[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

No. 17-11437

Non-Argument Calendar

________________________

D.C. Docket No. 1:16-cv-20038-JKL

MARIANNE MALLEY,

 Plaintiff-Appellant,

versus

ROYAL CARIBBEAN CRUISES LTD, 

 Defendant-Appellee.

_______________________

Appeal from the United States District Court

for the Southern District of Florida

_______________________

(November 9, 2017) 

Before MARTIN, JULIE CARNES, and ANDERSON, Circuit Judges.

PER CURIAM:

Case: 17-11437 Date Filed: 11/09/2017 Page: 1 of 12 
2

Plaintiff Marianne Malley fell while attempting to step onto a high coaming 

on Defendant Royal Caribbean Cruise’s ship. A coaming is a raised divider. 

Plaintiff alleges that Defendant was negligent for failing to warn of the coaming’s 

unreasonable height, which created a dangerous situation in which passengers were 

likely to fall, and for creating a negligent mode of operation. The district court 

granted Defendant’s motion for summary judgment and Plaintiff appealed. After 

careful review, we affirm. 

I. BACKGROUND

A. Factual Background 

In February 2015, Plaintiff and her family took a cruise on Defendant’s ship 

Allure of the Seas. Two days after embarking on the cruise, Plaintiff and her 

cousin Francine Patane attended a cocktail party on the ship’s helicopter deck. In 

front of the helicopter deck’s entrance, a crew member handed out champagne and 

punch. After receiving their drink, guests were invited to walk onto the deck. 

Plaintiff took a glass of champagne, holding the glass in one hand and her purse in 

the other. She proceeded to the deck’s entrance. In order to access the helicopter 

deck, passengers had to step onto a high coaming (a raised divider). The coaming 

had handrails; the evidence is inconsistent as to whether the coaming was marked 

with yellow and black tape. 

Case: 17-11437 Date Filed: 11/09/2017 Page: 2 of 12 
3

Plaintiff attempted to walk onto the helicopter deck. Because she was 

holding a glass of champagne and her purse, she was unable to use the handrail. 

Although Plaintiff could clearly see the coaming and realized that she had to step 

onto it, she underestimated how high the step was. As Plaintiff attempted to step 

onto the coaming, she did not lift her leg high enough. Her foot was too low to 

land on top of the coaming, causing her to fall forward. Plaintiff and her cousin 

both attest that it was impossible to tell how high the coaming was until they were 

in the process of stepping onto it. 

Neither party submitted measurements or clear pictures of the coaming. 

Plaintiff alleges that the coaming was the height of “two normal steps” and her 

cousin stated that the coaming was “at least a foot tall.” 

Plaintiff was seriously injured by the fall. She hurt her nose and had 

significant bruising on her face. She also injured the entire left side of her body, 

including her shoulder, ribs, and knee. She fractured her shoulder, requiring a 

sling. 

B. Procedural Background 

Pursuant to the forum selection clause on her ticket, Plaintiff brought this 

negligence action in the Southern District of Florida. The district court granted 

Defendant’s motion for summary judgment, concluding that the coaming was not 

Case: 17-11437 Date Filed: 11/09/2017 Page: 3 of 12 
4

unreasonably high and that, in any event, the height was open and obvious. The 

court denied Plaintiff’s subsequent motion for reconsideration. 

On appeal, Plaintiff contends that there is a genuine dispute over whether 

Defendant negligently failed to warn, whether Defendant was negligent in creating 

and allowing an unreasonably dangerous condition, and whether Defendant had a 

negligent mode of operation.

II. STANDARD OF REVIEW

This Court reviews the denial of summary judgment de novo and utilizes the 

same legal standards as the district court. Feliciano v. City of Miami Beach, 707 

F.3d 1244, 1247 (11th Cir. 2013). We 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.” Fed. R. Civ. P. 56(a). In making our 

determination, we view all facts and resolve all doubts in favor of the nonmoving 

party. Feliciano, 707 F.3d at 1247. 

III. DISCUSSION 

Because Plaintiff’s injury occurred on navigable waters, federal admiralty 

law governs this dispute. Everett v. Carnival Cruise Lines, 912 F.2d 1355, 1358 

(11th Cir. 1990). Cruise ships have a duty of care to their passengers. But “[a] 

carrier by sea [ ] is not liable to passengers as an insurer, [ ] only for its 

negligence.” Kornberg v. Carnival Cruise Lines, Inc., 741 F.2d 1332, 1334 (11th 

Case: 17-11437 Date Filed: 11/09/2017 Page: 4 of 12 
5

Cir. 1984). To prevail on a maritime tort claim, a plaintiff must prove that the 

defendant had a duty of care, the defendant breached that duty, the breach was the 

actual and proximate cause of the plaintiff’s injury, and the plaintiff suffered actual 

harm. Sorrels v. NCL (Bahamas) Ltd., 796 F.3d 1275, 1280 (11th Cir. 2015). A 

cruise ship only has a duty to protect passengers from dangers that it has notice of:

[T]he benchmark against which a shipowner’s behavior must be 

measured is ordinary 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, at least where, as here, the menace is one commonly 

encountered on land and not clearly linked to nautical adventure. 

Keefe v. Bahama Cruise Line, Inc., 867 F.2d 1318, 1322 (11th Cir. 1989); See also

Everett, 912 F.2d at 1358–59 (reversing the district court for failing to require 

notice). 

Plaintiff’s negligence argument focuses on the coaming’s unreasonable 

height and the circumstances surrounding her fall. She claims that Defendant was 

negligent for handing out champagne before (instead of after) passengers crossed 

the coaming, which meant that passengers did not have a free hand to use the 

handrails. Further, no crew member stood next to the coaming to help passengers 

step onto it. Plaintiff alleges that these acts and the coaming’s unreasonable height 

constituted three types of negligence: (1) failure to warn, (2) negligently creating 

or allowing a dangerous condition, and (3) negligent mode of operation. We 

address each in turn.

Case: 17-11437 Date Filed: 11/09/2017 Page: 5 of 12 
6

A. Failure to Warn

Under federal admiralty law, a cruise ship must warn of known dangers that 

are not open and obvious. See Keefe, 867 F.2d at 1322; Deperrodil v. Bozovic 

Marine, Inc., 842 F.3d 352, 357 (5th Cir. 2016). If the cruise ship did not have 

notice of the danger or if the danger is open and obvious to a reasonable person, 

the ship has no duty to warn. See Keefe, 867 F.2d at 1322; Deperrodil, 842 F.3d at 

357. In order to defeat summary judgment, Plaintiff therefore must prove that 

there is a genuine issue of material fact as to whether (1) Defendant had notice of 

the unreasonable height of the coaming and (2) the coaming’s height was open and 

obvious. 

1. Notice

In order for Defendant to be liable for negligence, it must have had actual or 

constructive notice that a condition creates a risk. Keefe, 867 F.2d at 1322; 

Everett, 912 F.2d at 1358–59. Knowledge that the condition exists is not 

sufficient, the defendant must also know that the condition is dangerous. See 

Chaparro v. Carnival Corp., 693 F.3d 1333, 1337 (11th Cir. 2012). We cannot 

automatically impute awareness of the danger just because the defendant created 

the condition. Everett, 912 F.2d at 1358–59. To demonstrate notice, the plaintiff 

can point to previous injuries or show that the defendant previously warned of the 

danger. See Sorrels, 796 F.3d at 1280 (holding that the defendant had notice that a 

Case: 17-11437 Date Filed: 11/09/2017 Page: 6 of 12 
7

floor was slippery when wet because prior passengers had slipped and the 

defendant had previously posted a warning). 

Plaintiff argues that Defendant had notice that passengers needed to be 

warned of the coaming’s unreasonable height. According to Plaintiff, the fact that 

there was a railing and that there may have been yellow and black tape 

demonstrates that Defendant knew that the coaming was dangerously high and that 

passengers needed a free hand or assistance to safely step onto it. Railings (and 

tape, if there was any) do show that Defendant knew that the coaming was a step 

up from the ground. But as Plaintiff has repeatedly conceded in her brief, she does 

not argue that Defendant was negligent for not warning that there was a step. 

Rather, she argues that Defendant was negligent for not warning that the step was

unreasonably high. Plaintiff’s evidence, however, does not demonstrate that 

Defendant knew that the coaming was unreasonably high or that it created a risk to 

passengers. 

Further, there is no evidence that anyone else has ever fallen on the coaming. 

There is not even evidence that anyone else had a close call or complained about 

the height. In her affidavit, Plaintiff’s cousin stated that the coaming was 

incredibly tall, but this is not relevant to Defendant’s knowledge. In short,

Defendant had no notice that the coaming was unreasonably high. Thus, Defendant

was not required to provide a warning about its height. 

Case: 17-11437 Date Filed: 11/09/2017 Page: 7 of 12 
8

2. Open and Obvious

A defendant cannot be liable for failure to warn if the risk-creating condition 

is open and obvious to a reasonable person. Deperrodil, 842 F.3d at 357. See also

Samuels v. Holland Am. Line-USA, Inc., 656 F.3d 948, 954 (9th Cir. 2011). To 

determine whether a condition is open and obvious, this Court asks whether a 

reasonable person would have observed the condition and appreciated the nature of 

the condition. See Lancaster v. Carnival Corp., 85 F. Supp. 3d 1341, 1345 (S.D. 

Fla. 2015); Lugo v. Carnival Corp., 154 F. Supp. 3d 1341, 1345–46 (S.D. Fla. 

2015). The Court focuses on what an objectively reasonable person would observe 

and does not take into account the plaintiff’s subjective perceptions. Lugo, 154 F. 

Supp. 3d at 1345–46. 

In her deposition, Plaintiff testified that she could easily see the coaming and 

recognized that she had to step onto it: 

Q: As you approached the doorway, were you aware that you had to 

step over a threshold to get out?

A: Yes.

Q: And did you, in fact, attempt to step over the threshold?

A: Yes.

Q: But your foot got caught?

A: Yes.

Q: So you could clearly see that there was a threshold there?

Case: 17-11437 Date Filed: 11/09/2017 Page: 8 of 12 
9

A: Yes.

Q: There was nothing blocking your view of the threshold?

A: No.

Q: And it was not too dark for you to see the threshold?

A: No. 

Plaintiff states that she was able to see the step, but was not able to discern the 

height of the step. Yet, several passengers, including Plaintiff’s cousin, 

successfully stepped onto the coaming before Plaintiff fell. One can infer that a 

person who could see a step would also be able to see how high the step was. 

In her affidavit, Plaintiff’s cousin asserted that she was not able to perceive 

the height of the step until she was stepping onto it. She describes the coaming as 

“unexpectedly tall.” However, Plaintiff’s cousin also acknowledged that she was 

able to step onto the coaming without falling. While Plaintiff’s cousin may not 

have noticed the coaming’s height right away, she did notice the height with 

enough time to successfully step on top of it. Despite Plaintiff’s contentions to the 

contrary, her cousin’s affidavit further confirms that a reasonable person could see 

the coaming’s height.

In addition, the existence of a handrail by the step suggested the need for 

caution in navigating the step. A reasonable person would be able to assess 

whether she needed to use the handrail or ask for assistance. As to Defendant 

Case: 17-11437 Date Filed: 11/09/2017 Page: 9 of 12 
10

passing out champagne before passengers walked onto the helicopter deck, a 

reasonable person could put their drink down or ask for assistance if concerned 

about the step. 

In short, the coaming’s height was open and obvious to a reasonable person. 

We therefore conclude that Defendant had no duty to warn of the height.

B. Creating or Allowing a Dangerous Condition 

Not only does Plaintiff argue that Defendant was negligent for failing to 

warn of the coaming, Plaintiff also seems to argue1 that Defendant was negligent 

for having an unreasonably high step and creating a situation in which passengers 

were more likely to fall.2

 According to Plaintiff, it was negligent for Defendant to 

construct a coaming that was unreasonably high, which made it more likely that a 

passenger would fall. It was further negligent for a crew member to hand out 

champagne and punch before (instead of after) passengers walked onto the 

coaming, when passengers might not have a free hand to hold onto the railing, and 

not to station a crew member next to the coaming to help passengers step onto it. 

 1

 Plaintiff does not separately articulate this claim in her brief. However, it was mentioned in 

the complaint and was at issue at summary judgment. Instead her arguments on this point are 

contained within her discussion of the failure to warn claim. 

2 Plaintiff claims that the district court failed to address this argument in the summary judgment

order. But this is not so. The district court fully addressed this argument, holding that “the 

evidence establishes that the threshold was not unreasonably dangerous.” 

Case: 17-11437 Date Filed: 11/09/2017 Page: 10 of 12 
11

As explained above, a cruise ship can only be liable for negligence if it had 

notice of the risk-creating condition. Keefe, 867 F.2d at 1322; Everett, 912 F.2d at

1358–59. The ship must not only know that the condition exists, but also know 

that the condition is dangerous. See Chaparro, 693 F.3d at 1337. Here, Defendant 

had notice of the coaming’s height. However, Defendant did not know that the 

coaming was dangerously high. There is no evidence that a passenger had ever 

been injured, or even complained, before now. The evidence also does not show 

that Defendant was on notice that passengers needed special assistance to cross the 

coaming. Accordingly, Defendant cannot be held liable for creating this condition. 

C. Mode of Operation 

Plaintiff also alleges that Defendant should be held liable for having a 

negligent mode of operation.3

 A negligent mode of operation claim is recognized 

under Florida law as a claim that a business created an unsafe environment through 

the manner in which it conducts its business. Markowitz v. Helen Homes of 

Kendell Corp., 826 So. 2d 256, 260–61 (Fla. 2002); Etheredge v. Walt Disney 

World Co., 999 So. 2d 669, 672–73 (Fla. 5th DCA 2008). In a Florida negligent 

mode of operation case, the plaintiff alleges that the company’s policies are 

negligent. See Markowitz, 826 So. 2d at 259–61. The court focuses on the 

 3 Plaintiff complains that the district court wrongly ignored this argument below. The district 

court addressed all allegations that Plaintiff made in her complaint. Arguably, Plaintiff did not 

sufficiently raise this claim below, but because the claim can easily be dismissed on other 

grounds, we will not make that determination. 

Case: 17-11437 Date Filed: 11/09/2017 Page: 11 of 12 
12

company’s general policies and operations, not on the specific incident in which 

the plaintiff was injured. Id. 

No court has ever held that this claim exists in federal admiralty law.4

 All of 

Plaintiff’s citations are to Florida law cases. A basic attribute of a negligent mode 

of operation claim is at odds with admiralty law’s requirement that a cruise ship 

must have notice of the dangerous condition. Keefe, 867 F.2d at 1322. Yet, a key 

feature of a Florida mode of operation claim is that the company need not have 

notice. Markowitz, 826 So. 2d at 260–61. And there is no dispute that federal 

admiralty law governs this dispute. Everett, 912 F.2d at 1358. Nevertheless, 

whatever we call the claim, to the extent it alleges negligence, Plaintiff cannot 

succeed for the reasons explained earlier in this discussion. 

CONCLUSION

For the above reasons, we AFFIRM the district court’s grant of summary 

judgment to Defendant. 

 4

 The federal admiralty case we have found that addresses this issue is Stewart-Patterson v. 

Celebrity Cruises, Inc., No. 12-20902-CIV, 2012 WL 2979032 (S.D. Fla. July 20, 2012). The 

court there concluded that “maritime law does not support a stand-alone claim based on 

Defendant’s ‘mode of operation’ unconnected to Plaintiff’s specific accident. Indeed, Plaintiff 

has cited no decision that would support such a claim in admiralty.” Id. at *3. 

Case: 17-11437 Date Filed: 11/09/2017 Page: 12 of 12