Smooth Sailing: Substantial Similarity Doctrine Requires Plaintiffs to Prove Both Violation of Safety Standard and Evidence the Hazard Invites Corrective Measures to Establish Constructive Notice of Premises Owner

Smooth Sailing: Substantial Similarity Doctrine Requires Plaintiffs to Prove Both Violation of Safety Standard and Evidence the Hazard Invites Corrective Measures to Establish Constructive Notice of Premises Owner

Factual Summary

Plaintiff Robert Tuite (“plaintiff”), boarded Carnival’s ship Sunshine in Charleston, South Carolina on March 7, 2022. Three days later, while walking towards the ship’s buffet, known as the Lido Deck Marketplace, plaintiff’s foot caught on a metal fastener bar on the floor that separated the carpeting from the tile, causing plaintiff to trip and fall. As a result of the fall, plaintiff claimed to have suffered severe bodily injuries.

Plaintiff later sued Carnival alleging general negligence, failure to warn, and negligent maintenance. Carnival moved for summary judgment, arguing plaintiff had produced no admissible evidence Carnival had notice that the metal bar that plaintiff tripped over was dangerous. Plaintiff argued in response that overwhelming evidence established Carnival was on notice of the allegedly dangerous condition of the floor.


Plaintiff’s Arguments

Plaintiff argued Carnival had notice of the allegedly dangerous condition of the floor because: (1) the threshold area had remained unchanged for three years prior to plaintiff’s fall; (2) numerous prior falls and near falls had occurred in the area; and (3) Carnival had failed to comply with industry safety standards for walkway surfaces. It was undisputed that the location where plaintiff fell had not changed since three-years before the accident.

To establish evidence of prior falls, plaintiff relied on the testimony of (1) his wife, (2) his good friend and traveling companion, and (3) testimony of Carnival employees.

Plaintiff’s wife claimed that she had seen an unnamed passenger trip but catch himself. But, she admitted that she did not know what had caused his trip and speculated the passenger may have bumped into a child. Plaintiff’s friend and traveling companion claimed he had tripped at the same location as plaintiff, also without falling, but that he did not tell anyone about it.

Finally, a Carnival security employee testified that he had investigated other trip and falls in the walkway near the buffet area, but for “different reasons.” Also, a Carnival physician testified that he sometimes treated as many as five ship passengers a month for fall-related injuries.

To establish that Carnival violated the industry safety standard, plaintiff relied on an expert. Plaintiff’s expert inspected the area and determined there were numerous safety codes violated due to the height difference between the metal fastener bar and the carpet near the accident. Plaintiff argued that these safety violations, along with the fact that they had existed for a period of over three years prior to plaintiff’s fall, established Carnival had constructive notice of the dangerous condition of the walkway where plaintiff fell.


Court’s Analysis

The Court began its analysis by examining plaintiff’s argument regarding prior incidents. The Court found that plaintiff could rely on the “substantial similarity doctrine” [1] to argue that Carnival had constructive notice of the dangerous condition of the walkway. Despite some flexibility, this standard still required plaintiff to “show that conditions substantially similar to the occurrence caused the prior incidents.”[2] The Court determined that plaintiff had failed to provide “any details from which the Court could possible infer substantial similarity” between prior accidents and the falls reported by plaintiff’s wife, his friend, or the Carnival employees.

The Court then addressed plaintiff’s argument that the length of time the walkway remained noncompliant with industry standards was enough to prove Carnival had constructive notice of the dangerous condition. While acknowledging the basis of plaintiff’s argument, the Court ultimately disagreed with his assertions.

The Court found plaintiff was correct that constructive notice could be established by showing that a hazard existed “for a period of time so lengthy as to invite corrective measures.”[3] But, the Court also noted the alleged defect must both (1) exist for a sufficient length of time and (2) invite corrective measures. In other words, it is not enough for the alleged dangerous condition to simply exist, even for a lengthy period of time. There must also be some additional evidence that there was something about the hazard that would have prompted Carnival to identify and fix it.

The noncompliance argument was not dispositive on the issue of negligence, but simply a factor that courts can consider. In this case, Carnival’s acknowledgement that the threshold was cleaned regularly, combined with the fact that there had not been any prior reports or issues with the walkway where the fall occurred supported the Court’s conclusion that the alleged defect did not “invite corrective measures.” Therefore, the Court granted summary judgment for Carnival because plaintiff failed to provide any additional evidence that the alleged noncompliance invited repair.



This case stands for the proposition that a defendant does not automatically incur liability based on technical noncompliance with industry safety standards. Plaintiffs have the burden to prove that the defendant had both constructive notice of the alleged noncompliance and that the hazard would have prompted the defendant to take corrective measures. It is insufficient for plaintiffs to argue that the noncompliant condition simply existed.

The Court held that noncompliance with safety standards, even combined with the passage of significant time, without anything more, is insufficient to establish constructive notice as to the owner of the premises. While property owners should make every effort to follow established safety standards, these standards are numerous and constantly changing. The Court’s decision here appears to recognize this reality and properly places the burden on plaintiffs to provide something more other than mere technical, unreported violations to establish negligence and constructive notice.



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[1] Malley v. Royal Caribbean Cruises Ltd., 713 F.App’x 905, 908 (11th Cir. 2017).

[2] Heath v. Suzuki Motor Corp., 126 F.3d 1391, 1397 n. 12 (11th Cir. 1997).

[3] Holland v. Carnival Corp., 50 F. 4th 1088, 1095 (11th Cir. 2022).