1996 Decisions

Opinions of the United

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Precedential or Non-Precedential: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
1 

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
2 

 

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 
3 

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 
4 

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 
5 

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 
6 

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, 
7 

§ 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 
8 

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 
9 

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 
10 

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. 
11 

 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 
12 

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. 
13 

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. 

 
14 

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 
15 

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).