Irina TESORIERO, Plaintiff, v. CARNIVAL CORPORATION d/b/a Carnival Cruise Lines a/k/a Carnival Cruise Line, Defendant Case No. 16-21769-Civ-WILLIAMS/TORRES United States District Court, S.D. Florida Signed September 22, 2017 Counsel Christopher Bond Smith, John Heyward Hickey, Elizabeth Letitia Bryan, Hickey Law Firm, P.A., Elizabeth Koebel Russo, Russo Appellate Firm, Miami, FL, for Plaintiff. Caroline Leigh Milewski, John Michael Magee, Scott P. Mebane, Mase Tinelli Mebane Briggs, P.A., Miami, FL, for Defendant. Torres, Edwin G., United States Magistrate Judge REPORT AND RECOMMENDATION ON THE PARTIES' CROSS MOTIONS FOR SUMMARY JUDGMENT *1 This matter is before the Court on the parties' cross motions for summary judgment filed by Carnival Corporation's d/b/a Carnival Cruise Lines (“Defendant” or “Carnival”) [D.E. 38] and Irina Tesoriero (“Plaintiff”) [D.E. 39]. After Plaintiff and Defendant timely filed their respective responses and replies [D.E. 44-47], both of their motions are now ripe for disposition. After careful consideration of the motions, responses, replies, relevant authorities, the record in this case, and for the reasons discussed below, Defendant's motion should be GRANTED, Plaintiff's motion should be DENIED, and final judgment entered. TABLE OF CONTENTS I. BACKGROUND...–––– II. APPLICABLE PRINCIPLES AND LAW...–––– III. ANALYSIS...–––– A. Defendant's Motion for Summary Judgment [D.E. 38]...–––– 1. Whether Carnival's Motion Fails to Comply with Rule 56...–––– 2. Carnival's Duty of Care under Federal Maritime Law...–––– 3. Whether Carnival had Actual or Constructive Notice...–––– 4. Whether Actual or Constructive Notice is Always Required...–––– (a) Effect of Res Ipsa Loquitur Doctrine on Notice Requirement...–––– (b) Effect of Negligence Maintenance Claim on Notice Requirement...–––– 5. Whether Res Ipsa Loquitur May be Invoked in This Case...–––– (a) The Element of Legally Exclusive Control of the Chair...–––– (b) A Collapsing Chair Does not Satisfy the Third Element...–––– B. Plaintiff's Motion for Summary Judgment [D.E. 39]...–––– IV. CONCLUSION...–––– I. BACKGROUND This action arises from an accident that occurred on June 26, 2015 at approximately 7:30 pm while Plaintiff sat on a chair in her cabin onboard the Carnival Splendor. Plaintiff claims that when she sat down on the chair, it suddenly collapsed, causing personal injuries, including an injury to her right arm.[1] The injury occurred when the chair allegedly came apart at the joints where the right front leg of the chair attaches to the seat and body of the chair. Plaintiff claims that Carnival was negligent and that her injury occurred because Carnival failed to warn, inspect, maintain, and repair the furniture in question. Stateroom stewards assigned to each cabin are tasked with the responsibility of inspecting the condition of the cabin furniture and identifying any maintenance issues. These stewards service the cabin daily and their responsibilities include cleaning and checking all of the furniture to ensure that everything is structurally sound. They visually inspect the furniture and touch it to identify if anything is damaged or needs to be replaced or repaired. If a stateroom steward identifies any problems with the furniture, the issue is reported and recorded. And if a chair needs repair, it is immediately removed from a room. In the three years prior to Plaintiff's incident, there was one other incident where a passenger was injured because of a defective chair.[2] II. APPLICABLE PRINCIPLES AND LAW *2 “The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law. FED. R. CIV. P. 56(a). A party asserting that a fact cannot be or is genuinely disputed must support the assertion by: (A) citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials; or (B) showing that materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact. FED. R. CIV. P. 56(c)(1). “On summary judgment the inferences to be drawn from the underlying facts must be viewed in the light most favorable to the party opposing the motion.” Matsushita Electric Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 597 (1986) (quoting another source). In opposing a motion for summary judgment, the nonmoving party may not rely solely on the pleadings, but must show by affidavits, depositions, answers to interrogatories, and admissions that specific facts exist demonstrating a genuine issue for trial. See FED. R. CIV. P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 323-24 (1986). The existence of a mere “scintilla” of evidence in support of the nonmovant's position is insufficient; there must be evidence on which the jury could reasonably find for the nonmovant. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986). “A court need not permit a case to go to a jury ... when the inferences that are drawn from the evidence, or upon which the non-movant relies, are ‘implausible.’ ” Mize v. Jefferson City Bd. Of Educ., 93 F.3d 739, 743 (11th Cir. 1996) (citing Matsushita, 475 U.S. at 592-94). At the summary judgment stage, the Court's function is not to “weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial.” Anderson, 477 U.S. at 249. In making this determination, the Court must decide which issues are material. A material fact is one that might affect the outcome of the case. See id. at 248 (“Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment. Factual disputes that are irrelevant or unnecessary will not be counted.”). “Summary judgment will not lie if the dispute about a material fact is ‘genuine,’ that is, if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Id. III. ANALYSIS A. Carnival's Motion for Summary Judgment [D.E. 38] Carnival's motion seeks summary judgment against Plaintiff because a prerequisite to the imposition of liability on a cruise ship operator is that the operator must have actual or constructive notice of a dangerous or risk-creating condition. Carnival argues that there is no evidence that it was ever on notice, either actual or constructive, of any alleged-risk creating condition with the chair in question prior to Plaintiff's use. Because there is purportedly no evidence that supports Plaintiff's claims under a negligence theory, Carnival argues that Plaintiff essentially seeks to hold it strictly liable as an insurer of her safety on the cruise. Carnival contends that this is not the law and that Plaintiff is unable to demonstrate the existence of a genuine issue of material fact on the question of whether Carnival had actual or constructive notice. Carnival seeks summary judgment as a matter of law on all of Plaintiff's claims. *3 Plaintiff's response is that Carnival spoliated the evidence (allegedly eviscerating the notice requirement) and limited itself to a challenge only on a single theory of negligence liability in Plaintiff's complaint – notice and the duty to warn. Plaintiff also argues that res ipsa loquitur applies, so actual or constructive notice is not required. And even if notice was required in this action, Plaintiff suggests that there are three persuasive reasons why Carnival had constructive notice of the defective chair. Accordingly, Plaintiff contends that Defendant's motion lacks any merit and should be denied. 1. Whether Carnival's Motion Fails to Comply with Rule 56 As an initial procedural matter, Plaintiff argues that Carnival's motion can be summarily denied because Carnival only challenges Plaintiff's “duty to warn” theory of negligence, but fails to challenge Plaintiff's “negligent maintenance” theory. As support, Plaintiff relies on the Eleventh Circuit's unpublished decision in Frasca v. NCL (Bahamas), Ltd., 654 F. App'x 949, 955 (11th Cir. 2016). In that case, the Eleventh Circuit found that Plaintiff alleged a failure to warn and negligent maintenance as two separate theories under one count of negligence. After defendant moved for summary judgment, both parties field a joint stipulation of facts in which plaintiff stated that defendant did not take appropriate action to maintain the deck in question. In response, defendant moved in limineto exclude all evidence of theories not presented in plaintiff's complaint, including a theory of negligent construction and maintenance of the deck. The district court addressed the motion in limine in its summary judgment order, and improperly granted summary judgment in favor of defendant without first giving notice to plaintiff and a reasonable time to respond to defendant's arguments. See FED. R. CIV. P. 56(f). Because there was no evidence to suggest that the district court provided the parties such notice, the district court erred by sua sponte entering summary judgment in favor of defendant on plaintiff's negligent maintenance claim. Here, Plaintiff suggests that Carnival's motion does not identify Plaintiff's claim for negligent maintenance and does not even refute the application of res ipsa loquitur. Instead, Carnival allegedly only mentions in its introduction that “[t]hat there is no evidence that Carnival was on notice, either actual or constructive, of any alleged-risk creating condition with the chair prior to Plaintiff's use.” [D.E. 38]. Carnival's failure to seek summary judgment on the negligent maintenance theory is allegedly fatal to Carnival's motion because the adjudication of Plaintiff's claims is now inappropriate under Federal Rule of Civil Procedure 56. See, e.g., Gentry v. Harborage Cottages–Stuart, LLP, 654 F.3d 1247, 1261 (11th Cir. 2011) (“In this case, the court entered judgment on claims not identified by Plaintiffs in their Rule 56 motion and without advance notice. This was error.”). Carnival's response is that Plaintiff incorrectly states that judgment may not be granted on a theory of liability not addressed in a party's motion for summary judgment. Carnival believes that this is a clear misstatement of Federal Rule of Civil Procedure 56, which requires that a party identify “each claim or defense” on which summary judgment is sought. FED. R. CIV. 56(a). Carnival also suggests that this case does not involve a sprawling multi-count complaint, but that Plaintiff sued for one claim: negligence. Thus, Plaintiff's contention that Carnival only moved for summary judgment on the “duty to warn” aspect of her negligence claim is supposedly belied by the record. Carnival points out that in its motion, Carnival recognized that Plaintiff's negligence claim included allegations that Carnival failed to “inspect, maintain, and repair: the furniture in question.” [D.E. 38]. Because Plaintiff was certainly put on notice that Carnival is seeking summary judgment on her entire claim of negligence, Carnival suggests that Plaintiff's argument is simply wrong and misstates the law in support thereof. *4 We agree with Carnival that Plaintiff's argument lacks merit. In its introduction, Carnival acknowledges both of Plaintiff's theories of negligence – that Carnival (1) failed to maintain the chair in question, and (2) failed to warn Plaintiff of the dangerous condition. [D.E. 38]. As for Plaintiff's contention that Carnival did not refute the application of res ipsa, this argument lacks merit because there is no authority that requires Carnival when seeking summary judgment to anticipate Plaintiff's defenses to Carnival's motion. Furthermore, the procedural posture of this case is materially distinguishable from the facts presented in Frasca because (1) the Court is not sua sponte adjudicating Plaintiff's claims, (2) Defendant acknowledged both of Plaintiff's theories of negligence in its motion, (3) Defendant stated its intention to dismiss all of Plaintiff's claims, and (4) Plaintiff was put on notice and given time to respond, as evidenced by Plaintiff's lengthy response in opposition to Defendant's motion. As such, we find that Carnival complied with the requirements set forth in Rule 56 and that Plaintiff's argument is unpersuasive. 2. Carnival's Duty of Care under Federal Maritime Law Turning to the merits of the matter raised by Carnival's motion, we begin by identifying the duty of care that applies to Carnival in this maritime action. As a sea carrier, Carnival does not serve as strict liability insurer to its passengers, meaning Carnival can only be liable for negligence. See Kornberg v. Carnival Cruise Lines, Inc., 741 F.2d 1332, 1334 (11th Cir. 1984); Keefe v. Bahama Cruise Line, Inc., 867 F.2d 1318, 1322 (11th Cir. 1989). “Generally, to prevail in a negligence action the plaintiff must show that: (1) the defendant owed plaintiff a duty; (2) the defendant breached that duty; (3) the defendant's breach was the proximate cause of plaintiff's injuries; and (4) the plaintiff suffered damages.” Weiner v. Carnival Cruise Lines, 2012 WL 5199604, at *2 (S.D. Fla. Oct. 22, 2012)(citing Isbell v. Carnival Corp., 462 F. Supp. 2d 1232, 1236 (S.D. Fla. 2006) ). Because the accident in this case occurred aboard a cruise ship, the aforementioned elements must be evaluated in connection with federal maritime law. See Smolnokar v. Royal Caribbean Cruises Ltd., 787 F. Supp. 2d 1308, 1315 (S.D. Fla. 2011) (“Federal maritime law applies to actions arising from alleged torts ‘committed aboard a ship sailing in navigable waters.’ ”). Each element is ordinarily essential to a negligence claim and, at this stage of the proceedings, it is established that a “[p]laintiff cannot rest on the allegations of her complaint in making a sufficient showing on each element for the purposes of defeating summary judgment.” Isbell, 462 F. Supp. 2d at 1236–37 (citing Tipton v. Bergrohr GMBH-Siegen, 965 F.2d 994, 999 (11th Cir. 1992) ); Taiariol v. MSC Crociere, S.A., 2016 WL 1428942, at *3 (S.D. Fla. Apr. 12, 2016), aff'd, 677 F. App'x 599 (11th Cir. 2017) (“The failure to show sufficient evidence of each element is fatal to a plaintiff's negligence cause of action.”). It is also settled law “that a shipowner owes passengers the duty of exercising reasonable care under the circumstances.” Isbell, 462 F. Supp. 2d at 1237 (citations omitted). And in meeting that standard of care, it “requires, as a prerequisite to imposing liability, that the carrier have actual or constructive notice of the risk-creating condition.” See Keefe, 867 F.2d at 1322. “This duty includes a duty to warn passengers of dangers the cruise line knows or reasonably should have known.” Smolnikar v. Royal Caribbean Cruises Ltd., 787 F. Supp. 2d 1308, 1322 (S.D. Fla. 2011) (citing Carlisle v. Ulysses Line Ltd., S.A., 475 So. 2d 248, 251 (Fla. 3d DCA 1985) (cruise line owners have a duty to warn that “encompasses only dangers of which the carrier knows, or reasonably should have known”); Goldbach v. NCL (Bahamas) Ltd., 2006 WL 3780705, at *2 (S.D. Fla. Dec. 20, 2006) (same) ). However, this duty only extends to “those dangers which are not apparent and obvious to the passenger.” Luby v. Carnival Cruise Lines, Inc., 633 F. Supp. 40, 41 (S.D. Fla. 1986) (citing N.V. Stoomvaart Maatschappij Nederland v. Throner, 345 F.2d 472 (5th Cir. 1965) ); see also Cohen v. Carnival Corp., 945 F. Supp. 2d 1351, 1357 (S.D. Fla. 2013) (“[T]here is no duty to warn of dangers that [are] of an obvious and apparent nature.”) (internal quotation marks omitted). 3. Whether Carnival had Actual or Constructive Notice *5 Based on this duty of care, we turn to the traditional inquiry whether Carnival had actual or constructive notice of the collapsing chair. See Keefe, 867 F.2d at 1322 (requiring “as a prerequisite to imposing liability, that the carrier have actual or constructive notice of the risk-creating condition.”). Plaintiff argues that there is sufficient evidence in the record for trial because Carnival had legally effective notice for three reasons: (1) a substantially similar incident occurred within the last three years, (2) the ship's management meetings establish Carnival's awareness of chairs in need of repair, and (3) the observable condition of the cabin chair's pegs show that the glue that held the legs together had worn away. First, Plaintiff notes that on October 18, 2014, less than a year prior to Plaintiff's incident, another Carnival passenger, Tina Dalfonso, experienced a substantially similar incident involving the collapse of a chair when she tried to sit on it. Second, Plaintiff contends Carnival's meeting notes demonstrate that Carnival's chairs experience wear and tear, and that approximately 20 to 40 were in need of repair at the time of the accident. And third, Plaintiff believes that her husband's observations demonstrate constructive notice to Carnival because he found worn away glue on the pegs of the cabin chair that suggest that the pegs became unglued some time ago and became loose. Coupled with Plaintiff's testimony that she did not sit in the chair prior to the incident and that the chair remained untouched for at least 24 hours, Plaintiff argues that there is more than enough evidence to find that Carnival was on constructive notice of the dangerous chair in Plaintiff's cabin. Carnival's response is that there is absolutely no record evidence establishing actual or constructive notice. In the three years preceding Plaintiff's incident, Carnival argues that there were no prior similar incidents involving the collapse of the type of cabin chair at issue in this case. The only prior incident that Plaintiff relies upon included a metal balcony chair in a different cabin, whereas this case involves a wood upholstered chair. Thus, Plaintiff believes that the isolated prior incident involved entirely different circumstances and is not nearly enough to impute constructive notice of any dangerous condition. As for the meeting minutes that Plaintiff relies upon, Carnival believes those are also insufficient to show actual or constructive notice because the repairs referenced in those documents only address cosmetic issues such as varnishing, sanding, and repainting – not any structural issues, such as the broken chair in Plaintiff's cabin. And finally, Plaintiff argues that the observations and speculative conclusions of Plaintiff's husband (who is not obviously an expert) is not enough to establish notice because Plaintiff's husband admits that “[i]t 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.” [D.E. 44-3] (emphasis added). Plaintiff's husband also stated that “[t]he chair did not have any obvious or observable outward defects.” Id. Carnival argues that maritime law does not impose any heightened duty to completely disassemble a chair to conduct an inspection and that the testimony of Plaintiff's husband supports Carnival's contention that it had no obvious or observable defect. Therefore, Carnival believes it could not have been on notice of any dangerous condition especially when Plaintiff suggests that a cruise line should physically take apart chairs to determine if they are structurally sound. Because the law purportedly imposes no such duty on Carnival, the mere fact that a chair collapsed coupled with the speculative assertion of Plaintiff's husband that the chair had been loose for a “long time” is allegedly insufficient to find that Carnival had constructive notice. Accordingly, Carnival argues that the evidence in the record demonstrates an absence of any prior notice of a deficiency with respect to the cabin chair or similar cabin chairs aboard the Splendor and therefore summary judgment must be granted. *6 Even assuming that a defective condition existed in this case, we agree with Carnival that the record contains no evidence to show that Carnival actually knew of a defect in the cabin chair. This means that Plaintiff can only rely upon the allegation that Carnival had constructive notice. And “[c]onstructive notice ‘requires that a defective condition exist for a sufficient interval of time to invite corrective measures.’ ” Mirza v. Holland America Line Inc.,2012 WL 5449682, at *3 (W.D. Wash. Nov. 6, 2012) (quoting Monteleone v. Bahama Cruise Line, Inc., 838 F.2d 63, 65 (2d Cir. 1988) ). Here, Plaintiff has presented no tangible evidence that Carnival had constructive notice or that it should have known that the cabin chair posed any risk-creating condition for any passenger. “There is no evidence in the record of any accident reports, passenger comment reviews or forms, or reports from safety inspections alerting Carnival of any potential safety concern....” Cohen, 945 F. Supp. 2d at 1355–56 (citing Smolnikar v. Royal Caribbean Cruises, Ltd.,787 F. Supp. 2d 1308, 1323–24 (S.D. Fla. 2011) (finding that the cruise line had no actual or constructive notice of any risk-creating condition from a zipline tour operator because “Royal Caribbean had positive information about [the tour operator], and there is no evidence that Royal Caribbean received any form of notice regarding the existence of an alleged danger, as there were no accident reports from [the tour operator], or passenger comment forms or reviews, alerting Royal Caribbean as to a potential safety concern at traverse # 6 of the tour”); Samuels v. Holland American Line–USA Inc., 656 F.3d 948, 953–54 (9th Cir. 2011) (finding that the cruise line did not have actual or constructive notice of any danger to passengers to wading on a beach because there was no evidence in the record that any other passenger had ever been injured on that beach and the cruise line was not “aware of any similar accident, or any accident at all, that had previously occurred while a Holland American passenger was swimming on the Pacific Ocean side of Lover's Beach”) ). Again, Plaintiff points instead to the same three reasons why Carnival had constructive notice. But, again, none are persuasive. Plaintiff first focuses on an incident that occurred nearly three years ago, but that incident involved a different cabin and a completely different type of chair. In fact, the chair at issue in the incident three years ago was a metal balcony chair that was exposed to the elements whereas the chair in this case was upholstered with a wooden frame inside a cabin. As such, Plaintiff cannot meet the Eleventh Circuit's substantial similarity doctrine that requires a party to provide evidence of “conditions substantially similar to the occurrence in question” that “caused the prior accident.” Jones v. Otis Elevator Co., 861 F.2d 655, 661–62 (11th Cir. 1988) (citation omitted); see alsoSorrels v. NCL (Bahamas) Ltd., 796 F.3d 1275, 1287–88 (11th Cir. 2015) (affirming district court's ruling that “evidence of 22 other slip and fall incidents” aboard defendant's vessel did not meet the “substantial similarity doctrine” as none of the falls occurred where plaintiff fell, other injured passengers wore varying styles of footwear, and additional factors were involved); Frasca, 2014 WL 1385806, at *8 (determining that plaintiff was “unable to show that another passenger slipped and fell where [plaintiff] fell, under similar conditions”). *7 Furthermore, even if we ignore the differences of the metal balcony chair and view the issue through a general foreseeability lens, there is still not enough evidence that a single incident involving a broken chair from three years ago “occurred with enough frequency to impute constructive notice” to Carnival of a dangerous condition. SeeTaiariol, 2016 WL 1428942, at *6 (“Quite simply, there is no evidence that accidents like the subject incident frequently occurred in the Pantheon Theater or involved metal stair ‘nosings,’ to render steps—like the one at issue here—unreasonably dangerous to traverse.”); Weiner v. Carnival Cruise Lines, 2012 WL 5199604, at *5 (S.D. Fla. Oct. 22, 2012) (finding no evidence “that spills and accidents of the sort” plaintiff experienced occurred enough to “impute constructive notice”); see also Mercer v. Carnival Corporation, 2009 WL 302274, at *2 (S.D. Fla. Feb. 9, 2009) (rejecting argument that cruise line “had actual or constructive notice of the dangerous propensities of high gloss hardwood floors being in close proximity to the bathroom,” where plaintiff fell after exiting the shower, because plaintiff failed to produce “any evidence to support his contention that [the cruise line] had notice of the allegedly dangerous condition”). Accordingly, Plaintiff's first argument fails. The same holds true for Plaintiff's second argument that Carnival's meeting minutes constitute constructive notice. The housekeeping manager, Serhiy Bukaruv, testified that the meeting minutes only reflect a list of chairs that require sanding, repainting, or varnishing. [D.E. 38-1 at 24, 27]. In other words, the chairs that are reflected on the meeting minutes only require cosmetic changes, not any structural issues. See id. at 46. And to the extent that chairs are identified to be structurally deficient, those are immediately replaced by staff members. Therefore, there is simply no tangible evidence to get to a jury based on Carnival's meeting minutes that do not reflect any chairs that require structural deficiencies, let alone the specific chair at issue in this case. Constructive notice could not be found on this basis as a matter of law. Plaintiff's third argument to sustain her constructive notice theory is equally unpersuasive. Plaintiff contends that her husband's observations demonstrate constructive notice to Carnival because he found worn-away glue on the pegs of the cabin chair and that he determined the pegs became unglued some time ago and became loose. Yet, Plaintiff's husband undermines her argument because his affidavit states “[i]t 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.” [D.E. 44-3] (emphasis added). And Plaintiff's husband also claims that “[t]he chair did not have any obvious or observableoutward defects.” Id. In other words, the husband's sworn observations actually support Carnival's position that no reasonable inspection could have discovered the dangerous condition without first deconstructing the cabin chair. And federal maritime law does not impose a daily duty to deconstruct furniture to discharge a duty of reasonable care to passengers. See, e.g., Bush v. XYZ Ins. Co., 880 So. 2d 953, 956 (La. Ct. App. 2004) (“We find nothing in the statutes or jurisprudence that would suggest that such a great burden is on an owner of a thing to hire an expert to inspect it thoroughly before it is placed into use, and we decline to place such a burden on Merlin Computers here.”); Smith v. Bernfeld, 226 Md. 400, 408 (1961) (“[N]o business man is required to provide an appliance or place of business free from the hazard of all mishaps. This is a task impossible to fulfill.”). Plaintiff's husband is also not an expert, which further undermines the argument that the pegs became unglued some time ago and that Carnival had constructive notice. Accordingly, Plaintiff has failed to demonstrate in any way that Carnival had constructive notice of the cabin chair. In sum, without prior complaints from Plaintiff or other passengers, and with regular inspections of all chairs in the cabins, the record presented simply does not establish that Carnival had any actual or constructive notice of the defective cabin chair. As the Second Circuit stated nearly thirty years ago, we “simply cannot conclude that [Carnival's] failure to discover the [defective] condition ... assuming as we do that it existed prior to the [incident] and in fact caused the [incident], constituted a lack of due care for which it should be held liable.” Monteleone, 838 F.2d at 66. *8 Accordingly, under traditional negligence analysis that applies in this maritime action, summary judgment on Plaintiff's claim would be warranted as a matter of law. Because there is no evidence in this record that Carnival possessed actual or constructive knowledge of the alleged risk-creating condition, summary judgment should be granted under Eleventh Circuit precedent that requires plaintiffs to satisfy this element when pursuing a negligence cause of action. See, e.g., Everett v. Carnival Cruise Lines, 912 F.2d 1355, 1358–59 (11th Cir. 1990) (“[T]he ‘benchmark against which a ship owner's behavior must be measured is 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; Taiariol, 677 F. App'x at 602 (“Because Taiariol failed to produce evidence that the defendant had notice, either actual or constructive, of the nosing's slippery condition, and because notice is a prerequisite to imposing liability, the district court did not err in granting summary judgment to the defendant.”) (internal citation omitted); Lipkin v. Norwegian Cruise Line Ltd., 93 F. Supp. 3d 1311, 1324 (S.D. Fla. 2015) (“Because Plaintiff has failed to cite any evidence in the record showing that Norwegian had actual or constructive notice of the risk-creating condition alleged in the complaint, and because evidence of notice is a prerequisite to liability under maritime law, summary judgment in favor of Norwegian is appropriate in this matter.”) (citing Keefe, 867 F.2d at 1322); Thomas v. NCL (Bahamas) Ltd., 2014 WL 3919914, at *4 (S.D. Fla. Aug. 11, 2014) (granting summary judgment where “[t]he unrefuted evidence in the record instead indicates a lack of actual or constructive notice”). Indeed it is well settled that, at the summary judgment stage, “mere implication of actual or constructive notice is insufficient to survive summary judgment.” See Lipkin, 93 F. Supp. 3d at 1323 (citation omitted); see also Thomas, 2014 WL 3919914, at *4; Cohen, 945 F. Supp. 2d at 1357. So for instance, in Adams v. Carnival Corp., a passenger brought a negligence claim against a cruise line alleging that a defective pool deck collapsed and injured the plaintiff. See 2009 WL 4907547, at *1. The plaintiff in Adams presented no record evidence establishing that the defendant had actual or constructive notice as to any hazardous condition with respect to the chair in question. There was also no evidence that the defendant was aware of any other passengers experiencing problems with chairs on the pool deck. Hence, the court held that “[w]ithout specific facts demonstrating, at least, that the purported defect was detectable with sufficient time to allow for corrective action,” the defendant was entitled to summary judgment. Id. at *5. The same analysis applies here based on this record. Carnival's stateroom stewards service the individual cabins on a daily basis and that they are tasked with the specific responsibility of inspecting the condition of the cabin furniture and identifying any maintenance issues. They conduct a visual inspection, and also touch the furniture to identify any damage to make certain that it is structurally sound. If any furniture needs to be repair or replaced, Carnival contends that it is immediately removed from the cabin. In the three years prior to Plaintiff's accident, there were purportedly no substantially similar incidents and only one involving a chair in a passenger cabin.[3] Therefore, even assuming all facts in the light most favorable to Plaintiff and drawing all factual inferences in Plaintiff's favor, Plaintiff has still failed to demonstrate the existence of a genuine issue of material fact as to whether Carnival possessed actual or constructive notice of the alleged risk-creating condition. 4. Whether Actual or Constructive Notice is Always Required Plaintiff's alternative position on the question of notice is that notice is not required in two circumstances: (1) when the doctrine of res ipsa loquitur applies, and (2) when plaintiffs allege a negligent maintenance cause of action. Plaintiff concludes that res ipsa principles should be applied under the circumstances of this case, which would then require the negligence claim to proceed for trial irrespective of actual or constructive notice on Carnival's part. And Plaintiff otherwise argues that her negligent maintenance claim precludes Carnival from relying on the notice element in its motion for summary judgment. We will tackle the more complicated res ipa issues first. (a) Effect of Res Ipsa Loquitur Doctrine on Notice Requirement *9 Res ipsa loquitur is an evidentiary rule that “provides an injured plaintiff with a common-sense inference of negligence where direct proof of negligence is wanting.” Goodyear Tire & Rubber Co. v. Hughes Supply, Inc., 358 So. 2d 1339, 1341 (Fla. 1978); Marrero v. Goldsmith, 486 So. 2d 530 (Fla. 1986). In doing so, “it raises an inference of negligence which merely shifts the burden of going forward with the evidence to the defendant.” Louisiana & A. R. Co. v. Fireman' Fund Ins. Co., 380 F.2d 541, 543–44 (5th Cir. 1967). This doctrine means, in Latin, the “thing that speaks for itself” and it allows a plaintiff to prove negligence through circumstantial evidence. See Rockey v. Royal Caribbean Cruises, Ltd., 2001 WL 420993, at *5 (S.D. Fla. Feb. 20, 2001). The doctrine, like any other rule of evidence, is only brought into play where the situation makes it applicable. This means that “[i]t does not have to be pleaded in the complaint or ‘noticed’ by specific designation to the adverse party at pre-trial or at trial, since it is neither a cause of action nor a ground for recovery, nor an ‘issue’.” Knight v. Otis Elevator Co., 596 F.2d 84, 90 (3d Cir. 1979). Plaintiff contends that the rule, if applicable, forecloses the necessity of showing prior notice to give rise to liability. Plaintiff believes that the collapse of the chair in question would not in the ordinary course of events have occurred without negligence on the part of the one in control of the chair – i.e. Carnival. And because the doctrine may be applied to these facts, Plaintiff is absolved of the burden of showing prior notice. See Mabrey v. Carnival Cruise Lines, Inc., 438 So. 2d 937 (Fla. 3d DCA 1983) (“[A]ctual or constructive knowledge is irrelevant in cases not involving transitory, foreign substances (i.e., the typical banana peel case), if ample evidence of negligent maintenance can be shown.” (citing 194th Street Hotel Corp. v. Hopf, 383 So. 2d 739 (Fla. 3d DCA 1980) ); see alsoMillan v. Celebration Cruise Operator, Inc., 212 F. Supp. 3d 1301, 1306 (S.D. Fla. 2015) (“The Court concludes 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. The Court therefore holds that Defendant Celebration's lack of actual or constructive knowledge of the risk-creating condition does not as a matter of law preclude Plaintiff from arguing the doctrine's application.”). Carnival responds, however, that the doctrine of res ipsa loquitur cannot apply here and, even if it did, Plaintiff is always required to show that Carnival had actual or constructive notice. Apart from that, Carnival also contends that federal law does not recognize the application of the doctrine for maritime negligence actions. As for the cases Plaintiff relies upon, Carnival suggests that they are noticeably distinguishable. For example, in O'Connor v. Chandris Lines, which Plaintiff heavily relied upon, the issue was whether res ipsa loquitur was applicable to a collapsing bunk bed. 566 F. Supp. 1275 (D. Mass. 1983). Yet, the court in that case ruled after a bench trial, not at summary judgment, that “[t]he evidence does not disclose any other probable explanation for the collapse of the bunk except the negligence of the defendant in permitting the bunk to be or remain in a defective condition.” Id. at 1280. Carnival also points out that there was no evidence in the record about the length of time the bunk bed had been in service or the last time prior to the accident that it had been surveyed, or inspected (in contrast with the facts in this record). Our review of this issue shows that, as an initial matter, courts have certainly split on the question of whether res ipsa loquitur applies in a negligence maritime action. However, we agree with Judge Williams's holding in Millan and the weight of authority in the Eleventh Circuit, 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.” Millan, 212 F. Supp. 3d at 1306; see also Great Am. Ins. Co. v. Pride, 847 F. Supp. 2d 191, 205 (D. Me. 2012) (“The doctrine of res ipsa loquitur, which is fully applicable in admiralty, allows negligence to be proved by circumstantial evidence.”). *10 As such, the “lack of actual or constructive knowledge of a risk-creating condition does not as a matter of law preclude Plaintiff from arguing the doctrine's application.” Id.; see also United States v. Baycon Indus., Inc., 804 F.2d 630, 632-35 (11th Cir. 1986) (no requirement of actual or constructive notice for res ipsa in maritime negligence action); Terry, 3 F. Supp. 3d at 1372–74 (same); O'Connor, 566 F. Supp. at 1279–80 (same); Burns v. Otis Elevator,550 So. 2d 21, 22 (Fla. 3rd DCA 1989) (actual or constructive notice of the defect is “immaterial” if the conditions for the res ipsa doctrine are established). Because res ipsa loquitur may be raised in a federal maritime action and may obviate the need for Plaintiff to demonstrate actual or constructive notice in a federal maritime action, we find that Carnival's argument on this point lacks merit. There is certainly some support for Carnival's theory that the notice element remains an essential component of a negligence claim, res ipsa or not. See, e.g., Tillson v. Odyssey Cruises, 2011 WL 309660, at *7 (D. Mass. Jan. 27, 2011) (“Premier Yachts contends that a predicate for a res ipsa loquitur finding is that the Defendant had notice of the defective condition of the chair. This argument is supported by several cases in the maritime context.”) (citingGiacomelli v. Massachusetts Greyhound, 1991 WL 229957 (Mass. App. Div. Nov. 4, 1991) (refusing to apply doctrine of res ipsa loquitur where the plaintiff did not detect any weakness in the chair, thereby making the defect not detectable from normal inspection and making it impossible for the defendant to have had notice of it) ); see alsoAdams, 2009 WL 4907547, at *5 (“[T]he mere fact that an accident occurred or that [the plaintiff] asserts a res ipsa loquitur action does not obviate the need to show that [the defendant] had notice.”); Hood v. Regency Maritime Corp., 2000 WL 1761000, at *4 (S.D.N.Y. Nov. 30, 2000) (“Without notice of any sort ... the defendants cannot be held liable for the injuries sustained by the plaintiff.”). Nevertheless, our review of the relevant caselaw shows that the majority view runs counter to Carnival's blanket argument that would obviate the need for the detailed analysis of the res ipsa doctrine that Plaintiff demands. The doctrine could, if properly applied, govern a maritime action in federal court. After all, maritime law traditionally relies upon “general principles of negligence law.” Chaparro v. Carnival Corp., 693 F.3d 1333, 1336 (11th Cir. 2012). That is why the primary maritime standard of care is “ordinary reasonable care under the circumstances.” Keefe, 867 F.2d at 1322. And that standard of care has been developed primarily by case law development in the federal courts. Id.at 1320-21 (citing Kermarec v. Compagnie Generale Transatlantique, 358 U.S. 625, 628, (1959) ); see alsoEdmonds v. Compagnie Generale Transatlantique, 443 U.S. 256, 259 (1979) (“Admiralty law is judge-made law to a great extent, ...”); Romero v. Int'l Terminal Operating Co., 358 U.S. 354, 360-61 (1959) (constitutional grant “empowered the federal courts ... to continue the development of [maritime] law”). The most commonly cited factors in developing this body of federal law have been reason,[4] common sense,[5]fairness,[6] simplicity, practicality[7] and uniformity.[8] When it comes to the correct application of the doctrine of res ipsa loquitur all these factors supporting recognition of the doctrine in maritime cases. The doctrine has been adopted in almost all the states of the union, so much so that it encompasses its own section of the Restatement (Second) of Torts. It is based on the well-established, common sense notion that if no plausible explanation, other than a defendant's negligence, could account for a plaintiff's injuries then the burden of proof should be borne by the defendant. See, e.g., Restatement (Second) of Torts § 328D (1965). There is simply no persuasive reason why federal maritime law, premised as it is on recognition of traditional principles of reasonableness and fairness, should not also recognize its potential application to a proper set of facts just as so many other common law jurisdictions have. *11 Accordingly, we find that Carnival's arguments for wholesale rejection of the doctrine in maritime cases lack merit. (b) Effect of Negligence Maintenance Claim on Notice Requirement Plaintiff's next argument is that, even if res ipsa loquitur does not forego the notice requirement, the theory of negligent maintenance provides another possible exception. See Mabrey, 438 So. 2d at 937 (“[A]ctual or constructive knowledge is irrelevant in cases not involving transitory, foreign substances (i.e., the typical banana peel case), if ample evidence of negligent maintenance can be shown.” (citing 194th Street Hotel Corp., 383 So. 2d at 739). In response, Carnival contends that Plaintiff cannot defeat the notice requirement by alleging a negligent maintenance theory of liability and that the cases Plaintiff relies upon are completely inapposite. Carnival argues that the notice requirement is a bedrock tenet of maritime negligence actions and is, therefore, different from the state law cases that Plaintiff seemingly relies upon. See Everett v. Carnival Cruise Lines, 912 F.2d 1355, 1358 (11th Cir. 1990) (“The district court's view that Florida law controlled this issue, however, was incorrect. Because this is a maritime tort, federal admiralty law should control.”). Specifically, Carnival suggests that Plaintiff's reliance on Mabrey is misplaced because in that case the court determined that the defendant had notice of a dangerous condition because it posted a “Slippery When Wet” sign in the area. As such, Mabrey is supposedly inapposite because it involved a defect that was readily observable. We agree with Carnival that Plaintiff has failed to present any persuasive authority supporting the proposition that, by alleging a negligent maintenance theory, a per se exception arises to the notice requirement under federal maritime law. Unlike the doctrine of res ipsa loquitur, Plaintiff fails to cite a single case where a court has agreed with this position in a federal maritime cause of action. And all of Plaintiff's authorities involve circumstances where a defendant was obviously put on notice. Plaintiff also does not adequately explain why a negligent maintenance theory, as a practical matter, would alter the general rule under binding Eleventh Circuit precedent that requires a plaintiff to demonstrate actual or constructive notice when pursuing a federal maritime negligence action. Therefore, we find that Plaintiff's argument, as it relates to negligent maintenance, lacks the requisite support to obviate the notice requirement under federal maritime law. In sum, we hold that res ipsa may obviate the notice requirement in a federal maritime negligence action, but that merely alleging a negligent maintenance cause of action does not. 5. Whether Res Ipsa Loquitur May be Invoked in This Case To determine whether res ipsa loquitur applies to the facts of this case, the Supreme Court in Johnson v. United States, 333 U.S. 46, 68 (1948) formulated a three part test: (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. See Johnson, 333 U.S. at 68. If a plaintiff can meet all three elements, the jury may receive a res ipsa jury instruction because “[r]es ipsa loquitur may supply an inference from which the jury may conclude the defendant was negligent,” and “[w]hile such an inference of negligence can get the plaintiff to the jury, application of res ipsa loquitur simply permits, but ordinarily does not compel, the inference of negligence on the part of the defendant.” Fruge v. Penrod Drilling Co., 918 F.2d 1163, 1167 (5th Cir. 1990); see also Grajales-Romero v. Am. Airlines, Inc., 194 F.3d 288, 296 n.8 (1st Cir. 1999) (“[T]he res ipsa loquiturinstruction should be given if the three conditions of res ipsa loquitur are satisfied”); Millan, 212 F. Supp. 3d at 1306(finding that plaintiff met the three res ipsa elements and reserving “any decision on whether a res ispa loquiturinstruction will be appropriate until later in this case.”); Lobegeiger v. Celebrity Cruises, Inc., 2011 WL 3703329 (S.D. Fla. Aug. 23, 2011) (“The jury may receive a res ipsa loquitur instruction if the plaintiff establishes” the three required elements). And when the question is put before a jury, “the burden of proof remains on the plaintiff to convince the jury to accept the inference of negligence.” Fruge, 918 F.2d at 1167. Whether a case is fit for the application of res ipa is a question of law whereas it is the jury's function to weigh any conflicting evidence and ultimately choose whether a plaintiff's inference is to be preferred or not. *12 “The doctrine of res ipsa loquitur (Latin for ‘the thing speaks for itself’) had its origins in the 19th–century English case, Byrne v. Boadle, 159 Eng.Rep. 299 (1863), in which a barrel of flour rolled out of a warehouse window and fell upon a pedestrian beneath.” Taylor v. Riddell, 320 Ark. 394, 896 S.W.2d 891, 893 n.1 (1995). “[D]eveloped to assist in the proof of negligence where the cause is connected with an instrumentality in the exclusive control of a defendant,” the doctrine “allows the jury to infer negligence from the plaintiff's evidence of circumstances surrounding the occurrence.” Schubert v. Target Stores, Inc., 369 S.W.3d 717, 720 (2010). The doctrine “simply recognizes what we know from our everyday experience: that some accidents by their very nature would ordinarily not happen without negligence.” Dermatossian v. N.Y.C. Transit Auth., 67 N.Y.2d 219, 226 (1986) (citations omitted). Generally speaking, res ipsa is “an often confused and often misused doctrine,” because courts have sometimes inferred negligence “simply from the fact that an event happened.” St. Paul Fire & Marine Ins. Co. v. City of New York, 907 F.2d 299, 302 (2d Cir. 1990). Yet, the doctrine should only be applied in “rare instances,” and in situations where “common sense alone dictates that someone was negligent.” Whitted v. Gen. Motors Corp., 58 F.3d 1200, 1207 (7th Cir. 1995); see also Insurance Co. of the W. v. Island Dream Homes, Inc., 679 F.3d 1295, 1299 (11th Cir. 2012) (“Outside the relatively rare circumstances implicating the principle of res ipsa [loquitur], it is well-settled that the mere occurrence of a mishap does not prove that the mishap resulted from tortious conduct.”) (quoting Clark v. Polk County, 753 So. 2d 138, 143 (Fla. 2d DCA 2000) ); Family Thrift, Inc. v. Birthrong, 336 Ga. App. 601, 605, 785 S.E.2d 547 (2016) (“[T]he doctrine of res ipsa loquitur should always be applied with caution and only in extreme cases.”) (emphasis added) (quotation marks and citations omitted). The reason for the rare application of the res ipsa doctrine is because it often makes “the plaintiff's light burden nonexistent, and deprive[s] the jury of its traditional role of assigning fault in negligence actions and assigning weight to circumstantial evidence.” Estate of Larkins by Larkins v. Farrell Lines, Inc., 806 F.2d 510 (4th Cir. 1986); Otis Elevator Co. v. Chambliss, 511 So. 2d 412, 413 (Fla. 1st DCA 1987) (“The doctrine of res ipsa loquitur is a doctrine of ‘extremely limited applicability.’ ”) (quoting Goodyear Tire & Rubber Co. v. Hughes Supply, Inc., 358 So. 2d 1339 (Fla. 1978) ). And more importantly, courts have recognized that res ipsa “is commonly raised by plaintiffs to escape a nonsuit, or a dismissal of their cause since [if the doctrine applies] there is sufficient evidence to go to the jury.” Tillson, 2011 WL 309660, at *6. The parties in this case do not dispute the first element of the Johnson test. As such, our inquiry begins with the second element on whether Carnival or Plaintiff was in exclusive control of the chair in question.[9] (a) The Element of Legally Exclusive Control of the Chair *13 Plaintiff's strongest argument why Carnival remained in exclusive control of the chair follows from Carnival's concession that it has sole responsibility for the inspection, maintenance, repairs, and/or cleaning of the furniture to ensure safe conditions. Plaintiff adds that neither she nor her family members mishandled the chair prior to its use. On the other hand, Carnival contends that Plaintiff was undoubtedly in exclusive control because she had access to the chair at the time of the accident and in the 24 hours preceding it. “The element of exclusive control in the res ipsa analysis does not mean that the defendant's control of the instrumentality be ‘literally exclusive.’ ” Welch v. NCL (Bahamas) Ltd., 2016 WL 4921010, at *2 (S.D. Fla. Jan. 8, 2016) (citing Colmenares Vivas v. Sun All. Ins. Co., 807 F.2d 1102, 1105 (1st Cir. 1986) ). And it also does not mean that Carnival must have physical control because “it is enough that the defendant, and not a third party was ultimately responsible for the instrumentality.” Colmenares Vivas, 807 F.2d at 1106; see also Victorias Milling Co. v. Panama Canal Co., 272 F.2d 716, 726 (5th Cir. 1959) (“The use of the term exclusive control in many cases has been superseded by the phrase right of control, which means that the instrument causing the damage need not be in the physical control of the defendant, but rather may be within the management and power to control of the defendant.”) (citation omitted). Instead, it is established that a defendant “charged with a nondelegable duty of care to maintain an instrumentality in a safe condition effectively has exclusive control over it for the purposes of applying res ipsa loquitur.” Id. This means that exclusive control can be found even if a defendant shares responsibility with another, or “if [a] defendant is responsible for the instrumentality even though someone else had physical control over it.” Id. at 1106 (citing W. Keeton, D. Dobbs, R. Keeton & D. Owen, Prosser & Keeton on the Law of Torts § 39, at 250–51 (5th ed. 1984) (exclusive control requirement met in a variety of circumstances in which the defendant did not have sole responsibility or physical control over the injury-causing instrumentality); Otis Elevator Co. v. Yager, 268 F.2d 137, 143 (8th Cir. 1959) (property owner and not maintenance company had exclusive control over elevator); Restatement (Second) of Torts § 328D comment g (1965) (exclusive control requirement may be met even though responsibility was shared or someone else had physical control) ). The First Circuit's decision in Colmenares Vivas is instructive on this point. In that case, a married couple fell and were injured when an airport escalator handrail stopped moving.[10] When the coupled sued the airport operator, the trial court granted defendant a directed verdict on the ground that the case could not go to the jury on the theory of res ipsa because the element of exclusive control had not been established. The First Circuit held that because the airport owner had a duty to maintain safe escalators, it effectively had exclusive control over them even though it was plaintiff who was riding the escalator at the time of the injury. *14 Judge Scola's recent decision in Welch adheres to the same principle. In Welch, NCL was charged with the duty to maintain a pool ladder in a safe condition and the court found that defendant had exclusive control over it for the purpose of applying res ipsa loquitur. See Welch, 2016 WL 4921010, at *2. Specifically, Judge Scola determined that “NCL is charged with the duty to maintain the pool ladder in safe condition” and that “it ‘effectively has exclusive control over the [pool ladder] for the purposes of applying res ipsa loquitur.’ ” Welch, 2016 WL 4921010, at *2 (citing Colmenares Vivas, 807 F.2d at 1106). Based on the current state of the law as to this second element of the res ipsa doctrine, we agree with both decisions and find that it was Carnival that had exclusive control over the chair in question because both parties agree that it had sole responsibility for the inspection, maintenance, repairs, and cleaning of the cabin chair. See also Cardina v. Kash N' Karry Food Stores, Inc., 663 So. 2d 642, 643 (Fla. 2d DCA 1995) (“[t]he plaintiff's mere proximity to the instrumentality causing the injury does not negate the exclusivity of the defendant's control in the absence of any evidence that the plaintiff's conduct-or that of any other person-precipitated the accident.”); Terry v. Carnival Corp., 3 F. Supp. 3d 1363, 1373 (S.D. Fla. 2014) (“[T]he prior inspections, compliance and repairs do not show that Carnival was not in exclusive control at the time of the cruise.”). In short, Carnival has presented no argument that it could delegate those duties of maintenance and repair to anyone else. Accordingly, Plaintiff has met the second element for application of the res ipsa loquitur analysis. (b) A Collapsing Chair Does not Satisfy the Third Element As for the third res ipsa loquitur requirement, that the mishap be of a type that ordinarily does not occur in the absence of negligence, Plaintiff contends that the collapse of the cabin chair fits the requisite criteria. The chair allegedly came apart underneath Plaintiff during the normal use of the chair and Plaintiff states that nobody ever attempted to use the chair before she did at the time it collapsed. Because Carnival purportedly offers nothing to show that the negligence could have been caused from some other person, or entity, Plaintiff believes that only Carnival can be held responsible for an accident that would not have occurred absent negligence. Yet, we find that Plaintiff has, as a matter of law, failed to meet her burden of satisfying this final element of the Johnson test. See, e.g., Ashland v. Ling-Temco-Vought, Inc., 711 F.2d 1431, 1441 (9th Cir. 1983) (“[W]e want to make clear that the burden is on and remains with plaintiffs to establish each of the res ipsa elements.”). Res ipsa loquitur presupposes that an accident would not have happened but for the negligence of the defendant and will generally only apply in unusual circumstances where “the accident leave[s] no room for a presumption other than negligence on the part of the defendant. Therefore, it should not be invoked in the face of a competing reasonable inference that the accident was due to a cause other than defendant's negligence.” Louisiana & A. R. Co., 380 F.2d at 544 (emphasis added) (citations omitted). As the Tenth Circuit has explained, an inference of res ipsa loquiturmust fail when an injury may be attributed to another cause with equal fairness: If there is any other cause apparent to which the injury may with equal fairness be attributed, the reason for a res ipsa loquitur inference fails, and the rule should not be invoked. The mere happening of an accident does not dispense with the requirement that the injured party must make some showing that the defendant against whom relief is sought was in some manner negligent, where there are other probable causes of the injury. *15 Trigg v. City & Cty. of Denver, 784 F.2d 1058, 1061 (10th Cir. 1986); see also Estate of Larkins by Larkins, 806 F.2d 510 (4th Cir. 1986) (“Where varying explanations are equally probable, res ipsa loquitur cannot apply.”) (citing W. Prosser and W. Keeton, Law of Torts, 248-49, 257-58). Here, we cannot say that a collapse of a cabin chair onboard this cruise ship meets the standard of “letting the thing speak for itself.” The only conclusion to draw from the record is that the evidence presented does not tell the whole story of why the chair collapsed. It would therefore be speculation to suggest that only Carnival's negligence could have caused the chair to collapse. There are also plausible explanations for other causes of the chair collapse that had nothing to do with Carnival. For example, the facts are in dispute about whether Plaintiff, her family, or anyone else actually came into contact with the chair prior to the incident because Plaintiff occupied the cabin for more than 24 hours prior to the incident.[11]But on the other hand, a trier of fact could find those claims not credible and find instead that the primary cause of the chair collapse was misuse by a passenger or her family. Because a passenger like the Plaintiff undoubtedly had physical possession of the chair for a material period of time, this plausible explanation undermines the case for a res ipsa presumption against Carnival. Similarly, even assuming that neither Plaintiff nor anyone else in her party ever abused the chair, that assertion cannot automatically foreclose other reasonable scenarios where other individuals or passengers who used that room before the Plaintiff may have been responsible for the collapsing chair. The same chairs remain in each cabin voyage after voyage, meaning hundreds, if not thousands, of different passengers of all different sizes use the cabin chairs. This plausible scenario also undercuts the Plaintiff's theory. See Garner v. Halliburton Co., 474 F.2d 290, 297 (10th Cir. 1973) (finding that res ipsa does not apply in situations where the reason for the negligent conduct “might easily have been due to the act of a third party”); CSX Transp., Inc. v. Exxon/Mobil Oil Corp., 401 F. Supp. 2d 813, 821 (N.D. Ohio 2005) (“The doctrine ... does not apply if facts show a force beyond defendant's control may have caused the harm.”) (citing Cleveland R.R. Co. v. Sutherland, 115 Ohio St. 262, 265 (1926) ); Harris v. Nat'l Passenger R.R. Corp., 79 F. Supp. 2d 673, 679 (E.D. Tex. 1999), aff'd, 234 F.3d 707 (5th Cir. 2000) (finding that “plaintiff cannot reduce the likelihood of other causes leaving only the defendant's negligence. The fact that [a] door could be opened by anyone, leaves open the significant possibilities of the plaintiff's own negligence or a third-party's negligence as a cause for the accident.”). *16 While Plaintiff “need not eliminate all other possible causes,” of the reason for the collapsed chair, the Restatement (Second) of Torts establishes that a plaintiff “must demonstrate the absence of equally probable alternative causes for the injury”: It is ... necessary to make the negligence point to the defendant. On this ... the plaintiff has the burden of proof by a preponderance of the evidence; and in any case where there is no doubt that it is at least equally probable that the negligence was that of a third person, the court must direct the jury that the plaintiff has not proved his case. Trigg, 784 F.2d at 1060–61 (quoting Restatement (Second) of Torts § 328D comment f (1965) ). Plaintiff's argument here cannot satisfy this burden. Given the record presented, Plaintiff's claims do not warrant an inference of res ipsa loquitur because “[n]either common sense nor anything in the record compels the conclusion that only poor maintenance or careless inspection will lead to a chair's breaking. It is quite plausible that the defect which caused the collapse developed slowly and was not detectable from normal inspection.” Giacomelli, 1991 WL 229957, at *2. It is equally possible that Plaintiff, guests, visitors, or third parties beforehand mishandled the chair in such a way that Carnival could not detect that the chair was defective. These are merely some out of the many competing inferences that can be drawn given the facts of this case. Thus, the res ipsa doctrine cannot apply “to a case having a divided responsibility where an unexplained accident may have been attributable to one of several causes, for some of which the defendant is not responsible.” Brown v. Guzman, 1965 WL 168019, at *2 (V.I. Mun. Aug. 10, 1965) (citation and quotation marks omitted). Moreover, the facts presented simply do not rise to the level of an unusual event – often necessary for the doctrine to apply – that gives rise to an inference that Carnival must have been negligent. The Latin phrase of res ipsa, “the thing speaks for itself,” means that a plaintiff's injury and the events surrounding it can by themselves show negligence. Examples of cases where res ipsa has been applied are noticeably distinguishable from the facts of this case, such as the derailment of a railway car, or a piano falling off a building. See, e.g., Newell v. Westinghouse Elec. Corp., 36 F.3d 576, 579 (7th Cir. 1994) (“The rule relieves a plaintiff who, for example, opens a new tin of chewing tobacco and finds inside a human toe, from having to show exactly what act was responsible for the toe's inclusion in his tobacco.”) (citing Pillars v. R.J. Reynolds Tobacco Co., 117 Miss. 490, 78 So. 365 (1918) ); Hubschman v. Antilles Airboats, 440 F. Supp. 828 (D.V.I. 1977) (seaplane engines dying midflight); T. Slack, Pfiffner v. Correa: Determining the Necessity of Expert Testimony in A Medical Malpractice Claim, 41 Loy. L. Rev. 365, 374 (1995) (“Specific examples deal with a physician fracturing a leg during an examination, dropping a knife, scalpel, or acid on a patient, or leaving a sponge in a patient's body.”) (citations omitted). The aforementioned circumstances are not ordinarily subject to reasonable dispute because it is generally understood that these sorts if incidents cannot occur absent negligence. *17 We find that the recent decision in Aubain v. Kazi Foods of the V.I., Inc., 2016 WL 4490614, at *1 (V.I. Super. Aug. 23, 2016), is persuasive. The defendant in Aubain operated a business (a Pizza Hut) where plaintiff alleged he was injured when he sat on a bench and it collapsed underneath him on account of a loose wooden peg. The plaintiff claimed that he injured his chin, back, and hip in the fall, and defendant moved for summary judgment. Because plaintiff could not meet all the elements of a traditional negligence claim, plaintiff attempted to defeat defendant's motion for summary judgment by claiming that the accident was of a kind that did not occur in the absence of negligence. But the court granted summary judgment in favor of the defendant because “with the possible exception of ‘slip-and-fall’ cases, it is hard to get less extraordinary than a ‘sit-and-fall’ case” because “many in the community would say that even well-maintained furniture breaks and even recently-inspected pegs come loose.” Id. at *7 (emphasis added). The court explained that this case was “just one of the ‘many types of accidents which occur without the fault of anyone.’ ” Id. (citing Restatement (Second) of Torts § 328D comment c). Accordingly, the court held that the “balance of probabilities of what caused [plaintiff's] accident would certainly ‘be reasonably questioned or disputed,’ ” and that plaintiff could not “apply res ipsa loquitur to halt the entry of summary judgment,” in favor of the defendant. Id. The court noted in particular that, although advisory, the comments to the Restatement (Second) of Torts noticeably do “not include broken benches, broken chairs, or any equivalent accidents as examples of the types of events that do not ordinarily occur unless someone has been negligent.” Id. at *7 n.14 (emphasis added). We agree. Specifically, the Restatement states that far more unusual circumstances such as gas explosions, or train derailments apply to the doctrine of res ipsa: [T]here are many events, such as those of objects falling from the defendant's premises, the fall of an elevator, the escape of gas or water from mains or of electricity from wires or appliances, the derailment of trains or the explosion of boilers, where the conclusion is at least permissible that such things do not usually happen unless someone has been negligent. To such events res ipsa loquitur may apply. Restatement (Second) of Torts § 328D comment c (emphasis added). While the Restatement is not binding authority, it is influential because (1) courts have continually relied upon it in a variety of contexts, and (2) federal maritime law is drawn from state and federal sources, including bodies of maritime tort principles. We acknowledge that, based upon our own independent research, there is a split of authority on whether a collapsing chair can meet all three elements of res ipsa. In many decisions since the 1980s, courts have found that collapsing chairs often fail to meet the doctrine because of the many possible explanations for why a chair might collapse. See, e.g., Family Thrift, Inc., 336 Ga. App. at 605 (holding that res ipsa was inapplicable to a collapsing chair at a store's dressing room because “[c]ertainly, through normal wear and tear, a chair—especially a used chair donated to a thrift store—can cease fulfilling its intended function and create a hazardous condition without negligence on the part of any individual.”) (citing Watts & Colwell Builders, Inc. v. Martin, 313 Ga. App. 1, 6, 720 S.E.2d 329 (2011) (holding that res ipsa loquitur was not applicable to find defendant liable for injury caused when the door to a bathroom stall fell off its hinges and knocked plaintiff to the ground because the failure of a hinge could have occurred in the absence of negligence); Ballard v. S. Reg'l Med. Ctr., Inc., 216 Ga. App. 96, 99, 453 S.E.2d 123 (1995) (holding that res ipsa loquitur was not applicable to find defendant liable when a handrail pulled out from the wall because the accident was not of the type that ordinarily occurs only because of someone's negligence) ); Piligian v. United States, 642 F. Supp. 193, 197 (D. Mass. 1986) (“[T]he Court rules that res ipsa loquitur does not permit an inference of negligence in this case because the Court is not persuaded that the chair would ordinarily collapse only if the United States had been negligent.”); Kilgore v. Shepard Co., 52 R.I. 151, 158 A. 720, 721 (1932)(finding that the doctrine of res ipsa loquitur has no application to a door and that “a chair should be placed in the same category.”); see also Bonilla v. Univ. of Montana, 116 P.3d 823, 827 (Mont. 2005) (holding that the fact that a chair collapses “is insufficient evidence, by itself, to satisfy the Restatement's requirement under subsection 1(b) that other responsible causes must be ‘sufficiently eliminated.’ ”). *18 On the other hand, some courts – primarily in older cases – have reached the opposite conclusion for a myriad of reasons. See, e.g., Gresham v. Stouffer Corp., 144 Ga. App. 553, 553, 241 S.E.2d 451 (1978) (holding that in the case of a restaurant chair, “a jury would be authorized to infer negligence from the evidence that the chair collapsed during ordinary use by the plaintiff.”) (citing Raffa v. Central School Dist., 227 N.Y.S.2d 723 (1962); Tuso v. Markey, 61 N.M. 77, 80, 294 P.2d 1102 (1956) (holding that a plaintiff's “general allegations of negligence, accompanied by an allegation and proof that the instrumentality causing the accident was under the exclusive control of appellees, warranted [the] application” of res ipsa ) (citations omitted); Van Staveren v. F.W. Woolworth Co., 29 N.J. Super. 197, 102 A.2d 59, 62 (N.J. Super. Ct. App. Div. 1954) (holding that the motion for a judgment in favor of the defendant was properly denied because the collapsing “stools had been installed at the counter in 1948 and since then had been in constant use,” and “[i]t was acknowledged by the representative of the defendant that no inspection whatever had been made of the brackets, bolts, or adjustments beneath the seats of the stools during the period from 1948 until the occurrence of the mishap in 1951.”); Rose v. Melody Lane of Wilshire, 39 Cal. 2d 481, 247 P.2d 335, 338 (1952) (“Seats designed for use by patrons of commercial establishments do not ordinarily collapse without negligence in their construction, maintenance, or use.”) (citations omitted) ). While none of the aforementioned cases are necessarily controlling, they demonstrate that the application of res ipsa has continually evolved since its inception and that jurisdictions have varied considerably in their interpretations. See Holmes v. Bright Beginnings CDC, 2017 WL 421642, at *4 (C.D. Cal. Jan. 30, 2017) (“As later courts repeated the phrase, it evolved into the name of a rule for determining whether circumstantial evidence of negligence is sufficient,” and therefore “[t]he procedural and evidentiary consequences that follow from the conclusion that an accident ‘speaks for itself’ vary from jurisdiction to jurisdiction.”). Since the first res ipsa case, where a barrel of flour rolled out of a warehouse window and fell on a pedestrian, courts have both broadened and restricted the doctrine's application at various points in time. See, e.g., United States v. Kesinger, 190 F.2d 529, 532 (10th Cir. 1951) (“The modern trend of authority is to hold the rule of res ipsa loquitur applicable to airplane accidents, and we hold that it was applicable under the facts and circumstances presented in the instant case.”) (footnote omitted). As an example, the meaning of exclusive control would have already foreclosed the application of res ipsa in this case because this element was far more restrictive in the earlier twentieth century. Yet “the modern trend has been toward a more relaxed analysis of ‘exclusivity,’ one asking whether the defendant, as opposed to a third party, is likely, by virtue of a close (though perhaps not truly exclusive) relationship to the accident, to have relatively superior knowledge regarding the accident's cause.” Williams v. KFC Nat. Mgmt. Co., 391 F.3d 411, 427 n.9 (2d Cir. 2004). Florida state courts, for instance, have “expanded the doctrine far beyond its intended perimeters, both by liberalizing the elements requisite to its application and by allowing the development of inferences not only as to the incident itself but also as to pre-incident acts, such as manufacture or production.” Chambliss, 511 So. 2d at 413–14; see also M. Johnson, Note, Rolling the “Barrel” a Little Further, 38 Wm. & Mary L.Rev. 1197, 1202–04 (1997)(describing the various American approaches to the doctrine of res ipsa loquitur ). After an exhaustive review of collapsing chair cases in both state and federal courts in the last one hundred years, we find that the modern trend reflects the view that “[w]hile it may be assumed ... that a chair does not ordinarily collapse except for the negligence of someone, it does not necessarily follow that the collapse of a chair ... must imply the negligence of the proprietor.” Rose v. McMahon, 10 Mich. App. 104, 107, 158 N.W.2d 791 (1968). As support for this view, we find that there are generally three types of cases where plaintiffs invoke the res ipsadoctrine. The first is where there is sufficient evidence that a defendant caused plaintiff's injury. This is basically the type of situation in the 1863 case involving the falling barrel of flour. This is generally the easiest case to present to a jury because there are few to no competing inferences as to the cause of an accident; the only question presented is whether a specific defendant was actually negligent or not. See, e.g., State of Cal. By & Through Dep't of Fish & Game v. S.S. Bournemouth, 318 F. Supp. 839 (C.D. Cal. 1970) (“Factually, this case presents an appropriate situation for the application of res ipsa loquitur. All of the traditional elements are present ... it is clear that an oil spill of this size could occur only in an extremely limited number of ways - primarily as the result of pumping the bilges or an internal fuel oil transfer.”). *19 The second type of case is where there is evidence that a plaintiff was injured on account of negligence, but there is an open question as to whether the defendant or someone else was at fault. See, e.g., Ybarra v. Spangard,25 Cal. 2d 486, 154 P.2d 687 (1944). And the third scenario involves the question of whether it was defendant's negligence, rather than some other non-negligent act, or the action of a third party (including the plaintiff) that caused the injury. As one might expect, the third scenario, which is the case here, is the toughest to present to a jury because the inference that negligence occurred at all cannot be easily drawn. And even if negligence can be established, there remains an open question of who was the cause of that negligence. The facts in our case squarely fit the third scenario. Hence, the authority in for these types of cases is much more uniform since the 1980s, whether the item in question was a chair or not. As an example, in a 1987 decision – Otis Elevator v. Chambliss – a Florida state appellate court reversed the trial court and held that an injured customer could not rely upon res ipsa where the customer failed to carry his burden of showing that an escalator's stopping was due to negligence. See Chambliss, 511 So. 2d at 413. The appellate court ruled that res ipsa could not apply even though Florida courts have liberalized the doctrine far beyond its intended perimeters. More specifically, the court found that res ipsa is only applicable where negligence is the probable cause of the accident in question and where the defendant is the probable actor. Because plaintiffs in Chambliss relied solely on the fact that the escalator stopped, they failed to meet “their initial burden of showing by appropriate evidence that negligence was the probable cause for the escalator's stopping.” Id. Although Chambliss is admittedly not a collapsing chair case, it remains persuasive because it stands for the principle that, in modern res ipsa cases involving the third scenario explained above, a plaintiff cannot merely rely on the fact that an accident occurred to apply the doctrine and defeat summary judgment. See, e.g., De Zayas v. Bellsouth Telecommunications, Inc., 841 F. Supp. 2d 1257, 1261–62 (S.D. Fla. 2012) (“Plaintiffs have failed to present sufficient evidence of these elements to survive summary judgment ... Plaintiffs have failed to create a genuine dispute of fact as to whether there was an ‘event’ which caused ‘an injury’—i.e., that any hazardous amount of pentachlorophenol was found in their water or on their property, or that there was an ‘instrumentality’ that ‘caused’ any injury.”). Chambliss is also convincing because it involves an escalator, which courts have historically found to apply in the res ipsa context. Thus, Chambliss demonstrates that it is not necessarily the item (i.e. a chair or escalator) that automatically triggers the application of the res ipsa doctrine; it is the specific facts of each case and the evidence presented that must be carefully examined. This means that, while an item in one case may meet all the elements of res ipsa, another case involving the same item may not. An equally persuasive case is a Georgia appellate court decision from 1995, where a plaintiff was injured as a result of a handrail being pulled out from a wall at a medical center. See Ballard, 216 Ga. App. At 96. The trial court granted summary judgment in favor of the defendant and the appellate court affirmed. The appellate court found that plaintiff could not rely on the doctrine of res ipsa because “it is not applicable when there is an intermediary cause which produced or could produce the injury, or where there is direct unambiguous testimony as to the absence of negligence by the defendant, or where there is no fair inference that the defendant was negligent.” Id. at 99 (emphasis in original) (citations and quotation marks omitted). Specifically, the court stated that “[a]lthough the devices that failed here (the screws and brackets holding the handrail to the wall or the wall itself) are by no means as complicated as an escalator, they too can cease fulfilling their intended function and create a dangerous condition without someone's negligence.” Id. (citations omitted). As such, the trial court properly granted defendant's motion for summary judgment because the elements of res ipsa could not be established given that this type of accident under the facts presented could have occurred for a variety of reasons. *20 Another analogous, but older, case to the facts presented is the decision in Evansville Am. Legion Home Ass'n v. White, 154 N.E.2d 109, 111 (Ind. 1958) overruled on other grounds by McGlothlin v. M & U Trucking, Inc., 688 N.E.2d 1243 (Ind. 1997). In Evansville, a plaintiff attended a bingo game on the evening of the accident. After entering the bingo hall, she sat on a chair and it immediately collapsed. Plaintiff argued that res ipsa applied because an inference of negligence arose from the mere fact that a chair collapsed. Yet, the Indiana Supreme Court found that res ipsa could not apply because there was (1) no evidence of negligence, (2) no showing that the defendant had any prior knowledge of the defective chair, and (3) no suggestion that defendant had cause to suspect that the chair was defective. As such, there was no evidence that negligence proximately caused the injury more so than any other explanation for the chair's collapse. The court noted that “thousands of people had used the chairs, including the one in question during a period of some seven years without a single incident where one had collapsed while at the hall.” Evansville Am. Legion Home Ass'n, 154 N.E.2d at 111. Accordingly, the Indiana Supreme Court found that res ipsa could not apply. Every res ipsa case that we have reviewed since the 1980s that involves the third scenario – i.e. the situation of where it is unclear as to whether negligence occurred at all or if a third party (including the plaintiff) may be at fault – supports Carnival's contention that the doctrine cannot apply in this action. See, e.g., Loiacono v. Stuyvesant Bagels, Inc., 814 N.Y.S.2d 695, 696 (2006) (affirming the trial court's order granting the defendants' motion for summary judgment because the doctrine of res ipsa was inapplicable in a collapsing chair case because many customers sat on a chair before the injured plaintiff); Harper v. Advantage Gaming Co., 880 So. 2d 948, 953 (La. Ct. App. 2004) (“[P]laintiff has not demonstrated factual circumstances which would show that the only reasonable conclusion is that defendants' breach of duty caused the accident. The testimony of the restaurant manager that the employees regularly checked the condition of the furniture during their daily cleaning and that other patrons had used the stools without any complaint that they were broken or unsteady does not support an inference that defendants were negligent.”). Given this record, the inconclusive evidence presented as to why the chair collapsed, and the fact that res ipsa is a “doctrine of extremely limited applicability,” we cannot conclude that only Carnival's negligence could have resulted in the collapse of the cabin chair or that Carnival's alleged negligence is more probable than all other competing inferences. See Monforti v. K-Mart, Inc., 690 So. 2d 631, 633 (Fla. 5th DCA 1997). Accordingly, Plaintiff has failed to meet her burden in demonstrating that a res ipsa inference can be applied to the facts of this case because the thrust of her argument is merely that a chair collapsed and that she was injured. SeeUgaz v. Am. Airlines, Inc., 576 F. Supp. 2d 1354, 1369 (S.D. Fla. 2008) (finding no inference of negligence as a matter of law because the plaintiff had “shown nothing more than that [she] had been injured on the escalator,” and “based on this fact alone it would not be likely that someone other than the [plaintiff] had been negligent.”) (citations omitted). Without any other evidence, we do not have any way of inferring that (1) the reason for the chair's collapse was because of negligence, or (2) that Carnival was the probable actor of that negligence. In other words, there are many reasons as to why the cabin chair in this case could have collapsed, including (1) Carnival's negligence, (2) a non-negligent reason (i.e. wear and tear or a latent defect), (3) Plaintiff, (4) Plaintiff's guests or family members, or (5) the hundreds, if not, thousands of people that have occupied that room. In short, if we adopted Plaintiff's position, the res ipsa loquitur doctrine, which should be applied only in the rarest of cases, would be a frequently used tool to bypass summary judgment in cases where no prior actual or constructive notice was established. This cannot be the law, especially in this circuit.[12] *21 Because Plaintiff cannot rely on the doctrine of res ipsa in this case, we are left with a case where actual or constructive notice has not been established, where we cannot merely presume that Carnival was negligent, and where the record does not allow for a jury to find in Plaintiff's favor. Consequently, we have no option but to grant Defendant's motion for summary judgment on Plaintiff's negligence claim. We, therefore, recommend that the motion be GRANTED. B. Plaintiff's Motion for Summary Judgment [D.E. 39] Plaintiff's first argument in her cross-motion is that she is entitled to summary judgment on Carnival's first affirmative defense, which alleges that “the negligence, actions, and/or misaction of the Plaintiff was the sole and proximate cause of any and all injuries and damages.” [D.E. 5]. Plaintiff contends that Carnival can produce no record evidence that would allow a jury to find in its favor with respect to comparative fault. Therefore, Plaintiff suggests that summary judgment must be entered in her favor in connection with Carnival's first affirmative defense. Carnival's only response is that it withdraws its first affirmative defense regarding the comparative negligence of Plaintiff. Therefore, partial summary judgment on this issue should be MOOT. Next, Plaintiff advances the same arguments discussed above in that res ipsa loquitur applies to this case because (1) Carnival had exclusive control of the chair at the time of the incident and, that (2) the chair would not have broken absent negligence on behalf of Carnival. However, we have already discussed this issue above and find that Plaintiff simply repeats the same arguments presented in her opposition to Defendant's motion. We find that Plaintiff has failed (1) to meet all of the elements of res ipsa loquitur and (2) to demonstrate that Carnival had actual or constructive notice of the cabin chair. Because Plaintiff has failed to establish all the elements of her negligence claim, Plaintiff's motion, on this basis, should be DENIED. Plaintiff's final argument is that spoliation sanctions should be imposed because Carnival failed to preserve the cabin chair and that the failure to do so defeats Carnival's primary argument that it lacked actual or constructive notice. As a general rule, Carnival's disposal of the cabin chair may warrant sanctions in the form of either (1) dismissing the case altogether, (2) excluding expert testimony, or (3) instructing the jury that spoliation of evidence raises a presumption against Carnival. See Flury v. Daimler Chrysler Corp., 427 F.3d 939, 945 (11th Cir. 2005). Plaintiff contends that Carnival's disposal of the chair constitutes spoliation because Carnival knew or should have known that the chair caused injuries to Plaintiff and that Carnival removed the chair in bad faith. Specifically, Plaintiff states that after the accident, she and her husband called guest services and sought medical attention on the ship after the incident occurred. Thereafter, Plaintiff claims that Carnival committed an affirmative act by removing the chair in full view of Plaintiff who lay injured on the floor.[13] Plaintiff suggests that the undisputable fact remains that the cruise line took the broken chair and disposed of it under circumstances where it knew or should have known that Plaintiff was injured as a result of the chair's collapse. Plaintiff's husband then reported the incident through a passenger injury statement, which was completed approximately 30 minutes after the incident occurred. As such, Plaintiff believes that Carnival cannot explain away its disposal of the cabin chair as mere negligence because Carnival engaged in an affirmative act and Plaintiff alleges that Carnival should have known that the chair would be crucial evidence in determining how the chair came apart, including the nature of the defect.[14] *22 “ ‘Spoliation' is the intentional destruction, mutilation, alteration, or concealment of evidence.’ ” Walter v. Carnival Corp., 2010 WL 2927962, at *2 (S.D. Fla. July 23, 2010) (citing St. Cyr v. Flying J Inc., 2007 WL 1716365 at *3 (M.D. Fla. June 12, 2007) ). To establish spoliation, Plaintiff must prove (1) that the missing evidence existed at one time, (2) that Carnival had a duty[15] to preserve the chair as evidence, and (3) that the evidence was crucial to Plaintiff being able to prove its prima facie case. See Floeter v. City of Orlando, 2007 WL 486633, at *5 (M.D. Fla. Feb. 9, 2007). “However, a party's failure to preserve evidence rises to the level of sanctionable spoliation ‘only when the absence of that evidence is predicated on bad faith,” such as where a party purposely loses or destroys relevant evidence.’ ” Walter, 2010 WL 2927962, at *2 (citing Bashir v. Amtrak, 119 F.3d 929, 931 (11th Cir. 1997) (emphasis added) ). And “[m]ere negligence” in losing or destroying records is not enough for an adverse inference, as “it does not sustain an inference of consciousness of a weak case.” Vick v. Texas Employment Comm'n, 514 F.2d 734, 737 (5th Cir. 1975). In fact, even gross negligence is insufficient to make a finding of bad faith. See, e.g., Wandner v. Am. Airlines, 79 F. Supp. 3d 1285, 1298 (S.D. Fla. 2015) (“Given this Circuit's requirement that an adverse inference flowing from spoliation requires the presence of bad faith, even grossly negligent discovery conduct does not justify that type of jury instruction.”); Selectica, Inc. v. Novatus, Inc., 2015 WL 1125051, at *3 (M.D. Fla. Mar. 12, 2015)(finding that gross negligence will not support the imposition of spoliation sanctions). “If direct evidence of bad faith is unavailable, bad faith may be founded on circumstantial evidence when the following criteria are met: (1) evidence once existed that could fairly be supposed to have been material to the proof or defense of a claim at issue in the case; (2) the spoliating party engaged in an affirmative act causing the evidence to be lost; (3) the spoliating party did so while it knew or should have known of its duty to preserve the evidence; and (4) the affirmative act causing the loss cannot be credibly explained as not involving bad faith by the reason proffered by the spoliator.” Walter, 2010 WL 2927962, at *2 (quoting Calixto v. Watson Bowman Acme Corp., 2009 WL 3823390, at *16 (S.D. Fla. Nov. 16, 2009) ). One possible flaw in Plaintiff's argument is that the evidence suggests that Carnival may not have reasonably anticipated litigation. “Once a party reasonably anticipates litigation, it is obligated to suspend its routine document retention/destruction policy and implement a ‘litigation hold’ to ensure the preservation of relevant documents.” Goodman v. Praxair Services, Inc., 632 F. Supp. 2d 494, 511 (D. Md. 2009) (quoting Thompson v. U.S. Dept. of Housing & Urban Development, 219 F.R.D. 93, 100 (D. Md. 2003) ); U.S. ex rel. King v. DSE, Inc., 2013 WL 610531, at * 7 (M.D. Fla. Jan. 17, 2013) Report and Recommendation adopted, 2013 WL 608541 (M.D. Fla. Jan. 15, 2014)(When party becomes aware of claims or defenses it has an obligation to conscientiously preserve all evidence that is relevant to those claims and defenses that is in existence when the duty to preserve attaches.). Plaintiff appears to assume that because she called guest services and went to the medical center to complete a passenger injury statement that Carnival should have reasonably anticipated litigation. The passenger injury statement in this case is a one-page document that states, among other things, the date, time, room number, the witnesses of the accident, and what Plaintiff was doing at the time of the accident. After reviewing the passenger injury statement, it is noticeably short on details. The statement provides that Plaintiff called guest services and went to the medical center at 8pm. In answering the question of whether she was hurt, she states that the “[c]hair broke while sitting in it,” and that her “arm landed on [the] shelf.” [D.E. 44-8]. She also claims that she and her husband witnessed the incident and that she was drying her hair at the time of the accident. In response to what happened in detail, she states again that she was drying her hair when the chair leg broke and that she landed on her right arm with all her weight. Other than the miscellaneous details discussed above, the only other material statement on the form is that the accident occurred in her room and that a new chair would have avoided the accident. *23 “ ‘The obligation to preserve evidence arises when the party has notice that the evidence is relevant to litigation or when a party should have known that the evidence may be relevant to future litigation.’ ” Zubulake v. UBS Warburg LLC, 220 F.R.D. 212, 216 (S.D.N.Y. 2003). “This notice may come at hands of differing events, but mostly commonly, a party is deemed to have notice of pending litigation if the party has received a discovery request, a complaint has been filed, or any time a party receives notification that litigation is likely to be commenced.” Oxford House, Inc. v. City of Topeka, Kansas, 2007 WL 1246200, at *3 (D. Kan. Apr. 27, 2007). In other words, “[a] party has the requisite notice when it can reasonably anticipate impending litigation—that is, litigation that has ‘more than a possibility’ of occurring—to which the evidence would be relevant.” Garcia v. United States, 2014 WL 12709430, at *1 (C.D. Cal. Sept. 3, 2014) (quoting Realnetworks, Inc. v. DVD Copy Control Ass'n, Inc., 264 F.R.D. 517, 523–24 (N.D. Cal. 2009) ). This means that “[a] general concern over litigation does not trigger a duty to preserve evidence,” because there is “no duty to preserve relevant documents or evidence until a potential claim [is] identified or future litigation [is] probable.” Realnetworks, Inc., 264 F.R.D. at 526. Here, there does not appear to be any concrete evidence that future litigation was probable or that litigation was looming against Carnival. While “litigation often ensues when persons are injured in commercial premises such as those operated by the defendant,” “that alone is not sufficient to transform [a] document from one prepared in the ordinary course of the defendant's business to one prepared in anticipation of litigation.” Danza v. Costco Wholesale Corp., 2012 WL 832289, at *2 (E.D.N.Y. Mar. 12, 2012). If Plaintiff had given Carnival sufficient notice of impending litigation, then that would have obviously created a duty for Carnival to preserve the broken chair. Carnival's arguments are persuasive for several reasons. First, the medical staff determined that a reportable accident was not required in this case and that security need not be contacted.[16] Second, Plaintiff never states that she disagreed with a medical diagnosis, or that she spoke to security – or Carnival's management – herself to notify Carnival that she sought to classify the accident as a reportable offense. Third, there is no evidence that Plaintiff requested that the broken chair be preserved as an indicator that she planned to file suit. Fourth, Plaintiff's passenger injury statement was not a formal accident report. And fifth, Plaintiff's passenger injury statement is short on details and only establishes that (1) Plaintiff was drying her hair, (2) the chair broke, and (3) Plaintiff landed on her arm. And even if we assumed that Plaintiff had filed a formal accident report in this case, it is possible that Plaintiff has not met her burden of establishing that it was “ ‘prepared exclusively and in specific response to imminent litigation’ as opposed to in the normal course of business.” Vessalico v. Costco Wholesale Warehouse, 2016 WL 3892403, at *2 (E.D.N.Y. July 14, 2016) (holding that accident reports are discoverable if there is nothing to suggest that it is prepared exclusively in anticipation of litigation); see also Willis v. Westin Hotel Co., 1987 WL 6155, at *1 (S.D.N.Y. Jan. 30, 1987) (“[M]aterial prepared by non-attorneys in anticipation of litigation, such as accident reports and other investigative reports, is immune from discovery only where the material is prepared exclusively and in specific response to imminent litigation. The mere contingency that litigation may result does not give rise to the privilege.”). Of course, courts have also held that accident reports may be privileged where there is sufficient evidence, that upon the advice of legal counsel, the report was created in anticipation of litigation. See, e.g., Eisenberg v. Carnival Corp., 2008 WL 2946029, at *3 (S.D. Fla. July 7, 2008) (“[T]he accident report form utilized by Carnival was drafted by counsel for Carnival Cruise Lines and every completed accident report and photographs taken at the time of the accident are provided to counsel for Carnival following an accident. Based upon this sworn evidence, the Court finds that at least one of the principle purposes for generating these reports is the preparation of Carnival's defense to litigation if it ensues. That is sufficient to trigger qualified work product production.”) (citation omitted); Carnival Corp., 238 F.R.D. 318, 319 (S.D. Fla. 2006) (holding that a defendant cruise line's accident report regarding a slip and fall was not discoverable where the cruise line submitted an affidavit from its guest claims manager stating that it was the policy of the cruise line, upon the advice of its legal counsel, to investigate passenger injuries and create the accident report in anticipation of litigation); Iaquinto v. Carnival Corp., Case No. 05-21652-CIV-JORDAN (DE 18) (S.D. Fla. Nov. 18, 2005) (same); Hickman v. Carnival Corp., 04-20044-CIV-UNGARO (DE 34) (S.D. Fla. Aug. 16, 2004) (finding cruise line accident report privileged where affidavit showed that it was prepared on the advice of counsel to provide claims handling information in anticipation of litigation). *24 Yet, in this case, Plaintiff has not necessarily met her burden of establishing that the passenger injury statement was prepared in direct anticipation of litigation.[17] And the document, by itself, does not as a per se rule automatically trigger a duty that Carnival should have anticipated litigation. Rather, the facts suggest that Plaintiff merely completed a form that was short on details, was not a formal accident report, and “appears to be a standard form that is completed in the ordinary course of business whenever an accident occurs on Defendant's property.” Vessalico, 2016 WL 3892403, at *2. Plaintiff appears to propose a rule where any routine passenger injury statement (let alone one that is scarce on details) puts a cruise ship on notice that litigation may ensue, even in circumstances where parties have not met any burden to support that position. As a consequence of that view, it would require commercial operators, like Carnival, to preserve almost anything in question where a passenger was injured or became ill. See, e.g., McIntosh v. United States, 2016 WL 1274585, at *34 (S.D.N.Y. Mar. 31, 2016) (“[T]o hold otherwise would essentially lay down a rule that prison officials should anticipate litigation whenever an inmate makes a complaint about any condition of his confinement.”) (citation and quotation marks omitted). Morever, assuming that Plaintiff had established all of the elements (including bad faith) of spoliation, it does not necessarily follow that an adverse inference against Carnival for the destruction of the cabin chair would establish that Carnival had actual or constructive notice. Stated differently, if we assume that the cabin chair was still in the possession of Carnival, it is not clear how we could determine that Carnival had notice. The most likely inference to draw from a collapsing chair is causation or damages in that the chair caused Plaintiff to fall and resulted in injuries to her arm. Plaintiff does not address this point in her papers, nor does she explain how an adverse inference can be drawn in this case (assuming that spoliation exists) to remedy her negligence claim. Plaintiff only states that Carnival's spoliation of the cabin chair gives rise to a presumption of negligence, which defeats Carnival's lack of notice argument. But, Plaintiff does not point to any case where a court has made an adverse inference to defeat the notice requirement in a negligence action, or, for that matter, any case where an inference is drawn where it is materially disconnected from the alleged spoliation. This is one of many reasons as to why we cannot adjudicate Plaintiff's motion at this time.[18] “Many of the considerations which guide whether a spoliation sanction is appropriate are factual matters that are best determined in the context of trial ruling, after dispositive motions are resolved. Therefore, to the extent that [Plaintiff] seeks a spoliation inference instruction at trial, her entitlement to this instruction may well turn on the precise nature of the proof at trial, and the credibility of various witnesses.” E.N. v. Susquehanna Twp. Sch. Dist., 2011 WL 2790266, at *3 (M.D. Pa. July 14, 2011) (emphasis added). Recognizing this principle and the need to assess the credibility of witnesses to fully resolve the question of whether Plaintiff has met all of the elements of spoliation (including bad faith), we find that Plaintiff's motion “should be deferred to a time closer to trial” because “ ‘pretrial rulings regarding evidentiary questions] should rarely be granted....’ ” Id. (quoting In re Paoli R. Yard PCB Litig., 916 F.2d 829, 859 (3d Cir. 1990) ). Therefore, “we conclude that the appropriate course here is to deny this request that we find that spoliation sanctions are warranted here, without prejudice to [Plaintiff to] renew[ ] this request at the appropriate time, as determined by the trial judge....” E.N., 2011 WL 2790266, at *3 (M.D. Pa. July 14, 2011); Zbylski v. Douglas Cty. Sch. Dist., 154 F. Supp. 3d 1146, 1172 (D. Colo. 2015) (“To the extent Plaintiff seeks preclusion of certain evidence ... such sanctions are more appropriately determined by Chief Judge Krieger as the presiding judge, after she resolves the pending motion for summary judgment and perhaps within the context of the admitted evidence and credibility of witnesses as offered at trial, with the assistance of findings reflected in this Order as she deems appropriate.”). IV. CONCLUSION *25 For the foregoing reasons, this Court RECOMMENDS that Defendant's Motion for Summary Judgment [D.E. 38] be GRANTED and that Plaintiff's Motion for Partial Summary Judgment [D.E. 39] be DENIED. With respect to Plaintiff's motion for a finding of spoliation sanctions, Plaintiff's motion should be DENIED on the merits or otherwise as moot. Pursuant to Local Magistrate Rule 4(b) and Fed. R. Civ. P. 73, the parties have fourteen (14) days from service of this Report and Recommendation within which to file written objections, if any, with the District Judge. Failure to timely file objections shall bar the parties from de novo determination by the District Judge of any factual or legal issue covered in the Report and shall bar the parties from challenging on appeal the District Judge's Order based on any unobjected-to factual or legal conclusions included in the Report. See 28 U.S.C. § 636(b)(1); 11th Cir. Rule 3-1; Patton v. Rowell, 2017 WL 443634 (11th Cir. Feb. 2, 2017); Cooley v. Commissioner of Social Security, 2016 WL 7321208 (11th Cir. Dec. 16, 2016). DONE AND SUBMITTED in Chambers at Miami, Florida, this 22nd day of September, 2017. Footnotes [1] As a result of the accident, Plaintiff has allegedly suffered severe, debilitating, and permanent injuries to her right arm which has thus far required two surgeries. [2] The prior accident occurred in a different cabin and involved an outside metal balcony chair whereas the cabin chair at issue in this action was made out of wood. [3] Carnival points out that the other incident within the previous three years involved a broken metal balcony chair. Yet, Plaintiff's incident involved a different type of chair in a different cabin, and that the chair had different mechanical deficiencies. As such, Carnival believes that Plaintiff's accident is an isolated incident involving different circumstances that is not enough to impute constructive notice of any dangerous condition. [4] See, e.g., Kermarec, 358 U.S. at 631-32; Keefe, 867 F.2d at 1322; see also Schoenbaum, Admiralty & Maritime Law § 5.2 (5th ed. 11/16 update) (“In admiralty the duty of care may be derived from three basic sources: (1) duly enacted laws, regulations, and rules; (2) custom; and (3) the dictates of reasonableness and prudence.”) (citations omitted). [5] See, e.g., Exxon Shipping Co. v. Baker, 554 U.S. 471, 503 (2008) (“The common sense of justice would surely bar penalties that reasonable people would think excessive for the harm caused in the circumstances.”) (adopting punitive damage remedy as a matter of federal maritime law based on 1-to-1 ratio to compensatory damages). [6] See, e.g., id. at 502 (system of common law (governing maritime actions) “rests on a sense of fairness in dealing with one another.”). [7] See, e.g., Kermarec, 358 U.S. at 631 (“For the admiralty law at this late date to import such conceptual distinctions would be foreign to its traditions of simplicity and practicality.”). [8] See, e.g., Moragne v. States Marine Lines, Inc., 398 U.S. 375, 401 (1970) (“Our recognition of a right to recover for wrongful death under general maritime law will assure uniform vindication of federal policies, removing the tensions and discrepancies that have resulted from the necessity to accommodate state remedial statutes to exclusively maritime substantive concepts.”). [9] We note that when plaintiffs move for summary judgment on the application of res ipsa, courts have generally been reluctant to rule in their favor merely upon a demonstration that the doctrine applies. See, e.g., Harms v. Lab. Corp. of Am., 155 F. Supp. 2d 891, 907 (N.D. Ill. 2001) (“Courts are very reluctant to grant summary judgment for a plaintiff under the doctrine of res ipsa loquitur.”); Morejon v. Rais Constr. Co., 7 N.Y.3d 203 (N.Y. 2006) (holding that summary judgment for a plaintiff on a res ipsa loquitur theory should be a rare event, granted “only when the plaintiff's circumstantial proof is so convincing and the defendant's response so weak that the inference of defendant's negligence is inescapable.”); Rathvon v. Columbia Pac. Airlines, 30 Wash. App. 193, 633 P.2d 122, 130–31 (Wash. Ct. App. 1981) (“The doctrine of res ipsa loquitur, in and of itself, is thus insufficient to support a summary judgment for a plaintiff unless the facts are undisputed.”). [10] Although the facts in Colmenares Vivas are unrelated to maritime law, the Eleventh Circuit has recognized that federal maritime law is drawn from both state and federal sources, including “an ‘amalgam of traditional common-law rules, modifications of those rules, and newly created rules’ which includes a ‘body of maritime tort principles.’ ” Brockington v. Certified Elec., Inc., 903 F.2d 1523, 1530 n.2 (11th Cir. 1990) (quoting and citing East River S.S. Corp. v. Transamerica Delaval, Inc., 476 U.S. 858, 865 (1986) ). [11] No doubt, Plaintiff denies having done anything to cause the chair to fail. Neither Plaintiff nor her family members purportedly interfered with the chair before Plaintiff engaged in a normal use of the chair by sitting in it: Q. Did you daughter, to your knowledge, step on the chair, stand on the chair, do anything of the like? A. No. Q. Nothing prior to the incident? A. No. Q. Did you husband, to your knowledge, stand on the chair? A. No. Q. Do anything other than—anything other with the chair that we wouldn't normally see someone do with the chair, is that correct? A. No. Deposition of Plaintiff, at 134:2-14. [12] Cf. Pizzino v. NCL (Bahamas), Ltd., No. 16-16812, 2017 WL 4162194, at *3 (11th Cir. Sept. 20, 2017)(rejecting assertion that a cruise ship operator can be liable for negligence without notice even if it created the dangerous condition that injured a plaintiff). [13] If cabin furniture is reported broken, a room steward removes the furniture and replaces it. If possible, the furniture will be fixed, otherwise it is disposed. Whether something is preserved in anticipation of litigation is a decision that is made by Carnival security personnel. Plaintiff did not speak to security personnel about her incident, and no investigation was launched into Plaintiff's accident. Therefore, Plaintiff's injury was classified as a non-reportable incident [14] Carnival's medical staff determines if an injury is reportable to security, and an injury that requires anything beyond first aid is considered to be a reportable accident that gives rise to an anticipation of litigation. [15] The duty to preserve evidence may arise prior to the commencement of litigation when a party contemplates litigation and it is reasonably foreseeable that the evidence is relevant to the litigation. SeeSt. Cyr v. Flying J Inc., 2007 WL 1716365, at *3 (M.D. Fla. June 12, 2007). [16] Carnival's security staff determines whether something is preserved in anticipation of litigation. [17] For instance, Plaintiff does not point to any definite shift made by her or Carnival that deviates from Carnival acting in its ordinary course of business to acting in anticipation of litigation. [18] We recognize, however, that if Defendant's motion is granted as Recommended herein this aspect of the case will be moot.