THELMA ANDERSON, APPELLANT,
v.
SEAESCAPE LIMITED, INC., APPELLEE
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Anderson appeals a summary judgment dismissing her personal injury lawsuit from a cruise ship fall based on a one-year limitation in her passenger ticket. The court reverses, holding that summary judgment was improper because it is not undisputed whether Anderson actually received a ticket containing the one-year limitation clause.
Summary judgment was improper because there exists a genuine dispute of material fact regarding whether Ms. Anderson actually received a ticket containing the one-year limitation. While the notice on the cover sheet would be sufficient to enforce the limitation if it existed in her ticket, the record does not establish as undisputed fact that her ticket contained the limitation clause.
[1] A defendant seeking to enforce a contractual limitation period must establish that the plaintiff received the ticket containing the limitation.
[2] An affidavit supporting a motion for summary judgment must be based upon the personal knowledge of the affiant.
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Join FLexlaw to unlock all legal intelligence“We reverse because it is not undisputed that Ms. Anderson received a passenger ticket containing the limitation.”
Establishes the core holding that summary judgment cannot be granted without undisputed proof the passenger received the ticket with the limitation clause.
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Join FLexlaw to unlock all legal intelligenceAnderson purchased a cruise ticket from a travel agency on April 9, 1986, and fell during the cruise the next day. Anderson remembered purchasing the …
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ALTENBERND, Judge.
The plaintiff appeals a final summary judgment in favor of SeaEscape which was entered on grounds that her personal injury lawsuit was barred by a one-year limitation contained in the passenger ticket. We reverse because it is not undisputed that Ms. Anderson received a passenger ticket containing the limitation.
Ms. Anderson purchased her ticket from a travel agency on April 9,1986. She went on a one-day cruise on the following day. During the cruise, she fell and sustained an injury. Although Ms. Anderson remembered purchasing the ticket, she did not remember the details of the ticket. She did not remember whether it included a ticket stock with various limitations. She did not remember seeing additional pages of small print attached to her ticket. She did recall receiving some type of pass upon boarding the vessel. In addition to her own testimony, the plaintiff provided the affidavit of another person who had purchased several tickets for the SeaEscape cruise during the same month from the same travel agency. That person did not recall receiving tickets with additional pages containing limitations.
With its motion for summary judgment, SeaEscape filed the affidavit of its terminal manager. The affidavit attached a copy of the cover page of Ms. Anderson’s ticket, and also attached a ticket stock of the type which SeaEscape maintains all passengers receive when purchasing a ticket. The affidavit states that passengers retain the ticket stock upon boarding the vessel.
SeaEscape’s affidavit is defective in form because it is not based upon the personal knowledge of the affiant. Fla.R. Civ.P. 1.510(e); Montejo Invs., N.V. v. Green Cos., 471 So. 2d 158 (Fla. 3d DCA 1985). Of equal importance, a comparison of the ticket stock attached to the affidavit and the cover page issued to Ms. Anderson indicates that they are very similar, but not identical forms. Although the cover sheet issued to Ms. Anderson has an “IMPORTANT NOTICE” in bold type in the lower right-hand comer which states that the ticket contains “other limitations” and that the passenger should “read the entire ticket carefully,” we cannot determine as a matter of undisputed fact that Ms. Anderson received a ticket containing several pages of limitations or, assuming that she did receive a ticket containing several pages of limitations, that the one-year limitation was one of those conditions.
We concur in the trial court’s decision that the notice on Ms. Anderson’s cover sheet is sufficient to bring the limitation to her attention and that the one-year limitation would be enforceable if it were within her ticket. Hallman v. Carnival Cruise Lines, Inc., 459 So. 2d 378 (Fla. 3d DCA 1984). See also Barone v. Scandinavian World Cruises (Bahamas), Ltd., 531 So. 2d 1036 (Fla. 3d DCA 1988). Thus, the only factual question relating to this issue is whether Ms. Anderson’s ticket actually contained a one-year limitation period.
Reversed and remanded for proceedings consistent herewith.
CAMPBELL, C.J., and PARKER, J., concur.
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Southland Constr., Inc. v. The Richeson Corp., 642 So. 2d 5 (Fla. 5th DCA 1994)…er, he admitted he had no personal knowledge of Southland’s contractual arrangements with Rieheson and his corporation. This deposition testimony was therefore insufficient to create a material question of fact. See Anderson v. SeaEscape Ltd., Inc., 541 So. 2d 1339 (Fla. 2d DCA 1989); Thompson v. Citizens National Bank of Leesburg, Fla., 433 So. 2d 32 (Fla. 5th DCA 1983). See also, Marco Polo Hotel v. Popielarczyk, 622 So. 2d 104 (Fla. 3d DCA 1993). Whether the trial court properly entered summary judgment fo…
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Collins v. Dolphin Cruise Line, Inc., 625 So. 2d 1308 (Fla. 3d DCA 1993)…e Lines, 589 So. 2d 1019 (Fla. 3d DCA 1991) (issue of fact remained as to whether passenger received actual ticket that contained notice of limitations period, or merely received boarding pass after paying for ticket) and Anderson v. SeaEscape Ltd., 541 So. 2d 1339 (Fla. 2d DCA 1989) (same).…
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ALI v. Seaescape, Ltd., 561 So. 2d 1196 (Fla. 3d DCA 1990)…PER CURIAM. Affirmed. Anderson v. SeaEscape Ltd., Inc., 541 So. 2d 1339 (Fla. 2d DCA 1989); Barone v. Scandinavian World Cruises (Bahamas) Ltd., 531 So. 2d 1036 n. 1 (Fla. 3d DCA 1988); Rindfleisch v. Carnival Cruise Lines, Inc., 498 So. 2d 488 (Fla. 3d DCA 1986); Hallman v. Carnival Cruise Lines, Inc., 459 So. 2d 378 (…
Previewing 3 of 4 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Lowell M. Hallman and Eva B. Hallman v. Carnival Cruise Lines, Inc., 459 So. 2d 378 (Fla. 3d DCA 1984)
- Montejo Invs., N.V. v. The Green Cos., Inc., 471 So. 2d 158 (Fla. 3d DCA 1985)
- Barone v. Scandinavian World Cruises (Bahamas), Ltd., 531 So. 2d 1036 (Fla. 3d DCA 1988)