IN THE UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

CASE NO.: 20-cv-22463-FAM

ASHLEY HODSON, 

Plaintiff, 

v.

MSC CRUISES, S.A., 

Defendant.

________________________________________/

DEFENDANT’S MOTION FOR SUMMARY JUDGMENT OR ALTERNATIVELY 

MOTION FOR SUMMARY ADJUDICATION

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Defendant, MSC Cruises S.A. (“MSC”), pursuant to general maritime law, Federal Rule 

of Civil Procedure 56, and this Court’s Scheduling Order Setting Trial (ECF No. 9), hereby moves 

this Court for entry of Summary Judgment against Plaintiff, Ashley Hodson (“Plaintiff”), and in 

support thereof states as follows:

INTRODUCTION

This lawsuit involves an injury aboard the cruise ship MSC Seaside allegedly caused when 

Plaintiff slipped and fell on a wet step nosing. Plaintiff filed a nine-count Amended Complaint 

alleging: 1) negligent in hiring and retention of crewmembers; 2) negligent training and 

supervising of crewmembers; 3) negligent failure to warn Plaintiff of an allegedly dangerous 

condition; 4) negligent design, installation and approval of the subject area; 5) vicariously liability

for negligence of its crewmembers; 6) negligent inspection, cleaning, maintenance, repair, or 

failure remedy the alleged dangerous condition; 7) vicariously liability for negligence of shipboard

medical staff; 8) apparent agency as to the acts of the ship’s medical staff; and 9) assumption of 

duty for the negligence of the ship’s medical staff. See Amended Complaint (ECF No. 6). 

Because MSC had no notice of the alleged dangerous condition (i.e. water on the subject 

step), Plaintiff cannot satisfy an essential element of her negligence causes of action, and 

Defendant is entitled to summary judgement as to Counts 1, 2, 3, 5, and 6. Additionally, because 

Defendant MSC did not build, design, install, or approve the subject step, Defendant is entitled to 

summary judgment as to Count 4. Finally, because there is no evidence to support Plaintiff’s 

allegation she received negligent care aboard the Seaside – and Plaintiff has offered no expert 

opinion that her shipboard care was in any way negligent – Defendant is entitled to summary 

judgment on Counts 7, 8, and 9. Because Plaintiff cannot meet her burden of proof as to the 

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essential elements of her claims, as analyzed fully below, MSC is entitled to summary judgment 

on all nine Counts of Plaintiff’s Amended Complaint. 

MEMORANDUM OF LAW

I. Federal Maritime Law Governs This Action

It is well settled that general maritime law governs passengers’ lawsuits against cruise 

lines. See Keefe v. Bahama Cruise Line, Inc., 867 F.2d 1318 (11th Cir. 1989); Stuart Cay Marina 

v. M/V Special Delivery, 510 F.Supp.2d 1063, 1069 (S.D. Fla. 2007); see also, Kermarec v. 

Compagnie Generale Transatlantique, 358 U.S. 625 (1959); Pope & Talbot, Inc. v. Hawn, 346 

U.S. 406 (1953); Rindfleisch v. Carnival Cruise Lines, Inc., 498 So. 2d 488 (Fla. 3d DCA 1986); 

Thomas J. Schoenbaum, 1 ADMIRALTY AND MARITIME LAW §3-5 (2d ed. 1994). Plaintiff 

has asserted this action is governed by federal maritime law. See Amended Complaint (ECF No. 

4) at ¶7 (“Jurisdiction is proper under 28 U.S.C. § 1333 because the action arises under admiralty 

and maritime law”). Under general maritime law, a shipowner owes passengers a duty of 

reasonable care under the circumstances. Kermarec, 358 U.S. at 631.

II. Plaintiff’s Summary Judgment Burden

The Eleventh Circuit and scores of courts in the Southern District have ruled that incidents 

where guests are injured on cruise ships can be appropriately disposed of on a motion for summary 

judgment. See e.g. Gorczyca v. MSC Cruises, S.A., 715 Fed. App’x. 919 (11th Cir. 2017); see also

Fedorczyk v. Carribean Cruise Lines, LTD, 82 F.3d 69 (3d Cir. 1996); Santisteban v. MSC 

Crociere, S.A., Case No. 09-61397 (S.D. Fla. Jan. 19, 2011) (DE 52); Mercer v. Carnival 

Corporation, 2009 WL 302274 (S.D. Fla. Feb. 9, 2009); Wish v. MSC Crociere S.A., 2008 WL 

5137149 (S.D. Fla. 2008); Cummiskey v. Chandris, S.A., 719 F. Supp. 1183 (S.D.N.Y. 1989). 

Federal Rule of Civil Procedure 56(c) provides that summary judgment is appropriate where there 

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are no genuine issues of material fact in dispute. Further, “some alleged factual disputes between 

the parties will not defeat an otherwise properly supported motion for summary judgment; the

requirement is that there be no genuine issue of material fact.” Anderson v. Liberty Lobby, Inc., 

477 U.S. 242, 247-248 (1986) (emphasis in original).1

A party opposing summary judgment may not simply rely upon the pleadings or mere 

denials of the allegations contained in a motion for summary judgment, but rather must adduce 

evidence showing that material facts are in issue. Anderson, 477 U.S. at 256 (emphasis added); 

see also Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986) (“Rule 56(c) therefore requires a nonmoving party to go beyond the pleadings and by [its] own affidavits or by the ‘depositions, answers 

to interrogatories, and admissions on file,’ designate ‘specific facts showing that there is a genuine 

issue for trial.”). Furthermore, “conclusory allegations, unwarranted deductions of facts or legal 

conclusions masquerading as facts will not prevent dismissal.” Oxford Asset Mgmt., Ltd. v. 

Jaharis, 297 F.3d 1182, 1188 (11th Cir. 2002). As set forth below, Defendant is entitled to 

summary judgment because no genuine issues of material fact remain in dispute, and Plaintiff 

cannot carry her burden of proof as to essential elements of her claims.

III. Summary Judgment Should Be Granted as to Counts 1, 2, 3, 5 and 6 Because MSC 

Did Not Have Notice of a Dangerous Condition

There is no evidence whatsoever showing MSC had prior notice of the water on a step 

nosing that Plaintiff alleges caused her fall.

2

In maritime negligence cases, notice of an alleged

1

“For factual issues to be considered genuine, they must have a real basis in the record ... mere 

conclusions and unsupported factual allegations are legally insufficient to defeat a summary 

judgment motion.” Ellis v. England, 432 F.3d 1321, 1326 (11th Cir. 2005) (citations omitted) 

(emphasis added).

2

It is well settled in the Eleventh Circuit that vicarious liability, actual agency, and apparent agency 

are not causes of action but rather theories of negligence. Barabe v. Apax Partners Europe 

Managers, Ltd., 359 Fed.Appx. 82, 84 (11th Cir. 2009) (holding that there is no cause of action 

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dangerous condition is a prerequisite to imposing liability. Keefe, 867 F.2d at 1322. At deposition, 

Plaintiff was clear regarding the conditions and circumstances that caused her fall: 

Q. Did you slip or did you trip?

A. I slipped. 

Q: Do you know what caused you to slip? 

A: There was a slippery substance on the stairs.

Q: Do you know what it was?

A: I believe it was the water from the pool areas and from the wet bathing suits and all the 

people running around with the bare feet, tracking all the water from the pool.

Q. So you could see people had bathing suits when you were walking down the steps, you 

saw people -- were people in bathing suits walking up the steps? 

A. Yes.

Deposition of Ashley Hodson attached hereto as “Composite Exhibit A” at p. 49/lines 5-19.

Q: Did – do you know what you slipped on? By that, I mean, did you slip on the carpet? 

Did you slip on that metal nosing?

A: I believe that I slipped on both the carpet and the metal nosing, but, primarily, the metal 

nosing since it was more of a sleek surface. I can’t say definitively, but I believe it was the 

metal nosing.

Id. at pp. 55-56/lines 21-25 and 1-3 (emphasis added).

Plaintiff further testified that she saw the water on the steps before she fell. 

Q. When you were -- saw all the folks that were walking around with bathing suits, did you 

take any precautions when you were walking down the steps? 

A. Yes, I did walk very slowly and I also tried to avoid obvious puddles that were wet with 

water, but I was walking very slowly down the stairs. 

for “agency”); Flaherty v. Royal Caribbean Cruises, Ltd., 172 F. Supp. 3d 1348, 1352 (S.D. Fla. 

2016) (“The [c]ourt notes from the outset that apparent agency is not independent causes of action, 

but instead a theory of liability.”); Witover v. Celebrity Cruises, Inc., 161 F. Supp. 3d 1139, 1149 

(S.D. Fla. 2016) (same). Furthermore, a vicarious liability claim fails when there is no underlying 

negligence. See Ceithaml v. Celebrity Cruises, Inc., 207 F. Supp. 3d 1345, 1355 (S.D. Fla. 2016) 

(“At the outset, the [c]ourt finds that because [plaintiff] failed to state a plausible negligence claim, 

her ‘apparent agency’ claim also fails.”). For the purposes of this Motion, Defendant does not 

dispute that it is vicariously liable for the actions of its employees.

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Q. How big were those puddles? 

A: There were some puddles just from people running, so I don’t know exactly how big. I 

mean, they weren’t gigantic, but they were obvious from water pooling.

Id. at pp. 58/lines 1-14.

Plaintiff had not been down these steps before she fell and water was being dripped on the 

stairs at the time she fell. 

Q. Had you been down those steps before you fell?

A. No.

Q: What was happening on those steps at the time that you fell? Were there other people

on the steps?

A: Yes, there were a lot of people on the steps. There were a lot of people going down and 

there were a lot of people coming up. And we were in between two pool areas, so everyone 

was wearing their bathing suits. A lot of children, particularly because it was the children’s 

pool area and splash pad area, plus the arcade, which was right at the top of the stairs. So 

it was very busy, very noisy, very loud and a lot of commotion. 

Id. at p. 48/lines 2-17.

Other than her own speculation, Plaintiff did not know how long the water had been on the step. 

Q. So you don't know how long those puddles had been there, though?

A. They looked like they had been there a while.

Q. How can you determine that?

A. Well, there were a lot of people running around and there were no caution wet-floor 

signs. There wasn't taking any -- there was no one there that was actually trying to clean 

up the mess. And they looked like they had been there for quite awhile. 

Q. Were they dirty at all? Was there color to it?

A. No, not that I remember.

Id. at pgs. 58-59/lines 9-25 and 1-12 (emphasis added).

Other that pure speculation, Plaintiff is unable to point to any evidence showing how long 

the water had been there or that MSC had either actual notice of the water on the step. Plaintiff 

testified she slipped on the wet metal nosing of the stairs, which had become wet as passengers’ 

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wet bathing suits were dripping on them. 

The Seaside entered service in November of 2017. Since that time, not a single one of the 

tens of thousands of passengers sailing on the Seaside prior to Plaintiff reported an incident 

substantially similar to the incident as alleged by Plaintiff (i.e slipping on the pool water on the 

nosing of a step in a very busy stairwell near the pool).

3 Furthermore, there is no evidence other 

passengers or crew members reported an issue with passengers dripping pool water onto these 

stairs prior to Plaintiff’s alleged incident. 

The standard of care under maritime law “requires, as a prerequisite to imposing liability, 

that the carrier have had actual or constructive notice of the risk-creating condition.” Keefe v. 

Bahama Cruise Line, Inc., 867 F.2d 1318, 1322 (11th Cir. 1989). Plaintiff must come forward with 

evidence that Defendant had notice of the particular condition that led to her injury so that 

Defendant had a reasonable opportunity to fix the condition. Salazar v. Norwegian Cruise Line 

Holdings, Ltd., 2016 A.M.C. 1602 (S.D. Fla. May 23, 2016); Cohen v. Carnival Corp., 945 F. 

Supp. 2d 1351, 1357 (S.D. Fla. 2013) (“mere implication of actual or constructive notice is 

insufficient to survive summary judgment.”) (internal citation omitted); Weiner v. Carnival Cruise 

Lines, 2012 WL 5199604 (S.D. Fla. Oct. 22, 2012); Mercer v. Carnival Corporation, 2009 WL 

302274 (S.D. Fla. Feb. 9, 2009) (granting summary judgment as plaintiff failed to present evidence 

that Carnival had actual or constructive notice of a risk-creating condition); see also Lee v. Regal 

Cruises, Ltd., 116 F.3d 465 (2d Cir. 1997); Adams v. Carnival Corp., 2009 A.M.C. 2588 (S.D. Fla. 

Sept. 28, 2009). Plaintiff does not know long the water had been on the step before she fell. See 

3 Seaside carries over five thousand passengers per cruise. In its discovery responses, Defendant 

disclosed one prior incident that occurred on July 12, 2018, where a passenger slipped and fell on 

the wet nosing of a step in the same stairwell, on a different deck that is not similarly situated with 

respect to the pool decks. In that case, there was no evidence that dripped pool water caused the 

nosing to be wet. See “Exhibit B”, Deposition of Jeff Ramos pages 23-24/lines 18-25 and 1-5. 

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Deposition of Ashley Hodson, attached hereto as “Composite Exhibit A” at pgs. 58-59/lines 9-25 

and 1-12.

Plaintiff has not (and cannot) come forward with any evidence showing MSC had notice 

of pool water on the subject stairs. Henderson v. Carnival Corp., 125 F. Supp. 2d 1375, 1376 (S.D. 

Fla. 2000) (“[T]he failure of proof concerning an essential element of the non-moving party’s case 

necessarily renders all other facts immaterial and requires the court to grant the motion for 

summary judgment”).4 To meet its burden of showing there is no genuine issue of material fact, a

moving party may show an absence of evidence in the record to support the non-moving party’s 

case. Yusko v. NCL (Bahamas) Ltd., 424 F. Supp. 3d 1231, 1238 (S.D. Fla. 2020) (citing Guevara 

v. NCL (Bahamas) Ltd., 920 F.3d 710, 723 (11th Cir. 2019) (“NCL may carry its burden of 

showing no genuine issue of material fact by showing ‘an absence of evidence to support the 

nonmoving party’s case.’”)). MSC meets that burden here. There is absolutely no evidence MSC 

had notice of the water dripped by passengers’ bathing suits on the subject stairs. There is no 

evidence to suggest the water had been there for a sufficient length of time for MSC to be notified, 

much less have the opportunity to address the condition. As Plaintiff testified: 

Q: What was happening on those steps at the time that you fell? Were there other people 

on the steps?

A: Yes, there were a lot of people on the steps. There were a lot of people going down and 

there were a lot of people coming up. And we were in between two pool areas, so everyone 

was wearing their bathing suits. ... 

4 Summary judgment shall be granted “against a party who fails to make a showing sufficient to 

establish the existence of an element essential to that party’s case, and on which that party will 

bear the burden of proof at trial ... since a complete failure of proof concerning an essential 

element of the nonmoving party’s case necessarily renders all other facts immaterial.” See Celotex,

477 U.S. 317, 322-23 (1986); see also T.W. Elec. Serv. v. Pacific Elec. Contractors Ass’n, 809 

F.2d 626, 630 (9th Cir. 1987) (the nonmoving party may not rely on the pleadings but must present 

specific facts creating a genuine issue of material fact).

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Deposition of Ashley Hodson attached hereto as “Composite Exhibit A” at p. 48/lines 5-12.

Q: And they were dripping water all over?

A: Yes. ... we also saw water being tracked in and out of the arcade area right by the steps.

Id. at p. 49/lines 20-25.

Q: Did any of the people who were on the step come to your assistance?

A: Yes. ... But at the same time, the people going up and down the stairs, the children in 

the wet bathing suits were still running back and forth.

Id. at p. 64/lines 12-21.

The water was not dirty, did not have a smell, was colorless, and was not sticky. See id. at 

p. 56/lines 20-25 and p. 59/lines 5-7. There is no indication anywhere in the record the water had 

been there for enough time to put Defendant on notice of a dangerous condition. Moreover, 

Plaintiff herself avers that the dripping passengers were actively “running around” dripping water 

on the steps at the same moment she was ascending (or descending) the stairs.

The burden rests with Plaintiff to prove notice as well as the existence of a dangerous 

condition for a sufficient interval of time to allow for corrective action. Keefe, 867 F.2d at 1322 

(11th Cir. 1989); Monteleone v. Bahama Cruise Line, Inc., 838 F.2d 63, 65 (2d Cir. 1988) (granting 

summary judgment because the court could “find no evidence in the record that [Bahama Cruise 

Line] had constructive notice of the [defective condition]”). 

“Courts routinely grant summary judgment in a defendant’s favor when a plaintiff fails to 

adduce evidence on the issue of notice.” Yusko v. NCL (Bahamas) Ltd., 424 F. Supp. 3d 1231, 

1237 (S.D. Fla. 2020); see also Marshall v. Royal Caribbean Cruises, Ltd., 706 Fed. Appx. 620 

(11th Cir. 2017), cert. denied, 139 S. Ct. 177 (2018). In Marshall, a cruise passenger claimed she 

slipped on a puddle after it had rained off and on throughout the day and, as here, it was undisputed 

that she and her traveling companions were aware of the rain and the wetness of the external 

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surfaces of the ship. Id. at 621. The Eleventh Circuit affirmed the district court’s order granting 

summary judgment for the cruise line because “Royal Caribbean had no duty to protect Ms. 

Marshall from any dangerous condition of which it had no actual or constructive notice.” Id. 

(citing Keefe v. Bahama Cruise Line, Inc., 867 F.2d 1318, 1322 (11th Cir. 1989) (“as a prerequisite 

to imposing liability, [the carrier must] have had actual or constructive notice of the risk-creating 

condition”)).

In Cohen v. Carnival Corp., 945 F. Supp.2d 1351 (S.D. Fla. 2013), a cruise line passenger 

was injured when he tripped and fell down the stairs at the end of a gangplank leading off the ship 

at a port of call. Carnival filed a motion for summary judgment. The court properly noted that, 

“[d]efendant’s liability in this case turns on whether [d]efendant had notice, either actual or 

constructive, of an alleged risk-creating condition.” Id. at 6. The court deemed there was no record 

evidence that Carnival had notice of a risk-creating condition. Id. Accordingly, “because the 

[c]ourt finds that there is no evidence that Carnival had any actual or constructive notice of any 

risk-creating condition related to the steps, gangplank, and/or disembarkment procedure, Carnival 

is entitled to summary judgment on this theory of liability.” Id. at 11. 

Likewise, in Isbell v. Carnival Corporation, 462 F. Supp. 2d 1232 (S.D. Fla. 2006), the 

court granted summary judgment, predicating its decision, in part, on the fact that plaintiff failed 

to establish any evidence that Carnival had notice of the alleged condition. The court held “[t]he 

mere fact that an accident occurred does not give rise to the presumption of a dangerous condition.” 

Id. The plaintiff in Isbell failed to offer evidence of a dangerous condition other than the fact that 

her accident occurred, which standing alone “is insufficient evidence to support its allegation that 

[d]efendant had constructive notice of the danger.” Id.5

5 See also Rainey v. Paquet Cruises, Inc. 709 F.2d 169 (2d Cir. 1983) (the cruise line was entitled 

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Here, there is simply no evidence Defendant had notice that passengers had dripped water 

onto the metal nosing or that this constituted a dangerous condition. Seaside has been in service 

since November 2017, and tens of thousands of passengers have sailed on the ship – presumably 

with many of them likewise using the swimming pools. There is no evidence that anyone ever 

reported a similar incident involving as slip on a nosing made wet from wet bathing suits. Plaintiff 

has not (and cannot) come forward with any evidence showing MSC had notice of a dangerous 

condition. Plaintiff has failed to establish the essential element of her claims. Therefore, Defendant 

is entitled to summary judgment on Count 5 of Plaintiff’s Amended Complaint.

IV. Plaintiff’s Failure to Warn Claim Fails 

It is well established that actual or constructive notice is likewise a prerequisite to a failure 

to warn claim – Plaintiff’s 3

rd Cause of Action. Cohen v. Carnival Corp., 945 F. Supp. 2d 1351, 

1357–58 (S.D. Fla. 2013) (quoting Weiner, 2012 WL 5199604, at *3 (“[a] cruise line must warn 

passengers only of those dangers that the cruise line knows or reasonably should have known, 

and which are not apparent and obvious to the passenger”) (emphasis added)); see also Yusko v. 

NCL (Bahamas) Ltd., 424 F. Supp. 3d 1231, 1234 (S.D. Fla. 2020) (cruise line had no duty to warn 

because it had no notice of dangers of a dance competition). A cruise line must warn passengers 

only of those dangers that “the cruise line knows or reasonably should have known.” Thomas v.

NCL (Bahamas) Ltd., No. 13-24682-CIV, 2014 WL 3919914, at *2 (S.D. Fla. Aug. 11, 2014) 

(citing Weiner v. Carnival Cruise Lines, 2012 WL 5199604, at *3 (S.D. Fla. Oct. 22, 2012)).

to dismissal where the plaintiff could not prove how a stool—which the plaintiff allegedly tripped 

over—was placed on the ship’s dance floor, or how long it was present before the plaintiff tripped 

over it); Adams v. Carnival Corp., 08-22465-CIV, 2009 WL 4907547 (S.D. Fla. Sept. 29, 2009) 

(“Without specific facts demonstrating at least, that the purported defect was detectable with 

sufficient time to allow for corrective action, this case need not proceed to a jury”) (emphasis 

added).

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In Yusko v. NCL (Bahamas) Ltd., the plaintiff sued the cruise line, claiming she sustained 

injuries during a dance competition in which she was paired with one of the ship’s professional 

dancers. Yusko v. NCL (Bahamas) Ltd., 424 F. Supp. 3d 1231, 1233 (S.D. Fla. 2020). The plaintiff 

filed a one-count complaint alleging several theories of negligence including, inter alia, failure to 

warn of the dangers of the dance competition. Id. After extensive analysis, the district court held 

that the cruise line did not have actual or constructive notice of the alleged dangerous condition. 

Id. at 1239. Accordingly, the district court granted summary judgment in favor of the cruise line, 

including on plaintiff’s failure to warn claim. Id. 

As in Yusko, here MSC had no notice of any dangerous condition due to the dripping 

bathing suits on the nosing of the ship’s stairs. MSC had no duty to warn Plaintiff because it did 

not know of the condition which was open, obvious and apparent to Plaintiff.

6 As examined above, 

Plaintiff has admitted recognizing the floor was wet before she fell and that she steps and took 

extra care in traversing the area because she recognized what she deemed to be a dangerous 

condition. Warnings serve to equalize asymmetries of information and are required only when a 

cruise line has knowledge of a dangerous condition that is not “apparent” to the passenger. Kadylak 

v. Royal Caribbean Cruise, Ltd., 167 F. Supp. 3d 1301, 1309 (S.D. Fla. 2016), aff’d sub 

nom. Kadylak v. Royal Caribbean Cruises, Ltd., 679 F. App’x 788 (11th Cir. 2017); see also John 

Morrell & Co. v. Royal Caribbean Cruises, Ltd., 534 F.Supp.2d 1345, 1352 (S.D. Fla. 

2008) (cruise ship owner did not owe passenger duty to warn about “the obvious danger that dune 

buggies utilized in [a] shore excursion might be involved in collisions with other vehicles driven 

6

It is axiomatic that a cruise line cannot warn of a condition about which it had no knowledge or 

notice. Samuels v. Holland Am. Line–USA, Inc., 656 F.3d 948, 954 (9th Cir. 2011) (“Because 

Holland American had neither actual nor constructive notice of a dangerous condition on the 

Pacific Ocean side of Lover’s Beach, it had no duty to warn Samuels about swimming there”).

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carelessly by others”). MSC, had no duty to warn, as Plaintiff was already aware of the allegedly 

dangerous condition. 

Plaintiff has failed to establish notice, an essential element of her failure to warn claim, and 

therefore cannot prevail at trial. Furthermore, MSC had no duty to warn of a condition of which 

Plaintiff was already aware. Defendant is therefore entitled to summary judgment on Count 3 of 

Plaintiff’s Amended Complaint.

V. Plaintiff’s Negligent Inspection Claims Fails

Notice is also a prerequisite to a negligent inspection claim – Plaintiff’s 6

th Cause of 

Action.

7 Chimene v. Royal Caribbean Cruises, Ltd., No. 16-23775-CV, 2017 WL 8794706, at *2

(S.D. Fla. Nov. 14, 2017), report and recommendation adopted, No. 16-23775-CIV, 2018 WL

1795799 (S.D. Fla. Jan. 4, 2018) (dismissing plaintiff’s claim because notice is a prerequisite to 

liability under general maritime law); see also Monteleone v. Bahama Cruise Line, Inc., 838 F.2d

63, 64 (2d Cir. 1988). MSC’s liability, including liability for failure to inspect or maintain, turns 

on whether it had notice—either actual or constructive—of the alleged dangerous condition. As 

set forth above, MSC did not have notice.

In Monteleone, the plaintiff fell down a flight of stairs on a cruise ship. Monteleone v. 

Bahama Cruise Line, Inc., 838 F.2d 63, 64 (2d Cir. 1988). She alleged she tripped on screws that 

were holding a brass strip in place at the edge of the stairs. Id. The district court found the cruise 

line liable on the grounds that it regularly inspected and maintained the stairs. On appeal, the 

Second Circuit reversed and remanded because “[a] shipowner is responsible for defective 

7 As an initial matter, there is no evidence that negligent inspection or maintenance of the subject 

stairway were the proximate cause of the accident. Plaintiff blames her accident on the transitory 

condition of water on the stair – a condition she testified was caused by passengers in wet bathing 

suits who were using the stairs at the same time as her. There is no evidence any structural defect 

in the stairs which could have been remedied by inspection or maintenance. 

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conditions aboard ship only when it has actual or constructive notice of them.” Id. at 65 (emphasis 

added). The Second Circuit focused its analysis on the issue of constructive notice. The appellate 

court stated “we find no evidence in the record that [the cruise line] had constructive notice of the 

protruding screw. Such notice requires that a defective condition exist for a sufficient interval of 

time to invite corrective measures.” Id. 

Here, there is no evidence MSC had notice of any danger posed by passengers’ wet bathing 

suits dripping water onto the nosing of the subject stair. Plaintiff has failed to establish notice, an 

essential element of her negligent inspection claim, and therefore cannot prevail at trial. Since 

MSC had no notice of an allegedly dangerous condition, Plaintiff’s negligent inspection claim 

fails, and Defendant is entitled to summary judgment on Count 6 of Plaintiff’s Amended 

Complaint. Furthermore, Plaintiff has not provided any evidence – nor can she – showing MSC 

was negligent in inspecting the stairs at issue. There is simply nothing in the record that shows

MSC was negligent in inspecting the subject stairs or that regular inspections would have avoided 

the accident since the wet condition was apparently introduced at essentially the same time 

Plaintiff used the stairs and fell.

8 Without evidence, Plaintiff cannot prove negligence predicated 

on a theory of negligent inspection. Therefore, Defendant is entitled to summary judgment on 

Count 6 of Plaintiff’s Amended Complaint.

VI. Plaintiff’s Negligent Failure to Maintain Claim Fails

Notice is similarly a prerequisite to a negligent maintenance claim – Plaintiff’s 6th Cause 

of Action. Yusko, 424 F. Supp. 3d at 1238. The notice requirement extends even to instances 

8

Impermissible speculation cannot support a conclusion of negligence. See Willis v. Westin Hotel 

Co., 884 F.2d 1556 (2nd Cir. 1989) (citing to Monteleone v. Bahama Cruise Line, Inc., 838 F.2d 

63 (2d Cir. 1988) (finding impermissible speculation cannot support conclusion of negligence or 

finding of constructive notice)).

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where plaintiff alleges the defendant created or maintained the defect. Pizzino v. NCL (Bahamas) 

Ltd., 709 Fed. Appx. 563, 565 (11th Cir. 2017) (the Eleventh Circuit citing Keefe and rejecting the 

argument that “notice of the defect” could be imputed to a cruise ship operator merely because it 

had created or maintained the defect).

To prevail on a negligent maintenance claim, Plaintiff must show Defendant had notice of 

the allegedly dangerous condition. See Sutton v. Royal Caribbean Cruises Ltd., 774 F. App’x 508, 

511 (11th Cir. 2019) (the Eleventh Circuit ruling in a negligent maintenance claim that “[l]iability 

thus depends upon whether the ship operator either knew, or else should have known, about the 

allegedly dangerous condition that the plaintiff claims caused her injury”); see also Yusko, 424 F. 

Supp. 3d at 1238 (granting summary judgment on failure to maintain because plaintiff failed to 

“point to evidence in the record that [d]efendant had actual or constructive notice of the riskcreating condition”). There is no exception to the notice requirement for negligently creating the 

hazard or negligently maintaining the cruise ship. Morhardt v. Carnival Corp., 304 F. Supp. 3d 

1290, 1295 (S.D. Fla. 2017). Here, Plaintiff claims she fell on water deposited onto the step by 

fellow passengers who were using the stairway at essentially the same time as Plaintiff. As 

discussed at length above, MSC had no notice, whether actual or constructive, of any allegedly 

dangerous condition and therefore cannot be liable for negligent maintenance in failing to 

eliminate the water on the step. Everett v. Carnival Cruise Lines, 912 F.2d 1355, 1359 (11th Cir. 

1990) (Absent notice of a danger, a shipowner cannot be found liable for negligent “creation or 

maintenance of a defect.”).

In Everett, a passenger tripped over a metal door threshold. Id. at 1357. She argued that she 

did not need to prove the cruise line knew about the threshold because the cruise line “created the 

threshold and maintained it. In other words, [the shipowner] should have known that there was a 

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danger of passenger injury because it was the owner and operator of the ship.” Id. at 1359. On 

appeal, the Eleventh Circuit held that the district court erred in relying on Florida law—instead of 

federal maritime law—and concluding that the cruise line could be liable for negligence without 

actual or constructive notice as long as it “negligently created or maintained the premises.” Id. at 

1358. The Eleventh Circuit rejected this argument since it would defeat “the limitation on the 

shipowner’s liability imposed by Keefe” and would make the cruise line a general insurer of its 

passengers. Id. at 1359. The court also rejected the notion that “notice of the defect” could be 

imputed to a cruise ship operator “inasmuch as it created” the defect “and maintained it,” 

explaining that such a rule would also contravene Keefe. Id

As in Everett, here MSC had no notice of passengers’ wet bathing suits dripping water onto 

the metal nosing of the subject stair. Plaintiff has failed to establish notice, an essential element of 

her negligent maintenance claim, and therefore cannot prevail at trial. Since MSC had no notice 

of an allegedly dangerous condition, Plaintiff’s claim of negligent maintenance fails, and 

Defendant is entitled to summary judgment on Counts 5 and 6 of Plaintiff’s Amended Complaint.

Furthermore, Plaintiff has not provided any evidence – nor can she – showing MSC was 

negligent in maintaining the subject stairs. See Amended Complaint at Counts 5 and 6 (ECF No. 

6). See Poole, No. 14-20237-CIV, 2015 WL 1566415, at *3 (granting summary judgment because 

the plaintiff “fails to cite to any record evidence to support her position that Carnival failed to 

maintain or failed to inspect the glass door at issue...”). Here, there is nothing in the record to 

suggest that MSC was negligent in maintaining the subject area. Without evidence, Plaintiff cannot 

prove negligence predicated on a theory of negligent maintenance. 

IV. There Is No Evidence MSC Designed, Installed, or Approved the Subject Area or that 

the Design or Installation of the Stairway Caused the Accident

Here, there is nothing in the record to show MSC designed the stairway at issue onboard 

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Seaside, installed the subject stairs, or approved the subject stairs.

9

In fact, the only record evidence 

shows that MSC did none of those. See Deposition of Jeff Ramos attached as Exhibit B” at pg. 

14/lns. 22-25. Without evidence, Plaintiff cannot prove negligence predicated on a theory of 

negligent design, installation, or approval. Further, there is no evidence the stairs themselves are 

dangerous as in this case Plaintiff blames her accident on a transitory condition – water on the stair 

– rather than some structural defect in the stairway construction. Therefore, Defendant is entitled 

to summary judgment on Plaintiff’s 4th Cause of Action. 

V. There Is No Evidence MSC Was Negligent in Hiring, Retaining, Training, or 

Supervising Its Crewmembers Nor that Hiring, Training or Supervising Crew 

Caused Plaintiff’s Accident

Plaintiff’s First Count alleges that MSC was negligent when it hired or retained the 

crewmembers responsible for inspecting and maintaining the subject area. See Amended 

Complaint (ECF No. 6) at ¶23. Plaintiff’s Second Count alleges that MSC was negligent when it 

trained or supervised the crewmembers responsible for inspecting and maintaining the subject area. 

Id. at ¶47. However, Plaintiff fails to adduce any evidence to support either claim. 

In order to state a claim for negligent hiring or retention, Plaintiff must allege (1) that the 

individual was incompetent or unfit to perform the work, (2) that MSC knew or reasonably should 

have known of the particular incompetence or unfitness, and (3) that the incompetence or unfitness 

proximately caused Plaintiff’s injuries. See Gayou v. Celebrity Cruises, Inc., 11-23359-Civ-Scola, 

9 To meet its burden of showing that there is no genuine issue of material fact, the moving party 

may show an absence of evidence in the record that supports the non-moving party’s case. Yusko, 

424 F. Supp. 3d at 1238 (citing Guevara v. NCL (Bahamas) Ltd., 920 F.3d 710, 723 (11th Cir. 

2019) (“NCL may carry its burden of showing no genuine issue of material fact by showing ‘an 

absence of evidence to support the nonmoving party’s case.’”)); see also Poole v. Carnival Corp.,

No. 14-20237-CIV, 2015 WL 1566415, at *3 (S.D. Fla. Apr. 8, 2015) (granting summary judgment 

because the plaintiff “fails to cite to any record evidence to support her position that Carnival failed 

to maintain or failed to inspect the glass door at issue...”).

Case 1:20-cv-22463-FAM Document 22 Entered on FLSD Docket 12/28/2020 Page 17 of 23
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2012 U.S. Dist. Lexis 77536, *14 (S.D. Fla. 2012) (holding plaintiff failed to plead facts supporting 

negligent hiring or retention); Smolnikar v. Royal Caribbean Cruises Ltd., 787 F. Supp. 2d 1308, 

1318 (S.D. Fla. 2011); Koens v. Royal Caribbean Cruises, Ltd., 774 F. Supp. 2d 1215, 1220 (S.D. 

Fla. 2011) (“merely pleading the existence of such duties without providing a factual basis for their 

imposition is insufficient to state a cause of action”). To satisfy the second element, the Plaintiff 

must allege facts “showing that the employer was put on notice of the harmful propensities of the 

[employee]” before either hiring or retaining the employee. Doe v. NCL (Bahamas) Ltd., No. 1:16-

cv-23733-UU, 2016 U.S. Dist. LEXIS 150817, at *8-9 (S.D. Fla. Oct. 27, 2016) (dismissing 

plaintiff’s claim for negligent hiring or retention because no facts whatsoever were alleged to 

create a plausible inference of negligence on defendant’s part). As in Doe, after the close of 

discovery in the instant matter, there is nothing in the record to suggest that any crew member was 

unfit, nor that MSC knew or should have known of the particular unfitness of said crew member, 

or that maintenance or inspection were the proximate causes of this accident. Plaintiff therefore 

cannot establish essential elements of her negligent hiring or retention claim, and MSC is entitled 

to summary judgment as to Count 1 of Plaintiff’s Amended Complaint.

Similarly, negligent supervision occurs when, during the course of employment, the 

employer becomes aware or should have become aware of problems with an employee that 

indicated his unfitness, and the employer fails to take further actions such as investigating, 

discharge, or reassignment. Doe v. Carnival Corp., 470 F. Supp. 3d 1317, 1324 (S.D. Fla. 2020)

(internal quotations omitted); see also Doe, 2016 WL 6330587, at *4); Cruz v. Advance Stores 

Co., 842 F. Supp. 2d 1356, 1359 (S.D. Fla. 2012). Plaintiff “must allege that (1) the employer 

received actual or constructive notice of an employee’s unfitness, and (2) the employer did not 

investigate or take corrective action such as discharge or reassignment.” Id. Again, there are no 

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facts in the record to suggest that MSC knew or should have learned of the unfitness of any 

particular crew member and failed to take further action regarding same – or that same was the 

proximate cause of the accident. Plaintiff cannot meet her burden at trial as regards her negligent 

supervision cause of action, wherefore summary judgment should be granted as to Plaintiff’s 2nd

Cause of Action. 

Finally, negligent training occurs when an employer was negligent in the implementation 

or operation of the training program and this negligence caused a plaintiff’s injury. Doe v. 

Carnival Corp., 470 F. Supp. 3d 1317, 1324 (S.D. Fla. 2020); Doe v. NCL (Bahamas) Ltd., No. 

1:16-cv-23733-UU, 2016 WL 6330587, at *4 (S.D. Fla. Oct. 27, 2016. Broad allegations of 

“fail[ing] to train ... crewmembers” are insufficient even to survive a motion to dismiss, much less 

a motion for summary judgment. See Doe v. NCL (Bahamas) Ltd., No. 18-20060-CIV, 2018 WL 

3848421, at *3 (S.D. Fla. Aug. 13, 2018). Here, Plaintiff again fails to satisfy essential elements 

of the negligent supervision cause of action. There is no evidence in the record that MSC’s training 

program was deficient or improperly implemented. Therefore, Defendant is entitled to summary 

judgment on Counts 1 and 2 of Plaintiff’s Amended Complaint.

VII. Plaintiff Cannot Prove Medical Negligence

Plaintiff’s 7th, 8th and 9th causes of action are all based on the purported negligence of the 

medical staff aboard the Seaside. See Amended Complaint (ECF No. 6), Counts 7, 8, and 9. In 

essence, Plaintiff alleges the ship’s medical staff failed to properly diagnose and treat her fractures. 

See id. at ¶17.10 There is no record evidence showing Plaintiff’s treatment aboard the Seaside 

10 Plaintiff pleads that “the ship’s medical staff ... owed a duty to exercise reasonable care under 

the circumstances for the safety of its passengers. Such duties include ... providing such medical 

care and assistance as would an ordinarily prudent person under the circumstances.” Amended 

Complaint (ECF No. 6) at ¶¶119-120, 151, and 157-158. 

Case 1:20-cv-22463-FAM Document 22 Entered on FLSD Docket 12/28/2020 Page 19 of 23
19

caused any damages or that it fell below the standard of care for a shipboard physician.

11 Plaintiff 

has designated only two medical experts in this case – Dr. Ceballos and Dr. Suite. Neither expert 

has offered any opinions regarding the shipboard medical care Plaintiff received. See generally, 

Dr. Ceballos Expert Report dated November 11, 2020 and Dr. Suite Expert Report dated 

September 1, 2020; see also Plaintiff’s Expert Witness Disclosures collectively attached hereto as 

Exhibit E. The deadline for all Expert Disclosures was November 11, 2020. See Scheduling Order 

(ECF No. 9). Plaintiff therefore lacks any expert whose testimony can establish 1) that medical 

care on the ship did not meet the established standard of care and 2) that any allegedly negligent 

medical care caused or exacerbated Plaintiff’s injury. In order to establish a cruise line’s breach of 

its duty of care proximately caused her injuries, Plaintiff requires the testimony of a liability 

expert. Poole, 2015 WL 1566415, at *5 (“In order to establish that [cruise line’s] breach of its duty 

of care proximately caused her injuries, Plaintiff requires the testimony of an expert”). Plaintiff, 

therefore, cannot establish that the medical care Plaintiff received on the ship caused or 

exacerbated any of her injuries or that there was any medical negligence related to her passage 

aboard the Seaside. On this basis alone, MSC is entitled to summary judgment as to Plaintiff’s 7

th

, 

8

th and 9th Causes of Action. 

It is well-settled that Plaintiff cannot rest on the allegations of her Amended Complaint and 

that she must prove each element, including causation, essential to her medical negligence claim in 

order to defeat summary judgment, and. See Isbell, 462 F. Supp. 2d at 1238 (granting summary

judgment in a maritime negligence claim as plaintiff failed to prove that the cruise line’s alleged

failures caused her alleged damages). Plaintiff’s failure to prove causation necessarily renders all

11 Defendant advises the Court that Plaintiff has requested the shipboard doctor’s deposition. The 

doctor was laid off due to COVID-19. Defendant has been unable to reach the doctor due to ships 

not sailing.

Case 1:20-cv-22463-FAM Document 22 Entered on FLSD Docket 12/28/2020 Page 20 of 23
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other facts immaterial. Id. Furthermore, Plaintiff’s personal opinion as to causation is insufficient 

to survive summary judgment. Id.12 Here, Plaintiff has entered no record evidence supporting her 

conclusory allegation that the medical care Plaintiff received on the Seaside caused or exacerbated 

her injuries. Plaintiff has failed to establish an essential element of her claim and cannot prevail at 

trial. Therefore, Defendant is entitled to summary judgment as to Counts 7, 8, and 9 of the 

Amended Complaint.

VII. Conclusion

As analyzed above, MSC is entitled to summary judgment because MSC had no notice of 

a dangerous condition, there is no evidence to support any of Plaintiff’s remaining claims. Notice 

is a prerequisite for Plaintiff’s Counts 3, 5, and 6. Without notice, these claims fail. There is no 

evidence to show MSC designed, installed, or approved the subject area. Therefore, Count 4 fails.

In addition, Plaintiff cannot prove essential elements of her claims of negligent training, hiring, 

supervision, or retention; therefore Counts 1 and 2 fail. Finally, Plaintiff cannot prove medical 

negligence, without which Plaintiff cannot establish Counts 7, 8, or 9. Because Plaintiff cannot 

meet her burden of proof as to the essential elements of her claims, MSC is entitled to summary 

judgment on all nine Counts of Plaintiff’s Amended Complaint (ECF No. 6). Alternatively, the 

court should grant MSC’s Motion for Summary Adjudication as to all counts upon which there is 

no triable issue of fact.

12 Separate and apart from her inability to prove causation, Plaintiff impermissibly attempts to hold 

MSC liable for the actions of an independent contractor. See Amended Complaint (ECF No. 6) at 

Counts 7 and 8. See Medeiros v. NCL (Bahamas) LTD., No. 19-CV-20957, 2020 WL 1308728, at 

*9 (S.D. Fla. Mar. 5, 2020), report and recommendation adopted, No. 19-20957-CIV, 2020 WL 

1307044 (S.D. Fla. Mar. 19, 2020); Smolnikar v. Royal Caribbean Cruises Ltd. (a cruise line 

cannot be held vicariously liable for the negligence of an independent contractor). A vicarious 

liability claim fails when there is no underlying negligence. See Ceithaml v. Celebrity Cruises, 

Inc., 207 F. Supp. 3d 1345, 1355 (S.D. Fla. 2016) (“At the outset, the [c]ourt finds that because 

[plaintiff] failed to state a plausible negligence claim, her ‘apparent agency’ claim also fails.”).

Case 1:20-cv-22463-FAM Document 22 Entered on FLSD Docket 12/28/2020 Page 21 of 23
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Dated: December 28, 2020

Miami, Florida

Respectfully submitted:

MALTZMAN & PARTNERS, P.A.

By: /s/ T. Alexander Devine

Jeffrey B. Maltzman, Esq.

Florida Bar No. 0048860

jeffreym@maltzmanpartners.com

Steve Holman, Esq.

Florida Bar No. 547840

steveh@maltzmanpartners.com

T. Alexander Devine, Esq. 

Florida Bar No. 10052

alexd@maltzmanpartners.com 

55 Miracle Mile Suite 300

Coral Gables, Florida 33134

Tel: 305-779-5665 / Fax: 305-779-5665

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that the foregoing was electronically filed with the Clerk of the 

Court via CM/ECF on this 28th day of December 2020. I also certify that the foregoing was served 

on all counsel or parties of record on the attached Service List either via transmission of Notices 

of Electronic Filing generated by CM/ECF or in some other authorized manner for those counsel 

or parties who are not authorized to receive electronic Notices of Filing. 

 By: /s/ T. Alexander Devine 

 T. Alexander Devine, Esq. 

Case 1:20-cv-22463-FAM Document 22 Entered on FLSD Docket 12/28/2020 Page 22 of 23
22

SERVICE LIST

CASE NO: 20-cv-22463-FAM

Spencer Aronfeld, Esq.

aronfeld@aronfeld.com

Matthias M. Hayashi, Esq.

mhayashi@aronfeld.com

Abby H. Ivey, Esq.

aivey@aronfeld.com

ARONFELD TRIAL LAWYERS

1 Alhambra Plaza, Penthouse

Coral Gables, FL 33134

Phone: 305-441-0440

Fax: 305-441-0198

Attorneys for Plaintiff

Jeffrey B. Maltzman, Esq.

jeffreym@maltzmanpartners.com 

Steve Holman, Esq.

steveh@maltzmanpartners.com

T. Alexander Devine, Esq.

alexd@maltzmanpartners.com

MALTZMAN & PARTNERS, P.A. 

55 Miracle Mile, Suite 300

Coral Gables, FL 33134

Phone: 305-779-5665

 Fax: 305-779-5664

 Attorneys for Defendant

Case 1:20-cv-22463-FAM Document 22 Entered on FLSD Docket 12/28/2020 Page 23 of 23