ORDER
THIS MATTER is before the Court on the Norwegian Defendants’ Motion to Dismiss the Amended Complaint, [D.E. 21] and the Norwegian Defendants’ Motion for Summary Judgment [D.E. 40], Miami-Dade County’s Motion to Dismiss the Amended Complaint [D.E. 28] and Miami-Dade County’s Motion for Summary Judgment [D.E. 38]. For the reasons stated below, the Norwegian Defendants’ Motion to Dismiss is GRANTED IN PART, the Norwegian Defendants’ Motion for Summary Judgment is GRANTED, Miami-Dade County’s Motion to Dismiss, is DENIED, and Miami-Dade County’s Motion for Summary Judgment is GRANTED.
I. Background
Plaintiff Jack Lipkin is an 83-year-old resident of Delray Beach, Florida. In November 2012, Lipkin traveled on an 11-day cruise with his wife, Natalie, aboard the Norwegian Sun [D.E. 46 at 1]. The cruise concluded on November 25, 2012, at the Port of Miami, where Lipkin and his wife disembarked from the ship and entered Port Terminal C, heading toward the baggage claim area [D.E. 40 ¶¶ 4-5]. While his wife sought wheelchair assistance, Plaintiff, walking with the aid of a cane, stepped onto a moving walkway (alternately referred to as a people mover) to traverse a hallway in the terminal. Id. at ¶ 8. Lipkin stood still on the left side of the tread belt among about 10 other cruise passengers, including a woman assisting a man in a wheelchair on the walkway in front of him. Id. at ¶¶ 15, 17. For reasons unknown, the wheelchair became stuck at the end of the walkway, creating a barrier to oncoming passengers on the walkway, including Lipkin. Id. at ¶ 19. While attempting to free the wheelchair, the woman (whose identity remains unknown) collided with Lipkin, causing him to fall [D.E. 48 ¶ 20]. Lipkin suffered a broken hip in the fall [D.E. 45-10 at 8-9].
Lipkin originally filed this action against the Norwegian Defendants on November 20, 2013 [D.E. 1]. The original Complaint contained twelve claims of negligence and breach of contract against the four Norwegian Defendants. Id. Lipkin subsequently filed an Amended Complaint to add Miami-Dade County as a Defendant [D.E. 17]. The Amended Complaint asserts four negligence claims and four breach of contract claims against the four Norwegian Defendants, and a negligence claim against Miami-Dade County. Id.
In his Amended Complaint, Lipkin advances several theories of negligence liability, alleging, among other things, that Norwegian breached its duty of care by “allowing or directing people to access and/or use people movers in wheelchairs,” “failing] to safely and properly assist and/or monitor people walking through their building,” and “fail[ing] to reasonably and safely warn Plaintiff of the dangers of people using wheelchairs on the people movers.” Id.
At the time of the accident, no Norwegian employees were present at the entrance or exit of the moving walkway [D.E. 40 ¶ 10]. Yellow warning decals were affixed at the base of the walkway at its entrance and exit, which read: “Caution Passengers Only” [D.E. 40-4 at 2; D.E. 40-5 at 21], The signs also instructed
The Norwegian Defendants have filed a motion to dismiss the Amended Complaint on the grounds that Lipkin is asserting negligence claims under Florida law in this maritime action [D.E. 21], and a motion for summary judgment [D.E. 40]. Miami-Dade County has also filed a motion to dismiss, in which it argues that the Court does not have subject matter jurisdiction because the claims against Norwegian are not in fact in admiralty [D.E. 28], and a motion for summary judgment [D.E. 38]. Plaintiff opposes the motions.
II. Miami-Dade County’s Motion to Dismiss for Lack of Subject Matter Jurisdiction [D.E. 28]
Because district courts are courts of limited jurisdiction, the Court first must examine where it has subject matter jurisdiction over this case. See, e.g., Miccosukee Tribe of Indians of Fla. v. Cypress,
A. Standard of Review
The County has moved to dismiss this action pursuant to Fed.R.Civ.P. 12(b)(1) [D.E. 28]. A Rule 12(b)(1) motion to dismiss may present a facial or factual attack on subject-matter jurisdiction. McElmurray v. Consol. Gov’t of August-Richmond Cnty.,
B. Analysis
The County’s principal argument is that, because Plaintiffs injury occurred in the Port of Miami Terminal after disembarking from the Norwegian Sun, this matter does not fall within the Court’s admiralty jurisdiction [D.E. 28 at 6-16]. To determine if a claim falls within a court’s admiralty jurisdiction, the court must consider the site of the tort (the “locality” test) and the relationship between the tort and traditional maritime activity (the “nexus” test). See Bunge Corp. v. Freeport Marine Repair, Inc.,
“A court applying the location test must determine whether the tort occurred on navigable water or whether injury suffered on land was caused by a vessel on navigable water.” Jerome B. Grubart, Inc. v. Great Lakes Dredge & Dock Co.,
In this case, the Amended Complaint alleges that Norwegian and/or its employees were negligent for failing to prevent the collision on the walkway during the disembarkation process [D.E. 17 ¶¶ 13-14]. Because the disembarkation process is part of the unloading of a vessel, the Court finds that the tort as alleged in the Amended Complaint was caused by the Norwegian Sun for purposes of the location test.
Under the “nexus test,” a court must examine (1) whether the incident had a potentially disruptive impact on maritime commerce, and (2) whether a substantial relationship existed between the activity giving rise to the incident and traditional maritime activity. Bunge,
Because the Court finds that the Amended Complaint falls within the admiralty jurisdiction of this Court, Miami-Dade County’s motion to dismiss [D.E. 28] is DENIED.
III. Norwegian’s Motion to Dismiss for Failure to State a Claim [D.E. 21]
A. Standard of Review
To survive a Rule 12(b)(6) motion to dismiss, a plaintiff must plead sufficient facts to state a claim that is “plausible on its face.” Ashcroft v. Iqbal,
B. Analysis
1. Plaintiffs Negligence Claims
According to the Amended Complaint, Plaintiff was injured on the people mover “while attempting to disembark the Norwegian Sun ” [D.E. 17 ¶ 13]. Plaintiff alleges that Norwegian was negligent by allowing and/or directing people to use wheelchairs on the Port terminal people mover; by failing to prevent passengers from using wheelchairs on the people mover; by failing to assist people walking through the Port terminal; and, more broadly, for failing “to provide reasonably safe means of egressing through the building.” Id. at ¶ 21. Plaintiff has attempted to bring this claim under maritime law as a cruise passenger and alternatively as a premises liability claim under Florida law [D.E. 23 at 2-9]. Norwegian argues that, because this action is before the Court, under its admiralty jurisdiction, Plaintiffs negligence claim against the cruise line must be based solely on maritime law [D.E. 21 at 5-8].
The Court has already determined that Plaintiffs claims against Norwegian fall within the Court’s admiralty jurisdiction, as Plaintiff has conceded [D.E. 23 at 7-9]. Torts committed within the Court’s admiralty jurisdiction are governed by maritime law. See Kermarec v. Compagnie Generole Transatlantique,
To state a negligence claim under maritime law, a plaintiff must allege that (1) the defendant had a duty to protect the plaintiff from a particular injury; (2) the defendant breached that duty; (3) the breach actually and proximately caused the plaintiffs injury; and (4) the plaintiff suffered actual harm. Chaparro v. Carnival Corp.,
Because cruise ship operators are common carriers with a “continuing obligation of care for their passengers,” see Carlisle v. Ulysses Line Ltd.,
Norwegian argues that Plaintiff has failed to allege that Norwegian had actual or constructive knowledge of any known hazard at the Port terminal, and that the dangerous condition of a wheelchair jammed on the people mover was open and obvious to Plaintiff, such that Norwegian had no duty to warn [D.E. 21 at 7-8]. In response, Plaintiff argues that the danger of the people mover was not open and obvious, and that Norwegian created the hazardous condition [D.E. 23 at 4-5]. In his complaint, Plaintiff alleges that Norwegian “owned, operated and/or managed the building which contained the people mover and/or the personnel who operated, managed or controlled movement on the people mover” [D.E. 17 ¶ 18]. As discussed above, actual or constructive notice need not be established if the defendant created the hazardous condition. Caldwell,
The question of whether the allegedly dangerous condition was open or obvious “requires a context specific inquiry and necessitates development of the factual record before the Court can decide whether, as a matter of law, the danger was open and obvious.” Prokopenko v. Royal Caribbean Cruises, Ltd., No. 10-20068-CIV,
Taking all of the facts alleged in the complaint as true, as required on a motion to dismiss, .the Court finds that Plaintiff has adequately stated a negligence claim against Norwegian for breaching its duty to warn of the" alleged dangers of the people mover. As to this theory of negligence liability, Norwegian’s motion to dismiss is denied; but Plaintiffs alternative theories of negligence based on Florida law are dismissed with prejudice for the reasons stated above.
2. Plaintiffs Breach of Contract Claims
Plaintiff also alleges that Norwegian breached its Guest Ticket Contract with Plaintiff by “failing to return him to the point of disembarkation safely” [D.E. 17 ¶ 26]. Norwegian argues that this claim must be dismissed because the Guest Ticket Contract contains no provision guaranteeing safe passage [D.E. 21 at 9].
3. The Improper Norwegian Parties
The Norwegian Defendants assert that NCL (Bahamas) Ltd., as the only Defendant party to the Guest Ticket Contract with Plaintiff, is the only proper Defendant in this action, and the remaining Defendants — Norwegian Cruise Line Limited, Norwegian Cruise Lines, Inc., and NCL America, Inc. — are inactive and/or dissolved entities [D.E. 21 at 10]. In response, Plaintiff sought leave of the Court to conduct discovery to determine if any of the other Norwegian Defendants played any role in the company’s activities at the Port of Miami terminal where the alleged tort occurred [D.E. 23 at 10]. Because Plaintiff has essentially conceded that it has no information on which to form a reasonable belief that these Defendants have any liability in this matter, the motion to dismiss the claims against Norwegian Cruise Line Limited, Norwegian Cruise Lines, Inc., and NCL America, Inc., is GRANTED.
For the reasons stated above, it is ORDERED AND ADJUDGED that Counts I, II, III, IV, VI, VII and VIII of the Amended Complaint [D.E. 17] are DISMISSED WITH PREJUDICE.
IV. Norwegian’s Motion for Summary Judgment [D.E. 40]
A. Standard of Review
Summary judgment is appropriate “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). Under this standard, “[o]nly disputes over facts that might affect the outcome of the suit under the governing [substantive] law will properly preclude the entry of summary judgment.” Anderson v. Liberty Lobby, Inc.,
In evaluating a motion for summary judgment, the Court considers the evidence in the record, “including depositions, documents, electronically stored information, affidavits or declarations, stipulations .... admissions, interrogatory answers, or other materials.... ” Fed.R.Civ.P. 56(c)(1)(A). 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, and must resolve all reasonable doubts about the facts in favor of the non-mov-ant.” Rioux v. City of Atlanta,
Finally, “[sjummary judgment for a defendant is appropriate when the plaintiff ‘fails to make a sufficient showing to establish the existence of an element essential to [his] case, and on which [he] will bear the burden at trial.’ ” Cleveland v. Policy Mgmt. Sys. Corp.,
B. Analysis
In its Motion, Norwegian raises four principal arguments: (1) Norwegian had no actual or constructive notice of a risk-creating condition; (2) because the risk was open and obvious, Norwegian had no duty to warn passengers of the danger; (3) if Norwegian did have a duty to warn, the cruise line discharged that duty; and (4) Norwegian’s alleged negligence was not the proximate cause of Plaintiffs injury [D.E. 40].
1. Actual or constructive notice
As discussed above, a cruise line’s duty of reasonable care “requires as a prerequisite to imposing liability, that the carrier have had actual or constructive notice of the risk-creating condition.” Keefe,
Lipkin argues that the warning label “is, by itself, evidence of a property owner’s or possessor’s knowledge or awareness of the danger to which the warning is directed” [D.E. 46 at 7]. In response, Norwegian argues that the “mere presence of a warning does not establish notice of a dangerous condition” [D.E. 59 at 3].
First, Plaintiff argues that Norwegian must have had actual or constructive knowledge of the risk because Norwegian effectively took control of the terminal after Miami-Dade County personnel completed their security sweep [D.E. 46 at 3; D.E. 46-19]. The mere fact that Norwegian exercised control over the terminal does not, in itself, suffice to show that Norwegian had actual or constructive notice of a risk-creating condition. The “mere implication of actual or constructive notice is insufficient to survive summary judgment”; rather, a plaintiff must show “specific facts demonstrating, at least, that the purported defect was detectable with sufficient time to allow for corrective action.” Cohen v. Carnival Corp.,
Next, Plaintiff cites the deposition testimony of Gonzalez, Norwegian’s Manager of Guest Port Services [D.E. 46 at 4]. But Gonzalez testified only that she knew about the existence of the warning label on the walkway [D.E. 63-1 at 24], She did not testify that she knew the content of the warning, or that she knew of any risk or danger giving rise to the warning.
Because Plaintiff has failed to cite any evidence in the record showing that Norwegian had actual or constructive notice of the risk-creating condition alleged in the complaint, and because evidence of notice is a prerequisite to liability under maritime law, summary judgment in favor of Norwegian is appropriate in this matter. See Keefe,
2. Proximate Cause
Even assuming arguendo that Plaintiff has established Norwegian’s notice of the alleged danger, and further assuming that this danger was not apparent and obvious, Plaintiffs negligence claim against Norwegian still would fail because he has not established that Norwegian’s negligence was the proximate cause of his injuries. As discussed above, because Plaintiffs injury occurred off the ship at the terminal, Norwegian’s only duty was to warn passengers of the “known dangers” which existed “beyond the point of debarkation in places where passengers are invited or reasonably expected to visit.” Chaparro,
McCain concerns the relationship between a tortfeasor’s duty of care and proximate causation, and discusses how the issue of foreseeability is applied to both of these elements. McCain,
Accordingly, summary judgment must be granted in favor of Norwegian because Plaintiff has failed to establish that any negligence was the proximate cause of his injuries. For these reasons, Norwegian’s Motion for Summary Judgment on Count V of the Amended Complaint is GRANTED.
V. Miami-Dade County’s Motion for Summary Judgment [D.E. 38]
In its Motion for Summary Judgment, Miami-Dade County argues that Plaintiff has failed to put forward any evidence of any duty the County owed to Plaintiff, any breach of duty, or that a breach was the proximate cause of Plaintiffs injury [D.E. 38 at 6-7]. Plaintiff opposes the motion [D.E. 45],
A. The County’s Duty to Plaintiff
To sustain a negligence claim under Florida law, a plaintiff must establish that (1) the defendant had a duty to protect the plaintiff; (2) the defendant breached that duty; and (3) the defendant’s breach was the proximate cause of the plaintiffs injuries and resulting damages. Cooper Hotel Servs., Inc. v. MacFarland,
In its motion, Miami-Dade County first argues that Plaintiff has failed to show that it had any actual or constructive notice of any danger, because there is no evidence that anyone with the county knew that the wheelchair was stuck on the walkway [D.E. 38 at 7-9]. In response, Plaintiff points to the deposition testimony of Geser Torres, the County’s Terminal Operations Manager, who testified that he recognized that a wheelchair on the people mover could constitute a dangerous condition [D.E. 39-2 at 6-7]. Viewing the facts in the light most favorable to Plaintiff, the Court finds that there exists a genuine issue of material facts as to Miami-Dade County’s actual knowledge that wheel
In his papers, Plaintiff also argues that the County owed him additional duties beyond the duty to maintain the premises in a reasonably safe manner and warn of known dangers. Specifically, Plaintiff asserts that the County had the “duty of keeping wheelchairs off the walkways,” the duty to inspect the walkways for potential hazards, and the duty to control the conduct of the unknown passenger who collided with Plaintiff [D.E. 45 at 9-10]. The County argues that Plaintiff is seeking to impermissibly expand its duty of care [D.E. 56 at 2-7].
1. The duty to “keep wheelchairs off the walkway”
Plaintiff argues that Miami-Dade County “assumed the duty of keeping wheelchairs off the walkways,” based on “the County’s admitted practice of not allowing wheelchairs on its moving walkways, by its instructions to its employees to prevent passengers from bringing wheelchairs on the walkways, and by the County’s Terminal Operations Specialist’s acknowledgement that that was one of his duties” [D.E. 45 at 9-10]. Plaintiff argues that this theory of liability is applicable under the “undertaker’s doctrine.” Id. The County argues that Plaintiff has misstated the facts in the record in an effort to support this theory of liability [D.E. 56 at 4-5],
Under the “undertaker’s doctrine,” one who undertakes to render services to another which he or she should recognize as necessary for the protection of a third person is subject to liability to the third person for physical harm resulting from his or her failure to exercise reasonable care, if (1) the failure to exercise reasonable care increases the risk of such harm. (2) he or she has undertaken to perform a duty owed by the other to the third person, or (3) the harm is suffered because of reliance of the other or the third person upon the undertaking. Clay Elec. Co-op., Inc. v. Johnson,
Plaintiff’s argument appears to be based on the deposition testimony of Paul Hin-chey, the County’s Terminal Operations Manager, and Torres. In his deposition, Hinchey stated that Miami-Dade County does not allow wheelchairs on the people mover [D.E. 48-26 at 4]. Torres also testified that wheelchairs are not permitted on the people mover, and that, if he saw a passenger attempting to place a wheelchair on the walkway, he was to tell that person not to do so [D.E. 39 at 6-7]. But Torres testified that his job duties did not entail regular monitoring of the people movers for wheelchairs: “We’re not literally there to tell people, ‘Don’t go on there because you have a wheelchair.’ We’re not assigned to the escalators ... Our job is just to make sure the escalator is running and it’s functional. That if it’s not moving, that the handrail is not loose. Who is supposed to be there, that’s out of my job duties.” Id. at 7.
Even assuming that this testimony establishes that the County had a general “policy” prohibiting wheelchairs on the walkway,
2. The duty to inspect the premises to identify hazards
Next, Plaintiff argues that “the County had a duty to actively inspect the Terminal including its walkways under Florida’s ‘negligent mode of operation’ theory in order to acquire information about, and prevent, potential hazards from materializing” [D.E. 45 at 10]. As described by the Florida Supreme Court, the negligent mode of operation theory is applicable where “the evidence establishes a specific negligent mode of operation such that the premises owner could reasonably anticipate that dangerous conditions would arise as a result of this mode of operation.” Markowitz v. Helen Homes of Kendall Corp.,
Though Plaintiff seeks to travel under this theory of negligence, he has once again failed to explain how this negligence theory is applicable under the facts of this case. In opposing the motion for summary judgment, Plaintiff offers the circular argument that, because a property owner has a duty “to reduce, minimize or eliminate foreseeable risks before they manifest themselves as particular dangerous conditions on the premises,” Markowitz,
It is undisputed that Miami-Dade County owns the moving walkway and is responsible for its operation and maintenance [D.E. 48 at 7-8; D.E. 39 ¶ 15; D.E. 39-3 at 19]. In circumstances such as these, a property owner has a duty to maintain the premises in a reasonably safe condition. See Burton,
3. The duty to control third parties
Plaintiff argues that Miami-Dade County had a duty to control the unknown woman who collided with him to prevent her from taking the wheelchair on the walkway [D.E. 45 at 10]. Generally, “there is no duty to control the conduct of a third person to prevent that person from causing physical harm to another.” Knight v. Merhige,
Plaintiff first argues that Miami-Dade County had a “special relationship” with him because he was a business invitee [D.E. 45 at 10]. Florida courts have recognized several such “special relationships,” including a common carrier-passenger relationship, a landlord-tenant relationship, a school-pupil relationship, and the hospital patient relationship, and the law “continues to evolve on the special relationships that might give rise to a duty.” Lee v. Huffmaster Crisis Response, LLC,
In this case, it is undisputed that Norwegian, not Miami-Dade County, controlled the terminal at the time of Plaintiffs injury. According to the County’s unrebutted Statement of Facts, “the County turns over the Cruise Terminal to Norwegian” after completing a security sweep for unattended bags or people hiding [D.E. 39 ¶ 54].
After reviewing the parties’ arguments, the Court finds that Miami-Dade County, as the owner of the premises, only had the duty to maintain the premises in a reasonably safe condition and the duty to warn of known dangers. See Burton,
B. The Duty to Warn and Proximate Cause
Under Florida law, “there can be no liability for any tort unless it be shown that the defendant’s act or omission was a cause-in-fact of the plaintiffs claimed injuries.” 50 State Sec. Serv., Inc. v. Giangrandi,
In sum, the Court finds that Plaintiff has not produced any evidence showing that Miami-Dade County breached its duty to maintain its premises, and he has not produced any evidence showing that his injuries were proximately caused by Miami-Dade County’s failure to provide an adequate warning of the danger of wheelchairs on the people mover. Accordingly, Miami-Dade County’s motion for summary judgment on Count IX of the Amended Complaint is GRANTED.
VI. Conclusion
For the reasons stated above, it is ORDERED AND ADJUDGED that:
1. Miami-Dade County’s Motion to Dismiss the Amended Complaint [D.E. 28] is DENIED.
2. The Norwegian Defendants’ Motion to Dismiss the Amended Complaint [D.E. 21] is GRANTED IN PART. Counts I, II, III, IV, VI, VII and VIII of the Amended Complaint are DISMISSED WITH PREJUDICE. The Motion to Dismiss Count V of the Amended Complaint is DENIED.
3. Norwegian’s Motion for Summary Judgment on Count V of the Amended Complaint [D.E. 40] is GRANTED.
4. Miami-Dade County’s Motion for Summary Judgment on Count IX of the Amended Complaint [D.E. 38] is GRANTED.
5. The Defendants shall file a Proposed Order of Judgment within 10 days of the date of this Order.
Notes
. Decisions of the Fifth Circuit handed down prior to the close of business on September 30, 1981, are binding precedent in the Eleventh Circuit Bonner v. City of Prichard, Ala.,
. These defendants would also be entitled to summary judgment, as Plaintiff has not offered any facts indicating their liability in either his opposition to the motion for summary judgment [D.E. 46] or his statement of material facts [D.E. 48],
. In its reply brief, Norwegian argues, for the first time, that because Plaintiff had successfully disembarked from the vessel, Norwegian had fully discharged its duty of care to Plaintiff [D.E. 59 at 1-2] “Arguments raised for the first time in a reply brief are not properly before a reviewing court” Herring v. Sec’y, Dept. of Corr.,
. Norwegian argues that, where a defendant has placed a warning label "as a safety precaution and not in response to complaints,” then the warning should not be considered evidence of a defendant’s constructive or actual notice of the dangerous condition [D.E. 59 at 3-4], This rationale was articulated in Hilsman v. Sarwil Assocs., LP., in which the court held that a warning sign is not evidence of notice if the sign was used "either as a purely precautionary measure or in response to a condition that had been addressed prior to the accident.” Hilsman v. Sarwil Assocs., LP.,
. In her deposition, Gonzalez testified that she was not aware of any warning provided by Norwegian to passengers regarding the use of wheelchairs on the people mover [D.E. 63-1 at 25-26],
. It is not entirety clear from the record whether Gonzalez knew of the existence of the warning labels prior to this litigation. When asked whether she knew the content of the warning, she replied: "I have seen it on the pictures,” and she could not describe the warning label in any detail [D.E. 63-1 at 29],
. Norwegian contracts with a company called SMS International Shore Operations to "meet and greet” passengers and oversee debarkation of the ship at the Port Terminal [D.E. 63-1 at 6. 20],
. Theoretically, Plaintiff could also establish proximate cause by showing that the woman pushing the wheelchair on the walkway would not have done so had she been warned of the danger by Norwegian. In any event, it does not appear that the woman has been identified or deposed [see D.E. 46 at 2, 16].
. Frederick Wong, the acting assistant port director for port operations for the County, testified in his deposition that the port "does not have a policy on wheelchairs that are prohibited” [D.E. 39-3 at 8].
. Notably, the Court could not find any case in Florida or elsewhere in which a Plaintiff asserted a claim under a "negligent mode of operation” theory against a property owner who had leased the premises or otherwise ceded control of the premises to another business enterprise.
. Because Plaintiff has failed to address this assertion of fact by the County, the Court considers it undisputed for purpose of this motion. See Fed.R.Civ.P. 56(e); Local Rule 56.1(b).
. Plaintiff has also failed to rebut this assertion of fact.
. See supra at 16-18.
. The County also argued that it’s conduct was not the proximate cause of Plaintiff’s injury because the events leading to the injury — a woman entering the moving walkway pushing a wheelchair, which then became stuck at the end of the walkway, forcing other passengers to maneuver around the woman as she jerked and pulled on the wheelchair to free it, leading her to bump into Plaintiff as he tried to pass her — constituted an "abnormal intervening force,” and the County's conduct was therefore not a substantial factor in Plaintiff's injury [D.E.’38 at 14-15], In some circumstances, courts have found as a matter law that a property owner's alleged negligence may not be a substantial factor in causing the harm when the injury arose from the plaintiff's independent conduct and the actions of a third party on the premises. See, e.g., Gehr v. Next Day Cargo, Inc.,