Montrez Green v. Carnival Corporation

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

Case No. 22-cv-20192 -BLOOM/Otazo-Reyes

COURTNEY MONTREZ GREEN,

Plaintiff,

v.

CARNIVAL CORPORATION,

doing business as

Carnival Cruise Line,

Defendant.

________________________________/

ORDER ON MOTION TO DISMISS SECOND AMENDED COMPLAINT

THIS CAUSE is before the Court upon Defendant Carnival Corporation’s (“Defendant”)

Motion to Dismiss Plaintiff’s Second Amended Complaint, ECF No. [24] (“Motion”). Plaintiff

Courtney Montrez Green (“Green”) filed a Response in Opposition, ECF No. [27] (“Response”),

to which Defendant filed a Reply, ECF No. [28] (“Reply”). The Court has carefully reviewed the

Motion, 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 January 14, 2022, Plaintiff initiated this action against Defendant, ECF No. [1] (“Initial

Complaint”), and thereafter filed his First Amended Complaint. See ECF No. [4] (“FAC”). On

April 11, 2022, Defendant filed its first Motion to Dismiss, ECF No. [10], and Plaintiff responded

by filing his operative Second Amended Complaint. See ECF No. [21] (“SAC”). In the SAC,

Plaintiff asserts four counts: Negligent Failure to Warn (“Count I”); Negligent Failure to Maintain

(“Count II”); Vicarious Liability for the Active Negligence of its Employee (“Count III”); and

Negligence Against Defendant for Failure to Follow Policies and Procedures (“Count IV”). See

id.

In the instant Motion, Defendant seeks to dismiss the SAC because (1) Count I fails to

properly plead a negligent failure to warn claim; (2) Counts II and IV fail to properly plead a

negligent maintenance claim and a negligent failure to follow policies and procedures claim; (3)

Count III improperly reframes Plaintiff’s claims for negligent failure to warn and negligent

maintenance as a vicarious liability claim in an attempt to avoid the notice requirements for those

claims; and (4) Count IV is a shotgun pleading. See id. Plaintiff responds that (1) the SAC properly

pleads notice for Counts I, II, and IV; (2) the SAC sufficiently pleads Defendant’s violation of

industry standards; (3) Plaintiff is not required to allege that the dangerous condition was not open

and obvious; (4) the SAC properly pleads vicarious liability in Count III; and (5) Count IV is not

shotgun pleading. See ECF No. [27].

II. LEGAL STANDARD

A. Failure to State a Claim

A pleading must contain “a short and plain statement of the claim showing that the pleader

is entitled to relief.” Fed. R. Civ. P. 8(a)(2). Although a complaint “does not need detailed factual

allegations,” it must provide “more than labels and conclusions, and a formulaic recitation of the

elements of a cause of action will not do.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127

S.Ct. 1955, 167 L.Ed.2d 929, (2007); see Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (explaining

that Rule 8(a)(2)’s pleading standard “demands more than an unadorned, the-defendant-

unlawfully-harmed-me accusation”). Additionally, a complaint may not rest on “‘naked

assertion[s]’ devoid of ‘further factual enhancement.’” Iqbal, 556 U.S. at 678 (quoting Twombly,

550 U.S. at 557, 127 S. Ct. 1955). “Factual allegations must be enough to raise a right to relief

above the speculative level.” Twombly, 550 U.S. at 555, 127 S. Ct. 1955. If the allegations satisfy

the elements of the claims asserted, a defendant’s motion to dismiss must be denied. See id. at 556.

When reviewing a motion to dismiss, a court, as a general rule, must accept the plaintiff’s

allegations as true and evaluate all plausible inferences derived from those facts in favor of the

plaintiff. See Chaparro v. Carnival Corp., 693 F.3d 1333, 1337 (11th Cir. 2012); Miccosukee Tribe

of Indians of Fla. v. S. Everglades Restoration Alliance, 304 F.3d 1076, 1084 (11th Cir. 2002);

AXA Equitable Life Ins. Co. v. Infinity Fin. Grp., LLC, 608 F. Supp. 2d 1349, 1353 (S.D. Fla. 2009)

(“On a motion to dismiss, the complaint is construed in the light most favorable to the non-moving

party, and all facts alleged by the non-moving party are accepted as true.”); Iqbal, 556 U.S. at 678.

B. Shotgun Pleading

“A complaint that fails to articulate claims with sufficient clarity to allow the defendant to

frame a responsive pleading constitutes a ‘shotgun pleading.’” Lampkin-Asam v. Volusia Cnty.

Sch. Bd., 261 F. App’x. 274, 277 (11th Cir. 2008) (quoting Byrne v. Nezhat, 261 F.3d 1075, 1128-

29 (11th Cir. 2001)). “Shotgun pleadings, whether filed by plaintiffs or defendants, exact an

intolerable toll on the trial court’s docket, lead to unnecessary and unchanneled discovery, and

impose unwarranted expense on the litigants, the court and the court’s parajudicial personnel and

resources. Moreover, justice is delayed for the litigants who are ‘standing in line,’ waiting for their

cases to be heard.” Jackson v. Bank of Am., N.A., 898 F.3d 1348, 1356-57 (11th Cir. 2018) (quoting

Cramer v. Fla., 117 F.3d 1258, 1263 (11th Cir. 1997)).

Overall, shotgun pleadings do not establish a connection between “the substantive count

and the factual predicates . . . [and] courts cannot perform their gatekeeping function with regard

to the averments of [the plaintiff’s claim].” Wagner v. First Horizon Pharm. Corp., 464 F.3d 1273,

1279-80 (11th Cir. 2006). The Eleventh Circuit has identified four types of shotgun pleadings:

The most common type—by a long shot—is a complaint containing multiple counts

where each count adopts the allegations of all preceding counts, causing each

successive count to carry all that came before and the last count to be a combination

of the entire complaint. The next most common type, at least as far as our published

opinions on the subject reflect, is a complaint that does not commit the mortal sin

of re-alleging all preceding counts but is guilty of the venial sin of being replete

with conclusory, vague, and immaterial facts not obviously connected to any

particular cause of action. The third type of shotgun pleading is one that commits

the sin of not separating into a different count each cause of action or claim for

relief. Fourth, and finally, there is the relatively rare sin of asserting multiple claims

against multiple defendants without specifying which of the defendants are

responsible for which acts or omissions, or which of the defendants the claim is

brought against. The unifying characteristic of all types of shotgun pleadings is that

they fail to one degree or another, and in one way or another, to give the defendants

adequate notice of the claims against them and the grounds upon which each claim

rests.

Merch. One, Inc. v. TLO, Inc., No. 19-CV-23719, 2020 WL 248608, at *3 (S.D. Fla. Jan. 16, 2020)

(quoting Weiland v. Palm Beach Cty. Sheriff’s Office, 792 F.3d 1313, 1321-23 (11th Cir. 2015)

(footnotes omitted)). Shotgun pleadings are condemned by the Eleventh Circuit, which has

specifically instructed district courts to dismiss shotgun pleadings as “fatally defective.” B.L.E. v.

Georgia, 335 F. App’x. 962, 963 (11th Cir. 2009) (citations omitted).

C. General Maritime Law

In cases involving alleged torts “committed aboard a ship sailing in navigable waters,” the

applicable substantive law is general maritime law, the rules of which are developed by the federal

courts. Keefe v. Bahama Cruise Line, Inc., 867 F.2d 1318, 1320 (11th Cir. 1989) (citing Kermarec

v. Compagnie Generale Transatlantique, 358 U.S. 625, 628 (1959)); see also Everett v. Carnival

Cruise Lines, 912 F.2d 1355, 1358 (11th Cir. 1990) (“Because this is a maritime tort, federal

admiralty law should control. Even when the parties allege diversity of citizenship as the basis of

the federal court’s jurisdiction (as they did in this case), if the injury occurred on navigable waters,

federal maritime law governs the substantive issues in the case.”). In the absence of well-developed

maritime law, courts may supplement the maritime law with general common law and state law

principles. See Smolnikar v. Royal Caribbean Cruises, Ltd., 787 F. Supp. 2d 1308, 1315 (S.D. Fla.

2011).

III. DISCUSSION

A. Count I1

Defendant first argues that Plaintiff fails to properly plead a claim for negligent failure to

warn in Count I. See ECF No. [24] at 2-6. Defendant submits that Plaintiff does not allege any

facts that establish Defendant’s notice. See id. at 2-5 (citing Weiner v. Carnival Cruise Lines, No.

11-CV-22516, 2012 WL 5199604, at *3 (S.D. Fla. Oct. 22, 2012); Moseley v. Carnival Corp., 593

F. App’x 890, 891-93 (11th Cir. 2014)). The SAC’s allegations regarding prior substantially

similar incidents do not constitute allegations of notice because the incidents merely support “a

generalized theory of foreseeability” and do not answer “questions of how and why Defendant

knew or should have known of the conditions.” Id. at 4-5 (citing Harding v. NCL (Bah.) Ltd., 90

F. Supp. 3d 1305, 1307 (S.D. Fla. 2015); Holland v. Carnival Corp., No. 20-21789-CIV, 2021 WL

86877, at *2 (S.D. Fla. Jan. 11, 2021)) (emphasis omitted); see also id. at 9-15. Plaintiff also failed

to allege “the length of time for which the alleged dangerous condition existed prior to Plaintiff’s

alleged incident” to establish constructive notice. Id. at 5. In addition, Defendant argues that the

SAC does not allege that the subject condition was not open and obvious. See id. at 5-6 (citing

Spall v. NCL Bah., Ltd., 275 F. Supp. 3d 1345, 1349 (S.D. Fla. 2016) (dismissing a complaint

because the “Plaintiffs have failed to allege that any danger was not open and obvious to

Plaintiff.”); Navarro v. Carnival Corp., No. 19-21072-CIV, 2020 WL 1307185, at *2 (S.D. Fla.

2020) (dismissing a complaint because it “fails to allege that the risk creating condition was ‘not

open and obvious.’” (citation omitted)).

1 For clarity, the Court proceeds by analyzing the parties’ arguments as they relate to each Count.

Plaintiff responds that the SAC alleges sufficient facts to evidence that Defendant was on

actual and constructive notice of the dangerous condition. See ECF No. [27] at 2-6. Plaintiff

submits that the SAC alleges that one of Defendant’s crewmembers was aware of the dangerous

condition and attempted to clean up the area, thus giving Defendant actual notice. See id. at 4.

Further, Plaintiff argues that he properly alleged prior substantially similar incidents to establish

constructive notice. See id. at 4-5. Plaintiff also argues that evidence of a corrective action can

establish notice of a dangerous condition. See id. at 5-6. Lastly, Plaintiff points out that although

he is not required to allege that the dangerous condition is not open and obvious at this stage of

the proceedings, the SAC alleges that the danger was not open and obvious. See id. at 7-8 (citing

Joseph v. Carnival Corp., No. 11-20221-CIV, 2011 WL 3022555, at *4 (S.D. Fla. July 22, 2011);

Prokopenkov. Royal Caribbean Cruises Ltd., No. 10-20068-CIV-HUCK, 2010 WL 1524546 at *3

(S.D. Fla. Apr.15, 2010)).

The Court agrees with Plaintiff. “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 v. NCL (Bahamas) Ltd., 920 F.3d 710, 720 (11th Cir.

2019) (quoting Chaparro, 693 F.3d at 1336). Further, “[i]t is clearly established that cruise lines

owe their passengers a duty to warn of known or foreseeable dangers.” Flaherty v. Royal

Caribbean Cruises, Ltd., No. 15-22295, 2015 WL 8227674, at *3 (S.D. Fla. Dec. 7, 2015).

However, in order to have a duty to warn of a danger, the cruise line must have “actual or

constructive notice of the unsafe condition.” Horne v. Carnival Corp., 741 F. App’x 607, 608 (11th

Cir. 2018) (citing Keefe, 867 F.2d at 1322).

The Court is not persuaded by Defendant’s argument that Plaintiff fails to allege any facts

to demonstrate notice and that the SAC’s allegations regarding prior substantially similar incidents

merely support a generalized theory of foreseeability. A review of the SAC indicates that Plaintiff

alleged that Defendant’s crewmember was aware of and attempted to correct the dangerous

condition, thus alleging Defendant’s actual notice. See ECF No. [21] ¶ 16. In addition, as Plaintiff

correctly notes, “a plaintiff may 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.” Cogburn v. Carnival Corp., No. 21-11579, 2022 WL 1215196, at *4 (11th Cir.

Apr. 25, 2022) (citation and internal quotation marks omitted). Here, Plaintiff alleges fifteen (15)

prior substantially similar incidents. See ECF No. [21] ¶ 25. Those factual allegations do not

merely support a generalized theory of foreseeability. Rather, the allegations support that

Defendant was on constructive notice of a risk-creating condition that was recurring in the same

location on its vessels.2

Defendant’s reliance on Moseley, 593 F. App’x at 891-93, is unavailing for similar reasons.

In that case, the complaint did not contain any specific facts alleging notice and only set forth a

“mere possibility of misconduct.” Id. at 893. Here, the SAC alleges that at least one crewmember

knew of the dangerous condition to establish actual notice and fifteen (15) prior substantially

similar incidents to establish constructive notice. See ECF No. [21] ¶¶ 16, 25; see also Cogburn,

2022 WL 1215196, at *4. In addition, Defendant relies on Harding to argue that Plaintiff must

plead additional factual allegations to establish how and why the prior incidents gave Defendant

2 In Cogburn, 2022 WL 1215196, the Eleventh Circuit was reviewing a district court’s ruling on a motion

for summary judgment, not a motion to dismiss. Nonetheless, the case is instructive in establishing that

prior substantially similar incidents can provide the basis for constructive notice. If evidence of prior

substantially similar incidents can provide the basis for constructive notice for summary judgment purposes,

then logically, allegations of prior substantially similar incidents are sufficient to allege constructive notice

to survive a motion to dismiss.

constructive notice. However, Harding did not involve allegations of constructive notice through

substantially similar incidents and the court did not decide whether such allegations could establish

Defendant’s notice. See 90 F. Supp. 3d at 1308 (describing the complaint as “threadbare recitals

of the elements of a cause of action”). Similarly, to the extent that Defendant relies on Holland,

2021 WL 86877, at *2, to argue that allegations regarding the “frequent nature of prior slip and

fall incidents” in the area in question are insufficient to allege constructive notice, the Court is not

persuaded. In Holland, the complaint alleged, in a conclusory manner, that “[a]t all material times,

the Defendant had actual and/or constructive notice of the dangerous condition described above

. . . . There are frequently spills on the staircase, a fact that Carnival is aware of due to the frequent

nature of prior slip and fall incidents on this staircase.” Holland, No. 20-21789-CIV, ECF No. [18]

¶ 14. The plaintiff in Holland spoke only in terms of generalities and made no specific factual

allegation regarding any prior substantially similar accident to demonstrate that there were prior

slip and fall incidents on the staircase in question. See id. In contrast, Plaintiff has set forth specific

factual allegations regarding fifteen (15) prior substantially similar incidents as noted above. See

ECF No. [21] ¶ 25.3 As such, Moseley, Harding, and Holland are distinguishable.4

Next, regarding the allegations of the open and obvious nature of the danger, contrary to

Plaintiff’s argument, Plaintiff is required to allege that the danger was not open and obvious. See

Spall, 275 F. Supp. 3d at 1349 (dismissing a motion to dismiss because “Plaintiffs have failed to

allege that any danger was not open and obvious to Plaintiff[s].”). Plaintiff’s reliance on Joseph,

2011 WL 3022555, at *4, and Prokopenkov, 2010 WL 1524546 at *3, are unavailing. In those

3 The Court reserves ruling on whether the incidents are, in fact, substantially similar as to give notice for

a later stage. For now, the purportedly substantially similar incidents are sufficient to support that Defendant

had constructive notice.

4 Given the Court’s determination, the Court need not address whether allegations of the length of time the

dangerous condition existed or corrective measures taken also establish constructive notice.

cases, the courts refused to make a factual determination as to whether the danger was not open

and obvious at the motion to dismiss stage. While Plaintiff is required to allege that the danger was

not open and obvious, the Court reserves ruling on whether the danger was, in fact, not open and

obvious for a later stage.

Upon review of the SAC, it is apparent that Plaintiff does allege that the danger was not

open and obvious. The SAC states that as follows:

12. Suddenly and without warning, while walking in the buffet area, Plaintiff

slipped and fell due to grease, oil, food residue, and/or slippery foreign transitory

substance.

13. This dangerous condition was not open and obvious and the Plaintiff who had

no way of knowing the existence of this condition. There was nothing he could have

done to prevent this incident.

ECF No. [21] ¶¶ 12-13. By its plain terms, paragraph 13 alleges that the “dangerous condition was

not open and obvious.” Id. ¶ 13. While the paragraph is conclusory, it is supported by the factual

allegation in paragraph 12 that “Plaintiff slipped and fell due to grease, oil, food residue, and/or

slippery foreign transitory substance.” Id. ¶ 12. The Court can reasonably infer in favor of Plaintiff,

as the Court must at this stage of the proceedings, that the danger was not open and obvious given

the inconspicuous nature of grease and oil.

In sum, Plaintiff sufficiently alleges a claim for negligent failure to warn.

B. Count II

Defendant next argues that Plaintiff fails to properly plead a claim for negligent failure to

maintain in Count II. See ECF No. [24] at 6-15. Defendant mostly repeats its prior argument based

on the lack of notice but cites several additional cases, including Malley v. Royal Caribbean

Cruises Ltd, 713 F. App’x 905, 906-08 (11th Cir. 2017), Taiariol v. MSC Crociere S.A., 677 F.

App’x 599, 601 (11th Cir. 2017), and Joseph v. Carnival Corp., No. 11-20221-CIV, 2011 WL

3022555, at *4 (S.D. Fla. July 22, 2011). Defendant argues that a cruise line’s general awareness

that passengers can become injured on its ships does not put the cruise line on notice of the specific

risk-creating condition in a given case. Defendant also cites Carter v. Frito-Lay, Inc., 144 F. App’x

815, 816 (11th Cir. 2005), to argue that unsupported conclusions of law or of mixed fact and law

do not prevent a dismissal. ECF No. [24] at 15.

For the reasons stated above, the Court is not persuaded, and the additional cases are

distinguishable. In Joseph, 2011 WL 3022555, at *4, the court determined that the plaintiff’s

wrongful death claims against a cruise line – arising from a parasailing accident caused by an

unidentified third-party parasail vendor – should be dismissed because the cruise line did not have

specific notice of the danger. The court held that “[g]eneral allegations regarding prior deaths due

to the latent dangers of parasailing and the fact that some of these deaths occurred in Cozumel are

simply insufficient” to impose a duty on the cruise line. Id. at 4. In contrast, this case does not

involve a third-party vendor who caused Plaintiff’s accident. Rather, the accident occurred on

Defendant’s vessel, which was maintained by Defendant’s employees, at least one of whom knew

of the dangerous condition. See ECF No. [21] ¶ 16. Further, the SAC does not allege that the food

service areas posed a latent danger nor does the SAC include a general allegation that some

accidents have happened in the past. Rather, the SAC specifically alleges fifteen (15) prior

substantially similar incidents in the lido deck food service areas. See ECF No. [21] ¶ 25.

Malley is similarly inapposite because the court based its decision on the fact that there was

no evidence of prior substantially similar incidents. 713 F. App’x at 908 (“[T]here is no evidence

that anyone else has ever fallen on the coaming. There is not even evidence that anyone else had a

close call or complained about the height.”). Further, in Taiariol, 677 F. App’x at 601, the Eleventh

Circuit affirmed the dismissal of the plaintiff’s negligence claim at summary judgment because

the district court appropriately determined that the prior incidents were not substantially similar.

At this stage of the proceedings, allegations of prior substantially similar incidents are sufficient

to defeat a motion to dismiss. Finally, Carter, 144 F. App’x at 816-18, is also inapposite because

that case only involved unsupported conclusory allegations, and no allegations of prior

substantially similar incidents.5

As such, Plaintiff sufficiently alleges a claim for negligent failure to maintain.

C. Count III

Defendant argues that Count III improperly reframes Plaintiff’s claims for negligent failure

to warn and negligent maintenance as a vicarious liability claim. See ECF No. [24] at 15-21.

Defendant relies on Britt v. Carnival Corp., No. 1:21-CV-22726-KMM, 2021 WL 6138848, at *5

(S.D. Fla. Dec. 29, 2021), and Quashen v. Carnival Corp., No. 1:20-CV-22299-KMM, 2021 WL

5978472, at *18 (S.D. Fla. Dec. 17, 2021), to argue that Count III should be dismissed because

Plaintiff is attempting to avoid the notice requirement of the failure to warn and failure to maintain

claims by asserting a vicarious liability claim. See id. at 16-18 (citing ECF No. [21] ¶ 51). In

addition, Defendant avers that Plaintiff fails to allege (1) how Defendant’s employees were

involved, (2) which employees were in charge of the area of the vessel at issue, (3) the name and

title of any crewmember who caused the incident, and (4) any other factually relevant details. See

id. at 19-21 (citing Hodson v. MSC Cruises, S.A., No. 20-22463-CIV, 2021 WL 3639752 (S.D.

Fla. Aug. 2, 2021)).

Plaintiff responds that pursuant to Yusko v. NCL (Bah.), 4 F.4th 1164, 1170 (11th Cir.

2021), Plaintiff is permitted to bring his claim under a theory of direct liability, vicarious liability,

or both. See ECF No. [27] at 8-9. Plaintiff also argues that Hodson is distinguishable because the

5 Given the Court’s determination, the Court need not address whether the existence of policies and

procedures to clean transitory substances or the creation of the dangerous condition by Defendant also

establishes notice.

plaintiff in that case failed to set forth evidence to support her vicarious liability claim, not because

the plaintiff was required to name which of the defendant’s employees were involved in the alleged

negligence. See id. at 9-10.

The Court agrees with Plaintiff. In Yusko, 4 F.4th at 1170, the Eleventh Circuit held that “a

passenger need not establish that a shipowner had actual or constructive notice of a risk-creating

condition to hold a shipowner liable for the negligent acts of its employees.” Thus, plaintiffs are

generally not required to allege actual or constructive notice of the danger to assert claims of

vicarious liability. However, the Eleventh Circuit’s holding does not permit plaintiffs to reframe

their negligent failure to warn and failure to maintain claims as a vicarious liability claim in an

obvious attempt to work around the notice requirement. See Britt, 2021 WL 6138848, at *5;

Quashen, 2021 WL 5978472, at *18. In Britt, the plaintiff asserted a vicarious liability claim for

negligent failure to warn and failure to maintain – count V – to work around the notice requirement

for her preceding counts asserting negligent failure to warn and failure to maintain. The defendant

filed a motion to dismiss the vicarious liability claim. The court held as follows, expressly citing

Yusko:

Given that the Eleventh Circuit in Yusko explicitly reaffirmed the notice

requirement for negligent maintenance claims in Everett and for negligent failure

to warn claims in Chaparro v. Carnival Corp., 693 F.3d 1333 (11th Cir. 2012), this

Court declines to excuse the notice requirement in this case for [c]ount V—Plaintiff

cannot maintain a vicarious liability claim arising from allegations that Defendant’s

employees negligently mopped, and therefore negligently maintained Defendant’s

premises and failed to warn . . . . Accordingly, [c]ount V of Plaintiff’s Complaint

must be dismissed.

2021 WL 6138848, at *5. Thus, while plaintiffs are generally not required to allege actual or

constructive notice of the danger to allege claims of vicarious liability, see Yusko, 4 F.4th at 1170,

if plaintiffs are attempting to bypass the notice requirement of negligent failure to warn and failure

to maintain claims by also asserting a claim for vicarious liability, then the vicarious liability claim

must be dismissed as improperly attempting to work around the notice requirement for negligent

failure to warn and failure to maintain claims, see Britt, 2021 WL 6138848, at *5; Quashen, 2021

WL 5978472, at *18.

Plaintiff alleges, “although notice is irrelevant to a claim for vicarious liability due to the

active negligence of Carnival’s crewmember, Carnival was on notice of a [sic] prior similar

incidents involving passengers suffering slip and falls on Deck Ten (10) at the buffet and Lido

Deck food service areas.” ECF No. [21] ¶ 51. Plaintiff is mistaken that notice is irrelevant. If

Plaintiff were attempting to bypass the notice requirement for negligent failure to warn and failure

to maintain claims by also asserting vicarious liability, then the failure to allege notice would be

fatal to his vicarious liability claim. However, Plaintiff is not attempting to bypass the notice

requirement of Counts I and II by asserting a vicarious liability claim under Count III. Plaintiff is

plainly alleging notice in Count III. As such, dismissal of Count III is not warranted on the basis

that it seeks to bypass the notice requirement.6

Having determined that Count III is not subject to dismissal on the basis of Yusko, the Court

proceeds to address Defendant’s argument that Plaintiff fails to set forth the necessary elements

for vicarious liability. As an initial matter, Defendant’s reliance on Hodson, 2021 WL 3639752, is

unavailing because the court in that case was addressing a motion for summary judgment, not a

motion to dismiss. The Court is unaware of any legal authority that requires the plaintiff to allege

the names of the employees who were negligent at this stage of the proceedings. Rather, in order

6 To the extent that Defendant appears to argue that the court in Britt ruled that Yusko established that

“claims for negligent maintenance and failure to warn are limited to a theory of direct liability,” the Court

disagrees. 2021 WL 6138848, at *5. Britt and Yusko did not limit negligent maintenance and failure to warn

claims as theories of direct liability in all circumstances. Britt merely held that plaintiffs may not work

around the notice requirement by reframing negligence claims under a theory of vicarious liability.

Furthermore, Yusko held that the “plaintiff is the master of his or her complaint and may choose to proceed

under a theory of direct liability, vicarious liability, or both.” 4 F.4th at 1170.

to allege vicarious liability, Plaintiff must allege that Defendant assented for its employees to act

on its behalf and that the employees were subject to Defendant’s control under classic agency

principles. See Flaherty v. Royal Caribbean Cruises, Ltd., 172 F. Supp. 3d 1348, 1352 (S.D. Fla.

2016). Alternatively, Plaintiff must allege that Defendant made a manifestation that caused a third

party to reasonably believe that the employees had the authority to act for the benefit of Defendant

under a theory of apparent agency. See id.

In this case, Plaintiff does not make clear whether he is proceeding under classic agency

principles or a theory of apparent agency. See generally ECF No. [21]. Nonetheless, under either

theory, the SAC makes apparent that the employees were employed by Defendant and therefore

acting on its behalf. See ECF No. [21] ¶¶ 49-57. The SAC further alleges that Defendant’s

employees were negligent in failing to warn and failing to maintain and thus breached their duty

of care owed to Plaintiff, the breach actually and proximately caused Plaintiff’s injury, and

Plaintiff suffered actual harm. See id. Such allegations are sufficient to allege vicarious liability

against Defendant.

As such, Plaintiff has properly alleged the elements for a vicarious liability claim.

D. Count IV

Defendant argues that Plaintiff fails to properly plead a claim for negligent failure to follow

procedures and policies in Count IV. Defendant mostly repeats its prior argument based on the

lack of notice. See ECF No. [24] at 6-15. For the reasons stated above, the Court finds that Plaintiff

properly alleges notice through the crewmember who was aware of the danger and prior

substantially similar incidents. See ECF No. [21] ¶¶ 16, 25.

Defendant also argues that Count IV is a shotgun pleading. See ECF No. [24] at 21-23.

Defendant avers that Plaintiff offers no additional factual allegations to support his claims in Count

IV and introduces no new legal theories for Defendant’s breach of any duty. See id. Instead,

Plaintiff merely recites the generalizations found in Counts I, II, and III. See id. The causes of

action contained in Count IV of Plaintiff’s SAC are separate causes of action that must be asserted

independently and with additional supporting factual allegations. See id. at 22 (quoting Garcia v.

Carnival Corp., 838 F. Supp. 2d 1334, 1337 n.2 (S.D. Fla. 2012); quoting Brown v. Carnival

Corp., 202 F. Supp. 3d 1332, 1338 (S.D. Fla. 2016)).

Plaintiff responds that Count IV is not a shotgun pleading. See ECF No. [27] at 10-12.

Plaintiff submits that Count IV does not incorporate the allegations of other counts, does not fail

to identify the facts relevant to each claim such that it is difficult to understand the factual

allegations underlying each count, and instead includes allegations that sufficiently raise a

reasonable expectation that discovery will reveal evidence corroborating his claims. See id.

The Court agrees with Plaintiff. The Court reiterates that the Eleventh Circuit has

established four (4) types of shotgun pleadings. See Weiland, 792 F.3d at 1321-23. Count IV does

not fall under any type. First, Count IV does not adopt the allegations of all preceding counts. See

ECF No. [21] ¶¶ 58-66. Second, Count IV does not have conclusory, vague, and immaterial facts

that are not connected to any particular cause of action. See id. Instead, Count IV alleges

Defendant’s failure to “close off the dirty and/or slippery areas on the deck[,]” “correct hazardous

conditions[,]” “promulgate and/or enforce adequate procedures to keep the subject flooring area

free of foreign transitory substances[,]” and “adequately test the coefficient of friction and slip

resistance of the flooring surface before opening it up to passengers[.]” See id. ¶ 62. Such

allegations are not conclusory and support a claim for Defendant’s negligent failure to follow

policies and procedures. To the extent that Defendant argues that such allegations are repetitive

and also support the preceding Counts, the Court notes that identical factual allegations can form

the basis for multiple counts.

Third, Count IV need not be separated into different counts. The factual allegations support

the single count of negligent failure to follow policies and procedures to keep the area in question

safe for passengers. See id. ¶¶ 58-66. Further, Defendant’s reliance on Garcia, 838 F. Supp. 2d at

1337 n.2, and Brown, 202 F. Supp. 3d at 1338, is unavailing. Garcia involved a complaint with

twenty-one (21) breaches in a single count for a general failure to provide “reasonable care under

the circumstances,” 838 F. Supp. 2d at 1337, and Brown involved a complaint with forty-one (41)

breaches of the defendant’s “reasonable or ordinary duty of care,” 202 F. Supp. 3d at 1338. In

contrast, Count IV sets forth only four (4) breaches that coherently describe a breach of

Defendant’s duty to follow policies and procedures, not a generalized failure to provide reasonable

care under the circumstances. See ECF No. [21] ¶ 62. Fourth, given that Plaintiff is asserting claims

against Defendant only, Count IV obviously does not assert claims against multiple defendants

without specifying which of the defendants are responsible for which acts or omissions.

As such, Count IV properly alleges notice and is not a shotgun pleading that warrants

dismissal.

I. CONCLUSION

Accordingly, it is ORDERED AND ADJUDGED as follows:

1. Defendant’s Motion, ECF No. [24], is DENIED.

2. Defendant shall file an Answer to Plaintiff’s Second Amended Complaint, ECF

No. [21], by no later than July 21, 2022.

Case No, 22-cv-20192 -BLOOM/Otazo-Reyes

DONE AND ORDERED in Chambers at Miami, Florida, on July 11, 2022.

BETH BLOOM

UNITED STATES DISTRICT JUDGE

Copies to:

Counsel of Record

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