1

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

Case No. 20-23308-Civ-TORRES

CHRISTOPHER SELFRIDGE, 

Plaintiff,

v.

CARNIVAL CORPORATION, 

Defendant.

______________________________________/

ORDER ON DEFENDANT’S MOTION

FOR SUMMARY JUDGMENT

This matter is before the Court on Carnival Corporation’s (“Defendant”) motion 

for summary judgment against Christopher Selfridge (“Plaintiff”). [D.E. 32]. 

Plaintiff responded to Defendant’s motion on October 4, 2021 [D.E. 47] to which 

Defendant replied on October 26, 2021. [D.E. 59]. Therefore, Defendant’s motion is

now ripe for disposition. After careful consideration of the motion, response, reply, 

relevant authorities, and for the reasons discussed below, Defendant’s motion for

summary judgment is GRANTED in part and DENIED in part.

1

1 On September 17, 2021, the parties consented to the jurisdiction of the 

undersigned Magistrate Judge. [D.E. 36].

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I. BACKGROUND

This is a maritime personal injury action where Plaintiff alleges that he 

sustained injuries as a passenger onboard Defendant’s cruise vessel, the Carnival 

Imagination. [D.E. 1, ¶ 11]. Plaintiff claims that he sustained his injuries as a result

of a defective or malfunctioning glass door and rug. Specifically, Plaintiff alleges that 

on October 12, 2019, as he was entering the library on deck 8 of the Carnival 

Imagination, the glass door that he pulled open to enter the subject area, suddenly 

and abruptly slammed on him, causing Plaintiff to stumble forward and trip on the 

elevated tip of a rug and fall on his left shoulder. Id. As a result of the fall, Plaintiff 

sustained serious injuries, including a severely torn rotator cuff for which he

underwent surgery. Id. Plaintiff had been drinking at the Red Frog Rum Bar prior 

to the incident. [D.E. 32, p. 2].

Plaintiff filed a Complaint against Defendant pleading six counts of negligence: 

negligent hiring and retention (Count I), negligent supervision and training 

(Count II), negligent failure to warn (Count III), negligent design and installation 

(Count IV), vicarious liability for the negligence of crewmembers (Count V), and 

negligent maintenance (Count VI). 

II. APPLICABLE PRINCIPLES AND LAW

The court shall grant summary judgment if the movant shows that there is no 

genuine dispute as to any material fact and the movant is entitled to judgment as a 

matter of law:

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A party asserting that a fact cannot be or is genuinely disputed must 

support the assertion by: (A) citing to particular parts of materials in 

the record, including depositions, documents, electronically stored 

information, affidavits or declarations, stipulations (including those 

made for purposes of the motion only), admissions, interrogatory 

answers, or other materials; or (B) showing that materials cited do not 

establish the absence or presence of a genuine dispute, or that an 

adverse party cannot produce admissible evidence to support the fact.

Fed. R. Civ. P. 56(c)(1). On summary judgment, the inferences to be drawn from the 

underlying facts must be viewed in the light most favorable to the party opposing the 

motion. See Matsushita Electric Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 597 

(1986) (quoting another source). 

In opposing a motion for summary judgment, the nonmoving party may not 

rely solely on the pleadings, but must show by affidavits, depositions, answers to 

interrogatories, and admissions that specific facts exist demonstrating a genuine 

issue for trial. See Fed. R. Civ. P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 323B24 

(1986). The existence of a mere “scintilla” of evidence in support of the nonmovant’s 

position is insufficient; there must be evidence on which the jury could reasonably 

find for the nonmovant. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986). 

That is, a court need not permit a case to go to a jury when the inferences that are 

drawn from the evidence, or upon which the non-movant relies, are implausible. See 

Mize v. Jefferson City Bd. Of Educ., 93 F.3d 739, 743 (11th Cir. 1996) (citing 

Matsushita, 475 U.S. at 592-94). 

At the summary judgment stage, the Court’s function is not to “weigh the 

evidence and determine the truth of the matter but to determine whether there is a 

genuine issue for trial.” Anderson, 477 U.S. at 249. In making this determination, 

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the Court must decide which issues are material. A material fact is one that might 

affect the outcome of the case. See id. at 248 (“Only disputes over facts that might 

affect the outcome of the suit under the governing law will properly preclude the entry 

of summary judgment. Factual disputes that are irrelevant or unnecessary will not 

be counted.”). “Summary judgment will not lie if the dispute about a material fact is 

genuine, that is, if the evidence is such that a reasonable jury could return a verdict 

for the nonmoving party.” Id.

III. ANALYSIS

Defendant seeks summary judgment on all theories of negligence liability 

presented in Plaintiff’s complaint.

2 As to Count Three (failure to warn), Defendant 

says that the alleged dangerous nature of the door and rug was open and obvious,

and that it did not have notice of the danger. [D.E. 32, pp. 7-12]. Regarding Counts 

Four (negligent design) and Six (negligent failure to maintain), Defendant alleges 

that it did not design the door or rug, and that it lacked notice of any danger 

associated with them. Finally, Defendant claims that Count 5 (vicarious liability) 

fails because Plaintiff has failed to demonstrate that Defendant’s employees were 

directly negligent in relation to the subject door and rug. To inform the analysis that 

follows, we first consider the general principles of federal maritime law. 

2 Plaintiff’s Response to Defendant’s Motion for Summary Judgment fails to put 

forth any arguments or cite any authority in support of Counts One and Two, and the 

record is devoid of any evidence suggesting that Defendant was negligent in hiring or 

training its crewmembers. Accordingly, Defendant’s motion for summary judgment 

is Granted on both of these theories of liability.

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A. General Principles of Federal Maritime Law

Federal maritime law governs claims arising from alleged tort actions aboard 

ships sailing in navigable waters. See Keefe v. Bahama Cruise Line, Inc., 867 F.2d

1318, 1320 (11th Cir. 1989). Under federal maritime law, a shipowner has a duty to 

exercise reasonable care to those aboard a vessel who are not members of the crew. 

See Kermarec v. Compagnie Generale Transatlantique, 358 U.S. 625, 630 (1959). 

However, while a shipowner “is not liable to passengers as an insurer, but only for its 

negligence,” this standard of care “requires, as a prerequisite to imposing liability, 

that the carrier have had actual or constructive notice of the risk-creating 

condition.” Keefe, 867 F.2d at 1322. 

To prove negligence, a plaintiff must show: (1) that the defendant had a duty 

to protect the plaintiff from a particular injury, (2) that the defendant breached the 

duty, (3) that the breach was the actual and proximate cause of the plaintiff's injury, 

and (4) that the plaintiff suffered damages. See Chaparro v. Carnival Corp., 693 F.3d

1333, 1336 (11th Cir. 2012). “The failure to show sufficient evidence of each element 

is fatal to a plaintiff's negligence cause of action.” Taiariol v. MSC Crociere, S.A.,

2016 WL 1428942, at *3 (S.D. Fla. Apr. 12, 2016) (citing Isbell v. Carnival Corp., 462

F. Supp. 2d 1232, 1237 (S.D. Fla. 2006) (“Each element is essential to Plaintiff's 

negligence claim and Plaintiff cannot rest on the allegations of [the] complaint in 

making a sufficient showing on each element for the purposes of defeating summary 

judgment.”)). While the Court may rely on state law as a supplement, those principles

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cannot alter or overrule federal maritime law. See Faddish v. Buffalo Pumps, 881 F.

Supp. 2d 1361, 1368 (S.D. Fla. 2012).

B. Whether Defendant Failed to Warn (Count Three)

1. There are Genuine Issues of Fact as to Whether the Alleged 

Danger was Open and Obvious

A cruise ship operator is not liable if the dangerous condition was open and 

obvious. See Plott v. NCL Am., LLC, 786 F. App'x 199, 202 (11th Cir. 2019) (citing 

Keefe, 867 F.2d at 1322). To determine if a condition is open and obvious, the Court 

“ask[s] whether a reasonable person would have observed the condition and 

appreciated the nature of the condition.” See id. at 203 (citations omitted). “A 

dangerous condition is one that is not apparent and obvious to a passenger . . . . The 

mere fact that an accident occurs does not give rise to a presumption that the setting 

of the accident constituted a dangerous condition.” Miller v. NCL (Bah.) Ltd., 2016 

WL 4809347, at *4 (S.D. Fla. Apr. 6, 2016), aff’d, 679 F. App’x 981 (11th Cir. 2017) 

(alteration added; citations omitted). In determining whether a risk is open and 

obvious, we focus on what an objectively reasonable person would observe and do not 

take into account the plaintiff’s subjective perceptions.” Horne v. Carnival Corp., 741 

F. App’x 607, 609 (11th Cir. 2018) (internal quotation marks and citations omitted).

There is evidence in the record that gives rise to genuine issues of fact as to 

whether the alleged dangers associated with the glass door and the rug were open 

and obvious. For starters, the record contains sworn statements from Plaintiff and 

his wife, Tonia Selfridge—an eyewitness who will be available to testify at trial—

indicating that there were no warning signs or visual clues that would have alerted 

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a reasonable person to the alleged dangers. For instance, Plaintiff testified that there 

was nothing unusual about the door at first sight:

Q. All right. Why don’t you tell me what happened, please?

A. We were standing in front of [the door]. And you can see inside of it 

because it’s all glass, and then there’s a big glass door. And there was 

some sign out front. My wife was reading that. And I said, Well, let’s 

go in. So that’s when I opened the door, and I casually walked in. And 

then the door – it’s like somebody pushed me because it just keeps 

swinging back and forth. It doesn’t just go and easily close, and I didn’t 

realize that. So I casually walked in. It felt like somebody pushed me, 

and I went stumbling. I had my flip-flops on. It was tile and then a 

throw rug. When I hit that rug, then I fe[l]l down right on my shoulder. 

[D.E. 30, 92:8-25 (Deposition of Plaintiff)]. Ms. Selfridge also asserted that there were 

no warning signs that would raise an alert as to issues with the door, and that the 

closing range of the door that struck Plaintiff was unlike that of any other door on 

the ship, including the right-hand door that she used to enter the library, and which 

did not swing past the closing point:

I also witnessed my husband open the subject door by pulling it towards 

himself, and then I witnessed the subject door swinging back past the 

center-point on the other side from which it was opened, contrary to 

every door other than this one I encountered on the subject ship, all of 

which did not swing past the center-point. As such, I never would have 

expected that the subject door would have swung past the center-point 

and into the other side as what occurred during my husband’s incident. 

And notably, there were two doors at the entrance where my husband 

and I entered from at the time of the subject incident, my husband 

entered through the door on the left, and I entered on the door to the 

right, but the door on the right that I entered through did not swing past 

the center-point to the other side like the door that hit my husband.

[D.E. 45-1 at ¶ 5 (Declaration of Ms. Selfridge)]. Plaintiff’s expert engineer,

Dr. Francisco De Caso, likewise opined, after reviewing video and photographic 

evidence, that the glass door was not operating properly, as it swung back and forth 

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past the latch position, in contravention of industry standards and safety guidelines. 

[D.E. 41-2, pp. 16-17]. 

Defendant does not allege that there were warning signs or indicators that 

would alert a reasonable person to these alleged dangers. Instead, Defendant first

argues that “[a]ny reasonable person, while pulling open this type of heavy, selfclosing door, would realize that the door would return to its closed position.” [D.E. 32, 

p. 8]. However, this misses the point. The issue is not whether a self-closing door 

would come back to its closed position, but whether it was obvious that it would do so

by swinging back and forth past the latch position, and at the unusually fast speed 

and in the abrupt manner in which Plaintiff alleges it did so.

Defendant also suggests that the fact that Plaintiff had been drinking in the 

hours preceding the incident, in and of itself, makes the alleged dangers associated 

with the glass door and rug open and obvious. This argument is misplaced as 

Defendant has not produced any evidence suggesting that Plaintiff was unable of 

exercising the care a reasonable person would under the circumstances as a result of 

his alcohol consumption. In fact, both Plaintiff and his wife have expressly denied 

that he was intoxicated at the time of the incident:

I have known my husband for over 25 years, I know what he looks like 

when he is intoxicated, and he was not intoxicated at the time of his 

incident. He was speaking to me coherently throughout the day, 

including moments prior to the incident, he was able to see clearly, he 

was moving his body normally prior to his incident, his breath smelled 

normal, and I tried the drinks that my husband was drinking on the 

date of his incident, and they were weak drinks. 

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[D.E. 45-1, ¶ 4]. Under these circumstances, the fact that Plaintiff had some drinks 

prior to the incident is not dispositive of whether the alleged dangers were open and 

obvious. Instead, this may be a potentially relevant facts for the trier of fact in a 

comparative negligence assessment. See Holderbaum v. Carnival Corp., 87 F. Supp. 

3d 1345, 1359 (S.D. Fla. 2015) (“Maritime law recognizes the doctrine of comparative 

negligence[.]”) (citing Smith & Kelly Co. v. S/S Concordia TADJ, 718 F.2d 1022, 1030 

(11th Cir.1983)). Likewise, jurors are better suited than this court to address claims 

that an eyewitness’s assertions are exaggerated or untruthful.3 

Based on this record, and seeing it in the light most favorable to Plaintiff, we 

cannot conclude, as a matter of law, that a reasonably prudent person through the 

exercise of common sense and the ordinary use of her senses would have realized that 

the left-hand door and rug posed the danger Plaintiff is alleging. See Anderson, 477 

U.S. at 249 (“[A]t the summary judgment stage the judge’s function is not himself to 

weigh the evidence and determine the truth of the matter but to determine whether 

there is a genuine issue for trial.”); see, e.g., Aponte v. Royal Caribbean Cruise Lines 

Ltd., 739 F. App'x 531, 537 (11th Cir. 2018) (reversing district court’s finding that a 

3 Defendant asks this court to ignore Ms. Selfridge’s Declaration because its only 

purpose is to create an issue of fact as to whether Plaintiff was intoxicated. That is 

hardly surprising given Plaintiff’s burden under Rule 56. See Celotex, 477 U.S. at 

323B24. But in any event this criticism carries little weight. First, Plaintiff himself 

has expressly denied that he was intoxicated and Defendant does not cite to any 

record evidence showing otherwise. [D.E. 45-2; D.E. 46, p. 1]. Second, Ms. Selfridge’s 

Declaration does more than what Defendant gives it credit for. Among other things, 

Ms. Selfridge provides an eyewitness account of the alleged malfunctioning of the lefthand door that struck her husband and describes its unique closing range vis-à-vis 

all other doors on the ship. [D.E 45-1]. These are facts that a jury may find relevant.

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puddle of soap in a bathroom was open and obvious because plaintiff's testimony that 

the puddle was “clearish” and that he did not see the puddle presented a genuine 

issue of material fact; “the fact that the puddle of soap was capable of being observed 

does not necessarily make it open and obvious to a reasonable person”); Andersen v. 

Royal Caribbean Cruises Ltd., 543 F. Supp. 3d 1346, 1354 (S.D. Fla. 2021) (Bloom, J.) 

(denying summary judgment on open and obvious grounds even where plaintiff 

observed underlying condition); Hoover v. NCL (Bahamas) Ltd., 491 F. Supp. 3d 1254, 

1257 (S.D. Fla. 2020) (same); Carminati v. NCL (Bahamas) Ltd., 2016 WL 7495126, 

at *3 (S.D. Fla. Aug. 11, 2016) (finding plaintiff “narrowly clears the hurdle of 

summary judgment” because, among other things, plaintiff “testified that she was not 

familiar with the area in which she fell, did not know where she was on the ship when 

she approached the doorway, and could not recall using the doorway at issue” prior 

to the incident in question).

2. There are Genuine Issues of Fact as to Whether Defendant 

had Constructive Notice of the Alleged Danger

The Court finds that there is evidence in the record that gives rise to genuine 

issues of material fact as to whether Defendant had constructive notice of the alleged 

dangers associated with the subject door and rug, including evidence suggesting that 

the door and rug departed from industry standards and guidelines, as well as internal 

work orders pertinent to the functioning of the glass door at issue.

Courts in this District have held that non-binding codes, industry standards,

and guidelines can support a showing of constructive notice, see Cook v. Royal 

Caribbean Cruises, Ltd., No. 11-20723-CIV, 2012 WL 1792628, at *4 (S.D. Fla. May 

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15, 2012), particularly so, when taken in conjunction with other record evidence of 

notice. See Andersen v. Royal Caribbean, 543 F. Supp. 3d at 1357 (“[E]vidence that 

an allegedly dangerous condition failed to comply with industry safety standards, 

together with other evidence of notice, can be used to establish constructive notice.”); 

Holderbaum, 87 F. Supp. 3d at 1355 (S.D. Fla. 2015) (“Plaintiff has presented 

evidence that the at-issue stairs violated voluntary safety standards which, although 

non-binding, may be used as evidence of Defendant's constructive knowledge.”); see 

also Donlon v. Gluck Grp., LLC, No. CIV.A. 09-5379 JEI, 2011 WL 6020574, at *6 

(D.N.J. Dec. 2, 2011) (finding that industry standards put defendant “on constructive 

notice of the danger of the stairs”).

Here, Plaintiff has introduced evidence that shows that both the glass door, as 

well as the subject rug, were not in accordance with industry standards. According 

to Plaintiff’s expert engineer, who studied videos, photographs, and measurements of 

the subject door and rug, both the door and rug departed from industry standards, 

guidelines, and codes, including the ADA Standards For Accessible Design (“ADA”),4

the Internal Building Code (“IBC”), the Standard Practice for Safe Walking Surfaces 

(“ASTM”), and a manufacturer installation manual. [D.E. 41-2; D.E. 42-1].

The expert observed that the subject door is equipped with a damping system 

that allows for the adjustment and control of the speed and range of door closure, and 

explained that damping is necessary “to protect users and meet door operational 

requirements based on codes, guides or best practices, as well as other door user 

4 Available at https://www.ada.gov/2010ADAstandards_index.htm.

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requirements.” [D.E. 41-2, p. 16]. According to Dr. De Caso, the “ADA (ADA 2010) 

requires door closers to be adjusted so that from an open position of 90 degrees, the 

time required to move the door to a position of 12 degrees from the latch (or closed 

position) is a minimum of 5 seconds and stop at the latch position. Thus, the door 

should not pass the latch (closed) position.” Id. Despite these guidelines, both 

Dr. De Caso and Ms. Selfridge have looked at video evidence that shows the glass 

door dangerously swinging back and forth past the latch position:

This type of swinging movement shows that the Curiosity library door 

is not operating per the manufacturer’s requirements, going past the 

close position, and is clear evidence that the damping system is either 

not adjusted correctly or malfunctioning, resulting in a defective door 

mechanism. . . . The defective door mechanism resulting in a back-andforth swinging action, as well as a lack of, or inadequate damping level 

can present a dangerous condition to a door user, especially for glass 

doors as found in the Curiosity library, due to the door’s heavy weight.

[D.E. 41-2, p. 17]; [D.E. 45-1, ¶ 8]. 

Similarly, Plaintiff’s expert opined that the subject rug departed from the 

standards and guidelines prescribed by the IBC and ASTM. Specifically, Dr. De Caso 

noted that the rug’s vertical change of the flat floor surface on which it was 

positions—approximately 0.502 inches—violated the IBC, which “establish that 

vertical changes on a flat floor surface cannot exceed the maximum permitted vertical 

change in level of 0.25 inch, due to the dangerous tripping condition it creates as it is 

well known the increased risk in tripping and falling.” [D.E. 41-2, p. 19]. 

Plus, under ASTM F1637 Section 5.2, “changes in levels up to 1⁄4 in. (6 mm) 

may be vertical and without edge treatment; and changes in levels between 1⁄4 and 

1⁄2 in. (6 and 12 mm) shall be beveled with a slope no greater than 1:2 (rise:run),” and 

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Section 5.3 states “the need for carpets on floor to be routinely inspected; as well as 

the need for carpets to firmly secured and seams tightly maintained so as not to create 

a pedestrian hazard.” [D.E. 42-1, p. 2]. Accordingly, rugs that exceed these 

thresholds are generally equipped with an edge treatment or edge profile that 

smoothens the transition from flat surface to rug; this was the case with the rug 

immediately outside the glass door that Plaintiff entered, but not with the rug inside 

the subject area where Plaintiff tripped and fell. [D.E. 41-2, pp. 18, 24-27]. 

Defendant takes issue with Plaintiff’s constructive notice theory, arguing that 

the cases cited by Plaintiff do not support the proposition that industry standards can 

be probative of constructive notice. [D.E. 59, p. 5 (relying on Francis v. MSC Cruises, 

S.A., 546 F. Supp. 3d 1258 (S.D. Fla. 2021)]. But Defendant is wrong about this. As 

noted above, several courts in this District and others have reached that conclusion. 

See, e.g., Cook, 2012 WL 1792628 at *4 (“[T]he Court finds that this draft could be 

evidence relating to the applicable standard of care and notice.”) (emphasis added);

Andersen, 543 F. Supp. 3d at 1357 (“[E]vidence that an allegedly dangerous condition 

failed to comply with industry safety standards, together with other evidence of 

notice, can be used to establish constructive notice.”) (emphasis added); Holderbaum, 

87 F. Supp. 3d at 1355 (“Plaintiff has presented evidence that the at-issue stairs 

violated voluntary safety standards which, although non-binding, may be used as 

evidence of Defendant's constructive knowledge.”) (emphasis added); Holley v. 

Carnival Corp., No. 1:20-CV-20495, 2021 WL 5371507, at *7 (S.D. Fla. Nov. 18, 2021) 

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(“[T]he Court notes [that] several cases . . . have long established that industry 

standards may put a defendant on notice of dangerous conditions.”) (emphasis added).

Second, the Court notes that Francis, on which Defendant relies, is 

distinguishable for a number of reasons. Unlike our case, Francis expressly noted 

that the Plaintiff there was not invoking a failure to warn claim, and that the record 

was devoid of evidence showing that crewmembers had inspected the subject area 

prior to the incident. See Francis, 546 F. Supp. 3d at 1264 n. 4; [D.E. 32, p. 12] 

(“Carnival crewmembers inspected daily the allegedly defective doors and library[.]”) 

More importantly, unlike the case at hand, the Francis plaintiff failed to produce 

record evidence, “other than a cruise line’s failure to follow industry standards, that 

created a genuine dispute of material fact as to whether [defendant] . . . was on notice 

of the alleged dangerous condition.” Id. at 1263.

On the other hand, here, in addition to evidence suggesting departure from 

industry standards, Plaintiff has also introduced internal Work Orders issued by 

Defendant’s crew members that discuss issues with the glass door. Although several 

of the cited Work Orders are not so relevant, at least two of them appear pertinent to 

the door’s alleged malfunctioning, and were issued several months prior to the 

incident. One of the work orders reports a “HIGH” priority issue with the glass door:

“dk 8 library door to D/R scruched [sic].” [D.E. 45-5]. Similarly, the second Work 

Order also reports a “HIGH” priority issue with the door, involving problems with the 

glass door’s opening and closing: “LIBRARY DOOR LOCKED CANNOT 

OPEN/CLOSE PROPERLY.” [D.E. 45-6]. 

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Defendant claims that Plaintiff misconstrues the significance of these orders, 

highlighting that they do not specifically report issues involving the door’s hinges or 

its closing force or range. However, in the Court’s view, a reasonably jury may find 

that Work Orders involving high priority noises coming from the door, as well as 

improper opening and closing of the door, are pertinent to the alleged malfunctioning 

of the door. For instance, a reasonable jury may conclude that both the scrunch and 

improper closing of the door reported in these work orders were indeed related to 

issues with the door’s hinges or damping mechanism and, as such, Defendant should 

have been aware of the alleged danger. See Rioux v. City of Atl., 520 F.3d 1269, 1274 

(11th Cir. 2008) (A court “must view all the evidence and all factual inferences 

reasonably drawn from the evidence in the light most favorable to the non-moving 

party, and must resolve all reasonable doubts about the facts in favor of the nonmovant.”) (quotation marks and citations omitted). 

Defendant also disputes whether the industry standards cited by Plaintiff in 

fact require that doors do not swing past the latch point or that rugs, such as the 

subject rug, are equipped with an edge profile. But based on a review of those 

standards and Dr. De Caso’s opinion, as well as the photographs and measurements 

attached therein, we find that there is sufficient evidence to create a genuine issue of 

material fact about Carnival’s constructive knowledge of the dangerous condition 

associated with the subject door and rug. The court notes that Defendant does not 

deny that only one of the two glass doors—the left-hand door that struck Plaintiff—

swung past the latch position, and that it did so at an unusually fast speed and in an 

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abrupt manner. [D.E. 47, p. 1; D.E. 41-2, p. 18]. Likewise, Defendant does not deny 

that the rug immediately outside the glass door was equipped with an edge treatment 

whereas the one in which Plaintiff tripped did not. 

Finally, the Court is unpersuaded by Defendant’s claim that the cited industry 

standards and guidelines are irrelevant in this case because they may not always 

apply to cruise ships—a proposition for which Defendant does not cite any authority. 

While this argument could hold water under a different fact pattern, here, “Plaintiff's 

allegations of negligence do not concern conditions unique to maritime travel.” Cook, 

2012 WL 1792628 at *2. In this case, Plaintiff suffered injury after opening an 

allegedly defective glass door connecting two indoor spaces. The door allegedly

pushed him forward, causing him to stumble and trip on a rug that Defendant had 

placed on the floor. This case did not involve the effects of waves, rain, or navigation 

equipment; rather, “the [alleged] menace is one commonly encountered on land and 

not clearly linked to nautical adventure.” Keefe, 867 F.2d at 1322. Accordingly, the 

Court finds that industry standards and codes aimed at ensuring pedestrian safety

in both indoor and outdoor spaces are relevant here.

Based on this record, and seeing it in the light most favorable to Plaintiff, we 

conclude that Plaintiff has produced evidence sufficient to show a genuine issue of 

material fact about Defendant’s knowledge of the alleged dangerous condition. 

Accordingly, an entry of summary judgment on Count Three is inappropriate.

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C. Whether Defendant Negligently Designed or Approved the 

Subject Door and Rug (Count Four)

In support of its claim that Defendant negligently designed or approved the 

design of the door and rug, Plaintiff cites to four relevant lines in the deposition of 

Ms. Suzanne Vazquez, Defendant’s corporate representative: “Q. Who installed the 

subject rugs? A. I mean, it was installed in a dry dock either in 2012 or 2019, and 

that would have been by either contractors or employees for Carnival.” [D.E. 31, 

27:9-12]. In Plaintiff’s view, these statements, in combination with three cited 

purchase orders [D.E. 45-7-9], constitute abundant evidence that “defendant 

approved the negligent design of the rug at issue.” [D.E. 47, p. 12]. The Court 

disagrees.

Liability based on negligent design requires proof that the ship-owner or 

operator “actually created, participated in or approved” the alleged improper design. 

Groves v. Royal Caribbean Cruises, Ltd., 463 Fed. Appx. 837, 837 (11th Cir. 2012) 

(affirming summary judgment where plaintiff presented no evidence of the cruise 

line's actual involvement in the design of the area of injury).

Plaintiff cites to one single case in support of its claim that Ms. Vasquez’s 

meager statements constitute prove that Defendant designed or approved the designs 

of the subject rug, but we find that case distinguishable. [D.E. 47, p. 12]. In Hoover, 

a case dealing with the design of a staircase, the court found that defendant’s 

corporate representative “skirted around providing a direct answer as to whether 

NCL approved the design in question,” and that these elusive answers could lead a 

jury to find that defendant did in fact approve the design. See Hoover v. NCL 

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(Bahamas) Ltd., 491 F. Supp. 3d 1254, 1257 (S.D. Fla. 2020). Unlike the deponent in 

Hoover, however, Ms. Vazquez answered a question about the installation of the rug, 

not about its design or Defendant’s participation therein, and her answer was clear 

and straight forward. Plaintiff has not pointed to additional excerpts of

Ms. Vasquez’s deposition suggesting that she was elusive about questions involving 

Defendant’s direct involvement in or approval of the rug’s design, and this Court has 

not found any. 

Likewise, Plaintiff has failed to produce any other evidence suggesting that 

Defendant approved the rug’s design. Accordingly, Defendant’s motion for summary 

judgment on Count Four is Granted. See Diczok v. Celebrity Cruises, Inc., 263 F. Supp. 

3d 1261, 1264 (S.D. Fla. 2017) (granting summary judgment where deponent 

suggested that defendant had the ability to participate in and approve the alleged 

design, because her statements did not show actual participation or approval)

(emphasis added); Milbrath v. NCL Bahamas, Ltd., No. 1:17-CV-22071-UU, 2018 WL 

2021344, at *6 (S.D. Fla. Mar. 8, 2018) (holding that deponent’s statement “did not 

constitute evidence that Defendant actually designed, participated in or approved of 

the design of the ship[.]”); Atkinson v. Carnival Corp., No. 20-20317-CIV, 2022 WL 

426455, at *8 (S.D. Fla. Feb. 1, 2022), report and recommendation adopted in part, 

No. 20-20317-CIV, 2022 WL 405366 (S.D. Fla. Feb. 10, 2022) (finding that work 

orders showing that defendant replaced the subject tiles were “insufficient to 

establish the essential element that Defendant actually created, participated in or 

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approved the design of the Cucina del Capitano's floor”) (quotation marks and 

citations omitted).

D. Whether Defendant is Liable Under Vicarious Liability (Count

Five)

In Count Five of his complaint, Plaintiff alleges that Defendant is liable for 

the negligent acts of crewmembers in charge of maintaining, inspecting, and fixing

the subject door and rug. “To prove negligence under common law, a plaintiff must 

show that (1) the tortfeasor had a duty to protect the plaintiff from a particular injury, 

(2) the tortfeasor breached that duty, (3) the breach actually and proximately caused 

the plaintiff's injury, and (4) the plaintiff suffered actual harm.” Yusko v. NCL 

(Bahamas), Ltd., 4 F.4th 1164, 1167–68 (11th Cir. 2021).

Plaintiff has failed to articulate clear arguments in his response to Defendant’s 

claim that it is entitled to summary judgment on this count. Instead, Plaintiff 

confusingly concludes that his claim for vicarious liability should survive summary 

judgment because, under Yusko, a Plaintiff need not prove notice to establish this 

theory of liability. See [D.E. 47, pp. 10-11]. However, as Defendant points out, under 

Yusko a plaintiff still needs to prove the essential elements of negligence on the part 

of an employee in order to trigger vicarious liability. See Yusko, 4 F.4th at 1167–68. 

Plaintiff has failed to do this. 

Moreover, Yusko is inapposite here. In Yusko, the Plaintiff was not only able 

to point to the particular employee whose actions caused her injury, but she also 

demonstrated how the employee’s actions breached the duty of care he owed her. See 

id. at 1166 (noting that professional dancer employed by defendant breached his duty 

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of reasonable care when he let go of her hand amidst the execution of a dance move). 

Here, by contrast, Plaintiff cites to the same four lines in Ms. Vasquez deposition

discussed above regarding the installation of the rug. [D.E. 47, p. 11]. While 

Ms. Vasquez’s statement may establish that Defendant’s employee or agent 

participated in the installation of the rug, “[i]t does not simultaneously lift Plaintiff 

over the second hurdle: submitting sufficient evidence that the employee was 

negligent.” Hodson v. MSC Cruises, S.A., No. 20-22463-CIV, 2021 WL 3639752, at 

*13 (S.D. Fla. Aug. 2, 2021), report and recommendation adopted, No. 20-22463-CIV, 

2021 WL 3634809 (S.D. Fla. Aug. 16, 2021). Therefore, Defendant’s motion for 

summary judgment on Count Five is also due to be Granted. See Isbell v. Carnival 

Corp., 462 F. Supp. 2d 1232, 1237 (S.D. Fla. 2006) (“Each element is essential to 

Plaintiff's negligence claim and Plaintiff cannot rest on the allegations of [the] 

complaint in making a sufficient showing on each element for the purposes of 

defeating summary judgment.”); Mann v. Carnival Corp., 385 F. Supp. 3d 1278, 1288 

(S.D. Fla. 2019), report and recommendation adopted, No. 18-21364-CIV, 2019 WL 

2254963 (S.D. Fla. May 8, 2019) (“A principal cannot be held vicariously liable if a 

claim for negligence cannot be stated against its purported agent.”). 

E. Whether Defendant is Liable for Negligent Maintenance (Count 

Six)

Finally, in Count Six Plaintiff claims that Defendant is liable for failing to 

properly maintain or repair the subject door and rug. Defendant’s only argument 

against this count is that Plaintiff cannot show notice by Defendant of the alleged 

danger. [D.E. 32, p. 15]. However, as detailed above, see Section B(2) supra, the 

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record contains abundant evidence, including industry standards and internal work 

orders, that create a genuine issue of material fact as to whether Defendant was on 

constructive notice of the alleged dangerous condition. See Atkinson, 2022 WL 

426455 at *8 (S.D. Fla. Feb. 1, 2022) (denying summary judgment on negligent 

maintenance claim where the record contained evidence of constructive notice).

Therefore, Defendant is not entitled to summary judgment on Count Six.

IV. CONCLUSION

For the foregoing reasons, it is hereby ORDERED AND ADJUDGED that 

Defendant’s motion for summary judgment [D.E. 32] is GRANTED in part and

DENIED in part:

A. Defendant’s motion for summary judgment is DENIED as to the alleged 

negligent failure to warn and negligent maintenance claims (Counts 

Three and Six). These claims will be presented to the jury at trial.

B. In all other respects and all the other counts of the complaint, 

Defendant’s motion for summary judgment is GRANTED.

DONE AND ORDERED in Chambers at Miami, Florida, this 16th day of 

March, 2022.

/s/ Edwin G. Torres 

EDWIN G. TORRES

United States Magistrate Judge

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