Debra Roberts v. Carnival Corporation

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[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 21-11792
Non-Argument Calendar
____________________
DEBRA ROBERTS,
Plaintiff-Appellant,
versus
CARNIVAL CORPORATION,
a Panamanian Corporation
d.b.a. Carnival Cruise Line,
Defendant-Appellee.
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2 Opinion of the Court 21-11792
____________________
Appeal from the United States District Court
for the Southern District of Florida
D.C. Docket No. 1:19-cv-25281-KMM
____________________
Before LUCK, LAGOA, and ANDERSON, Circuit Judges.
PER CURIAM:
Plaintiff–Appellant Debra Roberts (“Roberts”) appeals from
the district court’s grant of summary judgment to Carnival Corpo-
ration (“Carnival”). Roberts brought a two-count claim for negli-
gence and strict products liability against Carnival after tripping
over a fire safety door threshold on Carnival’s cruise ship, Vista.
She raises three issues on appeal: whether the district court erred
in finding that (1) no evidence showed that Carnival had actual or
constructive notice of the dangers posed by the threshold, (2) Car-
nival had no duty to warn of the danger posed by the threshold
because it was open and obvious, and (3) no evidence showed that
Carnival participated in, or approved of, the design of the thresh-
old. For the following reasons, we affirm the district court’s grant
of summary judgment to Carnival.
I.
On June 1, 2019, Roberts embarked on her sixth Carnival
cruise. That same day, she took an elevator to deck 5, and, while
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walking down the corridor to join her granddaughter, she tripped
over a threshold. The threshold is a metal strip that runs across the
width of the corridor to support the fire screen door. At the time
of Roberts’s fall, there was a red carpet in the center of the corridor
adjacent to the threshold.
At her first deposition, Roberts stated that, as she walked
down the corridor, she could see the silver, metal threshold while
looking ahead, and that she knew it was a threshold. She also said
that if she looked down at the floor while walking, she would have
seen the threshold. She testified that, while walking down the cor-
ridor, her eyes were “focused straight ahead” on the ship’s “dis-
tracting” Dreamscape lighting apparatus. She compared the
Dreamscape lighting to a “lava lamp” with moving colors, shapes,
and lights.
She acknowledged that she had seen other thresholds while
on other cruise ships and that she knew she needed to adjust her
gait around those thresholds. But she also said that this threshold
“was different than any other threshold that [she had] ever encoun-
tered” because it was “larger” and because it had a partition run-
ning along the top. According to her expert witness, the partition
was 8.5 inches wide, and “[t]he average height of the threshold rel-
ative to the floor surface was 0.764 [inches].” Roberts said that,
even though she saw the threshold, she did not know that it was
not a “solid threshold,” and she was not aware of the threshold’s
size. She also said that she thinks she fell because her foot got
caught in the partition. At her second deposition, she
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acknowledged that, had she looked down at the thresholds while
stepping over it, “[i]t would have been possible that [she] could
have seen that it was different than any other threshold.”
Roberts’s trip and fall on Vista was not the first involving this
same threshold. Between July 3, 2016 and April 1, 2017, 12 passen-
gers had tripped over this threshold on deck 5. Carnival’s corporate
representative, Suzanne Vazquez, said that Carnival filed a war-
ranty claim regarding the thresholds at the fire safety doors with
the Fincantieri shipyard because those thresholds “seemed to be a
tripping hazard for passengers.” In the fall of 2016, those thresholds
were replaced, and that “initially seemed to reduce the incidents to
almost zero.” Vazquez has testified that, “[w]ith respect to the fire
safety doors and the threshold, Carnival does not participate in any
way in the design or manufacture of those thresholds.” Carnival
then, in early 2017, put down carpets next to the thresholds “which
almost eliminated all of the incidents.” 1 There is no evidence that
a trip or other accident involving the relevant threshold occurred
in the 26 months between April 1, 2017 and Roberts’s accident on
June 1, 2019.
1 Vazquez stated that she thought the carpet was placed near the threshold at
issue “sometime in March or April” 2017, but the district court stated that it
“was placed in February of 2017.”
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II.
We review a district court’s grant of summary judgment de
novo, applying the same legal standards used by the district court.
Felts v. Wells Fargo Bank, N.A., 893 F.3d 1305, 1311 (11th Cir.
2018). “Summary judgment is appropriate where there is no gen-
uine issue as to any material fact and the moving party is entitled
to judgment as a matter of law.” Jurich v. Compass Marine, Inc.,
764 F.3d 1302, 1304 (11th Cir. 2014). “An issue of fact is ‘material’
if, under the applicable substantive law, it might affect the outcome
of the case. An issue of fact is ‘genuine’ if the record taken as a
whole could lead a rational trier of fact to find for the nonmoving
party.” Hickson Corp. v. N. Crossarm Co., Inc., 357 F.3d 1256,
1259–60 (11th Cir. 2004). We view all facts and reasonable infer-
ences in the light most favorable to the nonmoving party. Jurich,
764 F.3d at 1304.
III.
Federal maritime law governs claims involving “alleged
tort[s] committed aboard a ship sailing in navigable waters.” Keefe
v. Bahama Cruise Line, Inc., 867 F.2d 1318, 1320 (11th Cir. 1989)
(per curiam). A maritime carrier, such as Carnival, “is not liable to
passengers as an insurer, but only for its negligence.” Kornberg v.
Carnival Cruise Lines, Inc., 741 F.2d 1332, 1334 (11th Cir. 1984).
“In analyzing a maritime tort case, we rely on general principles of
negligence law.” Chaparro v. Carnival Corp., 693 F.3d 1333, 1336
(11th Cir. 2012) (per curiam) (quoting Daigle v. Point Landing, Inc.,
616 F.2d 825, 827 (5th Cir. 1980)). Accordingly, “[t]o prevail on her
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maritime negligence claims, . . . [Roberts] had to prove that
(1) Carnival had a duty to protect her from a particular injury;
(2) Carnival breached that duty; (3) the breach actually and proxi-
mately caused her injury; and (4) she suffered actual harm.” Car-
roll v. Carnival Corp., 955 F.3d 1260, 1264 (11th Cir. 2020).
With respect to the duty element, maritime carriers owe a
duty of “ordinary reasonable care under the circumstances” to its
passengers. Keefe, 867 F.2d at 1322. Under this standard, plaintiffs
must show, “as a prerequisite to imposing liability, that the car-
rier . . . had actual or constructive notice of the risk-creating condi-
tion, at least where . . . the menace is one commonly encountered
on land and not clearly linked to nautical adventure.” Id.; see also
Sorrels v. NCL (Bahamas) Ltd., 796 F.3d 1275, 1286 (11th Cir. 2015)
(“[T]he maritime standard of reasonable care usually requires that
the cruise ship operator have actual or constructive knowledge of
the risk-creating condition.”). Put simply, the carrier’s liability
“hinges on whether it knew or should have known about the” al-
legedly dangerous condition. Keefe, 867 F.2d at 1322; see also
Tesoriero v. Carnival Corp., 965 F.3d 1170, 1178 (11th Cir. 2020)
(“[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.”). Plaintiffs can show con-
structive notice in two ways. “First, a plaintiff can establish con-
structive notice by showing that a ‘defective condition existed for
a sufficient period of time to invite corrective measures.’ Second,
a plaintiff can show evidence of ‘substantially similar incidents in
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21-11792 Opinion of the Court 7
which conditions substantially similar to the occurrence in ques-
tion must have caused the prior accident.’” Tesoriero, 965 F.3d at
1178–79 (quoting Guevara v. NCL (Bahamas) Ltd., 920 F.3d 710,
720 (11th Cir. 2019)).
Roberts has raised three issues on appeal. First, whether
Carnival had actual or constructive notice of the dangers posed by
the threshold. Second, whether the danger posed by the threshold
was open and obvious. And third, whether evidence showed that
Carnival participated in, or approved of, the threshold’s design. Be-
cause we agree with the district court that Carnival did not have
actual or constructive notice of the dangers posed by the threshold
and that no evidence showed that Carnival approved of the thresh-
old’s design, we affirm the grant of summary judgment without
reaching the question of whether the danger posed by the thresh-
old was open and obvious.
A. The record evidence does not create a triable issue of fact
over whether Carnival had actual or constructive notice of
the dangers posed by the threshold.
To establish the duty element of her maritime negligence
claim, Roberts must show, “as a prerequisite to imposing liability,”
that Carnival “had actual or constructive notice of the risk-creating
condition”—i.e., that Carnival had actual or constructive notice of
the danger posed by the threshold. Keefe, 867 F.2d at 1322. The
district court determined that Roberts failed to show this for two
reasons. First, no evidence showed that Carnival had notice of any
risks associated with the Dreamscape lighting. Roberts attributed
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her accident, in part, to the “distracting” Dreamscape lighting. Yet,
as the district court noted, no record evidence shows that any other
accident involving this threshold occurred due to the distracting
Dreamscape lighting.2
Second, while 12 accidents involving this threshold had oc-
curred during 3 years prior to Roberts’s accident, the district court
determined that no record evidence showed that Carnival had no-
tice of dangers relating to the threshold under the conditions that
existed at the time of Roberts’s accident. Of those 12 accidents, 10
occurred in the second half of 2016 and 2 occurred in early 2017 (on
February 24 and April 1, respectively). But, in the fall of 2016, the
threshold was replaced after Carnival filed a warranty claim. And,
in early 2017, Carnival placed a carpet near the threshold “to sort
of define the area a little bit better.” 3 As Carnival’s corporate
2 Roberts concedes this point on appeal, stating that “even though [she] may
not have had evidence of Carnival’s notice of the danger of the Dreamscape
lighting, [she] indisputably had evidence of Carnival’s notice of the danger of
the subject threshold, which was the actual object that [she] tripped over . . . .”
For the reasons articulated below, we agree with the district court that Roberts
did not produce sufficient evidence of Carnival’s notice of the threshold’s dan-
gerousness at the time of Roberts’s accident.
3 Roberts notes that Carnival intended the red carpet to be only a short-term
solution. We fail to see why that is relevant given that, after the red carpet
was put down and the thresholds were replaced, the number of accidents in-
volving the threshold at issue dropped precipitously. Vazquez also testified
that, while Carnival was not “sure that [the red carpet] was going to work,”
“they recognized after a while that the carpet worked perfectly” and only one
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representative noted, “the incidents went to almost zero” after
these two changes were made. The district court agreed, noting
that only one incident involving this threshold occurred after both
changes were made (i.e., the April 1, 2017 incident). In the inter-
vening 26 months between the April 1, 2017 incident and Roberts’s
accident on June 1, 2019, the record showed no evidence of any
accidents involving the threshold at issue. Accordingly, the 11
other accidents before the warranty claim and the placement of the
carpet “did not occur under conditions substantially similar to
those that existed . . . at the time of [Roberts’s] incident.”
The district court then concluded, for two reasons, that the
April 1, 2017 incident standing alone was not sufficient to “put Car-
nival on notice that a dangerous condition existed in June of 2019.”
First, that incident occurred over two years before Roberts’s acci-
dent, so it was “too remote” to have put Carnival on notice be-
cause, by June 2019, the threshold “appeared have been rendered
safe by the placement of the carpet.” Second, the record contained
no details as to the circumstances of the April 1, 2017 incident, and,
without those details, the court could not determine whether the
prior incident was “substantially similar” to Roberts’s accident. See
Lipkin v. Norwegian Cruise Line Ltd., 93 F. Supp. 3d 1311, 1323
(S.D. Fla. 2015) (“The ‘mere implication of actual or constructive
notice is insufficient to survive summary judgment’; rather, a
person tripped over the threshold between when the carpet was put in place
and Roberts’s accident on June 1, 2019.
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plaintiff must show ‘specific facts demonstrating, at least, that the
purported defect was detectable with sufficient time to allow for
corrective action.’” (quoting Cohen v. Carnival Corp., 945 F. Supp.
2d 1351, 1357 (S.D. Fla. 2013))).
Roberts argues on appeal that three pieces of evidence show
Carnival had actual or constructive notice of the danger posed by
the threshold at issue: (i) Vazquez’s deposition and Carnival’s
meeting minutes, (ii) the 12 prior incidents involving the same
threshold, and (iii) the fact that Carnival had previously provided
warnings to passengers near similar thresholds. We disagree.
None of this evidence, in our view, creates a triable issue of fact
regarding Carnival’s actual or constructive notice of dangers posed
by the threshold at the time of Roberts’s accident.
i.
First, Carnival’s statements in the record show that it had
notice in 2016 and 2017 of dangers relating to this threshold.
Vazquez acknowledged this and said that Carnival took action to
ameliorate that risk:
I think initially when the ship was delivered and was
sailing in Europe, there were a number of incidents
that we recognized right away that were happening
in that particular area, specifically deck 5 and the
promenade. There’s two specific fire safety doors in
a high traffic area that were posing problems. So they
filed a warranty claim.
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And then in the Fall of 2016, . . . the thresholds were
replaced with different thresholds, which initially
seemed to reduce the incidents to almost zero. But
then after that, there were several other incidents that
happened.
And then in early 2017, it looks like they, with the
new thresholds, also put down a carpet, which almost
eliminated all of the incidents. So then in 2017, 2018,
2019, et cetera, the problem was almost a hundred
percent resolved.
Carnival’s March 2017 guest safety action plan for Vista similarly
acknowledges “that thresholds in midship fire screen doors (Decks
5) are . . . currently one of the highest areas of trip and fall accidents
and near misses onboard.” The meeting minutes from July 28,
2017 and November 24, 2017 acknowledge the same, respectively
stating that “deck 5 thresholds are still root causes of accidents” and
“maybe we could install a small carpet next to the fire screen door
threshold.” 4
These statements speak to Carnival’s knowledge of the rele-
vant threshold’s dangerousness in 2016 and 2017—well before Rob-
erts’s accident on June 1, 2019. But no evidence exists of any acci-
dent involving this threshold in the 26 months between the April
1, 2017 incident and Roberts’s accident on June 1, 2019. Moreover,
4 Notably, the accident referenced in the November 24, 2017 meeting minutes
concerns a different fire safety door threshold on deck 5.
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the April 1, 2017 incident was the only incident that occurred after
the threshold was replaced and after Carnival placed the red carpet
next to the threshold. Accordingly, the district court rightly con-
cluded that the record evidence did not show that there were sub-
stantially similar prior incidents and did not show that Carnival had
notice of any dangers relating to the threshold under the conditions
as they existed on June 1, 2019.
Roberts argues that Carnival’s actions to remedy the danger
posed by the threshold—i.e., filing a warranty claim and placing a
red carpet by the threshold—show that it had notice of the danger.
See Carroll, 955 F.3d at 1265 (“Evidence that a ship owner has taken
corrective action can establish notice of a dangerous or defective
condition.”). Yet Carnival took those actions in late 2016 and early
2017. These corrective measures show that Carnival had notice of
the threshold’s dangerousness in 2016 and 2017—not that it had
notice two years later at the time of Roberts’s accident. Roberts’s
argument implies that if a shipowner has acted at any point to re-
solve a safety risk, then it is on notice of that safety risk in perpetu-
ity, regardless of whether the danger persisted. The record shows
that Carnival reasonably believed that replacing the thresholds and
placing a red carpet next to the threshold ameliorated any danger:
after these two actions were taken, only one more person fell for
two years, and Roberts failed to show that that incident was sub-
stantially similar.
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ii.
Second, the 12 prior incidents involving the same threshold
did not provide constructive notice because these incidents were
not substantially similar to Roberts’s accident. As noted, 10 of
those incidents occurred in the second half of 2016 and the other
two occurred on February 24 and April 1, 2017, respectively. Only
the April 1, 2017 incident occurred after Carnival both replaced the
thresholds and put down the red carpet. And, as the district court
explained, the record contains no details concerning the circum-
stances of the April 1, 2017 incident, so we cannot conclude that
this prior incident is “substantially similar” to Roberts’s accident or
that it was sufficient to provide Carnival notice of the threshold’s
dangerousness under the conditions as they existed on June 1, 2019.
Roberts argues that because her accident and the prior inci-
dents “share the same cause”—i.e., were caused by the same
threshold—then they are substantially similar. See Croskey v.
BMW of N. Am., Inc., 532 F.3d 511, 518 (6th Cir. 2008) (“Substan-
tial similarity means that the accidents must have occurred under
similar circumstances or share the same cause.”). We disagree.
Roberts’s accident and these prior incidents both involved the same
threshold, but that does not necessarily mean they were substan-
tially similar. Cf. Sorrels, 796 F.3d at 1287 (affirming the district
court’s finding that 22 prior slip and fall incidents over a four-year
period were not substantially similar to the plaintiff’s incident be-
cause “none of them occurred where [the plaintiff] fell,” “most in-
volved unknown wet substances” rather than rainwater, and “in
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some of the other incidents there were other factors involved,”
such as playing table tennis or running around a pool). Roberts
contends that the Dreamscape lighting distracted her, which con-
tributed to her accident, yet no evidence shows that the Dream-
scape lighting contributed to any of these 12 prior incidents. More-
over, 11 of the 12 incidents occurred under different circum-
stances—i.e., before the thresholds were replaced and the red car-
pet was put down.
Roberts also argues that 10 other incidents involving a dif-
ferent deck 5 threshold “are similar enough to put Carnival on no-
tice.” However, Roberts offers no details as to the circumstances
of those other incidents, so we cannot determine whether they
were substantially similar. Moreover, given that no accident in-
volving the threshold at issue occurred in the 26 months between
the April 1, 2017 incident and Roberts’s June 1, 2019 accident, the
district court rightly determined that Carnival had no actual or con-
structive notice of this threshold’s dangerousness at the time of
Roberts’s accident.
Roberts notes that, under this Circuit’s precedent, “[t]he
‘substantial similarity’ doctrine does not require identical circum-
stances” but instead “allows for some play in the joints.” Sorrels,
796 F.3d at 1287. But neither we, nor the district court, have re-
quired identical circumstances. Apart from identifying incidents
involving the same threshold, Roberts has provided no evidence
that the circumstances of her accident are substantially similar to
any of the 12 prior incidents. To the contrary, Carnival has shown
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that 11 of those incidents occurred under notably different circum-
stances—namely, before Carnival had implemented two corrective
measures. Accordingly, we cannot conclude that the district court
erred by finding that these 12 prior incidents did not put Carnival
on notice of the threshold’s dangerousness.
iii.
Third, the warnings and corrective measures Carnival con-
templated putting into place in 2016 and 2017 do not show that it
had actual or constructive notice of the threshold’s danger at the
time of Roberts’s accident. Roberts contends that Carnival knew
of the danger because it contemplated or tested a variety of correc-
tive measures in 2016, such as “reflective tape to increase the visi-
bility of the threshold,” “black non-skid tape,” and “silicone strips.”
Yet this shows Carnival’s notice in 2016, not its notice at the time
of Roberts’s accident. As Vazquez explained in her deposition,
when Carnival “put the carpet down, [it wasn’t] sure that it was
going to work,” but, after placing the carpet next to the threshold,
Carnival “recognized . . . that the carpet worked perfectly” and that
“[i]t was the perfect simple solution.” Because Carnival’s correc-
tive measures all but eliminated the accidents involving this thresh-
old, the district court correctly concluded that the mere fact it had
attempted other corrective measures nearly 3 years earlier did not
put it on notice of the threshold’s dangerousness in June 2019.
Because we agree with the district court that Carnival lacked
actual or constructive notice of the dangers posed by the threshold,
Roberts cannot maintain a negligence claim against Carnival for
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either failure to warn passengers about, or remedy, the threshold.5
See Keefe, 867 F.2d at 1322 (stating that a showing that the carrier
“had actual or constructive notice of the risk-creating condition” is
“a prerequisite to imposing liability” and that the carrier’s liability
“hinges on whether it knew or should have known about the” al-
legedly dangerous condition). Given that Roberts has not pre-
sented a triable issue of fact regarding Carnival’s knowledge of the
threshold’s danger at the time of her accident, she cannot satisfy
the duty element of her negligence claim. 6
B. The record evidence does not create a triable issue of fact
over whether Carnival participated in, or approved of, the
threshold’s design.
Roberts also presented a strict products liability claim
against Carnival for negligent design and installation of the thresh-
old. The district court determined that no evidence showed that
Carnival created, participated in, or approved of the threshold’s
5 Roberts notes that she “pleaded several alternative theories of liability.” But
she does not identify any beyond failure to warn, failure to remedy, or negli-
gent design. And, as the district court noted, several of the other alternative
theories identified in the amended complaint were conceded, withdrawn, or
lacked support in the record. Accordingly, we have confined our discussion
in this opinion to the theories of liability specified and argued in Roberts’s
opening brief.
6 As stated, we need not reach the issue of whether the danger posed by the
threshold was open and obvious because we have concluded that Carnival
lacked actual or constructive notice of the threshold’s dangerousness.
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design. Cf. Groves v. Royal Caribbean Cruises, Ltd., 463 F. App’x
837, 837 (11th Cir. 2012) (per curiam) (affirming summary judg-
ment where “[t]he district court found that [the plaintiff] presented
no evidence that [the carrier] actually created, participated in, or
approved the alleged negligent design of these areas near the dining
room where [the plaintiff] was injured”). Roberts’s claim appears
to hinge entirely upon Carnival’s filing of a warranty claim to re-
place the threshold at issue. Roberts contends that Carnival’s ac-
ceptance of Vista after those repairs were made constitutes ap-
proval of the threshold’s design.
We agree with the district court that “the mere fact that
[Carnival] submitted the Vista to Fincantieri for a ‘warranty claim’
to modify the subject threshold, and subsequently received the ves-
sel with a modified threshold, does not create an issue of fact as to
whether they created, participated in, or approved an alleged im-
proper design.” Carnival’s corporate representative testified that,
“[w]ith respect to the fire safety doors and the threshold, Carnival
does not participate in any way in the design or manufacture of
those thresholds.” Roberts’s inference that Carnival’s acceptance
of Vista after Fincantieri modified the threshold constitutes partic-
ipation in the design of the threshold cannot overcome this clear
statement to the contrary.
The cases Roberts cites do not persuade us otherwise. In
one case, the carrier’s corporate representatives testified that the
carrier made decisions regarding the design of the entrance to the
cruise ship. See, e.g., Fylling v. Royal Caribbean Cruises, Ltd., No.
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18-CV-21953, 2019 WL 8275158, at *4 (S.D. Fla. Dec. 10, 2019)
(“The incline at the entranceway of the Harmony was part of Royal
Caribbean’s vessel design . . . .”). In another case, the corporate
representative “skirted around providing a direct answer as to
whether [the carrier] approved the design in question.” Hoover v.
NCL (Bahamas) Ltd., 491 F. Supp. 3d 1254, 1257 (S.D. Fla. 2020).
In the final case, the corporate representative “testified that internal
management within Defendant’s organization was ‘very involved’
with ‘the basic strategies, vision, or pursuit of innovation’ as it dealt
with the design of the Voyager class of vessels.” Whelan v. Royal
Caribbean Cruises Ltd., No. 1:12–cv–22481–UU, 2013 WL 5583970,
*4 (S.D. Fla. Aug. 14, 2013). In contrast, Carnival’s corporate rep-
resentative stated, unequivocally, that “Carnival does not partici-
pate in any way in the design or manufacture of those thresholds.”
Unlike the contrary or hesitant statements in the above-cited
cases, Vazquez’s statement here does not create a triable issue of
fact as to whether Carnival actually participated in, or approved of,
the threshold’s design. Cf. Diczok v. Celebrity Cruises, Inc., 263 F.
Supp. 3d 1261, 1264 (S.D. Fla. 2017) (granting summary judgment,
in part, to the carrier where the corporate representative’s state-
ments showed only the carrier’s “ability to participate in and ap-
prove the design of the Lounge” but did “not show actual partici-
pation or approval”).
For the foregoing reasons, the district court’s grant of sum-
mary judgment to Carnival is
AFFIRMED.