United States District Court, S.D. Florida, Miami Division
ORDER DISMISSING COMPLAINT WITHOUT PREJUDICE
FEDERICO A. MORENO, UNITED STATES DISTRICT JUDGE.
cruise line trip-and-fall case, Plaintiff Margarita Navarro
asserts a single claim for negligence against Defendant
Carnival Corporation. Specifically, Navarro alleges that
Carnival is liable for the injuries she suffered to her knee,
hip, and shoulder after a Carnival employee photographer
"unexpectedly" stuck her leg out while taking a
picture, causing Navarro to trip and fall. Carnival filed a
Motion to Dismiss (D.E. 6) on grounds that Navarro fails to
allege that Carnival had "actual or constructive"
notice of the alleged hazard. In her Opposition, Navarro
insists that her Complaint adequately alleges notice and
breach of duty.
COURT has considered the Motion, the Response in Opposition,
the Reply, the pertinent portions of the record, and being
otherwise fully advised in the premises, it is
that the Motion is GRANTED. Accordingly, the
Complaint is DISMISSED WITHOUT PREJUDICE.
Complaint, Navarro alleges she was a paying passenger on
Carnival's Imagination cruise vessel on March 23, 2018,
when she suffered injuries to her knee, hip, and shoulder
after being "tripped by a Cruise Photographer"
working for Carnival. (D.E. 1 at ¶ 7.) The core factual
allegation in the Complaint is that a Carnival employee
photographer "unexpectedly stuck her leg out when she
went down on one knee to take a picture," and Navarro
tripped over the employee's leg. Id. This is
where the specific relevant factual allegations end.
goes on to allege that Carnival owed her a duty to exercise
reasonable care under the circumstances for her safety, and
that Carnival breached its duty of care to Navarro by: (1)
"creating a hazardous condition, by the negligent action
of its employee"; (2) "failing to properly rope off
the area"; (3) "failing to train its personnel to
prevent such accidents"; and (4) "failing to warn
[Navarro] and fellow passengers of a dangerous and hazardous
condition." Id. at ¶¶ 8-9. Finally,
Navarro alleges that as a direct and proximate cause of
Carnival's negligence, she has suffered physical and
emotional injuries that are permanent or continuing in
nature. Id. at ¶ 10.
pleading that states a claim for relief 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). To
survive a motion to dismiss, a "complaint must contain
sufficient factual matter, accepted as true, to 'state a
claim to relief that is plausible on its face.'"
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting
Bell Ail. Corp. v. Twombly, 550 U.S. 544, 570
(2007)). "A claim has facial plausibility when the
plaintiff pleads factual content that allows the court to
draw the reasonable inference that the defendant is liable
for the misconduct alleged." Id. (citing
Twombly, 550 U.S. at 556). "While legal
conclusions can provide the framework of a complaint, they
must be supported by factual allegations." Id.
at 679. Detailed factual allegations are not required, but a
complaint must offer more than "labels and
conclusions" or "a formulaic recitation of the
elements of the cause of action." Twombly, 550
U.S. at 555 (citation omitted). The factual allegations must
be enough to "raise a right to relief above the
speculative level." Id. (citations omitted).
state a negligence claim, Navarro must allege: (1) Carnival
had a duty to protect her from a particular injury; (2)
Carnival breached that duty; (3) the breach actually and
proximately caused her injury; and (4) she suffered actual
harm. Pizzino v. NCL (Bahamas) Ltd., 709 Fed.Appx.
563, 565 (11th Cir. 2017) (citing Sorrels v. NCL
(Bahamas) Ltd., 796 F.3d 1275, 1280 (11th Cir. 2015)).
Under federal maritime law, a ship owner owes all passengers
a duty of exercising reasonable care under the circumstances.
Keefe v. Bahama Cruise Line, Inc., 867 F.2d 1318,
1321 (11th Cir. 1989) (quoting Kermarec v. Compagnie
Generale Transatlantique, 358 U.S. 625, 632 (1959)).
Importantly, "where... the menace is one commonly
encountered on land and not clearly linked to nautical
adventure"-as is the case here-Navarro must also allege
factual matter demonstrating that Carnival "had actual
or constructive notice of the risk-creating condition."
Pizzino, 709 Fed.Appx. at 565 (quoting
Keefe, 867 F.2d at 1322).
Navarro's allegations fall short of stating a claim for
negligence. Aside from alleging that a Carnival employee
photographer "unexpectedly stuck her leg out
when she went down on one knee to take a picture" (D.E.
1 at ¶ 7 (emphasis added)), Navarro does not allege any
facts explaining how Carnival had, or why Carnival should
have had, actual or constructive notice of the risk-creating
condition-the "unexpected" leg movement.
Accordingly, the Court cannot "draw the reasonable
inference" that Carnival had actual or constructive
notice of the risk-creating condition. Iqbal, 556
U.S. at 678 (citing Twombly, 550 U.S. at 556).
addition, Navarro asserts four theories of Carnival's
negligence: (1) "creating a hazardous condition, by the
negligent action of its employee"; (2) "failing to
properly rope off the area"; (3) "failing to train
its personnel to prevent such accidents"; and (4)
"failing to warn [Navarro] and fellow passengers of a
dangerous and hazardous condition." Id. at
¶¶ 8-9. Now, "[w]hile legal conclusions can
provide the framework of a complaint, they must be supported
by factual allegations." Iqbal, 556 U.S. at
679. But here, Navarro does not assert a single factual
allegation supporting any of these theories. For example,
Navarro does not allege any facts showing or explaining: how
or why the employee photographer created a hazardous
condition by taking a photograph; how or why the
employee's leg movement fell below the requisite standard
of care; how or why Carnival's failure to warn Navarro
fell below the requisite standard of care; or, how or why the
training given to Carnival employees fell below the requisite
standard of care.
short, Navarro's relevant factual allegations begin and
end with paragraph 7. Without additional factual allegations
regarding the context or circumstances of the trip-and-fall,
the Court cannot "draw the reasonable inference"
that Carnival's actions-through its employee