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August 26, 1999


The opinion of the court was delivered by: Sweet, District Judge.


Defendants Celebrity Cruises, Inc. ("Celebrity") and the M/V ZENITH (the "ZENITH") (collectively the "Defendants") move for an order of summary judgment, pursuant to Rule 56 of the Federal Rules of Civil Procedure, dismissing the claims brought against them by Susan C. McDonough ("McDonough") and Arnold Sameroff ("Sameroff") (collectively the "Plaintiffs"). For the reasons set forth below, the motion is granted in part, and denied in part.

The Parties

McDonough and Sameroff are citizens of the State of Michigan, and at all times relevant to the instant litigation were husband and wife.

Celebrity is a foreign corporation authorized to do business in New York. Celebrity is the operator of the ZENITH, a passenger cruise ship.

The Facts

In March of 1997, Plaintiffs and their minor daughter were passengers aboard the ZENITH for a one week cruise embarking from San Juan, Puerto Rico. Late in the evening of Wednesday, March 26, 1997, they attended a buffet known as "Island Night." The buffet was served on Deck 11 of the ZENITH. On Deck 11 passengers were provided with a live band, a dance floor, buffet tables at which food was served, tables and chairs for their use, and two tables at which they could purchase alcoholic beverages.

During Island Night, passengers could obtain drinks either by purchasing them at the two bar stations on Deck 11, or by ordering them from waiters who circulated on Decks 11 and 12 of the ZENITH. Deck 12 is a partial deck immediately above Deck 11, and contains a rectangular opening over the area of Deck 11 in which the swimming pools, the dance floor, and portions of the deck adjoining those areas are located. While passengers are allowed to take food and drink with them to Deck 12, no tables or chairs are provided on that deck. A gunwale six inches wide surrounds Deck 12, and the distance from the top of that gunwale to the floor of Deck 11 is sixteen feet.

One of the alcoholic drinks offered to passengers during Island Night is a "specialty" beverage known as a "Coco Loco," which is served inside a green, unhusked coconut. To prepare the drink, the top portion of the coconut is removed, and the bottom portion is sliced to create a flat base, approximately three inches in diameter. A coconut produced by Defendants during discovery weighed four pounds in its unprepared state, and it is uncontroverted that the Coco Loco drink is both heavier and more difficult to hold than a regular glass.

Shortly after midnight on March 26th, McDonough, standing on Deck 11, was struck on the top of her head by an object that apparently fell from Deck 12. Neither she nor Sameroff saw how the object had come to strike her or who would have been responsible for dropping the object. After she was struck, however, McDonough saw a pile of slush — which she assumed to be the contents of a Coco Loco — approximately five feet away from her. Sameroff saw something that looked like a coconut approximately ten feet away from McDonough, located under one of Deck 11's tables. Though no passengers came forward who had seen McDonough struck, an investigation by the ship's Safety Officer concluded that the accident was the result of the carelessness of a guest.

As a result of the blow she received, McDonough claims to have suffered, in addition to other injuries, continuing neurological complications such as "closed head disorder" and occilopsia. Her continuing health problems have allegedly affected both the quality of her daily life and her career.

Plaintiffs filed their complaint on March 22, 1998. Count I of the complaint seeks recovery against the Defendants for negligence.*fn1 Count II of the complaint seeks damages for Sameroff's loss of consortium due to the injuries suffered by McDonough. Oral argument was heard on the instant motion on April 7, 1999, at which time the motion was deemed fully submitted.


Summary judgment is appropriate only where the evidence is such that a reasonable jury could not return a verdict in favor of the non-moving party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250-51, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Under Rule 56(c), Fed.R.Civ.P., it shall be rendered "forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits . . . show that there is no genuine issue as to any ...

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