                                                                                                                           Opinions of the United
1996 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


4-26-1996

Pro v. Donatucci
Precedential or Non-Precedential:

Docket 95-1803




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Recommended Citation
"Pro v. Donatucci" (1996). 1996 Decisions. Paper 204.
http://digitalcommons.law.villanova.edu/thirdcircuit_1996/204


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                 UNITED STATES COURT OF APPEALS
                     FOR THE THIRD CIRCUIT



                             No. 95-5462


                       ELIZABETH FEDORCZYK,

                                  Appellant

                                  v.

               CARIBBEAN CRUISE LINES, LTD; ROYAL
           CARIBBEAN CRUISES, LTD.; ROYAL CARIBBEAN;
                 ANDERS WILHELMSEN AND COMPANY;
                         KJELL KARLSEN


         On Appeal from the United States District Court
                 for the District of New Jersey
                      (D.C. No. 92-cv-04271)


                       Argued March 13, 1996

             BEFORE:   STAPLETON, SCIRICA and COWEN,
                          Circuit Judges

                       (Filed April 26, 1996)


Todd B. Eder (argued)
Garruto Cantor
180 Tices Lane
East Brunswick, New Jersey    08816

          COUNSEL FOR APPELLANT

John P. Flanagan (argued)
Barry & McMoran
One Newark Center
18th Floor
Newark, New Jersey 07102

          COUNSEL FOR APPELLEES



                       OPINION OF THE COURT


                                  1
COWEN, Circuit Judge.


          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.



                                       I.

          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


                                 2
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


                                3
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.



                                   II.

            The district court had jurisdiction pursuant to 28

U.S.C. § 1332.    We have appellate jurisdiction under 28 U.S.C.

§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 light most favorable

to the nonmoving party and draw all reasonable inferences in that

party's favor.    Fed. R. Civ. P. 56(c)."      Id. (quoting Gray, 957

F.2d at 1078.)

                                   III.

                              A.

            We first consider which substantive law applies.

Fedorczyk's negligence cause of action, for the purposes of this

matter, could have been brought under either admiralty or

diversity jurisdiction.     Substantive maritime law applies to a


                                    4
cause of action brought in admiralty.    East River S.S. Corp. v.

TransAmerica DeLeval, Inc., 476 U.S 858, 864, 106 S. Ct. 2295,

2298 (1986).    If brought under diversity of citizenship, the

forum state's choice of law rules dictate which state law

applies.   Klaxon Co. v. Stentor Elec. Mfg. Co., 313 U.S. 487, 61

S. Ct. 1020 (1941).   Admiralty jurisdiction apparently exists

since the injury occurred on navigable waters, Foremost Ins. Co.

v. Richardson, 457 U.S. 668, 673, 102 S. Ct. 2654, 2657 (1982),

and the incident has a nexus to "traditional maritime activity."

Sisson v. Ruby, 497 U.S. 358, 110 S. Ct. 2892 (1990); Executive

Jet Aviation, Inc. v. City of Cleveland, Ohio, 409 U.S. 249, 253-

254 (1972).    A plaintiff with a claim cognizable in the district

court's admiralty jurisdiction and actionable on other

jurisdictional grounds may invoke whichever jurisdiction desired.

Fed. R. Civ. P. 9(h).   To invoke admiralty jurisdiction, however,

a plaintiff must affirmatively insert a statement in the

pleadings identifying the claim as an "admiralty or maritime

claim."    Id.; Bodden v. Osgood, 879 F.2d 184, 186 (5th Cir.

1989).

           Fedorczyk neither pled nor otherwise invoked the

admiralty jurisdiction of the district court in the proceedings

below.    She filed her original complaint in state court, alleging

causes of action under negligence and breach of implied and

express warranties.   Royal Caribbean removed the case to federal

district court on the basis of diversity jurisdiction.    The

complaint was not amended to invoke admiralty jurisdiction.      The

district court entered a pretrial order without objection from


                                 5
the parties stating that the jurisdictional predicate was

diversity of citizenship.                It subsequently dismissed the case on

summary judgment due to Fedorczyk's failure to prove that the

defendants' negligence was the proximate cause of her injury. The

plaintiff is the master of her complaint, and she never invoked

admiralty jurisdiction.             Indeed, the parties agreed at oral

argument they are satisfied with the application of New Jersey

state law.      It is New Jersey law that we will apply.



                                                 B.



              For Fedorczyk to prevail on her negligence claim, in

addition to proving that Royal Caribbean was negligent, she must

also prove that the Royal Caribbean's negligence caused her

injury.   Kulas v. Public Serv. Elec. and Gas Co., 196 A.2d 769,

772 (N.J. 1964).         Causation includes cause in fact and legal

causation, which is often referred to as proximate cause.                            Courts

have often conflated cause in fact and legal causation into

"proximate cause," but the two are conceptually distinct.                            W.

PAGE KEETON   ET AL.,   PROSSER   AND   KEETON   ON THE   LAW   OF   TORTS § 41, at 263

(5th ed. 1984) ("PROSSER") ("There is perhaps nothing in the

entire field of law which has called forth more disagreement . .

. [and] confusion.").

              Causation in fact depends on whether an act or omission

played a material part in bringing about an event.                            An act or

omission is not regarded as a cause in fact of an event if the

particular event would have occurred without it.                            PROSSER, supra,


                                                 6
§ 41 at 265; Kulas, 196 A.2d at 772.           When more than one act or

omission could have caused an event, then the negligent conduct

must be shown to have been a substantial factor in causing the

harm.   RESTATEMENT (SECOND)   OF   TORTS § 432(2) (1965).   See HARPER &

JAMES, LAW   OF   TORTS § 20.2, at 1110, 1114 n.18 (1956).      The New

Jersey Supreme Court has adopted these principles.             State of New

Jersey, Dep't of Envtl. Protection v. Jersey Central Power &

Light Co., 351 A.2d 337, 342 (N.J. 1976); Kulas, 196 A.2d at 769.

             On the issue of causation, as on any other essential

element of the tort of negligence, the plaintiff has the burden

of proof.         Long v. Landy, 171 A.2d 1, 6 (N.J. 1961); Hansen v.

Eagle-Picher Lead Co., 84 A.2d 281, 284 (N.J. 1951); PROSSER,

supra, § 41, at 269.        It is axiomatic that "the mere showing of

an accident causing injuries is not sufficient from which to

infer negligence.        Negligence is a fact which must be proved; it

will not be presumed."         Hansen, 84 A.2d at 284.       The plaintiff

must introduce evidence which provides a reasonable basis for the

conclusion that it was more likely than not that the negligent

conduct of the defendant was a cause in fact of the injury.

PROSSER, supra, § 41, at 269.

             The core problem for Fedorczyk is she is unable to

prove that the negligence of Royal Caribbean in fact caused her

injury. Fedorczyk's expert testified that a person may fall in a

bathtub under ordinary circumstances and the presence of bath oil

and soap are "great variables" that could have caused the fall.

Fedorczyk could have fallen in the bathtub for reasons other than

Royal Caribbean's negligence.           Therefore, Fedorczyk must show


                                         7
that Royal Caribbean's negligence was a substantial factor in

causing her injury.   Fedorczyk concedes that if she had been

standing on any of the four abrasive strips at the time of the

accident, she could not establish Royal Caribbean's failure to

provide adequate stripping was the cause of her injuries.

          Fedorczyk has not provided any direct evidence that the

lack of abrasive surface in the bathtub caused her accident.

Instead, Fedorczyk relies solely upon what she asserts is

circumstantial proof of causation.      Circumstantial evidence when

used to reason deductively in civil cases is defined as "a

preponderance of probabilities according to the common experience

of mankind."   Bornstein v. Metropolitan Bottling Co., 139 A.2d

404, 411 (N.J. 1958); Hansen, 84 A.2d at 284.       The circumstances

must be strong enough "that a jury might properly, on the grounds

of probability rather than certainty, exclude the inferences

favorable to the defendant."   Jackson v. Delaware, L.& W. R.R.

Co., 170 A. 22, 24 (N.J. 1933).       See Hansen, 84 A.2d at 284 ("the

evidence must be such as to justify an inference of probability

as distinguished from . . . mere possibility") (citing Callahan

v. National Lead Co., 72 A.2d 187, 189 (N.J. 1950)); see also

Kulas, 196 A.2d at 773 ("[Causation] may rest upon legitimate

inference, so long as the proof will justify a . . . logical

inference as distinguished from mere speculation.") (internal

quotation marks and citation omitted); Kahalili v. Rosecliff

Realty, 141 A.2d 301, 307 (N.J. 1958) ("'Reasonable probability'

is the standard of persuasion");      PROSSER, supra, § 41, at 269.

          Circumstantial evidence when used to prove negligence


                                  8
must be distinguished from the doctrine of res ipsa loquitur. The

doctrine of res ipsa loquitur combines circumstantial evidence

with a presumption on the burden of proof.   It states that in

certain cases the circumstantial evidence is sufficient for

negligence to be presumed, and the burden of proof shifts to the

defendant to rebut some element of the case.    Res ipsa loquitur

is "grounded in the sound procedural policy of placing the duty

of producing evidence on the party who has superior knowledge or

opportunity" to explain the causative circumstances. Id.    The

doctrine is applicable when: (1) the occurrence itself ordinarily

bespeaks negligence; (2) the instrumentality was within the

defendant's exclusive control; and (3) there is no indication

that the injury was the result of the plaintiff's own voluntary

act or neglect.   Buckelew v. Grossbard, 435 A.2d 1150, 1157 (N.J.

1981) (citing Bornstein, 139 A.2d at 469).     Here, Fedorczyk

concedes that res ipsa loquitur does not apply.    We agree.     The

injury resulting from falling in a bathtub does not bespeak

negligence, nor was the cause of the injury something which

necessarily lay within the Royal Caribbean's exclusive control.

Thus Fedorczyk may not rely on the mere happening of the accident

as prima facie proof of causation in fact.

            Fedorczyk may still prove negligence through

circumstantial evidence, even though the doctrine of res ipsa

loquitur does not apply.   Menth v. Breeze Corp, 73 A.2d 183, 187

(N.J. 1950).   Fedorczyk presents the following circumstantial

evidence.   After the accident, she discovered that her feet could

fit between the strips.    Fedorczyk also testified that she was in


                                 9
the middle of the tub at the time of the accident.   Finally, her

expert opined that based on his inspection of the tub and the

evidence in the record, Royal Caribbean's failure to adequately

strip the tub caused Fedorczyk's injuries.

           Even though we must draw all legitimate inferences in

Fedorczyk's favor, the inference that she was standing between

the strips at the time of the accident, because her feet could

fit between the strips, is not an appropriate inference to be

drawn.   The possibility of the existence of an event does not

tend to prove its probability.   See Dombrowska v. Kresge-Newark,

Inc., 183 A.2d 111 (N.J. Super. App. Div. 1962) (evidence that

worn wheel could cause accident insufficient to take to a jury

the issue of whether an injury was likely to have been caused by

wheel malfunction); see also Dziedzic v. St. John's Cleaners and

Shirt Launderers Inc., 249 A.2d 382 (N.J. 1969) (since no

evidence introduced on the issue of how plaintiff's positioning

in a truck increased her injury in resulting from an automobile

accident, jury could only speculate as to whether plaintiff's

contributory negligence caused her injuries).

           The testimony that Fedorczyk was standing in the middle

of the tub also says nothing about whether it was more probable

than not that she was standing between the strips when she fell.

The four strips were placed parallel to the long dimension of the

tub, running one and one-half feet from the back end of the tub

to the middle.   Standing in the middle of the tub does not

provide any relevant information on whether she was standing on

or between the strips.


                                 10
           Finally, the expert's conclusion that the failure to

adequately strip the tub caused Fedorczyk's accident was not

legally admissible.   An expert opinion is not admissible if the

court concludes that an opinion based upon particular facts

cannot be grounded upon those facts.     1 MCCORMICK   ON   EVIDENCE, § 13,

at 56 (John William Strong, ed. 1992).     In order for an expert

opinion to be admissible, the technique the expert employs in

formulating an opinion must be reliable.     In re Paoli R.R. Yard

PCB Lit., 35 F.3d 717, 741 (3d Cir. 1994), cert. denied, sub

nom., General Elec. Co. v. Ingram, 115 S. Ct. 1253 (1995).            In

contrast, if an expert opinion is based on speculation or

conjecture, it may be stricken.    1 MCCORMICK, supra, § 13, at 56

n.15.

           Fedorczyk's expert testified that if there had been

more stripping, it would be more likely that she would not have

fallen.   He went on to conclude that the absence of strips caused

her to fall.   We agree that the more stripping there is in the

tub, the less likely it is a person would fall because of

inadequate stripping.   However, the expert's opinion that

inadequate stripping caused Fedorczyk's injuries is not based on

any direct or circumstantial evidence of where she was standing

when she fell.   It is speculative to conclude that the inadequate

stripping caused Fedorczyk's injuries when no evidence in the

record indicates where Fedorczyk was standing in the tub.            It is

also speculative to infer that Fedorczyk was standing between the

strips at the time of the accident solely from the fact that she

fell.   Because the expert's conclusion is based on pure


                                  11
speculation, rather than a reasonable inference, it is without

foundation and is inadmissable.

          A portion of the bathtub had nonskid stripping and a

portion of it did not have the stripping.   No evidence presented

tends to prove Fedorczyk was standing either on or off the

stripping at the time she fell.    Without such evidence, the jury

is left to speculate whether Royal Cruise's negligence was the

cause in fact of her injury.    "A mere possibility of causation is

not enough; and when the matter remains one of pure speculation

or conjecture, or the probabilities are at best evenly balanced,

it becomes the duty of the court to direct a verdict for the

defendant."   Restatement (Second) of Torts § 433B (1965).

           A hypothetical illustrates the point.   A company

provides a stairway in which some of the stairs are defective and

some are in fine condition.    A person falls on the steps, but

does not know which step she fell on.    No evidence is introduced

that tends to prove she stepped on the defective step.    The

injured party simply testified that she walked down the steps and

fell.   We may not reasonably infer that the defective steps

probably caused her injury merely because she may have stepped on

a defective stair.   Without evidence establishing a likelihood

that the injured party stepped on the defective stair, a jury

would be left to speculate as to the cause of the injury.      Simply

put, increased risk of harm due to a defendant's negligence,

standing alone, does not permit an inference that an injury, more

probably than not, was caused by the negligence.




                                  12
                               IV.

          Fedorczyk has failed to provide any direct or

circumstantial evidence of how Royal Caribbean's admitted failure

to adequately strip the bathtub caused her injury.   Without

providing any evidence tending to show where Fedorczyk was

standing when she fell, she is unable to create a material issue

of fact regarding causation.   Based on the evidence presented, a

jury could only speculate whether Fedorczyk's injuries were

caused by the inadequate stripping.   We will affirm the order of

the district court granting summary judgment for the defendant.




                                13
FEDORCZYCK v. CARRIBEAN CRUISE LINES, LTD.,

No. 95-5462




STAPLETON, Circuit Judge, Dissenting:



          Because I conclude that Fedorczyck has produced

sufficient evidence to allow a reasonable jury to infer

causation, I would reverse and remand for trial.



          Comment b to Restatement (Second) of Torts § 433B

(1965) is directly on point:
          The fact of causation is incapable of
          mathematical proof, since no man can say with
          absolute certainty what would have occurred
          if the defendant had acted otherwise. If, as
          a matter of ordinary experience, a particular
          act or omission might be expected to produce
          a particular result, and if that result has
          in fact followed, the conclusion may be
          justified that the causal relationship
          exists. In drawing that conclusion, the
          triers of fact are permitted to draw upon
          ordinary human experience as to the
          probabilities of the case.

Illustration 3, which provides an example of the application of

this principle, is similar to the present case:
          The A Railroad Company fails to use
          reasonable care to light a steep and winding
          stairway leading from its waiting room to the
          train platform. B, an elderly and corpulent
          woman, is in the room waiting for a train.
          The attendant calls out the train. B hurries
          down the steps, and misses her footing in the
          dusk on the unlighted stair, falls, and is
          injured. On the basis of common experience


                               14
           that absence of light increases the
           likelihood of such a fall, and that people do
           not ordinarily fall on properly lighted
           stairs, it may be found that the absence of
           light was a substantial factor in causing the
           fall.

Id.   More specifically, Prosser and Keeton on the Law of Torts

§ 41 (5th ed. 1984) explains that a conclusion of causation is

permissible where "the injury which has in fact occurred is

precisely the sort of thing that proper care on the part of the

defendant would be intended to prevent."    Id. at 270.

           I would resolve this appeal using these basic

principles.   Fedrorczyck's expert testified that the bathtub was

too slippery to be reasonably safe because it had insufficient

abrasive strips.   Fedorczyck was standing in the bathtub and she

fell.   Her fall is precisely the type of injury that adequate

abrasive strips were designed to prevent.    Moreover, one could

conclude based on everday experience that while falls do occur in

bathtubs that are not too slippery, they are not routine.

Accordingly, a reasonable jury could infer that Fedorczyk's fall

was caused by the unsafe condition of the tub.    While I agree

with the court that Fedorczyck cannot invoke res ipsa loquitur,

"[a] res ipsa loquitur case is . . . merely one kind of case of
circumstantial evidence, in which the jury may reasonably infer

. . . causation from the mere occurrence of the event and the

defendant's relation to it."   Restatement (Second) of Torts

§ 328D cmt. b (emphasis added).




                                  15
