Petition for Writ of Certiorari — Irina Tesoriero, Petitioner v. Carnival Corporation, dba Carnival Cruise Line

Supreme Court briefFeb 5, 2021

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App. 1

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 18-11638

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D.C. Docket No. 1:16-cv-21769-KMW

IRINA TESORIERO,

Plaintiff-Appellant,

versus

CARNIVAL CORPORATION,

d.b.a. Carnival Cruise Line,

Defendant-Appellee.

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Appeal from the United States District Court

for the Southern District of Florida

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(July 14, 2020)

Before ROSENBAUM, GRANT, and HULL, Circuit

Judges.

GRANT, Circuit Judge.

When Irina Tesoriero sat on the vanity chair in her

Carnival Cruise ship cabin, she was in for a terrible

surprise—it collapsed. While she and her husband

waited for help to arrive, they saw that a leg had fallen

off the chair. Observing no other outward defects, they

took some photos of the pegs that normally held the

App. 2

chair together, which became visible only after the

chair broke. Still waiting for help, they let in a steward

who came to replace the broken chair with a fresh one.

Finally, the Tesorieros took matters into their own

hands and went directly to the onboard medical center;

there, they were told that Tesoriero’s arm was not broken, and an x-ray was taken to be sure. The onboard

doctor treated her with Tylenol, ice, and a sling and

sent the couple on their way.

Understandably frustrated that her injury continued to bother her, Tesorerio sought treatment at home

after the cruise. Still no broken arm, but she was suffering from a terrible case of medial epicondylitis and

ulnar neurapraxia—a diagnosis Tesoriero describes as

tennis elbow. Tesoriero was also understandably frustrated with Carnival, and ﬁled suit against the cruise

line, alleging that it had failed to inspect and maintain

the cabin furniture (or else warn her of the danger the

chair posed). Perhaps aware of the difﬁculty she may

have in showing that Carnival had notice about the

chair’s dangers (especially given the photos suggesting

no outward defects), she fought the usual notice requirement on two fronts: ﬁrst, she alleged that res ipsa

loquitor applied and meant that she did not need to

show notice, and second, she claimed that Carnival

should be sanctioned with an adverse inference on notice because it failed to preserve the broken chair.

The district court granted summary judgment in

favor of Carnival. The court found that the cruise line

did not have notice that the chair was dangerous, that

res ipsa loquitor did not apply, and that the failure to

App. 3

save the chair was not sanctionable. Tesoriero now appeals those three conclusions. After careful review, we

agree with the district court that Tesoriero failed to

show that Carnival had actual or constructive notice

that the chair was broken. Unlike the district court, we

decline to consider whether res ipsa loquitor applies;

even if it does, that doctrine cannot cure a defect in notice. Nor can the requested spoliation sanctions; even

setting aside whether we think the chair itself could

have provided any evidence of notice, Carnival’s failure

to preserve the chair was not shown to be in bad faith

and is therefore not sanctionable. For all those reasons,

we afﬁrm.

On June 26, 2015, Irina Tesoriero was getting

ready for dinner in her cabin aboard the Carnival

Splendor. She pulled a wooden chair “about a foot”

away from the vanity and attempted to sit down, but it

collapsed beneath her. Her right collarbone struck the

vanity and her right arm was injured; initially, she believed that her arm was broken. Her husband, Joseph

Tesoriero, witnessed the incident and called the front

desk for help.

While waiting for help to arrive, Joseph inspected

and photographed the chair. He saw that it “did not

have any obvious or observable outward defects” before

it broke. He also saw that the right front leg, which had

been attached to the seat by pegs, had fallen off, and

that the glue on the pegs was dried and chipped. In his

App. 4

opinion, it “was obvious from the appearance of the

pegs—visible only after it fell apart—that the pegs had

been unglued and loose for a long time.” A steward

came to the cabin, took away the broken chair, and replaced it with a new one. The chair was later disposed

of by an unknown crew member because it could not be

ﬁxed.

Tesoriero and her husband waited around for medical staff, and went to the onboard medical center when

in-cabin aid was not forthcoming. Tesoriero was then

examined by a physician, who told her (correctly, as it

turns out) that she did not have a fracture and gave

her Tylenol, ice, and an arm sling. Although an x-ray

was taken, it was sent to Miami for review because it

could not be read on the ship. While at the medical center, Joseph Tesoriero completed a “passenger injury

statement” on his wife’s behalf. The statement collected basic information, including the time, date, and

location of the incident.

In accordance with Carnival’s policy, because Tesoriero’s injury only required ﬁrst aid—and because she

did not request an accident report—the medical staff

classiﬁed the accident as “non-reportable.” That meant

that the security department, which is responsible for

investigating accidents and, when necessary, preserving evidence, was asked to do neither. The room stewards, on the other hand, dispose of broken furniture

that cannot be repaired and only preserve it if asked to

do so. That general policy was followed here, so the

chair was not preserved.

App. 5

After Tesoriero disembarked, she received conﬁrmation that her x-ray results did not show a broken

arm. But the arm was not ready to make peace, and

Tesoriero continued to experience pain and swelling.

She was ultimately diagnosed with medial epicondylitis and ulnar neurapraxia, which she described as “tennis elbow.” Tesoriero struggled to get her arm back to

full strength, undergoing injections, therapy, and surgery, apparently with little success; she says that she

continued to require medical treatment into this litigation, and that she struggles with basic tasks like

cooking, taking out the garbage, and carrying groceries.

A little less than a year after the cruise, Tesoriero

ﬁled a complaint against Carnival in the Southern District of Florida, asserting a single claim of negligence

based on Carnival’s alleged failure to inspect and

maintain the cabin furniture and failure to warn passengers of the unsafe condition. Both parties moved for

summary judgment. For its part, Carnival invoked a

familiar defense, arguing that it was not responsible

for Tesoriero’s injury because it had neither actual nor

constructive knowledge that the chair was unsafe prior

to the incident.

During discovery, Tesoriero deposed the housekeeping manager who was aboard the ship at the time

of the accident. The manager testiﬁed that stewards

cleaned the cabins daily and were responsible for inspecting the cabin furniture. He explained that that

process involved physical movement of the chairs in

the course of vacuuming, as well as visual inspection

App. 6

of the entire cabin, including the furniture, for signs of

damage. Damaged furniture was reported to a ﬂoor supervisor, who was tasked with making a record of the

problem and addressing it. When repairs were possible, they were made, and when repairs were not possible, the items were disposed of.

Tesoriero’s arguments—considering both her response to Carnival’s motion and her own motion for

summary judgment—were threefold. First, she said

that the condition of the chair, coupled with Carnival’s

regular inspections of the cabin furniture, was enough

to constitute constructive notice of the dangerous condition.1 Second, she contended that the doctrine of res

ipsa loquitur applied and eliminated the need for her

to show that Carnival had notice in any event. Finally,

she argued that Carnival’s disposal of the broken chair

amounted to spoliation of evidence and entitled her to

an inference that Carnival had notice of the risk-creating condition.

A magistrate judge issued a report and recommendation on the competing motions. He said that the evidence demonstrated that “no reasonable inspection

could have discovered the dangerous condition without

At the trial level, Tesoriero pressed additional arguments.

She said that Carnival had constructive notice because of (1) a

prior accident involving a collapsing metal balcony chair; and (2)

internal documents from Carnival regarding the repair and replacement of cabin chairs. She also contended that her negligent

maintenance claim did not require a showing of notice. The district court rejected all these arguments, and Tesoriero does not

challenge those rulings on appeal.

App. 7

ﬁrst deconstructing the cabin chair.” As to the res ipsa

loquitur issue, the magistrate ﬁrst concluded that the

doctrine, if applicable, would indeed absolve Tesoriero

of any need to show that Carnival had actual or constructive notice of the dangerous condition. Ultimately

though, he decided that the doctrine did not apply because a collapsing chair can easily happen even without negligence. Finally, the magistrate declined to

sanction Carnival for spoliation of evidence, seeing no

evidence that Carnival reasonably anticipated litigation following the accident.

Over Tesoriero’s objections, the district court afﬁrmed and adopted the magistrate judge’s report and

recommendation and granted Carnival summary judgment. In adopting the recommendation, the court speciﬁcally ruled that res ipsa loquitur did not apply and

that the facts surrounding the disposal of the broken

chair did “not amount to spoliation such that an adverse inference is warranted.” Tesoriero appealed.

II.

“We review a district court’s grant of summary

judgment de novo. Summary judgment is appropriate

only when no genuine issue of material fact exists and

the moving party is entitled to judgment as a matter

of law.” Lewis v. City of Union City, 918 F.3d 1213, 1220

n.4 (11th Cir. 2019) (en banc) (internal citation omitted). We view “the evidence and all reasonable inferences drawn from it in the light most favorable to the

nonmoving party.” Hornsby-Culpepper v. Ware, 906

App. 8

F.3d 1302, 1311 (11th Cir. 2018). “Where the record

taken as a whole could not lead a rational trier of fact

to ﬁnd for the non-moving party, there is no genuine

issue for trial.” Id. (quotation marks and citation omitted). “We review the district court’s decision regarding

spoliation sanctions for abuse of discretion.” Flury v.

Daimler Chrysler Corp., 427 F.3d 939, 943 (11th Cir.

2005). We “may afﬁrm for any reason supported by the

record, even if not relied upon by the district court.”

Lage v. Ocwen Loan Servicing LLC, 839 F.3d 1003,

1009 (11th Cir. 2016) (citation omitted).

III.

On appeal, Tesoriero raises three arguments.

First, she argues that her husband’s observations

about the broken cabin chair, coupled with Carnival’s

admitted regular inspections, show that Carnival had

constructive notice that the chair was dangerous. Second, she argues that even if she cannot establish notice, the doctrine of res ipsa loquitur saves her claim

because it eliminates the ordinary notice requirement.

Finally, she argues that she is entitled to an adverse

inference against Carnival on the notice requirement

in any event because Carnival spoliated evidence when

it discarded the chair.

Before turning to Tesoriero’s constructive notice

argument, we should say a few words about the background legal principles in play. “Maritime law governs

App. 9

actions arising from alleged torts committed aboard a

ship sailing in navigable waters.” Guevara v. NCL (Bahamas) Ltd., 920 F.3d 710, 720 (11th Cir. 2019).

“Drawn from state and federal sources, the general

maritime law is an amalgam of traditional commonlaw rules, modiﬁcations of those rules, and newly created rules.” Misener Marine Const., Inc. v. Norfolk

Dredging Co., 594 F.3d 832, 838 (11th Cir. 2010) (quoting E. River S.S. Corp. v. Transamerica Delaval, Inc.,

476 U.S. 858, 864–65 (1986)). And in the absence of an

established federal maritime rule, we “may borrow

from a variety of sources in establishing common law

admiralty rules to govern maritime liability where

deemed appropriate.” Marastro Compania Naviera,

S.A. v. Canadian Mar. Carriers, Ltd., 959 F.2d 49, 53

(5th Cir. 1992) (applying the “general common law and

in particular the Restatement (Second) of Torts” to “determine the law of maritime trespass”); see also Wells

v. Liddy, 186 F.3d 505, 525 (4th Cir. 1999) (The “general

maritime law may be supplemented by either state law

or more general common law principles.” (internal citation omitted)). For maritime tort cases in particular,

“we rely on general principles of negligence law.” Chaparro v. Carnival Corp., 693 F.3d 1333, 1336 (11th Cir.

2012) (citation omitted).

A few key principles have developed to guide our

analysis of these torts. A cruise line “is not liable to

passengers as an insurer,” but instead is liable to passengers “only for its negligence.” Keefe v. Bahama

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

(citation omitted). The elements of a maritime

App. 10

negligence claim, in turn, are well-established, and

stem from general principles of tort law. A cruise passenger must show that “(1) the defendant had a duty

to protect the plaintiff from a particular injury, (2) the

defendant breached that duty, (3) the breach actually

and proximately caused the plaintiff ’s injury, and (4)

the plaintiff suffered actual harm.” Guevara, 920 F.3d

at 720 (quoting Chaparro, 693 F.3d at 1336).

Here, the ﬁrst question for us is the scope of Carnival’s duty to Tesoriero. Shipowners owe their passengers a duty of “ordinary reasonable care under the

circumstances.” Keefe, 867 F.2d at 1322. This standard

requires, “as a prerequisite to imposing liability, that

the carrier have had actual or constructive notice of

the risk-creating condition,” at least so long as “the

menace is one commonly encountered on land and not

clearly linked to nautical adventure.” Id.; Everett v.

Carnival Cruise Lines, 912 F.2d 1355, 1358 (11th Cir.

1990). In other words, a cruise ship operator’s duty is

to shield passengers from known dangers (and from

dangers that should be known), whether by eliminating the risk or warning of it. Liability for a cruise ship

operator thus “ ‘hinges on whether it knew or should

have known’ about the dangerous condition.” Guevara,

920 F.3d at 720 (quoting Keefe, 867 F.2d at 1322).2

This notice requirement is not unique to maritime law. For

example, in a traditional negligence action against a landowner

by an invitee, a “defect or danger is generally insufﬁcient to establish liability, unless it is shown to be of such a character or of

such duration that the jury may reasonably conclude that due

care would have discovered it.” W. Page Keeton et al., Prosser and

App. 11

We have identiﬁed at least two ways that constructive notice can be shown. First, a plaintiff can establish

constructive notice by showing that a “defective condition existed for a sufﬁcient period of time to invite corrective measures.” Id. (alterations adopted) (quoting

Monteleone v. Bahama Cruise Line, Inc., 838 F.2d 63,

65 (2d Cir. 1988)). Second, a plaintiff can show evidence

of “substantially similar incidents in which conditions

substantially similar to the occurrence in question

must have caused the prior accident.” Id. (quotation

marks and citation omitted). On the other hand, the

fact that the cruise line runs the ship is not enough—

constructive notice of a risk cannot be imputed merely

because a shipowner “created or maintained” the

premises. Everett, 912 F.2d at 1358–59.

Here, the evidence does not show—and Tesoriero

does not contend—that Carnival had actual notice that

the chair was dangerous. Nor do we have any evidence

of substantially similar incidents involving wooden

cabin chairs. Tesoriero’s sole argument that Carnival

had constructive notice relies on her husband’s observations about the chair, along with Carnival’s furnitureinspection policy. In her view, these facts demonstrate

that Carnival should have known about the chair’s

“hair-trigger condition.” For Tesoriero to prevail on this

Keeton on the Law of Torts § 61, at 426–27 (5th ed. 1984). So, for

example, the “mere fact of the presence of a banana peel on a ﬂoor

may not be sufﬁcient to show that it has been there long enough

for reasonable care to require the defendant to discover and remove it,” while a “black, ﬂattened out and gritty” peel might lead

to a different conclusion. Id. § 39, at 243 (citation omitted). The

key is notice.

App. 12

theory, we would need to conclude that the chair existed in a defective condition “for a sufﬁcient period of

time to invite corrective measures.” Guevara, 920 F.3d

at 720. A defect, however, must be reasonably detectable for it to “invite” corrective measures, and we cannot

see how the chair’s condition here issued any such invitation.

To begin, Carnival’s “regular inspections weigh

against a ﬁnding of constructive notice” that the chair

was dangerous—not in favor of that ﬁnding. Id. at 723

n.8; see also Monteleone, 838 F.2d at 66. The daily inspection policy required stewards to report damaged

furniture to a ﬂoor supervisor, and the supervisor was

then responsible for documenting and addressing the

issue. The lack of a report noting structural damage to

Tesoriero’s cabin chair—or any wooden cabin chair for

that matter—indicates that the chair was not in a condition that invited corrective measures.

And at a more basic level, Tesoriero’s constructive

notice argument is undermined by her own evidence.

In Joseph Tesoriero’s afﬁdavit describing the incident,

he observed that the glue on the pegs holding the chair

together “appeared to be dried out or chipped away”

and that it was “obvious” that “the pegs had been unglued and loose for a long time.” But those observations, however obvious they may have been after the

fall, could not have been made by the crew before the

chair came apart. Joseph Tesoriero himself admitted

that—before its collapse—the “chair did not have any

obvious or observable outward defects.” In fact, he

App. 13

added that the condition of the pegs was “visible only

after it fell apart.”

The photographic evidence submitted by Tesoriero

only reinforces her husband’s observations. Though

the pictures cannot reveal the state of the glue, it appears that the leg and seat of the chair were held together by four pegs that ﬁt into opposing holes. With

the chair intact, its cloth-covered frame would have enveloped and obscured the peg-and-hole assembly. So,

consistent with Joseph Tesoriero’s testimony, any defect relating to dried or chipped glue could not have

been visible until the chair came apart.

Even beyond the lack of any outwardly visible defect, Tesoriero’s characterization of the chair’s “hairtrigger condition” is weakened by her own testimony.

In her deposition, Tesoriero testiﬁed that she moved

the chair back from the vanity, evidently without noticing any problem; the issue only became apparent after the chair broke under her full weight.

The combined effect of this evidence does not support a reasonable inference that Carnival should have

known about the danger. Quite the opposite: it supports an inference that the defect in the chair was hidden, was not readily observable by sight or touch, and

could only be discovered by either disassembling the

chair to view the pegs or stress testing it. An implicit

legal requirement that all furniture on a cruise ship be

either disassembled or subjected to daily stress testing

would be remarkable. Rather than establishing that

Carnival should have known of the chair’s defective

App. 14

condition, the evidence supports the cruise line’s assertion that moving the chair during cleaning and conducting routine visual inspections did not reveal a

risk-creating condition.

That brings us to res ipsa loquitur. Tesoriero argues that even if she cannot show that Carnival had

notice of the chair’s dangerous condition, the cruise

line can still be held liable under that doctrine because

it eliminates the usual notice requirement. Her theory,

though, fails on several fronts: it not only misunderstands the relationship between duty and notice in a

tort claim but would also dramatically expand the doctrine of res ipsa loquitur, which “in the admiralty context is not totally unique but neither is it routine.”

United States v. Baycon Indus., Inc., 804 F.2d 630, 633

(11th Cir. 1986).

Res ipsa loquitur—Latin for “the thing speaks for

itself ”—is an evidentiary doctrine that permits a trier

of fact to infer a defendant’s negligence from unexplained circumstances.3 Sweeney v. Erving, 228 U.S.

233, 238–39 (1913); see also Johnson v. United States,

333 U.S. 46, 49 (1948). In other words, it is a form of

circumstantial evidence. See Sweeney, 228 U.S. at 240;

As it turns out, the phrase itself does not “speak for itself ”—the Latin terminology has long been criticized for adding

unnecessary mystery “to a relatively simple problem” of circumstantial evidence. Restatement (Second) of Torts § 328D cmt. a

(Am. Law Inst. 1965).

App. 15

see also W. Page Keeton et al., Prosser and Keeton on

the Law of Torts § 39, at 243 (5th ed. 1984); Restatement (Second) of Torts § 328D cmt. b (Am. Law Inst.

1965). For the doctrine to apply, the plaintiff needs to

show that “(1) the injured party was without fault, (2)

the instrumentality causing the injury was under the

exclusive control of the defendant, and (3) the mishap

is of a type that ordinarily does not occur in the absence of negligence.” Baycon, 804 F.2d at 633.

But before we address the application of the doctrine to the facts of this case, we need to decide a

threshold question that has divided the district courts

in our Circuit—whether a maritime passenger who

fails to establish the shipowner’s notice of a dangerous

condition can still survive summary judgment by invoking res ipsa loquitur. If not, the lack of notice is dispositive: no notice, no negligence. This is an open

question in our Circuit.

Indeed, district courts have reached conﬂicting

conclusions on the issue. In Adams v. Carnival Corp.—

a maritime negligence action arising from a deck chair

collapsing under a passenger—the district court considered the effect of res ipsa loquitur on the notice requirement. No. 08-22465-CIV, 2009 WL 4907547, at *1,

*5 (S.D. Fla. Sept. 29, 2009). The evidence showed that

Carnival conducted routine inspections of the chairs,

and the court concluded that the plaintiff presented no

evidence that the defect was “even capable of detection.” Id. at *4. There, as here, the plaintiff attempted

to get around the usual notice requirement with res

ipsa loquitur. Ultimately, the district court held that

App. 16

the plaintiff ’s invocation of res ipsa loquitur did “not

obviate the need to show that Carnival had notice.” Id.

at *5. “Without speciﬁc facts demonstrating, at least,

that the purported defect was detectable with sufﬁcient time to allow for corrective action,” the case could

not proceed to a jury. Id.

Since Adams, though, the tide has turned and a

majority of the district courts in this Circuit have

reached the opposite conclusion (including in this

case).4 A leading example is Millan v. Celebration

Cases from other jurisdictions take a variety of approaches

on res ipsa loquitur and notice. Following in Adams’ footsteps,

“several cases in the maritime context” support an argument

“that a predicate for a res ipsa loquitur ﬁnding is that the Defendant had notice of the defective condition.” Tillson v. Odyssey

Cruises, No. 08-10997-DPW, 2011 WL 309660, at *7 (D. Mass.

Jan. 27, 2011). Others have concluded that res ipsa loquitur is

incompatible with a notice requirement. See, e.g., Krivokuca v.

City of Chicago, 73 N.E.3d 525, 532 (Ill. App. Ct. 2017) (holding

that res ipsa loquitur was unavailable when statute required

showing actual or constructive notice); Mixon v. Wash. Metro.

Area Transit Auth., 959 A.2d 55, 60 (D.C. 2008) (This “court and

others have held that in cases in which notice is an essential element of a plaintiff ’s claim, res ipsa loquitur is inapplicable because it is inconsistent with the requirement of notice.”). There is

also considerable support for the opposite proposition. See, e.g.,

Smith v. United States, 860 F.3d 995, 998 n.2 (7th Cir. 2017) (noting that “the inference triggered by the res ipsa loquitur doctrine

would include the proposition that the defendant had notice of the

defective nature of the instrumentality that caused the plaintiff ’s

injury”); Miller v. Cincinnati, New Orleans & Tex. Pac. Ry. Co.,

317 F.2d 693, 696 (6th Cir. 1963) (“If application of the doctrine

permits an inference of negligence, such inference must necessarily include all the essential elements of negligence, including

here an inference that defendant had actual or constructive

knowledge of the defective condition.”); Burns v. Otis Elevator,

App. 17

Cruise Operator, Inc., where a piece of the ceiling fell

and hit a passenger. 212 F. Supp. 3d 1301 (S.D. Fla.

2015). After initially distinguishing Adams on its facts,

the court went on to conclude that “a plaintiff is not

required to show the defendant’s actual or constructive

notice of the defective condition in order to raise a res

ipsa loquitur inference of negligence under maritime

law.” Id. at 1306. In support of that conclusion, the district court cited our opinion in United States v. Baycon

Industries as ﬁnding “no requirement of actual or constructive notice for res ipsa in maritime negligence action.” Id. at 1305–06 (citing Baycon, 804 F.2d at 63235). The problem is that Baycon does not say that (or

even hint at it). Nevertheless, many district court

opinions have embraced this view in the years that followed, often with little more than a citation to Millan

itself. See, e.g., Morhardt v. Carnival Corp., 304

F. Supp. 3d 1290, 1296 (S.D. Fla. 2017) (citing Millan

and noting that “courts in this district have held that

a plaintiff in a maritime action based on negligence is

not required to prove that the shipowner had notice of

the defective condition when the doctrine of res ipsa

loquitur applies”); O’Brien v. NCL (Bahamas) Ltd., 288

F. Supp. 3d 1302, 1314 (S.D. Fla. 2017).

In resolving the apparent uncertainty within our

Circuit about notice and res ipsa loquitur, we return to

Co., 550 So. 2d 21, 22 (Fla. Dist. Ct. App. 1989) (actual or constructive notice of the defect is “immaterial” if the conditions for

the res ipsa doctrine are established).

App. 18

ﬁrst principles.5 “Res ipsa loquitur leads only to the

conclusion that the defendant has not exercised reasonable care, and is not itself any proof that he was

under a duty to do so.” Keeton et al., supra, § 39, at 255.

“It does not permit the imposition of liability without

fault, and therefore does not help to establish the duty

of care, which is essential to every negligence case.” 1

Stuart M. Speiser, The Negligence Case: Res Ipsa Loquitur § 3:1, at 90 (1972). That means the doctrine does

not apply unless the alleged negligence is “within the

scope of the defendant’s duty to the plaintiff.” Restatement (Second) of Torts § 328D (Am. Law Inst. 1965).

That same duty requirement is found in the res ipsa

loquitur doctrines of many states, and at least one federal circuit court has already stated that it applies in

the admiralty context as well. See, e.g., Trigg v. City &

County of Denver, 784 F.2d 1058, 1060 (10th Cir. 1986)

(applying Colorado law); Biggs v. Logicon, Inc., 663 F.2d

52, 54 (8th Cir. 1981) (noting in an admiralty case that

res ipsa loquitur only applies if the “negligence is

within the scope of the defendant’s duty to the plaintiff ”); Moon v. Dauphin County, 129 A.3d 16, 26 (Pa.

Commw. Ct. 2015); Crum v. Equity Inns, Inc., 685

S.E.2d 219, 229 (W. Va. 2009); Linnear v. CenterPoint

Energy Entex/Reliant Energy, 966 So. 2d 36, 44 (La.

2007).

Our Circuit is not alone in its uncertainty—at least as a

general matter. Prosser and Keeton, for instance, describe “an uncertain ‘doctrine’ of res ipsa loquitur, which has been the source

of some considerable trouble to the courts.” Keeton et al., supra,

§ 39, at 243–44.

App. 19

So res ipsa loquitur can allow a jury to infer from

circumstantial evidence that the defendant must have

breached its duty—but it cannot show that a defendant must have had that duty in the ﬁrst place. The Supreme Court’s description of the doctrine as “an aid to

the plaintiff in sustaining the burden of proving breach

of the duty of due care” is consistent with that understanding—a duty can only be breached if it exists.

Commercial Molasses Corp. v. N.Y. Tank Barge Corp.,

314 U.S. 104, 113 (1941) (emphasis added). It would be

quite odd to say that a party must have had a duty, but

for reasons that cannot be discovered. As another court

put it, “res ipsa loquitur provides no assistance to a

plaintiff ’s obligation to demonstrate a defendant’s

duty, that a breach of that duty was a substantial factor in causing plaintiff harm, or that such harm resulted in actual damages. However, res ipsa loquitur

does aid a plaintiff in proving a breach of duty.” Quinby

v. Plumsteadville Family Practice, Inc., 907 A.2d 1061,

1071 n.15 (Pa. 2006). Well put.

For instance, a trespasser, to whom no duty of care

was owed by a landowner, may not establish a landowner’s liability for a defective condition by relying on

res ipsa loquitur. Restatement (Second) of Torts § 328D

cmt. j (Am. Law Inst. 1965). Similarly, if a statute provides that automobile drivers are only liable to their

passengers for “wilful, wanton, or reckless conduct,” a

passenger relying on res ipsa loquitur to show a breach

of ordinary care cannot establish liability under the

higher statutory duty. Id. In other words, res ipsa loquitur “does not eliminate a plaintiff ’s obligation to

App. 20

prove that the defendant owed a duty to the plaintiff

in the ﬁrst place.” Ausherman v. Bank of Am. Corp., 352

F.3d 896, 901 (4th Cir. 2003).

With this foundation laid, our resolution of the notice issue is straightforward. If res ipsa loquitur cannot

eliminate the duty requirement, it cannot eliminate

the notice requirement; the two are intertwined in a

maritime negligence tort. Guevara, 920 F.3d at 720.

Maritime passengers are owed a duty of “ordinary reasonable care under the circumstances, a standard

which 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;

Everett, 912 F.2d at 1358. And we have been clear that

the scope of a cruise line’s “duty to protect its passengers is informed, if not deﬁned, by its knowledge of the

dangers they face onboard.” K.T. v. Royal Caribbean

Cruises, Ltd., 931 F.3d 1041, 1044 (11th Cir. 2019).

The Baycon case, no matter how frequently it is

cited, does not change that equation. In fact, it does not

even use the term notice or explicitly consider the issue

before us today. Instead, Baycon deals with shipowner

liability for sunken vessels. Baycon, 804 F.2d at 631–

32. The suit was brought under the Rivers and Harbors

Act of 1899, which imposed a duty on shipowners to not

“voluntarily or carelessly” sink a vessel. Id. at 631, 633

n.5 (citation omitted). Because the forty-year-old, longidle ship in that case sunk on a clear and calm night,

we allowed the doctrine of res ipsa loquitur to supply

the inference that its sudden sinking was caused by

negligence. Id. at 634. That is all.

App. 21

Even so, district courts in this Circuit have sometimes concluded—perhaps from the lack of any discussion about notice—that Baycon demonstrates that res

ipsa loquitur eliminates any notice requirement. But

that is just not right. To begin, though Baycon does not

speciﬁcally address notice, the Court’s discussion of the

dredge’s age, the length of time since it had been in

service, and the preparation for travel without assessing “the condition of the external hull below the

water line” rings in the tones of constructive notice. Id.

And more to the point, absent so much as a word about

notice in that earlier precedent on statutory negligence

for sunken vessels, we cannot jump to the conclusion

that res ipsa loquitur obviates the well-known notice

requirement for cruise ship negligence cases brought

by passengers.

In sum, a plaintiff who relies on res ipsa loquitur

to show a breach of duty still bears the burden of proving that a duty existed in the ﬁrst place. And because

notice is an integral part of duty, a passenger who relies on res ipsa loquitur bears the burden of showing

that the cruise line had notice. As it applies to this case,

then, the doctrine does not help Tesoriero. Carnival’s

duty was to protect Tesoriero from dangerous conditions that it was aware of or should have been aware

of. But as we have already explained, Tesoriero’s own

evidence shows that the chair’s defect was hidden. Because res ipsa loquitur has no effect on our duty analysis, Tesoriero’s failure to establish Carnival’s actual

or constructive notice is fatal to her case. And that is

App. 22

true whether or not res ipsa loquitur would otherwise

apply to a broken chair fact pattern—a question we

need not consider given our resolution of the notice issue.

So, although we conclude that the district court

erred by holding that res ipsa loquitur obviates the notice requirement, we ultimately reach the same result:

Tesoriero’s failure to prove that Carnival had notice

cannot be cured by her reliance on res ipsa loquitur.

Finally, we consider Tesoriero’s argument that

Carnival spoliated evidence by disposing of her broken

cabin chair. She maintains here, as she did below, that

Carnival should be sanctioned with an adverse inference that the cruise line had notice of the defect—an

inference that would defeat its motion for summary

judgment.

The district court declined to impose Tesoriero’s

requested sanction because, in its view, Carnival did

not reasonably anticipate litigation, and therefore did

not have a duty to preserve the chair. This was incorrect, and the district court’s reasoning is undermined

by Carnival’s own admission. During discovery, in its

response to a request for admissions under Federal

Rule of Civil Procedure 36, Carnival admitted that it

anticipated litigation “immediately after the incident

was reported.” “A matter admitted under this rule is

conclusively established unless the court, on motion,

permits the admission to be withdrawn or amended.”

App. 23

Fed. R. Civ. P. 36(b). Because the record does not indicate that Carnival’s admission was withdrawn or

amended, we must conclude that the district court

erred in holding that Carnival did not anticipate litigation.

But anticipation of litigation is not the standard

for spoliation sanctions—bad faith is. So even though

the district court incorrectly concluded that Carnival

did not anticipate litigation, the court’s decision not to

impose sanctions for spoliation would still be appropriate absent evidence that Carnival acted in bad faith.

And even if bad faith were shown, the court’s decision

not to impose sanctions would be appropriate if “the

practical importance of the evidence” was minimal.

Flury, 427 F.3d at 945; cf. Green Leaf Nursery v. E.I.

DuPont De Nemours & Co., 341 F.3d 1292, 1308 (11th

Cir. 2003) (no spoliation claim under Florida law without a “signiﬁcant impairment in the ability to prove the

lawsuit”); Walter v. Carnival Corp., No. 09-20962-CIV,

2010 WL 2927962, at *2 (S.D. Fla. July 23, 2010) (evidence must be “crucial to the movant being able to

prove its prima facie case or defense” to establish spoliation). We “may afﬁrm for any reason supported by

the record, even if not relied upon by the district court.”

Lage, 839 F.3d at 1009.

Spoliation is “deﬁned as the destruction of evidence or the signiﬁcant and meaningful alteration of a

document or instrument.” Green Leaf Nursery, 341

F.3d at 1308 (11th Cir. 2003) (quotation marks and citation omitted). In some circumstances, a party’s “spoliation of critical evidence may warrant the imposition

App. 24

of sanctions.” Flury, 427 F.3d at 945. Because spoliation is an evidentiary matter, “federal law governs the

imposition of spoliation sanctions.” Id. at 944. Sanctions for spoliation may include “(1) dismissal of the

case; (2) exclusion of expert testimony; or (3) a jury instruction on spoliation of evidence which raises a presumption against the spoliator.” Id. at 945.

When deciding whether to impose sanctions, a

number of factors are relevant: “(1) whether the party

seeking sanctions was prejudiced as a result of the destruction of evidence and whether any prejudice could

be cured, (2) the practical importance of the evidence,

(3) whether the spoliating party acted in bad faith, and

(4) the potential for abuse if sanctions are not imposed.” ML Healthcare Servs., LLC v. Publix Super

Mkts., Inc., 881 F.3d 1293, 1307 (11th Cir. 2018) (citing

Flury, 427 F.3d at 945).

Spoliation sanctions—and in particular adverse

inferences—cannot be imposed for negligently losing

or destroying evidence. Indeed, “an adverse inference

is drawn from a party’s failure to preserve evidence

only when the absence of that evidence is predicated

on bad faith.” Bashir v. Amtrak, 119 F.3d 929, 931 (11th

Cir. 1997). And bad faith “in the context of spoliation,

generally means destruction for the purpose of hiding

adverse evidence.” Guzman v. Jones, 804 F.3d 707, 713

(5th Cir. 2015). This consideration is key in evaluating

bad faith because the party’s reason for destroying evidence is what justiﬁes sanctions (or a lack thereof ).

“Mere negligence is not enough, for it does not sustain

an inference of consciousness of a weak case.” Vick v.

App. 25

Tex. Emp’t Comm’n, 514 F.2d 734, 737 (5th Cir. 1975)

(citation omitted).6

Some of our earlier cases illustrate the difference

between bad faith and mere negligence. In Bashir v.

Amtrak, we held on summary judgment that the unexplained absence of a train’s speed record tape did not

warrant an adverse inference that the train was traveling at an excessive speed when it struck and killed a

pedestrian. 119 F.3d at 931. We would “not infer that

the missing speed tape contained evidence unfavorable

to appellees unless the circumstances surrounding the

tape’s absence indicate bad faith, e.g., that appellees

tampered with the evidence.” Id. Because plaintiffs

produced no evidence that the train company purposefully lost or destroyed the tape, we concluded that

there was no showing of bad faith. And ﬁnding no bad

faith, we declined to impose spoliation sanctions

against the train company, which had already produced signiﬁcant evidence that the train was not exceeding the statutory speed limit. Id. at 931–32.

In contrast, bad faith was evident, and spoliation

sanctions were appropriate, in Flury v. Daimler Chrysler Corp. 427 F.3d at 944–47. There, the plaintiff sued

a vehicle manufacturer alleging that he was injured

when his car’s airbags did not inﬂate during a crash.

Id. at 940. Shortly after the lawsuit was ﬁled, the defendant sent a letter requesting the location of the

In Bonner v. City of Prichard, 661 F.2d 1206 (11th Cir.

1981) (en banc), this Court adopted as binding precedent all of the

decisions of the former Fifth Circuit handed down prior to the

close of business on September 30, 1981.

App. 26

vehicle so that it could conduct an inspection. Id. at

941–42. The plaintiff did not respond to the letter. Although he was “fully aware that defendant wished to

examine the vehicle,” he “ignored defendant’s request

and allowed the vehicle to be sold for salvage without

notiﬁcation to defendant of its planned removal.” Id. at

945. It is no surprise that we found bad faith on those

facts.

But the facts here are different, and Tesoriero has

not established that Carnival’s failure to preserve the

chair rose to the level of bad faith. Nothing in this

record indicates that Carnival disposed of the broken

chair in a manner inconsistent with its policies or that

the policies themselves somehow establish bad faith.7

And unlike the plaintiff in Flury, Carnival cannot be

said to have been “fully aware” of Tesoriero’s desire to

further inspect the chair. See Flury, 427 F.3d at 945; see

also Calixto v. Watson Bowman Acme Corp., No. 0760077-CIV, 2009 WL 3823390, at *16 (S.D. Fla. Nov. 16,

2009) (concluding that bad faith can be established by

circumstantial evidence only when the “act causing the

loss cannot be credibly explained as not involving bad

faith by the reason proffered by the spoliator”).

It is unclear to us how—as the dissent suggests—three district court cases that declined to offer any relief based on spoliation or discarding evidence in accordance with Carnival’s policies

should persuade us that sanctions are appropriate here. Dissenting Op. at 11–12. The point only sharpens when we consider that

two out of the three cases involved collapsing chairs. See Walter

v. Carnival Corp., No. 09-20962-CIV, 2010 WL 2927962 (S.D. Fla.

July 23, 2010); Hickman v. Carnival Corp., No. 04-20044-CIV,

2005 WL 3675961 (S.D. Fla. July 11, 2005).

App. 27

The record shows that the cabin steward came to

Tesoriero’s cabin soon after the accident to remove and

replace the broken chair. The steward was not there to

investigate the accident, but simply to replace the

chair. Of course, as the housekeeping manager aboard

the Carnival Splendor explained, if Tesoriero had requested that the chair be saved, the steward would

have done so. He also would have done so if the security department had requested retention. But without

a request from Tesoriero or the security department,

the chair was taken to maintenance for repair. When

the maintenance department could not repair it, the

chair was disposed of.

Even if the disposal of the chair were somehow improper, we do not see how it would give rise to anything

more than an act of mere negligence. The security department at Carnival is responsible for investigating

accidents and preserving evidence. Again, Tesoriero offers no evidence that she ever requested that the chair

be preserved. Nor was the security department informed by the medical staff that a passenger was injured seriously enough to require an investigation.

Under Carnival’s policy, injuries that only require ﬁrst

aid are classiﬁed as “non-reportable” and do not require an accident report and an investigation by the

security department. By all accounts, on the ship, the

injury to Tesoriero’s arm appeared minor.8 Her arm

The dissent’s quote from Tesoriero’s independent medical

examination that her initial x-ray “was read as a hairline fracture” (by whom, he does not say, and we do not know) does not

change this fact. Dissenting Op. at 10. Tesoriero does not argue,

App. 28

was not broken and was only treated with basic ﬁrst

aid—ice, a sling, and Tylenol.9

In short, nothing in the record smacks of bad faith.

Under these facts, Carnival’s explanation reasonably

suggests that the chair was not destroyed to hide adverse evidence. At most, Tesoriero has provided evidence that Carnival’s shipboard medical staff were

negligent in not anticipating that her injury could be

more serious than it appeared. Mere negligence in losing or destroying evidence is not enough to warrant

sanctions. Bashir, 119 F.3d at 931. And the right hand

not talking to the left is not the same thing as the right

hand telling the left to destroy evidence. Accordingly,

we conclude that the district court properly declined to

draw an adverse inference from Carnival’s failure to

retain the chair.

even once, that her arm was broken. According to her own testimony, she was told it was not broken on the ship, she was told it

was not broken on land, and her arm was, in fact, not broken. She

was diagnosed with medial epicondylitis and ulnar neurapraxia—

a condition that she describes as “tennis elbow”—and Tesoriero

does not dispute this conclusion. At this point, of course, we have

no doubt that her injury turned out to be serious.

The dissent suggests that this treatment, because it was

provided by a physician instead of a layperson, is not really ﬁrst

aid. Dissenting Op. at 8–9. In the context of Carnival’s policy,

however, ﬁrst aid refers to the type of care provided, not on who

is providing the treatment. We have no hesitation concluding that

ice, a sling, and Tylenol together are nothing more than simple

ﬁrst aid in the context of this policy. The fact that an x-ray was

taken, as a diagnostic step, to conﬁrm the absence of a fracture

does not move the needle.

App. 29

To be sure, we would have little trouble afﬁrming

sanctions against Carnival if the factual circumstances were slightly different. For example, if Tesoriero’s arm had been visibly fractured, it would be hard

for Carnival to convince us that the decision not to report the injury to security was reasonable, or in keeping with its ordinary policy. Similarly, if there were any

evidence that Tesoriero requested that the chair be

preserved, we would be highly skeptical of a subsequent claim that the chair was disposed of pursuant to

a routine policy. In both of those circumstances, the inference that the chair was destroyed to hide adverse

evidence would be much stronger than it is here.

We will brieﬂy add that even if there were evidence to somehow support a ﬁnding of bad faith, that

would not justify the leap that the dissenting opinion

takes. To begin, no party has cited a persuasive case to

support a presumption of notice as a spoliation sanction, and the one identiﬁed by the dissent falls short.10

We note a few things about the exemplar magistrate judge

order cited by the dissent as an example of spoliation leading to

an inference-of-notice sanction. First, the sanction imposed was

the “least-severe sanction available,” and was a “rebuttable, permissible adverse inference that the destroyed evidence would

have demonstrated the existence of a dangerous condition” that

the defendant knew or should have known about. In re the Complaint of Boston Boat III, LLC, 310 F.R.D. 510, 523 (S.D. Fla.

2015) (parenthetical mark omitted). And that light-touch sanction

was imposed in a case that involved dramatic evidence of bad

faith: for starters, the defendant destroyed critical evidence well

after litigation began. Not only that, but the defendant’s attorney

personally observed and failed to stop ongoing destruction, the

plaintiff ’s attorney was not timely notiﬁed of the destruction, and

the defendant presented inconsistent explanations for why the

App. 30

But even more critically, we disagree with the dissent’s

view that “the practical importance of the evidence”

supports sanctions in this case. Flury, 427 F.3d at 945;

ML Healthcare Servs., LLC, 881 F.3d at 1307. Here,

even if the chair had been preserved, it is not clear

what evidence of Carnival’s notice could be deduced

from the already-broken piece of furniture. Joseph

Tesoriero testiﬁed that there was no outwardly visible

defect, Tesoriero herself noticed no problem when she

moved the chair back from the vanity, and the photographic evidence conﬁrms that the peg-and-hole assembly—as well as the state of the glue holding it

together—would have been obscured before the accident. In light of the evidence, and given Tesoriero’s

failure to avail herself of Carnival’s offer to inspect an

identical unbroken cabin chair from the Splendor, we

are unpersuaded that her ability to inspect the broken

chair would have been so important to the notice issue

as to warrant sanctions. We also note our disagreement

with our dissenting colleague’s apparent view that

because evidence of notice would be necessary for

Tesoriero to show a prima facie case of negligence, it

must mean that the chair would have provided the

evidence. Dissenting Op. at 18-19. Respectfully, we fail

to see why one leads to the other; while notice has not

been shown here, it is not because the chair is missing.

evidence was destroyed. Id. at 517-23. The differences between

those facts and the ones in this case speak for themselves. Indeed,

nothing in this case would preclude the sanction applied in that

one.

App. 31

IV.

In conclusion, Tesoriero did not establish that Carnival had actual or constructive notice that the chair

was dangerous. This is fatal to her case. Her failure to

establish the duty element of her negligence claim cannot be cured by her invocation of the res ipsa loquitur

doctrine. And because she has not shown that Carnival

committed sanctionable spoliation of evidence, her

case is not saved through an adverse inference sanction. Accordingly, although we disagree with the reasoning of the district court in some respects, we reach

the same result.

AFFIRMED.

ROSENBAUM, Circuit Judge, dissenting:

When Irina Tesoriero boarded the Carnival Splendor to enjoy some special family time, she never expected the costs of her trip to include two surgeries and

numerous doctor and physical-therapy appointments

totaling more than $120,000 in medical bills. Nor did

Tesoriero realize that her cruise would cost her much

of the use of her dominant right arm and hand. But

that’s the price that Tesoriero has paid because a chair

on the Splendor collapsed as she tried to sit on it.

This case is about who should pay for Tesoriero’s

damages. Under the law, of course, if Carnival was not

negligent, it is entitled to a judgment in its favor, and

Tesoriero must shoulder the burden. On the other

App. 32

hand, if Carnival was negligent, then it has a legal obligation to pay for Tesoriero’s reasonable damages.

But we will never know whether Carnival was

negligent because Carnival destroyed the chair that

caused Tesoriero’s injuries. So conveniently for Carnival, there is no evidence that Carnival had notice of the

chair’s dangerous condition. The panel opinion excuses

Carnival’s destruction of evidence by just accepting

Carnival’s word that it did not destroy the chair in bad

faith. And the panel opinion does so even though Carnival has previously destroyed evidence in other cases

and has been warned by a federal court that its destruction of evidence could result in sanctions, Carnival’s so-called evidence-preservation procedures are

designed to ensure that evidence will be destroyed in

at least some cases and in fact have repeatedly resulted in the destruction of relevant evidence, and Carnival has failed to follow its own evidence-preservation

procedures in several cases, including this one.

To make matters worse—and in stark contrast to

how Carnival allowed the chair here to be destroyed—

Carnival calculatedly preserved evidence favorable to

it from the moment Tesoriero reported her fall onboard

the Splendor.

For these reasons and others I explain below, I respectfully disagree with the panel opinion. The record

here raises a genuine issue of material fact concerning

whether Carnival destroyed the chair in bad faith.

And if a jury were to conclude that Carnival had,

in fact, disposed of the chair in bad faith, Tesoriero

App. 33

would be entitled to an inference that the chair was

evidence favorable to her and detrimental to Carnival.

In particular, that inference could establish that Carnival had notice of—that is, it knew or should have

known about—the unsafe condition of the chair.

After all, Carnival testiﬁed that it repairs broken

chairs when possible. ECF No. 39-1 at 19-20.1 So an

examination of the chair at issue here might have revealed a faulty repair, or it could have shown that the

type of defect that occurred here has happened before

on the very same chair. It also might have suggested

that if, in fact, as Carnival testiﬁed, its employees conducted proper daily inspection of the furniture, Carnival should have known about the chair’s defect through

that program. ECF No. 39-1 at 47-48. Any of these outcomes would have provided evidence that Carnival had

notice of the chair’s dangerous condition. And if

Tesoriero could have shown an issue of fact concerning

notice, her claim would have survived summary judgment. In short, this record raises a genuine issue of

material fact concerning whether Carnival destroyed

the chair in bad faith, and that, in turn, necessarily

means that it raises a genuine issue of material fact as

For reasons of transparency, I include pincite references to

the evidence of record. That way, anyone who wishes to follow

along from their armchair may evaluate ﬁrsthand the evidence I

summarize. References are to the district-court ECF number and

the CM/ECF-imprinted page number, except where evidence consists of deposition transcripts. In those cases, references are to the

page numbers of the deposition transcript, since four deposition

transcript pages appear on each CM/ECF-numbered page.

App. 34

to whether Carnival had notice of the defect in the

chair that injured Tesoriero.

For that reason, Tesoriero is entitled to have a jury

decide whether it believes Carnival’s version of the

story. So I would vacate the grant of summary judgment and remand for a trial. Because the panel opinion

erroneously allows a judge (without so much as an evidentiary hearing), instead of a jury, to weigh credibility on the paper record and resolve this genuine issue

of material fact—whether Carnival destroyed the defective chair in bad faith—I respectfully dissent.

The panel opinion correctly sets forth the legal

principles concerning spoliation. But it’s worth emphasizing that the summary-judgment standard applies

equally to spoliation-related facts and other facts material to the resolution of the legal issues before the

district court. After all, “ ‘bad faith’ is a question of fact

like any other.” Bracey v. Grondin, 712 F.3d 1012, 1019

(7th Cir. 2013) (citation and internal quotation marks

omitted).

So we must view the spoliation-related evidence

and any reasonable inferences from it in the light most

favorable to Tesoriero, since she is the non-moving

party. See Al-Rayes v. Willingham, 914 F.3d 1302, 1306

(11th Cir. 2019). That means that if a genuine dispute

of material fact exists over bad faith, and a ﬁnding of

bad faith would support an adverse inference against

Carnival about a fact material to the resolution of the

App. 35

merits here, summary judgment must be denied. As I

explain below, that’s exactly the situation here.

My disagreement, then, lies with the panel opinion’s statement of the facts and its application of spoliation law to those facts. Once we consider all the

evidence—something the panel opinion did not do—we

must conclude that the evidence raises a material issue of fact about whether Carnival destroyed the chair

in bad faith. Speciﬁcally, a reasonable jury could ﬁnd

that Carnival devised and retained policies and procedures designed to result in the destruction of material

evidence in at least some cases, or it created conditions

that made compliance with its evidence-preservation

policies and procedures unlikely, or both.

If a jury reached any of these conclusions, it reasonably could ﬁnd that Carnival destroyed the chair

here in bad faith. And if a jury made that finding,

Tesoriero would be entitled to an adverse inference

that Carnival destroyed the chair because an examination of it could have provided evidence that Carnival

knew or should have known of the chair’s defective condition—a crucial part of Tesoriero’s prima facie case of

negligence against Carnival.

I begin with a little background against which we

must view Carnival’s policies and procedures covering

the preservation of material evidence involved in an

onboard injury. As the panel opinion notes, Carnival

conceded in its responses to Tesoriero’s requests for

App. 36

admissions that “immediately after the incident was

reported [by Tesoriero while onboard the Splendor,

Carnival] anticipated litigation arising from the accident.” ECF No. 65 at 25, 29. Indeed, as Monica Petisco,

Carnival’s corporate litigation representative, admitted, “anytime anything happens onboard, [Carnival]

anticipate[s] litigation.” ECF No. 39-2 at 24.

That is certainly clear from the Passenger Injury

Statement form that Carnival requires its guests to ﬁll

out in their own handwriting as soon as they seek medical attention onboard. See ECF No. 44-8. That Carnival demands the injured passenger prepare the form

in her own handwriting conveniently renders the form

an admission by the passenger for future-litigation evidentiary purposes. See United States v. Williams, 837

F.2d 1009, 1014 (11th Cir. 1988). The form also seeks

to seal the passenger into the details surrounding the

injury, likely before all details are known.

For example, in addition to questions about where

and when an injury occurred and how “in detail” it happened, the form asks the passenger to state what she

“believe[s] caused this accident” and “what [she] could

have done to avoid the accident.” Id. Then the form requires the guest to identify all witnesses to the accident, whether the guest uses glasses or contact lenses

and whether the guest was wearing them at the time

of the accident, and “[w]hat kind of shoes” the guest

was wearing when the accident happened. Id.

Put simply, the Passenger Injury Form appears

designed to preserve for Carnival’s beneﬁt, from the

App. 37

instant an injury occurs, all evidence from the passenger that might assist Carnival in future litigation. Indeed, the speciﬁc information the questions seek

suggests that Carnival has learned much from its past

litigation about the evidence most helpful to it in litigation.

Of course, there is nothing inherently wrong with

that. But those steps differ strikingly from Carnival’s

policies and actual practices concerning preservation

of material tangible evidence that might hurt Carnival

and help a passenger in future litigation. And a reasonable jury might ﬁnd that fact bears on whether Carnival, in good faith, has developed and executes its

policies and procedures to preserve material tangible

evidence.

With this in mind, I review Carnival’s applicable

policies and procedures. According to Carnival’s corporate representatives, Carnival’s security department is

ultimately responsible for maintaining material tangible evidence. ECF No. 39-2 at 48; ECF No. 39-1 at 42.

Yet Carnival’s security department does not even become involved in deciding whether to preserve such evidence unless an accident report is ﬁled. ECF No. 39-2

at 48. According to Petisco, Carnival’s litigation representative, an accident report can be ﬁled in two circumstances. First, a guest can “request that [Carnival]

create an accident report.” Id. And, second, Carnival

“entrusts . . . the [ship’s] doctor to make the

App. 38

determination between reportable or non-reportable

[accidents],” based on whether an injury requires

“[a]nything beyond ﬁrst aid.” Id. at 48–49.

The panel opinion simply assumes without any

analysis that these policies are reasonable. But on

their face, these policies increase in three ways the

likelihood that material evidence will be discarded. Indeed, as Carnival well knows, history has proven that

true. Carnival’s policies have previously resulted in the

destruction of material evidence. And, in fact, at least

one district court has warned Carnival that a pattern

of discarding material evidence could support spoliation sanctions.

I begin by identifying the three ways Carnival’s

policies meaningfully increase the odds that Carnival

will destroy material evidence. First, Carnival’s housekeeping process has no mechanism requiring housekeeping employees to check with the security

department before discarding broken furniture from a

guest’s room. Rather, when furniture in a guest’s room

breaks, Carnival’s policy requires housekeeping staff

to immediately remove and replace the object in question – even if, as happened here, housekeeping removes

the item while the injured passenger remains in the

room and waits for help. ECF No. 39-1 at 41-42.

Once the broken piece is removed, it is taken to

be repaired. Id. at 42. If the furniture cannot be ﬁxed,

it is “usually disposed” of. Id. That does not happen

App. 39

if—and only if—Carnival’s security department afﬁrmatively intervenes and preserves the piece. See id.

So unless the security department jumps in to save

evidence before the housekeeping department throws

it out, evidence is discarded. But of course, the security

department does not intercede if an accident report is

not ﬁled.

Second, and compounding this problem, Carnival’s

shipboard processes falsely cause guests to believe

that they have made an accident report when they

seek medical attention from the ship’s doctor. As I have

noted, when a guest visits the ship’s doctor to address

an injury, she must ﬁll out a Carnival document called

“Passenger Injury Statement.” Besides the other questions the thorough form lists, it asks, “Date [accident]

reported,” “Name of staff member accident reported

to,” “Time reported,” and “If not reported immediately,

please explain why?” ECF No. 44-8. These questions

suggest that a passenger can ofﬁcially report an accident to any “staff member” and that the passenger has

ofﬁcially reported her injury to Carnival when she ﬁlls

out the Passenger Injury Statement. So a passenger

has no reason to ask whether she must do anything

further to make an ofﬁcial report to Carnival to trigger

the security department’s preservation of material evidence. Some might say this form lulls passengers into

a false sense of security that they have fully reported

the incident.

Third, Carnival’s policy leaving it to the discretion

of the ship’s doctor to decide whether an accident report should be ﬁled (and the evidence thus preserved),

App. 40

ensures that accident reports will not be ﬁled in at

least some cases where evidence should be maintained.

Carnival’s policy calls for the ship’s doctor to prepare

an accident report only when the doctor must provide

more than ﬁrst aid. But Carnival does not deﬁne what

it means by “ﬁrst aid.” Rather, that is up for interpretation by each individual doctor.2

And even if we disregard this shortcoming and assume all doctors abide in precisely the same way by

some (unidentiﬁed) universally applicable deﬁnition of

“ﬁrst aid,” the policy wrongly equates a doctor’s assessment that an injury requires no more than ﬁrst aid

with the determination that an injury is not serious

and the piece of furniture causing it should not be preserved. In fact, as is common knowledge, some injuries,

Standard references do not uniformly deﬁne the term “ﬁrst

aid.” For example, a medical dictionary deﬁnes “ﬁrst aid” as

“[i]mmediate assistance administered in the case of injury or sudden illness by a bystander or other layperson, before the arrival

of trained medical personnel.” First Aid, Stedman’s Medical Dictionary (28th ed. 2006). A non-medical dictionary deﬁnes “ﬁrst

aid” as “emergency and sometimes makeshift treatment given to

someone (as a victim of an accident) requiring immediate attention where regular medical or surgical care is not available.” First

Aid, Webster’s Third New International Dictionary, Unabridged

(2020), https://unabridged.merriam-webster.com/ (last visited

Mar. 25, 2020). Setting aside the fact that a doctor technically

does not render “ﬁrst aid” under either deﬁnition, these deﬁnitions do not set forth medical standards that identify what treatments, procedures, or remedies are necessarily “ﬁrst aid” and

what are not. As a result, Carnival’s policy does not clearly delineate when a doctor should prepare an accident form.

App. 41

at ﬁrst glance, may appear minor but later manifest

themselves as severe.

Carnival has also not explained why a policy that

depends on the provision of “ﬁrst aid” satisﬁes its duty

to preserve evidence in anticipation of litigation. And

the relationship between the two is not obvious to me.

Nor is it obvious to Carnival, since Carnival anticipates litigation “anytime anything happens onboard”

and preserves evidence favorable to it in every instance, regardless of whether the doctor provides only

“ﬁrst aid.” To rubberstamp a policy that allows Carnival to treat plaintiff-favorable evidence in its control

differently invites gamesmanship. Indeed, the policy

knowingly results in destruction of evidence even

though, by requiring the injured guest to ﬁll out the

Injury Statement Form to receive medical attention,

Carnival simultaneously preserves evidence favorable

to itself, in anticipation of litigation, when a doctor

does not ﬁle an accident report.

This case demonstrates some of these pitfalls.

First, this case appears to have involved more

than ﬁrst aid, but according to Carnival, the doctor did

not ﬁle an accident report. Here, the doctor took X-rays

of Tesoriero’s arm. X-ray equipment is not in any

standard first-aid kit I’ve ever seen. Plus here, the

doctor sent the X-rays off the ship to Miami to be

read—a process that would not be completed until

App. 42

after Tesoriero left the ship. Seeking consultation from

a specialist physician, like taking X-rays in the ﬁrst

place, seems like more than “ﬁrst aid.” (But then again,

we can’t look to Carnival’s policy for guidance on that).

If the Miami doctor had found a break in Tesoriero’s

arm, neither Tesoriero nor the ship’s doctor would have

known until after the cruise ended. In fact, it is not

clear the ship’s doctor ever would have learned of the

break. But because Carnival left ﬁling an accident report to the doctor’s discretion and, according to Carnival, the doctor did not do that (more on this later, see

infra at 14–15), the chair was discarded—before the

ship’s doctor even had conﬁrmation about whether

Tesoriero’s arm was broken.

As it turned out, according to Tesoriero’s medical

records, Tesoriero’s X-ray “was read as a hairline fracture.”3 ECF No. 44-11 at 10. And her follow-up medical

The panel opinion takes issue with this statement because

it says that “Tesoriero does not argue . . . that her arm was broken.” See Maj. Op. at 25 n.8. True, she doesn’t. But that misses

the point. The point is that the X-ray taken by the ship’s doctor

was read by a medical professional as showing a serious enough

injury to require more than simple ﬁrst aid. As for the derivation

of that statement, it comes from Tesoriero’s independent medical

examination report, which a Board-certiﬁed orthopedic surgeon

conducted. More specifically, it appears in his review of Tesoriero’s

medical records from July 1, 2015, four days after the incident.

The surgeon reported that a medical professional who examined

Tesoriero on July 1 stated in Tesoriero’s visit notes that Tesoriero

“had an [X]-ray on the cruise that was read as a hairline fracture.”

ECF No. 44-11 at 10. Presumably, that refers to the Miami specialist’s reading of the X-ray the ship’s doctor took, because the

ship’s medical center advised Tesoriero that the ship’s doctor (who

told Tesoriero he didn’t think her arm was broken but he couldn’t

App. 43

care showed that she had “a focus of T2 hyperintensity

at the insertion of the common extensor tendon on the

lateral humeral epicondyle consistent with a partial

tear.” Id. As a result, Tesoriero was “unable to drive

without pain and unable to carry anything.”4 Id. By

any deﬁnition, that is certainly an injury requiring

more than ﬁrst aid.

Second, even if we assume Tesoriero’s injury required only mere “ﬁrst aid” while she was onboard the

Splendor, there can be no question that Tesoriero, in

fact, suffered a serious injury. I have already recounted

the lasting pain the injury has caused Tesoriero. And

because of her injury onboard the Splendor, Tesoriero

conﬁrm) “didn’t have full expertise to read an X-ray, and it would

be shipped to Miami, and they would give [Tesoriero] an answer,”

which would happen after she left the cruise ship. ECF No. 39-3

at 74. The medical facility Tesoriero visited on July 1 then took a

new X-ray that “revealed no acute fracture.” ECF No. 44-11 at 10.

That a new X-ray taken four days after the incident did not show

an “acute fracture” does not mean that an X-ray taken four days

earlier did not show a “hairline fracture.” By their nature, “hairline” fractures can be difﬁcult to see, and the intervening time

between the initial X-ray and the later one could have made any

“hairline” fracture that may have existed at one time even harder

to see, to the extent that it continued to exist.

Tesoriero also testiﬁed,

I can’t carry the garbage. I can’t carry the laundry. I

can’t empty or pick up heavy pots. Cooking is very restrictive in terms of getting things in and out of an

oven. Carrying groceries, doing grocery shopping, opening a bottle of water, twisting actions. I can’t peel potatoes. I can’t peel carrots. I can’t ﬂip pancakes. I can’t

put any pressure on—like when you peel an apple.

ECF No. 39-3 at 52.

App. 44

had to undergo two surgeries, physical therapy, and

other medical treatment after her cruise ended—resulting in medical expenses of more than $120,000.

ECF No. 44-11 at 14. If the doctor’s failure to ﬁle an

accident report here was consistent with Carnival policy, a reasonable jury could conclude that Carnival’s

policy is unreasonable, or even that it was created in

bad faith. After all, under the panel opinion’s analysis,

Carnival’s policy that ensures destruction of evidence

in these circumstances is precisely what shields it from

potential liability and any consequences of destroying

the evidence.

Tellingly, this is not the ﬁrst case where Carnival

has destroyed material evidence, supposedly in accordance with its policies. For example, in Morhardt v. Carnival Corp., Morhardt used a ship hair dryer, which

electrocuted him and burned and blackened his hand.

304 F. Supp. 3d 1290, 1292–93 (S.D. Fla. 2017). He immediately went to the ship’s inﬁrmary for treatment.

Id. at 1293. Yet Carnival threw out the hair dryer involved in the incident. Id. at 1297.

The district court in Morhardt described Carnival’s actions as being “a matter of keen concern.” Id.

And the court noted that it was “aware of other cases

in which a plaintiff passenger was injured aboard a

Carnival cruise ship and the object that purportedly

caused the injury was immediately discarded.” Id. at

App. 45

1297 n.6 (citing Walter v. Carnival Corp., No. 09-20962CIV, 2010 WL 2927962 (S.D. Fla. July 23, 2010)).5 Signiﬁcantly, the court “caution[ed] Carnival against establishing a pattern or practice of discarding such

objects because such actions could potentially provide

a basis for spoliation sanctions or liability in the future.” Id.

The panel opinion ﬁnds it “unclear how . . . three

district court cases that decline to offer any relief based

on spoliation or discarding evidence should persuade

[the panel opinion] that sanctions are appropriate

here.” Maj. Op. at 23-24 n.7. And somehow, it thinks the

fact that “2 of the 3 cases involved collapsing chairs”

strengthens its view that sanctions are not appropriate

here. Id. In my view, the opposite is true.

At some point, adherence to policies Carnival

knows from past litigation result in the destruction of

material evidence—especially when Carnival anticipates litigation and simultaneously employs policies

designed to preserve evidence favorable to it—constitutes bad faith. This is particularly the case here because a federal court has already expressly warned

Carnival that its continuing failure to maintain material evidence may result in spoliation sanctions. Surely,

the mere fact of the existence of Carnival’s policies

(that it knows result in destruction of material evidence)—even if Carnival complied with them—cannot

See also Hickman v. Carnival Corp., No. 04-20044-CIV,

2005 WL 3675961 (S.D. Fla. July 11, 2005) (Carnival “almost immediately” repaired bar stool involved in incident, instead of preserving it).

App. 46

indeﬁnitely shield Carnival from liability and consequences of any type.

Indeed, we suggested as much when we held that

one of the factors relevant to whether spoliation sanctions should be imposed is “the potential for abuse if

sanctions are not imposed.” ML Healthcare Servs., LLC

v. Publix Super Mkts., Inc., 881 F.3d 1293, 1307 (11th

Cir. 2018) (citing Flury v. Daimler Chrysler Corp., 427

F.3d 939, 945 (11th Cir. 2005)). Yet to excuse Carnival’s

destruction of evidence, the panel opinion allows Carnival to continue to hide behind the very policies Carnival knows result in destruction of evidence. A jury

should be allowed to determine whether Carnival has

reached the point where its policies that have previously proven to result in destruction of evidence can no

longer shield it from liability.

Even if a jury rejected the notion that Carnival’s

failure to modify its policies to prevent material evidence from being destroyed demonstrates bad faith, a

reasonable jury could still conclude that Carnival

failed to ensure compliance with its preservation policies here. And a jury that made that ﬁnding could conclude that Carnival’s failure to abide by its own policies

shows bad faith in and of itself.

To begin with, Tesoriero reported her incident

with the chair literally at least ﬁve different ways to

App. 47

Carnival while she was still onboard her cruise.6 And

after she told Dr. Milos Potkonjak, the ship’s doctor, he

advised her that a health-and-safety ofﬁcial on the

ship would speak with her about her injury. ECF No.

39-3 at 100-01. Even Carnival conceded in its answers

to Tesoriero’s requests for admissions that “the accident in this case was reported to the Defendant cruise

line on the cruise on which the incident occurred.” ECF

No. 65 at 25, 29. Yet the chair was not preserved.

Despite all these reports to Carnival employees in

various cruise line positions, Carnival made no effort

to preserve the chair involved in the injury. And though

First, Tesoriero’s husband Joseph called Guest Services, reported the incident, and asked for immediate medical attention.

ECF No. 39-3 at 65-66; ECF No. 44-3 at ¶ 5; ECF No. 39-6 at 3.

Second, when the cabin steward went to the Tesorieros’ room and

removed the broken chair, the Tesorieros told him that Tesoriero

believed she had broken her arm and that they had called for help,

and they asked him whether a doctor would be coming to the

room. ECF No. 39-3 at 67. Third, when no doctor arrived at the

Tesorieros’ room after half an hour, the Tesorieros went to the

inﬁrmary to seek medical attention. Id. at 72–73. It was closed,

but they found a nurse and told her about Tesoriero’s injury. Id.

at 73. She got Dr. Potkonjak, and the Tesorieros told him about

the injury. Id.; ECF No. 44-3 at ¶ 6. Fourth, Dr. Potkonjak gave

the Tesorieros a Passenger Injury Statement to ﬁll out, which reported the incident yet again. ECF No. 39-3 at 68; see also ECF

No. 44-8. And ﬁnally, while still onboard the cruise, Tesoriero also

reported her injury to the front-desk supervisor on the ship, seeking a document stating that she would get her X-rays back. ECF

No. 39-3 at 100. Carnival’s responses to Tesoriero’s interrogatories also indicate that Tesoriero “interacted with . . . I Care personnel” about her injury, ECF No. 39-6 at 3, but it is not clear

whether the “I Care personnel” she spoke with included any of the

Carnival employees previously identiﬁed.

App. 48

the ship’s doctor advised Tesoriero that a health-andsafety ofﬁcial would speak with her concerning her injury, no one ever did.

This reference to a health-and-safety ofﬁcial appears to be a reference to Carnival’s security department. If so, that means the doctor apparently thought

he was making a report to the security department,

even though Carnival has no record of any such report.

But once again conveniently for Carnival but inconveniently for Tesoriero, sixteen days after Tesoriero’s

injury occurred, Carnival did not renew Dr. Potkonjak’s

contract and provided “his last known address” as, in

its entirety, “Biograd, Croatia.”7 ECF No. 39-6 at 3. As

a result, checking with Dr. Potkonjak would appear to

be difﬁcult, if not impossible.

If a reasonable jury concluded that the destruction

of the chair was a consequence of Carnival’s failure to

follow its own policies, it could also reasonably ﬁnd

that Carnival’s shortcomings resulted from its bad

faith. First, the mere fact that Tesoriero made ﬁve different reports of the incident and the chair was still

destroyed—even though Carnival anticipated litigation—could reasonably be construed as evidence that

Tesoriero testiﬁed that Dr. Potkonjak informed her when

she went to the medical center that “it was his ﬁrst day on the

ship.” ECF No. 39-3 at 73-74. If that also meant that the date of

Tesoriero’s injury was Dr. Potkonjak’s ﬁrst date of employment

with Carnival, then Carnival employed Dr. Potkonjak for a total

of seventeen days.

App. 49

Carnival acted in bad faith when it failed to follow its

policies here.

Second, that Dr. Potkonjak apparently believed he

reported the incident to the security department but

no record of that was ever made and that he is now

unavailable for questioning similarly could be viewed

as suggesting that Carnival acted in bad faith when it

threw away the chair.

And ﬁnally, this is not the ﬁrst case where Carnival’s failure to follow its own preservation policies has

resulted in the destruction of evidence. In Walter, Carnival discarded a deck chair that collapsed under the

passenger there. 2010 WL 2927962, at *1. The chair in

that case was lost, even though Carnival employees

prepared an accident report. Id. at *2. And just over a

year ago, Carnival lost CCTV footage of a guest’s fall,

even though Carnival conceded it had a duty to preserve that evidence. Sosa v. Carnival Corp., No. 1820957-CIV, 2018 WL 6335178, *1 (S.D. Fla. Dec. 4,

2018). The magistrate judge considering a motion for

sanctions against Carnival in that case described Carnival’s position as (1) “ ‘[c]’est la vie’ (‘that’s life,’ or

‘that’s how things happen’) and (2) ‘stuff happens.’ ”8

Id.

No wonder Carnival has that attitude. Carnival

keeps discarding material evidence, and that keeps

See also Wilford v. Carnival Corp., No. 17-21992-CIV, 2019

WL 2269155 (S.D. Fla. May 28, 2019) (Carnival could not locate

and produce X-rays its medical personnel took in an onboard medical clinic after the plaintiff slipped and fell onboard).

App. 50

working to its advantage. So why would it ever do anything to remedy its compliance with its own policies?

A reasonable jury viewing these facts could conclude that Carnival’s failure to strictly adhere to its

stated policies betrayed bad faith on Carnival’s part.

And if a jury reached that conclusion, Tesoriero

would be entitled to an inference that Carnival destroyed the chair because it would have provided evidence that Carnival knew or should have known of the

chair’s unsafe condition. Though many courts have observed that “courts must not hold the prejudiced party

to too strict a standard of proof regarding the likely

contents of the destroyed evidence because doing so allows the spoliators to proﬁt from the destruction of the

evidence,” In the Matter of: the Complaint of Boston

Boat III, LLC, 310 F.R.D. 510, 521 (S.D. Fla. 2015) (citations and internal quotation marks omitted) (collecting cases); see also Kronisch v. United States, 150 F.3d

112, 128 (2d Cir. 1998), here, it is clear that the missing

chair could have provided Tesoriero with critical evidence that Carnival knew or should have known that

its chair was defective.

As I have explained, an examination of the chair

that actually collapsed could have revealed that Carnival had previously ﬁxed that same chair in the same

place. Or it could have shown that Carnival had previously repaired another part of the chair, which caused

stress on the joint that separated. Or it could have betrayed that its housekeeping staff did not in fact move

and check the furniture daily, as Carnival testiﬁed it

App. 51

did, because if it did, it should have been aware of the

chair’s defective condition. Any of these revelations

would have shown that Carnival either knew or should

have known that the chair was not ﬁt for continued

use.

And contrary to the panel opinion’s suggestion, see

Maj. Op. at 26-27, it is obvious that examination of a

similar chair would not reveal any of these things that,

if they existed, would have occurred in only the chair

involved in the incident.

Joseph’s amateur photographs do not save the day

for Carnival, either. See id. at 27. They are a poor substitute for the actual chair, which could have permitted

sampling of the glue that allowed the joint to separate

(as well as examination for more than one application

of glue, as in a repair of the chair joint) and inspection

of the rest of the anatomy of the chair to determine

whether a repair to a part of the chair that was not

photographed could have placed extra stress on the

part of the chair that separated.

Similarly, I respectfully disagree with the panel

opinion that Joseph’s brief looking over of the chair

while his wife was writhing in pain and the two were

waiting for medical attention qualiﬁes as a thorough

examination that would have revealed any of these

problems with the defective chair if they existed. See

id.

As for the panel opinion’s contention that an examination would not have revealed that housekeeping

staff knew or should have known of the defect because

App. 52

“Tesoriero herself noticed no problem when she moved

the chair back from the vanity,” id., there is a signiﬁcant difference between pulling a chair out about a foot

from a vanity as a prerequisite to grooming, and cleaning and checking furniture as part of job duties, as the

Carnival staff was charged with doing. Plus, even if we

assume no difference, Tesoriero’s failure to notice a

problem with the chair when she pulled it out would

not establish that Carnival had not previously repaired that same chair or that the chair had not broken

before in the same place.

Notice is the one thing that Tesoriero could not establish on summary judgment without the beneﬁt of

an examination of the chair. Because showing notice is

an element of her claim for negligence, and because inspecting the chair may well have provided the necessary evidence that Carnival knew or should have

known of the chair’s defective condition, the chair qualiﬁes as crucial evidence.

The panel opinion suggests that proof of notice is

somehow exempt from the regular rules that govern

the imposition of spoliation sanctions. See id. at 26. But

the only support it offers for this novel notion is its assertion that “no party has cited a persuasive case to

support a presumption of notice as a spoliation sanction, and the one identiﬁed by the dissent falls short.”

Id.

Most respectfully, the panel opinion is doubly

wrong. First, as the panel opinion indicates, sanctions

for bad faith are appropriate when “the practical

App. 53

importance of the evidence” is signiﬁcant. Maj. Op. at

21 (quoting Flury, 427 F.3d at 942). It does not make a

difference why the evidence is important; all that matters is that the evidence has “practical importance.”

Obviously, evidence that proves a necessary element

of a plaintiff ’s prima facie case is “practical[ly] important” when the plaintiff cannot establish that element without it. See Palmas & Bambu, S.A. v. E.I.

Dupont De Nemours & Co., Inc., 881 So. 2d 565, 582

(Fla. Dist. Ct. App. 2004) (noting that “where evidence

necessary to prove a prima facie case is missing due to

actions of a party, an essential element of a claim may

be presumed” (citing Pub. Health Tr. of Dade Cty. v.

Valcin, 507 So. 2d 596, 599 (Fla 1987))).9 Notice is a

necessary element of Tesoriero’s prima facie case of

negligence. And as I have explained, an examination of

the defective chair may well have proven that Carnival

knew or should have known of the chair’s condition.

So upon a ﬁnding of bad faith, it would have been appropriate for a court to give a spoliation sanction concerning that necessary evidence.10

We have explained that while federal law governs the imposition of spoliation sanctions, our opinion concerning sanctions

can be “informed by [state] law” when, as here, it is consistent

with federal spoliation principles. Flury, 427 F.3d at 943, 944.

The panel opinion asserts that I espouse the position “that

because evidence of notice would be necessary for Tesoriero to

show a prima facie case of negligence, it must mean that the chair

would have provided the evidence.” Maj. Op. at 27. Nonsense. No

fair reading of my dissent could support the panel opinion’s claim.

Indeed, as I have explained two other times in this dissent, see

supra at 29, 44, an examination of the defective chair in this case

could have yielded evidence that Carnival knew or should have

App. 54

Second, courts have in fact awarded spoliation

sanctions when destroyed evidence might have proven

notice. In Boston Boat, for example, the court imposed

a spoliation presumption “that the destroyed evidence

would have demonstrated the existence of a dangerous

condition which Boston Boat knew about, should have

known about or created.” 310 F.R.D. at 523 (emphasis

added). The panel opinion’s attempt to distinguish

Boston Boat on the dual bases that it imposed only a

“rebuttable, permissible adverse inference” and that it

“involved dramatic evidence of bad faith” once again

misses the point. The point here is that when a court

ﬁnds that evidence was destroyed in bad faith, spoliation sanctions can appropriately be imposed to establish a presumption of notice where the destroyed

evidence itself, had it not been discarded, could have

proven notice.

Here, for the reasons I have explained, the defective chair that Carnival destroyed may well have

proven that Carnival had notice of the chair’s dangerous condition, had Carnival not discarded the piece

of furniture. So given an opportunity to evaluate the

known of the chair’s dangerous condition—that is, evidence of

notice. Those explanations amply demonstrate the practical importance of the destroyed chair. See Kronisch, 150 F.3d at 128

(“[C]are should be taken not to require too speciﬁc a level of proof

[because] . . . holding the prejudiced party to too strict a standard

of proof regarding the likely contents of the destroyed evidence

would subvert the prophylactic and punitive purposes of the adverse inference, and would allow parties who have intentionally

destroyed evidence to proﬁt from that destruction.” (citation and

internal quotation marks omitted)).

App. 55

witnesses and other evidence at trial, a jury reasonably could have concluded, upon a sanctions-based presumption instruction, that an inspection of the chair

would have revealed that Carnival knew or should

have known of its dangerous condition. Since that is

the case, particularly on a motion for summary judgment, where we must construe the facts in favor of the

non-moving party, Tesoriero has established a material

issue of fact concerning whether Carnival discarded

the chair in bad faith.

Because a material question of fact exists as to the

bad-faith issue, the district court should not have

granted summary judgment. Rather, the court should

have allowed a jury to resolve the bad-faith question of

fact, along with all the other disputes of relevant fact

in the case.11 Vodusek v. Bayliner Marine Corp., 71 F.3d

148, 157 (4th Cir. 1995) (“We conclude that the district

court acted within its discretion in permitting the jury

to draw an adverse inference if it found that Vodusek

or her agents caused destruction or loss of relevant evidence. Rather than deciding the spoliation issue itself,

the district court provided the jury with appropriate

At the very least, the district court should have held an

evidentiary hearing on the issue instead of resolving the material

issue of fact against Tesoriero on the papers. Cf. McDonald’s

Corp. v. Robertson, 147 F.3d 1301, 1311 (11th Cir. 1998) (noting

in the context of a motion for preliminary injunction that it is an

abuse of discretion to fail to hold an evidentiary hearing where

facts central to a party’s claims are disputed); Oldﬁeld v. Pueblo

De Bahia Lora, S.A., 558 F.3d 1210, 1216 (11th Cir. 2009) (“Because the material facts relating to the personal jurisdiction issues were not in dispute, there was no need for an evidentiary

hearing.”).

App. 56

guidelines for evaluating the evidence.”); Kronisch, 150

F.3d at 128 (“We believe that plaintiff has produced

enough circumstantial evidence to support the inference that the destroyed MKULTRA ﬁles may have contained documents supporting (or potentially proving)

his claim, and that the possibility that a jury would

choose to draw such an inference, combined with plaintiff ’s circumstantial evidence, is enough to entitle

plaintiff to a jury trial.”); United States v. Laurent, 607

F.3d 895, 902 (1st Cir. 2010) (“A ‘spoliation’ instruction,

allowing an adverse inference, is commonly appropriate in both civil and criminal cases where there is evidence from which a reasonable jury might conclude

that evidence favorable to one side was destroyed by

the other.” (citing 4 L. Sand et al., Modern Federal Jury

Instructions § 75.01 (instruction 75-7), at 75-16 to -18

(2010))).

The panel opinion simply concludes that Carnival

acted consistently with its policies and that its policies

do not “somehow establish bad faith.” Maj. Op. at 23.

But for the reasons I have explained, the record viewed

in the light most favorable to Tesoriero cannot support

that conclusion. So vacatur of the district court’s entry

of summary judgment and remand for trial is warranted here.

App. 57

II.

Because Tesoriero has shown a material issue of

fact with respect to bad faith concerning Carnival’s disposal of the chair, summary judgment should not have

been granted in this case. I therefore respectfully dissent.

App. 58

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

Case No. 16-cv-21769-WILLIAMS

IRINA TESORIERO,

Plaintiff,

vs.

CARNIVAL CORPORATION,

Defendant.

ORDER

(Filed Mar. 23, 2018)

THIS MATTER is before the Court on Magistrate

Judge Edwin G. Torres’s report and recommendation

(the “Report”) regarding the Parties’ cross motions for

summary judgment (DE 38; DE 39). The report recommends that Defendant’s motion be granted and Plaintiff ’s motion denied. Plaintiff ﬁled objections to the

report on October 6, 2017 (DE 65) and Defendant ﬁled

a reply on October 19, 2017 (DE 66).

The Court has independently reviewed Judge

Torres’ comprehensive, 62-page Report; the objections

and reply to the Report; the brieﬁng ﬁled by the Parties; and the record. For the reasons set out in the

Report, the Court agrees that Defendant is entitled to

summary judgment. Specifically, the Court agrees

that Plaintiff has failed to produce evidence that

would create a genuine issue of material fact regarding

the absence of actual or constructive notice of the

App. 59

risk-creating condition. Plaintiff maintains that notice

is not required in cases where the doctrine of res ipsa

loquitur applies, or in cases where Plaintiff has alleged

negligent maintenance. But Judge Torres’ detailed Report contains a very thorough analysis of these alternative arguments, and concludes that neither of those

arguments warrant a denial of Defendant’s summary

judgment motion, because they are either not legally

or are not factually supported on this record. The Court

agrees. Finally, the Court notes that the arguments regarding Carnival’s failure to preserve the broken chair

that are presented in Plaintiffs motion for summary

judgment, as discussed in the Report, do not amount to

spoliation such that an adverse inference is warranted.

In her objections, Plaintiff contends that the Report misapplied the res ipsa standard under Maritime

Law, that it erroneously rejected Plaintiff ’s negligent

maintenance arguments, that it reached an erroneous

conclusion regarding whether the cruise ship had constructive notice of the dangerous condition and on the

issue of spoliation, and that it misapplied the summary

judgment standard. The Court has considered Plaintiffs arguments with regard to each of these claims—

which reiterate a number of the arguments made in

their initial briefs—and ﬁnds them unavailing.

Accordingly, it is ORDERED AND ADJUDGED

as follows:

The conclusions in the Report (DE 62) are AFFIRMED AND ADOPTED as set out above.

App. 60

Defendant’s Motion for Summary Judgment

(DE 38) is GRANTED. Plaintiffs Motion for

Summary Judgment (DE 39) is DENIED.

All remaining motions are DENIED AS

MOOT.

DONE AND ORDERED in Chambers in Miami,

Florida, this 23rd day of March, 2018.

/s/ [Illegible]

KATHLEEN M. WILLIAMS

UNITED STATES DISTRICT

JUDGE

App. 61

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

Case No. 16-cv-21769-WILLIAMS

IRINA TESORIERO,

Plaintiff,

vs.

CARNIVAL CORPORATION,

Defendant.

FINAL JUDGMENT

(Filed Apr. 4, 2018)

THIS MATTER is before the Court following the

entry of an order granting Defendant’s motion for summary judgment (DE 75). Accordingly, it is ORDERED

AND ADJUDGED as follows:

Judgment is entered in favor of Defendant

Carnival Corporation and against Plaintiff Irina Tesoriero. Plaintiff Irina Tesoriero shall

take nothing from her claims.

All remaining motions are DENIED AS

MOOT. The Clerk of the Court is directed to

CLOSE this case.

App. 62

DONE AND ORDERED in Chambers in Miami,

Florida, this 3rd of April, 2018.

/s/ [Illegible]

KATHLEEN M. WILLIAMS

UNITED STATES DISTRICT

JUDGE

App. 63

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

Case No. 16-21769-Civ-WILLIAMS/TORRES

IRINA TESORIERO,

Plaintiff,

CARNIVAL CORPORATION

d/b/a CARNIVAL CRUISE

LINES a/k/a CARNIVAL

CRUISE LINE,

Defendant.

REPORT AND RECOMMENDATION

ON THE PARTIES’ CROSS MOTIONS

FOR SUMMARY JUDGMENT

(Filed Sep. 22, 2017)

This matter is before the Court on the parties’

cross motions for summary judgment ﬁled by Carnival

Corporation’s d/b/a Carnival Cruise Lines (“Defendant” or “Carnival”) [D.E. 38] and Irina Tesoriero

(“Plaintiff ”) [D.E. 39]. After Plaintiff and Defendant

timely ﬁled their respective responses and replies

[D.E. 44-47], both of their motions are now ripe for disposition. After careful consideration of the motions, responses, replies, relevant authorities, the record in this

case, and for the reasons discussed below, Defendant’s

motion should be GRANTED, Plaintiff ’s motion

should be DENIED, and ﬁnal judgment entered.

App. 64

TABLE OF CONTENTS

BACKGROUND .........................................

II. APPLICABLE PRINCIPLES AND LAW ....

III.

ANALYSIS .................................................

A. Defendant’s Motion for Summary

Judgment [D.E. 38] ..............................

1. Whether Carnival’s Motion Fails to

Comply with Rule 56 ......................

2. Carnival’s Duty of Care under Federal Maritime Law ..........................

3. Whether Carnival had Actual or

Constructive Notice ........................ 10

4. Whether Actual or Constructive

Notice is Always Required .............. 19

(a) Effect of Res Ipsa Loquitur Doctrine on Notice Requirement .... 20

(b) Effect of Negligence Maintenance Claim on Notice Requirement .......................................... 25

5. Whether Res Ipsa Loquitur May be

Invoked in This Case ...................... 27

(a) The Element of Legally Exclusive Control of the Chair ........... 30

(b) A Collapsing Chair Does not

Satisfy the Third Element ........ 33

B. Plaintiff ’s Motion for Summary

Judgment [D.E. 39] ......................... 50

IV.

CONCLUSION ........................................... 61

App. 65

[2] I.

BACKGROUND

This action arises from an accident that occurred

on June 26, 2015 at approximately 7:30 pm while

Plaintiff sat on a chair in her cabin onboard the Carnival Splendor. Plaintiff claims that when she sat down

on the chair, it suddenly collapsed, causing personal injuries, including an injury to her right arm.1 The injury

occurred when the chair allegedly came apart at the

joints where the right front leg of the chair attaches to

the seat and body of the chair. Plaintiff claims that

Carnival was negligent and that her injury occurred

because Carnival failed to warn, inspect, maintain, and

repair the furniture in question.

Stateroom stewards assigned to each cabin are

tasked with the responsibility of inspecting the condition of the cabin furniture and identifying any maintenance issues. These stewards service the cabin daily

and their responsibilities include cleaning and checking all of the furniture to ensure that everything is

structurally sound. They visually inspect the furniture

and touch it to identify if anything is damaged or needs

to be replaced or repaired. If a stateroom steward identiﬁes any problems with the furniture, the issue is reported and recorded. And if a chair needs repair, it is

immediately removed from a room. In the three years

prior to Plaintiff ’s incident, there was one other

As a result of the accident, Plaintiff has allegedly suffered

severe, debilitating, and permanent injuries to her right arm

which has thus far required two surgeries.

App. 66

incident where a passenger was injured because of a

defective chair.2

[3] II.

APPLICABLE PRINCIPLES AND LAW

“The court shall grant summary judgment if the

movant shows that there is no genuine dispute as to

any material fact and the movant is entitled to judgment as a matter of law. FED. R. CIV. P. 56(a).

A party asserting that a fact cannot be or is

genuinely disputed must support the assertion by: (A) citing to particular parts of materials in the record, including depositions,

documents, electronically stored information,

afﬁdavits or declarations, stipulations (including those made for purposes of the motion

only), admissions, interrogatory answers, or

other materials; or (B) showing that materials

cited do not establish the absence or presence

of a genuine dispute, or that an adverse party

cannot produce admissible evidence to support the fact.

FED. R. CIV. P. 56(c)(1). “On summary judgment the inferences to be drawn from the underlying facts must

be viewed in the light most favorable to the party opposing the motion.” Matsushita Electric Indus. Co. v.

Zenith Radio Corp., 475 U.S. 574, 597 (1986) (quoting

another source).

The prior accident occurred in a different cabin and involved an outside metal balcony chair whereas the cabin chair at

issue in this action was made out of wood.

App. 67

In opposing a motion for summary judgment, the

nonmoving party may not rely solely on the pleadings,

but must show by afﬁdavits, depositions, answers to interrogatories, and admissions that speciﬁc facts exist

demonstrating a genuine issue for trial. See FED. R.

CIV. P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 323–

24 (1986). The existence of a mere “scintilla” of evidence in support of the nonmovant’s position is insufﬁcient; there must be evidence on which the jury could

reasonably ﬁnd for the nonmovant. See Anderson v.

Liberty Lobby, Inc., 477 U.S. 242, 252 (1986). “A court

need not permit a case to go to a jury . . . when the inferences that are drawn from the evidence, or upon

which the non-movant relies, are [4] ‘implausible.’ ”

Mize v. Jefferson City Bd. Of Educ., 93 F. 3d 739, 743

(11th Cir. 1996) (citing Matsushita, 475 U.S. at 592–

94).

At the summary judgment stage, the Court’s function is not to “weigh the evidence and determine the

truth of the matter but to determine whether there is

a genuine issue for trial.” Anderson, 477 U.S. at 249. In

making this determination, the Court must decide

which issues are material. A material fact is one that

might affect the outcome of the case. See id. at 248

(“Only disputes over facts that might affect the outcome of the suit under the governing law will properly

preclude the entry of summary judgment. Factual disputes that are irrelevant or unnecessary will not be

counted.”). “Summary judgment will not lie if the dispute about a material fact is ‘genuine,’ that is, if the

App. 68

evidence is such that a reasonable jury could return a

verdict for the nonmoving party.” Id.

III.

ANALYSIS

Carnival’s Motion for Summary

Judgment [D.E. 38]

Carnival’s motion seeks summary judgment

against Plaintiff because a prerequisite to the imposition of liability on a cruise ship operator is that the

operator must have actual or constructive notice of a

dangerous or risk-creating condition. Carnival argues

that there is no evidence that it was ever on notice, either actual or constructive, of any alleged-risk creating

condition with the chair in question prior to Plaintiff ’s

use. Because there is purportedly no evidence that

supports Plaintiff ’s claims under a negligence theory,

Carnival argues that Plaintiff essentially seeks to hold

it strictly liable as an insurer of her safety on the

cruise. [5] Carnival contends that this is not the law

and that Plaintiff is unable to demonstrate the existence of a genuine issue of material fact on the question

of whether Carnival had actual or constructive notice.

Carnival seeks summary judgment as a matter of law

on all of Plaintiff ’s claims.

Plaintiff ’s response is that Carnival spoliated the

evidence (allegedly eviscerating the notice requirement) and limited itself to a challenge only on a single

theory of negligence liability in Plaintiff ’s complaint –

notice and the duty to warn. Plaintiff also argues that

res ipsa loquitur applies, so actual or constructive

App. 69

notice is not required. And even if notice was required

in this action, Plaintiff suggests that there are three

persuasive reasons why Carnival had constructive notice of the defective chair. Accordingly, Plaintiff contends that Defendant’s motion lacks any merit and

should be denied.

Whether Carnival’s Motion Fails

to Comply with Rule 56

As an initial procedural matter, Plaintiff argues

that Carnival’s motion can be summarily denied because Carnival only challenges Plaintiff ’s “duty to

warn” theory of negligence, but fails to challenge Plaintiff ’s “negligent maintenance” theory. As support,

Plaintiff relies on the Eleventh Circuit’s unpublished

decision in Frasca v. NCL (Bahamas), Ltd., 654 F. App’x

949, 955 (11th Cir. 2016). In that case, the Eleventh

Circuit found that Plaintiff alleged a failure to warn

and negligent maintenance as two separate theories

under one count of negligence. After defendant moved

for summary judgment, both parties ﬁeld a joint stipulation of facts in which plaintiff stated that defendant

did not take appropriate action to [6] maintain the

deck in question. In response, defendant moved in

limine to exclude all evidence of theories not presented

in plaintiff ’s complaint, including a theory of negligent

construction and maintenance of the deck. The district

court addressed the motion in limine in its summary

judgment order, and improperly granted summary

judgment in favor of defendant without ﬁrst giving notice to plaintiff and a reasonable time to respond to

App. 70

defendant’s arguments. See FED. R. CIV. P. 56(f ). Because there was no evidence to suggest that the district

court provided the parties such notice, the district

court erred by sua sponte entering summary judgment

in favor of defendant on plaintiff ’s negligent maintenance claim.

Here, Plaintiff suggests that Carnival’s motion

does not identify Plaintiff ’s claim for negligent maintenance and does not even refute the application of res

ipsa loquitur. Instead, Carnival allegedly only mentions in its introduction that “[t]hat there is no evidence that Carnival was on notice, either actual or

constructive, of any alleged-risk creating condition

with the chair prior to Plaintiff ’s use.” [D.E. 38]. Carnival’s failure to seek summary judgment on the negligent maintenance theory is allegedly fatal to

Carnival’s motion because the adjudication of Plaintiff ’s claims is now inappropriate under Federal Rule

of Civil Procedure 56. See, e.g., Gentry v. Harborage

Cottages–Stuart, LLP, 654 F.3d 1247, 1261 (11th Cir.

2011) (“In this case, the court entered judgment on

claims not identiﬁed by Plaintiffs in their Rule 56 motion and without advance notice. This was error.”).

Carnival’s response is that Plaintiff incorrectly

states that judgment may not be granted on a theory

of liability not addressed in a party’s motion for summary [7] judgment. Carnival believes that this is a

clear misstatement of Federal Rule of Civil Procedure

56, which requires that a party identify “each claim or

defense” on which summary judgment is sought. FED.

R. CIV. 56(a). Carnival also suggests that this case does

App. 71

not involve a sprawling multi-count complaint, but

that Plaintiff sued for one claim: negligence. Thus,

Plaintiff ’s contention that Carnival only moved for

summary judgment on the “duty to warn” aspect of her

negligence claim is supposedly belied by the record.

Carnival points out that in its motion, Carnival recognized that Plaintiff ’s negligence claim included allegations that Carnival failed to “inspect, maintain, and

repair: the furniture in question.” [D.E. 38]. Because

Plaintiff was certainly put on notice that Carnival is

seeking summary judgment on her entire claim of negligence, Carnival suggests that Plaintiff ’s argument is

simply wrong and misstates the law in support thereof.

We agree with Carnival that Plaintiff ’s argument

lacks merit. In its introduction, Carnival acknowledges

both of Plaintiff ’s theories of negligence – that Carnival (1) failed to maintain the chair in question, and (2)

failed to warn Plaintiff of the dangerous condition.

[D.E. 38]. As for Plaintiff ’s contention that Carnival

did not refute the application of res ipsa, this argument

lacks merit because there is no authority that requires

Carnival when seeking summary judgment to anticipate Plaintiff ’s defenses to Carnival’s motion. Furthermore, the procedural posture of this case is materially

distinguishable from the facts presented in Frasca because (1) the Court is not sua sponte adjudicating

Plaintiff ’s claims, (2) Defendant acknowledged both of

Plaintiff ’s theories of negligence in its motion, (3) Defendant [8] stated its intention to dismiss all of Plaintiff ’s claims, and (4) Plaintiff was put on notice and

given time to respond, as evidenced by Plaintiff ’s

App. 72

lengthy response in opposition to Defendant’s motion.

As such, we ﬁnd that Carnival complied with the requirements set forth in Rule 56 and that Plaintiff ’s argument is unpersuasive.

Carnival’s Duty of Care under

Federal Maritime Law

Turning to the merits of the matter raised by Carnival’s motion, we begin by identifying the duty of care

that applies to Carnival in this maritime action. As a

sea carrier, Carnival does not serve as strict liability

insurer to its passengers, meaning Carnival can only

be liable for negligence. See Kornberg v. Carnival

Cruise Lines, Inc., 741 F.2d 1332, 1334 (11th Cir. 1984);

Keefe v. Bahama Cruise Line, Inc., 867 F.2d 1318, 1322

(11th Cir. 1989). “Generally, to prevail in a negligence

action the plaintiff must show that: (1) the defendant

owed plaintiff a duty; (2) the defendant breached that

duty; (3) the defendant’s breach was the proximate

cause of plaintiff ’s injuries; and (4) the plaintiff suffered damages.” Weiner v. Carnival Cruise Lines, 2012

WL 5199604, at *2 (S.D. Fla. Oct. 22, 2012) (citing

Isbell v. Carnival Corp., 462 F. Supp. 2d 1232, 1236

(S.D. Fla. 2006)). Because the accident in this case occurred aboard a cruise ship, the aforementioned elements must be evaluated in connection with federal

maritime law. See Smolnokar v. Royal Caribbean

Cruises Ltd., 787 F. Supp. 2d 1308, 1315 (S.D. Fla.

2011) (“Federal maritime law applies to actions arising

from alleged torts ‘committed aboard a ship sailing

in navigable waters.’ ”). Each element is ordinarily

App. 73

essential to a negligence claim and, at this stage of the

proceedings, it is established [9] that a “[p]laintiff

cannot rest on the allegations of her complaint in

making a sufﬁcient showing on each element for the

purposes of defeating summary judgment.” Isbell,

462 F. Supp. 2d at 1236–37 (citing Tipton v. Bergrohr

GMBHSiegen, 965 F.2d 994, 999 (11th Cir. 1992));

Taiariol v. MSC Crociere, S.A., 2016 WL 1428942, at *3

(S.D. Fla. Apr. 12, 2016), aff ’d, 677 F. App’x 599 (11th

Cir. 2017) (“The failure to show sufﬁcient evidence of

each element is fatal to a plaintiff ’s negligence cause

of action.”).

It is also settled law “that a shipowner owes passengers the duty of exercising reasonable care under

the circumstances.” Isbell, 462 F. Supp. 2d at 1237 (citations omitted). And in meeting that standard of care,

it “requires, as a prerequisite to imposing liability, that

the carrier have actual or constructive notice of the

risk-creating condition.” See Keefe, 867 F.2d at 1322.

“This duty includes a duty to warn passengers of dangers the cruise line knows or reasonably should have

known.” Smolnikar v. Royal Caribbean Cruises Ltd.,

787 F. Supp. 2d 1308, 1322 (S.D. Fla. 2011) (citing Carlisle v. Ulysses Line Ltd., S.A., 475 So. 2d 248, 251 (Fla.

3d DCA 1985) (cruise line owners have a duty to warn

that “encompasses only dangers of which the carrier

knows, or reasonably should have known”); Goldbach

v. NCL (Bahamas) Ltd., 2006 WL 3780705, at *2 (S.D.

Fla. Dec. 20, 2006) (same)). However, this duty only extends to “those dangers which are not apparent and obvious to the passenger.” Luby v. Carnival Cruise Lines,

App. 74

Inc., 633 F. Supp. 40, 41 (S.D. Fla. 1986) (citing N.V.

Stoomvaart Maatschappij Nederland v. Throner, 345

F.2d 472 (5th Cir. 1965)); see also Cohen v. Carnival

Corp., 945 F. Supp. 2d 1351, [10] 1357 (S.D. Fla. 2013)

(“[T]here is no duty to warn of dangers that [are] of an

obvious and apparent nature.”) (internal quotation

marks omitted).

Whether Carnival had Actual

or Constructive Notice

Based on this duty of care, we turn to the traditional inquiry whether Carnival had actual or constructive notice of the collapsing chair. See Keefe, 867

F.2d at 1322 (requiring “as a prerequisite to imposing

liability, that the carrier have actual or constructive

notice of the risk-creating condition.”). Plaintiff argues

that there is sufﬁcient evidence in the record for trial

because Carnival had legally effective notice for three

reasons: (1) a substantially similar incident occurred

within the last three years, (2) the ship’s management

meetings establish Carnival’s awareness of chairs in

need of repair, and (3) the observable condition of the

cabin chair’s pegs show that the glue that held the legs

together had worn away.

First, Plaintiff notes that on October 18, 2014, less

than a year prior to Plaintiff ’s incident, another Carnival passenger, Tina Dalfonso, experienced a substantially similar incident involving the collapse of a chair

when she tried to sit on it. Second, Plaintiff contends

Carnival’s meeting notes demonstrate that Carnival’s

App. 75

chairs experience wear and tear, and that approximately 20 to 40 were in need of repair at the time of

the accident. And third, Plaintiff believes that her husband’s observations demonstrate constructive notice to

Carnival because he found worn away glue on the pegs

of the cabin chair that suggest that the pegs became

unglued some time ago and became loose. Coupled

with Plaintiff ’s testimony that she did not sit in the

chair prior to the incident and that the chair [11] remained untouched for at least 24 hours, Plaintiff argues that there is more than enough evidence to ﬁnd

that Carnival was on constructive notice of the dangerous chair in Plaintiff ’s cabin.

Carnival’s response is that there is absolutely no

record evidence establishing actual or constructive notice. In the three years preceding Plaintiff ’s incident,

Carnival argues that there were no prior similar incidents involving the collapse of the type of cabin chair

at issue in this case. The only prior incident that Plaintiff relies upon included a metal balcony chair in a different cabin, whereas this case involves a wood upholstered

chair. Thus, Plaintiff believes that the isolated prior incident involved entirely different circumstances and is not

nearly enough to impute constructive notice of any

dangerous condition.

As for the meeting minutes that Plaintiff relies

upon, Carnival believes those are also insufﬁcient to

show actual or constructive notice because the repairs

referenced in those documents only address cosmetic

issues such as varnishing, sanding, and repainting –

not any structural issues, such as the broken chair in

App. 76

Plaintiff ’s cabin. And ﬁnally, Plaintiff argues that the

observations and speculative conclusions of Plaintiff ’s

husband (who is not obviously an expert) is not enough

to establish notice because Plaintiff ’s husband admits

that “[i]t was obvious from the appearance of the pegs

– visible only after it fell apart – that the pegs had been

unglued and loose for a long time.” [D.E. 44-3] (emphasis added). Plaintiff ’s husband also stated that “[t]he

chair did not have any obvious or observable outward

defects.” Id. Carnival argues that maritime law does

not impose any [12] heightened duty to completely disassemble a chair to conduct an inspection and that the

testimony of Plaintiff ’s husband supports Carnival’s

contention that it had no obvious or observable defect.

Therefore, Carnival believes it could not have been on

notice of any dangerous condition especially when

Plaintiff suggests that a cruise line should physically

take apart chairs to determine if they are structurally

sound.

Because the law purportedly imposes no such duty

on Carnival, the mere fact that a chair collapsed coupled with the speculative assertion of Plaintiff ’s husband that the chair had been loose for a “long time” is

allegedly insufﬁcient to ﬁnd that Carnival had constructive notice. Accordingly, Carnival argues that the

evidence in the record demonstrates an absence of any

prior notice of a deﬁciency with respect to the cabin

chair or similar cabin chairs aboard the Splendor and

therefore summary judgment must be granted.

Even assuming that a defective condition existed

in this case, we agree with Carnival that the record

App. 77

contains no evidence to show that Carnival actually

knew of a defect in the cabin chair. This means that

Plaintiff can only rely upon the allegation that Carnival had constructive notice. And “[c]onstructive notice

‘requires that a defective condition exist for a sufﬁcient

interval of time to invite corrective measures.’ ” Mirza

v. Holland America Line Inc., 2012 WL 5449682, at *3

(W.D. Wash. Nov. 6, 2012) (quoting Monteleone v. Bahama Cruise Line, Inc., 838 F.2d 63, 65 (2d Cir. 1988)).

Here, Plaintiff has presented no tangible evidence

that Carnival had constructive notice or that it should

have known that the cabin chair posed any [13] riskcreating condition for any passenger. “There is no evidence in the record of any accident reports, passenger

comment reviews or forms, or reports from safety inspections alerting Carnival of any potential safety

concern. . . .” Cohen, 945 F. Supp. 2d at 1355–56 (citing

Smolnikar v. Royal Caribbean Cruises, Ltd., 787

F. Supp. 2d 1308, 1323–24 (S.D. Fla. 2011) (finding that

the cruise line had no actual or constructive notice of

any risk-creating condition from a zipline tour operator because “Royal Caribbean had positive information

about [the tour operator], and there is no evidence that

Royal Caribbean received any form of notice regarding

the existence of an alleged danger, as there were no accident reports from [the tour operator], or passenger

comment forms or reviews, alerting Royal Caribbean

as to a potential safety concern at traverse # 6 of the

tour”); Samuels v. Holland American Line–USA Inc.,

656 F.3d 948, 953–54 (9th Cir. 2011) (ﬁnding that the

cruise line did not have actual or constructive notice of

App. 78

any danger to passengers to wading on a beach because there was no evidence in the record that any

other passenger had ever been injured on that beach

and the cruise line was not “aware of any similar accident, or any accident at all, that had previously occurred while a Holland American passenger was

swimming on the Pacific Ocean side of Lover’s Beach”)).

Again, Plaintiff points instead to the same three

reasons why Carnival had constructive notice. But,

again, none are persuasive. Plaintiff ﬁrst focuses on an

incident that occurred nearly three years ago, but that

incident involved a different cabin and a completely

different type of chair. In fact, the chair at issue in the

incident three years ago was a metal balcony chair that

was exposed to the [14] elements whereas the chair in

this case was upholstered with a wooden frame inside

a cabin. As such, Plaintiff cannot meet the Eleventh

Circuit’s substantial similarity doctrine that requires

a party to provide evidence of “conditions substantially

similar to the occurrence in question” that “caused the

prior accident.” Jones v. Otis Elevator Co., 861 F.2d 655,

661–62 (11th Cir. 1988) (citation omitted); see also

Sorrels v. NCL (Bahamas) Ltd., 796 F.3d 1275, 1287–

88 (11th Cir. 2015) (afﬁrming district court’s ruling

that “evidence of 22 other slip and fall incidents”

aboard defendant’s vessel did not meet the “substantial similarity doctrine” as none of the falls occurred

where plaintiff fell, other injured passengers wore

varying styles of footwear, and additional factors were

involved); Frasca, 2014 WL 1385806, at *8 (determining that plaintiff was “unable to show that another

App. 79

passenger slipped and fell where [plaintiff ] fell, under

similar conditions”).

Furthermore, even if we ignore the differences of

the metal balcony chair and view the issue through a

general foreseeability lens, there is still not enough evidence that a single incident involving a broken chair

from three years ago “occurred with enough frequency

to impute constructive notice” to Carnival of a dangerous condition. See Taiariol, 2016 WL 1428942, at *6

(“Quite simply, there is no evidence that accidents

like the subject incident frequently occurred in the

Pantheon Theater or involved metal stair ‘nosings,’ to

render steps—like the one at issue here—unreasonably dangerous to traverse.”); Weiner v. Carnival Cruise

Lines, 2012 WL 5199604, at *5 (S.D. Fla. Oct. 22, 2012)

(ﬁnding no evidence “that spills and accidents of the

sort” plaintiff experienced occurred enough to “impute

[15] constructive notice”); see also Mercer v. Carnival

Corporation, 2009 WL 302274, at *2 (S.D. Fla. Feb. 9,

2009) (rejecting argument that cruise line “had actual

or constructive notice of the dangerous propensities of

high gloss hardwood ﬂoors being in close proximity to

the bathroom,” where plaintiff fell after exiting the

shower, because plaintiff failed to produce “any evidence to support his contention that [the cruise line]

had notice of the allegedly dangerous condition”). Accordingly, Plaintiff ’s ﬁrst argument fails.

The same holds true for Plaintiff ’s second argument that Carnival’s meeting minutes constitute constructive notice. The housekeeping manager, Serhiy

Bukaruv. testiﬁed that the meeting minutes only

App. 80

reﬂect a list of chairs that require sanding, repainting,

or varnishing. [D.E. 38-1 at 24, 27]. In other words, the

chairs that are reﬂected on the meeting minutes only

require cosmetic changes, not any structural issues.

See id. at 46. And to the extent that chairs are identiﬁed to be structurally deﬁcient, those are immediately

replaced by staff members. Therefore, there is simply

no tangible evidence to get to a jury based on Carnival’s meeting minutes that do not reﬂect any chairs

that require structural deﬁciencies, let alone the speciﬁc chair at issue in this case. Constructive notice

could not be found on this basis as a matter of law.

Plaintiff ’s third argument to sustain her constructive notice theory is equally unpersuasive. Plaintiff

contends that her husband’s observations demonstrate

constructive notice to Carnival because he found wornaway glue on the pegs of the cabin chair and that he

determined the pegs became unglued some time ago

and [16] became loose. Yet, Plaintiff ’s husband undermines her argument because his afﬁdavit states “[i]t

was obvious from the appearance of the pegs – visible

only after it fell apart – that the pegs had been unglued

and loose for a long time.” [D.E. 44-3] (emphasis

added). And Plaintiff ’s husband also claims that “[t]he

chair did not have any obvious or observable outward

defects.” Id.

In other words, the husband’s sworn observations

actually support Carnival’s position that no reasonable

inspection could have discovered the dangerous condition without ﬁrst deconstructing the cabin chair. And

federal maritime law does not impose a daily duty to

App. 81

deconstruct furniture to discharge a duty of reasonable

care to passengers. See, e.g., Bush v. XYZ Ins. Co., 880

So. 2d 953, 956 (La. Ct. App. 2004) (“We ﬁnd nothing in

the statutes or jurisprudence that would suggest that

such a great burden is on an owner of a thing to hire

an expert to inspect it thoroughly before it is placed

into use, and we decline to place such a burden on

Merlin Computers here.”); Smith v. Bernfeld, 226 Md.

400, 408 (1961) (“[N]o business man is required to provide an appliance or place of business free from the

hazard of all mishaps. This is a task impossible to fulﬁll.”). Plaintiff ’s husband is also not an expert, which

further undermines the argument that the pegs became unglued some time ago and that Carnival had

constructive notice. Accordingly, Plaintiff has failed to

demonstrate in any way that Carnival had constructive notice of the cabin chair.

In sum, without prior complaints from Plaintiff or

other passengers, and with regular inspections of all

chairs in the cabins, the record presented simply does

not [17] establish that Carnival had any actual or constructive notice of the defective cabin chair. As the Second Circuit stated nearly thirty years ago, we “simply

cannot conclude that [Carnival’s] failure to discover

the [defective] condition . . . assuming as we do that it

existed prior to the [incident] and in fact caused the

[incident], constituted a lack of due care for which it

should be held liable.” Monteleone, 838 F.2d at 66.

Accordingly, under traditional negligence analysis

that applies in this maritime action, summary judgment on Plaintiff ’s claim would be warranted as a

App. 82

matter of law. Because there is no evidence in this record that Carnival possessed actual or constructive

knowledge of the alleged risk-creating condition, summary judgment should be granted under Eleventh Circuit precedent that requires plaintiffs to satisfy this

element when pursuing a negligence cause of action.

See, e.g., Everett v. Carnival Cruise Lines, 912 F.2d

1355, 1358–59 (11th Cir. 1990) (“[T]he ‘benchmark

against which a ship owner’s behavior must be measured is ordinary reasonable care under the circumstances, a standard which 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; Taiariol, 677 F. App’x at 602

(“Because Taiariol failed to produce evidence that the

defendant had notice, either actual or constructive, of

the nosing’s slippery condition, and because notice is a

prerequisite to imposing liability, the district court did

not err in granting summary judgment to the defendant.”) (internal citation omitted); Lipkin v. Norwegian

Cruise Line Ltd., 93 F. Supp. 3d 1311, 1324 (S.D. Fla.

2015) (“Because [18] Plaintiff has failed to cite any

evidence in the record showing that Norwegian had actual or constructive notice of the risk-creating condition alleged in the complaint, and because evidence of

notice is a prerequisite to liability under maritime law,

summary judgment in favor of Norwegian is appropriate in this matter.”) (citing Keefe, 867 F.2d at 1322);

Thomas v. NCL (Bahamas) Ltd., 2014 WL 3919914, at

*4 (S.D. Fla. Aug. 11, 2014) (granting summary judgment where “[t]he unrefuted evidence in the record instead indicates a lack of actual or constructive notice”).

App. 83

Indeed it is well settled that, at the summary judgment stage, “mere implication of actual or constructive

notice is insufﬁcient to survive summary judgment.”

See Lipkin, 93 F. Supp. 3d at 1323 (citation omitted);

see also Thomas, 2014 WL 3919914, at *4; Cohen, 945

F. Supp. 2d at 1357. So for instance, in Adams v. Carnival Corp., a passenger brought a negligence claim

against a cruise line alleging that a defective pool deck

collapsed and injured the plaintiff. See 2009 WL

4907547, at *1. The plaintiff in Adams presented no

record evidence establishing that the defendant had

actual or constructive notice as to any hazardous condition with respect to the chair in question. There was

also no evidence that the defendant was aware of any

other passengers experiencing problems with chairs on

the pool deck. Hence, the court held that “[w]ithout

speciﬁc facts demonstrating, at least, that the purported defect was detectable with sufﬁcient time to allow for corrective action,” the defendant was entitled

to summary judgment. Id. at *5.

The same analysis applies here based on this record. Carnival’s stateroom stewards service the individual cabins on a daily basis and that they are tasked

[19] with the speciﬁc responsibility of inspecting the

condition of the cabin furniture and identifying any

maintenance issues. They conduct a visual inspection,

and also touch the furniture to identify any damage to

make certain that it is structurally sound. If any furniture needs to be repair or replaced, Carnival contends that it is immediately removed from the cabin.

In the three years prior to Plaintiff ’s accident, there

App. 84

were purportedly no substantially similar incidents

and only one involving a chair in a passenger cabin.3

Therefore, even assuming all facts in the light

most favorable to Plaintiff and drawing all factual inferences in Plaintiff ’s favor, Plaintiff has still failed to

demonstrate the existence of a genuine issue of material fact as to whether Carnival possessed actual or

constructive notice of the alleged risk-creating condition.

Whether Actual or Constructive

Notice is Always Required

Plaintiff ’s alternative position on the question of

notice is that notice is not required in two circumstances: (1) when the doctrine of res ipsa loquitur applies, and (2) when plaintiffs allege a negligent

maintenance cause of action. Plaintiff concludes that

res ipsa principles should be applied under the circumstances of this case, which would then require the negligence claim to proceed for trial irrespective of actual

or constructive notice on Carnival’s part. And Plaintiff

otherwise argues that her negligent maintenance

claim precludes Carnival from relying on the notice

Carnival points out that the other incident within the previous three years involved a broken metal balcony chair. Yet,

Plaintiff’s incident involved a different type of chair in a different

cabin, and that the chair had different mechanical deﬁciencies.

As such, Carnival believes that Plaintiff’s accident is an isolated

incident involving different circumstances that is not enough to

impute constructive notice of any dangerous condition.

App. 85

[20] element in its motion for summary judgment. We

will tackle the more complicated res ipa issues ﬁrst.

(a) Effect of Res Ipsa Loquitur

Doctrine on Notice Requirement

Res ipsa loquitur is an evidentiary rule that “provides an injured plaintiff with a common-sense inference of negligence where direct proof of negligence is

wanting.” Goodyear Tire & Rubber Co. v. Hughes Supply, Inc., 358 So. 2d 1339, 1341 (Fla. 1978); Marrero v.

Goldsmith, 486 So. 2d 530 (Fla. 1986). In doing so, “it

raises an inference of negligence which merely shifts

the burden of going forward with the evidence to the

defendant.” Louisiana & A. R. Co. v. Fireman’’ Fund

Ins. Co., 380 F.2d 541, 543–44 (5th Cir. 1967). This doctrine means, in Latin, the “thing that speaks for itself ”

and it allows a plaintiff to prove negligence through

circumstantial evidence. See Rockey v. Royal Caribbean Cruises, Ltd., 2001 WL 420993, at *5 (S.D. Fla.

Feb.20, 2001). The doctrine, like any other rule of evidence, is only brought into play where the situation

makes it applicable. This means that “[i]t does not have

to be pleaded in the complaint or ‘noticed’ by speciﬁc

designation to the adverse party at pre-trial or at trial,

since it is neither a cause of action nor a ground for

recovery, nor an ‘issue’.” Knight v. Otis Elevator Co., 596

F.2d 84, 90 (3d Cir. 1979).

Plaintiff contends that the rule, if applicable, forecloses the necessity of showing prior notice to give rise

to liability. Plaintiff believes that the collapse of the

App. 86

chair in question would not in the ordinary course of

events have occurred without negligence on the part of

the one in control of the chair – i.e. Carnival. And [21]

because the doctrine may be applied to these facts,

Plaintiff is absolved of the burden of showing prior notice. See Mabrey v. Carnival Cruise Lines, Inc., 438 So.

2d 937 (Fla. 3d DCA 1983) (“[A]ctual or constructive

knowledge is irrelevant in cases not involving transitory, foreign substances (i.e., the typical banana peel

case), if ample evidence of negligent maintenance can

be shown.” (citing 194th Street Hotel Corp. v. Hopf, 383

So. 2d 739 (Fla. 3d DCA 1980)); see also Millan v. Celebration Cruise Operator, Inc., 212 F. Supp. 3d 1301,

1306 (S.D. Fla. 2015) (“The Court concludes that a

plaintiff is not required to show the defendant’s actual

or constructive notice of the defective condition in order to raise a res ipsa loquitur inference of negligence

under maritime law. The Court therefore holds that

Defendant Celebration’s lack of actual or constructive

knowledge of the risk-creating condition does not as a

matter of law preclude Plaintiff from arguing the doctrine’s application.”).

Carnival responds, however, that the doctrine of

res ipsa loquitur cannot apply here and, even if it did,

Plaintiff is always required to show that Carnival had

actual or constructive notice. Apart from that, Carnival

also contends that federal law does not recognize the

application of the doctrine for maritime negligence actions. As for the cases Plaintiff relies upon, Carnival

suggests that they are noticeably distinguishable.

App. 87

For example, in O’Connor v. Chandris Lines, which

Plaintiff heavily relied upon, the issue was whether res

ipsa loquitur was applicable to a collapsing bunk bed.

566 F. Supp. 1275 (D. Mass. 1983). Yet, the court in that

case ruled after a [22] bench trial, not at summary

judgment, that “[t]he evidence does not disclose any

other probable explanation for the collapse of the bunk

except the negligence of the defendant in permitting

the bunk to be or remain in a defective condition.” Id.

at 1280. Carnival also points out that there was no evidence in the record about the length of time the bunk

bed had been in service or the last time prior to the

accident that it had been surveyed, or inspected (in

contrast with the facts in this record).

Our review of this issue shows that, as an initial

matter, courts have certainly split on the question of

whether res ipsa loquitur applies in a negligence maritime action. However, we agree with Judge Williams’s

holding in Millan and the weight of authority in the

Eleventh Circuit, that “a plaintiff is not required to

show the defendant’s actual or constructive notice of

the defective condition in order to raise a res ipsa loquitur inference of negligence under maritime law.”

Millan, 212 F. Supp. 3d at 1306; see also Great Am. Ins.

Co. v. Pride, 847 F. Supp. 2d 191, 205 (D. Me. 2012)

(“The doctrine of res ipsa loquitur, which is fully applicable in admiralty, allows negligence to be proved by

circumstantial evidence.”).

As such, the “lack of actual or constructive

knowledge of a risk-creating condition does not as a

matter of law preclude Plaintiff from arguing the

App. 88

doctrine’s application.” Id.; see also United States v.

Baycon Indus., Inc., 804 F.2d 630, 632-35 (11th Cir.

1986) (no requirement of actual or constructive notice

for res ipsa in maritime negligence action); Terry, 3

F. Supp. 3d at 1372–74 (same); O’Connor, 566 F. Supp.

at 1279–80 (same); Burns v. Otis Elevator, 550 So. 2d

21, 22 (Fla. 3rd DCA 1989) (actual or constructive notice of the defect is “immaterial” if the conditions for

[23] the res ipsa doctrine are established). Because res

ipsa loquitur may be raised in a federal maritime action and may obviate the need for Plaintiff to demonstrate actual or constructive notice in a federal

maritime action, we ﬁnd that Carnival’s argument on

this point lacks merit.

There is certainly some support for Carnival’s theory that the notice element remains an essential component of a negligence claim, res ipsa or not. See, e.g.,

Tillson v. Odyssey Cruises, 2011 WL 309660, at *7 (D.

Mass. Jan. 27, 2011) (“Premier Yachts contends that a

predicate for a res ipsa loquitur ﬁnding is that the Defendant had notice of the defective condition of the

chair. This argument is supported by several cases in

the maritime context.”) (citing Giacomelli v. Massachusetts Greyhound, 1991 WL 229957 (Mass. App. Div. Nov.

4, 1991) (refusing to apply doctrine of res ipsa loquitur

where the plaintiff did not detect any weakness in the

chair, thereby making the defect not detectable from

normal inspection and making it impossible for the defendant to have had notice of it)); see also Adams, 2009

WL 4907547, at *5 (“[T]he mere fact that an accident

occurred or that [the plaintiff ] asserts a res ipsa

App. 89

loquitur action does not obviate the need to show that

[the defendant] had notice.”); Hood v. Regency Maritime Corp., 2000 WL 1761000, at *4 (S.D.N.Y. Nov.30,

2000) (“Without notice of any sort . . . the defendants

cannot be held liable for the injuries sustained by the

plaintiff.”).

Nevertheless, our review of the relevant caselaw

shows that the majority view runs counter to Carnival’s blanket argument that would obviate the need for

the detailed analysis of the res ipsa doctrine that

Plaintiff demands. The doctrine [24] could, if properly

applied, govern a maritime action in federal court. After all, maritime law traditionally relies upon “general

principles of negligence law.” Chaparro v. Carnival

Corp., 693 F.3d 1333, 1336 (11th Cir. 2012). That is why

the primary maritime standard of care is “ordinary

reasonable care under the circumstances.” Keefe, 867

F.2d at 1322. And that standard of care has been

developed primarily by case law development in the

federal courts. Id. at 1320-21 (citing Kermarec v. Compagnie Generale Transatlantique, 358 U.S. 625, 628,

(1959)); see also Edmonds v. Compagnie Generale

Transatlantique, 443 U.S. 256, 259 (1979) (“Admiralty

law is judge-made law to a great extent, . . . ”); Romero

v. Int’l Terminal Operating Co., 358 U.S. 354, 360-61

(1959) (constitutional grant “empowered the federal

courts . . . to continue the development of [maritime]

law”).

App. 90

The most commonly cited factors in developing

this body of federal law have been reason,4 common

sense,5 fairness,6 simplicity, practicality7 and uniformity.8 [25] When it comes to the correct application

of the doctrine of res ipsa loquitur all these factors supporting recognition of the doctrine in maritime cases.

The doctrine has been adopted in almost all the states

of the union, so much so that it encompasses its own

section of the Restatement (Second) of Torts. It is based

on the well-established, common sense notion that if

no plausible explanation, other than a defendant’s

See, e.g., Kermarec, 358 U.S. at 631-32; Keefe, 867 F.2d at

1322; see also Schoenbaum, Admiralty & Maritime Law § 5.2 (5th

ed. 11/16 update) (“In admiralty the duty of care may be derived

from three basic sources: (1) duly enacted laws, regulations, and

rules; (2) custom; and (3) the dictates of reasonableness and prudence.”) (citations omitted).

See, e.g., Exxon Shipping Co. v. Baker, 554 U.S. 471, 503

(2008) (“The common sense of justice would surely bar penalties

that reasonable people would think excessive for the harm caused

in the circumstances.”) (adopting punitive damage remedy as a

matter of federal maritime law based on 1-to-1 ratio to compensatory damages).

See, e.g., id. at 502 (system of common law (governing maritime actions) “rests on a sense of fairness in dealing with one another.”).

See, e.g., Kermarec, 358 U.S. at 631 (“For the admiralty law

at this late date to import such conceptual distinctions would be

foreign to its traditions of simplicity and practicality.”).

See, e.g., Moragne v. States Marine Lines, Inc., 398 U.S.

375, 401 (1970) (“Our recognition of a right to recover for wrongful

death under general maritime law will assure uniform vindication of federal policies, removing the tensions and discrepancies

that have resulted from the necessity to accommodate state remedial statutes to exclusively maritime substantive concepts.”).

App. 91

negligence, could account for a plaintiff ’s injuries then

the burden of proof should be borne by the defendant.

See, e.g., Restatement (Second) of Torts § 328D (1965).

There is simply no persuasive reason why federal maritime law, premised as it is on recognition of traditional

principles of reasonableness and fairness, should not

also recognize its potential application to a proper set

of facts just as so many other common law jurisdictions

have.

Accordingly, we ﬁnd that Carnival’s arguments for

wholesale rejection of the doctrine in maritime cases

lack merit.

(b)

Effect of Negligence Maintenance

Claim on Notice Requirement

Plaintiff ’s next argument is that, even if res ipsa

loquitur does not forego the notice requirement, the

theory of negligent maintenance provides another

possible exception. See Mabrey, 438 So. 2d at 937

(“[A]ctual or constructive knowledge is irrelevant in

cases not involving transitory, foreign substances (i.e.,

the typical banana peel case), if ample evidence of negligent maintenance can be shown.” (citing 194th Street

Hotel Corp., 383 So. 2d at 739).

[26] In response, Carnival contends that Plaintiff

cannot defeat the notice requirement by alleging a

negligent maintenance theory of liability and that the

cases Plaintiff relies upon are completely inapposite.

Carnival argues that the notice requirement is a

bedrock tenet of maritime negligence actions and is,

App. 92

therefore, different from the state law cases that Plaintiff seemingly relies upon. See Everett v. Carnival

Cruise Lines, 912 F.2d 1355, 1358 (11th Cir. 1990)

(“The district court’s view that Florida law controlled

this issue, however, was incorrect. Because this is a

maritime tort, federal admiralty law should control.”).

Speciﬁcally, Carnival suggests that Plaintiff ’s reliance

on Mabrey is misplaced because in that case the court

determined that the defendant had notice of a dangerous condition because it posted a “Slippery When Wet”

We agree with Carnival that Plaintiff has failed to

present any persuasive authority supporting the proposition that, by alleging a negligent maintenance theory, a per se exception arises to the notice requirement

under federal maritime law. Unlike the doctrine of res

ipsa loquitur, Plaintiff fails to cite a single case where

a court has agreed with this position in a federal maritime cause of action. And all of Plaintiff ’s authorities

involve circumstances where a defendant was obviously put on notice.

Plaintiff also does not adequately explain why a

negligent maintenance theory, as a practical matter,

would alter the general rule under binding Eleventh

[27] Circuit precedent that requires a plaintiff to

demonstrate actual or constructive notice when pursuing a federal maritime negligence action. Therefore, we

ﬁnd that Plaintiff ’s argument, as it relates to negligent

maintenance, lacks the requisite support to obviate the

App. 93

notice requirement under federal maritime law. In

sum, we hold that res ipsa may obviate the notice requirement in a federal maritime negligence action, but

that merely alleging a negligent maintenance cause of

action does not.

Whether Res Ipsa Loquitur May

be Invoked in This Case

To determine whether res ipsa loquitur applies to

the facts of this case, the Supreme Court in Johnson v.

United States, 333 U.S. 46, 68 (1948) formulated a

three part test: (1) the injured party was without fault,

(2) the instrumentality causing the injury was under

the exclusive control of the defendant, and (3) the mishap is of a type that ordinarily does not occur in the

absence of negligence. See Johnson, 333 U.S. at 68. If a

plaintiff can meet all three elements, the jury may receive a res ipsa jury instruction because “[r]es ipsa loquitur may supply an inference from which the jury

may conclude the defendant was negligent,” and

“[w]hile such an inference of negligence can get the

plaintiff to the jury, application of res ipsa loquitur

simply permits, but ordinarily does not compel, the inference of negligence on the part of the defendant.”

Fruge v. Penrod Drilling Co., 918 F.2d 1163, 1167 (5th

Cir. 1990); see also Grajales-Romero v. Am. Airlines,

Inc., 194 F.3d 288, 296 n.8 (1st Cir. 1999) (“[T]he res

ipsa loquitur instruction should be given if the three

conditions of res ipsa loquitur are satisﬁed”); Millan,

212 F. Supp. 3d at [28] 1306 (ﬁnding that plaintiff met

the three res ipsa elements and reserving “any decision

App. 94

on whether a res ispa loquitur instruction will be appropriate until later in this case.”); Lobegeiger v. Celebrity Cruises, Inc., 2011 WL 3703329 (S.D. Fla. Aug. 23,

2011) (“The jury may receive a res ipsa loquitur instruction if the plaintiff establishes” the three required

elements). And when the question is put before a jury,

“the burden of proof remains on the plaintiff to convince the jury to accept the inference of negligence.”

Fruge, 918 F.2d at 1167. Whether a case is ﬁt for the

application of res ipa is a question of law whereas it is

the jury’s function to weigh any conﬂicting evidence

and ultimately choose whether a plaintiff ’s inference

is to be preferred or not.

“The doctrine of res ipsa loquitur (Latin for ‘the

thing speaks for itself ’) had its origins in the 19th–century English case, Byrne v. Boadle, 159 Eng.Rep. 299

(1863), in which a barrel of ﬂour rolled out of a warehouse window and fell upon a pedestrian beneath.”

Taylor v. Riddell, 320 Ark. 394, 896 S.W.2d 891, 893 n.1

(1995). “[D]eveloped to assist in the proof of negligence

where the cause is connected with an instrumentality

in the exclusive control of a defendant,” the doctrine

“allows the jury to infer negligence from the plaintiff ’s

evidence of circumstances surrounding the occurrence.” Schubert v. Target Stores, Inc., 369 S.W.3d 717,

720 (2010). The doctrine “simply recognizes what we

know from our everyday experience: that some accidents by their very nature would ordinarily not happen

without negligence.” Dermatossian v. N. Y. C. Transit

Auth., 67 N.Y.2d 219, 226 (1986) (citations omitted).

Generally speaking, res ipsa is “an often confused [29]

App. 95

and often misused doctrine,” because courts have

sometimes inferred negligence “simply from the fact

that an event happened.” St. Paul Fire & Marine Ins.

Co. v. City of New York, 907 F.2d 299, 302 (2d Cir.

1990).

Yet, the doctrine should only be applied in “rare

instances,” and in situations where “common sense

alone dictates that someone was negligent.” Whitted v.

Gen. Motors Corp., 58 F.3d 1200, 1207 (7th Cir. 1995);

see also Insurance Co. of the W. v. Island Dream Homes,

Inc., 679 F.3d 1295, 1299 (11th Cir. 2012) (“Outside the

relatively rare circumstances implicating the principle

of res ipsa [loquitur], it is well-settled that the mere

occurrence of a mishap does not prove that the mishap

resulted from tortious conduct.”) (quoting Clark v. Polk

County, 753 So. 2d 138, 143 (Fla. 2d DCA 2000)); Family Thrift, Inc. v. Birthrong, 336 Ga. App. 601, 605, 785

S.E.2d 547 (2016) (“[T]he doctrine of res ipsa loquitur

should always be applied with caution and only in extreme cases.”) (emphasis added) (quotation marks and

citations omitted). The reason for the rare application

of the res ipsa doctrine is because it often makes “the

plaintiff ’s light burden nonexistent, and deprive[s] the

jury of its traditional role of assigning fault in negligence actions and assigning weight to circumstantial

evidence.” Estate of Larkins by Larkins v. Farrell Lines,

Inc., 806 F.2d 510 (4th Cir. 1986); Otis Elevator Co. v.

Chambliss, 511 So. 2d 412, 413 (Fla. 1st DCA 1987)

(“The doctrine of res ipsa loquitur is a doctrine of ‘extremely limited applicability.’ ”) (quoting Goodyear Tire

& Rubber Co. v. Hughes Supply, Inc., 358 So. 2d 1339

App. 96

(Fla. 1978)). And more importantly, courts have recognized that res ipsa “is commonly raised by plaintiffs to

escape a nonsuit, or a [30] dismissal of their cause

since [if the doctrine applies] there is sufﬁcient evidence to go to the jury.” Tillson, 2011 WL 309660, at *6.

The parties in this case do not dispute the ﬁrst element

of the Johnson test. As such, our inquiry begins with

the second element on whether Carnival or Plaintiff

was in exclusive control of the chair in question.9

(a)

The Element of Legally Exclusive

Control of the Chair

Plaintiff ’s strongest argument why Carnival remained in exclusive control of the chair follows from

Carnival’s concession that it has sole responsibility for

the inspection, maintenance, repairs, and/or cleaning

We note that when plaintiffs move for summary judgment

on the application of res ipsa, courts have generally been reluctant to rule in their favor merely upon a demonstration that

the doctrine applies. See, e.g., Harms v. Lab. Corp. of Am., 155

F. Supp. 2d 891, 907 (N.D. Ill. 2001) (“Courts are very reluctant

to grant summary judgment for a plaintiff under the doctrine of

res ipsa loquitur.”); Morejon v. Rais Constr. Co., 7 N.Y.3d 203

(N.Y. 2006) (holding that summary judgment for a plaintiff on a

res ipsa loquitur theory should be a rare event, granted “only

when the plaintiff ’s circumstantial proof is so convincing and the

defendant’s response so weak that the inference of defendant’s

negligence is inescapable.”); Rathvon v. Columbia Pac. Airlines,

30 Wash. App. 193, 633 P.2d 122, 130–31 (Wash. Ct. App. 1981)

(“The doctrine of res ipsa loquitur, in and of itself, is thus insufﬁcient to support a summary judgment for a plaintiff unless the

facts are undisputed.”).

App. 97

of the furniture to ensure safe conditions. Plaintiff

adds that neither she nor her family members mishandled the chair prior to its use. On the other hand, Carnival contends that Plaintiff was undoubtedly in

exclusive control because she had access to the chair at

the time of the accident and in the 24 hours preceding

it.

“The element of exclusive control in the res ipsa

analysis does not mean that the defendant’s control of

the instrumentality be ‘literally exclusive.’ ” Welch v.

NCL (Bahamas) Ltd., 2016 WL 4921010, at *2 (S.D.

Fla. Jan. 8, 2016) (citing Colmenares [31] Vivas v. Sun

All. Ins. Co., 807 F.2d 1102, 1105 (1st Cir. 1986)). And

it also does not mean that Carnival must have physical

control because “it is enough that the defendant, and

not a third party was ultimately responsible for the instrumentality.” Colmenares Vivas, 807 F.2d at 1106; see

also Victorias Milling Co. v. Panama Canal Co., 272

F.2d 716, 726 (5th Cir. 1959) (“The use of the term exclusive control in many cases has been superseded by

the phrase right of control, which means that the instrument causing the damage need not be in the physical control of the defendant, but rather may be within

the management and power to control of the defendant.”) (citation omitted).

Instead, it is established that a defendant “charged

with a nondelegable duty of care to maintain an instrumentality in a safe condition effectively has exclusive

control over it for the purposes of applying res ipsa loquitur.” Id. This means that exclusive control can be

found even if a defendant shares responsibility with

App. 98

another, or “if [a] defendant is responsible for the instrumentality even though someone else had physical

control over it.” Id. at 1106 (citing W. Keeton, D. Dobbs,

R. Keeton & D. Owen, Prosser & Keeton on the Law of

Torts § 39, at 250–51 (5th ed. 1984) (exclusive control

requirement met in a variety of circumstances in

which the defendant did not have sole responsibility or

physical control over the injury-causing instrumentality); Otis Elevator Co. v. Yager, 268 F.2d 137, 143 (8th

Cir. 1959) (property owner and not maintenance company had exclusive control over elevator); Restatement

(Second) of Torts § 328D comment g (1965) (exclusive

control [32] requirement may be met even though responsibility was shared or someone else had physical

control)).

The First Circuit’s decision in Colmenares Vivas is

instructive on this point. In that case, a married couple

fell and were injured when an airport escalator handrail stopped moving.10 When the coupled sued the airport operator, the trial court granted defendant a

directed verdict on the ground that the case could not

go to the jury on the theory of res ipsa because the element of exclusive control had not been established. The

Although the facts in Colmenares Vivas are unrelated to

maritime law, the Eleventh Circuit has recognized that federal

maritime law is drawn from both state and federal sources, including “an ‘amalgam of traditional common-law rules, modiﬁcations of those rules, and newly created rules’ which includes a

‘body of maritime tort principles.’ ” Brockington v. Certiﬁed Elec.,

Inc., 903 F.2d 1523, 1530 n.2 (11th Cir. 1990) (quoting and citing

East River S.S. Corp. v. Transamerica Delaval, Inc., 476 U.S. 858,

865 (1986)).

App. 99

First Circuit held that because the airport owner had

a duty to maintain safe escalators, it effectively had

exclusive control over them even though it was plaintiff who was riding the escalator at the time of the injury.

Judge Scola’s recent decision in Welch adheres to

the same principle. In Welch, NCL was charged with

the duty to maintain a pool ladder in a safe condition

and the court found that defendant had exclusive control over it for the purpose of applying res ipsa loquitur.

See Welch, 2016 WL 4921010, at *2. Speciﬁcally, Judge

Scola determined that “NCL is charged with the duty

to maintain the pool ladder in safe condition” and that

“it ‘effectively has exclusive control over the [pool ladder] for the purposes of applying res ipsa loquitur.’ ”

Welch, 2016 WL 4921010, at *2 (citing Colmenares Vivas, 807 F.2d at 1106).

[33] Based on the current state of the law as to this

second element of the res ipsa doctrine, we agree with

both decisions and ﬁnd that it was Carnival that had

exclusive control over the chair in question because

both parties agree that it had sole responsibility for the

inspection, maintenance, repairs, and cleaning of the

cabin chair. See also Cardina v. Kash N’ Karry Food

Stores, Inc., 663 So. 2d 642, 643 (Fla. 2d DCA 1995)

(“[t]he plaintiff ’s mere proximity to the instrumentality causing the injury does not negate the exclusivity

of the defendant’s control in the absence of any evidence that the plaintiff ’s conduct-or that of any other

person-precipitated the accident.”); Terry v. Carnival

Corp., 3 F. Supp. 3d 1363, 1373 (S.D. Fla. 2014) (“[T]he

App. 100

prior inspections, compliance and repairs do not show

that Carnival was not in exclusive control at the time

of the cruise.”).

In short, Carnival has presented no argument that

it could delegate those duties of maintenance and repair to anyone else. Accordingly, Plaintiff has met the

second element for application of the res ipsa loquitur

analysis.

(b)

A Collapsing Chair Does not

Satisfy the Third Element

As for the third res ipsa loquitur requirement, that

the mishap be of a type that ordinarily does not occur

in the absence of negligence, Plaintiff contends that

the collapse of the cabin chair ﬁts the requisite criteria.

The chair allegedly came apart underneath Plaintiff

during the normal use of the chair and Plaintiff states

that nobody ever attempted to use the chair before she

did at the time it collapsed. Because Carnival purportedly offers nothing to show that the negligence could

have been caused from some other person, or entity,

Plaintiff believes that only Carnival [34] can be held

responsible for an accident that would not have occurred absent negligence.

Yet, we ﬁnd that Plaintiff has, as a matter of law,

failed to meet her burden of satisfying this ﬁnal element of the Johnson test. See, e.g., Ashland v. LingTemco-Vought, Inc., 711 F.2d 1431, 1441 (9th Cir. 1983)

(“[W]e want to make clear that the burden is on and

remains with plaintiffs to establish each of the res ipsa

App. 101

elements.”). Res ipsa loquitur presupposes that an accident would not have happened but for the negligence

of the defendant and will generally only apply in unusual circumstances where “the accident leave[s] no

room for a presumption other than negligence on the

part of the defendant. Therefore, it should not be invoked in the face of a competing reasonable inference

that the accident was due to a cause other than defendant’s negligence.” Louisiana & A. R. Co., 380 F.2d at

544 (emphasis added) (citations omitted). As the Tenth

Circuit has explained, an inference of res ipsa loquitur

must fail when an injury may be attributed to another

cause with equal fairness:

If there is any other cause apparent to which

the injury may with equal fairness be attributed, the reason for a res ipsa loquitur inference fails, and the rule should not be

invoked. The mere happening of an accident

does not dispense with the requirement that

the injured party must make some showing

that the defendant against whom relief is

sought was in some manner negligent, where

there are other probable causes of the injury.

Trigg v. City & Cty. of Denver, 784 F.2d 1058, 1061

(10th Cir. 1986); see also Estate of Larkins by Larkins,

806 F.2d 510 (4th Cir. 1986) (“Where varying explanations [35] are equally probable, res ipsa loquitur cannot

apply.”) (citing W. Prosser and W. Keeton, Law of Torts,

248-49, 257-58).

Here, we cannot say that a collapse of a cabin chair

onboard this cruise ship meets the standard of “letting

App. 102

the thing speak for itself.” The only conclusion to draw

from the record is that the evidence presented does not

tell the whole story of why the chair collapsed. It would

therefore be speculation to suggest that only Carnival’s

negligence could have caused the chair to collapse.

There are also plausible explanations for other causes

of the chair collapse that had nothing to do with Carnival.

For example, the facts are in dispute about

whether Plaintiff, her family, or anyone else actually

came into contact with the chair prior to the incident

because Plaintiff occupied the cabin for more than 24

hours prior to the incident.11 But on the other hand, a

trier of fact could ﬁnd those claims not credible and

ﬁnd instead that the primary cause of the chair

No doubt, Plaintiff denies having done anything to cause

the chair to fail. Neither Plaintiff nor her family members purportedly interfered with the chair before Plaintiff engaged in a

normal use of the chair by sitting in it:

Q. Did you daughter, to your knowledge, step on the

chair, stand on the chair, do anything of the like?

A. No.

Q. Nothing prior to the incident?

A. No.

Q. Did you husband, to your knowledge, stand on the

chair?

A. No.

Q. Do anything other than – anything other with the

chair that we wouldn’t normally see someone do with

the chair, is that correct?

A. No.

Deposition of Plaintiff, at 134:2-14.

App. 103

collapse was misuse by a passenger or her family. Because a passenger like the Plaintiff undoubtedly had

physical possession [36] of the chair for a material period of time, this plausible explanation undermines the

case for a res ipsa presumption against Carnival.

Similarly, even assuming that neither Plaintiff nor

anyone else in her party ever abused the chair, that assertion cannot automatically foreclose other reasonable scenarios where other individuals or passengers

who used that room before the Plaintiff may have been

responsible for the collapsing chair. The same chairs

remain in each cabin voyage after voyage, meaning

hundreds, if not thousands, of different passengers of

all different sizes use the cabin chairs. This plausible

scenario also undercuts the Plaintiff ’s theory. See Garner v. Halliburton Co., 474 F.2d 290, 297 (10th Cir.

1973) (ﬁnding that res ipsa does not apply in situations

where the reason for the negligent conduct “might easily have been due to the act of a third party”); CSX

Transp., Inc. v. Exxon/Mobil Oil Corp., 401 F. Supp. 2d

813, 821 (N.D. Ohio 2005) (“The doctrine . . . does not

apply if facts show a force beyond defendant’s control

may have caused the harm.”) (citing Cleveland R.R. Co.

v. Sutherland, 115 Ohio St. 262, 265 (1926)); Harris v.

Nat’l Passenger R.R. Corp., 79 F. Supp. 2d 673, 679

(E.D. Tex. 1999), aff ’d, 234 F.3d 707 (5th Cir. 2000)

(ﬁnding that “plaintiff cannot reduce the likelihood of

other causes leaving only the defendant’s negligence.

The fact that [a] door could be opened by anyone,

leaves open the signiﬁcant possibilities of the

App. 104

plaintiff ’s own negligence or a third-party’s negligence

as a cause for the accident.”).

While Plaintiff “need not eliminate all other possible causes,” of the reason for the collapsed chair, the

Restatement (Second) of Torts establishes that a [37]

plaintiff “must demonstrate the absence of equally

probable alternative causes for the injury”:

It is . . . necessary to make the negligence

point to the defendant. On this . . . the plaintiff has the burden of proof by a preponderance of the evidence; and in any case where

there is no doubt that it is at least equally

probable that the negligence was that of a

third person, the court must direct the jury

that the plaintiff has not proved his case.

Trigg, 784 F.2d at 1060–61 (quoting Restatement (Second) of Torts § 328D comment f (1965)).

Plaintiff ’s argument here cannot satisfy this burden. Given the record presented, Plaintiff ’s claims do

not warrant an inference of res ipsa loquitur because

“[n]either common sense nor anything in the record

compels the conclusion that only poor maintenance or

careless inspection will lead to a chair’s breaking. It is

quite plausible that the defect which caused the collapse developed slowly and was not detectable from

normal inspection.” Giacomelli, 1991 WL 229957, at *2.

It is equally possible that Plaintiff, guests, visitors, or

third parties beforehand mishandled the chair in such

a way that Carnival could not detect that the chair was

defective. These are merely some out of the many

App. 105

competing inferences that can be drawn given the facts

of this case. Thus, the res ipsa doctrine cannot apply

“to a case having a divided responsibility where an unexplained accident may have been attributable to one

of several causes, for some of which the defendant is

not responsible.” Brown v. Guzman, 1965 WL 168019,

at *2 (V.I. Mun. Aug. 10, 1965) (citation and quotation

marks omitted).

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