UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

Case No. 22-cv-22977-BLOOM/Otazo-Reyes

ANGELINA LILES, 

Plaintiff, 

v. 

CARNIVAL CORPORATION & PLC, 

Defendant. 

_________________________________/ 

ORDER MOTION TO DISMISS COUNTS V AND VI

OF PLAINTIFF’S AMENDED COMPLAINT

THIS CAUSE is before the Court upon Defendant Carnival Corporation’s (“Defendant” 

or “Carnival”) Motion to Dismiss Counts V and VI of Plaintiff’s Amended Complaint, ECF No. 

[18] (“Motion”). Plaintiff Angelina Liles (“Plaintiff” or “Liles”) filed a Response, ECF No. [19] 

(“Response”), to which Defendant filed a Reply, ECF No. [22] (“Reply”). The Court has carefully 

considered the Motion, all opposing and supporting materials, the record in this case, the applicable 

law, and is otherwise fully advised. For the reasons that follow, the Motion is granted in part. 

I. BACKGROUND

Plaintiff was a passenger on Carnival’s vessel, the Vista, and filed this action for damages. 

In the Amended Complaint, Plaintiff alleges that on July 27, 2022, she was on a tender returning to 

the Vista. ECF No. [13] ¶ 13. When she descended the ramp that was supposed to be secured to the 

tender and the dock, the tender separated from the ramp, crushing her right leg between the tender 

and ramp. Id. ¶ 14. The Amended Complaint asserts nine counts: Negligent Failure to Inspect 

(Count I); Negligent Failure to Maintain (Count II); Negligent Failure to Remedy (Count III); 

Negligent Failure to Warn of Dangerous Condition (Count IV); Negligent Design, Installation, 

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and/or Approval of the Subject Area and the Vicinity (Count V); Negligence for the Acts of 

Carnival’s Crew, Staff, Employees, and/or Agents, Based on Vicarious Liability (Count VI); 

Vicarious Liability Against Carnival for the Negligence of the Ship’s Medical Staff (Count VII); 

Apparent Agency for the Acts of the Ship’s Medical Staff (Count VIII); Assumption of Duty for 

the Negligence of the Ship’s Medical Staff (Count IX). 

In the Motion, Defendant seeks dismissal with prejudice of Counts V and VI of the 

Amended Complaint pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure.

II. LEGAL STANDARD

A pleading must contain “a short and plain statement of the claim showing that the pleader 

is entitled to relief.” Fed. R. Civ. P. 8(a)(2). Although a complaint “does not need detailed factual 

allegations,” it must provide “more than labels and conclusions, and a formulaic recitation of the 

elements of a cause of action will not do.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S. 

Ct. 1955, 167 L. Ed. 2d 929 (2007); see Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S. Ct. 1937, 173 

L. Ed. 2d 868 (2009) (explaining that Rule 8(a)(2)’s pleading standard “demands more than an 

unadorned, the-defendant-unlawfully-harmed-me accusation”). Additionally, a complaint may not 

rest on “‘naked assertion[s]’ devoid of ‘further factual enhancement.’” Iqbal, 556 U.S. at 678, 129 

S. Ct. 1937 (quoting Twombly, 550 U.S. at 557, 127 S. Ct. 1955). “Factual allegations must be 

enough to raise a right to relief above the speculative level.” Twombly, 550 U.S. at 555, 127 S. Ct. 

1955. If the allegations satisfy the elements of the claims asserted, a defendant’s motion to dismiss 

must be denied. See id. at 556, 127 S. Ct. 1955.

When reviewing a motion to dismiss, a court, as a general rule, must accept the plaintiff’s 

allegations as true and evaluate all plausible inferences derived from those facts in favor of the 

plaintiff. See Chaparro v. Carnival Corp., 693 F.3d 1333, 1337 (11th Cir. 2012); Miccosukee Tribe 

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of Indians of Fla. v. S. Everglades Restoration All., 304 F.3d 1076, 1084 (11th Cir. 2002); AXA 

Equitable Life Ins. Co. v. Infinity Fin. Grp., LLC, 608 F. Supp. 2d 1349, 1353 (S.D. Fla. 2009) 

(“On a motion to dismiss, the complaint is construed in the light most favorable to the non-moving 

party, and all facts alleged by the non-moving party are accepted as true.”); Iqbal, 556 U.S. at 678, 

129 S. Ct. 1937.

III. DISCUSSION

A. General Maritime Law

In cases involving alleged torts “committed aboard a ship sailing in navigable waters,” the 

applicable substantive law is general maritime law, the rules of which are developed by the federal 

courts. Keefe v. Bahama Cruise Line, Inc., 867 F.2d 1318, 1320 (11th Cir. 1989) (citing Kermarec 

v. Compagnie Generale Transatlantique, 358 U.S. 625, 628, 79 S. Ct. 406, 3 L. Ed. 2d 550 (1959)); 

see also Everett v. Carnival Cruise Lines, 912 F.2d 1355, 1358 (11th Cir. 1990) (“Because this is 

a maritime tort, federal admiralty law should control. Even when the parties allege diversity of 

citizenship as the basis of the federal court's jurisdiction (as they did in this case), if the injury 

occurred on navigable waters, federal maritime law governs the substantive issues in the case.”). 

In the absence of well-developed maritime law, courts may supplement the maritime law with 

general common law and state law principles. See Smolnikar v. Royal Caribbean Cruises, Ltd., 

787 F. Supp. 2d 1308, 1315 (S.D. Fla. 2011).

“To prevail on a negligence claim, a plaintiff must show that ‘(1) the defendant had a duty 

to protect the plaintiff from a particular injury, (2) the defendant breached that duty, (3) the breach 

actually and proximately caused the plaintiff's injury, and (4) the plaintiff suffered actual harm.’”

Guevara v. NCL (Bahamas) Ltd., 920 F.3d 710, 720 (11th Cir. 2019) (quoting Chaparro, 693 F.3d 

at 1336). “[T]he benchmark against which a shipowner’s behavior must be measured is ordinary 

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reasonable care under the circumstances, a standard which requires, as a prerequisite to imposing 

liability, that the carrier have had actual or constructive notice of the risk-creating condition . . . .”). 

Keefe, 67 F.2d at 1322. A defendant has actual notice when the “defendant knows of the risk 

creating condition” and has constructive notice “when a dangerous condition has existed for such 

a period of time that the shipowner must have known the condition was present and thus would 

have been invited to correct it.” Bujarski v. NCL (Bahamas) Ltd., 209 F. Supp. 3d 1248, 1250-51 

(S.D. Fla. 2016).

B. Count V - Negligent Design

Defendant argues first that Count V should be dismissed because it fails to allege facts 

showing that Defendant actually designed the dangerous condition at issue because there are no 

facts to support the claim that Carnival designed, installed, or approved a tender boat and ramp 

separate from the cruise ship. In response, Plaintiff argues that the allegations are sufficient 

because the Amended Complaint alleges that Carnival generated design specifications for the 

tender and ramp involved in her incident, which Carnival subsequently approved. See ECF No. 

[13] ¶¶ 17, 88.

“Liability based on negligent design would require that Carnival ‘actually created, 

participated in, or approved the alleged negligent design[.]’” Johnson v. Carnival Corp., No. 19-

cv-23167-BLOOM/Louis, 2021 WL 1341526, at *9 (S.D. Fla. Apr. 9, 2021) (quoting Groves v. 

Royal Caribbean Cruises, Ltd., 463 F. App’x 837, 837 (11th Cir. 2012)). In addition, a defendant 

can only be liable for negligent design “if it had actual or constructive notice of such hazardous 

condition.” Groves, 463 F. App’x at 837.

The Court agrees that Count V fails to state a claim. The Amended Complaint alleges that

At all material times hereto, CARNIVAL participated in the design process of the 

subject vessel, tender, and ramp, by generating design specifications for the 

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shipbuilder to follow, and to put the vessel, tender, and ramp, on which LILES was 

injured into the channels of trade, and/or CARNIVAL approved of the subject 

vessel, tender, and the ramp’s design, including the design of the subject area and 

vicinity.

ECF No. [13] ¶ 89. However, there are no facts alleged in support of Plaintiff’s conclusory 

assertions that Carnival participated in the design process of the tender and ramp, which are not 

on or part of the Vista, or that Carnival otherwise approved those designs. Similarly, to the extent 

that Plaintiff’s claim is premised upon negligent design of some aspect of the Vista, the Amended 

Complaint is devoid of facts to support such a theory.

Plaintiff’ reliance upon Hoover v. NCL (Bahamas) Ltd., 491 F. Supp. 3d 1254, 1257 (S.D. 

Fla. 2020) is unavailing. In Hoover, the court held that the cruise line was not entitled to summary 

judgment upon the plaintiff’s claim for negligent design of a stairway because a genuine issue of 

material fact remained as to whether the cruise line approved the design, based upon the corporate 

representative’s testimony. Id. Critically, however, the stairway was onboard the defendant’s ship;

whereas here, Plaintiff’s claim is premised upon the alleged approval of designs of a tender and 

ramp, neither of which are alleged to be part of Carnival’s ship. Without more, the bare assertion 

that Carnival approved of the designs is conclusory and legally insufficient.

Accordingly, Count V is due to be dismissed.

C. Count VI - Theories of Direct and Vicarious Liability Comingled

Defendant argues next that Count VI should be dismissed because it is a shotgun pleading 

that contains conflicting allegations and theories of direct and vicarious liability. Plaintiff asserts 

that vicarious liability is a valid theory of liability even when it overlaps with premises liability.

The Eleventh Circuit has established four (4) types of shotgun pleadings. See Weiland v. 

Palm Beach Cnty. Sherriff’s Off., 792 F.3d 1313, 1321-23 (11th Cir. 2015). Defendant’s argument 

that Count VI is a shotgun pleading falls under the third type; “[t]he third type of shotgun pleading 

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is one that commits the sin of not separating into a different count each cause of action or claim 

for relief.” Id. at 1323. Defendant contends that because Plaintiff incorporated paragraphs 1-34 of 

her Complaint into Count VI, she has improperly incorporated allegations against Carnival under 

a theory of direct liability into a count asserting vicarious liability. In support, Defendant cites 

cases from this district in which the court dismissed a count that included claims under multiple 

theories of liability. See Wohlford v. Carnival Corp., No. 1:17-cv-20703-UU, 2017 WL 7731225, 

at *3 (S.D. Fla. May 10, 2017); Gharfeh v. Carnival Corp., 17-20499-CIV, 2018 WL 501270, at 

*6 (S.D. Fla. Jan. 22, 2018); McFee v. Carnival Corp., 19-22917-CIV, 2020 WL 13389094, at *15 

(S.D. Fla. Feb. 3, 2020); Smith v. Carnival Corp. & PLC, No. 22-cv-22863-BLOOM/Otazo-Reyes, 

2022 WL 16791783, at *3 (S.D. Fla. Nov. 8, 2022). Plaintiff relies on another Southern District of 

Florida case, Hunter v. Carnival Corporation, to support her assertion that she may properly 

proceed under both direct liability and vicarious liability theories. See Hunter v. Carnival Corp., 

--- F. Supp. 3d ----, 2022 WL 2498757 (S.D. Fla. July 1, 2022). There, the court held that a plaintiff

was permitted to assert “both direct and vicarious liability claims against Defendant.” Id. at *4. 

But, that case is clearly distinguishable because the plaintiff there did not attempt to assert claims 

under both theories in the same count, as Plaintiff does here.

It is evident from the heading Plaintiff provided to Count VI, “Negligence for the Acts of 

Carnival’s Crew, Staff, Employees, and/or Agents, Based on Vicarious Liability” that Plaintiff 

intended Count VI to be a claim based on vicarious liability. See ECF No. [13] at 20. Nevertheless, 

the Court agrees with Defendant that the language used and incorporated into Count VI is 

indicative of a claim for direct liability, and a claim for direct liability should be brought in a 

separate count. See Gharfeh, 17-20499-CIV, 2018 WL 501270, at 6 (finding that where a count 

contained a title suggesting it contains only a claim for vicarious liability, but it also includes 

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allegations of direct negligence, it is “an example of an impermissible shotgun pleading and it 

needs to be clarified.”). The Court therefore finds that Count VI must be dismissed. Moreover, 

even if the Court were to find that Count VI was not a shotgun pleading, it still must be dismissed 

for the reasons explained below.

D. Count VI - Claim for Vicarious Liability

Defendant argues that Plaintiff fails to properly plead a claim for vicarious liability as a 

matter of law because Count VI contains no factual allegations regarding any duty breached by a 

crewmember or any allegations regarding crewmember misconduct relating to Plaintiff’s fall and 

injury. Plaintiff responds that she has sufficiently identified the crewmembers liable, the date on 

which the negligent conduct of these crewmembers occurred, and the location where the negligent 

conduct occurred.

Upon review, the Court agrees with Defendant. Under a theory of vicarious liability, the 

duty and conduct of the Defendant, the shipowner, are not relevant. See Yusko v. NCL (Bahamas), 

Ltd., 4 F.4th 1164, 1169 (11th Cir. 2021) (“[T]he scope of a shipowner’s duty has nothing to do 

with vicarious liability which is not based on the shipowner's conduct.”). Under the theory of 

vicarious liability “an otherwise non-faulty employer [can] be held liable for the negligent acts of 

[an] employee acting within the scope of employment.” Holland v. Carnival Corp., 50 F.4th 1088, 

1094 (11th Cir. 2022) (internal quotation marks omitted). To prove negligence, “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, at 1167-1168.

While the Court agrees that Plaintiff has adequately alleged specific individuals employed 

by Defendant as the tortfeasor, Count VI does not adequately plead negligence committed by those 

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individuals. Plaintiff alleges the duty owed by Defendant, not its employees, and contends that 

Defendant’s breach of that duty was the actual and proximate cause of Plaintiff’s injury, rather 

than specifically identifying how Defendant’s employees breached a duty, and how that breach 

caused Plaintiff’s injury. See ECF No. [13] ¶¶ 107-118. The Court therefore finds that Count VI 

of the Complaint fails to state a claim.

IV. CONCLUSION

Accordingly, it is ORDERED AND ADJUDGED that the Motion, ECF No. [18], is 

GRANTED IN PART. Counts V and VI are DISMISSED WITHOUT PREJUDICE. To the 

extent that Plaintiff may do so in good faith, Plaintiff may file a second amended complaint no 

later than January 11, 2023.

DONE AND ORDERED in Chambers at Miami, Florida, on January 4, 2023.

__________________________________

BETH BLOOM

UNITED STATES DISTRICT JUDGE

Copies to:

Counsel of Record

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