Belik v. Carlson Travel Group Inc.
| Decision Date | 06 June 2011 |
| Docket Number | CASE NO. 11-21136-CIV-ALTONAGA/Simonton |
| Parties | MICHAEL BELIK, Plaintiff, v. CARLSON TRAVEL GROUP, INC. d/b/a SINGLESCRUISE.COM, et al., Defendants. |
| Court | U.S. District Court — Southern District of Florida |
THIS CAUSE comes before the Court upon Defendant, Carnival Corporation's ("Carnival['s]") Motion to Dismiss ... (the "Motion") [ECF No. 16], filed May 2, 2011. Carnival seeks to dismiss Plaintiff, Michael Belik's ("Belik['s]") Complaint [ECF No. 1] under Federal Rule of Civil Procedure 12(b)(6). The Court has carefully considered the parties' written submissions and applicable law.
In April 2010, Plaintiff, Michael Belik ("Belik"), went on a cruise (the "Cruise") aboard the Valor, organized by Defendants, Carlson Travel Group, Inc. d/b/a SinglesCruise.com; Carlson Travel Holdings, Inc.; Travel Leaders Leisure Group, LLC; and Travel Leaders Group LLC (collectively "SinglesCruise Defendants"). (See Compl.¶¶ 9, 18, 20). The SinglesCruise Defendants operate a website with the URL www.SinglesCruise.com, in which they claim to be the "largest singles cruiseoperator in the United States." (Id. ¶ 28). During SinglesCruise trips, SinglesCruise Defendants offer certain "exclusive events" put on by "professional cruise directors." (Id.). One of the events is the "Cozumel Beach Party excursion" (the "Event"). (Id.).
While on the Cruise, on April 9, 2010, Plaintiff attended the Cozumel Beach Party excursion. (See id. ¶ 20). The Event, which took place at Señor Frog's in Cozumel, Mexico (see id. ¶20), was advertised as having a "water slide directly into the ocean" and "unlimited drinks for thee and a half solid hours" (id. ¶ 28). Patrons were "allowed and encouraged to slide, jump, and dive into the waters below the seawall on and surrounding the Señor Frogs [sic] premises." (Id. ¶ 22). Despite this encouragement, there were no warnings regarding the dangers of partaking in these activities, and no warnings regarding the shallow water depth surrounding Señor Frog's. . Although shallow, the depth of the water was "not readily apparent." (Id. ¶ 23). Rather, the water around Señor Frog's was "deceptive" and appeared "deeper than it actually [was] (Id.). Even though the water depth was not apparent to Belik, Defendants should have been familiar with the shallow depth. (See id. ¶ 24).
Señor Frog's was commonly patronized by cruise-ship passengers. (See id. ¶ 25). Often these passengers used a Señor Frog's provided roof-mounted water slide to "propel" themselves into the Caribbean. (Id.).
Plaintiff was one of the many SinglesCruise participants who entered the Caribbean while at Señor Frog's. He did not slide in, but instead dove off the seawall surrounding Señor Frog's. (See id. ¶ 22). Belik was unaware of the shallowness of the water and when he jumped in, "he struck his head on the shallow bottom and suffered permanent, debilitating, and serious injuries." (Id.). He is now a quadriplegic. (See Mot. Opp'n 1 [ECF No. 28]).
Belik states several claims from breaches of duties allegedly owed to him. The SinglesCruise Defendants handled all aspects of the Cruise and Event. (See Compl. ¶ 27). As part of this undertaking, these Defendants represented their "control" over the Event, stating they would "manage the safety and security of these events and provide a safe and high quality event and venue (Id.). The SinglesCruise Defendants further "allowed and promoted sliding, jumping, and diving into the water from the seawall (Id.). In addition to duties they breached, the SinglesCruise Defendants made material misrepresentations about their employees, safety, vendors' quality, and locations. (See id. ¶¶ 31-32).
Belik also alleges Carnival owed him a direct duty of care, including the duty to warn of dangers. (See id. ¶ 33). Carnival's duties arose by virtue of Carnival's "ongoing contractual and business relationship with the SinglesCruise Defendants." (Id. ¶ 34). Carnival "had specific and direct knowledge or constructive knowledge of those excursions, including the Cozumel Beach Party," and also had knowledge of the types of people attending and activities taking place there. (Id. ¶ 35). Furthermore, SinglesCruise was an agent of Carnival. (See id. ¶ 37).
Plaintiff further alleges that the Señor Frog's Defendants,2 as the owners or managers of the Señor Frog's restaurant where he was injured, provided a water side and unlimited drinks. (See id. ¶ 38). Additionally, they "promote[d] and encourage[d] excessive drinking." (Id. ¶ 39). Specifically, these Defendants served "unlimited alcohol," offered the slide into the ocean, and knew "others [were] jumping and diving into the ocean from their seawall." (Id. ¶ 40). Despite beingaware of their drunken patrons, these Defendants offered "no reasonable security, no reasonable warnings, no reasonable barriers or discouragement to jumping or diving in the water, no reasonable control of the service of alcohol, and a lack of reasonable management and lack of warnings of the dangers which are not apparent to any jumper or diver." (Id.). As a result, Plaintiff "dove in and suffered serious permanent and debilitating injuries." (Id.).
Plaintiff raises multiple claims against Carnival. Plaintiff alleges Carnival was negligent in its policies and procedures, and the SinglesCruise Defendants' negligent acts are imputed to Carnival through agency and other relationships. (See id. ¶ 42). Belik alleges Carnival knew of the dangers at the Event because Carnival cruises frequently visit Cozumel and Carnival passengers routinely visit Señor Frog's. (See id. ¶¶ 91-92). Moreover, Carnival was aware of the unlimited drinking, as well as the proclivity of people to jump and dive off the seawall. (See id. ¶ 92). Plaintiff alleges over 30 different "failures" by Carnival. (Id. ¶¶ 93(a)-(ff)).
Plaintiff also alleges Carnival occupied the position of principal to its agents, the SinglesCruise Defendants. (See id. ¶ 98). This is demonstrated through the SinglesCruise website, SinglesCruise advertisements, and SinglesCruise representations. (See id. ¶¶ 98-99). Belik further points to the SinglesCruise Defendants' representation that they are "a travel company acting as an intermediary or agent for ... cruise lines." (Id. ¶ 99 (emphasis added) (ellipses in original)). He also states Carnival controlled the SinglesCruise Defendants through its ability to terminate the relationship, and its ability to require SinglesCruise to abide by its rules and regulations. (See id. ¶ 100). Belik then lists over 30 different failures by the SinglesCruise Defendants (see id. ¶¶ 102(a)-(ff)), and alleges Carnival is responsible and liable for those failures by virtue of the agency relationship (see id. ¶ 105).
In addition to actual agency, Belik alleges the SinglesCruise Defendants were Carnival's agents either by estoppel or through apparent agency. (See id. ¶¶ 107-10). As a result of the agency relationship, Carnival is allegedly liable as the principal for the over 30 failures perpetrated by the SinglesCruise Defendants. (See id. ¶¶ 112(a)-(ff), 114-15).
Plaintiff further alleges he is a third-party beneficiary of a contract between Carnival and the SinglesCruise Defendants. (See id. ¶ 117). Certain provisions of the contract concern the safety of Carnival's passengers. (See id. ¶¶ 119-20). Señor Frog's "is excessively dangerous," especially in light of the copious amounts of alcohol consumed. (Id. ¶ 121). Carnival's breach of the third-party contract — by not providing a safe venue and destination for Carnival passengers — caused Plaintiff's injuries. (See id. ¶¶ 122-26).
Finally, Plaintiff alleges Carnival and the SinglesCruise Defendants were in a joint venture. (See id. ¶ 130). The joint venture was to provide passengers with the Event at Señor Frog's. (See id. ¶ 131). As a result of the venture, Carnival is allegedly liable for the actions of the SinglesCruise Defendants. (See id. ¶ 132).
"To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). Although this pleading standard "does not require 'detailed factual allegations,' . . . it demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation." Id. (quoting Twombly, 550 U.S. at 555). Pleadings must contain "more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Twombly, 550 U.S. at 555. When reviewing a motion to dismiss, a courtmust construe the complaint in the light most favorable to the plaintiff and take the factual allegations therein as true. See Brooks v. Blue Cross & Blue Shield of Fla., Inc., 116 F.3d 1364, 1369 (11th Cir. 1997).
Carnival raises several arguments as to why it is not liable and why the case against it should be dismissed. Each argument is addressed in turn.
Carnival asserts it was not negligent in failing to warn Plaintiff of the dangers inherent in jumping off a seawall into the ocean because it owed Plaintiff no duty to do so. (See Mot. 4-9; Reply 1-2 [ECF No. 34]). Contrary to Carnival's characterization of his claim, Plaintiff states he is suing Carnival for its "direct negligence in failing to warn" of the dangers of a "three and a half hour unlimited drinks party." . Plaintiff is thus alleging more than the mere failure to warn of the dangers of jumping off a seawall into waters of unknown depth.
To properly plead a negligence claim, a plaintiff must allege four elements: "(1) a legal duty on the defendant to protect the plaintiff from particular injuries; (2) the defendant's breach of that duty; (3) the plaintiff's injury being actually and proximately caused by the breach; and (4) the plaintiff suffering...
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