Bahr v. NCL (Bahamas) Ltd.

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

Case No. 19-cv-22973-BLOOM/Louis

MAI LIS BAHR,

Plaintiff,

v.

NCL (BAHAMAS) LTD.,

doing business as NCL,

Defendant.

_______________________/

ORDER ON MOTION FOR SUMMARY JUDGMENT

THIS CAUSE is before the Court upon Defendant NCL (Bahamas) Ltd.’s (“NCL” or

“Defendant”) Motion for Summary Judgment, ECF No. [78] (“Motion”). The Court has reviewed

the Motion, all opposing and supporting submissions, the record in this case, the applicable law,

and is otherwise fully advised. For the reasons set forth below, the Motion is denied.

I. BACKGROUND

On July 17, 2019, Plaintiff Mai Lis Bahr (“Bahr” or “Plaintiff”) initiated the instant action

against Defendant for injuries sustained while exiting the Norwegian Pearl onto the dock at the

port of Skagway, Alaska. Plaintiff was walking down a gangway between the Pearl and the dock

when she slipped and fell near the end of the gangway, which she alleges was wet and slippery.

See ECF No. [1] ¶ 8. The Complaint asserts a single count of maritime negligence against

Defendant, alleging that Defendant breached its duty of care by “failing to maintain slip resistance

materials; failing to provide adequate railings; failing to provide a safe walkway; [] failing to warn

Plaintiff of the lack of an adequate railing; by providing a worn slip resistance surface material,

and by failing to warn of the inadequate, and worn, slip resistant surface materials.” Id. ¶ 9.

Specifically, Plaintiff alleges that Defendant breached its duty by

A. Allow[ing] passengers, including the Plaintiff MAI LIS BAHR, to exit the

vessel using a walkway that was known to be wet, without providing a

sufficiently dry surface, without handrails and slip resistant materials on the

walkway surface.

B. By allowing a dangerous condition to exist for passengers, including

Plaintiff while disembarking the ship during wet and rainy conditions, on a

walkway specifically used by Defendant for exiting the ship.

C. By failing to or negligently monitoring, controlling or otherwise providing

support, assistance or supervision to passengers exiting the ship in a safe

manner.

D. By failing to warn passengers, including Plaintiff, when disembarking the

ship, of the existence of wet, slippery walking surfaces – the gangway – and

by failing to provide adequate warnings of this known and foreseeable

dangerous condition[].

E. Failing to inspect the subject area in a sufficient enough manner to

determine the presence of hazardous conditions; to wit, a missing slip

resistant surface on known wet and slippery surfaces;

F. Failing to maintain its vessel and walkways exiting the ship in a reasonably

safe manner;

G. Negligently establishing and enforcing a method of operation with respect

to inspecting walkways used by passengers entering and exiting the subject

ship;

H. Failing to provide a reasonably safe means to disembark the Plaintiff and

other passengers at a port of call during her cruise, particularly in ports

known to be rainy and wet, such as the port in Skagway, Alaska;

I. Failing to properly equip the vessel, the vessel’s exit walkways, and the

vessel’s gangways with sufficient and appropriate ramps, handrails, and

other means of facilitating safe boarding and disembarkation by passengers,

including the Plaintiff;

J. Failing to provide adequate assistance to passengers, including the Plaintiff,

while exi[]ting its ship, particularly when it is raining or had rained, and the

gangways used to exit the ship were known, or should have been known to

be wet;

K. Failing to adopt policies and procedures for the safe disembarkation from

the ship by its passengers, during wet and rainy conditions known and/or

reasonably foreseeable to the Defendant;

L. Failing to adhere to and/or follow existing policies and procedures for the

safe boarding and disembarking of the ship;

M. Failing to comply with Defendant’s own internal policies and procedures

established by its SMS, SQM and other internal operational procedures

required by the ISM Code, IMO, SOLAS and all applicable health, building

and safety codes and national standards in accordance with 33 CFR 96.100

et[] seq., 46 USC Section 3201 et[] seq. and all Rules and Regulations,

including, but not limited to all relevant IMO standards and NVIC’S of the

United States Coast Guard;

N. In other ways as may be revealed through discovery.

Id. ¶ 12.

With regard to the instant Motion, Defendant filed its corresponding Statement of Material

Facts, ECF No. [79] (“Defendant’s SMF”). Plaintiff filed her Response, ECF No. [96], and her

Response to Defendant’s SMF and additional material facts, ECF No. [97] (“Plaintiff’s SMF”).

Defendant filed its Reply, ECF No. [116], together with a Reply to Plaintiff’s SMF, ECF No. [117]

(“Defendant’s SMF Reply”).

II. MATERIAL FACTS

Based on the parties’ respective statements of material facts in support of and in opposition

to the Motion, along with the evidence in the record, the following facts are not genuinely in

dispute, unless otherwise noted.

A. The day of Plaintiff’s fall

Plaintiff and nine family members were traveling on a cruise that departed Seattle on July

14, 2018. ECF No. [80-4] at 87-88. Before departing on the cruise, Plaintiff’s understanding was

that it would be raining in Alaska and that she should dress for rain. Id. at 93. Plaintiff fell on July

17, 2018 between 7:30 and 7:40 in the morning. Id. at 89, 91. Plaintiff and her family had booked

an excursion in Skagway for that morning – a “hike and float,” which entailed a moderate hike

and then a scenic boat ride. Id. at 92. On the morning that she fell, Plaintiff wore sneakers and

clothes that could get dirty, and a raincoat, but she does not remember what the weather was like.

Id. at 94. Plaintiff testified that she did not know if it had rained that morning. Id. at 95.

B. The gangway

As Plaintiff remembers, the gangway was about 20 feet long and wide enough for two

people to walk up and down. Id. at 97-98. She testified that the gangway from the ship was straight

but angled. Id. at 96. She remembers the gangway had handrails at least on the left side. Id. at 98.

The material on the walking surface changed in the last three to four feet of the gangway – with

the last three or four feet being metal with no type of anti-slip material on the surface. Id. at 99.

Plaintiff was the last one of the family group exiting the ship and with her son, who she allowed

to go ahead of her. Id. at 100. Nobody else had trouble walking down the gangway and no one else

fell. Id. at 100. Her son was about five feet ahead of her and saw her fall. Id. at 100-01. At the time

of her fall, Plaintiff was carrying a brochure in her right hand that the cruise line had handed her

and was talking to her son. Id. at 102.

C. Plaintiff’s fall

As Plaintiff was walking down the gangway, she was looking ahead at her son. Id. at 103.

She was walking at a normal pace consistently down the gangway. Id. at 109. She slipped on the

first step she took on the metal at the end of the gangway. Id. at 113. She stepped forward with her

left foot, slipped, and realized that she was going airborne. Id. at 108-09. She was not using the

handrail as she was walking down the gangway, and she fell so quickly that she did not grab the

handrail. Id. at 108. When she fell, her body hit against the metal portion of the gangway – her

lower back, ribcage, elbows, and then her head. Id. at 110. She fell flat on her back facing up to

the sky and hit her head in the middle between the nape and crown. Id. at 111-12.

Plaintiff realized after she fell that there was mist on the part of the gangway where she

slipped, which she likened to sprinkles of morning dew. Id. at 104-05. She testified that she did

not know how long the mist or sprinkles of dew had been on the gangway. Id. at 105. Brett Berman,

NCL’s senior director of passenger and crew claims, testified that it had stopped raining several

hours before Bahr’s incident occurred and acknowledged that Alaska can be a wet environment,

even if it is not raining. ECF No. [96-1] at 15, 57. He did not disagree that environmental factors

could have played some role in Bahr’s accident. Id. at 57.

D. Warning cones

Berman also testified at his deposition that there were warning cones at two locations –

inside the ship just before the start of the gangway and at the bottom of the gangway. Id. at 42.

The purpose of the cones, according to Berman, is part of the standard set up, and intended to

increase awareness and promote safety upon exiting the ship via the gangway. Id. at 45. Berman

testified further that the cones are placed whether it is raining or dry, as part of the standard set up

of the gangway from ship to shore. Id. at 46-47. According to Berman, the cones say on them in

two languages, “Caution, wet floor.” Id. at 115. The cones were positioned at the top of the

gangway inside the ship, and at the bottom of the gangway. Id. at 116. He reiterated that the

purpose of the cones is not to warn that the gangway is wet, but to elicit heightened awareness and

to remind people to be careful while descending the gangway. Id. at 117-18. The cones are placed

in those locations (top and bottom of the gangway) regardless of the environmental circumstances

and are intended as a general warning. Id.

Paul Fango, a NCL crewmember who was stationed by the gangway the day Plaintiff fell,

testified that the warning cones or signs were placed because there is some change in elevation in

the gangways. ECF No. [97-3] at 20. According to Fango, the warning cones are required because

of the change in elevation. Id. at 38. Plaintiff testified that she did not remember seeing any

warning signs or caution cones near the gangway as she exited. ECF No. [80-4] at 99.

Fango saw Plaintiff coming down the gangway and it looked like she did not need any

assistance. ECF No. [97-3] at 42-43. He and another male NCL employee went to help Plaintiff

after she fell. Id. at 48.

III. LEGAL STANDARD

A court may grant a motion for 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). Further, the parties may support their positions by citations to evidence in

the record, including, among other things, depositions, documents, affidavits, or declarations. See

Fed. R. Civ. P. 56(c). An issue of fact is genuine if “a reasonable trier of fact could return judgment

for the non-moving party.” Miccosukee Tribe of Indians of Fla. v. United States, 516 F.3d 1235,

1243 (11th Cir. 2008) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986)). In

addition, a fact is material if it “might affect the outcome of the suit under the governing law.” Id.

A court views the facts in the light most favorable to the non-moving party, draws “all

reasonable inferences in favor of the nonmovant and may not weigh evidence or make credibility

determinations, which ‘are jury functions, not those of a judge.’” Lewis v. City of Union City, Ga.,

934 F.3d 1169, 1179 (11th Cir. 2019) (quoting Feliciano v. City of Mia. Beach, 707 F.3d 1244,

1252 (11th Cir. 2013)); Davis v. Williams, 451 F.3d 759, 763 (11th Cir. 2006); see also Crocker

v. Beatty, 886 F.3d 1132, 1134 (11th Cir. 2018) (“[W]e accept [the non-movant’s] version of the

facts as true and draw all reasonable inferences in the light most favorable to him as the non-

movant.”). “The mere existence of a scintilla of evidence in support of the [non-moving party’s]

position will be insufficient; there must be evidence on which a jury could reasonably find for the

[non-moving party].” Anderson, 477 U.S. at 252. “If more than one inference could be construed

from the facts by a reasonable fact finder, and that inference introduces a genuine issue of material

fact, then the district court should not grant summary judgment.” Bannum, Inc. v. City of Fort

Lauderdale, 901 F.2d 989, 996 (11th Cir. 1990).

The moving party shoulders the initial burden of demonstrating the absence of any genuine

issue of material fact. Shiver v. Chertoff, 549 F.3d 1342, 1343 (11th Cir. 2008). If a movant satisfies

this burden, “the nonmoving party ‘must do more than simply show that there is some metaphysical

doubt as to the material facts.’” Ray v. Equifax Info. Servs., LLC, 327 F. App’x 819, 825 (11th Cir.

2009) (quoting Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986)).

Instead, the non-moving party “must make a sufficient showing on each essential element of the

case for which he has the burden of proof.” Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).

The non-moving party must produce evidence, going beyond the pleadings, and by its own

affidavits, or by depositions, answers to interrogatories, and admissions on file, designating

specific facts to suggest that a reasonable jury could find in the non-moving party’s favor. Shiver,

549 F.3d at 1343. Yet, even where a non-movant neglects to submit any alleged material facts in

dispute, a court must still be satisfied that the evidence in the record supports the uncontroverted

material facts proposed by the movant before granting summary judgment. Reese v. Herbert, 527

F.3d 1253, 1268-69, 1272 (11th Cir. 2008).

IV. DISCUSSION

A. Maritime law

The parties agree that this case is governed by maritime law. “Maritime law governs actions

arising from alleged torts committed aboard a ship sailing in navigable waters.” Guevara v. NCL

(Bah.) Ltd., 920 F.3d 710, 720 (11th Cir. 2019) (citing Keefe v. Bah. Cruise Line, Inc., 867 F.2d

1318, 1320-21 (11th Cir. 1989)). “In analyzing a maritime tort case, [courts] rely on general

principles of negligence law.” Chaparro v. Carnival Corp., 693 F.3d 1333, 1336 (11th Cir. 2012)

(quoting Daigle v. Point Landing, Inc., 616 F.2d 825, 827 (5th Cir. 1980)). “To prevail on a

negligence claim, a plaintiff must show that ‘(1) the defendant had a duty to protect the plaintiff

from a particular injury, (2) the defendant breached that duty, (3) the breach actually and

proximately caused the plaintiff’s injury, and (4) the plaintiff suffered actual harm.’” Guevara,

920 F.3d at 720 (quoting Chaparro, 693 F.3d at 1336). “Each element is essential to Plaintiff’s

negligence claim and Plaintiff cannot rest on the allegations of her complaint in making a sufficient

showing on each element for the purposes of defeating summary judgment.” Isbell v. Carnival

Corp., 462 F. Supp. 2d 1232, 1236-37 (S.D. Fla. 2006).

“A cruise-ship operator ‘is not liable to passengers as an insurer, but only for its

negligence.’ The mere fact of an accident causing injury is insufficient to establish that a dangerous

condition existed.” D’Antonio v. Royal Caribbean Cruise Line, Ltd., 785 F. App’x 794, 796-97

(11th Cir. 2019) (quoting Keefe, 867 F.2d at 1322); see also Looney v. Metro. R.R. Co., 200 U.S.

480, 486 (1906) (“A defect cannot be inferred from the mere fact of an injury. There must be some

proof of the negligence.”); Miller v. NCL (Bah.) Ltd., No. 15-cv-22254, 2016 WL 4809347, at *4

(S.D. Fla. Apr. 6, 2016) (“Generally, ship owners and operators do not owe a heightened or special

duty of care to their passengers.” (citing Kermarec v. Compagnie Generale Transatlantique, 358

U.S. 625, 630 (1959))), aff’d, 679 F. App’x 981 (11th Cir. 2017). Rather, “[u]nder maritime law,

the owner of a ship in navigable waters owes passengers a duty of reasonable care under the

circumstances.” Sorrels v. NCL (Bah.) Ltd., 796 F.3d 1275, 1279 (11th Cir. 2015).

The duty of reasonable care 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. “In

other words, a cruise ship operator’s duty is to shield passengers from known dangers (and from

dangers that should be known), whether by eliminating the risk or warning of it.” Tesoriero v.

Carnival Corp., 965 F.3d 1170, 1178 (11th Cir. 2020). Thus, a cruise-ship operator’s liability often

“hinges on whether it knew or should have known about the dangerous condition.” Guevara, 920

F.3d at 720; see also D’Antonio, 785 F. App’x at 797. “The mere fact that an accident occurs does

not give rise to a presumption that the setting of the accident constituted a dangerous condition.”

Miller, 2016 WL 4809347, at *4. Moreover,

[t]o establish the owner of a ship in navigable waters breached its duty of care, a

plaintiff must show: “(1) a dangerous condition existed; [and] (2) the vessel’s

operator had actual notice of the dangerous condition; or (3) if there was no actual

notice, that [d]efendant had constructive notice of the dangerous condition for an

interval of time sufficient to allow the vessel’s operator to implement corrective

measures.” Reinhardt v. Royal Caribbean Cruises, Ltd., No. 1:12-cv-22105, 2013

WL 11261341, at *4 (S.D. Fla. Apr. 2, 2013) (alteration added; citations omitted).

Stewart v. Carnival Corp., 365 F. Supp. 3d 1272, 1275 (S.D. Fla. 2019).

With these principles in mind, the Court considers the Motion.

B. Notice

Defendant contends it is entitled to summary judgment because there is no evidence that it

had actual or constructive notice that the gangway posed any hazard to disembarking guests.

Plaintiff responds with the following arguments: notice is not a prerequisite when a cruise line is

vicariously liable for the actions of its crewmember; it is unclear whether notice applies in

gangway cases where there is a heightened duty of care; even assuming that notice is required,

Defendant was on notice of the dangers of passengers slipping and falling on its gangways in this

case. Because Plaintiff asserts that notice is not required in this case, the Court must resolve this

issue first before turning to the merits of Defendant’s argument regarding notice.

i. Notice is required

Plaintiff first contends that the requirement to establish notice does not apply in a maritime

tort claim based on vicarious liability, relying on Yusko v. NCL (Bahamas), Ltd., 4 F.4th 1164

(11th Cir. 2021). In Yusko, the plaintiff was injured during a dance competition when her partner,

a professional dancer and cruise ship employee, released her hands during a dance move causing

her to fall back and hit her head. 4 F.4th at 1166. The district court granted summary judgment in

favor of the cruise line because the cruise line did not have actual or constructive notice of a risk-

creating condition on the ship. Id. The Eleventh Circuit disagreed, holding that a passenger does

not need to establish actual or constructive notice to hold a shipowner liable for the acts of its

employees. Id. at 1170. That is, where a plaintiff’s claim is based upon a theory of vicarious

liability, notice is not required. Based upon Yusko, Plaintiff contends that she need not establish

notice here because she alleges in the Complaint that NCL was negligent by failing to adequately

assist passengers and is therefore vicariously liable for its crewmember Fango’s negligent failure

to assist Plaintiff. The Court declines to read Plaintiff’s Complaint in this manner.

The Complaint asserts one claim for negligence based upon no less than thirteen (13)

different breaches of duty committed by NCL, not one of its employees. See ECF No. [1] ¶ 12.

Indeed, in Yusko, the plaintiff’s pleading asserted that NCL, through its agents and employees, was

negligent, and that the professional dancer-employee failed to act reasonably under the

circumstances. 4 F.4th at 1166. Here, the Complaint contains no such allegations. With respect to

the failure to assist, Plaintiff has alleged that “Defendant, NCL (BAHAMAS) LTD. d/b/a NCL,

breached its duty owed to Plaintiff by . . . failing to or negligently monitoring, controlling or

otherwise providing support, assistance or supervision to passengers exiting the ship in a safe

manner . . . [and] [f]ailing to provide adequate assistance to passengers, including the Plaintiff,

while exi[]ting its ship . . . .” ECF No. [1] ¶¶ 12C., 12J. (emphasis in original). Unlike in Yusko,

the Complaint says nothing about NCL’s negligence arising through its agents and employees. If

Plaintiff intended to plead negligence based upon a theory of vicarious liability, it was incumbent

upon Plaintiff to make that clear. As such, the Court will not read such a claim into the Complaint.

Plaintiff contends next, citing Vierling v. Celebrity Cruises, Inc., 339 F.3d 1309 (11th Cir.

2003), that it is unclear whether the notice requirement applies in a gangway case, where there is

a heightened standard of care. However, Vierling is easily distinguishable from this case. Indeed,

as stated by the Eleventh Circuit “[t]he principal issue in [the Vierling] case, brought by the owner

of a cruise ship against a port authority, is whether Ryan’s holding (the “Ryan doctrine”) entitles

the shipowner to indemnification for damages it paid to a passenger because the port authority

failed to load passengers aboard the cruse ship in a workmanlike manner.” 339 F.3d at 1310.

Plaintiff’s claim does not involve the Ryan doctrine, nor a claim for indemnification. Moreover,

contrary to Plaintiff’s suggestion, Vierling did not hold that a higher standard of care applies in

negligence cases involving a gangway. Rather, the Eleventh Circuit observed generally that

“[t]here is little doubt that Celebrity’s liability to Vierling was foreseeable. A high degree of care

is demanded of common carriers toward their passengers.” Id. at 1319 (citation omitted). The court

observed further that “[i]ncluded in this high degree of care is the duty to maintain reasonable, safe

means for passengers to board and disembark.” Id. (citation omitted). However, the Eleventh

Circuit did not indicate that the high degree of care it referenced was any different from the degree

of care generally owed in maritime cases.

Absent a clear statement from the Eleventh Circuit that the standards generally applicable

to maritime negligence claims are different in cases involving a gangway, this Court declines to

hold that notice is not required in this case.

Because the Court concludes that notice is required, the Court turns to the merits of

Defendant’s argument.

ii. Actual or constructive notice

Defendant argues that there is no evidence that it had actual or constructive notice in this

case regarding any potential hazard posed by the gangway.

“Actual notice exists when the shipowner knows of the unsafe condition.” Lebron v. Royal

Caribbean Cruises Ltd., 818 F. App’x 918, 920 (11th Cir. 2020) (citing Keefe, 867 F.2d at 1322).

“A maritime plaintiff can establish constructive notice with evidence that the ‘defective condition

exist[ed] for a sufficient period of time to invite corrective measures.’” Guevara, 920 F.3d at 720

(quoting Monteleone v. Bah. Cruise Line, Inc., 838 F.2d 63, 65 (2d Cir. 1988)) (citing Keefe, 867

F.2d at 1322; Rodgers v. Costa Crociere, S.p.A., No. 08-60233, 2009 WL 10666976, at *3 (S.D.

Fla. July 6, 2009)). “Alternatively, a plaintiff can establish constructive notice with evidence of

substantially similar incidents in which ‘conditions substantially similar to the occurrence in

question must have caused the prior accident.’” Id. (quoting Jones v. Otis Elevator Co., 861 F.2d

655, 661-62 (11th Cir. 1988)).

Specifically, Defendant argues that there is no evidence of prior incidents substantially

similar, and there are no accident reports or safety inspection reports regarding any potential safety

concerns about the gangway on which Plaintiff fell. Defendant also points out that Plaintiff

testified that she did not even know how long the mist or dew had been on the gangway when she

fell. In response, Plaintiff contends that Defendant had notice through its placement of the warning

cones, there is evidence that it had rained in the port of Skagway within two hours of Plaintiff’s

fall, and Defendant’s training program, which institutes a “Safe Access to the Vessel” policy in

response to slip and falls, constitutes evidence of notice.

The Court agrees with Plaintiff that the warning cones in this case are critical to the issue

of notice and considers the parties’ arguments on this point first.

iii. The warning cones create a genuine issue of material fact

“Not all warning signs will be evidence of notice; there must also be a connection between

the warning and the danger.” Guevara, 920 F.3d at 721. Here, Plaintiff contends that Defendant’s

placement of two yellow warning cones that read “Caution, wet floor” near the end of the gangway

constitute sufficient evidence of constructive notice. Plaintiff relies primarily upon Guevara and

claims there is a clear connection between the warning signs and the hazard that caused Plaintiff

to fall. Defendant argues that there is no connection because the signs do not warn about the

specific risk-creating condition alleged. Moreover, based on Berman’s testimony, the warning

cones are used as a matter of course regardless of environmental conditions and used to raise

situational awareness. Thus, Defendant urges the Court to apply the reasoning in Taiariol v. MSC

Crociere S.A., 677 F. App’x 599 (11th Cir. 2017).

In Taiariol, the plaintiff slipped on the nosing along the edge of a step when leaving the

theater on a cruise ship. 677 F. App’x at 600. The plaintiff claimed there was a genuine issue of

material fact with respect to notice of the slippery condition because there was a “watch your step”

sticker on the nosing of the step. Id. In rejecting her contention, the Eleventh Circuit noted that

“[c]ommon sense dictates that the sticker served to caution persons on the ship that the step was

there; that is, it warned passengers that the surface was not flat. There is no evidence that it was

intended to warn passengers that the nosing may be slippery. Even viewed in the light most

favorable to [plaintiff], we cannot see how that sticker provides any evidence that the defendant

had notice that the step’s nosing was dangerously slippery” Id. at 602. Finding that the defendant

did not have notice, the Eleventh Circuit affirmed the district court’s grant of summary judgment.

In contrast, the Eleventh Circuit in Guevara reversed the district court and found that a

genuine issue of material fact was raised regarding the defendant’s prior notice of a dangerous

condition. In Guevara, the plaintiff slipped and fell while stepping down from a landing on the

outer deck of a cruise ship. A permanently affixed warning sign at the top of the steps read

“ATTENTION! FOR YOUR OWN SAFETY PLEASE USE THE HANDRAIL. WATCH YOUR

STEP.” 920 F.3d at 715. The Defendant claimed that it lacked prior notice of the alleged dangerous

condition and the warning sign was installed by the either the original owner or builder of the ship

and there was no evidence as to why the sign was placed at that location or what specific condition,

if any, it was affixed to address. The plaintiff pointed to the warning sign alerting passengers to

“watch your step” as evidence that defendant was on notice of the deceptive, and therefore

dangerous, nature of the step down. The Eleventh Circuit noted:

In analyzing whether the warning sign raises a genuine issue of material fact as to

NCL's knowledge, we look to our recent decision in Sorrels. In Sorrels, a cruise

ship passenger slipped and fell on the deck of a Norwegian ship, which was wet

from rain. 796 F.3d at 1279. We held that the cruise ship employees’ testimony—

that the cruise line regularly placed warning signs advising passengers that the deck

was “slippery when wet”—was enough to create a genuine issue of material fact

regarding whether the cruise line had actual or constructive knowledge that the deck

could be slippery after precipitation.

Guevara, 920 F.3d at 721 (internal citation omitted)

The Eleventh Circuit distinguished the facts in Taiariol by noting that the plaintiff there

had attempted to utilize the “watch your step” sticker as evidence of notice for a different purpose:

that the stair’s nosing was slippery. The court agreed with the plaintiff that, unlike the sign in

Taiariol, the “watch your step” warning sign cautioned of the hazard the plaintiff contended caused

his injury and meant precisely what it said – “to caution persons on the ship that the step was

there.” Id. at 721. As a result, the Eleventh Circuit held “that a cruise ship operator has notice of a

condition—and thus a duty to warn—if a sign is posted on a ship warning about the condition.”

Id. at 722.

Upon review, the Court finds that the warning in this case are similar to the warning in

Guevara and distinct from the warning in Taiariol. Indeed, Plaintiff has alleged in pertinent part

that she “slipped and fell near the end of a wet and slippery gangway.” ECF No. [1] ¶ 8. It is

undisputed that the warning cones placed at the end of the gangway in this case stated in two

languages, “Caution, wet floor,” and that those warning cones were placed by Defendant. Thus, as

in Guevara, there is a sufficient connection as the hazard of which the signs were explicitly

warning is precisely the hazard Plaintiff alleges caused her to fall.

Nevertheless, Defendant argues that because Berman testified that the cones are used

simply to raise situational awareness, rather than to warn of a wet floor, there is no connection

between the signs and the warning, similar to Taiariol. However, Defendant’s argument turns the

Eleventh Circuit’s reasoning in Taiariol and Guevara on its head. The warning signs in this case

expressly state “Caution, wet floor” and thus a person reading the warning would not conclude that

they were placed to signal a change in elevation based upon the warning language. In contrast, a

reasonable jury could conclude that the warning sign’s language applies to the hazard causing the

Plaintiff’s fall. Moreover, Berman’s testimony that the cones are used as a matter of course

regardless of environmental conditions, and Fango’s testimony that the cones are intended to warn

of a change in elevation, underscore that there is a genuine issue of material fact with respect to

the warning cones and whether they indicate that Defendant had constructive notice in this case.

Cf. Fylling v. Royal Caribbean Cruises, Ltd., No. 18-CV-21953-MARTINEZ/AOR, 2019 WL

Case No. 19-cv-22973-BLOOM/Louis

8275158, at *3 (S.D. Fla. Dec. 10, 2019) (holding that placement of warning cones stating

“caution, watch your step” and testimony that cones were intended to alert passengers of change

in elevation precluded summary judgment on issue of notice, where plaintiff stumbled on

entranceway ramp), report and recommendation adopted by 2020 WL 3266198 (S.D. Fla. Mar.

12, 2020).

Accordingly, and upon this basis alone, Defendant is not entitled to summary judgment.!

C. Additional arguments

Because Defendant has failed to show that no genuine issue of material fact exists with

respect to the issue of notice warranting the entry of summary judgment, the Court does not

consider Defendant’s argument that there is no admissible record evidence to establish medical

causation of Plaintiffs claimed injuries at this stage.

V. CONCLUSION

Accordingly, it is ORDERED AND ADJUDGED that the Motion, ECF No. [78], is

DENIED.

DONE AND ORDERED in Chambers at Miami, Florida, on September 2, 2021.

UNITED STATES DISTRICT JUDGE

Copies to:

Counsel of Record

' The Court acknowledges that Guevara’s discussion of warning signs in the context of notice related

specifically to that plaintiff's failure to warn claim. See 920 F.3d at 721. In this case, Defendant has not

attempted to distinguish its argument based upon the numerous theories of negligence alleged by Plaintiff,

arguing generally that Defendant lacked notice. Therefore, the Court has limited its analysis to Defendant’s

general contention.

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