Conclusory “Notice” Allegations and Unpreserved “Created-the-Hazard” Theories Do Not Cure a Negligence Pleading Defect on Appeal

Introduction

In Humberto Reyes v. Royal Caribbean Cruises, LTD. (11th Cir. Mar. 4, 2026) (per curiam) (not for publication), passenger Humberto Reyes sued Royal Caribbean Cruises, Ltd. after suffering injuries in a post-disembarkation incident involving an escalator at Royal Caribbean’s terminal in the Port of Miami.

Reyes alleged that Royal Caribbean employees directed passengers to board an escalator with luggage, resulting in close spacing and congestion. Near the bottom of the escalator, a passenger’s luggage purportedly became lodged; alarms sounded; the escalator continued operating; and a chain reaction fall allegedly caused Reyes “severe and permanent bodily injury.”

The litigation centered on pleading sufficiency—specifically whether the complaint (and then the proposed amended complaint) plausibly alleged that Royal Caribbean had actual or constructive notice of the risk-creating condition. On appeal, Reyes also attempted to advance a different theory: that he did not need to plead notice because Royal Caribbean itself created the hazardous condition.

Summary of the Opinion

The Eleventh Circuit affirmed the district court’s (1) dismissal under Rule 12(b)(6) and (2) denial of leave to amend as futile. The court held:

  • Reyes abandoned appellate review of the district court’s notice-based dismissal rationale because he did not address that basis and conceded he did not plead “substantially similar prior incidents.”
  • Reyes forfeited his new appellate argument—that pleading notice was unnecessary because Royal Caribbean created the hazard—because he did not raise that theory in the district court (having chosen not to file a substantive opposition to the motion to dismiss).
  • The proposed amendment was properly denied as futile because it added only minimal, conclusory assertions that Royal Caribbean “knew or should have known” overloading was dangerous, without facts showing prior similar incidents or sufficient time for corrective measures.

Analysis

Precedents Cited

The panel’s reasoning is built on two bodies of doctrine: (1) federal pleading and amendment standards; and (2) appellate preservation rules (abandonment/forfeiture).

Pleading standards and Rule 12(b)(6)

  • Ironworkers Local Union 68 v. AstraZeneca Pharm., LP, 634 F.3d 1352, 1359 (11th Cir. 2011): Cited for the standard of review and posture on a motion to dismiss—de novo review, accepting well-pleaded facts as true and construing them in the plaintiff’s favor. This frames the appellate lens: Reyes receives favorable factual inferences, but only from facts (not conclusions).
  • Ashcroft v. Iqbal, 556 U.S. 678, 678 (2009): Cited for the core principle that courts need not accept “legal conclusions” as true. This underwrites the district court’s and appellate court’s view that Reyes’s added “knew or should have known” language was conclusory rather than factual.

Amendment, futility, and standard of review

  • Corsello v. Lincare, Inc., 428 F.3d 1008, 1012 (11th Cir. 2005): Cited for the general rule that denial of leave to amend is reviewed for abuse of discretion—setting up the exception discussed next.
  • Fla. Evergreen Foliage v. E.I. DuPont De Nemours & Co., 470 F.3d 1036, 1040 (11th Cir. 2006): Cited for the proposition that when amendment is denied as futile, appellate review is de novo because the district court is making a legal determination that the amended complaint would fail as a matter of law.
  • Cockrell v. Sparks, 510 F.3d 1307, 1310 (11th Cir. 2007): Cited for the definition of futility: an amendment is futile if the amended complaint would still be subject to dismissal. This authority supplies the doctrinal “test” applied to Reyes’s proposed amendments.

Appellate preservation: abandonment and forfeiture

  • Sapuppo v. Allstate Floridian Ins. Co., 739 F.3d 678, 680 (11th Cir. 2014): Cited for the abandonment rule—if an appellant fails to address the basis for the district court’s ruling, the issue is abandoned on appeal. Here, Reyes conceded he did not plead substantially similar incidents; the court treated that concession and failure to contest the ruling as abandonment of a key ground.
  • Access Now, Inc. v. Southwest Airlines Co., 385 F.3d 1324, 1331 (11th Cir. 2004): Cited for the forfeiture rule—issues not raised in the district court are generally not considered on appeal, absent limited exceptions. This controlled the disposition of Reyes’s new “created the hazard so notice is unnecessary” theory because he did not present it below.

Legal Reasoning

  1. The case is resolved on procedural posture, not a merits expansion of negligence doctrine.
    The panel did not reach a substantive determination about whether “creating the hazard” can excuse pleading notice in this context, because that theory was not preserved. Instead, it applied the Eleventh Circuit’s strict preservation framework: you must (a) contest the district court’s stated grounds, and (b) present theories to the district court before raising them on appeal.
  2. The court treats “notice” as a required pleaded element on the path Reyes chose.
    The district court dismissed for failure to allege facts showing Royal Caribbean was on notice of the dangerous condition. Reyes attempted to amend by adding two allegations: (i) Royal Caribbean “created a dangerous condition” by overloading; and (ii) it “knew or should have known” overloading presented danger. The courts characterized these as conclusory, i.e., labels without supporting factual material.
  3. Two recognized factual routes to pleading notice were absent.
    The district court pointed to missing factual content typically used to support constructive notice:
    • Prior substantially similar incidents (Reyes conceded he did not plead them).
    • Duration/time-to-correct facts (Reyes admitted he “could have pled more facts” about how long alarms sounded to permit corrective action).
    Without those (or comparable factual allegations), the amended complaint remained dismissible—making amendment futile under Cockrell v. Sparks.
  4. Abandonment and forfeiture independently support affirmance.
    Even if the complaint’s deficiencies could have been debated, the panel affirmed because:
    • Reyes abandoned review of the district court’s notice rationale by not meaningfully challenging it and by conceding a key failure.
    • Reyes forfeited his alternative theory by not raising it in the district court (he did not file a substantive response to the motion to dismiss).
    These doctrines function as “gatekeepers,” limiting appellate review to properly preserved issues and properly presented arguments.

Impact

Although unpublished and designated “NOT FOR PUBLICATION,” the decision reinforces several practical lessons that will predictably affect litigation behavior in passenger-injury negligence cases (particularly in the Southern District of Florida and the Eleventh Circuit pipeline):

  • Conclusory notice pleading is not a workaround. Adding “knew or should have known” language, without factual support, is vulnerable under Ashcroft v. Iqbal.
  • Amendment must add facts, not just theories. When dismissal turns on missing factual predicates (e.g., similar incidents, duration), an amended complaint that merely recites the missing element risks being deemed futile.
  • Preservation is outcome-determinative. Parties must respond substantively to motions to dismiss and must raise all viable theories in the district court; otherwise, Access Now, Inc. v. Southwest Airlines Co. and Sapuppo v. Allstate Floridian Ins. Co. can dispose of the appeal without reaching the substantive legal question.
  • Strategic caution for plaintiffs. Electing to “moot” a motion to dismiss by filing a motion to amend—without confronting the motion’s arguments—can backfire if the amendment does not cure the defect and if the unraised theories are later deemed forfeited.

Complex Concepts Simplified

Rule 12(b)(6)
A motion arguing the complaint, even if its facts are true, does not state a legally plausible claim for relief.
Rule 8(a)(2)
Requires a “short and plain statement” showing entitlement to relief; after Iqbal, this means enough factual content to make the claim plausible.
Actual notice vs. constructive notice
Actual notice means the defendant actually knew about the dangerous condition. Constructive notice means the defendant should have known— commonly inferred from facts like prior similar incidents or the condition existing long enough to be discovered and corrected.
Substantially similar prior incidents
Earlier events sufficiently alike to the current incident to suggest the defendant was (or should have been) aware of a recurring hazard.
Futility (leave to amend)
An amendment is “futile” if the new complaint would still be dismissed; courts deny leave to amend in that situation.
Abandonment (on appeal)
If an appellant does not challenge the district court’s stated basis for a ruling, the appellate court treats the issue as abandoned.
Forfeiture (on appeal)
If an argument was not raised in the district court, it is generally not considered on appeal.

Conclusion

Humberto Reyes v. Royal Caribbean Cruises, LTD. affirms dismissal and denial of leave to amend where the plaintiff failed to plead concrete facts supporting notice of an alleged dangerous condition and attempted to pivot on appeal to a new “created-the-hazard” theory that was never presented to the district court. The decision’s central significance lies less in expanding negligence doctrine and more in reinforcing two recurring litigation constraints: (1) federal pleading demands factual support, not element-recitation; and (2) appellate courts will enforce abandonment and forfeiture rules to confine review to properly preserved issues.