Filed: Jul. 14, 2020
Latest Update: Jul. 14, 2020
Summary: Case: 18-11638 Date Filed: 07/14/2020 Page: 1 of 49 [PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT _ No. 18-11638 _ D.C. Docket No. 1:16-cv-21769-KMW IRINA TESORIERO, Plaintiff-Appellant, versus CARNIVAL CORPORATION, d.b.a. Carnival Cruise Line, Defendant-Appellee. _ Appeal from the United States District Court for the Southern District of Florida _ (July 14, 2020) Before ROSENBAUM, GRANT, and HULL, Circuit Judges. GRANT, Circuit Judge: When Irina Tesoriero sat on the v
Summary: Case: 18-11638 Date Filed: 07/14/2020 Page: 1 of 49 [PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT _ No. 18-11638 _ D.C. Docket No. 1:16-cv-21769-KMW IRINA TESORIERO, Plaintiff-Appellant, versus CARNIVAL CORPORATION, d.b.a. Carnival Cruise Line, Defendant-Appellee. _ Appeal from the United States District Court for the Southern District of Florida _ (July 14, 2020) Before ROSENBAUM, GRANT, and HULL, Circuit Judges. GRANT, Circuit Judge: When Irina Tesoriero sat on the va..
More
Case: 18-11638 Date Filed: 07/14/2020 Page: 1 of 49
[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 18-11638
________________________
D.C. Docket No. 1:16-cv-21769-KMW
IRINA TESORIERO,
Plaintiff-Appellant,
versus
CARNIVAL CORPORATION,
d.b.a. Carnival Cruise Line,
Defendant-Appellee.
________________________
Appeal from the United States District Court
for the Southern District of Florida
________________________
(July 14, 2020)
Before ROSENBAUM, GRANT, and HULL, Circuit Judges.
GRANT, Circuit Judge:
When Irina Tesoriero sat on the vanity chair in her Carnival Cruise ship
cabin, she was in for a terrible surprise—it collapsed. While she and her husband
Case: 18-11638 Date Filed: 07/14/2020 Page: 2 of 49
waited for help to arrive, they saw that a leg had fallen off the chair. Observing no
other outward defects, they took some photos of the pegs that normally held the
chair together, which became visible only after the chair broke. Still waiting for
help, they let in a steward who came to replace the broken chair with a fresh one.
Finally, the Tesorieros took matters into their own hands and went directly to the
onboard medical center; there, they were told that Tesoriero’s arm was not broken,
and an x-ray was taken to be sure. The onboard doctor treated her with Tylenol,
ice, and a sling and sent the couple on their way.
Understandably frustrated that her injury continued to bother her, Tesorerio
sought treatment at home after the cruise. Still no broken arm, but she was
suffering from a terrible case of medial epicondylitis and ulnar neurapraxia—a
diagnosis Tesoriero describes as tennis elbow. Tesoriero was also understandably
frustrated with Carnival, and filed suit against the cruise line, alleging that it had
failed to inspect and maintain the cabin furniture (or else warn her of the danger
the chair posed). Perhaps aware of the difficulty she may have in showing that
Carnival had notice about the chair’s dangers (especially given the photos
suggesting no outward defects), she fought the usual notice requirement on two
fronts: first, she alleged that res ipsa loquitor applied and meant that she did not
need to show notice, and second, she claimed that Carnival should be sanctioned
with an adverse inference on notice because it failed to preserve the broken chair.
The district court granted summary judgment in favor of Carnival. The
court found that the cruise line did not have notice that the chair was dangerous,
that res ipsa loquitor did not apply, and that the failure to save the chair was not
2
Case: 18-11638 Date Filed: 07/14/2020 Page: 3 of 49
sanctionable. Tesoriero now appeals those three conclusions. After careful
review, we agree with the district court that Tesoriero failed to show that Carnival
had actual or constructive notice that the chair was broken. Unlike the district
court, we decline to consider whether res ipsa loquitor applies; even if it does, that
doctrine cannot cure a defect in notice. Nor can the requested spoliation sanctions;
even setting aside whether we think the chair itself could have provided any
evidence of notice, Carnival’s failure to preserve the chair was not shown to be in
bad faith and is therefore not sanctionable. For all those reasons, we affirm.
I.
On June 26, 2015, Irina Tesoriero was getting ready for dinner in her cabin
aboard the Carnival Splendor. She pulled a wooden chair “about a foot” away
from the vanity and attempted to sit down, but it collapsed beneath her. Her right
collarbone struck the vanity and her right arm was injured; initially, she believed
that her arm was broken. Her husband, Joseph Tesoriero, witnessed the incident
and called the front desk for help.
While waiting for help to arrive, Joseph inspected and photographed the
chair. He saw that it “did not have any obvious or observable outward defects”
before it broke. He also saw that the right front leg, which had been attached to the
seat by pegs, had fallen off, and that the glue on the pegs was dried and chipped.
In his opinion, it “was obvious from the appearance of the pegs—visible only after
it fell apart—that the pegs had been unglued and loose for a long time.” A steward
came to the cabin, took away the broken chair, and replaced it with a new one.
3
Case: 18-11638 Date Filed: 07/14/2020 Page: 4 of 49
The chair was later disposed of by an unknown crew member because it could not
be fixed.
Tesoriero and her husband waited around for medical staff, and went to the
onboard medical center when in-cabin aid was not forthcoming. Tesoriero was
then examined by a physician, who told her (correctly, as it turns out) that she did
not have a fracture and gave her Tylenol, ice, and an arm sling. Although an x-ray
was taken, it was sent to Miami for review because it could not be read on the ship.
While at the medical center, Joseph Tesoriero completed a “passenger injury
statement” on his wife’s behalf. The statement collected basic information,
including the time, date, and location of the incident.
In accordance with Carnival’s policy, because Tesoriero’s injury only
required first aid—and because she did not request an accident report—the medical
staff classified the accident as “non-reportable.” That meant that the security
department, which is responsible for investigating accidents and, when necessary,
preserving evidence, was asked to do neither. The room stewards, on the other
hand, dispose of broken furniture that cannot be repaired and only preserve it if
asked to do so. That general policy was followed here, so the chair was not
preserved.
After Tesoriero disembarked, she received confirmation that her x-ray
results did not show a broken arm. But the arm was not ready to make peace, and
Tesoriero continued to experience pain and swelling. She was ultimately
diagnosed with medial epicondylitis and ulnar neurapraxia, which she described as
“tennis elbow.” Tesoriero struggled to get her arm back to full strength,
4
Case: 18-11638 Date Filed: 07/14/2020 Page: 5 of 49
undergoing injections, therapy, and surgery, apparently with little success; she says
that she continued to require medical treatment into this litigation, and that she
struggles with basic tasks like cooking, taking out the garbage, and carrying
groceries.
A little less than a year after the cruise, Tesoriero filed a complaint against
Carnival in the Southern District of Florida, asserting a single claim of negligence
based on Carnival’s alleged failure to inspect and maintain the cabin furniture and
failure to warn passengers of the unsafe condition. Both parties moved for
summary judgment. For its part, Carnival invoked a familiar defense, arguing that
it was not responsible for Tesoriero’s injury because it had neither actual nor
constructive knowledge that the chair was unsafe prior to the incident.
During discovery, Tesoriero deposed the housekeeping manager who was
aboard the ship at the time of the accident. The manager testified that stewards
cleaned the cabins daily and were responsible for inspecting the cabin furniture.
He explained that that process involved physical movement of the chairs in the
course of vacuuming, as well as visual inspection of the entire cabin, including the
furniture, for signs of damage. Damaged furniture was reported to a floor
supervisor, who was tasked with making a record of the problem and addressing it.
When repairs were possible, they were made, and when repairs were not possible,
the items were disposed of.
Tesoriero’s arguments—considering both her response to Carnival’s motion
and her own motion for summary judgment—were threefold. First, she said that
the condition of the chair, coupled with Carnival’s regular inspections of the cabin
5
Case: 18-11638 Date Filed: 07/14/2020 Page: 6 of 49
furniture, was enough to constitute constructive notice of the dangerous condition.1
Second, she contended that the doctrine of res ipsa loquitur applied and eliminated
the need for her to show that Carnival had notice in any event. Finally, she argued
that Carnival’s disposal of the broken chair amounted to spoliation of evidence and
entitled her to an inference that Carnival had notice of the risk-creating condition.
A magistrate judge issued a report and recommendation on the competing
motions. He said that the evidence demonstrated that “no reasonable inspection
could have discovered the dangerous condition without first deconstructing the
cabin chair.” As to the res ipsa loquitur issue, the magistrate first concluded that
the doctrine, if applicable, would indeed absolve Tesoriero of any need to show
that Carnival had actual or constructive notice of the dangerous condition.
Ultimately though, he decided that the doctrine did not apply because a collapsing
chair can easily happen even without negligence. Finally, the magistrate declined
to sanction Carnival for spoliation of evidence, seeing no evidence that Carnival
reasonably anticipated litigation following the accident.
Over Tesoriero’s objections, the district court affirmed and adopted the
magistrate judge’s report and recommendation and granted Carnival summary
judgment. In adopting the recommendation, the court specifically ruled that res
ipsa loquitur did not apply and that the facts surrounding the disposal of the broken
1
At the trial level, Tesoriero pressed additional arguments. She said that Carnival had
constructive notice because of (1) a prior accident involving a collapsing metal balcony chair;
and (2) internal documents from Carnival regarding the repair and replacement of cabin chairs.
She also contended that her negligent maintenance claim did not require a showing of notice.
The district court rejected all these arguments, and Tesoriero does not challenge those rulings on
appeal.
6
Case: 18-11638 Date Filed: 07/14/2020 Page: 7 of 49
chair did “not amount to spoliation such that an adverse inference is warranted.”
Tesoriero appealed.
II.
“We review a district court’s grant of summary judgment de novo.
Summary judgment is appropriate only when no genuine issue of material fact
exists and the moving party is entitled to judgment as a matter of law.” Lewis v.
City of Union City, 918 F.3d 1213, 1220 n.4 (11th Cir. 2019) (en banc) (internal
citation omitted). We view “the evidence and all reasonable inferences drawn from
it in the light most favorable to the nonmoving party.” Hornsby-Culpepper v.
Ware,
906 F.3d 1302, 1311 (11th Cir. 2018). “Where the record taken as a whole
could not lead a rational trier of fact to find for the non-moving party, there is no
genuine issue for trial.”
Id. (quotation marks and citation omitted). “We review the
district court’s decision regarding spoliation sanctions for abuse of discretion.”
Flury v. Daimler Chrysler Corp.,
427 F.3d 939, 943 (11th Cir. 2005). We “may
affirm for any reason supported by the record, even if not relied upon by the district
court.” Lage v. Ocwen Loan Servicing LLC,
839 F.3d 1003, 1009 (11th Cir. 2016)
(citation omitted).
III.
On appeal, Tesoriero raises three arguments. First, she argues that her
husband’s observations about the broken cabin chair, coupled with Carnival’s
admitted regular inspections, show that Carnival had constructive notice that the
chair was dangerous. Second, she argues that even if she cannot establish notice,
the doctrine of res ipsa loquitur saves her claim because it eliminates the ordinary
7
Case: 18-11638 Date Filed: 07/14/2020 Page: 8 of 49
notice requirement. Finally, she argues that she is entitled to an adverse inference
against Carnival on the notice requirement in any event because Carnival spoliated
evidence when it discarded the chair.
A.
Before turning to Tesoriero’s constructive notice argument, we should say a
few words about the background legal principles in play. “Maritime law governs
actions arising from alleged torts committed aboard a ship sailing in navigable
waters.” Guevara v. NCL (Bahamas) Ltd., 920 F.3d 710, 720 (11th Cir. 2019).
“Drawn from state and federal sources, the general maritime law is an amalgam of
traditional common-law rules, modifications of those rules, and newly created
rules.” Misener Marine Const., Inc. v. Norfolk Dredging Co.,
594 F.3d 832, 838
(11th Cir. 2010) (quoting E. River S.S. Corp. v. Transamerica Delaval, Inc.,
476
U.S. 858, 864–65 (1986)). And in the absence of an established federal maritime
rule, we “may borrow from a variety of sources in establishing common law
admiralty rules to govern maritime liability where deemed appropriate.” Marastro
Compania Naviera, S.A. v. Canadian Mar. Carriers, Ltd.,
959 F.2d 49, 53 (5th Cir.
1992) (applying the “general common law and in particular the Restatement
(Second) of Torts” to “determine the law of maritime trespass”); see also Wells v.
Liddy,
186 F.3d 505, 525 (4th Cir. 1999) ( The “general maritime law may be
supplemented by either state law or more general common law principles.” (internal
citation omitted)). For maritime tort cases in particular, “we rely on general
principles of negligence law.” Chaparro v. Carnival Corp.,
693 F.3d 1333, 1336
(11th Cir. 2012) (citation omitted).
8
Case: 18-11638 Date Filed: 07/14/2020 Page: 9 of 49
A few key principles have developed to guide our analysis of these torts. A
cruise line “is not liable to passengers as an insurer,” but instead is liable to
passengers “only for its negligence.” Keefe v. Bahama Cruise Line, Inc., 867 F.2d
1318, 1322 (11th Cir. 1989) (citation omitted). The elements of a maritime
negligence claim, in turn, are well-established, and stem from general principles of
tort law. A cruise passenger must show 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 plaintiff’s injury, and (4) the plaintiff
suffered actual harm.”
Guevara, 920 F.3d at 720 (quoting
Chaparro, 693 F.3d at
1336).
Here, the first question for us is the scope of Carnival’s duty to Tesoriero.
Shipowners owe their passengers a duty of “ordinary reasonable care under the
circumstances.” Keefe, 867 F.2d at 1322. This standard requires, “as a prerequisite
to imposing liability, that the carrier have had actual or constructive notice of the
risk-creating condition,” at least so long as “the menace is one commonly
encountered on land and not clearly linked to nautical adventure.” Id.; Everett v.
Carnival Cruise Lines,
912 F.2d 1355, 1358 (11th Cir. 1990). In other words, a
cruise ship operator’s duty is to shield passengers from known dangers (and from
dangers that should be known), whether by eliminating the risk or warning of it.
Liability for a cruise ship operator thus ‘“hinges on whether it knew or should have
9
Case: 18-11638 Date Filed: 07/14/2020 Page: 10 of 49
known’ about the dangerous condition.” Guevara, 920 F.3d at 720 (quoting
Keefe,
867 F.2d at 1322). 2
We have identified at least two ways that constructive notice can be shown.
First, a plaintiff can establish constructive notice by showing that a “defective
condition existed for a sufficient period of time to invite corrective measures.” Id.
(alterations adopted) (quoting Monteleone v. Bahama Cruise Line, Inc.,
838 F.2d
63, 65 (2d Cir. 1988)). Second, a plaintiff can show evidence of “substantially
similar incidents in which conditions substantially similar to the occurrence in
question must have caused the prior accident.”
Id. (quotation marks and citation
omitted). On the other hand, the fact that the cruise line runs the ship is not
enough—constructive notice of a risk cannot be imputed merely because a
shipowner “created or maintained” the premises.
Everett, 912 F.2d at 1358–59.
Here, the evidence does not show—and Tesoriero does not contend—that
Carnival had actual notice that the chair was dangerous. Nor do we have any
evidence of substantially similar incidents involving wooden cabin chairs.
Tesoriero’s sole argument that Carnival had constructive notice relies on her
husband’s observations about the chair, along with Carnival’s furniture-inspection
policy. In her view, these facts demonstrate that Carnival should have known about
2
This notice requirement is not unique to maritime law. For example, in a traditional negligence
action against a landowner by an invitee, a “defect or danger is generally insufficient to establish
liability, unless it is shown to be of such a character or of such duration that the jury may
reasonably conclude that due care would have discovered it.” W. Page Keeton et al., Prosser
and Keeton on the Law of Torts § 61, at 426–27 (5th ed. 1984). So, for example, the “mere fact
of the presence of a banana peel on a floor may not be sufficient to show that it has been there
long enough for reasonable care to require the defendant to discover and remove it,” while a
“black, flattened out and gritty” peel might lead to a different conclusion. Id. § 39, at 243
(citation omitted). The key is notice.
10
Case: 18-11638 Date Filed: 07/14/2020 Page: 11 of 49
the chair’s “hair-trigger condition.” For Tesoriero to prevail on this theory, we
would need to conclude that the chair existed in a defective condition “for a
sufficient period of time to invite corrective measures.” Guevara, 920 F.3d at 720.
A defect, however, must be reasonably detectable for it to “invite” corrective
measures, and we cannot see how the chair’s condition here issued any such
invitation.
To begin, Carnival’s “regular inspections weigh against a finding of
constructive notice” that the chair was dangerous—not in favor of that finding. Id.
at 723 n.8; see also
Monteleone, 838 F.2d at 66. The daily inspection policy
required stewards to report damaged furniture to a floor supervisor, and the
supervisor was then responsible for documenting and addressing the issue. The
lack of a report noting structural damage to Tesoriero’s cabin chair—or any wooden
cabin chair for that matter—indicates that the chair was not in a condition that
invited corrective measures.
And at a more basic level, Tesoriero’s constructive notice argument is
undermined by her own evidence. In Joseph Tesoriero’s affidavit describing the
incident, he observed that the glue on the pegs holding the chair together “appeared
to be dried out or chipped away” and that it was “obvious” that “the pegs had been
unglued and loose for a long time.” But those observations, however obvious they
may have been after the fall, could not have been made by the crew before the chair
came apart. Joseph Tesoriero himself admitted that—before its collapse—the
“chair did not have any obvious or observable outward defects.” In fact, he added
that the condition of the pegs was “visible only after it fell apart.”
11
Case: 18-11638 Date Filed: 07/14/2020 Page: 12 of 49
The photographic evidence submitted by Tesoriero only reinforces her
husband’s observations. Though the pictures cannot reveal the state of the glue, it
appears that the leg and seat of the chair were held together by four pegs that fit into
opposing holes. With the chair intact, its cloth-covered frame would have
enveloped and obscured the peg-and-hole assembly. So, consistent with Joseph
Tesoriero’s testimony, any defect relating to dried or chipped glue could not have
been visible until the chair came apart.
Even beyond the lack of any outwardly visible defect, Tesoriero’s
characterization of the chair’s “hair-trigger condition” is weakened by her own
testimony. In her deposition, Tesoriero testified that she moved the chair back from
the vanity, evidently without noticing any problem; the issue only became apparent
after the chair broke under her full weight.
The combined effect of this evidence does not support a reasonable
inference that Carnival should have known about the danger. Quite the opposite: it
supports an inference that the defect in the chair was hidden, was not readily
observable by sight or touch, and could only be discovered by either disassembling
the chair to view the pegs or stress testing it. An implicit legal requirement that all
furniture on a cruise ship be either disassembled or subjected to daily stress testing
would be remarkable. Rather than establishing that Carnival should have known of
the chair’s defective condition, the evidence supports the cruise line’s assertion that
moving the chair during cleaning and conducting routine visual inspections did not
reveal a risk-creating condition.
12
Case: 18-11638 Date Filed: 07/14/2020 Page: 13 of 49
B.
That brings us to res ipsa loquitur. Tesoriero argues that even if she cannot
show that Carnival had notice of the chair’s dangerous condition, the cruise line can
still be held liable under that doctrine because it eliminates the usual notice
requirement. Her theory, though, fails on several fronts: it not only misunderstands
the relationship between duty and notice in a tort claim but would also dramatically
expand the doctrine of res ipsa loquitur, which “in the admiralty context is not
totally unique but neither is it routine.” United States v. Baycon Indus., Inc., 804
F.2d 630, 633 (11th Cir. 1986).
Res ipsa loquitur—Latin for “the thing speaks for itself”—is an evidentiary
doctrine that permits a trier of fact to infer a defendant’s negligence from
unexplained circumstances. 3 Sweeney v. Erving, 228 U.S. 233, 238–39 (1913); see
also Johnson v. United States,
333 U.S. 46, 49 (1948). In other words, it is a form
of circumstantial evidence. See
Sweeney, 228 U.S. at 240; see also W. Page Keeton
et al., Prosser and Keeton on the Law of Torts § 39, at 243 (5th ed. 1984);
Restatement (Second) of Torts § 328D cmt. b (Am. Law Inst. 1965). For the
doctrine to apply, the plaintiff needs to show that “(1) the injured party was without
fault, (2) the instrumentality causing the injury was under the exclusive control of
the defendant, and (3) the mishap is of a type that ordinarily does not occur in the
absence of negligence.”
Baycon, 804 F.2d at 633.
3
As it turns out, the phrase itself does not “speak for itself”—the Latin terminology has long
been criticized for adding unnecessary mystery “to a relatively simple problem” of circumstantial
evidence. Restatement (Second) of Torts § 328D cmt. a (Am. Law Inst. 1965).
13
Case: 18-11638 Date Filed: 07/14/2020 Page: 14 of 49
But before we address the application of the doctrine to the facts of this case,
we need to decide a threshold question that has divided the district courts in our
Circuit—whether a maritime passenger who fails to establish the shipowner’s
notice of a dangerous condition can still survive summary judgment by invoking res
ipsa loquitur. If not, the lack of notice is dispositive: no notice, no negligence. This
is an open question in our Circuit.
Indeed, district courts have reached conflicting conclusions on the issue. In
Adams v. Carnival Corp.—a maritime negligence action arising from a deck chair
collapsing under a passenger—the district court considered the effect of res ipsa
loquitur on the notice requirement. No. 08-22465-CIV, 2009 WL 4907547, at *1,
*5 (S.D. Fla. Sept. 29, 2009). The evidence showed that Carnival conducted
routine inspections of the chairs, and the court concluded that the plaintiff presented
no evidence that the defect was “even capable of detection.”
Id. at *4. There, as
here, the plaintiff attempted to get around the usual notice requirement with res ipsa
loquitur. Ultimately, the district court held that the plaintiff’s invocation of res ipsa
loquitur did “not obviate the need to show that Carnival had notice.”
Id. at *5.
“Without specific facts demonstrating, at least, that the purported defect was
detectable with sufficient time to allow for corrective action,” the case could not
proceed to a jury.
Id.
Since Adams, though, the tide has turned and a majority of the district courts
in this Circuit have reached the opposite conclusion (including in this case).4 A
4
Cases from other jurisdictions take a variety of approaches on res ipsa loquitur and notice.
Following in Adams’ footsteps, “several cases in the maritime context” support an argument
14
Case: 18-11638 Date Filed: 07/14/2020 Page: 15 of 49
leading example is Millan v. Celebration Cruise Operator, Inc., where a piece of
the ceiling fell and hit a passenger. 212 F. Supp. 3d 1301 (S.D. Fla. 2015). After
initially distinguishing Adams on its facts, the court went on to conclude that “a
plaintiff is not required to show the defendant’s actual or constructive notice of the
defective condition in order to raise a res ipsa loquitur inference of negligence
under maritime law.”
Id. at 1306. In support of that conclusion, the district court
cited our opinion in United States v. Baycon Industries as finding “no requirement
of actual or constructive notice for res ipsa in maritime negligence action.”
Id. at
1305–06 (citing
Baycon, 804 F.2d at 632–35). The problem is that Baycon does not
say that (or even hint at it). Nevertheless, many district court opinions have
embraced this view in the years that followed, often with little more than a citation
to Millan itself. See, e.g., Morhardt v. Carnival Corp.,
304 F. Supp. 3d 1290, 1296
(S.D. Fla. 2017) (citing Millan and noting that “courts in this district have held that
“that a predicate for a res ipsa loquitur finding is that the Defendant had notice of the defective
condition.” Tillson v. Odyssey Cruises, No. 08-10997-DPW,
2011 WL 309660, at *7 (D. Mass.
Jan. 27, 2011). Others have concluded that res ipsa loquitur is incompatible with a notice
requirement. See, e.g., Krivokuca v. City of Chicago,
73 N.E.3d 525, 532 (Ill. App. Ct. 2017)
(holding that res ipsa loquitur was unavailable when statute required showing actual or
constructive notice); Mixon v. Wash. Metro. Area Transit Auth.,
959 A.2d 55, 60 (D.C. 2008)
(This “court and others have held that in cases in which notice is an essential element of a
plaintiff’s claim, res ipsa loquitur is inapplicable because it is inconsistent with the requirement
of notice.”). There is also considerable support for the opposite proposition. See, e.g., Smith v.
United States,
860 F.3d 995, 998 n.2 (7th Cir. 2017) (noting that “the inference triggered by the
res ipsa loquitur doctrine would include the proposition that the defendant had notice of the
defective nature of the instrumentality that caused the plaintiff’s injury”); Miller v. Cincinnati,
New Orleans & Tex. Pac. Ry. Co.,
317 F.2d 693, 696 (6th Cir. 1963) (“If application of the
doctrine permits an inference of negligence, such inference must necessarily include all the
essential elements of negligence, including here an inference that defendant had actual or
constructive knowledge of the defective condition.”); Burns v. Otis Elevator, Co.,
550 So. 2d 21,
22 (Fla. Dist. Ct. App. 1989) (actual or constructive notice of the defect is “immaterial” if the
conditions for the res ipsa doctrine are established).
15
Case: 18-11638 Date Filed: 07/14/2020 Page: 16 of 49
a plaintiff in a maritime action based on negligence is not required to prove that the
shipowner had notice of the defective condition when the doctrine of res ipsa
loquitur applies”); O’Brien v. NCL (Bahamas) Ltd., 288 F. Supp. 3d 1302, 1314
(S.D. Fla. 2017).
In resolving the apparent uncertainty within our Circuit about notice and res
ipsa loquitur, we return to first principles. 5 “Res ipsa loquitur leads only to the
conclusion that the defendant has not exercised reasonable care, and is not itself any
proof that he was under a duty to do so.” Keeton et al., supra, § 39, at 255. “It
does not permit the imposition of liability without fault, and therefore does not help
to establish the duty of care, which is essential to every negligence case.” 1 Stuart
M. Speiser, The Negligence Case: Res Ipsa Loquitur § 3:1, at 90 (1972). That
means the doctrine does not apply unless the alleged negligence is “within the
scope of the defendant’s duty to the plaintiff.” Restatement (Second) of Torts
§ 328D (Am. Law Inst. 1965). That same duty requirement is found in the res ipsa
loquitur doctrines of many states, and at least one federal circuit court has already
stated that it applies in the admiralty context as well. See, e.g., Trigg v. City &
County of Denver, 784 F.2d 1058, 1060 (10th Cir. 1986) (applying Colorado law);
Biggs v. Logicon, Inc.,
663 F.2d 52, 54 (8th Cir. 1981) (noting in an admiralty case
that res ipsa loquitur only applies if the “negligence is within the scope of the
defendant’s duty to the plaintiff”); Moon v. Dauphin County,
129 A.3d 16, 26 (Pa.
5
Our Circuit is not alone in its uncertainty—at least as a general matter. Prosser and Keeton, for
instance, describe “an uncertain ‘doctrine’ of res ipsa loquitur, which has been the source of
some considerable trouble to the courts.” Keeton et al., supra, § 39, at 243–44.
16
Case: 18-11638 Date Filed: 07/14/2020 Page: 17 of 49
Commw. Ct. 2015); Crum v. Equity Inns, Inc., 685 S.E.2d 219, 229 (W. Va. 2009);
Linnear v. CenterPoint Energy Entex/Reliant Energy,
966 So. 2d 36, 44 (La. 2007).
So res ipsa loquitur can allow a jury to infer from circumstantial evidence
that the defendant must have breached its duty—but it cannot show that a defendant
must have had that duty in the first place. The Supreme Court’s description of the
doctrine as “an aid to the plaintiff in sustaining the burden of proving breach of the
duty of due care” is consistent with that understanding—a duty can only be
breached if it exists. Commercial Molasses Corp. v. N.Y. Tank Barge Corp., 314
U.S. 104, 113 (1941) (emphasis added). It would be quite odd to say that a party
must have had a duty, but for reasons that cannot be discovered. As another court
put it, “res ipsa loquitur provides no assistance to a plaintiff’s obligation to
demonstrate a defendant’s duty, that a breach of that duty was a substantial factor in
causing plaintiff harm, or that such harm resulted in actual damages. However, res
ipsa loquitur does aid a plaintiff in proving a breach of duty.” Quinby v.
Plumsteadville Family Practice, Inc.,
907 A.2d 1061, 1071 n.15 (Pa. 2006). Well
put.
For instance, a trespasser, to whom no duty of care was owed by a
landowner, may not establish a landowner’s liability for a defective condition by
relying on res ipsa loquitur. Restatement (Second) of Torts § 328D cmt. j (Am. Law
Inst. 1965). Similarly, if a statute provides that automobile drivers are only liable to
their passengers for “wilful, wanton, or reckless conduct,” a passenger relying on
res ipsa loquitur to show a breach of ordinary care cannot establish liability under
the higher statutory duty. Id. In other words, res ipsa loquitur “does not eliminate a
17
Case: 18-11638 Date Filed: 07/14/2020 Page: 18 of 49
plaintiff’s obligation to prove that the defendant owed a duty to the plaintiff in the
first place.” Ausherman v. Bank of Am. Corp., 352 F.3d 896, 901 (4th Cir. 2003).
With this foundation laid, our resolution of the notice issue is
straightforward. If res ipsa loquitur cannot eliminate the duty requirement, it cannot
eliminate the notice requirement; the two are intertwined in a maritime negligence
tort. Guevara, 920 F.3d at 720. Maritime passengers are owed a duty of “ordinary
reasonable care under the circumstances, a standard which requires, as a
prerequisite to imposing liability, that the carrier have had actual or constructive
notice of the risk-creating condition.”
Keefe, 867 F.2d at 1322;
Everett, 912 F.2d at
1358. And we have been clear that the scope of a cruise line’s “duty to protect its
passengers is informed, if not defined, by its knowledge of the dangers they face
onboard.” K.T. v. Royal Caribbean Cruises, Ltd.,
931 F.3d 1041, 1044 (11th Cir.
2019).
The Baycon case, no matter how frequently it is cited, does not change that
equation. In fact, it does not even use the term notice or explicitly consider the
issue before us today. Instead, Baycon deals with shipowner liability for sunken
vessels. Baycon, 804 F.2d at 631–32. The suit was brought under the Rivers and
Harbors Act of 1899, which imposed a duty on shipowners to not “voluntarily or
carelessly” sink a vessel.
Id. at 631, 633 n.5 (citation omitted). Because the forty-
year-old, long-idle ship in that case sunk on a clear and calm night, we allowed the
doctrine of res ipsa loquitur to supply the inference that its sudden sinking was
caused by negligence.
Id. at 634. That is all.
18
Case: 18-11638 Date Filed: 07/14/2020 Page: 19 of 49
Even so, district courts in this Circuit have sometimes concluded—perhaps
from the lack of any discussion about notice—that Baycon demonstrates that res
ipsa loquitur eliminates any notice requirement. But that is just not right. To begin,
though Baycon does not specifically address notice, the Court’s discussion of the
dredge’s age, the length of time since it had been in service, and the preparation for
travel without assessing “the condition of the external hull below the water line”
rings in the tones of constructive notice. Id. And more to the point, absent so much
as a word about notice in that earlier precedent on statutory negligence for sunken
vessels, we cannot jump to the conclusion that res ipsa loquitur obviates the well-
known notice requirement for cruise ship negligence cases brought by passengers.
* * *
In sum, a plaintiff who relies on res ipsa loquitur to show a breach of duty
still bears the burden of proving that a duty existed in the first place. And because
notice is an integral part of duty, a passenger who relies on res ipsa loquitur bears
the burden of showing that the cruise line had notice. As it applies to this case,
then, the doctrine does not help Tesoriero. Carnival’s duty was to protect Tesoriero
from dangerous conditions that it was aware of or should have been aware of. But
as we have already explained, Tesoriero’s own evidence shows that the chair’s
defect was hidden. Because res ipsa loquitur has no effect on our duty analysis,
Tesoriero’s failure to establish Carnival’s actual or constructive notice is fatal to her
case. And that is true whether or not res ipsa loquitur would otherwise apply to a
broken chair fact pattern—a question we need not consider given our resolution of
the notice issue.
19
Case: 18-11638 Date Filed: 07/14/2020 Page: 20 of 49
So, although we conclude that the district court erred by holding that res ipsa
loquitur obviates the notice requirement, we ultimately reach the same result:
Tesoriero’s failure to prove that Carnival had notice cannot be cured by her reliance
on res ipsa loquitur.
C.
Finally, we consider Tesoriero’s argument that Carnival spoliated evidence
by disposing of her broken cabin chair. She maintains here, as she did below, that
Carnival should be sanctioned with an adverse inference that the cruise line had
notice of the defect—an inference that would defeat its motion for summary
judgment.
The district court declined to impose Tesoriero’s requested sanction because,
in its view, Carnival did not reasonably anticipate litigation, and therefore did not
have a duty to preserve the chair. This was incorrect, and the district court’s
reasoning is undermined by Carnival’s own admission. During discovery, in its
response to a request for admissions under Federal Rule of Civil Procedure 36,
Carnival admitted that it anticipated litigation “immediately after the incident was
reported.” “A matter admitted under this rule is conclusively established unless the
court, on motion, permits the admission to be withdrawn or amended.” Fed. R. Civ.
P. 36(b). Because the record does not indicate that Carnival’s admission was
withdrawn or amended, we must conclude that the district court erred in holding
that Carnival did not anticipate litigation.
But anticipation of litigation is not the standard for spoliation sanctions—
bad faith is. So even though the district court incorrectly concluded that Carnival
20
Case: 18-11638 Date Filed: 07/14/2020 Page: 21 of 49
did not anticipate litigation, the court’s decision not to impose sanctions for
spoliation would still be appropriate absent evidence that Carnival acted in bad
faith. And even if bad faith were shown, the court’s decision not to impose
sanctions would be appropriate if “the practical importance of the evidence” was
minimal. Flury, 427 F.3d at 945; cf. Green Leaf Nursery v. E.I. DuPont De
Nemours & Co.,
341 F.3d 1292, 1308 (11th Cir. 2003) (no spoliation claim under
Florida law without a “significant impairment in the ability to prove the lawsuit”);
Walter v. Carnival Corp., No. 09-20962-CIV,
2010 WL 2927962, at *2 (S.D. Fla.
July 23, 2010) (evidence must be “crucial to the movant being able to prove its
prima facie case or defense” to establish spoliation). We “may affirm for any
reason supported by the record, even if not relied upon by the district court.”
Lage,
839 F.3d at 1009.
Spoliation is “defined as the destruction of evidence or the significant and
meaningful alteration of a document or instrument.” Green Leaf Nursery, 341 F.3d
at 1308 (11th Cir. 2003) (quotation marks and citation omitted). In some
circumstances, a party’s “spoliation of critical evidence may warrant the imposition
of sanctions.”
Flury, 427 F.3d at 945. Because spoliation is an evidentiary matter,
“federal law governs the imposition of spoliation sanctions.”
Id. at 944. Sanctions
for spoliation may include “(1) dismissal of the case; (2) exclusion of expert
testimony; or (3) a jury instruction on spoliation of evidence which raises a
presumption against the spoliator.”
Id. at 945.
When deciding whether to impose sanctions, a number of factors are
relevant: “(1) whether the party seeking sanctions was prejudiced as a result of the
21
Case: 18-11638 Date Filed: 07/14/2020 Page: 22 of 49
destruction of evidence and whether any prejudice could be cured, (2) the practical
importance of the evidence, (3) whether the spoliating party acted in bad faith, and
(4) the potential for abuse if sanctions are not imposed.” ML Healthcare Servs.,
LLC v. Publix Super Mkts., Inc., 881 F.3d 1293, 1307 (11th Cir. 2018) (citing
Flury, 427 F.3d at 945).
Spoliation sanctions—and in particular adverse inferences—cannot be
imposed for negligently losing or destroying evidence. Indeed, “an adverse
inference is drawn from a party’s failure to preserve evidence only when the
absence of that evidence is predicated on bad faith.” Bashir v. Amtrak, 119 F.3d
929, 931 (11th Cir. 1997). And bad faith “in the context of spoliation, generally
means destruction for the purpose of hiding adverse evidence.” Guzman v. Jones,
804 F.3d 707, 713 (5th Cir. 2015). This consideration is key in evaluating bad faith
because the party’s reason for destroying evidence is what justifies sanctions (or a
lack thereof). “Mere negligence is not enough, for it does not sustain an inference
of consciousness of a weak case.” Vick v. Tex. Emp’t Comm’n,
514 F.2d 734, 737
(5th Cir. 1975) (citation omitted). 6
Some of our earlier cases illustrate the difference between bad faith and
mere negligence. In Bashir v. Amtrak, we held on summary judgment that the
unexplained absence of a train’s speed record tape did not warrant an adverse
inference that the train was traveling at an excessive speed when it struck and killed
a pedestrian. 119 F.3d at 931. We would “not infer that the missing speed tape
6
In Bonner v. City of Prichard,
661 F.2d 1206 (11th Cir. 1981) (en banc), this Court adopted as
binding precedent all of the decisions of the former Fifth Circuit handed down prior to the close
of business on September 30, 1981.
22
Case: 18-11638 Date Filed: 07/14/2020 Page: 23 of 49
contained evidence unfavorable to appellees unless the circumstances surrounding
the tape’s absence indicate bad faith, e.g., that appellees tampered with the
evidence.” Id. Because plaintiffs produced no evidence that the train company
purposefully lost or destroyed the tape, we concluded that there was no showing of
bad faith. And finding no bad faith, we declined to impose spoliation sanctions
against the train company, which had already produced significant evidence that the
train was not exceeding the statutory speed limit.
Id. at 931–32.
In contrast, bad faith was evident, and spoliation sanctions were appropriate,
in Flury v. Daimler Chrysler
Corp. 427 F.3d at 944–47. There, the plaintiff sued a
vehicle manufacturer alleging that he was injured when his car’s airbags did not
inflate during a crash.
Id. at 940. Shortly after the lawsuit was filed, the defendant
sent a letter requesting the location of the vehicle so that it could conduct an
inspection.
Id. at 941–42. The plaintiff did not respond to the letter. Although he
was “fully aware that defendant wished to examine the vehicle,” he “ignored
defendant’s request and allowed the vehicle to be sold for salvage without
notification to defendant of its planned removal.”
Id. at 945.
It is no surprise that
we found bad faith on those facts.
But the facts here are different, and Tesoriero has not established that
Carnival’s failure to preserve the chair rose to the level of bad faith. Nothing in this
record indicates that Carnival disposed of the broken chair in a manner inconsistent
with its policies or that the policies themselves somehow establish bad faith. 7 And
7
It is unclear to us how—as the dissent suggests—three district court cases that declined to offer
any relief based on spoliation or discarding evidence in accordance with Carnival’s policies
23
Case: 18-11638 Date Filed: 07/14/2020 Page: 24 of 49
unlike the plaintiff in Flury, Carnival cannot be said to have been “fully aware” of
Tesoriero’s desire to further inspect the chair. See Flury, 427 F.3d at 945; see also
Calixto v. Watson Bowman Acme Corp., No. 07-60077-CIV,
2009 WL 3823390, at
*16 (S.D. Fla. Nov. 16, 2009) (concluding that bad faith can be established by
circumstantial evidence only when the “act causing the loss cannot be credibly
explained as not involving bad faith by the reason proffered by the spoliator”).
The record shows that the cabin steward came to Tesoriero’s cabin soon
after the accident to remove and replace the broken chair. The steward was not
there to investigate the accident, but simply to replace the chair. Of course, as the
housekeeping manager aboard the Carnival Splendor explained, if Tesoriero had
requested that the chair be saved, the steward would have done so. He also would
have done so if the security department had requested retention. But without a
request from Tesoriero or the security department, the chair was taken to
maintenance for repair. When the maintenance department could not repair it, the
chair was disposed of.
Even if the disposal of the chair were somehow improper, we do not see how
it would give rise to anything more than an act of mere negligence. The security
department at Carnival is responsible for investigating accidents and preserving
evidence. Again, Tesoriero offers no evidence that she ever requested that the chair
be preserved. Nor was the security department informed by the medical staff that a
should persuade us that sanctions are appropriate here. Dissenting Op. at 11–12. The point only
sharpens when we consider that two out of the three cases involved collapsing chairs. See
Walter v. Carnival Corp., No. 09-20962-CIV, 2010 WL 2927962 (S.D. Fla. July 23, 2010);
Hickman v. Carnival Corp., No. 04-20044-CIV,
2005 WL 3675961 (S.D. Fla. July 11, 2005).
24
Case: 18-11638 Date Filed: 07/14/2020 Page: 25 of 49
passenger was injured seriously enough to require an investigation. Under
Carnival’s policy, injuries that only require first aid are classified as “non-
reportable” and do not require an accident report and an investigation by the
security department. By all accounts, on the ship, the injury to Tesoriero’s arm
appeared minor.8 Her arm was not broken and was only treated with basic first
aid—ice, a sling, and Tylenol.9
In short, nothing in the record smacks of bad faith. Under these facts,
Carnival’s explanation reasonably suggests that the chair was not destroyed to hide
adverse evidence. At most, Tesoriero has provided evidence that Carnival’s
shipboard medical staff were negligent in not anticipating that her injury could be
more serious than it appeared. Mere negligence in losing or destroying evidence is
not enough to warrant sanctions. Bashir, 119 F.3d at 931. And the right hand not
talking to the left is not the same thing as the right hand telling the left to destroy
evidence. Accordingly, we conclude that the district court properly declined to
draw an adverse inference from Carnival’s failure to retain the chair.
8
The dissent’s quote from Tesoriero’s independent medical examination that her initial x-ray
“was read as a hairline fracture” (by whom, he does not say, and we do not know) does not
change this fact. Dissenting Op. at 10. Tesoriero does not argue, even once, that her arm was
broken. According to her own testimony, she was told it was not broken on the ship, she was
told it was not broken on land, and her arm was, in fact, not broken. She was diagnosed with
medial epicondylitis and ulnar neurapraxia—a condition that she describes as “tennis elbow”—
and Tesoriero does not dispute this conclusion. At this point, of course, we have no doubt that
her injury turned out to be serious.
9
The dissent suggests that this treatment, because it was provided by a physician instead of a
layperson, is not really first aid. Dissenting Op. at 8–9. In the context of Carnival’s policy,
however, first aid refers to the type of care provided, not on who is providing the treatment. We
have no hesitation concluding that ice, a sling, and Tylenol together are nothing more than
simple first aid in the context of this policy. The fact that an x-ray was taken, as a diagnostic
step, to confirm the absence of a fracture does not move the needle.
25
Case: 18-11638 Date Filed: 07/14/2020 Page: 26 of 49
To be sure, we would have little trouble affirming sanctions against Carnival
if the factual circumstances were slightly different. For example, if Tesoriero’s arm
had been visibly fractured, it would be hard for Carnival to convince us that the
decision not to report the injury to security was reasonable, or in keeping with its
ordinary policy. Similarly, if there were any evidence that Tesoriero requested that
the chair be preserved, we would be highly skeptical of a subsequent claim that the
chair was disposed of pursuant to a routine policy. In both of those circumstances,
the inference that the chair was destroyed to hide adverse evidence would be much
stronger than it is here.
We will briefly add that even if there were evidence to somehow support a
finding of bad faith, that would not justify the leap that the dissenting opinion takes.
To begin, no party has cited a persuasive case to support a presumption of notice as
a spoliation sanction, and the one identified by the dissent falls short.10 But even
more critically, we disagree with the dissent’s view that “the practical importance
of the evidence” supports sanctions in this case. Flury, 427 F.3d at 945; ML
Healthcare Servs.,
LLC, 881 F.3d at 1307. Here, even if the chair had been
10
We note a few things about the exemplar magistrate judge order cited by the dissent as an
example of spoliation leading to an inference-of-notice sanction. First, the sanction imposed was
the “least-severe sanction available,” and was a “rebuttable, permissible adverse inference that
the destroyed evidence would have demonstrated the existence of a dangerous condition” that the
defendant knew or should have known about. In re the Complaint of Boston Boat III, LLC,
310
F.R.D. 510, 523 (S.D. Fla. 2015) (parenthetical mark omitted). And that light-touch sanction
was imposed in a case that involved dramatic evidence of bad faith: for starters, the defendant
destroyed critical evidence well after litigation began. Not only that, but the defendant’s attorney
personally observed and failed to stop ongoing destruction, the plaintiff’s attorney was not timely
notified of the destruction, and the defendant presented inconsistent explanations for why the
evidence was destroyed.
Id. at 517–23. The differences between those facts and the ones in this
case speak for themselves. Indeed, nothing in this case would preclude the sanction applied in
that one.
26
Case: 18-11638 Date Filed: 07/14/2020 Page: 27 of 49
preserved, it is not clear what evidence of Carnival’s notice could be deduced from
the already-broken piece of furniture. Joseph Tesoriero testified that there was no
outwardly visible defect, Tesoriero herself noticed no problem when she moved the
chair back from the vanity, and the photographic evidence confirms that the peg-
and-hole assembly—as well as the state of the glue holding it together—would have
been obscured before the accident. In light of the evidence, and given Tesoriero’s
failure to avail herself of Carnival’s offer to inspect an identical unbroken cabin
chair from the Splendor, we are unpersuaded that her ability to inspect the broken
chair would have been so important to the notice issue as to warrant sanctions. We
also note our disagreement with our dissenting colleague’s apparent view that
because evidence of notice would be necessary for Tesoriero to show a prima facie
case of negligence, it must mean that the chair would have provided the evidence.
Dissenting Op. at 18–19. Respectfully, we fail to see why one leads to the other;
while notice has not been shown here, it is not because the chair is missing.
IV.
In conclusion, Tesoriero did not establish that Carnival had actual or
constructive notice that the chair was dangerous. This is fatal to her case. Her
failure to establish the duty element of her negligence claim cannot be cured by her
invocation of the res ipsa loquitur doctrine. And because she has not shown that
Carnival committed sanctionable spoliation of evidence, her case is not saved
through an adverse inference sanction. Accordingly, although we disagree with the
reasoning of the district court in some respects, we reach the same result.
AFFIRMED.
27
Case: 18-11638 Date Filed: 07/14/2020 Page: 28 of 49
ROSENBAUM, Circuit Judge, dissenting:
When Irina Tesoriero boarded the Carnival Splendor to enjoy some special
family time, she never expected the costs of her trip to include two surgeries and
numerous doctor and physical-therapy appointments totaling more than $120,000 in
medical bills. Nor did Tesoriero realize that her cruise would cost her much of the
use of her dominant right arm and hand. But that’s the price that Tesoriero has paid
because a chair on the Splendor collapsed as she tried to sit on it.
This case is about who should pay for Tesoriero’s damages. Under the law,
of course, if Carnival was not negligent, it is entitled to a judgment in its favor, and
Tesoriero must shoulder the burden. On the other hand, if Carnival was negligent,
then it has a legal obligation to pay for Tesoriero’s reasonable damages.
But we will never know whether Carnival was negligent because Carnival
destroyed the chair that caused Tesoriero’s injuries. So conveniently for Carnival,
there is no evidence that Carnival had notice of the chair’s dangerous condition. The
panel opinion excuses Carnival’s destruction of evidence by just accepting
Carnival’s word that it did not destroy the chair in bad faith. And the panel opinion
does so even though Carnival has previously destroyed evidence in other cases and
has been warned by a federal court that its destruction of evidence could result in
sanctions, Carnival’s so-called evidence-preservation procedures are designed to
ensure that evidence will be destroyed in at least some cases and in fact have
repeatedly resulted in the destruction of relevant evidence, and Carnival has failed
28
Case: 18-11638 Date Filed: 07/14/2020 Page: 29 of 49
to follow its own evidence-preservation procedures in several cases, including this
one.
To make matters worse—and in stark contrast to how Carnival allowed the
chair here to be destroyed—Carnival calculatedly preserved evidence favorable to it
from the moment Tesoriero reported her fall onboard the Splendor.
For these reasons and others I explain below, I respectfully disagree with the
panel opinion. The record here raises a genuine issue of material fact concerning
whether Carnival destroyed the chair in bad faith.
And if a jury were to conclude that Carnival had, in fact, disposed of the chair
in bad faith, Tesoriero would be entitled to an inference that the chair was evidence
favorable to her and detrimental to Carnival. In particular, that inference could
establish that Carnival had notice of—that is, it knew or should have known about—
the unsafe condition of the chair.
After all, Carnival testified that it repairs broken chairs when possible. ECF
No. 39-1 at 19-20.1 So an examination of the chair at issue here might have revealed
a faulty repair, or it could have shown that the type of defect that occurred here has
happened before on the very same chair. It also might have suggested that if, in fact,
as Carnival testified, its employees conducted proper daily inspection of the
furniture, Carnival should have known about the chair’s defect through that program.
1
For reasons of transparency, I include pincite references to the evidence of record. That
way, anyone who wishes to follow along from their armchair may evaluate firsthand the evidence
I summarize. References are to the district-court ECF number and the CM/ECF-imprinted page
number, except where evidence consists of deposition transcripts. In those cases, references are
to the page numbers of the deposition transcript, since four deposition transcript pages appear on
each CM/ECF-numbered page.
29
Case: 18-11638 Date Filed: 07/14/2020 Page: 30 of 49
ECF No. 39-1 at 47-48. Any of these outcomes would have provided evidence that
Carnival had notice of the chair’s dangerous condition. And if Tesoriero could have
shown an issue of fact concerning notice, her claim would have survived summary
judgment. In short, this record raises a genuine issue of material fact concerning
whether Carnival destroyed the chair in bad faith, and that, in turn, necessarily means
that it raises a genuine issue of material fact as to whether Carnival had notice of the
defect in the chair that injured Tesoriero.
For that reason, Tesoriero is entitled to have a jury decide whether it believes
Carnival’s version of the story. So I would vacate the grant of summary judgment
and remand for a trial. Because the panel opinion erroneously allows a judge
(without so much as an evidentiary hearing), instead of a jury, to weigh credibility
on the paper record and resolve this genuine issue of material fact—whether
Carnival destroyed the defective chair in bad faith—I respectfully dissent.
I.
The panel opinion correctly sets forth the legal principles concerning
spoliation. But it’s worth emphasizing that the summary-judgment standard applies
equally to spoliation-related facts and other facts material to the resolution of the
legal issues before the district court. After all, “‘bad faith’ is a question of fact like
any other.” Bracey v. Grondin, 712 F.3d 1012, 1019 (7th Cir. 2013) (citation and
internal quotation marks omitted).
So we must view the spoliation-related evidence and any reasonable
inferences from it in the light most favorable to Tesoriero, since she is the non-
moving party. See Al-Rayes v. Willingham, 914 F.3d 1302, 1306 (11th Cir. 2019).
30
Case: 18-11638 Date Filed: 07/14/2020 Page: 31 of 49
That means that if a genuine dispute of material fact exists over bad faith, and a
finding of bad faith would support an adverse inference against Carnival about a fact
material to the resolution of the merits here, summary judgment must be denied. As
I explain below, that’s exactly the situation here.
My disagreement, then, lies with the panel opinion’s statement of the facts
and its application of spoliation law to those facts. Once we consider all the
evidence—something the panel opinion did not do—we must conclude that the
evidence raises a material issue of fact about whether Carnival destroyed the chair
in bad faith. Specifically, a reasonable jury could find that Carnival devised and
retained policies and procedures designed to result in the destruction of material
evidence in at least some cases, or it created conditions that made compliance with
its evidence-preservation policies and procedures unlikely, or both.
If a jury reached any of these conclusions, it reasonably could find that
Carnival destroyed the chair here in bad faith. And if a jury made that finding,
Tesoriero would be entitled to an adverse inference that Carnival destroyed the chair
because an examination of it could have provided evidence that Carnival knew or
should have known of the chair’s defective condition—a crucial part of Tesoriero’s
prima facie case of negligence against Carnival.
A.
I begin with a little background against which we must view Carnival’s
policies and procedures covering the preservation of material evidence involved in
an onboard injury. As the panel opinion notes, Carnival conceded in its responses
to Tesoriero’s requests for admissions that “immediately after the incident was
31
Case: 18-11638 Date Filed: 07/14/2020 Page: 32 of 49
reported [by Tesoriero while onboard the Splendor, Carnival] anticipated litigation
arising from the accident.” ECF No. 65 at 25, 29. Indeed, as Monica Petisco,
Carnival’s corporate litigation representative, admitted, “anytime anything happens
onboard, [Carnival] anticipate[s] litigation.” ECF No. 39-2 at 24.
That is certainly clear from the Passenger Injury Statement form that Carnival
requires its guests to fill out in their own handwriting as soon as they seek medical
attention onboard. See ECF No. 44-8. That Carnival demands the injured passenger
prepare the form in her own handwriting conveniently renders the form an admission
by the passenger for future-litigation evidentiary purposes. See United States v.
Williams, 837 F.2d 1009, 1014 (11th Cir. 1988). The form also seeks to seal the
passenger into the details surrounding the injury, likely before all details are known.
For example, in addition to questions about where and when an injury
occurred and how “in detail” it happened, the form asks the passenger to state what
she “believe[s] caused this accident” and “what [she] could have done to avoid the
accident.” Id. Then the form requires the guest to identify all witnesses to the
accident, whether the guest uses glasses or contact lenses and whether the guest was
wearing them at the time of the accident, and “[w]hat kind of shoes” the guest was
wearing when the accident happened.
Id.
Put simply, the Passenger Injury Form appears designed to preserve for
Carnival’s benefit, from the instant an injury occurs, all evidence from the passenger
that might assist Carnival in future litigation. Indeed, the specific information the
questions seek suggests that Carnival has learned much from its past litigation about
the evidence most helpful to it in litigation.
32
Case: 18-11638 Date Filed: 07/14/2020 Page: 33 of 49
Of course, there is nothing inherently wrong with that. But those steps differ
strikingly from Carnival’s policies and actual practices concerning preservation of
material tangible evidence that might hurt Carnival and help a passenger in future
litigation. And a reasonable jury might find that fact bears on whether Carnival, in
good faith, has developed and executes its policies and procedures to preserve
material tangible evidence.
B.
With this in mind, I review Carnival’s applicable policies and procedures.
According to Carnival’s corporate representatives, Carnival’s security department is
ultimately responsible for maintaining material tangible evidence. ECF No. 39-2 at
48; ECF No. 39-1 at 42. Yet Carnival’s security department does not even become
involved in deciding whether to preserve such evidence unless an accident report is
filed. ECF No. 39-2 at 48. According to Petisco, Carnival’s litigation representative,
an accident report can be filed in two circumstances. First, a guest can “request that
[Carnival] create an accident report.” Id. And, second, Carnival “entrusts . . . the
[ship’s] doctor to make the determination between reportable or non-reportable
[accidents],” based on whether an injury requires “[a]nything beyond first aid.”
Id.
at 48-49.
The panel opinion simply assumes without any analysis that these policies are
reasonable. But on their face, these policies increase in three ways the likelihood
that material evidence will be discarded. Indeed, as Carnival well knows, history
has proven that true. Carnival’s policies have previously resulted in the destruction
33
Case: 18-11638 Date Filed: 07/14/2020 Page: 34 of 49
of material evidence. And, in fact, at least one district court has warned Carnival
that a pattern of discarding material evidence could support spoliation sanctions.
1.
I begin by identifying the three ways Carnival’s policies meaningfully
increase the odds that Carnival will destroy material evidence. First, Carnival’s
housekeeping process has no mechanism requiring housekeeping employees to
check with the security department before discarding broken furniture from a guest’s
room. Rather, when furniture in a guest’s room breaks, Carnival’s policy requires
housekeeping staff to immediately remove and replace the object in question—even
if, as happened here, housekeeping removes the item while the injured passenger
remains in the room and waits for help. ECF No. 39-1 at 41-42.
Once the broken piece is removed, it is taken to be repaired. Id. at 42. If the
furniture cannot be fixed, it is “usually disposed” of.
Id. That does not happen if—
and only if—Carnival’s security department affirmatively intervenes and preserves
the piece. See
id. So unless the security department jumps in to save evidence before
the housekeeping department throws it out, evidence is discarded. But of course, the
security department does not intercede if an accident report is not filed.
Second, and compounding this problem, Carnival’s shipboard processes
falsely cause guests to believe that they have made an accident report when they
seek medical attention from the ship’s doctor. As I have noted, when a guest visits
the ship’s doctor to address an injury, she must fill out a Carnival document called
“Passenger Injury Statement.” Besides the other questions the thorough form lists,
it asks, “Date [accident] reported,” “Name of staff member accident reported to,”
34
Case: 18-11638 Date Filed: 07/14/2020 Page: 35 of 49
“Time reported,” and “If not reported immediately, please explain why?” ECF No.
44-8. These questions suggest that a passenger can officially report an accident to
any “staff member” and that the passenger has officially reported her injury to
Carnival when she fills out the Passenger Injury Statement. So a passenger has no
reason to ask whether she must do anything further to make an official report to
Carnival to trigger the security department’s preservation of material evidence.
Some might say this form lulls passengers into a false sense of security that they
have fully reported the incident.
Third, Carnival’s policy leaving it to the discretion of the ship’s doctor to
decide whether an accident report should be filed (and the evidence thus preserved),
ensures that accident reports will not be filed in at least some cases where evidence
should be maintained. Carnival’s policy calls for the ship’s doctor to prepare an
accident report only when the doctor must provide more than first aid. But Carnival
does not define what it means by “first aid.” Rather, that is up for interpretation by
each individual doctor. 2
2
Standard references do not uniformly define the term “first aid.” For example, a medical
dictionary defines “first aid” as “[i]mmediate assistance administered in the case of injury or
sudden illness by a bystander or other layperson, before the arrival of trained medical personnel.”
First Aid, Stedman’s Medical Dictionary (28th ed. 2006). A non-medical dictionary defines “first
aid” as “emergency and sometimes makeshift treatment given to someone (as a victim of an
accident) requiring immediate attention where regular medical or surgical care is not available.”
First Aid, Webster’s Third New International Dictionary, Unabridged (2020), https://
unabridged.merriam-webster.com/ (last visited Mar. 25, 2020). Setting aside the fact that a doctor
technically does not render “first aid” under either definition, these definitions do not set forth
medical standards that identify what treatments, procedures, or remedies are necessarily “first aid”
and what are not. As a result, Carnival’s policy does not clearly delineate when a doctor should
prepare an accident form.
35
Case: 18-11638 Date Filed: 07/14/2020 Page: 36 of 49
And even if we disregard this shortcoming and assume all doctors abide in
precisely the same way by some (unidentified) universally applicable definition of
“first aid,” the policy wrongly equates a doctor’s assessment that an injury requires
no more than first aid with the determination that an injury is not serious and the
piece of furniture causing it should not be preserved. In fact, as is common
knowledge, some injuries, at first glance, may appear minor but later manifest
themselves as severe.
Carnival has also not explained why a policy that depends on the provision of
“first aid” satisfies its duty to preserve evidence in anticipation of litigation. And
the relationship between the two is not obvious to me.
Nor is it obvious to Carnival, since Carnival anticipates litigation “anytime
anything happens onboard” and preserves evidence favorable to it in every instance,
regardless of whether the doctor provides only “first aid.” To rubberstamp a policy
that allows Carnival to treat plaintiff-favorable evidence in its control differently
invites gamesmanship. Indeed, the policy knowingly results in destruction of
evidence even though, by requiring the injured guest to fill out the Injury Statement
Form to receive medical attention, Carnival simultaneously preserves evidence
favorable to itself, in anticipation of litigation, when a doctor does not file an
accident report.
2.
This case demonstrates some of these pitfalls.
First, this case appears to have involved more than first aid, but according to
Carnival, the doctor did not file an accident report. Here, the doctor took X-rays of
36
Case: 18-11638 Date Filed: 07/14/2020 Page: 37 of 49
Tesoriero’s arm. X-ray equipment is not in any standard first-aid kit I’ve ever seen.
Plus here, the doctor sent the X-rays off the ship to Miami to be read—a process that
would not be completed until after Tesoriero left the ship. Seeking consultation from
a specialist physician, like taking X-rays in the first place, seems like more than “first
aid.” (But then again, we can’t look to Carnival’s policy for guidance on that). If
the Miami doctor had found a break in Tesoriero’s arm, neither Tesoriero nor the
ship’s doctor would have known until after the cruise ended. In fact, it is not clear
the ship’s doctor ever would have learned of the break. But because Carnival left
filing an accident report to the doctor’s discretion and, according to Carnival, the
doctor did not do that (more on this later, see infra at 14-15), the chair was
discarded—before the ship’s doctor even had confirmation about whether
Tesoriero’s arm was broken.
As it turned out, according to Tesoriero’s medical records, Tesoriero’s X-ray
“was read as a hairline fracture.”3 ECF No. 44-11 at 10. And her follow-up medical
3
The panel opinion takes issue with this statement because it says that “Tesoriero does not
argue . . . that her arm was broken.” See Maj. Op. at 25 n.8. True, she doesn’t. But that misses
the point. The point is that the X-ray taken by the ship’s doctor was read by a medical professional
as showing a serious enough injury to require more than simple first aid. As for the derivation of
that statement, it comes from Tesoriero’s independent medical examination report, which a Board-
certified orthopedic surgeon conducted. More specifically, it appears in his review of Tesoriero’s
medical records from July 1, 2015, four days after the incident. The surgeon reported that a
medical professional who examined Tesoriero on July 1 stated in Tesoriero’s visit notes that
Tesoriero “had an [X]-ray on the cruise that was read as a hairline fracture.” ECF No. 44-11 at
10. Presumably, that refers to the Miami specialist’s reading of the X-ray the ship’s doctor took,
because the ship’s medical center advised Tesoriero that the ship’s doctor (who told Tesoriero he
didn’t think her arm was broken but he couldn’t confirm) “didn’t have full expertise to read an X-
ray, and it would be shipped to Miami, and they would give [Tesoriero] an answer,” which would
happen after she left the cruise ship. ECF No. 39-3 at 74. The medical facility Tesoriero visited
on July 1 then took a new X-ray that “revealed no acute fracture.” ECF No. 44-11 at 10. That a
new X-ray taken four days after the incident did not show an “acute fracture” does not mean that
37
Case: 18-11638 Date Filed: 07/14/2020 Page: 38 of 49
care showed that she had “a focus of T2 hyperintensity at the insertion of the
common extensor tendon on the lateral humeral epicondyle consistent with a partial
tear.” Id. As a result, Tesoriero was “unable to drive without pain and unable to
carry anything.”4
Id. By any definition, that is certainly an injury requiring more
than first aid.
Second, even if we assume Tesoriero’s injury required only mere “first aid”
while she was onboard the Splendor, there can be no question that Tesoriero, in fact,
suffered a serious injury. I have already recounted the lasting pain the injury has
caused Tesoriero. And because of her injury onboard the Splendor, Tesoriero had
to undergo two surgeries, physical therapy, and other medical treatment after her
cruise ended—resulting in medical expenses of more than $120,000. ECF No. 44-
11 at 14. If the doctor’s failure to file an accident report here was consistent with
Carnival policy, a reasonable jury could conclude that Carnival’s policy is
unreasonable, or even that it was created in bad faith. After all, under the panel
opinion’s analysis, Carnival’s policy that ensures destruction of evidence in these
an X-ray taken four days earlier did not show a “hairline fracture.” By their nature, “hairline”
fractures can be difficult to see, and the intervening time between the initial X-ray and the later
one could have made any “hairline” fracture that may have existed at one time even harder to see,
to the extent that it continued to exist.
4
Tesoriero also testified,
I can’t carry the garbage. I can’t carry the laundry. I can’t empty or pick up heavy
pots. Cooking is very restrictive in terms of getting things in and out of an oven.
Carrying groceries, doing grocery shopping, opening a bottle of water, twisting
actions. I can’t peel potatoes. I can’t peel carrots. I can’t flip pancakes. I can’t
put any pressure on—like when you peel an apple.
ECF No. 39-3 at 52.
38
Case: 18-11638 Date Filed: 07/14/2020 Page: 39 of 49
circumstances is precisely what shields it from potential liability and any
consequences of destroying the evidence.
Tellingly, this is not the first case where Carnival has destroyed material
evidence, supposedly in accordance with its policies. For example, in Morhardt v.
Carnival Corp., Morhardt used a ship hair dryer, which electrocuted him and burned
and blackened his hand. 304 F. Supp. 3d 1290, 1292-93 (S.D. Fla. 2017). He
immediately went to the ship’s infirmary for treatment. Id.at 1293. Yet Carnival
threw out the hair dryer involved in the incident.
Id. at 1297
.
The district court in Morhardt described Carnival’s actions as being “a matter
of keen concern.” Id. And the court noted that it was “aware of other cases in which
a plaintiff passenger was injured aboard a Carnival cruise ship and the object that
purportedly caused the injury was immediately discarded.”
Id. at 1297 n.6 (citing
Walter v. Carnival Corp., No. 09-20962-CIV,
2010 WL 2927962 (S.D. Fla. July 23,
2010)).5 Significantly, the court “caution[ed] Carnival against establishing a pattern
or practice of discarding such objects because such actions could potentially provide
a basis for spoliation sanctions or liability in the future.”
Id.
The panel opinion finds it “unclear how . . . three district court cases that
decline to offer any relief based on spoliation or discarding evidence should persuade
[the panel opinion] that sanctions are appropriate here.” Maj. Op. at 23-24 n.7. And
somehow, it thinks the fact that “2 of the 3 cases involved collapsing chairs”
5
See also Hickman v. Carnival Corp., No. 04-20044-CIV, 2005 WL 3675961 (S.D. Fla.
July 11, 2005) (Carnival “almost immediately” repaired bar stool involved in incident, instead of
preserving it).
39
Case: 18-11638 Date Filed: 07/14/2020 Page: 40 of 49
strengthens its view that sanctions are not appropriate here. Id. In my view, the
opposite is true.
At some point, adherence to policies Carnival knows from past litigation
result in the destruction of material evidence—especially when Carnival anticipates
litigation and simultaneously employs policies designed to preserve evidence
favorable to it—constitutes bad faith. This is particularly the case here because a
federal court has already expressly warned Carnival that its continuing failure to
maintain material evidence may result in spoliation sanctions. Surely, the mere fact
of the existence of Carnival’s policies (that it knows result in destruction of material
evidence)—even if Carnival complied with them—cannot indefinitely shield
Carnival from liability and consequences of any type.
Indeed, we suggested as much when we held that one of the factors relevant
to whether spoliation sanctions should be imposed is “the potential for abuse if
sanctions are not imposed.” ML Healthcare Servs., LLC v. Publix Super Mkts., Inc.,
881 F.3d 1293, 1307 (11th Cir. 2018) (citing Flury v. Daimler Chrysler Corp.,
427
F.3d 939, 945 (11th Cir. 2005)). Yet to excuse Carnival’s destruction of evidence,
the panel opinion allows Carnival to continue to hide behind the very policies
Carnival knows result in destruction of evidence. A jury should be allowed to
determine whether Carnival has reached the point where its policies that have
previously proven to result in destruction of evidence can no longer shield it from
liability.
C.
40
Case: 18-11638 Date Filed: 07/14/2020 Page: 41 of 49
Even if a jury rejected the notion that Carnival’s failure to modify its policies
to prevent material evidence from being destroyed demonstrates bad faith, a
reasonable jury could still conclude that Carnival failed to ensure compliance with
its preservation policies here. And a jury that made that finding could conclude that
Carnival’s failure to abide by its own policies shows bad faith in and of itself.
To begin with, Tesoriero reported her incident with the chair literally at least
five different ways to Carnival while she was still onboard her cruise.6 And after
she told Dr. Milos Potkonjak, the ship’s doctor, he advised her that a health-and-
safety official on the ship would speak with her about her injury. ECF No. 39-3 at
100-01. Even Carnival conceded in its answers to Tesoriero’s requests for
admissions that “the accident in this case was reported to the Defendant cruise line
on the cruise on which the incident occurred.” ECF No. 65 at 25, 29. Yet the chair
was not preserved.
6
First, Tesoriero’s husband Joseph called Guest Services, reported the incident, and asked
for immediate medical attention. ECF No. 39-3 at 65-66; ECF No. 44-3 at ¶ 5; ECF No. 39-6 at
3. Second, when the cabin steward went to the Tesorieros’ room and removed the broken chair,
the Tesorieros told him that Tesoriero believed she had broken her arm and that they had called
for help, and they asked him whether a doctor would be coming to the room. ECF No. 39-3 at 67.
Third, when no doctor arrived at the Tesorieros’ room after half an hour, the Tesorieros went to
the infirmary to seek medical attention. Id. at 72-73. It was closed, but they found a nurse and
told her about Tesoriero’s injury.
Id. at 73. She got Dr. Potkonjak, and the Tesorieros told him
about the injury. Id.; ECF No. 44-3 at ¶ 6. Fourth, Dr. Potkonjak gave the Tesorieros a Passenger
Injury Statement to fill out, which reported the incident yet again. ECF No. 39-3 at 68; see also
ECF No. 44-8. And finally, while still onboard the cruise, Tesoriero also reported her injury to
the front-desk supervisor on the ship, seeking a document stating that she would get her X-rays
back. ECF No. 39-3 at 100. Carnival’s responses to Tesoriero’s interrogatories also indicate that
Tesoriero “interacted with . . . I Care personnel” about her injury, ECF No. 39-6 at 3, but it is not
clear whether the “I Care personnel” she spoke with included any of the Carnival employees
previously identified.
41
Case: 18-11638 Date Filed: 07/14/2020 Page: 42 of 49
Despite all these reports to Carnival employees in various cruise line
positions, Carnival made no effort to preserve the chair involved in the injury. And
though the ship’s doctor advised Tesoriero that a health-and-safety official would
speak with her concerning her injury, no one ever did.
This reference to a health-and-safety official appears to be a reference to
Carnival’s security department. If so, that means the doctor apparently thought he
was making a report to the security department, even though Carnival has no record
of any such report. But once again conveniently for Carnival but inconveniently for
Tesoriero, sixteen days after Tesoriero’s injury occurred, Carnival did not renew Dr.
Potkonjak’s contract and provided “his last known address” as, in its entirety,
“Biograd, Croatia.” 7 ECF No. 39-6 at 3. As a result, checking with Dr. Potkonjak
would appear to be difficult, if not impossible.
If a reasonable jury concluded that the destruction of the chair was a
consequence of Carnival’s failure to follow its own policies, it could also reasonably
find that Carnival’s shortcomings resulted from its bad faith. First, the mere fact
that Tesoriero made five different reports of the incident and the chair was still
destroyed—even though Carnival anticipated litigation—could reasonably be
construed as evidence that Carnival acted in bad faith when it failed to follow its
policies here.
7
Tesoriero testified that Dr. Potkonjak informed her when she went to the medical center
that “it was his first day on the ship.” ECF No. 39-3 at 73-74. If that also meant that the date of
Tesoriero’s injury was Dr. Potkonjak’s first date of employment with Carnival, then Carnival
employed Dr. Potkonjak for a total of seventeen days.
42
Case: 18-11638 Date Filed: 07/14/2020 Page: 43 of 49
Second, that Dr. Potkonjak apparently believed he reported the incident to the
security department but no record of that was ever made and that he is now
unavailable for questioning similarly could be viewed as suggesting that Carnival
acted in bad faith when it threw away the chair.
And finally, this is not the first case where Carnival’s failure to follow its own
preservation policies has resulted in the destruction of evidence. In Walter, Carnival
discarded a deck chair that collapsed under the passenger there. 2010 WL 2927962,
at *1. The chair in that case was lost, even though Carnival employees prepared an
accident report.
Id. at *2. And just over a year ago, Carnival lost CCTV footage of
a guest’s fall, even though Carnival conceded it had a duty to preserve that evidence.
Sosa v. Carnival Corp., No. 18-20957-CIV,
2018 WL 6335178, *1 (S.D. Fla. Dec.
4, 2018). The magistrate judge considering a motion for sanctions against Carnival
in that case described Carnival’s position as (1) “‘[c]’est la vie’ (‘that’s life,’ or
‘that’s how things happen’) and (2) ‘stuff happens.’”8
Id.
No wonder Carnival has that attitude. Carnival keeps discarding material
evidence, and that keeps working to its advantage. So why would it ever do anything
to remedy its compliance with its own policies?
A reasonable jury viewing these facts could conclude that Carnival’s failure
to strictly adhere to its stated policies betrayed bad faith on Carnival’s part.
And if a jury reached that conclusion, Tesoriero would be entitled to an
inference that Carnival destroyed the chair because it would have provided evidence
8
See also Wilford v. Carnival Corp., No. 17-21992-CIV, 2019 WL 2269155 (S.D. Fla.
May 28, 2019) (Carnival could not locate and produce X-rays its medical personnel took in an
onboard medical clinic after the plaintiff slipped and fell onboard).
43
Case: 18-11638 Date Filed: 07/14/2020 Page: 44 of 49
that Carnival knew or should have known of the chair’s unsafe condition. Though
many courts have observed that “courts must not hold the prejudiced party to too
strict a standard of proof regarding the likely contents of the destroyed evidence
because doing so allows the spoliators to profit from the destruction of the evidence,”
In the Matter of: the Complaint of Boston Boat III, LLC, 310 F.R.D. 510, 521 (S.D.
Fla. 2015) (citations and internal quotation marks omitted) (collecting cases); see
also Kronisch v. United States,
150 F.3d 112, 128 (2d Cir. 1998), here, it is clear that
the missing chair could have provided Tesoriero with critical evidence that Carnival
knew or should have known that its chair was defective.
As I have explained, an examination of the chair that actually collapsed could
have revealed that Carnival had previously fixed that same chair in the same place.
Or it could have shown that Carnival had previously repaired another part of the
chair, which caused stress on the joint that separated. Or it could have betrayed that
its housekeeping staff did not in fact move and check the furniture daily, as Carnival
testified it did, because if it did, it should have been aware of the chair’s defective
condition. Any of these revelations would have shown that Carnival either knew or
should have known that the chair was not fit for continued use.
And contrary to the panel opinion’s suggestion, see Maj. Op. at 26-27, it is
obvious that examination of a similar chair would not reveal any of these things that,
if they existed, would have occurred in only the chair involved in the incident.
Joseph’s amateur photographs do not save the day for Carnival, either. See
id. at 27. They are a poor substitute for the actual chair, which could have permitted
sampling of the glue that allowed the joint to separate (as well as examination for
44
Case: 18-11638 Date Filed: 07/14/2020 Page: 45 of 49
more than one application of glue, as in a repair of the chair joint) and inspection of
the rest of the anatomy of the chair to determine whether a repair to a part of the
chair that was not photographed could have placed extra stress on the part of the
chair that separated.
Similarly, I respectfully disagree with the panel opinion that Joseph’s brief
looking over of the chair while his wife was writhing in pain and the two were
waiting for medical attention qualifies as a thorough examination that would have
revealed any of these problems with the defective chair if they existed. See id.
As for the panel opinion’s contention that an examination would not have
revealed that housekeeping staff knew or should have known of the defect because
“Tesoriero herself noticed no problem when she moved the chair back from the
vanity,”
id., there is a significant difference between pulling a chair out about a foot
from a vanity as a prerequisite to grooming, and cleaning and checking furniture as
part of job duties, as the Carnival staff was charged with doing. Plus, even if we
assume no difference, Tesoriero’s failure to notice a problem with the chair when
she pulled it out would not establish that Carnival had not previously repaired that
same chair or that the chair had not broken before in the same place.
Notice is the one thing that Tesoriero could not establish on summary
judgment without the benefit of an examination of the chair. Because showing
notice is an element of her claim for negligence, and because inspecting the chair
may well have provided the necessary evidence that Carnival knew or should have
known of the chair’s defective condition, the chair qualifies as crucial evidence.
45
Case: 18-11638 Date Filed: 07/14/2020 Page: 46 of 49
The panel opinion suggests that proof of notice is somehow exempt from the
regular rules that govern the imposition of spoliation sanctions. See id. at 26. But
the only support it offers for this novel notion is its assertion that “no party has cited
a persuasive case to support a presumption of notice as a spoliation sanction, and the
one identified by the dissent falls short.”
Id.
Most respectfully, the panel opinion is doubly wrong. First, as the panel
opinion indicates, sanctions for bad faith are appropriate when “the practical
importance of the evidence” is significant. Maj. Op. at 21 (quoting
Flury, 427 F.3d
at 942). It does not make a difference why the evidence is important; all that matters
is that the evidence has “practical importance.” Obviously, evidence that proves a
necessary element of a plaintiff’s prima facie case is “practical[ly] important” when
the plaintiff cannot establish that element without it. See Palmas & Bambu, S.A. v.
E.I. Dupont De Nemours & Co., Inc.,
881 So. 2d 565, 582 (Fla. Dist. Ct. App. 2004)
(noting that “where evidence necessary to prove a prima facie case is missing due to
actions of a party, an essential element of a claim may be presumed” (citing Pub.
Health Tr. of Dade Cty. v. Valcin,
507 So. 2d 596, 599 (Fla 1987))).9 Notice is a
necessary element of Tesoriero’s prima facie case of negligence. And as I have
explained, an examination of the defective chair may well have proven that Carnival
knew or should have known of the chair’s condition. So upon a finding of bad faith,
9
We have explained that while federal law governs the imposition of spoliation sanctions,
our opinion concerning sanctions can be “informed by [state] law” when, as here, it is consistent
with federal spoliation principles. Flury, 427 F.3d at 943, 944.
46
Case: 18-11638 Date Filed: 07/14/2020 Page: 47 of 49
it would have been appropriate for a court to give a spoliation sanction concerning
that necessary evidence. 10
Second, courts have in fact awarded spoliation sanctions when destroyed
evidence might have proven notice. In Boston Boat, for example, the court imposed
a spoliation presumption “that the destroyed evidence would have demonstrated the
existence of a dangerous condition which Boston Boat knew about, should have
known about or created.” 310 F.R.D. at 523 (emphasis added). The panel opinion’s
attempt to distinguish Boston Boat on the dual bases that it imposed only a
“rebuttable, permissible adverse inference” and that it “involved dramatic evidence
of bad faith” once again misses the point. The point here is that when a court finds
that evidence was destroyed in bad faith, spoliation sanctions can appropriately be
imposed to establish a presumption of notice where the destroyed evidence itself,
had it not been discarded, could have proven notice.
Here, for the reasons I have explained, the defective chair that Carnival
destroyed may well have proven that Carnival had notice of the chair’s dangerous
condition, had Carnival not discarded the piece of furniture. So given an opportunity
10
The panel opinion asserts that I espouse the position “that because evidence of notice
would be necessary for Tesoriero to show a prima facie case of negligence, it must mean that the
chair would have provided the evidence.” Maj. Op. at 27. Nonsense. No fair reading of my
dissent could support the panel opinion’s claim. Indeed, as I have explained two other times in
this dissent, see supra at 29, 44, an examination of the defective chair in this case could have
yielded evidence that Carnival knew or should have known of the chair’s dangerous condition—
that is, evidence of notice. Those explanations amply demonstrate the practical importance of the
destroyed chair. See Kronisch, 150 F.3d at 128 (“[C]are should be taken not to require too specific
a level of proof [because] . . . holding the prejudiced party to too strict a standard of proof regarding
the likely contents of the destroyed evidence would subvert the prophylactic and punitive purposes
of the adverse inference, and would allow parties who have intentionally destroyed evidence to
profit from that destruction.” (citation and internal quotation marks omitted)).
47
Case: 18-11638 Date Filed: 07/14/2020 Page: 48 of 49
to evaluate the witnesses and other evidence at trial, a jury reasonably could have
concluded, upon a sanctions-based presumption instruction, that an inspection of the
chair would have revealed that Carnival knew or should have known of its dangerous
condition. Since that is the case, particularly on a motion for summary judgment,
where we must construe the facts in favor of the non-moving party, Tesoriero has
established a material issue of fact concerning whether Carnival discarded the chair
in bad faith.
Because a material question of fact exists as to the bad-faith issue, the district
court should not have granted summary judgment. Rather, the court should have
allowed a jury to resolve the bad-faith question of fact, along with all the other
disputes of relevant fact in the case.11 Vodusek v. Bayliner Marine Corp., 71 F.3d
148, 157 (4th Cir. 1995) (“We conclude that the district court acted within its
discretion in permitting the jury to draw an adverse inference if it found that Vodusek
or her agents caused destruction or loss of relevant evidence. Rather than deciding
the spoliation issue itself, the district court provided the jury with appropriate
guidelines for evaluating the evidence.”);
Kronisch, 150 F.3d at 128 (“We believe
that plaintiff has produced enough circumstantial evidence to support the inference
that the destroyed MKULTRA files may have contained documents supporting (or
potentially proving) his claim, and that the possibility that a jury would choose to
11
At the very least, the district court should have held an evidentiary hearing on the issue
instead of resolving the material issue of fact against Tesoriero on the papers. Cf. McDonald’s
Corp. v. Robertson, 147 F.3d 1301, 1311 (11th Cir. 1998) (noting in the context of a motion for
preliminary injunction that it is an abuse of discretion to fail to hold an evidentiary hearing where
facts central to a party’s claims are disputed); Oldfield v. Pueblo De Bahia Lora, S.A.,
558 F.3d
1210, 1216 (11th Cir. 2009) (“Because the material facts relating to the personal jurisdiction issues
were not in dispute, there was no need for an evidentiary hearing.”).
48
Case: 18-11638 Date Filed: 07/14/2020 Page: 49 of 49
draw such an inference, combined with plaintiff’s circumstantial evidence, is enough
to entitle plaintiff to a jury trial.”); United States v. Laurent, 607 F.3d 895, 902 (1st
Cir. 2010) (“A ‘spoliation’ instruction, allowing an adverse inference, is commonly
appropriate in both civil and criminal cases where there is evidence from which a
reasonable jury might conclude that evidence favorable to one side was destroyed
by the other.” (citing 4 L. Sand et al., Modern Federal Jury Instructions § 75.01
(instruction 75-7), at 75-16 to -18 (2010))).
The panel opinion simply concludes that Carnival acted consistently with its
policies and that its policies do not “somehow establish bad faith.” Maj. Op. at 23.
But for the reasons I have explained, the record viewed in the light most favorable
to Tesoriero cannot support that conclusion. So vacatur of the district court’s entry
of summary judgment and remand for trial is warranted here.
II.
Because Tesoriero has shown a material issue of fact with respect to bad faith
concerning Carnival’s disposal of the chair, summary judgment should not have
been granted in this case. I therefore respectfully dissent.
49
