Marilyn Patton v. Carnival Corporation

[DO NOT PUBLISH]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 9

-- 1 of 9 --

2 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 ANDERSON, Circuit Judges.
PER C URIAM :
Marilyn Patton appeals 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 elevators 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 com-
plaint’s factual allegations as true and construe them in the light most favora-
ble 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 9

-- 2 of 9 --

22-13806 Opinion of the Court 3
hazard.” Ms. Patton attached two photographs 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 a
known dangerous condition, negligent failure to warn, and negli-
gent 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 ruling 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 9

-- 3 of 9 --

4 Opinion of the Court 22-13806
tripped posed a tripping hazard for passengers walking over it due
to its condition and the length of time the protruding metal condi-
tion had existed.” The attached photographs, the complaint con-
tinued, “constitute[d] circumstantial evidence that the condition 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 that area every day. Ms. Patton also attached
Carnival safety documents to her complaint, which showed that
the company was aware thresholds posed trip and fall risks.
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 court granted the
motion for three reasons. First, because the photos showed the
condition of the threshold “at or shortly after” the moment when
she tripped, they did not plausibly show that Carnival had prior no-
tice that the threshold was dangerous. Second, the complaint did
not allege “how or why” the ship’s cleaning staff would’ve recog-
nized the danger of a “metal threshold that was uneven with the
floor by inches, if not less.” And third, the Carnival safety docu-
ments 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
appealed.
II.
“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 9

-- 4 of 9 --

22-13806 Opinion of the Court 5
50 F.4th at 1093 (quotation omitted). To survive a motion to dis-
miss, a complaint must allege “enough facts to state a claim to re-
lief that is plausible,” not speculative. Bell Atl. Corp. v. Twombly, 550
U.S. 544, 555, 570 (2007). “Factual allegations that are ‘merely con-
sistent with a defendant’s liability’ fall short of being facially plau-
sible.” Chaparro v. Carnival Corp., 693 F.3d 1333, 1337 (11th Cir.
2012) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)). And we
“may infer from the factual allegations in the complaint obvious
alternative explanations, which suggest lawful conduct rather than
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 allegations, unwar-
ranted 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 Maritime law governs this case, even 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
Cruises, 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 9

-- 5 of 9 --

6 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 constructive notice when it “ought to have
known” of the dangerous condition. Id. at 1095. Generally, the
plaintiff 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 inci-
dents” had been caused by substantially similar conditions. Id.
(cleaned up).
Ms. Patton focuses her appeal on the first 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 ar-
gument falls short for the same reason it did in Holland.
There, the plaintiff was walking down a glass staircase on a
Carnival cruise ship “when he slipped on a wet or slippery transient
foreign substance.” Id. at 1091 (quotation omitted). We affirmed
the district court’s dismissal because the plaintiff hadn’t plausibly
alleged that Carnival should’ve known that the substance had been
on the stairs. Id. at 1095–97. We explained that the plaintiff’s com-
plaint 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 “arguments 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 9

-- 6 of 9 --

22-13806 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 should 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 al-
lege any facts in support of th[at] conclusory allegation.”).
Here, too, Ms. Patton hasn’t plausibly alleged that the dan-
gerous condition existed for a “sufficient length of time” to impute
notice to Carnival because the complaint lacks any plausible “alle-
gation as to how long” the dangerous condition existed. See Hol-
land, 50 F.4th at 1096. Likewise, she hasn’t plausibly described the
dangerous condition “in a way that would suggest” it had been
there “for a sufficient period of time.” See id. 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 counterarguments. First, she con-
tends that, although the photos attached to the complaint were
taken “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 there’s not enough 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) (“In evaluating
USCA11 Case: 22-13806 Document: 25-1 Date Filed: 04/30/2024 Page: 7 of 9

-- 7 of 9 --

8 Opinion of the Court 22-13806
the sufficiency of a plaintiff’s pleadings, we make reasonable infer-
ences in [p]laintiff’s favor, but we are not required to draw plain-
tiff’s inference. Similarly, unwarranted deductions of fact in a com-
plaint are not admitted as true for the purpose of testing the suffi-
ciency of plaintiff’s allegations.” (cleaned up)). Ms. Patton never
explains (and it’s not self-evident) what in the photos or complaint
shows that it’s a reasonable inference that the gap beneath the
metal threshold emerged gradually over the course of days due to
wear and tear.
Second, Ms. Patton argues that her complaint should sur-
vive 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 the pleading stage, to know that Carnival had
constructive knowledge of the threshold’s dangerous condition.
She only needed to allege plausible facts that Carnival had construc-
tive notice of the dangerous condition. So long as she had a good-
faith basis, she could’ve made these allegations even though she did
not have access yet to evidence supporting them. See Fed. R. Civ.
P. 11(b)(3) (allowing pleaders to make factual allegations that they
believe “will likely have evidentiary support after a reasonable op-
portunity for further investigation or discovery”). But, because the
complaint doesn’t allege plausible facts that Carnival had construc-
tive 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 9

-- 8 of 9 --

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

-- 9 of 9 --