finding the allegation that “the hazard occurred on a highly trafficked staircase that was potentially visible to many crewmembers and was subject to the regulation of safety agencies” was insufficient to plausibly allege notice
How later courts described this case
- finding the allegation that “the hazard occurred on a highly trafficked staircase that was potentially visible to many crewmembers and was subject to the regulation of safety agencies” was insufficient to plausibly allege notice
Written by the judges who cited it.
The opinion
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
CASE NO.: 1:24-cv-22260-DPG
BETSY ISON,
Plaintiff,
v.
CARNIVAL CORPORATION,
Defendant.
__________________________/
ORDER
THIS CAUSE comes before the Court on Defendant’s Motion to Dismiss Complaint.
[ECF No. 8]. The Court has considered the Motion and the record and is otherwise fully advised.
For the reasons set forth below, the Motion is GRANTED.
I. BACKGROUND1
In April 2023, Plaintiff Betsy Ison (“Plaintiff”) was traveling aboard Defendant Carnival
Corporation’s (“Defendant”) M/S “LUMINOSA” vessel. [ECF No. 1 ¶ 13]. On or around April
15, 2023, Plaintiff tripped over, and fell from, an inconspicuous loose tile(s) on the ship’s second
deck near the “Piano 88 Bar” and suffered injuries. Id. ¶¶ 11, 13–14. The loose tile “was in a high
traffic area, regularly utilized as a walkway by all individuals on board the vessel.” Id. ¶ 19.
According to Plaintiff, the loose tile “existed for a long enough period of time so . . . [Defendant]
should have detected and corrected it[.]” Id. ¶ 20. However, Plaintiff does not explain how she
estimates that length of time. Plaintiff also alleges that “the loose tile flooring on the M/S
As the Court proceeds on a motion to dismiss, it accepts the allegations in the Plaintiff’s Complaint as true. See
1Brooks v. Blue Cross & Blue Shield of Fla., Inc., 116 F.3d 1364, 1369 (11th Cir. 1997) (per curiam).
‘LUMINOSA’ was a condition that had already caused other passengers to trip and fall, so . . .
[Defendant] had actual or constructive knowledge of it[.]” Id. ¶ 21. However, Plaintiff does not
identify those other passengers.
On June 12, 2024, Plaintiff filed this action against Defendant alleging claims for Negligent
Maintenance and Negligent Failure to Warn. Id. ¶¶ 16–30. Defendant now moves to dismiss the
Complaint for failure to sufficiently allege notice. [ECF No. 8].
II. LEGAL STANDARD
To survive a motion to dismiss brought pursuant to Federal Rule of Civil Procedure
12(b)(6), a claim “must contain sufficient factual matter, accepted as true, to ‘state a claim to relief
that is plausible on its face[.]’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp.
v. Twombly, 550 U.S. 544, 570 (2007)). This means that the Complaint must contain “factual
content that allows the court to draw the reasonable inference that the defendant is liable for the
misconduct alleged.” Id. While a court must accept well-pleaded factual allegations as true,
see Brooks, 116 F.3d at 1369 (11th Cir. 1997) (per curiam), “conclusory allegations . . . are not
entitled to an assumption of truth — legal conclusions must be supported by factual allegations.”
Randall v. Scott, 610 F.3d 701, 709–10 (11th Cir. 2010).
“[T]he pleadings are construed broadly,” Levine v. World Fin. Network Nat’l Bank, 437
F.3d 1118, 1120 (11th Cir. 2006), and the allegations in the complaint “are viewed in the light
most favorable to the [P]laintiff.” See Bishop v. Ross Earle & Bonan, P.A., 817 F.3d 1268, 1270
(11th Cir. 2016). At bottom, the question is not whether the claimant “will ultimately prevail . . .
but whether h[er] complaint [is] sufficient to cross the federal court’s threshold.” Skinner v.
Switzer, 562 U.S. 521, 530 (2011) (internal quotation and citation omitted).
III. ANALYSIS
Defendant argues that the Court must dismiss Plaintiff’s claim for failure to adequately
allege notice. The Court agrees. To bring a maritime negligence claim, “a plaintiff must allege 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.” Chaparro v. Carnival Corp., 693 F.3d 1333, 1336 (11th Cir.
2012) (citation omitted). “This standard requires, as a prerequisite to imposing liability, that the
carrier have had actual or constructive notice of [a] risk creating condition . . . .” Holland v.
Carnival Corp., 50 F. 4th 1088, 1094 (11th Cir. 2022) (internal quotation omitted). Therefore, “a
shipowner’s actual or constructive knowledge of the hazardous condition arises as part of the duty
element in a claim seeking to hold the shipowner directly liable for its own negligence.” Id.
“Actual notice exists when the defendant knows of the risk creating condition.” Bujarski
v. NCL, 209 F. Supp. 3d 1248, 1250 (S.D. Fla. 2016). “Constructive notice arises when a dangerous
condition has existed for such a period of time that the shipowner must have known the condition
was present and thus would have been invited to correct it.” Id. (internal quotation omitted).
“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.” Newbauer v. Carnival Corp., 26 F.4th 931, 935 (11th Cir. 2022) (internal
quotation omitted).
Here, Plaintiff fails to sufficiently allege that Defendant had actual or constructive notice
of the risk creating condition that caused her injuries. Plaintiff alleges that Defendant had actual
or constructive notice of the loose tile(s) because that hazardous condition existed for a sufficient
period in a high traffic area and because the loose tile(s) caused other passengers to trip and fall.
[ECF No. 8 ¶¶ 21, 30]. Plaintiff provides no factual allegations to estimate the length of time the
tile was loose; nor does she identify the other passengers who tripped and fell on the same tile or
other tiles in similar circumstances. Therefore, Plaintiff’s allegations are conclusory and devoid of
any detail to show how Defendant knew or should have known about the danger. Randall, 610
F.3d at 709–10 (“conclusory allegations . . . are not entitled to an assumption of truth — legal
conclusions must be supported by factual allegations.”).
Furthermore, Courts have already found similar allegations insufficient to establish notice.
See Holland, 50 F.4th at 1095-96 (finding the allegation that “the hazard occurred on a highly
trafficked staircase that was potentially visible to many crewmembers and was subject to the
regulation of safety agencies” was insufficient to plausibly allege notice); Kendall v. Carnival
Corp., No. 1:23-CV-22921-KMM, 2023 WL 8593669, at *3 (S.D. Fla. Dec. 8, 2023) (finding the
allegation that “Defendant had notice of the allegedly dangerous condition because of the length
of time the surface had existed in a high traffic area of the ship” was insufficient to establish notice)
(internal quotation omitted); Colarte v. Carnival Corp., No. 1:24-CV-22203, 2024 WL 4124295,
at *7 (S.D. Fla. Aug. 23, 2024), report and recommendation adopted, No. 24-22203-CV, 2024
WL 4122238 (S.D. Fla. Sept. 9, 2024) (finding the allegation that “Carnival knew of the dangerous
condition through other passengers on Defendant's ships [that] have previously been injured under
similar circumstances” was insufficient to establish notice) (internal quotation omitted).
Accordingly, Plaintiff’s Complaint shall be dismissed without prejudice for failure to sufficiently
allege notice.
CONCLUSION
For the foregoing reasons, it is ORDERED AND ADJUDGED as follows:
1. Defendant’s Motion to Dismiss Complaint, [ECF No. 8], is GRANTED.
2. The case is dismissed without prejudice.
3. Plaintiff shall file an Amended Complaint on or before August 1, 2025.
DONE AND ORDERED in Chambers at Miami, Florida, this 15th day of July 2025.
DARRIN P. GAYLES
UNITED STATES DISTRICT JUDGE