[ DO NOT PUBLISH] 

## In the 

# United States Court of Appeals For the Eleventh Circuit

____________________
No. 22

- 13806
Non

- Argument Calendar

____________________
MARILYN PATTON, a Citizen and Resident of Oklahoma,
Plaintiff

- Appellant,

versus CARNIVAL CORPORATION, a Panamanian Corporation d.b.a. Carnival Cruise Lines,

Defendant

- Appellee.

____________________ USCA11 Case: 22-13806 Document: 25-1 Date Filed: 04/30/2024 Page: 1 of 92 Opinion of the Court 22

- 13806 Appeal from the United States District Court for the Southern District of Florida D.C. Docket No. 1:22

- cv

- 21158

- RNS

____________________ Before G RANT , L UCK , and A NDERSON , Circuit Judges.

P ER C URIAM : Marilyn Patton appeal s the district court’s dismissal of her complaint against Carnival Corporation for injuries sustained after she tripped and fell on one of Carnival’s cruise ships. We affirm.

I. 1

Ms. Patton went on a vacation on a Carnival cruise ship. The ship docked in Key West. At around 9:00 a.m., Ms. Patton was wearing sandals and walking in a highly trafficked hallway towards the ship ’ s elev ators on her way to an offshore excursion

. She tripped and fell, tearing her rotator cuff.

Ms. Patton tripped on a “ metal threshold ” that extended

across the hallway. The threshold had been “improperly affixed and not adequately secured to the floor
, ” causing it to protrude about a half inch too high and “leaving a gap that posed a tripping

1 Because this case comes to us on a motion to dismiss , we accept the complaint’s factual allegations as true and construe them in the light most favorable to Ms. Patton

. See Holland v. Carnival Corp. , 50 F.4th 1088 , 1091 n.1 (11th Cir. 2022)

. USCA11 Case: 22-13806 Document: 25-1 Date Filed: 04/30/2024 Page: 2 of 922

- 13806 Opinion of the Court 3

hazard

. ” Ms. Patton attached two photo graphs to her complaint showing “the threshold as it existed at or shortly after” she fell : 2

Ms. Patton sued Carnival for negligent failure to correct aknown dangerous condition, negligent failure to warn, and negligent maintenance. The complaint alleged that Carnival “knew or should have known that the metal threshold on which [Ms. Patton]

2 “[D]ocuments attached to a complaint .

. . can generally be considered by a federal court in rulin g on a motion to dismiss under Rule 12(b)(6).” Saunders

v
. Duke , 766 F.3d 1262, 1270 (11th Cir. 2014). USCA11 Case: 22-13806 Document: 25-1 Date Filed: 04/30/2024 Page: 3 of 94 Opinion of the Court 22

- 13806
trip ped posed a tripping hazard for passengers walking over it dueto its condition and the length of time the protruding metal condition had existed.” The attached photographs , the complaint continued, “constitute [d] circumstantial evidence that the conditio n of the threshold had developed due to wear over a period of time” and should’ve been flagged by Carnival’s housekeeping crew, who cleaned the floors in th at area every day

. Ms. Patton also attached Carnival safety documents to her complaint, which show ed that the company was aware thresholds pose d trip and fall risk s

. Carnival moved to dismiss the complaint for failure to state a claim , arguing that Ms. Patton had failed to allege it was on notice that the threshold posed any danger

. The district cou rt granted the motion for three reasons. First, because the photos show ed the condition of the threshold “at or shortly after ” the moment when she tripped
, they did not plausibly show that Carnival had prior notice that the threshold was dangerous

. Second, the complaint did

not allege “how or why” the ship’s cleaning staff would’ve recognized the danger of a “metal threshold that was uneven with the floor by inches, if not less.” And t hird, the Carnival safety documents didn’t put the company on notice because , although they “vaguely reference [d] potential dangers related to ‘thresholds,’” they didn’t specifically “reference any danger related to metal thresholds that were not flush to the ground .” Ms. Patton timely app ealed.

I I

. “We review de novo the district court ’ s grant of a Rule 12(b)(6) motion to dismiss for failure to state a claim

. . . .” Holland
, USCA11 Case: 22-13806 Document: 25-1 Date Filed: 04/30/2024 Page: 4 of 922

- 13806 Opinion of the Court 5

50 F.4th at 1093 (quotation omitted). To survive a motion to dismiss, a complaint must allege “enough facts to state a claim to relief that is plausible
, ” not speculative. Bell Atl. Corp. v. Twombly , 550 U.S. 544 , 555, 570 (2007)

. “ Factual allegations that are ‘ merely consistent with a defendant ’ s liability ’ fall short of being facially plausible

. ” Chaparro v. Carnival Corp. , 693 F.3d 1333, 1337 (11th Cir. 2012) (quoting Ashcroft v. Iqbal
, 556 U.S. 662, 678 (2009) ). And w e

“ may infer from the factual allegations in the complaint obvious alternative explanations, which suggest lawful conduct rather t han the unlawful conduct the plaintiff would ask the court to infer .” Doe v. Samford Univ. , 29 F.4th 675, 686 (11th Cir. 2022) ( quotation omitted)

. While we accept the complaint’s factual allegations as true, we’re “not required to credit conclusory alle gations, unwarranted deductions of facts or legal conclusions masquerading as facts.” Warren Tech., Inc. v. UL LLC , 962 F.3d 1324, 1328 (11th Cir. 2020) (quotation omitted)

. III.

To state a maritime negligence claim, 3 a plaintiff must first allege that “the defendant had a duty to protect the plaintiff from a particular injury .” Holland , 50 F.4th at 1094 (quotation omitted).

3 M aritime law governs this case , e ven though the Carnival ship was docked in Key West when Ms. Patton was injured. See Kermarec v. Compagnie Generale Transatlantique , 358 U.S. 625, 626

– 28 (1959) (holding that maritime law applied to a trip and fall that occurred on a boat “berthed at a pier”); Doe v. Celebrity Cruis es, Inc. , 394 F.3d 891, 901

– 02 (11th Cir. 2004) (holding that maritime law governed a sexual assault claim
, even though the assault occurred while the ship was docked). USCA11 Case: 22-13806 Document: 25-1 Date Filed: 04/30/2024 Page: 5 of 96 Opinion of the Court 22

- 13806 For that duty to attach, the shipowner must “ have had actual or constructive notice of a risk

- creating condition

. ” Id. (cleaned up). A shipowner has c onstructive notice when it “ought to have known” of the dangerous condition

. Id. at 1095. Generally, t he plaint iff can allege constructive notice in one of two ways: (1) that the “defective condition existed for a sufficient period of time to invite corrective measures ” ; or (2) that “substantially similar incidents ” had been caused by substantially similar conditions. Id. (cleaned up).

Ms. Patton focuses her appeal on the firs t way of alleging constructive notice, 4 arguing that the metal threshold was raised from the floor for a “ sufficient period of time to invite corrective

measures. ” Holland , 50 F.4th at 1094 (quotation omitted). Her argument falls short for the same reason it did in Holland

. There, the plaintiff was walking down a glass staircase o n a Carnival cruise ship “when he slipped on a wet or slippery transient foreign substance.” Id. at 1091 (quotation omitted). We affirmed the dist rict court ’s dismissal because the plaintiff had n’t plausibly allege d that Carnival should’ve known that the substance had been on the stairs

. Id. at 1095

– 97. W e explained that t he plaintiff’s complaint lacked “any allegation as to how long the [ substance ] existed on the glass staircase ” and didn’t otherwise “describe th [ e ]

4 Ms. Patton raises the second way to allege constructive notice for the first time in her reply brief, but “ a rguments raised for the first time in a reply brief are not properly before a reviewing court.” Raheem v. GDCP Warden , 995 F.3d 895, 919 n.6 (11th Cir. 2021) (quotation omitted)

. USCA11 Case: 22-13806 Document: 25-1 Date Filed: 04/30/2024 Page: 6 of 922

- 13806 Opinion of the Court 7

substance in a way that would suggest it existed on the staircase for a sufficient period of time such that Carnival shoul d have been aware of it.” Id

. at 1096 (quotation omitted) ; see also Newbauer v. Carnival Corp. , 26 F.4th 931 , 935 (11th Cir. 2022) ( “[W]hile [the plaintiff] alleged in her complaint that the substance ‘ had existed for a sufficient period of time before [her] fall ’ .

. . she failed to allege any facts in support of th [at] conclusory allegation.”)

. Here, too, Ms. Patton hasn’t plausibly allege d that the dangerous condition existed for a “sufficient length of time ” to impute notice to Carnival because the complaint lacks any plausible “allegation as to how long” the dangerous condition existed

. See Holland
, 50 F.4th at 1096. Likewise, sh e hasn’t plausibly describe d the dangerous condition “in a way that would suggest ” it had been there “ for a sufficient period of time

. ” See i d

. The photographs don’t help her because, as the district court explained, Ms. Patton

“ does not even attempt to plead that the photographs

. . . represent the state of the metal threshold before the time of the incident

. ”

Ms. Patton raises two counter arguments

. First, s he contends that, although the photos attached to the complaint were

t aken “at or shortly after” she fell, the “reasonable inference[]” to draw is that “the dangerous condition of the threshold was due to wear and developed over a considerable time, much more than just a few minutes, hours or even days.” But t here’s not eno ugh in the complaint or the attachments for us to conclude that this inference is reasonable and not an unwarranted deduction

. See Sinaltrainal v. Coca

- Cola Co. , 578 F.3d 1252, 1260 (11th Cir. 2009) ( “ I n evaluating USCA11 Case: 22-13806 Document: 25-1 Date Filed: 04/30/2024 Page: 7 of 98 Opinion of the Court 22

- 13806 the sufficiency of a plaintiff’s pleadings, we make reasonable inferences in [p]laintiff’s favor, but we are not required to draw plaintiff’s inference

. Similarly, u nwarranted deductions of fact in a complaint are not admitted as true for the purpose of testing the sufficienc y of plaintiff’s allegations.” (cleaned up)). Ms. Patton never explains (and it’s not self

- evident) what in the photo s or complaint shows that it’s a reasonable inference that the gap beneath the metal threshold emerged gradually over the course of days d ue to wear and tear. Second, Ms. Patton argues that her complaint should survive Carnival’s dismissal motion because the relevant evidence is

“ wholly under the control of the cruise line ,” and
, at the pleading stage, all she “ can reasonably know about the cause ” of her injury is whatever observations she could make “ at or shortly after ” it happened. But Ms. Patton misunderstands her pleading burden

. She is not required
, at th e pleading stage , to know that Carnival had constructive knowledge of the threshol d’s dangerous condi tion

. S he only need ed to allege plausible facts that Carnival had constructive notice of the dangerous condition. S o long as she had a good

faith basis, s he could’ve made these allegations even though she did not have access yet to evidence support ing them. See Fed. R. Civ. P. 11(b)(3) ( allowing pleaders to make factual allegations that theybelieve “will likely have evidentiary support after a reasonable opportunity for further investigation or discovery”)

. But, because the complaint doesn’t allege plausible facts that Carnival had constructi ve notice of the raised threshold, we must affirm the dismissal of her complaint. USCA11 Case: 22-13806 Document: 25-1 Date Filed: 04/30/2024 Page: 8 of 922

- 13806 Opinion of the Court 9

AFFIRMED. USCA11 Case: 22-13806 Document: 25-1 Date Filed: 04/30/2024 Page: 9 of 9