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                                                             [DO NOT PUBLISH]



               IN THE UNITED STATES COURT OF APPEALS

                       FOR THE ELEVENTH CIRCUIT
                         ________________________

                               No. 16-16812
                           Non-Argument Calendar
                         ________________________

                     D.C. Docket No. 1:15-cv-24696-FAM



ANTOINETTE PIZZINO,

                                                          Plaintiff - Appellant,

                                       versus

NCL (BAHAMAS) LTD.,
a Bermuda Company,
d.b.a. Norwegian Cruise Line,

                                                          Defendant - Appellee.

                         ________________________

                  Appeal from the United States District Court
                      for the Southern District of Florida
                        ________________________

                                (September 20, 2017)

Before TJOFLAT, WILLIAM PRYOR and JILL PRYOR, Circuit Judges.

PER CURIAM:
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      After slipping and falling while aboard a cruise ship, Antionette Pizzino

filed suit against the cruise line, NCL (Bahamas) Ltd. (“Norwegian”), alleging that

she slipped in an area where an Norwegian employee had spilled water. Following

a trial, the jury found Norwegian not liable. Pizzino now appeals, arguing that the

district court erred in declining to give a jury instruction that Norwegian need not

have been on actual or constructive notice of the dangerous condition to be liable if

Norwegian created the dangerous condition. After careful review, we affirm the

district court’s judgment.

                               I.      BACKGROUND

      The Pizzinos took a cruise on one of Norwegian’s ships, the Sky. The Sky

contained a coffee bar where Dimitur Hulea worked as a part-time barista. One of

Hulea’s responsibilities was to clean the coffee bar after it closed at midnight.

Because the coffee bar did not have the appropriate facilities, to clean the coffee

bar Hulea had to retrieve two buckets of liquid (one containing a water/bleach

mixture, and one containing only water) from the Sky’s casino. In doing so, Hulea

had to carry the buckets, one at a time, down a corridor that connected the casino

to the coffee bar. Hulea filled the buckets to three quarters full. He testified that

he never spilled liquid from the buckets when transporting them down the corridor.

      Closed circuit television footage from the night when Pizzino slipped shows

Hulea walking a bucket to the coffee bar at approximately 12:38 a.m. Although he


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was not present at that time, Pizzino’s husband, David, was permitted to testify

based on the video that the bucket appeared to tilt to the left and hit Hulea’s right

knee as he approached the coffee bar. About ten minutes later, Hulea left the

coffee bar with two empty buckets and returned with one bucket filled with liquid.

      About three and a half minutes after Hulea returned with the second bucket

of liquid, Pizzino and David walked down the corridor from the casino toward the

coffee bar. Pizzino did not notice any liquid on the ground as she walked. As she

neared the coffee bar, she fell forward onto the ground, resulting in injuries

including two broken wrists. At that point, Pizzino noticed that there was liquid on

the floor where she fell; more specifically, she testified that there were four to six

inch puddles on the floor of the corridor. David also testified that there was water

on the floor where Pizzino slipped. There was no “wet floor” sign present near the

coffee bar.

      After her fall, Pizzino told Hulea to wipe the floor before another person fell,

and David pointed out the water on the floor to Hulea. Hulea then wiped down the

floor where Pizzino had slipped. He testified that he did so even though he did not

see any water on the ground; he simply wanted to placate David, who was upset.

      Pizzino filed suit against Norwegian, alleging that it had negligently created

and failed to eliminate a hazardous condition, the wet spot near the coffee bar, and

that Norwegian’s negligence proximately caused her injuries. At trial, the district


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court denied Norwegian’s motion for a directed verdict and the case proceeded to a

jury. The district court gave the jury the following instruction with regard to

notice:

      To recover for injuries sustained in her fall, the plaintiff, Mrs. Pizzino,
      must prove either, first, that Norwegian had actual notice of the
      alleged risk-creating condition of which she complains or,
      alternatively, the second part, that the dangerous condition existed for
      such a length of time that in the exercise of ordinary care Norwegian
      should have known of it.

Pizzino requested the following additional instruction:

      Where a cruise ship operator created the unsafe or foreseeably
      hazardous condition, a plaintiff need not prove notice in order to
      prove negligence.

The district court denied her request. The jury subsequently returned a

verdict for Norwegian. Pizzino now appeals the district court’s failure to

give her requested jury instruction.

                         II.    STANDARD OF REVIEW

      While we review de novo whether a jury instruction was a correct statement

of law, we review only for an abuse of discretion a district court’s refusal to give a

requested jury instruction. United States v. Hill, 643 F.3d 807, 850 (11th Cir.

2011). “An abuse of discretion is committed only when (1) the requested

instruction correctly stated the law, (2) the instruction dealt with an issue properly

before the jury, and (3) the failure to give the instruction resulted in prejudicial



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harm to the requesting party.” Finnerty v. Stiefel Labs., Inc., 756 F.3d 1310, 1322

(11th Cir. 2014).

                                III.   DISCUSSION

      This case is governed by federal maritime law, under which the owner of a

ship in navigable waters owes passengers a duty of reasonable care under the

circumstances. Sorrels v. NCL (Bahamas) Ltd., 796 F.3d 1275, 1279 (11th Cir.

2015). To prevail on her negligence claim, Pizzino was required to prove that (1)

Norwegian had a duty to protect her from a particular injury, (2) Norwegian

breached that duty, (3) the breach actually and proximately caused her injury, and

(4) she suffered actual harm. Id. at 1280.

      In addition to these elements, Pizzino was required to demonstrate “that

[Norwegian] had actual or constructive notice of the risk-creating condition, at

least where . . . 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). Pizzino argues—and a number of district courts in this

circuit have held—that a cruise ship operator need not have actual or constructive

notice of the hazardous condition to be liable if the operator itself created the

condition. See, e.g., Rockey v. Royal Caribbean Cruises, Ltd., 2001 WL 420993,

at *4-5 (S.D. Fla. 2001). Pizzino therefore maintains that the district court erred in




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declining to give a jury instruction reflecting that exception to the notice

requirement. We disagree.

      This case is controlled by Everett v. Carnival Cruise Lines, 912 F.2d 1355,

1358 (11th Cir. 1990), where we considered the notice requirement’s contours in

light of facts similar to those confronting us here. In Everett, the plaintiff tripped

over a metal threshold cover for a fire door. Id. at 1357. The threshold had been

installed by the defendant cruise ship operator, and there was no indication that the

plaintiff’s fall was the result of anything except the presence of the threshold. Id.

At trial, the district court gave an instruction to the jury indicating that the plaintiff

was required to prove that the defendant had actual or constructive notice, or “that

Carnival Cruise Lines negligently created or maintained its premises.” Id. at 1358.

The jury found for the plaintiff and the district court denied the defendant’s motion

for a new trial on the ground that the court’s notice instruction was erroneous. Id.

at 1357.

      On appeal, we reversed the district court’s denial of the defendant’s motion

for a new trial. We held that the district court erroneously relied on Florida law—

and not federal maritime law—in concluding that a cruise line operator could be

liable for negligence without actual or constructive notice as long as it “negligently

created or maintained its premises.” Id. at 1358. That conclusion, we held,

contravened Keefe’s holding that “‘as a prerequisite to imposing liability, [] the


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carrier [must] have had actual or constructive notice of the risk-creating

condition.’” Id. (quoting Keefe, 867 F.2d at 1322). We also rejected the notion

that “notice of the defect” could be imputed to a cruise ship operator “inasmuch as

it created” the defect and maintained it, explaining that such a rule would also

contravene Keefe. Id. at 1359. Ultimately, we held that the defendant was entitled

to a new trial because of “the possibility that the jury may have found [the

defendant] liable on the basis of . . . mere creation or maintenance of a defect.” Id.

      Here, Pizzino asserts that the district court was required to give an

instruction that we explicitly rejected in Everett, specifically, that a cruise ship

operator can be liable for negligence without notice if it created the dangerous

condition that injured the plaintiff. Pizzino argues that Everett is distinguishable in

two ways. First, Pizzino points out that the instruction we rejected in Everett

indicated that a cruise ship operator could be liable if it “negligently created or

maintained its premises” as a whole, while Pizzino’s requested instruction would

permit liability if the operator created the specific “unsafe or foreseeably hazardous

condition” that injured her. This, however, is a distinction without legal

significance. Although the specific instruction we addressed in Everett is slightly

different than the instruction at issue here, the rule we crafted in Everett is broad

enough to render both instructions misstatements of law. In Everett, we reasoned

that creation of a defect—and not simply creation or maintenance of the premises


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as a whole—was insufficient to obviate the notice requirement. Id. at 1358

(holding that notice of a defect could not be imputed to a defendant “inasmuch as it

created” the defect); see also id. at 1359 (deeming unacceptable the risk that the

jury found the defendant liable based on “mere creation . . . of a defect” (emphasis

added)). Everett’s rule therefore extends beyond that case’s facts, reaching

Pizzino’s requested instruction.

       Second, Pizzino argues that Everett does not control because the instruction

she requests is not “disjunctive.” Pizzino presumably makes this distinction

because of language in Everett noting that jury instructions that permit liability

absent notice where the defendant “mere[ly] creat[ed] or mainten[ed] [] a defect”

contravene maritime law “inasmuch as the instructions are disjunctive.” Id. The

problem with Pizzino’s argument is that her requested instruction is disjunctive, as

it creates an additional circumstance—mutually exclusive with the defendant’s

having actual or constructive notice—under which the defendant could be liable.

Under Pizzino’s proffered rule, a cruise ship operator could be liable if it had

actual notice, if it did not have actual notice but did have constructive notice, or if

it had neither actual nor constructive notice but created the relevant dangerous

condition. The meaning of Pizzino’s requested instruction would be no different if

it read:

       To recover for injuries sustained in her fall, the plaintiff, Mrs. Pizzino,
       must prove either, first, that Norwegian had actual notice of the
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      alleged risk-creating condition of which she complains or,
      alternatively, the second part, that the dangerous condition existed for
      such a length of time that in the exercise of ordinary care Norwegian
      should have known it, or, alternatively, Norwegian created the
      unsafe or foreseeably hazardous condition.

In essence, then, Pizzino’s argument is that this case is distinct from Everett

because her requested instruction did not involve an additional “or” clause at the

end of the district court’s notice instruction. There is no legal basis for such a

distinction.

      Pizzino also argues that numerous district courts—all in the Southern

District of Florida—have concluded that a cruise ship operator can be liable absent

notice where it created a dangerous condition, notwithstanding Everett. The

genesis of these cases is Rockey, in which the court concluded that an operator

could be liable without notice where the plaintiff was struck by a falling electronic

bingo board. 2001 WL 420993, at *2. The court distinguished Everett by noting

that Everett featured “an otherwise safe area . . . made hazardous by the presence

or emergence of an object,” as opposed to the operator’s “knowing selection of the

manner and location of the board’s placement and storage,” which “created an

unsafe or foreseeably hazardous condition.” Id. at *4. But this distinction is belied

by Everett’s facts. In Everett, the dangerous condition—the metal threshold—was

created by the cruise ship operator, which was responsible for its installation and

placement. Everett, 912 F.2d at 1357 & n.1. We nonetheless rejected the


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possibility that the operator could be liable in the absence of actual or constructive

notice. Rockey, then, rests on a specious distinction between an ill-placed bingo

board and an ill-placed metal threshold. Because there is no exception to Everett

that would allow liability based on one but not the other, we have no trouble

concluding that Rockey and its progeny were wrongly decided.

      Finally, we easily dispose of Pizzino’s arguments that Sorrels, 796 F.3d at

1287, controls the outcome of this case. In Sorrels—where Norwegian was also

the defendant—Norwegian did not challenge the district court’s holding that an

operator could be liable without notice if it created the relevant hazardous

condition. Id. at 1286-87. After reviewing the facts, we remanded the case to the

district court to determine whether the record would permit a reasonable jury to

find that Norwegian created the dangerous condition. Id. Pizzino argues that

Norwegian’s posture in Sorrels constitutes an admission that her preferred rule

applies. But a decision by a party not to raise an argument in one case does not

preclude it from raising that argument in an entirely separate case. Pizzino also

argues that we would not have remanded Sorrels to the district court to determine

whether enough evidence supported the plaintiff’s creation theory if whether the

operator created the dangerous condition had no legal significance. We explicitly

noted, however, that because Norwegian did not challenge the district court’s

conclusion regarding the creation rule, we were “apply[ing] that standard without


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passing on its correctness.” Id. at 1287. Here, by contrast, the rule’s correctness is

properly before the court.

      We recognize that there may be sound policy justifications supporting the

rule for which Pizzino advocates. See, e.g., McDonough v. Celebrity Cruises, Inc.,

64 F. Supp. 2d 259, 264 (S.D.N.Y. 1999) (“To require a plaintiff to also establish

notice in a case where the defendant’s own activities created a foreseeable and

unreasonable risk of harm . . . would have the absurd result that negligence actions

could only be brought after a dangerous condition or practice created by a

defendant claimed a previous victim, whose own recovery would be barred by the

absence of notice.”). But Pizzino’s position simply cannot be squared with our

prior precedent. We therefore affirm the district court’s judgment.

                               IV.   CONCLUSION

      For the foregoing reasons, we affirm the judgment of the district court.

      AFFIRMED.




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