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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 16-15491
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D.C. Docket No. 0:15-cv-61734-AOR
CAROL GORCZYCA,
Plaintiff - Appellant,
versus
MSC CRUISES, S.A.,
Defendant - Appellee.
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Appeal from the United States District Court
for the Southern District of Florida
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(November 6, 2017)
Before JORDAN and JILL PRYOR, Circuit Judges, and DUFFEY, * District Judge.
PER CURIAM:
*
Honorable William S. Duffey, Jr., United States District Judge for the Northern District
of Georgia, sitting by designation.
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On October 18, 2014, Carol Gorczyca boarded the Divina, an MSC Cruises
ship, for a 7-night voyage. On October 23, she fell and was injured while
descending a stairway of the Pantheon Theater aboard the Divina. She sued MSC
for negligence, alleging that the metal nosing on the strip of the step on which she
tripped was loose, that the LED lights attached to the metal strip emitted a blinding
glare, and that there was no handrail for her to hold onto as she descended the
steps.
MSC asserted that it did not design or manufacture any of the alleged
dangerous conditions, that it did not have actual or constructive notice of the
alleged dangerous conditions, and that any alleged dangerous conditions were open
and obvious. Following discovery, MSC moved for summary judgment. The
district court ruled that MSC was entitled to summary judgment because, based on
the undisputed facts, MSC did not create the alleged dangerous conditions and had
no actual or constructive notice of the conditions. The district court did not reach
MSC’s third argument regarding the open and obvious nature of the conditions.
Ms. Gorczyca timely filed this appeal. Following oral argument, and a
review of the record, we affirm.
I
We review the district court’s grant of summary judgment de novo. See
Liebman v. Metro. Life Ins. Co., 808 F.3d 1294, 1298 (11th Cir. 2015). We view
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the evidence in the light most favorable to Ms. Gorczyca, the nonmoving party.
See Skrtich v. Thornton, 280 F.3d 1295, 1299 (11th Cir. 2002). Summary judgment
is proper only where 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). See
Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).
Under maritime law, the owner of a ship in navigable waters owes to
passengers “the duty of exercising reasonable care under the circumstances.”
Kermarec v. Compagnie Generale Transatlantique, 358 U.S. 625, 632 (1959). To
prevail on a negligence claim, a plaintiff must prove 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. See Sorrels v. NCL (Bahamas) Ltd., 796 F.3d
1275, 1280 (11th Cir. 2015).
This standard of reasonable care 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). Actual notice exists when the
defendant knows of the risk-creating condition, while constructive notice exists
when “the shipowner ought to have known of the peril to its passengers, the hazard
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having been present for a period of time so lengthy as to invite corrective
measures.” Id. Here, Ms. Gorczyca failed to create an issue of fact as to whether
MSC had either actual or constructive notice of the alleged conditions.
II
As the district court noted, Ms. Gorczyca presented no evidence that MSC
had actual notice of any of the three allegedly dangerous conditions. Ms. Gorczyca
argues that Ryan Allain, MSC’s corporate representative, testified at his deposition
that MSC was aware that the metal nosing on the step on which she tripped was
loose prior to her fall, but we disagree. Mr. Allain testified only that he was aware
the nosing was loose “when [plaintiff’s attorney] inspected” the nosing after the
incident. Additionally, Ms. Gorczyca acknowledges that MSC had no actual
knowledge of any hazards associated with the LED lights or the lack of handrails.
Ms. Gorczyca also failed to present any evidence of prior accidents
substantially similar to hers that would provide MSC with constructive notice of
the alleged dangerous conditions. See Jones v. Otis Elevator Co., 861 F.2d 655,
661-62 (11th Cir. 1988) (although “evidence of similar accidents might be relevant
to the defendant’s notice . . . conditions substantially similar to the occurrence in
question must have caused the prior accident”). She argues that Mr. Allain’s
deposition testimony reveals numerous substantially similar accident reports, but
she is incorrect. Mr. Allain did testify that there were between five and ten
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“accident reports” from falls in the Pantheon Theater over the two years prior to
Ms. Gorczyca’s fall. But none of these falls occurred on the same step or area as
where Ms. Gorczyca fell, and none of them were allegedly due to a loose metal
nosing. In fact, Ms. Gorczyca provided no evidence that any of these accident
reports resulted from a passenger tripping on the metal nosing of the steps of the
Pantheon Theater. And, as the district court explained, Ms. Gorczyca also provided
no evidence of any prior accident reports in the theater due to allegedly faulty LED
lights or the lack of handrails.
Ms. Gorczyca maintains that another passenger behind her tripped and fell
on the same step and grabbed onto her; that another passenger informed the MSC
staff person who was giving ice to her that she had also fallen in the theater the
night before; and that a different passenger had filed an accident report after falling
on the very same step on which she had tripped. These incidents, however, all
occurred, or were reported, after Ms. Gorczyca’s fall, and thus they fail to prove
MSC had any prior notice of a defective condition.
Ms. Gorczyca also relies on a recent slip and fall incident in the Pantheon
Theater which resulted in a lawsuit against MSC, and which was recently reviewed
by this Court. See Taiariol v. MSC Crociere S.A., 677 F. App’x 599 (11th Cir.
2017). In Taiariol, however, this Court affirmed the district court’s grant of
summary judgment to MSC because Ms. Taiariol had not proved actual or
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constructive notice. See id. at 601 (“[T]he ‘similar incidents’ [Ms.] Taiariol
presented are similar to her incident only to the extent that a person fell while on
board one of the defendant’s cruise ships, not that those incidents involved falls
caused by the nosing.”). Ms. Taiariol had “slipped on the metal strip” of a step in
the theater, and had alleged that the step’s “dangerous, slippery, and unsafe
condition” caused her injuries. Id. at 600. We ruled that “while [Ms.] Taiariol was
not required to show that another passenger slipped on the same step while in the
same theater of the same ship during the same trip . . . she at least had to produce
evidence that another person, while aboard one of the defendant’s ships, slipped on
the nosing of one of the ship’s steps.” Id. at 601. The same reasoning applies here,
because Ms. Gorczyca has failed to produce evidence that any other passengers
before her tripped on the steps of the Pantheon Theater due to a faulty or loose
metal nosing. As we stated in Taiariol, “[t]he inquiry is not whether the defendant
had notice of an object or its physical specifications, but instead, whether the
defendant had notice of a risk-creating condition.” Id. at 602 (citing Sorrels, 796
F.3d at 1286).
Ms. Gorczyca contends that MSC knew of the dangerous condition of the
steps because it placed “Watch Your Step” stickers on each of the steps in the
theater. We rejected this very same argument in Taiariol, stating that “[c]ommon
sense dictates that the sticker served to caution persons on the ship that the step
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was there,” not that it was intended “to warn passengers that the nosing may be
slippery” (or, in this case, loose). 677 F. App’x at 602. Ms. Gorczyca has not
presented any factual or legal basis for us to deviate from the reasoning in Taiariol.
Finally, Ms. Gorczyca argued before the district court that where the
defendant itself creates a dangerous condition or situation, the notice requirement
does not apply. See Rockey v. Royal Caribbean Cruises, Ltd., No. 99-708-CIV-
GOLD, 2001 WL 420993 at **4-5 (S.D. Fla. Feb. 20, 2001). She failed to raise
this argument, however, in her briefs or at oral argument, and has thus waived the
issue. See Williams v. Bd. of Regents of Univ. Sys. of Ga., 477 F.3d 1282, 1303
(11th Cir. 2007) (failure to raise an issue properly on appeal waives any argument
as to that issue). See also Greenbriar, Ltd. v. City of Alabaster, 881 F.2d 1570,
1573 n.6 (11th Cir. 1989) (a party’s failure to elaborate on an issue on its merits in
a brief, even if a passing reference is made to the district court’s disposition of the
issue, constitutes a waiver of that issue).
III
In sum, the district court did not err in granting summary judgment to MSC.
As a result, we affirm.
AFFIRMED.
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