Petition for Writ of Certiorari — Leigh Anne Marshall, Petitioner v. Royal Caribbean Cruises Ltd.

App. 1

APPENDIX A

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 17-10259

Non-Argument Calendar

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D.C. Docket No. 1:16-cv-21140-KMM

LEIGH ANNE MARSHALL,

Plaintiff-Appellant,

versus

ROYAL CARIBBEAN CRUISES, LTD.,

Defendant-Appellee.

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Appeal from the United States District Court

for the Southern District of Florida

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(November 30, 2017)

Before JORDAN, JULIE CARNES, and JILL PRYOR,

Circuit Judges.

PER CURIAM:

Leigh Marshall brought this maritime personal

injury action against Royal Caribbean Cruises for

injuries she allegedly sustained while on board the

App. 2

Enchantment of the Seas on March 5, 2016. It had

rained off and on throughout that day, and it was undisputed that Ms. Marshall and her traveling companions were aware of the rain and the wetness of the

external surfaces of the ship. Near midnight, as Ms.

Marshall reached the bottom of a flight of external

stairs she was descending, she slipped on a puddle on

the deck at the bottom of the stairs and twisted her

ankle.

Following discovery, the district court granted

summary judgment in favor of Royal Caribbean, concluding that any alleged danger presented by the wet

external deck was open and obvious, and that Royal

Caribbean had no duty to specifically warn Ms. Marshall of the wetness. The court also found that Ms.

Marshall had failed to present sufficient evidence that

Royal Caribbean had actual or constructive notice of

any dangerous condition regarding the wet floor or the

staircase. Ms. Marshall now appeals.

After reviewing the record and the parties’ briefs,

and for the reasons outlined in the district court’s thorough and well-reasoned discussion of the duty owed by

Royal Caribbean to Ms. Marshall, as well as the open

and obvious nature of the danger presented, we affirm.

First, Ms. Marshall cannot establish that Royal Caribbean had a duty to warn her about the wet or slippery

nature of the external decks because it was an open

and obvious condition of which she was or should have

been aware. See Isbell v. Carnival Corp., 462 F. Supp. 2d

1232, 1238 (S.D. Fla. 2006) (under federal maritime

law, an operator of a cruise ship has a duty to warn of

App. 3

“known dangers which are not apparent and obvious”);

see also Samuels v. Holland Am. Line-USA Inc., 656

F.3d 948, 951, 953-54 (9th Cir. 2011) (citing Isbell). Second, Royal Caribbean had no duty to protect Ms. Marshall from any dangerous condition of which it had no

actual or constructive notice. See Keefe v. Bahama

Cruise Line, Inc., 867 F.2d 1318, 1322 (11th Cir. 1989)

(“as a prerequisite to imposing liability, [the carrier

must] have had actual or constructive notice of the

risk-creating condition”). Third, the district court properly

found that Ms. Marshall failed to present evidence

showing that Royal Caribbean created the dangerous

wet condition on the deck or designed or manufactured

the staircase. See Thomas v. NCL (Bahamas), Ltd., 203

F. Supp. 3d 1189, 1194 (S.D. Fla. 2016) (“a cruise line

cannot be held liable for an alleged improper design if

the plaintiff does not establish that the ship-owner or

operator was responsible for the alleged improper design”). Nothing in the record creates a genuine issue of

material fact regarding any of these issues, and the

district court did not err in granting summary judgment to Ms. Marshall.

Accordingly, we affirm.

AFFIRMED.

App. 4

APPENDIX B

UNITED STATES COURT OF APPEALS

For the Eleventh Circuit

------------------------------------------------

No. 17-10259

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District Court Docket No.

1:16-cv-21140-KMM

LEIGH ANNE MARSHALL,

Plaintiff-Appellant,

versus

ROYAL CARIBBEAN CRUISES, LTD.,

Defendant-Appellee.

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Appeal from the United States District Court

for the Southern District of Florida

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JUDGMENT

It is hereby ordered, adjudged, and decreed that

the opinion issued on this date in this appeal is entered

as the judgment of this Court.

Entered: November 30, 2017

For the Court: DAVID J. SMITH, Clerk of Court

By: Djuanna Clark

App. 5

APPENDIX C

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

------------------------------------------------

No. 17-10259-GG

------------------------------------------------

LEIGH ANNE MARSHALL,

Plaintiff-Appellant,

versus

ROYAL CARIBBEAN CRUISES LTD.,

Defendant-Appellee.

-----------------------------------------------------------------------

Appeal from the United States District Court

for the Southern District of Florida

-----------------------------------------------------------------------

(Filed Jan. 23, 2018)

BEFORE: JORDAN, JULIE CARNES and JILL PRYOR,

Circuit Judges.

PER CURIAM:

The petition(s) for panel rehearing filed by the Appellant is DENIED.

ENTERED FOR THE COURT:

/s/ [Illegible]

UNITED STATES CIRCUIT JUDGE

App. 6

APPENDIX D

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF FLORIDA

Case No. 0:16-cv-21140-KMM

LEIGH ANNE MARSHALL,

Plaintiff,

v.

ROYAL CARIBBEAN CRUISES LTD.,

Defendant.

/

OMNIBUS ORDER

THIS CAUSE came before the Court upon Defendant Royal Caribbean Cruises Ltd.’s (“RCCL”) Motion

for Summary Judgment (ECF No. 50)1 and Plaintiff

Leigh Anne Marshall’s Motion for Partial Summary

Judgment and Sanction of a Negative Inference (ECF

No. 53).2 The Motions are now ripe for review. For the

reasons set forth below, RCCL’s Motion for Summary

Judgment is GRANTED and Plaintiff ’s Motion for Partial Summary Judgment is DENIED.

1

Plaintiff filed a Response (ECF No. 71), and RCCL replied

(ECF No. 75). Plaintiff also filed a Supplement to Plaintiff ’s Response (ECF No. 84).

2

RCCL filed a Response (ECF No. 69), and Plaintiff replied

(ECF No. 78). Plaintiff also filed a Supplement to the Reply (ECF

No. 84).

App. 7

BACKGROUND3

I.

This is a maritime personal injury action brought

by Plaintiff Leigh Anne Marshall (“Plaintiff ” or “Marshall”) against RCCL for damages allegedly sustained

by Plaintiff while on board the vessel Enchantment of

the Seas. See Defendant’s Statement of Undisputed

Material Facts (“Def ’s 56.1”) (ECF No. 50). Plaintiff

went on a cruise aboard the Enchantment of the Seas

with her mother, sister, and niece. Id. ¶ 3. On March 5,

2016, Plaintiff and her family left the ship on an excursion to the Atlantis hotel in Nassau, Bahamas. Id. ¶ 5.

Because it was raining on and off throughout the day,

Plaintiff spent much of the excursion indoors. Id. ¶¶ 68. Plaintiff and her family returned to the ship in the

evening and proceeded to dinner in the main dining

room at 8:30 p.m., during which Plaintiff had roughly

two double shots of whiskey. Id. ¶ 9. Plaintiff and her

family left the dining room between 9:30 and 10:30 in

the evening and went to R-Bar, where Plaintiff had a

few more libations. Id. ¶ 10. After about an hour at RBar, Plaintiff went back to her stateroom because she

learned that the party would be moved due to inclement weather. Id. Plaintiff, her sister, and her niece left

3

The facts are taken from the First Amended Complaint

(“Am. Compl.”) (ECF No. 19), RCCL’s Statement of Undisputed

Material Facts which is incorporated into its Motion for Summary

Judgment (ECF No. 50), Marshall’s Statement of Undisputed Material Facts which is incorporated into her Motion for Summary

Judgment (ECF No. 53), and additional facts incorporated into

Marshall’s Response to RCCL’s Motion for Summary Judgment

(ECF No. 71), and a review of the corresponding record citations

and submitted exhibits.

App. 8

their stateroom cabin between 11:30 p.m. and 12:00

p.m. [sic] to smoke cigarettes. Id. ¶ 11. They walked to

the pool deck on Deck 9 to attend a party, however that

party was canceled due at least in part to rain. Id. ¶ 14;

see also Pl.’s Statement of Undisputed Facts, ¶ 14 (ECF

No. 71). Upon learning that the party moved to Deck

11, Plaintiff and her family made their way towards

Deck 11 by ascending an exterior stairway; they had

no troubles with the ascent in any way. Id. ¶ 15, 17.

Upon reaching the top of the staircase on Deck 11, they

discovered that the door to the Viking Crown Lounge

was locked and thus began their descent to Deck 10.

Id. ¶ 16. Plaintiff ’s niece went down the stairs first,

followed by Plaintiff, and then Plaintiff ’s sister. Id. As

Plaintiff ’s foot touched the surface of the deck she

slipped on the wet deck surface and rolled her ankle.

Id. ¶ 20. The area was lit such that Plaintiff could see

the deck well enough to walk. Id. ¶ 23. There were no

warning signs alerting Plaintiff that the floor was wet.

Pl’s Statement of Material Undisputed Facts (“Pl.’s

56.1”) (ECF No. 71), ¶ 34.

The Amended Complaint (ECF No. 19) asserts one

count of negligence against RCCL. RCCL now moves

for summary judgment on Plaintiff ’s negligence claim

and Plaintiff cross-moves for summary judgment on

the issue of RCCL’s actual or constructive notice of the

alleged dangerous condition.

App. 9

II.

LEGAL STANDARD

Summary judgment is appropriate where there is

“no genuine issue as to any material fact [such] that

the moving party is entitled to judgment as a matter of law.” Celotex Corp. v. Catrett, 477 U.S. 317, 322

(1986); see also Fed R. Civ. P. 56. A genuine issue of material fact exists when “a reasonable jury could return

a verdict for the non-moving party.” Anderson v. Liberty

Lobby, Inc., 477 U.S. 242, 249 (1986). “For factual issues

to be considered genuine, they must have a real basis

in the record.” Mann v. Taser Int’l, Inc., 588 F.3d 1291,

1303 (11th Cir. 2009) (citation omitted). Speculation or

conjecture cannot create a genuine issue of material

fact sufficient to defeat a well-supported motion for

summary judgment. Cordoba v. Dillard’s, Inc., 419 F.3d

1169, 1181 (11th Cir. 2005).

The moving party has the initial burden of showing the absence of a genuine issue as to any material

fact. Clark v. Coats & Clark, Inc., 929 F.2d 604, 608

(11th Cir. 1991). In assessing whether the moving

party has met this burden, the court must view the movant’s evidence and all factual inferences arising from

it in the light most favorable to the non-moving party.

Denney v. City of Albany, 247 F.3d 1172, 1181 (11th Cir.

2001). Once the moving party satisfies its initial burden, the burden shifts to the non-moving party to come

forward with evidence showing a genuine issue of material fact that precludes summary judgment. Bailey v.

Allgas, Inc., 284 F.3d 1237, 1243 (11th Cir. 2002); see

also Fed. R. Civ. P. 56(e). “If reasonable minds could differ on the inferences arising from undisputed facts,

App. 10

then a court should deny summary judgment.” Miranda v. B & B Cash Grocery Store, Inc., 975 F.2d 1518,

1534 (11th Cir. 1992). But if the record, taken as a

whole, cannot lead a rational trier of fact to find for the

non-moving party, there is no genuine issue for trial,

and summary judgment is proper. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).

III. DISCUSSION

RCCL argues that it is entitled to summary judgment because: (1) the alleged danger was open and obvious and RCCL had no duty to warn the Plaintiff of

such danger; and (2) Plaintiff has not met her burden

of demonstrating that RCCL had actual or constructive notice of a dangerous condition prior to Plaintiff ’s

fall. Plaintiff, on the other hand, argues that the issue

of whether the danger was open and obvious is an issue

of fact that cannot be decided upon summary judgment. Plaintiff also argues that RCCL had actual and

constructive notice of the risk-creating condition as evidenced by a warning sign on a nearby shuffleboard

area.

Plaintiff cross-moves for partial summary judgment on the issue of RCCL’s actual and constructive

notice of the risk-creating condition. Plaintiff also moves

for the sanction of a negative inference for RCCL’s failure to preserve video footage of the incident.

Based on the undisputed record evidence, the

Court reasons that no rational trier of fact could find

that RCCL had a duty to warn Plaintiff of the allegedly

App. 11

dangerous condition. Because there is no genuine issue

as to any material fact, RCCL is entitled to summary

judgment on Plaintiff ’s negligence claim.

A. Applicable Law

“Claims arising from alleged tort actions aboard

ships sailing in navigable waters are governed by

general maritime law.” Luther v. Carnival Corp., 99

F.Supp.3d 1368, 1370 (S.D. Fla. 2015) (citing Keefe v.

Bahama Cruise Line, Inc., 867 F.2d 1318, 1320 (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)

(citation omitted). “Cruise ship operators are not an

all-purpose insurer of a passenger’s safety.” Lugo v.

Carnival Corp., No. 1:15-CV-21319-KMM, 2015 WL

9583280, at *3 (S.D. Fla. Dec. 31, 2015); Weiner v. Carnival Cruise Lines, No. 11-CV-22516, 2012 WL

5199604, at *2 (S.D. Fla. Oct. 22, 2012) (“A carrier by

sea does not serve as an insurer to its passengers; it is

liable only for its negligence.”).

To establish a 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, 693 F.3d at 1336.

The failure to show sufficient evidence of each element

is fatal to a plaintiff ’s negligence cause of action. Isbell

v. Carnival Corp., 462 F.Supp.2d 1232, 1237 (S.D. Fla.

App. 12

2006) (“Each element is essential to Plaintiff ’s negligence claim and Plaintiff cannot rest on the allegations

of [the] complaint in making a sufficient showing on

each element for the purposes of defeating summary

judgment.”).

A cruise ship operator owes its passengers “the

duty of exercising reasonable care under the circumstances of each case.” Torres v. Carnival Corp., ___ Fed.

Appx. ___, No. 14-13721, 2015 WL 7351676, at *5 (11th

Cir. Nov. 20, 2015) (quoting Kermarec v. Compagnie

Generale Transatlantique, 358 U.S. 625, 632, 79 S.Ct.

406, 3 L.Ed.2d 550 (1959)). This standard of 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. Further, a cruise ship operator’s duty of reasonable care

“includes a duty to warn passengers of dangers of

which the carrier knows or should know, but which

may not be apparent to a reasonable passenger.” Poole

v. Carnival Corp., No. 14-20237-CIV, 2015 WL

1566415, at *5 (S.D. Fla. Apr. 8, 2015). However, there

is no requirement to warn of dangers that are open

and obvious. Smith, 620 F. App’x. at 730; Smolnikar v.

Royal Caribbean Cruises Ltd., 787 F.Supp.2d 1308,

1322 (S.D. Fla. 2011). “Open and obvious conditions are

those that should be obvious by the ordinary use of

one’s senses.” Lancaster v. Carnival Corp., 85 F.Supp.3d

1341, 1344 (S.D. Fla. 2015). Whether a danger is open

and obvious is determined from an objective, not subjective, point of view. Flaherty v. Royal Caribbean

Cruises, Ltd., No. 15-22295, 2015 WL 8227674, at *3

App. 13

(S.D. Fla. Dec. 7, 2015) (internal quotation and citation omitted); John Morrell & Co. v. Royal Caribbean

Cruises, Ltd., 534 F.Supp.2d 1345, 1351 (S.D.Fla.2008)

(“Individual subjective perceptions of the injured party

are irrelevant in the determination of whether a duty

to warn existed.”) The “mere implication of actual or

constructive notice is insufficient to survive summary

judgment.” Taiarol, 2016 WL 1428942, at *5 (internal

citation omitted).

B. RCCL Had No Duty to Warn of an Open

and Obvious Condition

Plaintiff alleges that RCCL failed to warn her of

the wet and slippery condition of the deck and stairs

between Decks 10 and 11, the site of Plaintiff ’s fall.

The relevant facts are as follows. Plaintiff, who was not

a first-time cruiser, and her family had dinner in the

main dining room the evening of the accident. Plaintiff

had roughly two double shots of whisky at dinner and

then a few more drinks at R-Bar. After about an hour

at R-Bar, Plaintiff went back to her cabin where she

changed into a sundress and flip-flops.4 At approximately 11:30 pm, Plaintiff and her family were on their

way to a party on Deck 9 but learned that the party

had moved, at least in part, because of the rain. Plaintiff and her family then proceeded towards Deck 11,

where another party was being held, by ascending

an exterior stairway. At the top of the stairway, they

4

Plaintiff testified that the flip-flops were about a year old

and well-worn such that they had “molded to [her] foot.” See Marshall Dep. at 93:15-94:7.

App. 14

realized that the door to the lounge was locked and

went back down the stairs. Plaintiff ’s niece went down

the stairs first without issue but Plaintiff, as she

stepped off of the bottom stair, slipped and injured herself. Plaintiff could see where she was going but did not

see that the deck was wet, although others testified

that they could. There were no signs in that particular

area warning Plaintiff of the wet floor. Under these

circumstances, a reasonable person walking on an

exterior deck and stairway would have perceived the

outdoor conditions through the “ordinary use of [her]

senses” and would have concluded based on the circumstances as a whole that the deck’s surface and

steps would likely be more slippery than usual. See

Frasca v. NCL (Bahamas), Ltd., 654 Fed. App’x 949,

952 (11th Cir. 2016).

Plaintiff relies upon the Court of Appeals’ decision

in Frasca in support of her opposition to RCCL’s motion

for summary judgment. 654 Fed. App’x 949. In Frasca,

the Court of Appeals reversed the district court’s grant

of summary judgment on the issue of whether the dangerous condition was open and obvious. There, the district court reasoned that a reasonable person would

have concluded that the deck’s surface “would likely be

slicker than usual” because the deck was visibly “wet

and shiny” and there were puddles on the surface. Id.

at 952. However, plaintiff introduced an expert report

suggesting that the deck in question was unreasonably

slippery when wet and this report was bolstered by

the fact that one of plaintiff ’s travel companions also

slipped when exiting onto the deck. Id. at 952-3. Here,

App. 15

Plaintiff does not argue that the deck where Plaintiff

slipped was unreasonably slippery5, and her travel

companions had no difficulty navigating the deck’s surface.

Plaintiff argues that the condition was not “open

and obvious” and even if it was RCCL was negligent in

that it failed to maintain the premises in a reasonably

safe manner. The risk-creating condition—the presence of rain water on the deck’s surface—was a condition which a reasonable person in Plaintiff ’s position

would have been aware of.6 See Smith, 620 Fed. App’x

5

Plaintiff does argue that the shuffleboard “area was at risk

of becoming dangerously slippery, and Defendant knew this and

was on notice of this.” See Pl.’s Br. (ECF No. 71) at 11-12. Alas,

Plaintiff did not fall on the shuffleboard court and the Court finds

this argument unpersuasive.

6

Plaintiff testified as follows:

Q. But the accident happened at the bottom of

the staircase, correct?

A. Stepping from the last step and then whenever I stepped, when my foot touched the deck that’s

when my ankle rolled.

Q. And what caused your ankle to roll?

A. It was wet.

Q. And how do you know that?

A. Because after I busted my ass, my hands

were wet.

Marshall Dep. at 108:14-24 (ECF No. 50-1).

Plaintiff ’s sister testified as follows:

Q. . . . What was the weather like when you

walked out there [pool deck smoking area] at that time?

A. It had been raining.

App. 16

at 730 (holding that defendant did not breach its duty

of reasonable care by failing to warn plaintiff of a condition which he, “or a reasonable person in his position,

would be aware”) (emphasis added)); Luther v. Carnival Corp., 945 F. Supp. 2d at 1351 (finding a slippery

deck caused by water from rain or mist was an open

and obvious condition). Plaintiff’s reliance upon Thomas

v. NCL (Bahamas), Ltd., ignores the particular circumstances surrounding her fall. First, the substance upon

which the plaintiff there slipped was not a puddle as a

result of rain or mist but a “clear, gooey, slimy substance.” No. 15-23035-CIV-Williams, 2016 WL 5793952,

*3 (S.D. Fla. Aug. 25, 2016). The nature of the puddle’s

substance is a relevant factor for the Court to consider

in determining whether the condition was open and obvious. Second, the facts here make it abundantly clear

that Plaintiff was aware that it had been raining on

and off all day: Plaintiff ’s excursion to Nassau was

Q. Okay. Was it still raining when you walked

out there?

A. I don’t remember if it was, you know, kind of

drizzling, but I do know that it had been raining because everything was wet. And there was no party and

I think they moved the party that was supposed to be

at the pool, they moved it if I recall [to] the 11th floor

because of the rain.

Q. Okay. When you say you walked out and

everything was wet, are you saying like the deck was

wet? I mean when you say everything, what are you –

in your mind what are you saying?

A. I just remember looking around and thinking, oh, it rained.

Folsom Dep. at 33:13-34:6 (ECF No. 50-3).

App. 17

affected by the weather; a party on the ship was relocated due to the rain; and Plaintiff ’s travel companions

were aware of the fact that the deck was wet in certain

areas. A reasonable person in Plaintiff ’s position

would have been aware of the possibility of a puddle

forming on an exterior surface of a cruise ship following a day of periodic rain.

Accordingly, the Court finds that RCCL had no

duty to warn of an open and obvious condition.

C. RCCL’s Actual or Constructive Notice

“[F]ederal courts need not even reach the defendant’s actual or constructive notice of a risk-creating

condition if they determine that [the] condition was an

open and obvious danger.” Smith, 620 Fed. App’x at

730. Assuming arguendo, that the Court was to find

that the risk-creating condition was not open and obvious, RCCL’s liability then turns on whether it had actual or constructive notice of the alleged dangerous

condition. Courts routinely grant summary judgment

in favor of a defendant when a plaintiff fails to present

evidence on the issue of notice. See Lipkin v. Norwegian

Cruise Ling [sic] Ltd., 93 F. Supp. 3d 1311, 1324 (S.D.

Fla. 2015) (“Because Plaintiff has failed to cite any

evidence in the record showing that [defendant] had

actual or constructive notice of the risk-creating condition alleged in the complaint . . . summary judgment in

favor of [defendant] is appropriate in this matter.”);

Thomas v. NCL (Bahamas) Ltd., No. 13-24682-CIV, 2014

WL 3919914, at *4 (S.D. Fla. Aug. 11, 2014) (granting

App. 18

summary judgment where “[t]he unrefuted evidence

in the record instead indicates a lack of actual or

constructive notice”); Cohen v. Carnival Corp., 945

F. Supp. 2d 1351, 1355 (S.D. Fla. 2013) (granting summary judgment where plaintiff “presented no evidence

that [defendant] had actual or constructive notice of

the alleged risk-creating condition,” noting such evidence could include a “record of any accident reports,

passenger comment reviews or forms, or reports from

safety inspections alerting [defendant] of any potential

safety concern”). The crux of Plaintiff ’s argument is

that RCCL had constructive notice of the risk-creating

condition because of a warning sign in a nearby area

that reads “slippery when wet.”7 Plaintiff also argues

that RCCL’s failure to preserve video footage of the incident prior to about five or six minutes before her incident warrants the sanction of a negative inference for

spoliation. In essence, Plaintiff argues that if such

video had existed it would have shown that the area

was in substantially the same condition for such a

length of time that Defendant had constructive notice

as a matter of law.

A stand-alone claim based on a cruise ship owner’s

“alleged duty to take actions to reduce or eliminate

foreseeable risks before they manifest, where such claim

is unconnected to [the passenger’s] specific accident” is

7

Plaintiff also argues that evidence or prior substantially

similar incidents put RCCL on constructive notice of the riskcreating condition. As discussed supra, the Court finds the evidence of prior similar incidents lacking and shall not consider it

on summary judgment.

App. 19

unsupported by maritime law. Salazar v. Norwegian

Cruise Line Holdings, Ltd., No. 15-21544, 2016 WL

2961584, at *1611 (S.D. Fla. May 23, 2016) (internal

citation omitted). “[A] warning sign or label may be evidence that a defendant had actual or constructive notice of a dangerous condition.” Lipkin v. Norwegian

Cruise Line Ltd., 93 F. Supp. 3d 1311, 1323 (S.D. Fla.

2015). Here, however, the “slippery when wet” sign on

a shuffleboard8 court near the scene of Plaintiff ’s fall

is not evidence of constructive notice. First, the sign

warning passengers that the shuffleboard area is slippery when wet was permanently affixed and thus has

no bearing on the need for a warning on that particular

evening. See Viswanathan Dep. at 122:24-123:10 (ECF

No. 71, Ex. 3). Second, the record reflects that the material composition of the shuffleboard court flooring is

different from the flooring at the base of the stairway.

See Mayer Dep. at 40:19-23 (ECF No. 71, Ex. 8) (“It’s a

shuffleboard court, so it’s harder in nature. It’s designed to accommodate a shuffleboard game as opposed to the Bolidt surface that appears in the rest of

the picture, which is designed for people walking.”) Additionally, Plaintiff cites to testimony of RCCL employees regarding the signage and purpose of such

guidance, but that testimony speaks exclusively to the

shuffleboard area. See Campos Dep. at 48:6-17; Viswanathan Dep. at 123:2-10. A permanently affixed “slippery when wet” sign placed in an area with different

8

“Shuffleboard is an offshoot of the ancient principle of lawn

bowling, but in the method of play more closely resembles the

game of curling on ice.” Cusano v. Kotler, 159 F.2d 159, n. 4 (3d

Cir. 1947) (internal citation omitted).

App. 20

flooring provides no actual or constructive notice to

RCCL that the flooring where Plaintiff fell is similarly

slippery.9

Constructive notice may also be demonstrated

where a defendant is aware of the existence of a dangerous condition for a sufficient length of time. Thomas,

2016 WL 5793952, *3. Plaintiff argues that summary

judgment on the issue of notice is warranted because

the eighteen-minute closed-circuit television (“CCTV”)

footage of Plaintiff ’s accident shows that the scene was

virtually identical at the time of the accident and five

minutes prior to the accident. Specifically, Plaintiff

contends that additional video surveillance prior to the

accident would have revealed the length of time the

puddle of rain water was on the floor and thus establish RCCL’s actual or constructive knowledge of the

puddle. Even if the video showed that the rain water

puddle existed at some point prior to the video start,

the puddle was an open and obvious condition and

therefore RCCL’s notice is irrelevant. See Smith, 620

Fed. App’x at 730; see also Folsom Dep. at 33:21-22 (“I

do know that it had been raining because everything

9

The cases to which Plaintiff cites are not precisely on point.

In Harnesk v. Carnival Cruise Lines, Inc., 1991 WL 329584, at *3

(S.D. Fla. Dec. 27, 1991), the Court made a finding of fact that

defendants had actual notice of “the unreasonably dangerous

coaming because they installed two strips of tape one inch thick

lettered ‘Watch Your Step.’ ” The warning signs in Harnesk were

placed on the door and on the top of the coaming (elevated threshold) itself. In Cohen v. Carnival Corp., 945 F. Supp. 2d 1351, 1356

(S.D. Fla. 2013), the Court reviewed the record regarding alleged

warning signs. There, the court found no evidence of a warning

sign at the bottom of the staircase where plaintiff fell.

App. 21

was wet”) (emphasis added). The record does not support an inference of constructive notice and the Court

shall not, as Plaintiff urges, make a negative inference

on this point.

D. RCCL Did Not Breach Its Duty to Maintain

Plaintiff argues that even if an open and obvious

condition precludes a failure-to-warn claim, defendant

RCCL had a duty to maintain the premises in a reasonably safe manner. Plaintiff argues that the premises were not maintained in a reasonably safe manner

for the following reasons: (1) RCCL lacks a policy related to the cleaning up of rainwater; (2) RCCL could

have employed a more slip resistant type of flooring;

(3) RCCL failed to warn passengers that the door to

the lounge on Deck 11 was locked; (4) RCCL failed to

deploy fin stabilizers at the time of the accident; and

(5) RCCL failed to correct an alleged design defect in

the subject stairway.

In order to prevail on a negligence claim for a failure to maintain, a plaintiff must establish that “(1) the

defendant had a duty to protect the plaintiff; (2) the

defendant breached that duty; and (3) the defendant’s

breach was the proximate cause of the plaintiff ’s injuries and resulting damages.” Lipkin, 93 F.Supp.3d at

1325. To establish breach of this duty, a plaintiff must

show that the owner of the premises “failed to maintain the premises in a reasonably safe condition, or

that the defendant failed to warn the plaintiff of a concealed peril of which it either knew or should have

App. 22

known.” Id. (internal citation omitted). A defendant

cannot be found liable where it is not shown that there

was actual or constructive notice of the dangerous condition. Id. The Court has already concluded that the

record does not support a finding that RCCL had actual or constructive notice of the allegedly dangerous

condition and that the condition was open and obvious.

The puddle of rainwater on the exterior cruise ship

deck following a day of intermittent rain and inclement weather which was known to passengers is not a

concealed peril.

However, Plaintiff “need not prove notice where

she also alleges that Defendant created the dangerous

condition.” Harrison v. Royal Caribbean Cruises,

Ltd., No. 1:12-cv-24111-UU, 2013 WL 12101117, at *3

(S.D. Fla. Sept. 18, 2013) (internal citation omitted).

The record does not support a finding that RCCL’s lack

of a policy to clean up rainwater and the locked door

on Deck 11 are evidence that it breached its duty to

maintain the premises in a reasonably safe manner.

Plaintiff “cannot avoid summary judgment on some

generalized theory of foreseeability that is divorced

from the particular events in question.” Weiner v. Carnival Cruise Lines, No. 11-22516, 2012 WL 5199604, at

*4 (S.D. Fla. Oct. 22, 2012). Plaintiff ’s argument that

she would not have climbed up the subject steps had

she known that the door on Deck 11 was locked is not

tantamount to the creation of a dangerous condition.

The Court also notes that Plaintiff does not allege that

she was directed to use the external stairway to reach

Deck 11 in order to reach her destination.

App. 23

The record is also clear that the conditions at the

time of the accident did not warrant the usage of fin

stabilizers. A “[f ]in stabilizer extends below the waterline, and its purpose is to counteract or count—offset

the rolling motion of a vessel.” Mayer Dep. at 34:26

(ECF No. 71, Ex. 8). They are deployed when the ship

is traveling at six or seven knots or above and “the conditions warrant minimizing the rolling motion of the

ship.” Id. at 73:18-22. At the time of Plaintiff ’s accident, the ship would have been traveling rather slowly

and the fin stabilizers would not have been deployed.

Id. at 74:1-9. The fin stabilizers were not extended at

the time of Plaintiff ’s fall. See Campos Dep., ECF No.

71, Ex. 2 at 79:11-14. Plaintiff asks the Court to find

that whether the fin stabilizers should have been deployed presents an issue of fact for the jury to decide.

The record is clear that there was no need for the fin

stabilizers to be deployed and that there is little, if any,

utility in deploying them when traveling at a slower

speed such as the Enchantment of the Seas was traveling that evening. Plaintiff has not provided any compelling evidence indicating that the fin stabilizers

should have been deployed. Thus, the Court finds that

the failure to deploy fin stabilizers does not present an

issue of fact as to whether RCCL created the hazardous condition.

RCCL’s flooring selection similarly does not provide a basis for liability here. “A cruise line is not liable

for any alleged improper design if the plaintiff does not

establish that the ship-owner or operator was responsible for the alleged improper design.” Mendel v. Royal

App. 24

Caribbean Cruises, Ltd., 2012 WL 2367853, *2 (citing

Groves v. Royal Caribbean Cruises Ltd., No. 11-10815,

2012 WL 933236, *1 (11th Cir. Mar. 20, 2012)). The

Court of Appeals has affirmed the grant of summary

judgment where a plaintiff failed to offer evidence that

the ship-owner was responsible for the design of the

stairs which plaintiff slipped and fell on, causing injury. Rodgers v. Costa Crociere, S.P.A., 410 Fed. App’x

210, 212 (11th Cir. 2010). Plaintiff argues that there is

evidence that RCCL “approved of and can change the

flooring” on the Enchantment of the Seas and that

RCCL should have employed a type of flooring that is

more slip resistant. See Pl’s Br. at 16 (ECF No. 71).

Plaintiff cites to the deposition testimony of RCCL’s

Chief Officer Safety Michael Mayer (ECF No. 71-8)

wherein Mayer testified regarding different types of

flooring on the ship. Mayer Dep. at 56:18-22; 58:1-4.

When asked if RCCL has the ability to “change the surface of its decks if it believes that it may be inadequate

or unsafe,” Mayer responded

. . . [Y]ou can always change flooring, and I’ve

seen it done in the past, not necessarily different products, but different colors. My general

understanding is a great deal of analysis goes

into the type of flooring and where the flooring goes; and, yes, if there was an injury with

a high incidence or an area with a high incidence of injuries, there would be thought put

in place to consider a different type of flooring.

Mayer Dep. at 61:17-25. At best, Mayer’s testimony indicates that RCCL is able to change the flooring color.

App. 25

Additionally, as Chief Officer Security [sic], Mayer may

suggest changes but does not have any direct input regarding changes made to flooring. Id. at 65:24-66:5.

In a similar vein, Plaintiff argues that the design

of the last step of the subject staircase—such that the

elevation above the ship deck is to a “dangerously

greater degree than the difference in elevation between the steps immediately above it”—creates a genuine issue of material fact as to Defendant’s creation

of these conditions. ECF No. 78 at 5.10 However, there

is no evidence that RCCL designed the subject staircase. Plaintiff ’s attempts to pin liability on RCCL for

breach of a duty to maintain the stairway and flooring

in a reasonably safe manner both fail.11 The Court’s

analysis with respect to the duty to maintain need not

go further.

10

The Court notes that Plaintiff does not argue that RCCL

designed the stairway. Accordingly, a negligent design claim as to

the stairway fails. Testimony by Plaintiff ’s expert, De Caso, regarding the step and stairway design in support of a negligent

design claim is moot. See Groves v. Royal Caribbean Cruises, Ltd.,

No.09-20800, 2011 WL 109639, *1 (S.D. Fla. Jan. 11, 2011) (“[B]ecause no negligent design theory is possible in this case, the expert’s testimony as to the design flaws in the relevant areas of

this vessel is moot.”).

11

There is no evidence on the record that RCCL has actual

or constructive knowledge of the alleged risk-creating condition

posed by the last step before the deck surface. Specifically, there

is no evidence in the record that RCCL knew or should have

known that the last step prior to reaching the deck posed any riskcreating condition for its passengers. See Cohen v. Carnival Corp.,

945 F. Supp. 2d 1351, 1355 (S.D. Fla. 2013) (finding the cruise

ship had no actual or constructive knowledge of the alleged risk

of descending a gangplank leading off of a ship).

App. 26

IV. MOTIONS TO STRIKE, EXCLUDE, AND IN

LIMINE

The Parties filed several motions seeking to strike

or exclude certain testimony, as well as motions in

limine. Pursuant to Rule 702 of the Federal Rules of

Evidence, expert testimony is admissible if:

Scientific, technical, or other specialized knowledge will assist the trier of fact to understand

the evidence or to determine a fact in issue, a

witness qualified as an expert by knowledge,

skill, experience, training, or education, may

testify thereto in the form of an opinion or otherwise, if (1) the testimony is based upon sufficient facts or data, (2) the testimony is the

product of reliable principles and methods,

and (3) the witness has applied the principles

and methods reliably to the facts of the case.

F.R.E. 702. “Rule 702 compels the district courts to perform the critical ‘gatekeeping’ function concerning the

admissibility of expert scientific evidence.” U.S. v. Frazier, 387 F.3d 1244, 160 [sic] (emphasis in original) (citing Daubert v. Merrill Dow Pharmaceuticals, Inc., 509

U.S. 579, 589, n.7, 597 (2006)). The court must also act

as gatekeeper with respect to the admissibility of technical expert evidence. Kumho Tire Co. v. Carmichael,

526 U.S. 137, 147 (1999).

In determining the admissibility of expert testimony under Rule 702, the Court considers whether:

(1) The expert is qualified to testify competently regarding the matters he intends to

address; (2) the methodology by which the

App. 27

expert reaches his conclusions is sufficiently

reliable as determined by the sort of inquiry

mandated in Daubert; and (3) the testimony

assists the trier of fact, through the application of scientific, technical, or specialized

expertise, to understand he [sic] evidence or to

determine a fact in issue.

Finestone v. Florida Power & Light Co., No. 03-14040CIV, 2006 WL 267330, *8 (S.D. Fla. Jan. 6, 2006) (internal citations omitted).

A. RCCL’s Motion to Strike (ECF No. 51)

RCCL moved to strike certain expert testimony of

Francisco J. De Casa Basalo and William F. Landsea

(ECF No. 51). Plaintiff filed a response (ECF No. 72)

and RCCL replied (ECF No. 76). RCCL argues that

Plaintiff has not established the proper foundation for

the admission of certain expert testimony of Dr. De

Caso Basalo, a civil and structural engineer, and that

he should be precluded from offering any speculative

and unreliable expert testimony at trial. RCCL argues

that Landsea’s opinions regarding economic losses

are unreliable and speculative and do not meet the

standards of Rule 702 and that his opinions should

be stricken.

Specifically, RCCL moves to exclude certain testimony of Francisco J. De Caso Basalo regarding: (1) the

likelihood that the design failure of the stairway

caused the fall, and (2) the likelihood that inadequate

App. 28

or defective illumination on the landing surface at

Deck 10 may have been a contributing factor.

Having found that the record does not support a

finding that RCCL was responsible for the design of

the subject stairway, Dr. De Caso Basalo’s testimony

regarding the alleged design failure is now irrelevant.

Rodgers v. Costa Crociere, S.P.A., 410 Fed. App’x at 212

(holding that neither the facts nor the law supported

plaintiff ’s negligent design theory of liability where

there was no evidence that defendant actually designed the stairs or hand rails where plaintiff fell).

Dr. De Caso Basalo’s opinion regarding the allegedly defective illumination as a possible contributing

factor are excluded because he did not inspect the

lighting of the vessel in the area of Plaintiff ’s fall during a similar time of day and thus his opinion is speculative at best and lacks probative value. Allison v.

McGhan Med. Corp., 184 F.3d 1300, 1311-12 (11th Cir.

1999).

RCCL moves to strike William Landsea, an economist, as an expert based on unreliable methods and

speculation, a lack of information and documentation,

and impermissible inferences. The issue of Plaintiff ’s

economic losses is now moot, thus the motion to strike

the testimony of expert Landsea is now moot as well.

B. Plaintiff ’s Motion in Limine (ECF No. 54)

Plaintiff seeks to preclude counsel for RCCL, as well

as any witnesses called by RCCL, from introducing

App. 29

certain evidence to the jury regarding Plaintiff ’s bankruptcy and prior litigation as well as evidence of Plaintiff ’s consumption of alcoholic beverages without a

prior order from the Court. The motion is denied as

moot.

C. RCCL’s Motion in in [sic] Limine (ECF

No. 52)

RCCL moves to preclude evidence of testimony

concerning prior and subsequent dissimilar incidents.

See ECF No. 52. Plaintiff seeks to introduce evidence

of eight prior incidents which Plaintiff argues are substantially similar to her accident and thus put RCCL

on notice of a risk-creating condition.

The “substantial similarity” doctrine does not demand identical circumstances, and “allows for some

play in the joints depending on the scenario presented

and the desired use of the evidence.” Sorrels v. NCL

(Bahamas) Ltd., 796 F.3d 1275, 1287 (11th Cir. 2015).

In Sorrels, the Court of Appeals held that the district

court acted within its discretion when it found that

none of the twenty-two other slip and fall incidents

plaintiffs sought to introduce could be considered.

There, none of the twenty-two accidents took place in

the exact location where plaintiff fell, only three of the

twenty-two passengers reported slipping on the same

substance as plaintiff, and of those three, two passengers were wearing different footwear which could be

found to be a contributing factor to the accident. Id.

Plaintiff bears the burden of proof to establish that

App. 30

prior incidents occurred under substantially similar

conditions to those of Plaintiff ’s incident. See Hessen

v. Jaguar Cars, Inc., 915 F.2d 641, 649-50 (11th Cir.

1990).

In response to an interrogatory seeking information as to “any prior incidents or complaints of incidents of persons (1) slipping or tripping on any exterior

stairways, including any exterior stairways leading between Decks 8 through 11; and (2) slipping or tripping

at the foot or base of any stairway that comes into contact with the soft Bolidt floor surfaces on Deck 9 or 10,”

RCCL provided information regarding eight incidents

that took place on the Enchantment of the Seas for the

three year period prior to Plaintiff ’s accident and

through July 27, 2016. See RCCL’s Answers to Pl.’s

Second Interrogatories (ECF No. 71-5) at 2. Of these

eight incidents, the majority are easily dispelled as dissimilar.12 Plaintiff highlights the similarities of an incident involving Ms. Kimberly Johnson, who slipped on

wet stairs while using the external staircase between

Decks 9 and 10. However, this incident also did not occur on the same surface where Plaintiff ’s accident occurred. Plaintiff ’s argument that the similarity is

evident from a similar use of terminology with respect

to the injury (“rolled” vs. “rowed”) is unavailing—the

description of Ms. Johnson’s ankle injury provides

no insight into the circumstances which led to her

12

Passengers Denise Chinery-Hesse, Kerry Hamann, Ashley

McPipkin, Glenn Morris, Tyrese Pearsal, and Linda Wood all fell

on the stairs, unlike Plaintiff who testified that she slipped and

fell on the deck’s surface. Id.

App. 31

injury nor can the Court extrapolate a connectedness

to Plaintiff ’s injury. Finally, the only remaining incident that is alleged to be “substantially similar” is one

involving Mr. Ronald Whitecotton who slipped on a

puddle. However, Plaintiff has not established that

Mr. Whitecotton’s incident is substantially similar to

Plaintiff ’s accident. The location of the incident has

not been established on the record and without this information it is unknown whether the flooring was of

the same material as the one Plaintiff slipped upon.

The record is also devoid of any evidence regarding

other environmental factors prior to Mr. Whitecotton’s

fall. The Court finds that Plaintiff has not met her burden of proof and evidence of these eight incidents is

precluded.

Accordingly, UPON CONSIDERATION of the motion, the pertinent portions of the record, and being

otherwise fully advised in the premises, it is ORDERED AND ADJUDGED that the Motion (ECF No.

52) is GRANTED.

V.

CONCLUSION

For the foregoing reasons, it is hereby ORDERED

AND ADJUDGED that Defendant RCCL’s Motion for

Summary Judgment (ECF No. 50) is GRANTED and

Plaintiff ’s Motion for Summary Judgment (ECF No.

53) is DENIED.

App. 32

It is further ORDERED AND ADJUDGED that:

1.

RCCL’s Motion to Strike (ECF No. 51) is

GRANTED IN PART.

2.

Plaintiff ’s Motion in Limine (ECF No. 54) is

DENIED AS MOOT.

3.

RCCL’s Motion in in [sic] Limine (ECF No. 52)

is GRANTED.

4.

All other pending motions are DENIED AS

MOOT.

5.

The Clerk of Court is instructed to CLOSE the

case.

DONE AND ORDERED in Chambers at Miami, Florida, this 6th day of January, 2017.

Kevin Michael Moore

2017.01.06 17:39:16-05'00'

/s/ Kevin Michael Moore

K. MICHAEL MOORE

CHIEF UNITED STATES

DISTRICT JUDGE

c: All counsel of record