ORDER ON MOTION FOR SUMMARY JUDGMENT
THIS CAUSE came before the Court for a hearing on November 15, 2007, upon Defendant, Royal Caribbean Cruises, Ltd.’s (“Royal Caribbean[’]s”) Motion for Final Summary Judgment (“Motion”) [D.E. 77]. Royal Caribbean moves for summary judgment, pursuant to Rule 56 of the Federal Rules of Civil Procedure, on both counts against it in Plaintiff, John Morrell & Co.’s (“Morrell[’]s”) Complaint (“Compl”) [D.E. 1], The Court has carefully considered the parties’ written submissions, the record, the oral arguments, and applicable law.
I. BACKGROUND
Defendant, Royal Caribbean, is a cruise ship operator with its headquarters in Miami, Florida. Plaintiff, Morrell, is the employer of Jane Weiler (“Weiler”). (See Compl. at ¶ 11). On June 2, 2005, Weiler and eleven other Morrell employees from around the United States began a company-sponsored cruise on the Empress of the Seas (the “Empress”), one of Royal Caribbean’s cruise ships. (See Affidavit of David Charles Hines (“Hines Aff”) [D.E. 102-2] at ¶¶ 3, 6-8). On June 4, 2005, the Empress arrived in Cozumel, Mexico, where the passengers were offered the opportunity to take part in a “Dune Buggy Beach and Snorkel” shore excursion (the “Shore Excursion”). (See id. at ¶¶ 7-8; Shore Excursion Brochure (“Excursion Brochure ”) [D.E. 77-7] at 7).
The Excursion Brochure distributed by Royal Caribbean described the Shore Excursion as follows:
Drive a modern dune buggy, snorkel crystal waters and relax on an amazing beach. Then end your tour by shopping at the best place in town. This “Combo” package begins at the pier where your bilingual guide meets you for an exploration of Cozumel. The experience begins with traveling around the island in a customized dune buggy, visiting Cozumel’s most beautiful and rugged areas.
(Excursion Brochure at 7). The Excursion Brochure also contained a disclaimer:
Shore excursions are offered for sale by Royal Caribbean International as a convenience to our guests. While great care has been taken to offer the finest excursions available at each port, these tour services are provided by independent tour operators, and Royal Caribbean International will not be responsible or liable for any loss, damage, injury, costs, or delays resulting from, or in connection with, your use of these services.
(Id. at 3).
Passengers wishing to purchase tickets for the Shore Excursion were able to do so through Royal Caribbean. (See Affidavit of Patrick Schneider (“Schneider Aff.”) [D.E. 119-3] at ¶¶ 5-6). Each shore excursion ticket issued by Royal Caribbean also contained a disclaimer:
The arrangements set forth on this ticket for transportation, excursions, ground tours, restaurants or similar activities of services are made solely for the convenience of the ticket holder and are at the ticket holder’s risk.... The providers of such services are independent contractors and are not acting as agents or representatives of Royal Caribbean Cruises, Ltd. ... In no event shall [Royal Caribbean] be liable for any accident or harm to ticket holders, which occurs as a result of any acts, omissions or negligence of any independent contractors.
(Schneider Aff. at ¶7; Shore Excursion Ticket [D.E. 77-9]). Beyond the quoted disclaimers, Royal Caribbean did not give the passengers on the Empress any additional warnings regarding the Shore Excursion. (See Hines Ajf. at ¶ 10).
Pelicanos Tours, S.A. (“Pelicanos”) is a company located in Cozumel, Mexico, that owned and operated the Shore Excursion. (See Schneider Aff. at ¶ 13). Royal Caribbean had an oral agreement with Pelicanos to provide the Shore Excursion and promoted it onboard the Empress. (See id. at ¶ 15). Royal Caribbean did not provide any of the facilities for the Shore Excursion, and did not own, lease, or maintain any of the dune buggies or equipment used. (See id. at ¶¶ 13-15).
Weiler was one of the passengers who purchased a ticket for the Shore Excursion. (See Hines Ajf. at ¶ 9). The participants on the Shore Excursion, including Weiler, were taken from the Empress by shuttle vessel to the dock at Cozumel. (See id. at ¶ 9). Once they arrived at the dock, the passengers walked to Pelicanos’ dune buggy rental business which was located approximately one-sixth of a mile inland. (See id. at ¶ 7). None of the Empress’ crew accompanied the participants to Pelicanos’ rental business. (See id. at ¶ 15). Royal Caribbean did not have any role in hiring any of Pelicanos’ employees. (See Schneider Aff. at ¶ 16). Additionally, none of Pelicanos’ employees wore Royal Caribbean uniforms or identified themselves as employees of Royal Caribbean. (See id. at ¶ 17).
The Shore Excursion was scheduled for approximately half a day and was intended
Weiler subsequently filed a worker’s compensation claim for her injuries in Ohio, where she lives. (See Compl. at ¶ 17). Morrell is self-insured for worker’s compensation in Ohio. (See id. at 16). Consequently, Morrell has paid approximately $150,000 in medical bills with respect to Weiler’s injuries, and an additional $20,000 in temporary disability benefits. (See id. at ¶¶ 18-19).
Morrell filed this action on June 2, 2006, asserting claims for subrogation and/or reimbursement from Royal Caribbean pursuant to Ohio Revised Code Section 4123.93 et seq., to recover all money paid to Weiler with regard to her worker’s compensation claim. Morrell’s Complaint alleges two causes of action against Royal Caribbean. 1 Morrell’s first claim against Royal Caribbean, for negligence, is that Pelicanos, “as an agent of Royal Caribbean, negligently operated the subject dune buggy excursion, resulting in the accident.” (Id. at ¶ 25). Morrell’s second claim against Royal Caribbean, for negligent supervision, is that Royal Caribbean had “a duty to supervise the activities of Pelicanos to ensure that Pelicanos owned and/or operated the dune buggy excursion with reasonable or due care” (id. at ¶ 34), but “failed to properly supervise Pelicanos’ actions.... ” (Id. at ¶ 35). Royal Caribbean now moves for summary judgment on the grounds that: (1) it is not liable for the alleged negligence of Pelicanos, an independent contractor; 2 and (2) Morrell cannot satisfy its burden of establishing a prima facie case of negligence or negligent supervision.
II. LEGAL STANDARD
Summary judgment shall be rendered “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that theré is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Fed.R.Civ.P. 56(c). In making this assessment, the Court “must view all the evidence and all factual inferences reasonably drawn from the evidence in the light most favorable to the nonmoving party.”
Stewart v. Happy Herman’s Cheshire Bridge, Inc.,
“By its very terms, this standard provides that the mere existence of
some
alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no
genuine
issue of
material
fact.”
Anderson v. Liberty Lobby, Inc.,
“For factual issues to be considered genuine, they must have a real basis in the record ... mere conclusions and unsupported factual allegations are legally insufficient to defeat a summary judgment motion.”
Ellis v. England,
III. ANALYSIS
A. Applicable Law
As an initial matter, the parties disagree as to the law applicable to Morrell’s claims. Royal Caribbean asserts that maritime law should apply, citing case law in this Circuit applying maritime law to tort claims that arose during a cruise, even where the alleged tort took place on land or during a “shore excursion.”
See, e.g., Doe v. Celebrity Cruises, Inc.,
But greater discussion on the choice of law matter is unnecessary to resolve the present Motion. For present purposes, and to limit the renewable issues, the Court will apply Florida substantive law, as urged by Morrell.
4
Under Florida law, “[t]o prevail in a negligence action, the plaintiff must show: (1) that the defendant owed a duty of reasonable care to the plaintiff; (2) that the defendant breached that duty; (3) that the breach was the proximate cause of the injury to the plaintiff; and (4) that the plaintiff suffered damages.”
Hasenfus v. Secord,
B. Negligence Claims
Both of Morrell’s negligence claims against Royal Caribbean are premised on Morrell’s alleged failure to warn Weiler that the dune buggy she would be riding during the Shore Excursion was dangerous and might be involved in an accident with another vehicle.
{See Morrell Opp.
at 35^40). As previously stated, to establish a prima facie case for negligence, Morrell must prove that Royal Caribbean owed a duty to warn Weiler of the inherent dangers of the Shore Excursion, and that
1. Duty to Warn
Morrell asserts that Royal Caribbean “had and was possessed of a legally recognized duty to warn its dune buggy shore excursion participants of the dangers of operating a dune buggy that may not have been apparent or obvious to them.” (Mor-rell Opp. at 37). Although Morrell does not explicitly state it, the danger that “may not have been apparent or obvious” appears to be the fact that a dune buggy is similar to an automobile and therefore may become involved in an accident with another vehicle in the course of its operation. (See Morrell Opp. at 37; Affidavit of Wayne Ure (“Ure Aff.”) [D.E. 102-3] at ¶¶ 8-9 (“It is my understanding that a dune buggy is considered to be no different than an automobile ... [Royal Caribbean] should have warned the dune buggy excursion participants of the dangers and risks associated with operating a dune buggy.”)).
Under Florida law, there is no duty to warn someone of an obvious danger.
Rodriguez v. New Holland N. Am., Inc.,
The inherent dangers of operating a motor vehicle, such as a dune buggy (which Morrell concedes is substantially similar to an automobile), are commonly known and most people in the United States become familiar with them in their every day lives. Indeed, the fact that an individual riding in a dune buggy may become involved in an accident with another vehicle (or even a stationary object) is precisely the type of obvious danger which courts have recognized does not create a duty to warn.
Id.
at 281 (the fact that riding a motorcycle may result in a collision and injuries to the lower body held to be an obvious danger);
see also Rodriguez v. New Holland North America, Inc.,
Morrell nevertheless asserts that the Florida “dangerous instrumentality doctrine” imposed a specific duty on Royal Caribbean to warn Weiler of the possibility of an accident occurring while riding in the dune buggy. “Florida’s dangerous instrumentality doctrine imposes strict vicarious liability upon the owner of a motor vehicle who voluntarily entrusts that motor vehicle to an individual whose negligent operation causes damage to another.”
Aurbach v. Gallina,
Morrell has neither alleged, nor offered any evidence, that Royal Caribbean owned, leased, or otherwise had a property interest in any of the vehicles involved in the accident that occurred during the Shore Excursion. Instead, Morrell simply contends that the doctrine imposed a duty on Royal Caribbean, in light of its relationship with Pelicanos, to warn Weiler about the inherent dangers of operating a dune buggy. This contention is plainly merit-less for at least two reasons.
First, the applicable case law is clear that the doctrine may only be applied to a party who has “an identifiable property interest” in the vehicle at issue.
See Aur-bach,
2. Proximate Cause
In addition to establishing that there was a duty to warn Weiler, Morrell must also prove that Royal Caribbean’s breach of that duty was the proximate cause of Weiler’s injuries.
See Hasenfus,
In McCain, the case cited by Morrell for this extraordinary proposition, the court addressed foreseeability in the context of proximate cause and considered whether it was foreseeable that a power company employee’s decision to mark an area as “safe” could lead to the subsequent injury of a construction worker when the trench machine he was operating hit an electrical cable buried in that area. Id. Notably, the court in McCain premised its conclusion that the plaintiff could sustain a showing of proximate cause on the basis that plaintiff had offered affirmative evidence that “the power company’s agent marked those areas where [the plaintiff] could safely dig,” and “this marking was done negligently, causing [the plaintiff] to operate the trencher in an area where an energized cable lay buried.” Id. at 505. In contrast, Morrell has offered absolutely no evidence of a link between Royal Caribbean’s purported failure to warn Weiler and the subsequent accident, beyond mere speculation. It is undisputed that there is nothing in the record to demonstrate that if Royal Caribbean had warned Weiler of the obvious dangers posed by a moving dune buggy, that warning would have had any impact on her decision to participate in the Shore Excursion or on whether the accident would have occurred.
Because Morrell has not offered any evidence to satisfy this essential element of both of its negligence claims, those claims must necessarily fail on this basis as well.
See Celotex Corp.,
IY. CONCLUSION
For the reasons stated above, it is ORDERED AND ADJUDGED as follows:
1. Royal Caribbean’s Motion for Final Summary Judgment [D.E. 77] is GRANTED. Judgment for Royal Caribbean will be entered by separate order.
2. The Clerk of Court is ordered to CLOSE this case.
3. All pending motions are DENIED AS MOOT.
Notes
. Count II of Morrell’s Complaint alleges negligence against JB Rentals and Twito, who are no longer parties to this action.
. The undersigned does not address Royal Caribbean's contention that it is not liable for any negligence on the part of Pelicanos, an independent contractor, because of the exculpatory clause in the Excursion Ticket, as well as similar disclaimers in promotional materials provided by Royal Caribbean, resolving the Motion, instead, on the second argument.
. Morrell concedes, however, that maritime law, may, but need not, apply with respect to the interpretation of the disclaimers in Weiler's Shore Excursion Ticket. (See Morrell’s Mem. of Law in Opp. to Defendant’s Mot. for Final Summary Judgment ("Morrell Opp.”) [D.E. 105] at 9).
. While there may be some distinctions, courts have observed that, "[t]he elements of a maritime negligence cause of action are essentially the same as the elements of common law negligence.”
Burklow & Assocs., Inc.
v.
Belcher,
. Notably, maritime law applies a similar standard.
Isbell,