Tuite v. Carnival Corporation

United States District Court

for the

Southern District of Florida

Robert E. Tuite, Plaintiff, )

)

v. ) Civil Action No. 23-20614-Civ-Scola

)

Carnival Corporation, dba )

Carnival Cruise Line, Defendant. )

Order Granting the Defendant’s Motion for Summary Judgment

Plaintiff Robert E. Tuite seeks to recover damages for physical injuries he

sustained while a passenger aboard one of Defendant Carnival Corporation’s

ships. (Compl., ECF No. 1.) Tuite complains that he suffered severe bodily

harm—including a traumatic brain injury, forehead lacerations, and injuries to

his shoulder, neck, knee, and back—when he tripped and fell over a raised

metal threshold abutting worn carpeting in the dining area of the Carnival

Sunshine. (Id. ¶ 12.) Tuite also says that as a direct result of these injuries, he

contracted pneumonia. (Id.) His complaint is comprised of three counts: a

failure-to-warn claim (count one); a negligent-maintenance claim (count two);

and a general-negligence claim (count three), which is somewhat duplicative of

count two. Carnival has filed a motion for summary judgment, arguing, among

other things, that it is entitled to judgment in its favor on all three claims as

there is no record evidence that Carnival had notice that the threshold was

dangerous. (Def.’s Mot., ECF No. 26.) In opposition, Tuite submits there is

overwhelming evidence establishing Carnival’s notice of the hazardous

threshold. (Pl.’s Resp., ECF No. 36.) Carnival has timely replied (Def.’s Reply,

ECF No. 40) and the motion is ripe for review. For the reasons set forth below,

the Court grants Carnival’s motion for summary judgment on all three counts

of Tuite’s complaint (ECF No. 26).

1. Background1

Tuite was a passenger on the Sunshine, boarding in Charleston, South

Carolina, on March 7, 2022. (Def.’s Stmt. of Facts ¶ 1, ECF No. 25, 1.) On

March 10, Tuite attempted to walk towards a buffet area, on deck 9 in an area

of the ship called the Lido Deck Marketplace, by traversing across a threshold

from a carpeted area to a tiled area. (Id. ¶¶ 2, 3, 12, 13; Pl.’s Stmt. of Facts ¶

13, ECF No. 35.) Carnival describes the “carpeted flooring” as being “secured

1 Except where indicated, the facts are undisputed.

by a metal fastener to a tiled area” and references a photograph taken by

Tuite’s wife on the day of his fall:

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(Def.’s Stmt. 7 3 (citing Exh. 2, ECF No. 22-2).) Another photograph, taken by

ship personnel, shows the threshold from a different angle:

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(Id., Exh. 4, ECF No. 25-4.) Tuite complains that these pictures do not capture

the height change between the metal fastener or tile and a spot on the carpet

several inches from the fastener, varying between *% of an inch and 1 inch.

(Pl.’s Stmt. 47 16, 31.) Instead, Tuite points to a photograph taken by his

expert, Frank A. Fore, viewing the threshold area from ground level and

perpendicularly to Tuite’s direction of travel when he fell:

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(Id. § 32 (depicting Fig. 13 from Fore’s Rep., ECF No. 34-1, 41).)

In any event, as Tuite crossed the threshold on March 10, as he had at

least once before without incident, his foot caught on a metal fastener bar,

separating the carpeting from the tile. (Pl. Dep. at 74:14-16, ECF No. 29-1, 20;

Def.’s Stmt. 47 10, 11; Pl.’s Stmt. 7 13-15.) Tuite recalls looking down, as or

just after his foot caught, and then tipping forward, landing on his hip,

shoulder, and face. (Pl. Dep. at 74:14-16; Def.’s Stmt. 4 13.) The severity of

Tuite’s injuries necessitated emergency treatment onboard the ship and then

transfer by air ambulance to a hospital on land. (Pl.’s Stmt. 7 22.) The parties

do not dispute that Tuite was not looking at the floor as he walked but was

instead looking out for other people who were milling about in the busy

breakfast area. (Def.’s Stmt. 914; Pl.’s Stmt. 94 13, 14.)

For at least three years before Tuite’s fall, the carpet and tiling, including

the metal transition bar between them, have been in the same configuration

and condition. (Def.’s Stmt. 4-6, 29.) Carnival maintains that, within that

timeframe, no one else has tripped on that threshold or any similar threshold

in that area of the ship. (Id. 7 8.) Tuite, on the other hand, points out that at

least two other passengers have tripped there: an unnamed passenger that

Tuite’s wife saw trip; and Mark Auerbach, the Tuites’ friend and traveling

companion, who also tripped as he was traversing the threshold from the

carpeted side to the tile side—both occurring on March 9, the day before Tuite

fell. (Pl.’s Stmt. 74 18, 19.) As to the unnamed passenger, Tuite’s wife said he

appeared to stumble, but caught himself before falling, and she was unsure

what caused his misstep, speculating that he might have bumped into a child.

(M. Smith-Tuite Dep. 50:17–51:7, ECF No. 28-1, 14.) Auerbach says that he too

tripped at the same threshold, also without falling, but that he didn’t tell

anybody about it. (Auerbach Dep. 27:22–28:12, ECF No. 30-1, 8.)

One of Carnival’s security officers, Mrugesh Patel, testified as to

investigating other trip and falls in the dining hall area, but for “different

reasons,” explaining, it appears, that he hadn’t previously encountered an

incident like the one involving Tuite’s fall. (Patel Dep., 16:17–21, ECF No. 31-1,

5.) While his meaning isn’t entirely clear, Patel said, in reference to the

threshold, “It’s the first time I see the metal strip between they are faced this

and then. There is many reason and other regions that I encountered.” (Id. at

16:25–17:3 (reproduced exactly as in original).) Sumit Kumar Ale, Carnival’s

assistant chief of security, testified that he was aware of many falls occurring,

sometime as many as once a week or even once a day, in Lido Deck

Marketplace areas, across multiple ships. (Ale Dep., 16:2–16, ECF No. 32-1, 5.)

And Dr. Aleksander Duravic, the Carnival physician who ordered Tuite to be

transported by emergency air transport off the ship because of the severity of

his injuries, testified that, depending on various factors, he can treat as many

as five ship passengers a month for fall-related injuries. (Duravic Dep., 30:6–

22, ECF No. 33-1, 9.) The doctor also testified that he has most likely treated at

least one other passenger, aside from Tuite, for injuries resulting from falling

on the Lido deck. (Id. at 30:23–31:1.)

2. Legal Standard

Under Federal Rule of Civil Procedure 56, “summary judgment is

appropriate where there ‘is no genuine issue as to any material fact’ and the

moving party is ‘entitled to a judgment as a matter of law.’” See Alabama v. N.

Carolina, 130 S. Ct. 2295, 2308 (2010) (quoting Fed. R. Civ. P. 56(a)). At the

summary judgment stage, the Court must view the evidence in the light most

favorable to the nonmovant, see Adickes v. S.H. Kress & Co., 398 U.S. 144,

158-59 (1970), and it may not weigh conflicting evidence to resolve disputed

factual issues, see Skop v. City of Atlanta, Ga., 485 F.3d 1130, 1140 (11th Cir.

2007). Yet, the existence of some factual disputes between litigants will not

defeat an otherwise properly grounded summary judgment motion; “the

requirement is that there be no genuine issue of material fact.” Anderson v.

Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). Where the record as a whole

could not lead a rational trier of fact to find in the nonmovant’s favor, there is

no genuine issue of fact for trial. Matsushita Elec. Indus. Co. v. Zenith Radio

Corp., 475 U.S. 574, 587 (1986).

“[O]nce the moving party has met its burden of showing a basis for the

motion, the nonmoving party is required to ‘go beyond the pleadings’ and

present competent evidence designating ‘specific facts showing that there is a

genuine issue for trial.’” United States v. $183,791.00, 391 F. App’x 791, 794

(11th Cir. 2010) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986)).

Thus, the nonmoving party “may not rest upon the mere allegations or denials

of his pleadings, but [instead] must set forth specific facts showing that there is

a genuine issue for trial.” See Anderson, 477 U.S. at 248 (citation omitted).

“Likewise, a [nonmovant] cannot defeat summary judgment by relying upon

conclusory assertions.” Maddox-Jones v. Bd. of Regents of Univ. of Ga., 2011

WL 5903518, at *2 (11th Cir. Nov. 22, 2011). Mere “metaphysical doubt as to

the material facts” will not suffice. Matsushita, 475 U.S. at 586.

3. Analysis

At the heart of Tuite’s complaint is his allegation that Carnival breached

its duty of care based on “the hazardous change in level in walkway surface

between tile and carpet which caused [his] fall.” (Pl.’s Resp. at 1.) Carnival

argues, however, that it is entitled to summary judgment because Tuite cannot

point to any evidence that Carnival either knew or should have known of this

tripping hazard. (Id. at 5–8.) In response, Tuite counters that Carnival’s

knowledge of the hazard is readily established by record evidence showing (1)

the threshold area remained unchanged for three years prior to Tuite’s fall; (2)

numerous prior falls and near falls in the area; and (3) Carnival’s failure to

comply with industry safety standards for walkway surfaces. (Pl.’s Resp. at 1–

2.) After careful review, the Court agrees with Carnival: under controlling

Eleventh Circuit precedent, Tuite has failed to come forward with evidence from

which the Court could infer that Carnival had notice of the threshold area’s

dangerous condition prior to his fall.

Tuite essentially seeks, not illogically, to hold Carnival liable for an

allegedly hazardous condition that Carnival itself either created or maintained.

Under controlling Eleventh Circuit case law, however, this is not enough.

Instead, in this Circuit, “as a prerequisite to imposing liability,” under federal

maritime law, “the carrier [must] have had actual or constructive notice of the

risk-creating condition.” Keefe v. Bahama Cruise Line, Inc., 867 F.2d 1318,

1322 (11th Cir. 1989). Accordingly, “a cruise ship operator’s liability hinges on

whether it knew or should have known about the dangerous condition.”

Guevara v. NCL (Bahamas) Ltd., 920 F.3d 710, 720 (11th Cir. 2019) (cleaned

up). While Tuite makes no real argument that Carnival had actual notice, both

parties agree that constructive notice, in turn, may be established with

evidence either (1) “that the defective condition existed for a sufficient period of

time to invite corrective measures,”; or (2) “of substantially similar incidents in

which conditions substantially similar to the occurrence in question must have

caused the prior accident.” Id. (cleaned up). Without actual notice, the Eleventh

Circuit’s notice requirement demands evidence that a cruise ship operator

“should have known” about the unreasonably dangerous condition before

negligence liability can attach. Id. (emphasis added).

The Court will address Tuite’s argument as to prior similar incidents first

and then address his other two points—timing and industry-standard non-

compliance—together, as they are interrelated.

A. Tuite fails to present evidence of prior substantially similar

incidents that would establish constructive notice.

According to Tuite, “there is ample evidence of past falls in the Lido Deck

Marketplace which are substantially similar to [his] fall.” (Pl.’s Resp. at 8.) In

support, he points to Ale’s testimony that there are frequent falls in the Lido

Deck Marketplace; Dr. Duravic’s testimony that he has treated other

passengers who have fallen in the Lido Deck Marketplace; Auerbach’s

testimony that he tripped (but didn’t fall) at the same threshold, the day before

Tuite fell; and Tuite’s wife’s testimony that she saw another passenger trip and

nearly fall near the threshold, also the day before Tuite fell. (Pl.’s Resp. at 8.) In

his statement of facts, Tuite also mentions that Patel testified that he has

investigated many falls in the dining areas of Carnival ships as well. (Pl.’s Stmt.

¶ 23.) But after careful review, the Court is not persuaded that any of this

evidence establishes Carnival’s constructive notice of the hazard.

To demonstrate constructive notice, a plaintiff may invoke the

“substantial similarity” doctrine and “point to previous injuries or show that

the defendant previously warned of the danger.” Malley v. Royal Caribbean

Cruises Ltd, 713 F. App’x 905, 908 (11th Cir. 2017); Sorrels v. NCL (Bahamas)

Ltd., 796 F.3d 1275, 1287 (11th Cir. 2015). As both parties acknowledge, this

doctrine “does not require identical circumstances,” but instead “allows for

some play in the joints depending on the scenario presented and the desired

use of the evidence.” Sorrels, 796 F.3d at 1287. Despite this flexibility, to

qualify as “substantially similar,” as Tuite concedes, the incidents must

nonetheless have at least occurred under similar circumstances or share the

same cause. Roberts v. Carnival Corp., 21-11792, 2022 WL 2188010, at *5

(11th Cir. June 17, 2022). Importantly, the substantial similarity doctrine

“requires that before evidence of prior incidents or occurrences is admitted into

evidence, the proponent of such evidence,” here Tuite, “must show that

conditions substantially similar to the occurrence caused the prior incidents.”

Heath v. Suzuki Motor Corp., 126 F.3d 1391, 1397 n. 12 (11th Cir. 1997).

With respect to the falls described by Ale, Patel, Dr. Duravic, and Tuite’s

wife, Tuite fails to supply any details from which the Court could possibly infer

substantial similarity. Roberts, 2022 WL 2188010 at *5 (“[The plaintiff] offers

no details as to the circumstances of those other incidents, so we cannot

determine whether they were substantially similar.”). Tuite describes the

incidents mentioned by Ale and Dr. Duravic (and Patel) in purely generic terms

as, simply, “falls in the Lido Deck Marketplace.” (Pl.’s Stmt. ¶¶ 23, 26, 27.)

Further, as to the trip and near fall described by Tuite’s wife, she acknowledged

that she could not see what caused the other passenger to trip and even

speculated that he might have bumped into a child. (M. Smith-Tuite Dep. at

50:17–51:7.) Without anything more, the Court cannot conclude that Tuite’s

proffers of these falls, or the near fall, satisfactorily “show that conditions

substantially similar to the occurrence caused the prior incidents.” Heath, 126

F.3d at 1397 n. 12.

Nor does Tuite’s proffer of Auerbach’s incident salvage his allegations of a

substantially similar incident. Although the same condition appears to have

caused Auerbach’s stumble, Auerbach never actually fell nor did he report the

incident to Carnival (or anyone, apparently). (Auerbach Dep. at 27:22–28:4.)

Tuite fails to provide any support for the notion that a ship operator’s notice of

a dangerous condition can be construed from an incident that resulted in no

injury and of which, notably, the operator had no knowledge. Indeed, the Court

concludes that attributing notice to Carnival, based on an incident of which it

had no knowledge and which didn’t even cause any harm, would make little

sense. See Sutton v. Royal Caribbean Cruises Ltd., 774 F. App’x 508, 511–12

(11th Cir. 2019) (finding a lack of constructive notice where the plaintiff failed

to “identify any prior accident reports, passenger reviews or complaints,

inspection reports, or other documents evidencing any actual or potential

safety issues . . . on the subject vessel or other . . . vessels that would alert the

cruise ship operator to any danger”). Ultimately, “[t]he mere implication of

actual or constructive notice is insufficient to survive summary judgment.” Id.

at 512.

B. Tuite’s argument and evidence regarding the length of time the

threshold remained allegedly noncompliant with various safety

standards fails to demonstrate Carnival’s constructive notice.

Tuite points to a combination of, on the one hand, safety standards that

he says the threshold area violated and, on the other, the length of time the

threshold was allegedly non-compliant. (Pl.’s Resp. at 5–7, 9–11.) His argument

appears to be twofold: (1) evidence of the prolonged the length of time alone, in

which the threshold remained in its allegedly dangerous state, is enough to

trigger Carnival’s constructive notice of the hazard and (2) this evidence (that

the threshold remained unchanged for at least three years prior to Tuite’s fall),

or other evidence, combined with the safety-standard violations also

establishes Carnival’s notice. (Id.) Based on Eleventh Circuit precedent, Tuite’s

arguments miss the mark on several fronts.

On the one hand, Tuite is certainly correct when he highlights the

principle that a plaintiff can establish constructive notice by showing that a

hazard existed “for a period of time so lengthy as to invite corrective measures.”

Holland v. Carnival Corp., 50 F.4th 1088, 1095 (11th Cir. 2022). But his

interpretation of that principle, in applying it here, essentially guts the second

part of the instruction: requiring the defective condition to not only exist for a

sufficient period of time, but to also invite corrective measures. Instead, Tuite

simply highlights (1) the numerous safety codes that his expert says are

violated by the height difference between the metal threshold and part of the

carpet near that threshold; (2) Carnival’s frequent cleaning of the highly

trafficked threshold; and (3) Carnival’s security personnel’s ignorance of the

relevant safety regulations. (E.g., Pl.’s Resp. at 6.) But none of this provides any

evidence from which the Court could infer that the hazard was “reasonably

detectable” so as to invite corrective measures. Tesoriero v. Carnival Corp., 965

F.3d 1170, 1179 (11th Cir. 2020).

In fact, Fore’s own inspection and description of the area indicates just

the opposite: that the hazardous nature of the threshold and its noncompliance

was not reasonably detectable at all. For instance, the safety standards

identifying specific metrics that Fore says were violated appear to address

localized or abrupt changes in floor height, not changes in height that occur

over a distance. In particular, for example, the Draft Passenger Vessel

Accessibility Guidelines and the Standard Practice for Safe Walking Surfaces

both identify “changes in levels” of between ¼ inch and ½ inch and of greater

than ½ inch as requiring “bevel[ing]” or “ramp[ing],” respectively. (Fore’s Rep.,

ECF No. 34-1, 10–11.) As the guidelines elaborate, the former (beveling)

requires a slope that is “not steeper than 1:2” and the latter (ramping) requires

a “running slope not steeper than 1:12.” (Id. (emphasis in original).) But even

Fore is unable to demonstrate what he believes to be the noncompliance of the

walkway without using somewhat technical tools: the level and ruler (as

depicted in section 1, above, from Fore’s figure 13) and an implement called a

“contour gauge” which he uses to graphically map the floor profile (as shown

below), both viewed from ground level and perpendicularly to the threshold:

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(Fore’s Rep. at 20-21, Figs. 14, 15.) As Tuite himself acknowledges, even the

photographs that Carnival’s security officer took “fail to even suggest a height

irregularity between the two surfaces.” (Pl.’s Resp. at 6.) Further, that Carnival

personnel had to have seen the threshold repeatedly, as it was frequently

cleaned, weighs even further against a finding of constructive notice. See

Sutton, 774 F. App’x at 511 (noting that a ship operator’s “regular inspections”

weigh against a finding of constructive notice); Tesoriero, 965 F.3d at 1179

(noting that where there is no report of a hazard and a daily inspection policy

requires personnel to report and document any damage, “[t]he lack of a report

noting structural damage,” “indicates that the [damaged item] was not ina

condition that invited corrective measures”). In sum, Tuite fails to point to any

evidence in the record that the hazardous nature of the threshold area should

have been readily apparent to Carnival.

In the end, Tuite’s interpretation of this constructive-notice standard

would amount to nothing more than an end run around long-standing

Eleventh Circuit precedent that says notice of a defect cannot be imputed to a

ship operator simply because it created or maintained a dangerous condition.

Everett v. Carnival Cruise Lines, 912 F.2d 1355, 1359 (11th Cir. 1990)

(reversing the district court where jury instructions could have allowed a jury

to find a ship operator negligent based only its “mere creation or maintenance

of a defect” without any finding of notice). Unless there is something about the

hazard that should have “invited” Carnival to take corrective action, notice

cannot be imputed simply by the passage of time. See Francis v. MSC Cruises,

S.A., 546 F. Supp. 3d 1258, 1266 (S.D. Fla. 2021) (Moreno, J.), aff'd, 21-

12513, 2022 WL 4393188 (11th Cir. Sept. 23, 2022) (“[I]Jn order for the

industry standards to put a defendant on notice of an alleged dangerous

condition .. .a plaintiff must put forth evidence of industry standards related

to the timing or frequency of a required inspection and such evidence must

raise a reasonable inference that the cruise line should have known about an

allegedly dangerous condition.”). That is, Carnival’s “[k]nowledge that the

condition exists is not sufficient,” instead, a “defendant must also know that

the condition is dangerous.” Malley, 713 F. App’x at 908.

Tuite’s slight twist on this argument, that constructive notice may also

be proven through evidence that the allegedly dangerous condition failed to

comply with industry safety standards for a lengthy period of time also fails.

(Pl.’s Resp. at 9–11.) While his supposition isn’t wholly unreasonable, the Court

finds he has failed to show that Eleventh Circuit precedent would support his

theory in this case. An expert’s determination that a shipboard condition fails

to comply with safety standards, no matter how long it has been in that

condition, standing alone, fails to connect the noncompliance to a showing that

the carrier should have known about the noncompliance. In other words, Tuite

must still go beyond the mere fact of the alleged noncompliance and show that,

again, there is something about the hazard that should have prompted

Carnival to recognize and correct it. Importantly, the four cases Tuite relies on

illustrate this hurdle and otherwise fail to support his position.

For example, in Sorrels, the only binding case Tuite cites, the Eleventh

Circuit was careful not to overemphasize the significance of evidence regarding

industry standards. 796 F.3d at 1282. In doing so, the court there recognized

that, while “evidence of custom within a particular industry, group, or

organization is admissible as bearing on the standard of care in determining

negligence,” “[c]ompliance or noncompliance with such custom,” is nonetheless

“not conclusive on the issue of negligence,” and is instead just “one of the

factors the trier of fact may consider in applying the standard of care.” Id.

(emphasis added). Also important to note is that in Sorrels, the court’s

industry-standards analysis was in response to the parties’ dispute regarding

the admissibility of expert-witness testimony opining on industry standards

related to the slipperiness of wet walkways. Indeed, the court later separately

evaluated whether the plaintiffs in that case had established notice and

confined its assessment to evidence only of similar incidents and the cruise

operator’s posting of warning signs—omitting any mention whatsoever of

noncompliance with industry standards as bearing on that issue. Id. at 1287–

89. In sum, there is nothing from Sorrels that supports Tuite’s theory that

constructive notice can be established through showing only that industry

standards were violated and that they were violated for an extended period of

time.

Although not binding, the Court will nonetheless address the other three

cases Tuite relies on as well. Tuite centers the majority of his argument on

Holderbaum v. Carnival Corp., a district court case from this district. 87 F.

Supp. 3d 1345 (S.D. Fla. 2015) (Lenard, J.). In that case, the ship-passenger

plaintiff sought damages for injuries she sustained when she fell down a ship

stairwell after her foot got caught on a metal strip on the nosing of the top

tread. As Tuite points out, the Court there denied the defendant’s motion for

summary judgment, finding in favor of the plaintiff, among other things, on the

notice issue. Tuite zeroes in on the Holderbaum court’s basing its conclusion

“on the prior incidents and the evidence of non-compliance with the various

safety standards” to support his position. Id. at 1356. But finding that

violations of safety standards and other evidence can, together, qualify as

evidence sufficient to establish constructive notice is a far cry from Tuite’s

theory that an extended period of non-compliance with industry standards

alone is sufficient. And, underscoring that point, the Holderbaum court went on

to highlight abundant other evidence establishing the cruise ship operator’s

notice of the hazard: the presence of “Watch Your Step” warning signs in

comparable locations on other ships of the same class; numerous other

passengers on not only similar ships but also on the very same ship, who “had

suffered nearly-identical accidents prior to [the p]laintiff’s fall”; management

committee discussions of each incident, followed by investigations, shortly after

they occurred; and, after one of those accidents on a sister ship, before the

plaintiff’s fall, the staff captain of that ship ordered periodic checks on all stairs

to immediately rectify any similar conditions. Id. at 1354. In light of all this

other evidence, discussed in detail by the court, Tuite’s theory that Holderbaum

supports his proposition, that prolonged noncompliance with safety standards

alone can establish notice, is unavailing.

Andersen v. Royal Caribbean Cruises Ltd. is similarly unhelpful. 543 F.

Supp. 3d 1346, 1357 (S.D. Fla. 2021) (Bloom, J.). There, the district court

opined that “evidence that an allegedly dangerous condition failed to comply

with industry safety standards, together with other evidence of notice, can be

used to establish constructive notice.” Id. (emphasis added). Importantly, the

“other evidence of notice” in that case included multiple crewmembers’ actual

knowledge that water had been puddling on a vinyl floor and their failure to

caution the plaintiff passenger about the unreasonably slippery floor. This does

not, as Tuite submits, amount to a finding by the court there that evidence of

“non-compliance with industry standards paired with a showing of the length

of time that the hazardous condition existed” can establish constructive notice.

(Pl.’s Resp. at 10.) Nothing in Andersen supports Tuite’s theory that the mere

existence of a hazard for a substantial time period, without some other showing

that the hazard’s dangerous nature was readily apparent, amounts to “other

evidence of notice.”

Finally, Bunch v. Carnival Corp. cannot be read to support Tuite’s

position either. 825 F. App’x 713 (11th Cir. 2020). There the plaintiff passenger

tripped and fell when her foot hit a raised, four-inch-high threshold that was

camouflaged by carpeting reflected onto its shiny surface. While the court there

recognized, in passing, that non-compliance with industry standards could

amount to “some evidence” of a dangerous condition, it also noted that such

standards were certainly “not conclusive.” Id. at 716. Moreover, in reversing the

district court’s decision to grant summary judgment in the ship operator’s

favor, the court in Bunch pointed to evidence of similar prior incidents,

corrective actions, and warning signs, omitting any mention of whether the

threshold complied with applicable safety standards. Id. at 718. Again, nothing

in Bunch, like the other cases cited by Tuite, supports his argument that non-

compliance with safety standards, simply by existing for prolonged periods of

time, can alone result in a finding of constructive notice.

Given Tuite’s inability to point to evidence showing that the hazardous

nature of the threshold was reasonably ascertainable or to case law otherwise

supporting his position, the Court finds that noncompliance with safety

standards, even combined with the passage of significant time, without

anything more, cannot establish Carnival’s notice in this case.

4. Conclusion

For the foregoing reasons, the Court grants Carnival’s motion for

summary judgment on Tuite’s claims. (ECF No. 26.) The Court declines to pass

on the issue of whether the hazard posed by the threshold was open and

obvious because it concludes Tuite has failed to identify evidence showing that

Carnival lacked notice of the threshold’s dangerousness.

The Clerk is directed to close this case and deny any pending motions

as moot. The Clerk is further directed to remove this case from the Court’s

trial calendar.

Done and ordered, in Miami, Florida, on January 25, 2024.

(Robert N. [4 Jr.

United States District Judge