Blow v. Carnival Corp.
| Docket Number | Civil Action 22-22587-Civ-Scola |
| Decision Date | 26 May 2023 |
| Parties | Tamiko Blow, et al., Plaintiffs, v. Carnival Corporation, and others, Defendants. |
| Court | U.S. District Court — Southern District of Florida |
ORDER GRANTING IN PART AND DENYING IN PART MOTION TO DISMISS
This matter is before the Court on the motion to dismiss the Plaintiffs' amended complaint filed by Defendant Carnival Corporation (“Carnival”).[1] (Mot. Dismiss, ECF No. 33.) The Plaintiff filed a response to the motion (Resp., ECF No 44), and the Defendant filed a reply memorandum in support of its motion (Reply, ECF No. 49). The Plaintiffs also filed a motion for leave to amend the complaint in the event the Court granted the motion to dismiss. (Mot. Leave Am., ECF No 45.) Carnival responded to the motion for leave to amend (ECF No. 50), and the Plaintiffs timely replied (ECF No. 52). After careful consideration of the briefing, the record, and the relevant legal authorities, the Court grants in part and denies in part the Defendant's motion to dismiss (ECF No 33) and denies the Plaintiffs' motion for leave to amend (ECF No. 45).
The Plaintiffs, Tamiko and Randall Blow, bring nine separate causes of action against Carnival Corporation, each relating to the death of Donna Faye Nelson during the course of a snorkeling expedition in Mexico. (Am. Compl. ¶¶ 16, 45-47, ECF No. 30.)[2] Tamiko Blow also brings these claims on behalf of Donna Faye Nelson's estate, and Randall Blow brings these claims on behalf of his five minor children. (Id. ¶¶ 2, 4.) Ms. Nelson tragically drowned while she and the other Plaintiffs were participating in the snorkeling expedition, which the Plaintiffs had booked through Carnival as part of a cruise on the Carnival Panorama during late August and early September of 2021. (Id. ¶¶ 22, 27, 37, 40, 45-47.)
The Plaintiffs never allege the details of their relationship with Ms. Nelson, although they establish that she was a member of the Blow family. (Id. ¶ 35.) They do allege, however, that the Blow family embarked on the Carnival Panorama in California for a cruise along the western coast of Mexico on August 18, 2021. (Id. ¶¶ 24, 33, 35.) Unbeknownst to the Blows (and to Carnival), Hurricane Nora would impact the course of their cruise and contribute to Ms. Nelson's unfortunate death. (Id. ¶ 33.) Hurricane Nora forced the Carnival Panorama to detour from its original schedule prior to September 1, although the ship did not ultimately detour from Puerto Vallarta, where the Plaintiffs undertook the snorkeling expedition with Vallarta Adventures. (Id.)
Prior to departing on the cruise, the Plaintiffs had received and viewed promotional material for shore excursions, including the snorkeling expedition they ultimately engaged in with Vallarta Adventures. (Id. ¶¶ 23-24.) Carnival mailed the Plaintiffs promotional materials, and the Plaintiffs also reviewed promotions on Carnival's website. (Id.)
On August 29, 2021, while on the cruise and prior to the Carnival Panorama's arrival in Puerto Vallarta, the Plaintiffs sought out additional information regarding shore excursions. (Id. ¶ 27.) The Plaintiffs inquired about the snorkeling expedition, among other excursions, and ultimately purchased tickets for the expedition, entitled the “Bubble Tour: Exclusive Majahuitas Beach Cove.” (Id.) When the Plaintiffs inquired about the snorkeling expedition, Carnival's representative assured them that the expedition was “safe,” that there would lookouts present, and that all snorkeling gear would be provided. (Id. ¶ 28.) The Plaintiffs also allege that the promotional materials they received and viewed established that the expedition was “easy” and safe, the materials and did not contain adequate warnings regarding the expedition's true nature. (Id. ¶¶ 33-35.)
On September 1, 2021, the Plaintiffs departed to engage in the expedition. (Id. ¶ 40.) The expedition was supposed to be “a beach-based party” during which the participating passengers could choose to snorkel from a larger boat, or take a smaller boat to the beach and kayak, swim, or otherwise relax and enjoy the beach. (Id. ¶¶ 41-42.) Randall Blow, Donna Faye Nelson, and four of the five minor children chose to stay on the larger boat and snorkel. (Id. ¶ 42.) Tamiko Blow and the fifth minor child chose to take the smaller boat to the beach, where they swam in the ocean. (Id.)
The excursion operator-Vallarta Adventures-never instructed any of the participants on how to use the provided snorkeling equipment. (Id. ¶ 43.) Alternately, the Plaintiffs plead, if any instruction was given, it was “dangerously inadequate.” (Id.) Regardless, the Plaintiffs allege that no instructions whatsoever were given regarding “how to breathe through a snorkel,” “what to do in the event a snorkeler ingested water,” “how to call for help if in danger,” and that the participants should “snorkel with a buddy system” (i.e., they should not engage in the activity without a partner to help should danger arise). (Id.)
Due to the impacts of Hurricane Nora, conditions were especially rough on September 1, including a strong current in the water. (Id. ¶ 46.) The Blow family all struggled with the strong current: both the snorkelers and the swimmers had difficulty swimming in the strong waters. (Id.) After being in the water for only about thirty minutes, Donna Faye Nelson began to ingest water and drown. (Id. ¶ 45.) Within forty-five minutes, her body was discovered. (Id. ¶ 47.) The Blow family all observed her being retrieved from the water, after which Randall and Tamiko attempted to perform CPR on her. (Id. ¶ 48.) Emergency responders did not arrive on scene for almost one hour, by which time Donna Faye Nelson had died. (Id.)
The Plaintiffs point to multiple failures on Carnival's part (and Vallarta Adventures' part, which the Plaintiffs attribute to Carnival). (Id. ¶¶ 45, 48.) First, the Plaintiffs allege that they were not warned about the strong currents in the water, that the excursion was not canceled when it should have been due to the impeding hurricane, that no safety lookouts were provided, that they received inadequate instructions on the use of snorkeling equipment, and that the snorkeling equipment and life vest that Ms. Nelson used were defective. (Id. ¶ 45.) Second, the Plaintiffs allege that Carnival did not have a proper emergency plan in place, that none of the Carnival or Vallarta Adventures personnel on sight knew how to administer CPR, that there was no automated electric defibrillator available, and that Carnival and Vallarta Adventures unreasonably delayed alerting emergency responders of Ms. Nelson's condition. (Id. ¶ 48.) Based on these alleged deficiencies, and their observation of Ms. Nelson's tragic death, the surviving Plaintiffs all allege that they suffered from “severe mental distress.” (Id. ¶ 49.)
Based on these circumstances, the Plaintiffs bring nine claims against Carnival: misleading advertising in violation of Florida statutory law (Count 1), negligent misrepresentation (Count 2), negligent selection and/or retention (Count 3), negligent failure to warn (Count 4), general negligence (Count 5), negligence based on apparent agency or agency by estoppel Count 8), negligence based on joint venture (Count 9), breach of contract based on third-party beneficiary status (Count 10), and breach of non-delegable duty (Count 11). (Id. ¶¶ 63-91; 109-139.)
Carnival, in turn, moves to dismiss each claim under Federal Rule of Civil Procedure 12(b)(6), arguing that the Plaintiffs have failed to sufficiently plead their claims, request improper damages, and that the amended complaint is a shotgun pleading. (Mot. Dismiss at 3-4.) The Plaintiffs argue they have sufficiently stated each claim, they seek appropriate damages, and that the complaint is properly pleaded. (Resp. at 1-2.) The Court will address each argument in turn, below.
When considering a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), the Court must accept all of the complaint's allegations as true, construing them in the light most favorable to the plaintiff. Pielage v. McConnell, 516 F.3d 1282, 1284 (11th Cir. 2008). A pleading need only contain “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(2). “[T]he pleading standard Rule 8 announces does not require detailed factual allegations, but it demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quotation omitted). A plaintiff must articulate “enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007).
“A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678. “The plausibility standard is not akin to a ‘probability requirement,' but it asks for more than a sheer possibility that a defendant has acted unlawfully.” Id. “Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Id. Thus, a pleading that offers mere “labels and conclusions” or “a formulaic recitation of the elements of a cause of action” will not survive dismissal. See Twombly, 550 U.S. at 555. “Rule 8 marks a notable and generous departure from the hyper-technical, code-pleading regime of a prior era, but it does not unlock the doors of discovery for a plaintiff armed with nothing more than conclusions.” Iqbal, 556 U.S. at 679.
Yet where the allegations “possess enough heft” to suggest a plausible entitlement to relief, the case may...
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