnival says, Ewing “simply alleged that because the pullman beds were open at the

time of Plaintiff’s video, that automatically meant that Rudolph [sic] Williams must have

failed to lock them.” Id. at 6. [“Plaintiff’s video” refers to cellphone video of the two

stowed bunk beds which Ewing took in his cabin after the bed above the bed he was

using fell down on his head. The video graphically showed that both beds were unlocked,

as Ewing was able to open the other supposedly locked upper bed and the one over his

own bed was open -- and therefore, Ewing contends, had to have been unlocked -- after

it fell on his head].

According to Carnival, Ewing failed to produce evidence to show that Carnival

was vicariously liable for Williams’ omission because it did not establish breach of a duty,

which, in turn, means that the jury’s verdict was not supported by sufficient evidence.

Carnival emphasizes that Ewing had the burden to prove that Carnival was

vicariously liable for the supposed acts or omissions of Mr. Williams. To be sure, Carnival

notes, Ewing’s testimony (and his cellphone video) establish that the beds were open

when he was filming. But, Carnival then says, this testimony does not establish how or

why the cabin’s two beds became open, much less proving that an act or omission by

Williams caused the beds to be unlocked.

Carnival argues that Dr. Kadiyala (Plaintiff’s expert engineer) did not give opinion

testimony to prove that Williams did something, or failed to do something, which caused

the beds to be unlocked and then led to one of them opening suddenly on top of Ewing’s

head. Ultimately, Carnival argues, Ewing “failed to proffer enough evidentiary support

to justify the major leap of a conclusory allegation that because the subject pullman-bed

was opened, Rudolph [sic] Williams must have acted negligently.” [ECF No. 407, p. 4].

In his opposition response, though, Ewing says that Carnival’s motion is, in effect,

an untenable request asking the Court to believe its evidence and to disbelieve Ewing’s

evidence -- a view which runs afoul of the rule that juries, not judges, make credibility

determinations, weigh evidence, and draw legitimate inferences from the facts.

Ewing further, and more specifically, pointed out that this Court, in its Order

granting Ewing’s new trial motion, explained that the jury could accept or reject

Williams’ testimony for myriad reasons. He says the jury was entitled to, and apparently

did, believe Ewing’s testimony and also rejected Williams’ testimony as incredible.

Ewing next tackled Carnival’s argument that Ewing’s liability expert, Dr.

Kadiyala, purportedly agreed in his testimony that Williams had in fact locked the bunk.

Ewing pointed out the obvious fact that Dr. Kadiyala merely acknowledged that Mr.

Williams had claimed, in his testimony, that he had properly locked the bunk. In other

words, he did not adopt or accept as true Williams’ self-serving testimony.

Carnival’s second challenge is its argument that Ewing did not prove his direct

liability negligence claim. More specifically, it argues that Ewing (1) failed to prove the

existence of a defective condition and (2) failed to establish constructive notice of a

defective condition concerning the beds in the cabin.

Concerning the first argument, Carnival contends that the beds and their locking

mechanisms were in good working order. In effect, Carnival’s implicit argument seems

to be that a bed which is otherwise in good working order is not in a defective condition if

the locks were working but had not been properly locked in the first place.

Concerning the second argument, Carnival says that Ewing’s efforts to establish

its constructive notice of a dangerous condition through the purportedly similar prior

incidents fail because the prior incidents are not similar enough to support a constructive

notice conclusion. Carnival also argues that Ewing did not prove that the defective

condition existed for a sufficient period to invite corrective measures by Carnival.

In his opposition, Ewing argues that the dangerous condition here is an unlocked

or improperly locked bunk bed, but he notes that the issue is not necessarily limited to

this specific bunk. Instead, he says, the issue is whether Carnival knew, more generally,

that the pullman bunks pose a danger if they were not properly locked.

Ewing notes there are at least three customary ways to establish constructive

notice: (1) evidence of an applicable warning sign; (2) the existence of one or more

substantially similar prior incidents (and that one incident is enough); and (3) the cruise

line has taken corrective measures to prevent or guard against the danger. Ewing says he

presented sufficient evidence on all three methods.

First, Ewing notes that Carnival affixed warning signs to each pullman bunk,

which established the danger inherent in opening the bunks and which warned the

passenger not to open or close bunks (and to, instead, seek assistance from stewards).

Second, Ewing emphasizes that the jury heard evidence of at least two (or perhaps

three) prior incidents of bunks coming down and striking passengers. [One of the

incidents listed on a chart prepared by Carnival was the very incident at issue here – i.e.,

Ewing’s claim]. It was up to the jury, Ewing argues, to determine whether the incidents

were substantially similar.

Third, he points out that Carnival had policies in place to make sure the bunks

were properly locked and secured and would not unexpectedly deploy and hit

passengers.

Finally, Ewing contends that his liability expert, Dr. Kadiyala, proffered an expert

opinion which suggested that the pullman bed was a dangerous condition. Specifically,

he says, the dangerous condition was either that the bunks were not locked at all or they

were not pushed in sufficiently to activate the locking mechanism.

Applicable Legal Principles and Analysis

Federal Rule of Civil Procedure 50(b) governs a post-trial renewed motion for

judgment as a matter of law.

Rule 50(b) allows a party whose motion for judgment as a matter of law pursuant

to Rule 50(a) was denied at trial to renew the motion before the Court after judgment has

been entered, along with an alternative or joint request for a new trial under Rule 59. See

Fed. R. Civ. P. 50(b).1 Rule 50(a) “is the mechanism for defendants to challenge the

sufficiency of a plaintiff’s evidence at and after the close of the evidence.” Peer v. Lewis,

No. 06-60146-CIV-EGT, 2008 WL 2047978, at *3 (S.D. Fla. May 13, 2008). “[A]ny renewal

of a motion for judgment as a matter of law under Rule 50(b) must be based on the same

grounds as the original request for judgment as a matter of law prior to the case being

submitted to the jury.” Id. (citing Chaney v. City of Orlando, 483 F.3d 1221, 1227 (11th Cir.

2006) (internal citations and quotations omitted)).

Renewed motions for judgment as a matter of law pursuant to Rule 50(b) are

reviewed under the exact same standard as Rule 50(a). Id. Under this standard, “[a]

district court should grant judgment as a matter of law when the plaintiff presents no

legally sufficient evidentiary basis for a reasonable jury to find for him on a material

element of his cause of action.” Alphamed Pharms. Corp. v. Arriva Pharms., Inc., 432 F. Supp.

2d 1319, 1332 (S.D. Fla. 2006) (citing Pickett v. Tyson Fresh Meats, Inc., 420 F.3d 1272, 1279

(11th Cir. 2005)).

On the other hand, “the Court should deny the motion if the plaintiff presents

enough evidence to create a substantial conflict in the evidence on an essential element

of the plaintiff’s case.” Id. (internal quotations omitted); Pickett, 420 F.3d at 1278 (11th Cir.

1 Carnival did not use the Rule 50(b) authority to include an alternate or joint

request for a new trial under Federal Rule of Civil Procedure 59.

2005); Goodloe v. Royal Caribbean Cruises, Ltd., 418 F. Supp. 3d 1112, 1119 n.8 (S.D. Fla.

2019).

This Court must consider all of the evidence in the light most favorable to the non-

moving party, Plaintiff, to determine whether the evidence is legally sufficient to find for

Plaintiff on the claims presented. Lebron v. Royal Caribbean Cruises, Ltd., 818 F. App’x 918,

920 (11th Cir. 2020) (reversing order granting motion for judgment as a matter of law2 on

issue of whether the plaintiff presented sufficient evidence for a reasonable jury to infer

that the cruise ship operator had actual or constructive notice of the unsafe ice conditions

(citing Collins v. Marriott Int’l, Inc., 749 F.3d 951, 957 (11th Cir. 2014))).

The Eleventh Circuit will affirm the denial of the entry of a judgment as a matter

of law “only if the facts and inferences ‘point so overwhelmingly in favor of the movant

. . . that reasonable people could not arrive at a contrary verdict.’” Id. at 920 (quoting Bogle

v. Orange Cty. Bd. of Cty. Comm’rs, 162 F.3d 653, 656 (11th Cir. 1998)) (emphasis added).

The Court must uphold the jury’s verdict “unless there is no legal basis upon

which the jury could have found for the plaintiff.” Peer, 2008 WL 2047978, at *3 (quoting

2 The appellate court in Lebron explained that Defendant Royal Caribbean moved

“for a directed verdict” and later advised that the district court granted the motion for a

directed verdict. 818 F. App’x at 919-20. But in the analysis section, the Eleventh Circuit

noted that it was “review[ing] the district court’s entry of a judgment as a matter of law

de novo.” Id. at 920. The judgment as a matter of law remedy replaced the directed verdict

terminology. The 1991 Amendment to the Federal Rule of Civil Procedure 50(a)

“abandon[ed] the familiar terminology of direction of verdict for several reasons.” Fed. R.

Civ. P. 50(a) advisory committee note on 1991 amendment (emphasis in original).

Telecom Techn. Servs., Inc. v. Rolm Co., 388 F.3d 820, 830 (11th Cir. 2004)) (internal

quotations omitted); see also Delpit v. Nocuba Shipping Co., 302 F.2d 835, 838 (5th Cir. 1962)

(explaining that the court may not “second-guess jurors or substitute [its] judgment for

theirs”).

The Court may not engage in “[c]redibility determinations, the weighing of the

evidence, and the drawing of legitimate inferences from the facts”—those are the

functions of the jury. Alphamed, 432 F. Supp. 2d at 1332 (citing Reeves v. Sanderson Plumbing

Products, 530 U.S. 133, 150 (2000)). “[A]lthough the [C]ourt should review the record as a

whole, it must disregard all evidence favorable to the moving party that the jury is not

required to believe.” Id. “If there are conflicting inferences that can be drawn from [the]

evidence, it is not the [C]ourt’s role to pick the better one. Instead, all reasonable

inferences from the evidence must be drawn in [the non-movant’s] favor.” Peer, 2008 WL

2047978, at *4 (citing Jackson v. State of Alabama State Tenure Comm'n, 405 F.3d 1276, 1281

(11th Cir. 2005)); see generally Adria MM Prods., Ltd. v. Worldwide Ent. Group, Inc., No. 17-

21603-VIV-MORENO, 2019 WL 861366 (S.D. Fla. Feb. 22, 2019) (summarizing principles

outlined above and denying posttrial, renewed motion for judgment as a matter of law).

Stripped down to its basics, Carnival’s challenge to the vicarious liability theory

of negligence is that it implicitly contends that the jury was not entitled to infer that

Williams’ testimony about always remembering to lock the bunk beds and always

remembering to do the pulldown test was incorrect as to the specific bunk bed in Ewing’s

cabin on the precise cruise at issue. Although Carnival did not phrase its argument in

these exact words, its position, in effect, is that a jury must believe William’s testimony

absent direct evidence to the contrary, such as a fellow steward admitting that Williams

did not venture into Ewing’s cabin during the cruise or another passenger overhearing

Williams admit that he might not have done the pulldown test in Ewing’s cabin.

Juries, of course, make credibility determinations, and a Rule 50(b) motion is not

designed to permit judges to second-guess the jury’s credibility assessments or the

evidence-based inferences it reached. See Strickland v. Norfolk S. Ry. Co., 692 F.3d 1151,

1154 (11th Cir. 2012) (“Credibility determinations, the weighing of evidence, and the

drawing of legitimate inferences from the facts are jury functions, not those of a judge.”);

see also Tennant v. Peoria & P.U.R. Co., 321 U.S. 29, 35, 64 S.Ct. 409, 88 L.Ed. 520 (1944)

(“The very essence of [the jury’s] function is to select from among conflicting inferences

and conclusions that which it considers most reasonable. That conclusion . . . cannot be

ignored.”).

Ewing testified that he did not pull down the bunk bed himself and did not try to

jimmy open the lock. Williams testified that he properly locked and performed the

pulldown test in Ewing’s cabin. But the jury was entitled to infer that Williams’ memory

was incorrect or that he was not being entirely candid. This inference, if reached by the

jury, would have been based, in part, on Dr. Kadiyala’s expert opinion. He testified that,

more likely than not -- and contrary to Williams’ testimony -- the bunk was not locked.

Significantly, Kadiyala’s expert opinion testimony was supported by Ewing’s

testimony and his cellphone video showing both bunks were unlocked -- the one directly

over Ewing’s bed and the one across the cabin, above an unused bottom bed. Neither

Carnival nor its experts had a logical explanation as to why both upper bunks were open

(and capable of falling down unexpectedly) if Williams’ testimony was correct (i.e., that

he specifically remembers checking and doing a pulldown test on both stowed beds in

Ewing’s cabin and that the special device stewards used to unlock stowed beds was not

distributed to passengers).

Given these facts, a jury was certainly permitted to conclude, based on evidence-

based inferences, that Williams did not, in fact, both lock the upper bunk and use the

pulldown test to make sure that the lock had actually engaged. Ballance v. Wal-Mart Stores,

Inc., 178 F.3d 1282 (4th Cir. 1999) (evidence was sufficient to support jury’s verdict finding

Wal-Mart negligent for leaving hangers on the floor which caused the plaintiff to fall

based on the statement made by a Wal-Mart employee upon finding the plaintiff after her

fall that “I get so tired when it gets 5 o'clock in the afternoon. Them stock boys get ready

to go, they just go and leave everything right in the middle of the aisle and don't make a

difference what's sitting in there[,]” even though there was no direct evidence of who

left the hangers on the floor) (emphasis added); Hale v. Norfolk S. Corp., No. CV 08-635,

2009 WL 10685459, at *7 (M.D. Pa. Apr. 24, 2009) (even though the track inspector testified

that he inspected the train switches every 30 days and performed repairs on any

identified defects, the plaintiff’s expert’s testimony that the train inspectors definition of

a “defect” was misplaced and did not encompass all defects as defined by the Federal

Railroad Administration was sufficient to permit a jury to infer that the train inspector

was negligent in maintaining the switches at the rail yard) (emphasis supplied)).

Carnival argues that Dr. Kadiyala’s expert opinion testimony was insufficient to

rebut Williams’ testimony, but the Undersigned disagrees. Just like the expert testimony

in Hale, Dr. Kadiyala provided a firm enough foundation to support a jury determination

that Williams’ testimony was not credible enough to support a defense verdict. Jones v.

Otis Elevator Co., 861 F.2d 655, 664 (11th Cir. 1988) (rejecting the defendant’s argument

“that the plaintiff presented no evidence Otis maintained the elevator negligently”

because although the evidence of Otis’ negligence was “certainly conflicting,” it is the

role of the jury “to weigh conflicting evidence and inferences” and the testimony of the

plaintiff’s expert -- who examined the elevator three years after the incident -- that the

elevator was negligently maintained, combined with the plaintiff’s testimony that he

suffered an injury caused by the elevator, was sufficient to support a verdict in favor of

the plaintiff); Watford v. Simon, 163 F. Supp. 664, 665 (E.D. Pa. 1958) (evidence sufficient

to support finding defendant was negligent in causing a car crash which injured his

passengers despite the fact that the passengers were asleep when the accident occurred

and the defendant, as the only witness, testified that he was blinded by the light of an

oncoming vehicle because “the reasonableness of his testimony and his credibility were

questions for the jury, and as such, if they disbelieved him, a verdict in favor of the

plaintiff would have been proper”); Allen v. Wal-Mart Stores, Inc., 241 F.3d 1293, 1296 (10th

Cir. 2001) (the plaintiff’s testimony that she saw an employee reaching for boxes on a high

shelf shortly before the boxes fell on her was sufficient to sustain the jury’s verdict that

Wal-Mart was negligent even though the plaintiff did not actually see what caused the boxes to

fall and the employee testified that she had not been reaching for the boxes when they fell

because “[t]he weighing of evidence, the reconciliation of inconsistent testimony, and the

assessment of a witness' credibility is solely within the province of the jury”).

The Undersigned therefore rejects Carnival’s Rule 50(b) motion concerning a

vicarious liability negligence theory of establishing grounds to support the jury’s verdict.

Moving on to direct liability, an applicable warning sign can constitute sufficient

constructive notice of a dangerous condition to submit the issue to the jury. See, e.g.,

Guevara v. NCL (Bahamas) Ltd., 920 F.3d 710 (11th Cir. 2019); Sorrels v. NCL (Bahamas) Ltd.,

796 F.3d 1275, 1288 (11th Cir. 2015).

Carnival posted warning signs to each pullman bunk: “CAUTION-Only

authorized personnel may operate the [p]ullman bed. Please request assistance.”

Carnival contends that this notice is inadequate to establish this theory of

establishing constructive notice because it does not prove that the sign was connected to

the proposed danger at issue. According to Carnival, the danger is in opening the bunks

and the sign appears when the pullman bed is in the open position. But the warning sign

does not focus only on opening the bed. It does not say that assistance is needed only to

open the bed. Instead, it warns passengers to seek assistance in order to “operate” the

bed. A jury is able to conclude that operate encompasses both opening and closing. In fact,

the greater risk might be if a passenger closed the bed by himself without assistance

because he would not have the key or locking device to lock the bunk into its upright

position into the wall and would likely not know to conduct a pulldown test.

So the Undersigned concludes that a jury was entitled to infer that the warning

sign constituted sufficient evidence of Carnival’s constructive notice of the dangerous

condition (i.e., unlocked or inadequately locked upper bunk beds in passenger’s cabins).

Shifting to another of Carnival’s primary arguments, it says the three prior

incidents are not similar enough to provide constructive notice under the prior similar

incident approach.

The occurrence of substantially similar incidents may be used to establish

constructive notice in a maritime tort case. See, e.g., Taiariol v. MSC Crociere, S.A., 677 F.

App’x 599, 601 (11th Cir. 2017). The substantial similarity doctrine does not require

identical circumstances, and it allows for some play in the joints depending on the

scenario presented and the desired use of the evidence. Sorrels, 796 F.3d at 1287. In

applying this standard, the relevant question is whether “the two incidents were similar

enough to allow the jury to draw a reasonable inference” concerning the cruise ship

operator’s “ability to foresee” the incident at issue. Id. at 1288 (quoting Borden, Inc. v. Fla.

E. Coast Ry. Co., 772 F.2d 750, 755 (11th Cir. 1985)).

Even if the Court were to analyze only the one prior incident involving Kimberly

Jones, one prior, similar incident can indeed be enough to prevent summary judgment

against a personal injury plaintiff urging a constructive notice theory. Cogburn v. Carnival

Corp., No. 21-11579, 2022 WL 1215196, at *4-5 (11th Cir. Apr. 25, 2022) (per curiam)

(reversing summary judgment for the cruise line defendant because one prior incident

was substantially similar to the plaintiff’s fall).

In Cogburn, the Eleventh Circuit focused on one of the prior incidents and

explained that, because it had determined that the one prior incident it evaluated was

substantially similar, it did not need to address the other alleged prior similar incidents.

Id. at *5. (“Given this determination, we need not decide whether any of the other prior

incidents that [the plaintiff] identified were similar enough to [the plaintiff’s] fall to put

Carnival on notice of the risk-creating condition or whether the statements of any captain

or safety officer established that Carnival had notice.”); see also Quashen v. Carnival Corp.,

576 F. Supp. 3d 1275, 1296–97 (S.D. Fla. 2021) (“Carnival was placed on constructive

notice by a [singular] prior incident that occurred under substantially similar

conditions.”).

Carnival’s motion claims that the prior incident involving Jones, another

passenger injured by a falling bunk bed on a similar ship, was not actually “substantially

similar” because she was “pushing [her] cabin’s pullman-bed[] up, and stowing it

[herself], to make more space in [her] cabin[], prior to [it] falling.” [ECF No. 403, pp. 11-

12].

To support this flat-out, stated-as-an-absolute-fact representation, Carnival did not

cite or refer to the specific pages from Jones’ deposition or submit the relevant deposition

transcript pages as exhibits to its motion. [Jones did not appear at trial as a live witness;

excerpts from her deposition were read to the jury by both sides, pursuant to deposition

page designations]. Instead, it relied upon the trial testimony of its corporate

representative (Monica Borcegue), who said at trial that she “believed” that the Jones

incident (and another incident) involved a passenger trying to “put away the beds trying

to make more space in the cabin or whatever that was.” [ECF No. 404-7, p. 34].

Borcegue also claimed, later in her trial testimony, that the Jones incident report

(prepared by a Carnival employee) says “that she was with other guests in the cabin and

she also needed to make more space or whatnot, whatever she was doing, and she put

up the bed as well without asking a steward to come in and put it away for her.” Id. at 72.

But Jones’ deposition testimony, excerpts of which were presented to the jury at

trial, unequivocally explained the complete opposite. Specifically, Jones testified as

follows:3

3 Jones gave her deposition on October 16, 2019. Plaintiff submitted her deposition

on January 16, 2020, as part of a reply in support of his motion for partial summary

judgment. [ECF No. 53-2]. Borcegue’s trial testimony was on November 14, 2022. In

Q. In the morning when you would go, say the group would go to breakfast

and you would come back from breakfast, in what position would those

upper bunks be upon returning to the room after breakfast?

A. By that time everything is put back in place. Those beds are up and the

other bed is made up. And you could tell someone had been in there like

cleaned up, picked up trash and things, but the beds were up.

Q. Did you or anyone within your group, to your knowledge, ever raise or

lower the upper bunks?

A. No. We never had to do that.

Q. The raising and lowering of bunks during the cruise we’re talking about

that you sailed on board the Fantasy, was that done by the ship’s crew?

A. Yeah, someone that worked there. One of us never did it, no.

***

Q. Okay. Did you do anything that you are aware of to cause that upper

bunk on the right, in the right side of your room, to come down and hit

you?

A. No, because I didn’t touch that bed. I was just getting dressed for the

day.”

***

Q. As you sit here today, do you know the exact reason why that upper

bunk on the right-hand side of the room came crashing down on you?

A. It was after the fact, this man came in. I didn’t know who, how he played

a part with the ship. He came in and he said something about this needed

to be something, and I was like, ‘We don’t do that. We’ve never messed

with the beds.’ …..

addition, Plaintiff presented Jones’ deposition testimony at the first trial, which Borcegue

attended as Carnival’s corporate representative. [ECF No. 196]. So there is absolutely no

doubt that Carnival, its counsel and Borcegue all knew about Jones’ deposition testimony

-- explaining that she never tried to push the upper bunk up into its storage position -- by

the second trial.

[ECF No. 53-2, pp. 8-11 (emphasis supplied)].

The descriptions of the Jones and Cross incidents in Carnival’s chart of other

incidents from January 25, 2015 through January 25, 2018 aboard Fantasy class vessels

[ECF No. 405-1] seemingly establish sufficient similarity to permit a jury to consider the

two incidents to be similar enough for constructive notice purposes.

According to Carnival’s chart, the Cross incident (from March 25, 2016) was

described by Carnival as “Guest claimed that while he walking [sic] toward the television

in his cabin in order to get the bag and suddenly upper bunk bed fell from the wall.”

Id. at 2 (emphasis added). Other than the fact that Ewing was sitting on his bed when the

bunk fell and Cross was walking in his cabin, the way the upper bunk fell (i.e., suddenly)

is sufficiently similar.

Likewise, in the Jones prior incident, Carnival’s report described the incident as

follows: “TOP BUNK BED FELL -Female guest claimed that, while conversing with her

cabin mate in her cabin M-96, the upper bunk bed allegedly dropped down.”

Those two summaries surely sound similar to the scenario at issue here with

Ewing, except that he was alone in his cabin and not speaking with anyone else in the

cabin when the bed suddenly deployed. And, as noted, the jury heard Jones testify that

she had not done anything to the bed before it fell on her.

But Carnival’s post-trial motion now claims that both incidents are dissimilar

because the passenger herself (or himself) pushed the upper bunk into the storage area

on the wall. But, as highlighted above, Carnival never mentioned in its motion that Jones’

actual deposition and trial testimony (which were identical, except only excerpts were

read to the jury at trial) refuted that claim. Carnival never mentioned this trial testimony

in its motion or in its reply memorandum. Nor did it suggest that it even exists. Rather,

it ignored her trial testimony and relied exclusively on Borcegue’s stated belief that a

Carnival-created incident report not introduced into evidence suggested that Jones lifted

and put away the bunk bed herself.

Moreover, in a five-hour hearing [ECF No. 85] on April 28, 2020 to argue summary

judgment motions, Carnival’s counsel discussed the Jones prior incident and never once

tried to argue that it was not substantially similar because she purportedly pushed the

bunk up herself. Instead, his argument about her incident is quoted below:

Plaintiff has put forth evidence of one prior incident involving Ms. Jones.

She was the only person deposed. I attended that deposition. She said: The

bunk just opened. It bumped me on the head. I got a headache. Fortunately,

she didn't have any injuries that required treatment after the cruise was

over.

[ECF No. 93, p. 51]. A short while later during the five-hour hearing, Carnival’s argument

included the following point:

And I would submit that those line of cases, including Tesuriero [sic]4, stand

for the proposition that you need to have instances of prior incidents with

a sufficient frequency to put you on notice. And prior to Mr. Ewing, on this

class of eight ships, only Ms. Jones, one incident. That's the only one that

arguably is substantially similar.

4 Tesoriero v. Carnival Corp., 965 F.3d 1170 (11th Cir. 2020).

Id. at 52 (emphasis added).

Again, no mention of Jones supposedly pushing the bunk up herself. [Of course,

by that time -- April 28, 2020 -- Carnival had already participated in Jones’ deposition (on

October 16, 2019) and Plaintiff had already filed Jones’ deposition transcript (which

expressly and repeatedly denied Borcegue’s later trial testimony that she “believed” that

Jones had pushed up the upper bunk bed herself to stow it and make more room in the

cabin)]. Borcegue did not mention at trial whether her belief was in any way informed by

Jones’ actual testimony, which, as noted, is completely inconsistent with the incident

report cryptically referenced by Borcegue. The incident report was not introduced into

evidence, in any event.

In addition, in a post-hearing memorandum of law filed on June 5, 2020, Carnival

discussed Jones’ prior incident but did not contend that it was not a similar incident

because she herself pushed up the bunk bed. [ECF No. 95].

Moreover, Carnival did not make any specific argument in its motion concerning

the third prior incident, which was not listed on the chart [ECF No. 405-1] but which was

discussed in the direct trial testimony of Carnival’s corporate representative. Neither

Carnival nor Ewing submitted the representative’s testimony from the instant trial.

Ewing argues that it was up to the jury to determine whether the incidents were

substantially similar. The Undersigned agrees.

Given Jones’ trial testimony, a rational jury could surely have viewed her prior

incident as one which was substantially similar and which served to put Carnival on

constructive notice.

Furthermore, the chart descriptions of both the Jones and Cross incidents

demonstrate similarity with the instant case, and they do not even suggest that either

passenger pushed the bed up. Assuming arguendo that the incident reports for the Cross

and Jones incidents do in fact reference the theory that the passengers pushed up the

beds, a jury would be entitled to decide which of the two versions to believe (the chart or

the incident report). Regardless of whether Borcegue’s testimony about her belief were

credible5 (a matter which is left to the province of the jury), the jury would still be left

with a conflict between the chart summary (which does not mention or suggest that the

5 Carnival’s decision to incorrectly present only a skewed version of Jones’ prior

incident is odd and inexplicable. The Undersigned presided over both trials and

personally heard Jones’ deposition testimony when excerpts were read to the juries in

both trials. [ECF Nos. 145; 196]. In addition, the Jones deposition transcript is a matter of

record, having been filed as an exhibit.

So it is difficult to discern a strategic reason for Carnival’s fundamentally

incomplete and misleading presentation about the nature of the Jones incident. Jones

provided straightforward, clear and consistent testimony about not pushing the upper

bunk bed up before it fell on her. Thus, Carnival’s choice to represent the incident as one

where Jones “stow[ed] it [herself], to make more space in [her] cabin[], prior to [it] falling

[ECF No. 403, pp. 11-12] is bizarre, and its decision to not even mention the conflicting

testimony from Jones is equally as peculiar. Nevertheless, that is what happened, and

Carnival now finds itself in the awkward position of having urged a grossly incomplete,

substantively incorrect and inherently unfair fact-based argument to the Court.

passenger involved pushed up the bunk bed) and Borcegue’s claimed belief that Cross

and Jones each pushed the bunk bed up and into the storage area on the wall. The jury

was authorized to resolve this possible factual conflict6 in Ewing’s favor and deem the

prior incidents to be a substantially similar.

Neither party has discussed the specifics of the third allegedly similar prior

incident (assuming that it is someone other than Ewing himself). Indeed, they have not

even mentioned the name of the passenger. So the Undersigned is not in a position to

determine whether it is substantially similar.

Given that this Court must consider all of the evidence in the light most favorable

to Ewing, Jones’ unequivocal testimony7 and the Carnival-prepared summary chart

describing the Jones and Cross incidents in a way which reflects substantial similarity

with Ewing’s incident militates against ruling in Carnival’s favor on the prior similar

incident argument.

6 The Carnival attorney who filed the instant motion fully participated in the trial

and attended every day of it. So he was there when Jones testified about her prior incident

(and denied adjusting or moving the upper bed before it fell on her). The other two

defense attorneys who appear as signatories on the motion are partners in the law firm.

They participated every day at both the first trial and the second trial. So they, too, were

in Court to hear Jones’ testimony read to the jury.

7 Jones did not file a lawsuit or pursue a claim against Carnival. She provided

deposition testimony after Ewing’s attorney obtained her name and contact information

from Carnival, which was required to produce discovery about prior similar incidents.

Summary-style information about the Jones incident was provided by Carnival on its

chart.

Finally, Carnival’s last challenge to notice concerns evidence that a cruise line has

taken corrective measures to prevent or guard against a danger. Brady v. Carnival Corp.,

33 F.4th 1278, 1281 (11th Cir. 2022) (quoting Carroll v. Carnival Corp, 955 F.3d 1260, 1265).

Typically, these types of corrective measures involve the adoption of policies to prevent

a particular danger. See, e.g., Lebron, 818 F. App’x at 922 (“First, Royal Caribbean’s expert

and employee explained it is important to maintain and resurface the ice to prevent

accident and injury. This establishes Royal Caribbean’s general knowledge of the unsafe

condition at issue – gouges in the ice.”).

Likewise, here, Carnival’s expert, corporate representative, and other employees

explained the importance of properly locking and performing the pulldown test to make

certain that the bunk was secured in order to prevent accident and injury. Lebron also

found relevant testimony that “Royal Caribbean has policies in place to keep the ice clean

and smooth.” Id. at 920. Here, Carnival has policies in place to make certain that the bunks

are properly secured and will not deploy unexpectedly and hit passengers, such as

occurred to Mr. Ewing.

Carnival contends that the written policy is inadequate to establish that purpose.

The Undersigned finds this argument unpersuasive.

The policy at issue was introduced into evidence. Entitled “Inspection of bunk

beds to ensure that they are secure” and stating as its objective “[t]o ensure that all bunk

beds are secure and safe,” the policy’s procedure requires stateroom stewards to “inspect

bunk beds during regular stateroom cleaning and inspections to ensure that all bunk beds

are secure and safe, if bunk beds are closed they should be opened and checked.” The

policy also requires the inspection to include “beds open properly and safely” and “beds

close properly and are secure when locked.” (emphasis added).

Carnival argues [ECF No. 407, p. 9] that Ewing did not produce evidence that

Carnival adopted the policy “to prevent this type of known danger from occurring” as a

“corrective measure.” According to Carnival, Ewing is improperly relying on the policy

by “downplay[ing] Carnival’s interpretation of their [sic] own policies and procedures.”

Id. But Plaintiff’s opposition mentions, in general, that the fact that Carnival’s corporate

representative “interpreted the policies in a fashion that differed from their plain

language merely creates a question for the jury to consider.” [ECF No. 405, pp. 7-8].

The jury was entitled to infer that the policy was in fact a corrective measure,

designed to protect against a purportedly locked bunk from unexpectedly deploying

because the lock had not been engaged (either because no one bothered to turn the lock

with the special key or tool or because the effort to lock it was inadequate, causing the

lock to not engage).

A jury could properly interpret the policy at issue to be a corrective measure

intended to avoid a known dangerous condition. See, e.g., Brady, 33 F.4th at 1283 (noting

that a Carnival employee’s “clarification” that warning signs weren’t related to wetness

on the deck but merely placed as a general reminder to passengers to be careful was but

one view of the evidence. “To elevate Vegas’ deposition testimony over these

documentary sources would be to invade the jury’s province as the finder of fact.”) Id.

The Undersigned therefore rejects Carnival’s argument that the specific written

policy on locking the upper bunk bed and verifying that it was locked properly through

a pulldown procedure is not something which could support a constructive notice

conclusion. To the contrary, the Undersigned concludes that a rational jury could

evaluate the policy as a corrective measure generating the requisite constructive notice.

Conclusion

The Undersigned denies Carnival’s renewed Rule 50 motion for judgment as a

matter of law.

DONE AND ORDERED in Chambers, Miami, Florida, on February 15, 2023.

if “i

Jdna os Goodman

UNITED STATES MAGISTRATE JUDGE

Copies furnished to:

All counsel of record

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