UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

CASE NO.: 1:22-CV-23701-GAYLES/TORRES

A.B., a minor, by and through her

Parents and natural guardians, 

C.B. and S.B., 

Plaintiff,

v. 

CARNIVAL CORPORATION & PLC, 

Defendant.

________________________________________/ 

ORDER

THIS CAUSE comes before the Court on Defendant’s Motion to Dismiss Plaintiff’s 

Complaint (the “Motion”). [ECF No. 8]. The Court has reviewed the Motion and the record and is 

otherwise fully advised. For the reasons that follow, the Motion is granted. 

BACKGROUND1

I. Factual Background 

This action arises from injuries that Plaintiff A.B. sustained while onboard a vessel (the 

“Ship”) owned and operated by Defendant Carnival Corporation & PLC (“Defendant”). [ECF No. 

1]. On September 30, 2022, as Plaintiff was exiting her cabin’s bathroom, the door slammed into 

her right hand and crushed her thumb. Id. ¶ 15. At that time, the Ship was in choppy waters due to 

Hurricane Ian and was unable to dock. Id. 

1 As the Court proceeds on a motion to dismiss, it accepts the allegations in Plaintiff’s Complaint as true. See Brooks 

v. Blue Cross & Blue Shield of Fla. Inc., 116 F.3d 1364, 1369 (11th Cir. 1997) (per curiam). 

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Plaintiff alleges a laundry list of “risk creating conditions” that caused the door to slam on 

her hand including: Hurricane Ian; choppy water; violent rocking of the Ship; the inability to dock; 

the unreasonably heavy, sharp, and/or uncontrollable door; flaws in Defendant’s weather detection 

system; Defendant’s failure to deploy stabilizer fins to stop the rocky movement of the ship; and 

other dangerous conditions that purportedly would be revealed during discovery (the “Risk 

Creating Conditions”). Id. ¶ 17. Plaintiff also alleges, without detail, that Defendant had actual or 

constructive notice of the Risk Creating Conditions because it knew or should have known (a) that 

Hurricane Ian was headed in the Ship’s direction; (b) about design defects in the weather detection 

system, stabilizer fins, and bathroom door; (c) that it installed or refitted similar weather detection 

systems, stabilizer fins, and bathroom doors to make them less dangerous on other unnamed ships 

at unspecified times; (d) of unnamed safety standards; (e) that it failed to adequately inspect the 

storm2 and bathroom door prior to the incident; (f) about prior incidents involving similar storms 

and doors; and (g) about other reasons that would be disclosed during discovery. Id. ¶ 19. 

II. Procedural History

On November 10, 2022, Plaintiff filed this action against Defendant, alleging 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, and/or approval of the subject weather detection system, the subject stabilizer fins, the 

subject door, and the vicinity (Count V), and negligence for the acts of carnival’s crew, staff, 

employees, and/or agents, based on vicarious liability (Count VI). Id. Defendant now moves to 

dismiss for failure to state a claim. [ECF NO. 8]. In particular, Defendant argues that Plaintiff fails 

2 It is unclear to the Court how Defendant would “inspect” a storm.

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to adequately allege actual or constructive notice and fails to plead a claim for vicarious liability. 

Id. The Court agrees.

LEGAL STANDARD

To survive a motion to dismiss brought pursuant to Federal Rule of Civil 

Procedure 12(b)(6), a claim “must contain sufficient factual matter, accepted as true, to ‘state a 

claim to relief that is plausible on its face,’” meaning that it must contain “factual content that 

allows the court to draw the reasonable inference that the defendant is liable for the misconduct 

alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 

U.S. 544, 570 (2007)). While a court must accept well-pleaded factual allegations as true, 

“conclusory allegations . . . are not entitled to an assumption of truth—legal conclusions must be 

supported by factual allegations.” Randall v. Scott, 610 F.3d 701, 709–10 (11th Cir. 2010). 

“Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, 

do not suffice.” Iqbal, 556 U.S. at 678. Therefore, a complaint that merely presents “labels and 

conclusions or a formulaic recitation of the elements of a cause of action” will not survive 

dismissal. Id. (internal quotation omitted).

ANALYSIS

I. Plaintiff Fails to Adequately Allege Claims for Negligence

To bring a maritime negligence claim, “a plaintiff must allege 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.” Chaparro v. Carnival Corp., 693 F.3d 1333, 1336 (11th Cir. 2012) (citation omitted). “This 

standard requires, as a prerequisite to imposing liability, that the carrier have had actual or 

constructive notice of a risk creating condition . . . .” Holland v. Carnival Corp., 50 F. 4th 1088, 

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1094 (11th Cir. 2022) (internal quotation omitted). Therefore, “a shipowner’s actual or 

constructive knowledge of the hazardous condition arises as part of the duty element in a claim 

seeking to hold the shipowner directly liable for its own negligence.” Id. “Actual notice exists 

when the defendant knows of the risk creating condition” Bujarski v. NCL, 209 F. Supp. 3d 1248, 

1250 (S.D. Fla. 2016). “Constructive notice arises 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.” Id. (internal quotation omitted). “Alternatively, a plaintiff can 

establish constructive notice with evidence of substantially similar incidents in which conditions 

substantially similar to the occurrence in question must have caused the prior accident.” Newbauer 

v. Carnival Corp., 26 F. 4th 931, 935 (11th Cir. 2022).

The Court finds that Plaintiff fails to allege with sufficient particularity that Defendant had

actual or constructive notice of the risk-creating conditions that caused her injury. Indeed, all of 

Plaintiff’s allegations regarding notice are conclusory and lack any detail about how Defendant 

knew or should have known that the Risk Creating Conditions existed. For example, Plaintiff 

generally alleges design defects in the weather detection system, stabilizer fins, and bathroom door 

without providing any specifics about the nature of the defects or how those defects caused the 

door to slam on Plaintiff’s hand. Similarly, Plaintiff alleges Defendant knew or should have known 

about “safety standards” without even naming the standards. Moreover, Plaintiff provides a list of 

prior cases purportedly involving storms or doors but fails to provide any detail about the facts in 

those cases or explain how those cases are factually similar to this action. This simply is not enough 

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to plausibly allege actual or constructive notice. Accordingly, Counts I-V are dismissed without 

prejudice.3

II. Plaintiff Fails to Allege Vicarious Liability

Defendant also argues that Plaintiff’s claim for vicarious liability, Count VI, is really a 

claim sounding in direct liability. The Court agrees. While Plaintiff states that “the captain and/or 

other crewmembers” made the decision to sail during Hurricane Ian, she fails to provide any detail 

about the captain or other crewmembers. Without more, Plaintiff’s claim for vicarious liability 

must be dismissed. See Holland, 50 F. 4th at 1094-95 (holding that claim for vicarious liability 

was insufficiently pled where the plaintiff failed to identify a specific crewmember whose 

negligence caused the plaintiff’s injury). Accordingly, Count VI is dismissed without prejudice.

CONCLUSION

Accordingly, it is ORDERED AND ADJUDGED as follows:

1. Defendant’s Motion to Dismiss Plaintiff’s Complaint, [ECF No. 8], is granted.

2. Plaintiff’s Complaint [ECF No. 1] is DISMISSED without prejudice.

3. This case is CLOSED for administrative purposes and all pending motions are 

DENIED as moot.

4. Plaintiff may move for leave to amend her Complaint on or before June 5. 2023.

DONE AND ORDERED in Chambers at Miami, Florida, this Tuesday, May 23, 2023, 

2023.

________________________________

DARRIN P. GAYLES

UNITED STATES DISTRICT JUDGE

3 Although Defendant’s Motion focuses on how Plaintiff fails to allege actual or constructive notice, the Court notes 

that Plaintiff also fails to allege with the requisite particularity how most of the alleged Risk Creating Conditions 

caused a bathroom door to slam shut on Plaintiff’s hand. 

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