USCA11 Case: 20-14811 Date Filed: 09/09/2021 Page: 1 of 15
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT ________________________
Nos. 20-14811; 21-10198 Non-Argument Calendar ________________________
D.C. Docket No. 1:19-cv-24871-UU
AIDA RIOS,
Plaintiff-Appellant,
versus
MSC CRUISES, SA, a Swiss Corporation,
Defendant-Appellee.
________________________
Appeals from the United States District Court for the Southern District of Florida ________________________
(September 9, 2021)
Before WILSON, MARTIN, and BRANCH, Circuit Judges.
PER CURIAM: USCA11 Case: 20-14811 Date Filed: 09/09/2021 Page: 2 of 15
Aida Rios tripped and fell over a raised step in a music and dance lounge
while a passenger on the MSC Seaside (“Seaside”) cruise ship, which resulted in an
injury to her left arm and shoulder that ultimately required a complete shoulder
replacement surgery. Rios sued MSC Cruises (“MSC”) for negligence, alleging
that she tripped and fell over the step due to inadequate lighting in the lounge.
After denying Rios’s belated motion to amend her complaint and striking the
testimony of Rios’s lighting expert, the district court granted MSC’s motion for
summary judgment because it found that Rios failed to show that MSC had actual
or constructive knowledge of the dangerous condition. After careful review, we
affirm.
I. Background
A. The Complaint
On December 1, 2018, Rios, a 71-year-old passenger aboard the Seaside,
tripped and fell over a step 1 in one of the dance lounges. Thereafter, in November
2019, Rios, through counsel, filed a single-count maritime negligence suit against
MSC. In her complaint, she alleged that she tripped and fell over the step “due to
the extremely poor lighting in the lounge which caused Plaintiff’s fall” and that
1 In her complaint, Rios used the term “staircase,” but, as the district court noted, Rios later conceded that the site of the accident is best described as a “step.” And on appeal, both parties refer to the single “step.”
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MSC negligently failed to warn passengers of the dangerous condition, which it
knew or should have known existed. 2 Following months of discovery, on August
12, 2020, Rios’s counsel filed a motion to amend the complaint. The district court
denied the motion as untimely because the deadline to amend the pleadings had
expired almost six months prior on February 21, 2020, and Rios had not asserted
good cause for the amended complaint as required by Federal Rule of Civil
Procedure 16(b).
B. MSC’s Motion to Strike Rios’s Lighting Expert
In addition to the expert that conducted an inspection of the ship, Rios hired
a lighting expert—engineer Thomas G. Burtness, who prepared a report. MSC
moved to strike Burtness’s expert report and testimony under Federal Rule of
Evidence 702 on the ground that it did not meet the requirements of Daubert.3 In
particular, MSC argued that Rios had failed to establish the proper foundation or
reliability of the expert opinion testimony, noting that Burtness had not personally
inspected the ship. Rios opposed the motion to strike.
The district court granted MSC’s motion to strike on the ground that Rios
did not show that Burtness’s testimony arose from sufficiently reliable
2 Importantly, throughout the five-page complaint, Rios focused on the lighting of the area around the step as the hazardous condition which resulted in her failure to detect the step and her fall. 3 Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579 (1993). 3 USCA11 Case: 20-14811 Date Filed: 09/09/2021 Page: 4 of 15
methodology. Specifically, Burtness relied on photographs and videos taken by
Rios’s other expert that had inspected the ship, but Rios failed to establish by a
preponderance of the evidence that other experts in the field would rely upon such
materials in forming their expert opinions. In fact, Burtness acknowledged that
photographs and videos were unreliable indicators of actual lighting.
C. MSC’s Motion for Summary Judgment
The parties filed cross-motions for summary judgment. MSC argued, in
relevant part, that summary judgment should be entered in its favor because Rios
put forth no evidence that MSC had actual or constructive notice of the dangerous
condition posed by the inadequate lighting in the lounge. Rios opposed the
motion, arguing that MSC had, at a minimum, constructive notice of the dangerous
condition because it had placed “Watch Your Step” signs on the step.4
The district court determined that, viewing the facts in the light most
favorable to Rios, MSC was entitled to summary judgment. The district court
4 Rios also produced an affidavit from a man named Joseph DiJoseph which indicated that, while a passenger on the Seaside in December 2017, his wife tripped and fell over the same step. Rios argued that this affidavit established that MSC had actual notice of the dangerous condition. However, the district court excluded the affidavit on the ground that it was based on inadmissible hearsay—namely statements DiJoseph’s wife made to Joseph—and Rios had not established a hearsay exception. Although in the facts section of her counseled initial brief before us, Rios makes a passing assertion that “[t]he district court erroneously rejected” the affidavit, she fails to dedicate a discrete section of the counseled brief to this issue or provide any supporting argument or authority for this proposition. Accordingly, we conclude that she abandoned any claim related to the exclusion of this affidavit. Sapuppo v. Allstate Floridian Ins. Co., 739 F.3d 678, 681 (11th Cir. 2014) (“A party fails to adequately ‘brief’ a claim when he does not ‘plainly and prominently’ raise it, for instance by devoting a discrete section of his argument to those claims.” (quotation omitted); id. (“We have long held that an appellant 4 USCA11 Case: 20-14811 Date Filed: 09/09/2021 Page: 5 of 15
explained that actual or constructive notice of the alleged dangerous condition was
an essential element of a maritime negligence claim on which Rios bore the burden
of proof. The district court acknowledged that warning signs may serve as
evidence of notice of a dangerous condition when there is a connection between
the warning and the dangerous condition. But in this case, the “Watch Your Step”
signage did not establish either actual or constructive notice because there was not
a sufficient connection between the warning and the dangerous condition—
inadequate lighting. Accordingly, the district court concluded that MSC was
entitled to summary judgment because Rios failed to establish an essential element
of her claim.
On appeal, Rios argues that (1) the district court abused its discretion in
denying her motion to amend the complaint; (2) the district court misconstrued her
complaint and erred in granting summary judgment to MSC because she
established notice of the dangerous condition; and (3) the district court abused its
discretion in excluding Burtness’s expert testimony and report. We address each
claim in turn.
abandons a claim when he either makes only passing references to it or raises it in a perfunctory manner without supporting arguments and authority.”). Although she provided some argument on this issue in her reply brief, as in Sapuppo, those “arguments come too late.” Id. at 682–83; see also Big Top Koolers, Inc. v. Circus–Man Snacks, Inc., 528 F.3d 839, 844 (11th Cir. 2008) (“We decline to address an argument advanced by an appellant for the first time in a reply brief.”). 5 USCA11 Case: 20-14811 Date Filed: 09/09/2021 Page: 6 of 15
II. Discussion
1. Whether the district court abused its discretion in denying Rios’s motion to amend
Rios argues that the district court abused its discretion in denying her motion
to amend her complaint. “We review for abuse of discretion a district court’s
denial of a motion to amend.” Bryant v. Dupree, 252 F.3d 1161, 1163 (11th Cir.
2001).
Where, as here, the plaintiff seeks leave to amend the complaint after a
responsive pleading has been filed, she may amend the complaint “only with the
opposing party’s written consent or the court’s leave.” Fed. R. Civ. P. 15(a)(2).
Rule 15 further provides that “[t]he court should freely give leave when justice so
requires.” Id. However, where leave to amend is sought after the relevant deadline
in the scheduling order, Federal Rule of Civil Procedure 16(b) requires that the
plaintiff demonstrate good cause for the amendment. Fed. R. Civ. P. 16(b)(4); see
also Smith v. Sch. Bd. of Orange Cnty., 487 F.3d 1361, 1366 (11th Cir. 2007)
(“[W]here a party’s motion to amend is filed after the deadline for such motions, as
delineated in the court’s scheduling order, the party must show good cause why
leave to amend the complaint should be granted.”); Sosa v. Airprint Sys., Inc., 133
F.3d 1417, 1419 (11th Cir. 1998) (discussing interplay between Rule 15(a) and
Rule 16(b)).
6 USCA11 Case: 20-14811 Date Filed: 09/09/2021 Page: 7 of 15
Rios’s initial 2019 complaint asserted that MSC Cruises (a) “knew or should
have known, that an unreasonably dangerous condition existed in the area of the
[step] due to the extremely poor lighting in the lounge which caused Plaintiff’s
fall”; and (b) was negligent in failing to warn passengers of the “trip/fall hazard . . .
despite being on notice of the condition and its dangerous propensities especially
given the dark lighting in the dance lounge, including the failure to place warning
signs, cones, or ropes in the area of the staircase or otherwise delineate it as a
dangerous condition.” In other words, she alleged that the inadequate lighting in
the lounge created a dangerous condition in the area of the step.
However, on August 12, 2020, after months of discovery and almost six
months after the amended pleading deadline set by the district court, Rios’s
counsel sought leave to file an amended complaint which provided as follows:
a) The Defendant . . . knew or should have known, that an unreasonably dangerous condition existed in the area of the elevated step as a single elevated step when not readily apparent creates a danger, especially when due to the extremely poor and inadequate lighting, and a concealed elevation of the step due to a visual cue created by the “mirror section of the step” which reflects an elevation of the step which is inaccurate, all of which caused or contributed to Plaintiff’s fall; and
b) Negligently failing to warn passengers, and in particular the Plaintiff, of a dangerous and hazardous condition which it knew, or should have known, existed in the aforesaid trip/fall hazard as described above, again despite being on notice of the condition and it’s [sic] dangerous propensities especially given the extremely poor and inadequate lighting, and a concealed elevation of the step due to a visual cue created by the “mirrored section of the step” which reflects an elevation of the step which is inaccurate, and including the failure to place warning signs, cones, or
7 USCA11 Case: 20-14811 Date Filed: 09/09/2021 Page: 8 of 15
ropes in the area of the elevated step or otherwise delineate it as a dangerous condition.
In short, she alleged that, in addition to the inadequate lighting in the lounge, the
design of the step itself created a dangerous condition.
The district court did not abuse its discretion in denying Rios’s motion to
amend her complaint—filed almost 6 months after the deadline for pleading
amendments—because Rios failed to show good cause. Rios asserted in her
motion to amend that, since the filing of her complaint, she had received one of her
expert’s reports which indicated that the design/build of the step itself was a
dangerous condition. However, the fact that discovery may have revealed
additional theories to support her negligence claim does not establish good cause
for a belated amendment of the complaint well after the established deadline.5
On appeal, Rios argues that she established good cause for the amendment
because MSC had not argued that the single step change in elevation was not
covered by the amended pleading until after the relevant pleading deadline had
passed. However, we note that Rios did not make this argument to the district
court. Moreover, the record reveals that MSC had not made this argument at all at
the time she sought to amend her complaint. And regardless, the fact that MSC did
5 Rios alleged in her motion for leave to amend that she raised two negligence theories in her initial complaint—one based on the inadequate lighting in the area of the step and one based on a defect with the design of the step itself—and that the amended complaint was simply a “clarify[ing]” amendment. However, her contention is belied by the record as the allegations in the proposed amended complaint were substantially different than those in the initial complaint. 8 USCA11 Case: 20-14811 Date Filed: 09/09/2021 Page: 9 of 15
not argue that Rios had failed to allege that the step itself was a dangerous
condition until after the deadline to amend had passed does not constitute good
cause for a belated amendment of the complaint post-discovery. Rios was
represented by counsel and as the plaintiff was the master of her complaint,
meaning that she (not MSC) was required to “identify [her] claims with sufficient
clarity.” Sledge, 275 F.3d at 1018 n.8.
Accordingly, we cannot say that under these circumstances the district court
abused its discretion in denying the belated motion to amend. See Maynard v. Bd.
of Regents of Div. of Univs. of Fla. Dep’t of Educ., 342 F.3d 1281, 1287 (11th Cir.
2003) (“Because we conclude that [the plaintiff] has failed to show good cause for
the eleventh hour amendment, we find that the district court did not abuse its
discretion by enforcing its timetable for disposition of the case.”).
2. Whether the district court misconstrued Rios’s complaint and erred in granting summary judgment
A. Construction of the Complaint
Rios argues the district court erred by interpreting her 2019 complaint as
only asserting a negligence claim based on inadequate lighting in the area of the
step. She maintains that she “clearly alleged multiple dangerous conditions” in her
complaint, including “allegations about the dangerous condition presented by the
single step change in elevation,” and that the district court erred in reading her
complaint too narrowly. 9 USCA11 Case: 20-14811 Date Filed: 09/09/2021 Page: 10 of 15
We review a district court’s grant of summary judgment de novo, “view[ing]
the evidence in the light most favorable to the non-moving party.” Thomas v.
Cooper Lighting, Inc., 506 F.3d 1361, 1363 (11th Cir. 2007). Summary judgment
is proper if the evidence 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). Summary judgment should be granted against a party who
fails to establish the existence of an essential element of her case for which she will
bear the burden of proof at trial. Melton v. Abston, 841 F.3d 1207, 1219 (11th Cir.
2016).
A complaint 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). The statement must
“give the defendant fair notice of what the plaintiff’s claim is and the grounds upon
which it rests.” Swierkiewicz v. Sorema N. A., 534 U.S. 506, 512 (2002) (quotation
omitted); Sledge v. Goodyear Dunlop Tires N. Am., Ltd., 275 F.3d 1014, 1018 n.8
(11th Cir. 2001) (explaining that a complaint must “identify [the plaintiff’s] claims
with sufficient clarity to enable the defendant to frame a [responsive] pleading”).
After reviewing her 2019 five-page single-count complaint, the district court
concluded that the only negligence theory Rios alleged was that she tripped and
fell over the step because of inadequate lighting on the ship. We agree with the
district court. The counseled complaint alleged in the single negligence count that
10 USCA11 Case: 20-14811 Date Filed: 09/09/2021 Page: 11 of 15
“an unreasonably dangerous condition existed in the area of the [step] due to the
extremely poor lighting in the lounge which caused Plaintiff’s fall.” Although the
complaint generally asserted that MSC could have placed “warning signs, cones, or
ropes in the area of the [step],” it did not allege that any issues with the elevation
of the step or the design or build of the step contributed to her fall.6 Rather, the
allegations concerning issues with the elevation and design of the step arose for the
first time in Rios’s motion to amend the complaint, which the district court denied.
Accordingly, Rios’s counseled initial complaint did not give MSC notice that the
negligence claim was also based on the theory that the design or build of the step
6 While Rios is correct that, at the summary judgment stage, as the non-movant all reasonable inferences must be drawn in her favor and that the notice pleading standard is a liberal pleading rule, neither principle requires that the “defendants must infer all possible claims that could arise out of facts set forth in the complaint.” Gilmour v. Gates. McDonald & Co., 382 F.3d 1312, 1315 (11th Cir. 2004). Rather, “[p]laintiffs are the masters of their claims” and Rios’s conclusory allegations in her complaint relating to the lack of “sufficient warning signs” in the area of the step were not sufficient to put MSC on notice that Rios was also arguing that the design and build of the step itself constituted a dangerous condition. See Merle Wood & Assocs., Inc. v. Trinity Yachts, Inc., 714 F.3d 1234, 1237 (11th Cir. 2013). Moreover, we note that Rios was represented by counsel, which further undermines her argument that her complaint should have been liberally construed. See GJR Invs., Inc. v. Escambia, Fla., 132 F.3d 1359, 1369 (11th Cir. 1998) (explaining that because the plaintiff “was represented by counsel; it was not necessary for the court to read [the] complaint with such indulgence”), overruled on other grounds as recognized in Randall v. Scott, 610 F.3d 701, 709 (11th Cir. 2010). Finally, Rios’s assertion that the parties “understood” that “the single step change in elevation” was part of the negligence claim is refuted by the record. The record confirms that MSC consistently and repeatedly argued in the district court that Rios did not have a claim based on an issue with the step itself and that the only basis for her negligence claim was the inadequate lighting in the lounge. The fact that Rios argued in her response to MSC’s motion for summary judgment that the single step elevation itself constituted a dangerous condition is not relevant because “[a] plaintiff may not amend her complaint through argument in a brief opposing summary judgment.” Gilmour, 382 F.3d at 1315. 11 USCA11 Case: 20-14811 Date Filed: 09/09/2021 Page: 12 of 15
itself was a dangerous condition, and the district court did not misconstrue her
complaint.
B. Summary Judgment
Rios also argues that the district court erred in granting MSC’s motion for
summary judgment because MSC had notice of the complained of dangerous
condition that caused Rios’s fall as evidenced by the “Watch Your Step” warning
signs on the step.
“Maritime law governs actions arising from alleged torts committed aboard
a ship sailing in navigable waters.” Guevara v. NCL (Bahamas) Ltd., 920 F.3d
710, 720 (11th Cir. 2019). In such cases, “we rely on general principles of
negligence law.” Id. (quotation omitted) (alteration adopted). A negligence claim
requires the plaintiff to show 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.” Id. (quotation omitted).
With respect to the duty element in a maritime context, a shipowner owes the duty of exercising reasonable care towards those lawfully aboard the vessel who are not members of the crew. This standard requires, as a prerequisite to imposing liability, that the carrier have had actual or constructive notice of [a] risk-creating condition, at least where, as here, the menace is one commonly encountered on land and not clearly linked to nautical adventure. In this circumstance, a cruise ship operator’s liability hinges on whether it knew or should have known about the dangerous condition.
12 USCA11 Case: 20-14811 Date Filed: 09/09/2021 Page: 13 of 15
Id. (quotations and internal citations omitted). Thus, Rios bore the burden of
establishing by a preponderance of the evidence that MSC “knew or should have
known about the risk-creating condition.” Amy v. Carnival Corp., 961 F.3d 1303,
1308 (11th Cir. 2020) (quotation omitted). The existence of warning signs may
establish constructive notice of a dangerous condition, provided that there is “a
connection between the warning and the danger.” See Guevara, 920 F.3d at 721;
Carroll v. Carnival Corp., 955 F.3d 1260, 1265 (11th Cir. 2020).
For example, in Sorrels v. NCL (Bahamas) Ltd., after slipping and falling on
an exterior pool deck that was wet from rain, a passenger sued NCL cruise line,
alleging negligence. 796 F.3d 1275, 1279 (11th Cir. 2015). We held that evidence
that the cruise ship “would sometimes post warning signs on the pool deck after it
had rained” advising passengers that the decks could be slippery when wet created
a genuine issue of material fact as to NCL’s knowledge that the pool deck “could
be slippery (and therefore dangerous) when wet,” which precluded summary
judgment. Id. at 1288–89.
Similarly, in Guevara, the plaintiff brought a negligence claim against NCL
after he fell on a step down, alleging, in relevant part, that NCL was negligent in
failing to warn passengers of the step down. 920 F.3d at 715. We held that a sign
on the step that read “ATTENTION! FOR YOUR OWN SAFETY PLEASE USE
THE HANDRAIL. WATCH YOUR STEP” was sufficiently connected to the
13 USCA11 Case: 20-14811 Date Filed: 09/09/2021 Page: 14 of 15
danger—the step down—to permit an inference that the cruise line had actual or
constructive notice that the step down could be dangerous, which precluded
summary judgment. Id. at 715, 721–22. In reaching that decision, however, we
explained that “[n]ot all warning signs will be evidence of notice.” Id. at 721.
Rather, a “‘watch your step’ warning sign means precisely what it says . . . to
caution persons on the ship that the step was there.” Id. (quotation omitted). Thus,
we explained that previously we rejected a claim that a “watch your step” sign
could serve as notice “that the stair’s nosing was slippery” because “common sense
dictate[d] that the sticker served to caution persons that the step was there; that is,
it warned passengers that the surface was not flat. There [was] no evidence that it
was intended to warn passengers that the nosing may be slippery.” Id. (emphasis
and quotation omitted).
Rios argues that a small “Watch Your Step” sign on the face of the step on
which she tripped established that MSC had notice of the “dangerous condition
presented by the single step change in elevation,” but as explained previously, the
design of the step itself was not a basis for her negligence claim. To the extent that
she also argues on appeal that the warning sign established notice that the
inadequate lighting in the lounge created a dangerous condition in the area of the
step, we disagree. As we explained in Guevara, a “Watch Your Step” warning
sign means precisely what it says . . . to caution persons on the ship that the step
14 USCA11 Case: 20-14811 Date Filed: 09/09/2021 Page: 15 of 15
was there” and that the surface was not flat. Id. There is no evidence that the
warning was intended to warn passengers that inadequate lighting in the lounge
may pose a dangerous condition in that area. And Rios failed to proffer any
evidence that demonstrates that MSC was on notice that the inadequate lighting in
the lounge created a dangerous condition for its passengers. Accordingly, because
Rios failed to establish the existence of an essential element of her case for which
she will bear the burden of proof at trial, the district court properly granted MSC’s
motion for summary judgment. Melton, 841 F.3d at 1219.
3. Whether the district court erred in striking the testimony and report of Burtness
Rios argues that the district court abused its discretion by striking the
testimony and expert report of Burtness. But, even assuming arguendo that the
district court abused its discretion in striking Burtness, MSC would still be entitled
to summary judgment on Rios’s claims because Rios failed to establish the notice
element of her negligence claim.7 Melton, 841 F.3d at 1219.
Accordingly, for all these reasons, we affirm the district court.8
AFFIRMED.
7 Burtness’s proposed testimony and expert report concluded that MSC had notice of the dangerous condition posed by the step based on the “Watch Your Step” sign, but as discussed above, that sign is not sufficiently connected to the inadequate lighting issue, and it therefore, does not establish notice for purposes of this negligence claim. 8 In light of our holding, we do not address Rios’s costs related argument because she acknowledges that, if we affirm, the district court’s costs award should stand. 15