Fawcett v. Carnival Corp.

682 F.Supp.3d 1106

Lamar FAWCETT, Plaintiff, v. CARNIVAL CORPORATION, Defendant.

CASE NO. 23-21499-CIV-ALTONAGA/Damian

United States District Court, S.D. Florida

Signed July 10, 2023

David L. Markel, Edward Steven Schwartz, Nicholas I. Gerson, Philip Maurice Gerson, Shannon Crosby, Gerson and Schwartz, P.A., Miami, FL, for Plaintiff.

David James Horr, Juan Carlos Perez, Jr., Horr Novak & Skipp, P.A., Miami, FL, Lourdes Maria Cardelle, Miami, FL, for Defendant.

ORDER

CECILIA M. ALTONAGA, CHIEF UNITED STATES DISTRICT JUDGE

THIS CAUSE came before the Court on Defendant, Carnival Corporation's Motion to Dismiss Plaintiff's Complaint [ECF No. 11], filed on May 24, 2023. Plaintiff, Lamar Fawcett, filed a Response [ECF No. 16], to which Defendant filed a Reply [ECF No. 17]. The Court has carefully considered Plaintiff's Complaint [ECF No. 1], the parties' written submissions, and applicable law. For the following reasons, the Motion is granted in part.

I. BACKGROUND

Plaintiff was a passenger aboard the Carnival cruise ship Magic on May 7, 2022, when he "slipped on a wet or slippery transient foreign substance" while on the ship's "Lido deck near the pool[.]" (Compl. ¶ 13 (alteration added)). The fall caused Plaintiff "injuries including injuries to his knee and quadricep" that resulted in "pain . . . mental anguish, disfigurement, disability, aggravation or acceleration of preexisting conditions, and the inability to lead a normal life." (Id. ¶ 14 (alteration added)). Because of the fall, Plaintiff also incurred medical and health care expenses and "lost wages and a loss of future earning capacity." (Id.). Plaintiff estimates "[t]hese damages are permanent or continuing in their nature and the Plaintiff will continue to sustain and incur these damages in the future." (Id. (alteration added)).

Plaintiff brings claims against Defendant for negligent maintenance (Count I) and negligent failure to warn of hazard (Count II). (See id. ¶¶ 15-29). In each Count, Plaintiff alleges that Defendant had

actual and/or constructive notice of the dangerous condition on the Lido Deck floor . . . due to the length of time the wet, slippery condition had been present before the Plaintiff slipped on it and fell[;] the Defendant's inspection schedule and cleaning policies for the floor surface in question[;] the recurring nature of the condition[;] prior similar incidents[;] the high traffic nature of the Lido Deck[;] or otherwise.

(Id. ¶¶ 18, 26 (alterations added)). Plaintiff also points to several slip and fall incidents on the Lido Deck of the Magic and Breeze vessels that he proffers as "[s]pecific evidence of notice[.]" (Id. ¶¶ 19, 27 (alterations added)).

Defendant moves to dismiss the Complaint under Federal Rule of Civil Procedure 12(b)(6), arguing that it fails to state claims for relief. (See generally Mot.). According to Defendant, Plaintiff has not plausibly alleged actual or constructive notice nor adequately pleaded the elements of a negligent-failure-to-warn claim. (See generally id.).

II. LEGAL STANDARD

"To survive a motion to dismiss [under Federal Rule of Civil Procedure 12(b)(6)], a complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.' " Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (alteration added; quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). Although this pleading standard "does not require 'detailed factual allegations,' . . . it demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation." Id. (alteration added; quoting Twombly, 550 U.S. at 555, 127 S.Ct. 1955). Pleadings must contain "more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do[.]" Twombly, 550 U.S. at 555, 127 S.Ct. 1955 (alteration added; citation omitted). "[O]nly a complaint that states a plausible claim for relief survives a motion to dismiss." Iqbal, 556 U.S. at 679, 129 S.Ct. 1937 (alteration added; citing Twombly, 550 U.S. at 556, 127 S.Ct. 1955).

To meet this "plausibility standard," a plaintiff must "plead[ ] factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. at 678, 129 S.Ct. 1937 (alteration added; citing Twombly, 550 U.S. at 556, 127 S.Ct. 1955). "The mere possibility the defendant acted unlawfully is insufficient to survive a motion to dismiss." Sinaltrainal v. Coca-Cola Co., 578 F.3d 1252, 1261 (11th Cir. 2009) (citation omitted), abrogated on other grounds by Mohamad v. Palestinian Auth., 566 U.S. 449, 132 S.Ct. 1702, 182 L.Ed.2d 720 (2012). When considering a motion to dismiss, a court must construe the complaint in the light most favorable to the plaintiff and take its factual allegations as true. See Brooks v. Blue Cross & Blue Shield of Fla., Inc., 116 F.3d 1364, 1369 (11th Cir. 1997) (citing SEC v. ESM Grp., Inc., 835 F.2d 270, 272 (11th Cir. 1988)).

III. DISCUSSION

Defendant asserts that Plaintiff has failed to adequately plead that Defendant had actual or constructive notice of the dangerous substance that caused Plaintiff's fall. (See Mot. 3-17).¹ Defendant also argues that the claim for negligent failure to warn in Count II should be dismissed because Plaintiff fails to adequately plead that the dangerous condition was not open and obvious. (See id. 17-19). Plaintiff maintains he has sufficiently alleged Defendant's notice but does not address Defendant's argument regarding the negligent-failure-to-warn claim. (See generally Resp.).

The Court finds that Plaintiff adequately pleads notice of the dangerous condition, but he fails to plead all the elements of a negligent-failure-to-warn claim.

A. Notice

A tort falls within the Court's admiralty jurisdiction if (1) "the incident occurred on navigable water, or the injury was caused by a vessel on navigable water[;]" and (2) if the incident has a connection to maritime activity. Buland v. NCL (Bah.) Ltd., 992 F.3d 1143, 1149 (11th Cir. 2021) (alteration added; quotation marks and citation omitted); see generally Foremost Ins. Co. v. Richardson, 457 U.S. 668, 102 S.Ct. 2654, 73 L.Ed.2d 300 (1982). Since Plaintiff's injury occurred on Defendant's vessel (see Compl. ¶ 12), federal maritime jurisdiction is proper.

In maritime negligence actions, "a plaintiff must allege that (1) the defendant had a duty to protect the plaintiff from a particular injury; (2) the defendant breached that duty; (3) the breach actually and proximately caused the plaintiff's injury; and (4) the plaintiff suffered actual harm." Franza v. Royal Caribbean Cruises, Ltd., 772 F.3d 1225, 1253 (11th Cir. 2014) (quotation marks and citation omitted). To impose a duty in a maritime context, the shipowner must "have had actual or constructive notice of a risk-creating condition, at least where, as here, the menace is one commonly encountered on land and not clearly linked to nautical adventure." Newbauer v. Carnival Corp., 26 F.4th 931, 935 (11th Cir. 2022) (alteration adopted; quotation marks and citations omitted).

"Actual notice exists when the defendant knows about the dangerous condition." Holland v. Carnival Corp., 50 F.4th 1088, 1095 (11th Cir. 2022) (citations omitted). Constructive notice — "where the shipowner ought to have known[,]" id. (alteration added; quotation marks and citation omitted) — may be demonstrated when "the defective condition existed for a sufficient period of time to invite corrective measures . . . . [or by] evidence of substantially similar incidents in which conditions substantially similar to the occurrence in question must have caused the prior accident," Guevara v. NCL (Bah.) Ltd., 920 F.3d 710, 720 (11th Cir. 2019) (alteration adopted; other alterations added; quotation marks and citations omitted).

Plaintiff's allegations of notice in both claims are identical (see Compl. ¶¶ 15-29), and the parties do not differentiate between Counts when discussing notice in their briefing (see generally Mot.; Resp.; Reply). The Court addresses notice as it relates to both claims together.

According to Plaintiff, Defendant had notice of the dangerous condition that caused his fall because of the "length of time" the condition existed, Defendant's "inspection schedule and cleaning policies[,]" and "the recuring nature of the condition, . . . the high traffic nature of the Lido Deck, or otherwise." (Compl. ¶¶ 18, 26 (alterations added)). In addition, Plaintiff identifies "prior similar incidents," including 25 slip and fall incidents on the Breeze vessel and six "[c]ases arising from slip and falls on wet or slippery areas of the Lido Deck" of the Magic. (Id. ¶¶ 18-19, 26-27 (alteration added)).

Defendant first argues Plaintiff's allegations are "generalizations and speculation" that amount to a "mere recitation of the elements followed by conclusory statements." (Mot. 9 (citation omitted)). Defendant asserts Plaintiff provides no supporting evidence or factual details about the length of time the condition existed; no facts about Defendant's cleaning schedule or policies; and no explanation of the facts pertaining to prior slip and fall incidents, including how or why these incidents would impute notice of the dangerous condition onto Defendant. (See id. 8-12; Reply 5-6). According to Defendant, Plaintiff's reliance on "ipse dixit statements" is insufficient to plead notice and warrants dismissal of the Complaint. (Mot. 11).

The Court agrees that some of Plaintiff's allegations are conclusory, and Plaintiff offers no argument to the contrary. (See generally Resp.). For example, Plaintiff's statements that Defendant had notice of the dangerous condition because of the "length of time" it existed and because of the "high traffic nature of the Lido Deck," with nothing more, are insufficient to allege notice. (Compl. ¶¶ 18, 26); see Holland, 50 F.4th at 1096 (affirming dismissal of claims where there...