USCA11 Case: 21-11579 Date Filed: 04/25/2022 Page: 1 of 13
[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 21-11579
Non-Argument Calendar
____________________
MARJORIE COGBURN,
Plaintiff-Appellant,
versus
CARNIVAL CORPORATION,
d.b.a. Carnival Cruise Lines,
Defendant-Appellee.
____________________
Appeal from the United States District Court
for the Southern District of Florida
D.C. Docket No. 1:20-cv-22166-UU
____________________
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2 Opinion of the Court 21-11579
Before WILSON, JILL PRYOR, and ANDERSON, Circuit Judges.
PER CURIAM:
While on vacation aboard a cruise ship, plaintiff Marjorie
Cogburn slipped on a puddle of liquid and was injured. She sued
Carnival Corporation, the cruise ship operator, for negligence.
The district court granted Carnival’s summary judgment motion
because it found that Cogburn failed to come forward with evi-
dence establishing that Carnival had actual or constructive
knowledge of the dangerous condition that caused the fall. Be-
cause a reasonable jury could find that Carnival had constructive
knowledge that its flooring was dangerously slippery when wet,
we reverse.
I. FACTUAL BACKGROUND 1
To celebrate their wedding anniversary, Cogburn and her
husband took a five-day cruise on the Ecstasy, a Carnival cruise
ship. 2 On the second day of the cruise, they planned to eat dinner
around 6:30 p.m. To get to the dining room, they took an eleva-
1 Because we write only for the parties, we assume their familiarity with the
facts. We do not restate the facts except as necessary to explain our decision.
2 Where facts are disputed in the record, we recount them here in the light
most favorable to Cogburn. See Smelter v. S. Home Care Servs., Inc.,
904 F.3d 1276, 1284 (11th Cir. 2018) (explaining that on review of district
court’s grant of summary judgment, we construe all facts and draw all rea-
sonable inferences in favor of the nonmoving party).
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21-11579 Opinion of the Court 3
tor to the ship’s Promenade Deck. After getting off the elevator,
Cogburn and her husband walked along a passageway called
“City of Lights Boulevard,” heading toward the ship’s atrium.
They passed by the ship’s Metropolis Bar and near its casino’s rou-
lette tables.
Other passengers and cruise ship employees also were in
the area. Between 10 and 20 passengers were sitting at nearby ta-
bles. Other passengers were walking through the same area. A
cruise ship employee was working at a roulette table in the ship’s
casino facing the walkway where Cogburn and her husband were
passing, and another was cleaning a nearby gaming table.
As Cogburn and her husband approached the roulette ta-
bles, they encountered passengers walking in the opposite direc-
tion. Cogburn moved to her right to make room. When she
moved to the side, her right foot slipped on a puddle of liquid,
and she fell to the ground.
The floor where Cogburn fell was “very, very, very slick.”
Doc. 46-1 at 65. 3 The puddle of liquid was about five inches by
seven inches and consisted of a brown liquid that “looked dirty
like it had been there for a while.” Id. at 27. Cogburn did not no-
tice the puddle before she fell because the flooring, a dark granite
tile, was “very shiny.” Id. at 28. She was unable to identify the
specific liquid in the puddle but believed it was a “brown drink or
3 “Doc.” numbers refer to the district court’s docket entries.
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4 Opinion of the Court 21-11579
Coke or just dirty water.” Id. at 27. She noticed that the liquid was
room temperature.
When Cogburn fell, her dress absorbed the puddle’s liquid.
The spot with the liquid felt a “little tacky” and “[s]lightly sticky.”
Id. at 31. It left a large stain on her dress. At the time of the fall,
Cogburn was wearing gold wedge sandals with two straps across
the toes on top of the foot and an open heel. The wedge sandals
were two and half inches high and had “[r]ubber like” soles. Id. at
27.
Cogburn’s husband, along with another nearby passenger,
helped her up. Jennielyn Meneses, the employee who had been
cleaning nearby, heard Cogburn fall and went to check on her.
She brought Coburn a chair. Cogburn told Meneses that she had
slipped but did not mention that she had slipped on a liquid. After
attending to Cogburn, Meneses checked the area where Cogburn
had fallen and found that it was dry.
While Cogburn was sitting in the chair, she mentioned to
her husband that her dress was wet. After a few minutes, she
stood up and “limped and hobbled” to the dining room. Id. at 29.
After she made it to the restaurant, her husband found a wheel-
chair for her to use.
After their meal, Cogburn’s husband took her in the
wheelchair to the ship’s medical center. She reported her fall to
the nurse on duty. The nurse informed her that the ship’s doctor
was “not in,” but he could call the doctor to come see her. Id. at
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21-11579 Opinion of the Court 5
30. Cogburn said she would wait and see how she felt in the
morning. The nurse instructed her to take ibuprofen and use ice.
The next morning, Cogburn returned to the medical cen-
ter. She was told that the doctor was unavailable because he was
off the ship. In the afternoon, when the doctor returned to the
boat, he saw her. She reported to the doctor that she had fallen
the night before on the Promenade Deck and was having trouble
walking. In describing the fall, Cogburn did not mention that she
had slipped on a puddle of liquid, but the doctor never asked what
caused her to slip. After conducting a physical examination, the
doctor took x-rays.
Cogburn then had a telemedicine appointment with an or-
thopedic surgeon. He diagnosed her with a broken femur and ad-
vised that she needed surgery. The surgeon told her that she
could remain on the ship but should stay on bedrest and would
need to go to the hospital at the end of the trip. For the rest of the
voyage, Cogburn generally remained in her room except when
her husband transported her in the wheelchair to get fresh air on
the Lido Deck or for meals in one of the ship’s dining rooms.
The day after the incident, the medical center staff reported
Cogburn’s fall to the ship’s security officers, who opened an in-
vestigation. Two security officers asked her to complete a form
describing the circumstances of the incident. Cogburn’s husband
completed the form for her and wrote that she fell after
“slipp[ing] on a slick tile.” Doc. 57-1 at 270. In response to a ques-
tion asking what caused the accident, her husband answered, “tile
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6 Opinion of the Court 21-11579
floors are very slick, could have [been] the type of shoes.” Id.
Cogburn signed the form. Based on the investigation, a security
officer created a written report. According to the report, Cogburn
stated that the floor was “dry” when she fell. Id. at 271. But she
denied saying that the floor was dry.
At the end of the voyage, Cogburn disembarked from the
ship and was taken by an ambulance to a nearby hospital. She
ended up needing two surgeries, including a partial hip replace-
ment. Even with the surgeries, she continues to have trouble
walking and must use a cane.
Cogburn sued Carnival in federal district court. She alleged
that Carnival was negligent in failing to warn passengers that the
Promenade Deck’s granite flooring was unreasonably slippery
when wet; failing to keep the floor clean and dry; constructing or
designing the use of a flooring that was unreasonably dangerous
when wet; and failing to adequately maintain the flooring.
During discovery, Cogburn sought information about prior
incidents in which passengers had slipped on the granite tile floor-
ing used on the Promenade Deck’s walkway. She learned that
Carnival used the same granite tile flooring, in different patterns,
for the walkways on the Promenade Decks of other ships in the
same class. Carnival disclosed that it was aware of dozens of other
incidents, which occurred in the three years before Cogburn’s fall,
in which passengers had fallen on the same type of granite floor-
ing. In one of these incidents, which occurred less than four
months before Cogburn’s fall, a passenger on the Ecstasy, Char-
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21-11579 Opinion of the Court 7
lene Vermeulen, was injured when she slipped on liquid on the
Promenade Deck’s walkway across from the roulette tables.
Other information that Carnival provided in discovery
showed that officers on the Ecstasy and other ships were con-
cerned because passengers were slipping and falling on liquids
that had spilled on the granite flooring. Several months before
Cogburn’s fall, Ecstasy’s chief security officer reported an ongoing
problem with accidents occurring when passengers slipped on
spilled liquids on the Promenade Deck near the casino. The chief
security officer believed that passengers were spilling liquids
when they ordered drinks at a nearby bar, which had no seating,
and then carried the drinks through the walkway to find a place to
sit. In addition, the captain of another ship reported that “acci-
dents” were occurring because of “spills on the promenade deck,”
which had the same granite flooring as the Ecstasy, stating that it
was “difficult to see as the floor is dark.” Doc. 57-16 at 2. The cap-
tain of a third ship raised the concern that ice was being
“dropped” on the Promenade Deck; he instructed staff to take
“extra care” as the floor was “very slippery when wet.” Doc. 57-1
at 305.
After discovery closed, Carnival moved for summary
judgment. The district court granted the motion. The court ex-
plained that Carnival could be held liable only if it “had actual or
constructive notice of a risk-creating condition.” Doc. 70 at 5 (in-
ternal quotation marks omitted). The court found that the evi-
dence, even viewed in the light most favorable to Cogburn, did
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8 Opinion of the Court 21-11579
not show that Carnival had actual or constructive notice of the
dangerous condition. As for constructive notice, the court
acknowledged that Cogburn had identified dozens of prior inci-
dents in which passengers had fallen on the same granite flooring.
But the court found that none of these incidents were similar
enough to establish constructive notice because, among other
things, there was no “record evidence demonstrating that the pri-
or incidents occurred in the same location where [Cogburn] fell.”
Id. at 7. 4
This is Cogburn’s appeal.
II. STANDARD OF REVIEW
“We review de novo the district court’s grant of summary
judgment, construing the facts and drawing all reasonable infer-
ences in favor of the nonmoving party.” Smelter v. S. Home Care
Servs., Inc.,
904 F.3d 1276, 1284 (11th Cir. 2018). Summary judg-
ment is appropriate if the record gives rise to “no genuine dispute
4 The district court gave an alternative and independent reason for granting
summary judgment to Carnival on one of Cogburn’s claims—that it was
negligent in constructing or designing the flooring. The court concluded that
this claim failed because Carnival came forward with evidence that it had no
role in designing or selecting the granite flooring, and Cogburn had offered
no evidence “to even suggest that [Carnival] actually designed, participated
in[,] or approved the design of the Ecstasy’s flooring.” Doc. 70 at 10. Because
Cogburn does not argue on appeal that the district court erred in granting
summary judgment on the negligent construction and design claim, we do
not discuss it further. See Sapuppo v. Allstate Floridian Ins. Co.,
739 F.3d 678,
680 (11th Cir. 2014).
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21-11579 Opinion of the Court 9
as to any material fact and the movant is entitled to judgment as a
matter of law.” Fed. R. Civ. P. 56(a). A genuine dispute of materi-
al fact exists when “the evidence is such that a reasonable jury
could return a verdict for the nonmoving party.” Anderson v.
Liberty Lobby, Inc.,
477 U.S. 242, 248 (1986).
III. LEGAL ANALYSIS
“Maritime law governs 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). In these
cases, we “rely on general principles of negligence law.”
Id. (in-
ternal quotation marks omitted). To prevail on a negligence
claim, a plaintiff must show “(1) the defendant had a duty to pro-
tect 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.”
Id. (internal quotation marks omitted).
For the duty element in a maritime context, a cruise ship
operator “owes the duty of exercising reasonable care towards
those lawfully aboard the vessel who are not members of the
crew.”
Id. (internal quotation marks omitted). When, as here, the
“menace is one commonly encountered on land and not clearly
linked to nautical adventure,” the question of whether a cruise
ship operator owed a duty “hinges on whether it knew or should
have known about the dangerous condition.”
Id. (internal quota-
tion marks omitted). Under this standard, the key question is
whether the cruise ship operator had “actual or constructive no-
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10 Opinion of the Court 21-11579
tice of [the] risk-creating condition.”
Id. (internal quotation marks
omitted).
“We have identified at least two ways that constructive
notice can be shown.” Tesoriero v. Carnival Corp.,
965 F.3d 1170,
1178 (11th Cir. 2020). First, a plaintiff may establish constructive
notice by coming forward with evidence “that the defective con-
dition existed for a sufficient period of time to invite corrective
measures.” Guevara, 920 F.3d at 720 (alteration adopted) (internal
quotation marks omitted). Second, a plaintiff may establish con-
structive notice “with evidence of substantially similar incidents in
which conditions substantially similar to the occurrence in ques-
tion must have caused the prior accident.” Id. (internal quotation
marks omitted).
With regard to the substantially-similar-incident require-
ment, we have explained that it “does not require identical cir-
cumstances[] and allows for some play in the joints.” Sorrels v.
NCL (Bahamas) Ltd.,
796 F.3d 1275, 1287 (11th Cir. 2015). In ap-
plying this standard, the relevant question is whether “the two
incidents were similar enough to allow the jury to draw a reason-
able inference” concerning the cruise ship operator’s “ability to
foresee” the incident at issue.
Id. at 1288 (quoting Borden, Inc. v.
Fla. E. Coast Ry. Co.,
772 F.2d 750, 755 (11th Cir. 1985)).
Cogburn argues she established that Carnival knew of the
dangerous condition created by its granite flooring, which alleg-
edly became unreasonably slippery when wet. She argues that
Carnival knew about this dangerous condition because of sub-
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21-11579 Opinion of the Court 11
stantially similar incidents in which passengers had slipped on the
same flooring when it was wet and because officers had brought
up passengers slipping on liquids spilled on this flooring.
Viewing the evidence in the light most favorable to Cog-
burn, we conclude she established that Carnival had constructive
knowledge of the risk-creating condition based on the evidence of
Vermeulen’s fall. As we explained above, Vermeulen was injured
on the Ecstasy when she slipped on liquid that had puddled on the
granite floor in the walkway on the Promenade Deck near the
roulette tables. Because Cogburn and Vermeulen slipped on liq-
uids in the same location, we conclude a reasonable jury could
find that based on Vermeulen’s fall Carnival could foresee the risk
to Cogburn. See
id. at 1287–88.
The district court determined that Carnival lacked con-
structive notice because, it said, there was no record evidence
“demonstrating that the prior incidents occurred in the same loca-
tion where [Cogburn] fell.” Doc. 70 at 7. We disagree with the
district court’s assessment of the record because the evidence,
when viewed in the light most favorable to Cogburn, reflects that
Vermeulen fell in the same spot as Cogburn. Notably, the district
court’s summary judgment order failed to mention the incident
involving Vermeulen.5
5 Carnival argues on appeal that none of the prior incidents Cogburn identi-
fied occurred “in the same location where [she] fell.” Appellee’s Br. at 7. But,
like the district court, Carnival never addresses the incident involving Ver-
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12 Opinion of the Court 21-11579
Because Cogburn came forward with evidence of a sub-
stantially similar prior incident, we conclude that she established
that Carnival had notice of the risk-creating condition. Given this
determination, we need not decide whether any of the other prior
incidents that Cogburn identified were similar enough to Cog-
burn’s fall to put Carnival on notice of the risk-creating condition
or whether the statements of any captain or safety officer estab-
lished that Carnival had notice. We also need not address Cog-
burn’s separate argument that even if Carnival lacked actual or
constructive notice, her expert’s testimony was enough to estab-
lish that Carnival was liable for negligently maintaining the gran-
ite flooring.
IV.
meulen or the record evidence showing that she fell in the same spot as
Cogburn.
We note that Carnival’s corporate representative testified at a deposi-
tion that Vermeulen’s fall was not similar to Cogburn’s. The representative
testified that the two incidents were different because the floor was dry when
Cogburn fell, where Vermeulen slipped on a liquid. It is true that Carnival’s
security officers prepared an incident report indicating that the floor was dry
when Cogburn fell. But whether the floor was wet or dry when Cogburn
slipped is a disputed issue of fact. Because this case is at the summary judg-
ment stage, we must view the evidence in the light most favorable to Cog-
burn, the nonmovant, and assume that the floor was wet. See Smelter,
904 F.3d at 1284.
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21-11579 Opinion of the Court 13
For the reasons set forth above, we reverse the district
court’s grant of summary judgment for Carnival and remand for
further proceedings consistent with this opinion.
REVERSED AND REMANDED.
