UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

Case No. 20-cv-22783-BLOOM/Louis

KATHRYN BIRREN and 

MANDY BIRREN,

Plaintiffs,

v.

ROYAL CARIBBEAN CRUISES, LTD.,

Defendant.

__________________________________/

ORDER ON MOTION FOR SUMMARY JUDGMENT

THIS CAUSE is before the Court upon Defendant Royal Caribbean Cruises, Ltd.’s

(“Defendant”) Motion for Summary Judgment, ECF No. [90] (“Motion”), along with its 

corresponding Statement of Material Facts, ECF No. [89] (“SMF”). Plaintiffs filed a Response in 

Opposition to the Motion, ECF No. [104] (“Response”), and their Opposition to the SMF, ECF 

No. [105]. Defendant replied to Plaintiffs’ Response, ECF No. [115] (“Reply”). The Court has 

carefully considered the Motion, all opposing and supporting submissions, the record in the case, 

the applicable law, and is otherwise fully advised. For the reasons set forth below, the Motion is 

granted in part and denied in part.

I. BACKGROUND

Plaintiffs initiated this maritime personal injury action against Defendant on July 7, 2020. 

ECF No. [1]. Plaintiffs thereafter filed their First Amended Complaint, ECF No. [8] (“Amended 

Complaint”). The Amended Complaint asserts the following nine counts against Defendant: Count 

I – Negligent Hiring and Retention; Count II – Negligent Supervision and Training; Count III –

Negligent Failure to Warn of Dangerous Conditions; Count IV – Negligent Design, Installation, 

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and/or Approval of the Subject Area and the Vicinity; Count V – Negligence Against Defendant 

for the Acts of its Crewmembers Based on Vicarious Liability; Count VI – Negligent Failure to 

Inspect, Clean, Maintain, Repair, Remedy, and/or Take Other Reasonable Measures for the Safety 

of Plaintiffs; Count VII – Vicarious Liability Against Defendant for the Negligence of the Ship’s 

Medical Staff; Count VIII – Apparent Agency as to Defendant for the Acts of the Ship’s Medical 

Staff; and Count IX – Assumption of Duty as to Defendant for the Negligence of the Ship’s 

Medical Staff. See generally ECF No. [8]. 

On December 22, 2021, Defendant filed the instant Motion, ECF No. [90], along with its 

corresponding SMF, ECF No. [89], seeking summary judgment in its favor as to all of Plaintiffs’

claims. See ECF No. [90]. 

II. MATERIAL FACTS

Based on the Parties’ briefings and the evidence in the record, the following facts are not 

genuinely in dispute unless otherwise noted.

Plaintiffs were passengers aboard Defendant’s vessel Harmony of the Seas on September 

7, 2019. See ECF Nos. [89] ¶ 1; [105] ¶ 1. Plaintiffs claim to have suffered injuries when an 

elevator door on the vessel struck Plaintiff Kathryn Birren, who then collided with her daughter, 

Plaintiff Mandy Birren. See ECF Nos. [89] ¶ 2; [105] ¶ 2; see also ECF No. [73] (notice of 

conventional filing of CCTV footage showing, among other things, that the elevator door sensors 

did not re-open the elevator doors when Plaintiffs exited the elevator). Plaintiffs were on the 

subject elevator approximately five (5) minutes before the incident. See ECF Nos. [89] ¶ 3; [105] 

¶ 3. Plaintiff Kathryn Birren testified that, when she was on the elevator prior to the incident, both 

she and her daughter noticed the elevator doors acting in a “weird” manner, ECF No. [104-1] at 

63, and told other passengers about issues concerning the elevator doors, ECF No. [89-1] at 7. She 

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specifically testified that “what we [Kathryn and Mandy Birren] had noticed was that the elevator 

door was closing too quickly, but that the sensor seemed to be very sensitive. In fact, we stated it 

to another couple in the elevators, ‘Well, the sensor is working really well; it gets out of everyone’s 

way.’” See ECF Nos. [89] ¶ 6; [105] ¶ 4.

Non-party Kone is the manufacturer of the elevator in question. See ECF Nos. [89] ¶ 18; 

[105] ¶ 18. Kone installed the subject elevator. See ECF Nos. [89] ¶ 19; [105] ¶ 19. Kone continues 

to inspect the elevator on a yearly basis. See ECF Nos. [89] ¶ 19; [105] ¶ 19. Kone inspected the 

subject elevator on August 24, 2019, less than a month prior to the alleged incident. See ECF No. 

[89] ¶ 24.

1

The Parties dispute whether there is evidence of substantially similar prior incidents. 

Plaintiffs argue that there are twenty-seven (27) prior incidents that are substantially similar to 

Plaintiffs’ incident. See ECF No. [105] ¶ 17. Defendant argues there are no prior incidents 

involving the subject elevator, see ECF No. [89] ¶ 17, and seeks to exclude the prior incidents in 

its Motion in Limine on the grounds that they are not substantially similar, see ECF No. [88] at 2-

4. For reasons stated in the Court’s separate Order on Defendant’s Motion in Limine, the Court 

considers the prior incidents to be substantially similar and admissible for the limited purpose of 

demonstrating that Defendant had constructive notice of the dangerous condition associated with 

the subject elevator. See ECF No. [123] As such, for the purposes of addressing Defendant’s instant 

Motion, the Court determines that there is evidence of substantially similar prior incidents.

1 Plaintiffs “dispute[]” Defendant’s statement that Kone inspected the elevator less than one month prior to 

the incident. ECF No. [105] ¶ 24. However, Plaintiffs “dispute[]” the statement by referring to Plaintiffs’ 

prior paragraph which states that Plaintiffs’ expert determined that the elevator inspections violated industry 

standards. Id. As such, Plaintiffs do not meaningfully dispute the timing of the inspection.

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III. LEGAL STANDARD

A court may grant a motion for 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.” 

Fed. R. Civ. P. 56(a). The parties may support their positions by citations to materials in the record, 

including, among other things, depositions, documents, affidavits, or declarations. See Fed. R. Civ. 

P. 56(c). An issue is genuine if “a reasonable trier of fact could return judgment for the non-moving 

party.” Miccosukee Tribe of Indians of Fla. v. United States, 516 F.3d 1235, 1243 (11th Cir. 2008) 

(quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986)). A fact is material if it 

“might affect the outcome of the suit under the governing law.” Id.

A court views the facts in the light most favorable to the non-moving party, draws “all 

reasonable inferences in favor of the nonmovant and may not weigh evidence or make credibility 

determinations, which ‘are jury functions, not those of a judge.’” Lewis v. City of Union City, Ga., 

934 F.3d 1169, 1179 (11th Cir. 2019) (quoting Feliciano v. City of Miami Beach, 707 F.3d 1244, 

1252 (11th Cir. 2013)); Davis v. Williams, 451 F.3d 759, 763 (11th Cir. 2006); see also Crocker 

v. Beatty, 886 F.3d 1132, 1134 (11th Cir. 2018) (“[W]e accept [the non-moving party’s] version 

of the facts as true and draw all reasonable inferences in the light most favorable to him as the nonmovant.”). “The mere existence of a scintilla of evidence in support of the [non-moving party’s] 

position will be insufficient; there must be evidence on which a jury could reasonably find for the 

[non-moving party].” Anderson, 477 U.S. at 252. “If more than one inference could be construed 

from the facts by a reasonable fact finder, and that inference introduces a genuine issue of material 

fact, then the district court should not grant summary judgment.” Bannum, Inc. v. City of Fort 

Lauderdale, 901 F.2d 989, 996 (11th Cir. 1990). The Court does not weigh conflicting evidence. 

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See Skop v. City of Atlanta, Ga., 485 F.3d 1130, 1140 (11th Cir. 2007) (quoting Carlin Comm’n, 

Inc. v. S. Bell Tel. & Tel. Co., 802 F.2d 1352, 1356 (11th Cir. 1986)).

The moving party shoulders the initial burden to demonstrate the absence of a genuine 

issue of material fact. Shiver v. Chertoff, 549 F.3d 1342, 1343 (11th Cir. 2008). If a movant satisfies 

this burden, “the nonmoving party ‘must do more than simply show that there is some metaphysical 

doubt as to the material facts.’” Ray v. Equifax Info. Servs., LLC, 327 F. App’x 819, 825 (11th Cir. 

2009) (quoting Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986)). 

Instead, “the non-moving party ‘must make a sufficient showing on each essential element of the 

case for which he has the burden of proof.’” Id. (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 

322 (1986)). The non-moving party must produce evidence, going beyond the pleadings, and by 

its own affidavits, or by depositions, answers to interrogatories, and admissions on file, designating 

specific facts to suggest that a reasonable jury could find in the non-moving party’s favor. Shiver, 

549 F.3d at 1343. Yet, even where a non-moving party neglects to submit any alleged material 

facts in dispute, a court must still be satisfied that the evidence in the record supports the 

uncontroverted material facts proposed by the movant before granting summary judgment. Reese 

v. Herbert, 527 F.3d 1253, 1268-69, 1272 (11th Cir. 2008); United States v. One Piece of Real 

Prop. Located at 5800 S.W. 74th Ave., Mia., Fla., 363 F.3d 1099, 1103 n.6 (11th Cir. 2004). 

Indeed, even “where the parties agree on the basic facts, but disagree about the factual inferences 

that should be drawn from those facts,” summary judgment may be inappropriate. Warrior 

Tombigbee Transp. Co., Inc. v. M/V Nan Fung, 695 F.2d 1294, 1296 (11th Cir. 1983).

IV. DISCUSSION

In the Motion, Defendant argues that summary judgment is warranted for five reasons: (1) 

Defendant had no duty to warn Plaintiffs of an open and dangerous condition; (2) Plaintiffs’ claims 

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for negligent design, installation, and/or approval of the subject area fail as a matter of law; (3) 

Plaintiffs’ claims for vicarious liability for the negligence of the medical staff, apparent agency for 

the acts of the medical staff, and assumption of duty fail as a matter of law; (4) Plaintiffs fail to 

establish any evidence supporting their claims for negligent hiring and retention of its 

crewmembers, training and supervision of its crewmembers, and vicarious liability of its

crewmembers; and (5) Plaintiffs have not established that Defendant had actual or constructive 

notice of the alleged risk-creating condition. See ECF No. [90]. Plaintiffs take the contrary position 

on Defendant’s arguments and contend that there are genuine issues of material fact that preclude 

summary judgment. See generally ECF No. [104]. Specifically, Plaintiffs argue that (1) Plaintiffs 

have abundant evidence of notice; (2) whether the dangerous condition is open and obvious is a 

fact issue that cannot be decided on summary judgment and Defendant is not entitled to summary 

judgment on Plaintiffs’ failure to warn claims; (3) Plaintiffs have sufficient evidence of 

Defendant’s approval of the design of the subject elevator; and (4) Plaintiffs have sufficient 

evidence of notice of negligent hiring, retention, training, and supervision. See id. The Court 

considers each of Defendant’s arguments in turn.

a. Negligent Failure to Warn (Count III)

In Count III, Plaintiffs claim that Defendant was negligent in failing to warn them of a 

dangerous condition. See ECF No. [8] at 14-16. Defendant first argues that the dangerous condition

– namely, the elevator door closing unusually fast – was open and obvious. See ECF No. [90] at 

5.2 According to Defendant, Plaintiff Kathryn Birren’s testimony states that both she and her 

daughter knew that the elevator door was closing unusually fast and acknowledged the dangerous 

2 Elsewhere, Defendant argues that it did not have actual or constructive notice of the dangerous condition, 

which is another element for the negligence claim in Count III. See ECF No. [90] at 13-16. The Court 

addresses Defendant’s argument that it did not have actual or constructive notice in a separate subsection 

below.

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condition to other passengers. See ECF No. [90] at 5-6 (quoting ECF No. [89-1] at 7). Therefore, 

Defendant claims that it did not have a duty to warn of the supposedly dangerous condition that 

Plaintiffs were fully aware of and had previously acknowledged. See id. Plaintiffs respond that the 

issue of whether the dangerous condition was open and obvious is an issue of fact that cannot be 

disposed at summary judgment. See ECF No. [104] at 11-12. In its Reply, Defendant fails to 

address Plaintiffs’ contention that whether the dangerous condition was open and obvious is not 

proper on summary judgment. See ECF No. [115] at 8-9.3

The Court agrees with Plaintiffs. The Eleventh Circuit determined in Johns v. Pettibone 

Corp., 769 F.2d 724, 726 (11th Cir. 1985), that “the issue of openness and obviousness of the 

danger is a fact issue which cannot be disposed of by summary judgment.” Furthermore, the 

Eleventh Circuit has stated that:

[T]he Third Restatement of Torts treats the open and obvious nature of a dangerous 

condition as a factor to be considered in a comparative fault analysis—not as a bar 

to liability for negligently maintaining premises. As the Third Restatement of Torts 

notes, a contrary rule that would preclude liability because a risk is open and 

obvious would sit[] more comfortably—if not entirely congruently—with the older 

rule of contributory negligence as a bar to recovery. We think the approach of the 

Third Restatement of Torts is consistent with maritime tort principles, and we adopt 

it.

Carroll v. Carnival Corp., 955 F.3d 1260, 1268-69 (11th Cir. 2020) (citation and internal quotation 

marks omitted). Because the jury is to analyze comparative fault and because the open and obvious 

3 Plaintiffs also claim that Defendant’s argument regarding the open and obvious doctrine is directed 

exclusively at Plaintiff Kathryn Birren and fails to consider Plaintiff Mandy Birren. See ECF No. [104] at 

13. However, as noted above, Defendant quotes Plaintiff Kathryn Birren’s testimony which indicates that 

both she and her daughter knew that the elevators were moving faster than normal and that they told other 

passengers about the dangerous condition. See ECF No. [90] at 6 (quoting ECF No. [89] ¶ 4). Therefore, 

Defendant’s argument is not directed exclusively at Plaintiff Kathryn Birren. As a final note, Plaintiffs

dispute paragraph 4 of Defendant’s SMF but do not materially contest that Plaintiff Kathryn Birren did 

testify as such. See ECF No. [105] ¶ 4 (quoting ECF No. [104-1] at 82).

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nature of the dangerous condition is one factor to be considered in the jury’s analysis of 

comparative fault, Defendant’s argument is unavailing.

Further, although Defendant cites several cases in which courts dismissed negligence 

claims at summary judgment because the courts found that the danger was open and obvious, those 

cases are inapposite. See ECF No. [90] at 6-9 (citing John Morrell & Co. v. Royal Caribbean 

Cruises, Ltd., 534 F.Supp.2d 1345 (S.D. Fla. 2008); Taiariol v. MSC Crociere, S.A., No. 0:15-cv61131-KMM, 2016 WL 1428942, at *3 (S.D. Fla. Apr. 12, 2016), aff’d, No. 16-12357, 2017 WL 

382316 (11th Cir. Jan. 27, 2017); Lombardi v. NCL (Bahamas) Ltd., No. 15-20966-CivCOOKE/TORRES, 2016 WL 1429586 (S.D. Fla. Apr. 12, 2016); Coto v. Hyannis Air Serv., Inc., 

No. CIV. 2005-191, 2008 WL 5632264, at *6 (D.V.I. Jan. 31, 2008); Cremeans ex rel. Cremeans 

v. Speedway SuperAmerica, LLC, No. CIV.A. 04-343-KSF, 2005 WL 1883662, at *5 (E.D. Ky. 

2005). The dangerous conditions in those cases were so open and obvious that the courts 

determined that the defendants were entitled to summary judgment in their favor without any fault 

being assigned to them.

In this case, however, the record evidence indicates that the full extent of the dangerous 

condition was not open and obvious. Plaintiff Kathryn Birren specifically testified that, although 

the elevator door was closing faster than usual, she noticed that the sensors on the elevator door 

were very sensitive so there was no risk of getting hit by the elevator door. See ECF No. [104] at 

13 (quoting ECF No. [104-1] at 82). Unfortunately, the sensors did not operate in a sensitive 

manner and re-open the door when Plaintiffs allegedly sustained their injuries. See ECF No. [73]. 

The dangerous condition, therefore, was not only that the elevator door closed too fast or too soon, 

but also that the sensors did not always react in a sensitive manner to re-open the door. Plaintiff 

Kathryn Birren’s testimony does not establish that she knew the full extent of the dangerous 

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condition – namely, that the elevator sensors were not always working properly to re-open the 

unusually fast elevator door. Therefore, Plaintiffs have set forth sufficient evidence to suggest that 

the danger was not so open and obvious or known to Plaintiffs as to preclude any finding of fault 

for Defendant. As such, Defendant’s first argument is unpersuasive.

b. Negligent Design, Installation, and/or Approval of Elevator (Count IV)

In Count IV, Plaintiffs allege that Defendant was negligent in the design, installation, 

and/or approval of the subject elevator. See ECF No. [8] at 16-19. Defendant argues that it cannot 

be held liable for the negligent design, installation, or approval of the elevator because Kone 

manufactured and installed the elevator. See ECF No. [90] at 8. Plaintiffs argue that Plaintiffs have

provided sufficient evidence to raise a genuine issue of material fact as to whether Defendant was 

negligent in the design, installation, or approval of the elevator, in part, because Plaintiffs’ expert 

Mr. Hanson states in his expert report that Defendant approved an elevator design that did not 

include the Kone Mobile application. See ECF No. [104] at 14 (citing ECF No. [104-7] at 7). The 

Kone Mobile application would have provided Defendant real-time maintenance notifications 

about the elevator and alerted Defendant of the dangerous condition. See id. Defendant fails to 

address Plaintiff’s Kone Mobile application argument in its Reply. See ECF No. [115] at 9-10.

The Court agrees with Plaintiffs. As a preliminary matter, the Court notes that Defendant 

seeks to strike Mr. Hanson in its Daubert Motion. See ECF No. [94]. For reasons stated in the 

Court’s Order on the Daubert Motions, the Court determined that Mr. Hanson’s testimony is

admissible. See ECF No. [119] at 20-21. As such, for the purposes of this Motion, the Court 

considers Mr. Hanson’s expert report as a part of the record evidence. In addition, the Court 

determines that Defendant’s decision to forego the use of the Kone Mobile application when 

approving the elevator could logically be considered a part of the design, installation, or approval

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of the subject elevator. Therefore, Plaintiffs raise a genuine issue of material fact as to whether 

Defendant was negligent in the design, installation, or approval of the elevator.

Although Defendant cites several cases in support of its contention that Defendant cannot 

be liable for negligent design, installation, or approval because it did not actively participate in the 

design of the elevator, the cited cases are distinguishable from the instant case. See ECF Nos. [90] 

at 8-10 (citing Rodgers v. Costa Crociere, S.P.A., No. 08-60233, 2009 WL 10666976, *12 (S.D. 

Fla. July 6, 2009); aff’d 410 F. App’x. 210, 212 (11th Cir. 2010); Mendel v. Royal Caribbean 

Cruises, Ltd., No. 10-23398-CIV, 2012 WL 2367853, *3 (S.D. Fla. June, 21, 2012); Cornish v. 

Renaissance Hotel Operating Co., No. 8:06-CV-1722-T-27EAJ, 2008 WL 1743861 (M.D. Fla. 

Apr. 15, 2008)); [115] at 9-10 (citing Davis v. Spirit of New Jersey, No. Civ.96-4992(JCL), 1999 

WL 33263861 at *1 (D.N.J. May 5, 2000); Diczok v. Celebrity Cruises, Inc., 263 F. Supp. 3d 1261, 

1264 (S.D. Fla. 2017); Gordon v. NCL (Bahamas) Ltd., No. 18-cv-22334-KMM, 2019 WL 

1724140 (S.D. Fla. Apr. 15, 2019)). Unlike the cited cases, where the defendants did not participate 

in the design, installation, or approval of the dangerous condition, Plaintiffs in this case set forth 

sufficient evidence that Defendant participated in the design, installation, or approval of the 

elevator when it decided to forego the Kone Mobile application. Therefore, Defendant’s second 

argument is unavailing. The Court need not address Plaintiffs’ other arguments.

c. Negligence of Defendant’s Medical Staff (Counts VII, VIII, & IX)

In Counts VII, VIII, and IX, Plaintiffs assert vicarious liability for the negligence of the 

ship’s medical staff, apparent agency for the acts of the ship’s medical staff, and assumption of 

duty for the negligence of the ship’s medical staff. See ECF No. [8] at 23-34. Defendant argues 

that Plaintiffs fail to provide any record evidence about Plaintiffs’ medical treatment falling below 

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the standard for a shipboard medical staff. See ECF No. [90] at 10-11. Plaintiffs do not address 

Defendant’s argument in their Response. See ECF No. [104] at 15-16.4

The Court agrees with Defendant. As Defendant correctly argues, the Eleventh Circuit has 

determined that “[f]or factual issues to be considered genuine, they must have a real basis in the 

record.” ECF No. [90] at 11 (quoting Mann v. Taser Int’l, Inc., 588 F.3d 1291, 1303 (11th Cir. 

2009) (citation omitted)). In this case, Plaintiffs fail to offer any real basis for their claims against 

Defendant regarding Defendant’s medical staff. Plaintiffs must produce evidence and point to 

specific facts to suggest that a reasonable jury could find in Plaintiffs’ favor. See Shiver, 549 F.3d 

at 1343. Because Plaintiffs have failed to do so for their claims regarding Defendant’s medical 

staff, Defendant is entitled to summary judgment as to Counts VII, VIII, and IX.

d. Negligence of Defendant’s Crewmembers (Counts I, II, & V)

In Counts I, II, and V, Plaintiffs assert against Defendant negligent hiring and retention, 

negligent supervision and training, and vicarious liability for the acts of Defendant’s 

crewmembers. See ECF No. [8] at 6-14, 19-21. Defendant argues that to be liable for negligent 

hiring and retention, Plaintiffs must show that Defendant knew or reasonably should have known 

of its crewmembers’ incompetence or unfitness, and the incompetence or unfitness must have 

proximately caused Plaintiffs’ injuries. See ECF No. [90] at 11 (citing Gayou v. Celebrity Cruises, 

Inc., No. 11-23359-CIV, 2012 WL 2049431, at *5 (S.D. Fla. June 5, 2012)). According to 

Defendant, Plaintiffs failed to provide any record evidence demonstrating its crewmembers’ 

incompetence or unfitness. See id. at 12. Next, to prove negligent supervision and training, 

Plaintiffs must show that Defendant was aware or should have been aware of problems with its 

4 Plaintiffs argue that Plaintiffs have sufficient evidence regarding Defendant’s negligent hiring, retention, 

training, and supervision of crewmembers, but Plaintiffs’ argument is in support of Plaintiffs’ claims 

regarding Defendant’s crewmembers under Counts I, II, and V, not Plaintiffs’ claims regarding Defendant’s 

shipboard medical staff under Counts VII, VIII, and IX. See ECF No. [104] at 15-16.

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crewmembers and failed to take further actions to remedy the problems. See id. (citing Hodson v. 

MSC Cruises, S.A., No. 20-22463-CIV, 2021 WL 3639752, at *5 (S.D. Fla. Aug. 2, 2021), report 

and recommendation adopted, No. 20-22463-CIV, 2021 WL 3634809 (S.D. Fla. Aug. 16, 2021)). 

Defendant argues that Plaintiffs failed to provide such evidence. See id. Lastly, Defendant argues 

that for vicarious liability, there must be some underlying negligence by its crewmembers. See id. 

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

Defendant argues that Plaintiffs failed to provide evidence of underlying negligence on the part of 

any crewmember. See id. at 13.

Plaintiffs respond that Defendant’s Chief Electrical Officer testified that technicians must 

use a particular instrument to properly test elevator door pressure. See ECF No. [104] at 15-16

(quoting ECF No. [104-8] at 82). Defendant’s employee, Ivan Kuesta (“Mr. Kuesta”), however, 

was not properly trained to test the elevator door sensor using the particular instrument and used 

his arm instead to test the subject elevator. See id. (quoting ECF No. [104-8] at 81). Plaintiffs also 

highlight deposition testimony from Defendant’s corporate representative stating that the corporate 

representative was aware that Mr. Kuesta did not properly test the elevator door sensor. See id. at 

15 (quoting ECF No. [104-5] at 16). Plaintiffs’ expert Mr. Hanson further stated that Defendant 

failed to provide formalized elevator maintenance training for Mr. Kuesta, thus falling short of 

industry standards. See id. at 16 (quoting ECF No. [104-7] at 9). Therefore, Plaintiffs argue that 

there is sufficient evidence to create a genuine issue as to whether Defendant was negligent in 

regard to its crewmembers. Defendant responds that Mr. Hanson’s reliance on vague, unspecified

industry standards does not provide a basis for a genuine issue of material fact and that Mr. 

Hanson’s opinions are effectively ipsa dixit. See ECF No. [115] at 10.

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The Court agrees with Plaintiffs. Mr. Hanson’s expert report states that Defendant failed 

to comply with the maintenance instruction manual, which contradicts Defendant’s claim that Mr. 

Hanson’s expert report is merely ipse dixit that relies on unspecified industry standards. See ECF 

No. [101-1] ¶ 42. Further, Plaintiffs offer evidence that Mr. Kuesta failed to follow the correct 

procedure to test the elevator sensors, which is not based on industry standards but Defendant’s 

own standards. See ECF No. [104-8] at 82. In addition, Defendant’s corporate representative’s 

testimony indicates that Defendant knew about Mr. Kuesta’s failure to properly test the sensors. 

See ECF No. [104-5] at 16. Plaintiffs thus offer evidence that Defendant’s employee was 

incompetent or unfit and otherwise caused problems, which Defendant knew or should have 

known about. See Gayou, 2012 WL 2049431, at *5 (requiring evidence of an employer’s 

awareness of an employee’s “incompetence or unfitness” for negligent hiring and retention 

claims); Hodson, 2021 WL 3639752, at *5 (requiring evidence of an employer’s awareness of 

“problems with an employee that indicate his unfitness or incompetence” for a negligent 

supervision claim). Mr. Kuesta’s negligence in testing the elevator sensors is also evidence of 

underlying negligence for a vicarious liability claim against Defendant. See Ceithaml, 207 F. Supp. 

3d at 1355-56 (requiring evidence of an employee’s underlying negligence for a vicarious liability 

claim). Therefore, Plaintiffs offer sufficient evidence to raise a genuine issue of material fact 

regarding Plaintiffs’ claims for negligent hiring and retention, negligent supervision and training, 

and vicarious liability.

e. Negligent Failure to Inspect, Clean, Maintain, Repair, Remedy, and/or Take 

Other Reasonable Measures for the Safety of Plaintiffs (Counts VI)

Lastly, Defendant argues that it did not have actual or constructive notice of the dangerous 

condition and, as a result, “summary judgment in favor of [Defendant] on all claims made in 

Plaintiff’s [sic] Complaint is warranted here.” ECF No. [90] at 13. Plaintiffs argue that Plaintiffs 

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have offered sufficient evidence for Defendant’s notice of the dangerous condition, including 

substantially similar prior incidents, Defendant’s work orders, industry standards, and the length 

of time in which the subject elevator was malfunctioning. See ECF No. [104] at 2-11.5

As a preliminary matter, only Count III – regarding Defendant’s failure to warn of the 

dangerous condition, which has already been addressed above – and Count VI – regarding 

Defendant’s negligent failure to inspect, clean, maintain, repair, remedy, and/or take other 

reasonable measures for the safety of Plaintiffs – require Plaintiffs to show actual or constructive 

notice of the dangerous condition. As such, Defendant’s argument regarding the lack of notice is 

pertinent to only Counts III and VI, and not “all claims” as Defendant argues. ECF No. [90] at 13; 

see Yusko v. LNC (Bah.), Ltd., F.4th 1164, 1170 (11th Cir. 2021) (“[A] passenger need not establish 

that a shipowner had actual or constructive notice of a risk-creating condition to hold a shipowner 

liable for the negligent acts of its employees.”).

Next, as stated above, in the Court’s prior Order on the Motions in Limine, the Court agreed

with Plaintiffs that the prior incidents are substantially similar to the subject incident. As such, 

they are admissible as to the issue of whether Defendant had constructive notice of the dangerous 

condition. See ECF No. [123]. Therefore, the prior incidents present a genuine issue as to whether 

Defendant had constructive notice. Although Defendant cites several cases in support of its 

contention that Defendant cannot be liable if it did not have notice of the dangerous condition, the 

cases are distinguishable from the instant case. See ECF Nos. [90] at 13-16 (citing Ceithaml, 207 

F. Supp. 3d at 1350-51; Keefe v. Bahama Cruise Line, Inc., 867 F.2d 1318, 1322 (11th Cir. 1989); 

Cohen v. Carnival Corp., 945 F. Supp. 2d 1351, 1355 (S.D. Fla. 2013); Isbell v. Carnival Corp., 

5 Plaintiffs note that if the Court were to grant the second Motion for Sanctions, ECF No. [81], then fault 

codes may also establish a genuine issue of material fact as to notice. See ECF No. [104] at 2, n.1. The 

Court denied the second Motion for Sanctions. See ECF No. [122]. As such, Plaintiffs’ argument regarding 

the second Motion for Sanctions is moot.

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462 F. Supp. 2d 1232, 1237 (S.D. Fla. 2006); Taiariol, 2016 WL 1428942, at *4; Lipkin v. 

Norwegian Cruise Line Ltd., 93 F.Supp.3d 1311, 1324 (S.D. Fla. 2015).

6

In Ceithaml, the plaintiff had “no facts supporting the inference that [the defendant] knew 

or should have known” about the dangerous conditions. 207 F. Supp. 3d at 1351. More specifically,

the plaintiff did “not allege facts—such as management problems or prior complaints—indicating 

that [the defendant] knew or should have known about [the dangerous] conditions.” Id. at 1351-

52. Similarly, in Cohen, the plaintiff “presented no evidence that [the defendant] had actual or 

constructive notice of the alleged risk-creating condition . . . .” 945 F. Supp. 2d at 1355. “There 

[was] no evidence in the record of any accident reports, passenger comment reviews or forms, or 

reports from safety inspections alerting [the defendant] of any potential safety concern.” Id. In 

Isbell, the court determined that the plaintiff failed to show notice of the dangerous condition 

because the plaintiff offered “no evidence of a dangerous condition . . . other than the fact that [the 

plaintiff’s] accident occurred.” 462 F. Supp. 2d at 1237-38. In Taiariol, the “record [was] simply 

devoid of any reference to an accident aboard the [defendant’s vessel] that would have alerted [the 

defendant] to a dangerous condition . . . .” 2016 WL 1428942, at *5. In Lipkin, the plaintiff “failed 

to cite any evidence in the record showing that [the defendant] had actual or constructive notice of 

the risk-creating condition alleged in the complaint.” 93 F.Supp.3d at 1324. Unlike the cited cases, 

Plaintiffs in this case have set forth sufficient record evidence that Defendant may have had

constructive notice of the dangerous condition from the substantially similar prior incidents. As 

such, Ceithaml, Cohen, Isbell, Taiariol, and Lipkin are inapposite.

6 Defendant also cites Young v. Carnival Corp., No. 09-21949-CIV, 2011 WL 465366, *4 (S.D. Fla. Feb. 

4, 2011), but not for the proposition that Defendant must have had actual or constructive notice of the 

dangerous condition. See ECF No. [90] at 15. Young is cited for the proposition that it is a fallacy to assume 

that for every personal injury, some entity must be held liable for the damages. See id. While true, the Court 

does not commit this fallacy.

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Lastly, in Keefe, the Eleventh Circuit held that the district court erred by failing to make a 

finding in regard to notice before entering judgment in favor of the plaintiff after a bench trial. See 

867 F.2d at 1322-23. Unlike Keefe, the Court is not entering judgment after a bench trial nor is it

tasked with making findings of fact regarding notice. Rather, the Court must determine whether 

genuine issues of material fact exist that would preclude summary judgment. Given that the record 

contains sufficient evidence to establish a genuine issue of material fact regarding notice, 

summary judgment is not warranted. 

V. CONCLUSION

Accordingly, it is ORDERED AND ADJUDGED as follows:

1. Defendant’s Motion for Summary Judgment, ECF No. [90], is GRANTED IN

PART AND DENIED IN PART.

2. Counts VII, VIII, and IX of Plaintiffs’ Amended Complaint are DISMISSED.

3. All other claims against Defendant shall proceed to trial. 

DONE AND ORDERED in Chambers at Miami, Florida, on March 3, 2022.

_________________________________

BETH BLOOM

UNITED STATES DISTRICT JUDGE

Copies to:

Counsel of Record

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