On Appeal from the United States District Court for the District of New Jersey
BEFORE: STAPLETON, SCIRICA and COWEN, Circuit Judges
This case arises from a slip and fall incident in a bathtub aboard the M/V Sovereign, a vessel operated by defendants Caribbean Cruise Lines, Ltd. and Royal Caribbean Cruises, Ltd., et al. ("Royal Caribbean"). The district court granted Royal Caribbean's motion for summary judgment, holding that plaintiff Elizabeth Fedorczyk did not provide any evidence to support her claim that Royal Caribbean's failure to provide adequate abrasive strips in its bathtub was the proximate cause of her injuries. Because we agree with the district court that the evidence presented does not create a material issue of fact as to causation, which is an essential element of the tort of negligence, we will affirm the June 26, 1995 order of the district court.
The following facts are not disputed. Fedorczyk sailed from Miami aboard the Sovereign, a cruise ship operated by Royal Caribbean. While on board she went to the pool area, applied sunscreen to her body, sunned herself, and swam in the pool. After approximately two hours Fedorczyk returned to her cabin to take a shower. She turned on the water, stepped into the middle of the bathtub and started to soap herself, at which time she slipped and fell onto the floor of the tub.
The tub in her cabin was about five and one-half feet long and two-feet, four-inches wide. It had four anti-skid strips, each running from the middle to the back of the tub. Fedorczyk has no recollection whether her feet were on or off the abrasive strips at the time of her fall. The tub was also equipped with a grab rail which Fedorczyk made a failed attempt to reach when she fell. After the accident she returned to the bathtub to ascertain the cause of the accident. She re-entered the tub and discovered that there was sufficient space between the abrasive strips so that her feet could just fit in between them. However, she does not know where her feet were at the time of the accident.
Fedorczyk's expert, an architect, testified that at the time he examined the bathtub, there were seven as opposed to four abrasive strips. Even with the seven abrasive strips, according to the expert, Royal Caribbean failed to provide a sufficiently large area of non-slip surface to permit its safe use. He based his finding on the fact that the tub failed to comply with the Consumer Products Safety Commission's standard for slip-resistent bathing facilities. This standard specifies that for any surface that is textured or treated with appliques, the pattern shall be such that a one and one-half by three inch rectangular template placed anywhere thereon shall cover some textured or treated area.
The expert also testified that beyond certain safety measures, there is no definite way of preventing slips altogether, and that falls can happen under any circumstances. He stated that the presence of bath oils and soap are large variables that can skew the correlation between the amount of textured surface area and safety. He concluded that Royal Caribbean deviated from an acceptable standard of care in failing adequately to treat or texturize the tub, and that the spacing between the nonslip strips was the direct cause of Fedorczyk's injuries.
The district court had jurisdiction pursuant to 28 U.S.C. 1332. We have appellate jurisdiction under 28 U.S.C. Section(s) 1291. "When reviewing an order granting summary judgment we exercise plenary review and apply the same test the district court should have applied." Armbruster v. Unisys Corp., 32 F.3d 768, 777 (3d Cir. 1994). "Under Federal Rule of Civil Procedure 56(c), that test is whether there is a genuine issue of material fact and, if not, whether the moving party is entitled to judgment as a matter of law." Id. (quoting Gray v. York Newspapers, Inc., 957 F.2d 1070, 1078 (3d Cir. 1992). "In so deciding, the court must view the facts in a ...