Perera v. Carnival Corp.

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NESTOR PERERA, Plaintiff, v. CARNIVAL CORPORATION d/b/a CARNIVAL CRUISE LINE Defendant.

No. 1:23-24663-WILLIAMS/GOODMAN

United States District Court, S.D. Florida, Miami Division

May 10, 2024

REPORT AND RECOMMENDATIONS ON MOTION TO DISMISS

JONATHAN GOODMAN, UNITED STATES MAGISTRATE JUDGE.

Nestor Perera was a passenger on the Carnival Conquest. On December 30, 2022, he left the Lido Deck (which features swimming pools, spas, restaurants, and some staterooms) and began walking to his interior stateroom with his grandson when he “suddenly tripped and fell” on the carpet. Perera claims that the carpeting was bundled, poorly maintained, or improperly placed. Before the fall, as he was making his way to his stateroom, Perera saw what appeared to be carpet cleaning equipment in the area but no warning or caution signs. Perera was injured, causing him to have emergency surgery (to repair a fracture of the proximal left humerus) shortly after the ship returned to port in Miami.

Perera filed a 34-page, five-count Complaint against Defendant Carnival Corporation. [ECF No. 1]. Count I is for Negligent Failure to Maintain; Count II is for Negligent Failure to Warn; Count III is for Negligent Training of Personnel; Count IV is for Negligent Supervision of Personnel; and Count V is for Negligent Design, Construction and Selection of Materials. Carnival filed a motion to dismiss, Plaintiff filed a response and Carnival filed a reply. [ECF Nos. 9; 12 15]. United States District Judge Kathleen M. Williams referred [ECF No. 11] the dismissal motion to me for a Report and Recommendations.

Carnival's dismissal motion asserts the following arguments: (1) Perera failed to adequately plead that Carnival had actual or constructive knowledge of the alleged danger (i.e. a bundled carpet which caused him to trip); (2) Plaintiff alleged a “trip and fall” but his Complaint contains numerous immaterial allegations concerning notice related to “slip and falls”; (3) the Complaint's allegations about warning signs and their possible relation to notice are contradictory; (4) Perera does not sufficiently allege how or why Carnival was negligent in implementing or operating its training program (5) Perera's negligent supervision claim contains no factual allegations about Carnival's knowledge of an employee who was negligently supervised; and (6) the Complaint lacks sufficient allegations concerning notice of the hazardous condition arising from the purportedly negligent design.

For the reasons outlined below, the Undersigned respectfully recommends that Judge Williams grant in small part and deny in large part the motion to dismiss and dismiss one of the counts in the Complaint (albeit without prejudice and with leave to file an amended complaint). At bottom, though, the Complaint is problematic and inadequate on one count because it is, from a substantive perspective, overly conclusory and devoid of sufficient specific factual allegations concerning supervision. Therefore, the specific recommendation is to grant the motion, in part, and dismiss Count IV but deny, in part, the motion to dismiss Counts I, II, III and V (for negligent maintenance, negligent failure to warn, negligent training, and negligent design).

I. Factual Background (i.e., Plaintiff's Allegations)

The following paraphrased allegations concern all five counts of Plaintiff's Complaint:

Carnival knows that its Lido Deck has staterooms which are “exposed” to carpeting. [ECF No. 1, ¶ 12]. Carnival also knows that carpeting covers the 28 staterooms in the Interior Rooms section of the Lido Deck which is repetitively and continuously exposed to ongoing maintenance and foot traffic -- which causes carpet bundling. Id. It also knows that its carpeted floors are dangerous when bundled, due to foot traffic, lack of carpet maintenance or poor carpet placement -- all of which creates a dangerous and hazardous condition. Id.

Given this scenario, Carnival requires its crewmembers to place yellow caution signs to warn passengers about the bundled, poorly maintained, or improperly placed carpeting. Id. The crewmembers are required to maintain, keep, control, and preserve the safety of the carpeting because passengers frequently walk on it. Therefore, Plaintiff says, Carnival “knew or should have known that its passengers may not know” that the Interior Room stateroom area on the Lido Deck “can be dangerous.” Id. Carnival's carpet danger “is not an open and obvious hazardous condition.” Id.

On December 30, 2022, Carnival “allowed its crewmembers to ignore the bundled, poorly maintained, or improperly placed carpeting” near stateroom 9209 (Perera's room) by “stationing an inadequate number of crewmembers in the area and failing to supervise them.” Id. at ¶ 13. In addition, Carnival failed to “post adequate warnings of water on the floor, such as signs, cones, or barriers.” Id. Furthermore, Carnival failed to train its crewmembers “on how to properly warn passengers about the dangerous conditions.” Id.

At approximately 5:50 p.m., when the sun was still out and there was no rain, Perera headed for his room (i.e., interior stateroom 9209) with his grandson by walking on the main run carpet in the Interior Stateroom area of the Lido Deck. Id. Although there were no warning signs, Perera still walked cautiously along the main run carpet, toward his room, when he suddenly tripped and fell on the bundled, poorly maintained, or improperly-placed carpeting, a scenario which existed “for an extended period of time.” Id.

Carnival allowed the bundled, poorly maintained or improperly-placed carpeting to create a dangerous and hazardous condition even though it had experience of “at least 50 years of operating open decks.” Id. at ¶ 18. The carpet hazard “existed for hours and hours of crew and/or passengers tracking, dripping, and/or otherwise bundling carpet through the day and into the evening night of December 30, 2022.” Id. Carnival had been operating its waterpark, pools, jacuzzies, showers and spas the entire day and into the night. During that time, “hundreds if not thousands of passengers and crew repetitively and continuously walked, ran and or otherwise caused [sic] carpet to bundle up from the main carpet in the Interior Stateroom section of its Lido Deck 9.” Id.

Carnival failed to warn its passengers that this area was dangerous or poorly maintained. Id. at ¶ 19. It failed to train, create and/or supervise its crew to reasonably ensure that its slip and fall procedures, policies and/or programs were used and applied to this area. Id. Had Carnival, through its crew, inspected, maintained, or at least warned its passengers and crew of this carpet danger, Perera would not have tripped, fallen, and sustained injuries. Id.

Carnival failed to mark the bundled, poorly maintained or improperly-designed carpeting with a warning sign or to cordon off the area because of the apparent carpet cleaning equipment. Id. at ¶ 20. Moreover, Carnival allowed this carpeting to “remain [sic] the floor at night with low lighting, without warnings, with floor material known to be dangerous when not maintained and without any slip-resistant coatings.” Id. Perera could not see this carpeting because it was “not visible and blended into the floor, the carpeting is shiny and changed colors with the lighting from Carnival's ongoing deck party event and the degree of dangerousness and hazard was not readily apparent to the human naked eye.” Id.

Carnival operates Open Deck areas on its fleet of 24 cruise ships and has done so since it first began operating cruise ships in 1972. Over the past 50 years, Carnival knows that its Open Deck and stateroom main run carpet sections are some of the most-trafficked areas by passengers and crew. Id. at ¶ 22. Furthermore, Carnival knows that its crew is required to clean, inspect, maintain, and keep the carpeting safe. Id.

Carnival knew or should have known about the dangerous and hazardous conditions from prior, similar incidents involving trip and falls. The Complaint lists six prior slip and fall incidents. Some of the specific years (from December 2015 through October 6, 2019) are listed; other incidents do not have a date associated with them. Id. at ¶ 23. All six involve incidents on the Lido Deck; none of them are described as being falls on carpet or even in the Inside Stateroom area (as opposed to, for example, the outside deck near the pools). Id.

While Perera was still on the floor after his fall, a Carnival crew member placed caution signs in the area where he fell. Id. at ¶ 24.

Carnival knew or should have known about the carpet's dangerous condition because of the length of time the condition existed. Id. at ¶ 25. The Conquest was scheduled to depart the port of Miami at 3:30 p.m. and the incident occurred at approximately 5:50 p.m., which means “there was at least 1 hour from the time that it departed to the time that the incident occurred.” Id. In addition, a Carnival crew member had earlier placed carpet cleaning equipment nearby. Id.

Moreover, Carnival knew or should have known about the carpet's dangerous condition because there were crew members in the area where Perera fell. Id. at ¶ 26.

Although Perera fell in a carpeted area, he alleges that Carnival “knows that its outdoor decks are slippery when wet,” as demonstrated by its daily newspaper, which warns passengers to “use caution on outdoor decks as they can be slippery.” Id. at ¶ 27 (emphasis supplied).

The Complaint alleges that Carnival knew or should have known about the dangerous condition for another reason: its training presentation “open decks” identifies “open decks” as “Areas of Most Potential Slip and Falls.” Those policies and procedures require crew members to...