Brown v. Carnival Corp., Case No. 1:16-cv-21448-UU

• Decision Date: 12 August 2016
• Docket Number: Case No. 1:16-cv-21448-UU
• Citation: 202 F.Supp.3d 1332
• Parties: Delena BROWN, Plaintiff, v. CARNIVAL CORPORATION, ET AL., Defendants.
• Court: U.S. District Court — Southern District of Florida

202 F.Supp.3d 1332

Delena BROWN, Plaintiff,

v.CARNIVAL CORPORATION, ET AL., Defendants.

Case No. 1:16-cv-21448-UU

United States District Court, S.D. Florida.

Signed August 12, 2016

Entered August 15, 2016

Carlos Felipe Llinas Negret, Jaqueline Garcell, Jason Robert Margulies, Law Offices of Lipcon, Margulies & Alsina P.A., Miami, FL, for Plaintiff.

Andrew Douglas Craven, The Chartwell Law Offices, LLP, Carlos Javier Chardon, Samantha Loveland, Hamilton, Miller & Birthisel, LLP, Miami, FL, for Defendants.

ORDER

URSULA UNGARO, UNITED STATES DISTRICT JUDGE

THIS CAUSE comes before the Court upon Defendant Carnival Corporation's Motion to Dismiss Plaintiff's Complaint (D.E. 18) and Windfeather Charter NV's Motion to Dismiss Plaintiff's Complaint for Lack of Personal Jurisdiction (D.E. 25).

THE COURT has considered the Motion, the pertinent portions of the record and is otherwise fully advised in the premises.

BACKGROUND

The following facts are taken from Plaintiff's Complaint. D.E. 1. Plaintiff, Delena Brown ("Plaintiff"), is an individual who was a paid passenger aboard Defendant, Carnival Corporation's ("Carnival") vessel, the Carnival Conquest , during the relevant time period. Id. ¶ 46. Carnival owned, operated, managed, maintained, and/or controlled the Carnival Conquest . Id. ¶ 43. Defendants, Windfeather Charters NV, Rumbaruba Tours NV, and Mi Dushi Sal & Snorkeling Tours Dutch Caribbean ("Defendant Tour Operators"), are foreign corporations who owned and/or operated the subject excursion, "Mi Dushi Sail & Snorkel with Lunch Tour," in Catalina Bay, Aruba. Id. ¶ 46.

On August 20, 2015, Plaintiff participated in an off-shore excursion that was offered on the Carnival Conquest , known as the "Mi Dushi Sail & Snorkel with Lunch Tour." Id. ¶ 53. The excursion consisted of an approximately six-hour tour, which stopped at three different places for snorkeling. Id. ¶ 66. After the first snorkeling stop, Plaintiff was returning to her seat on the upper deck. Id. ¶ 67. Plaintiff attempted to use the upper rail to pull herself to the top step, but her hand slipped and she fell off balance and over the ledge. Id. As a result, Plaintiff fell to the bottom deck and sustained injuries, including a broken ankle, fractured fibula, and broken wrist. Id. ¶¶ 67, 70.

Plaintiff alleges that Carnival recommended the tour to Plaintiff, but never disclosed the magnitude of physical challenges and dangers that Plaintiff might encounter on the excursion. Id. ¶ 62. Plaintiff contends that Carnival represented the shore excursion as being a "moderate" shore excursion. Id. ¶ 64. Plaintiff further alleges that neither Carnival nor the Defendant Tour Operators provided adequate warnings about the hazards involved in her climbing the steps to the upper deck, and Defendants failed to provide alternative safe mechanisms to allow its passengers to safely embark the tour boat. Id. ¶ 68.

On April 22, 2016, Plaintiff filed her Complaint, alleging the following claims: (1) Negligence against all Defendants, (2) Apparent Agency or Agency by Estoppel against Carnival, (3) Joint Venture between the Defendant Tour Operators and Carnival, and (4) Third-Party Beneficiary. D.E. 1. Carnival moves to dismiss Plaintiff's Complaint on the grounds that Plaintiff failed to state a claim. D.E. 18. Defendant, Windfeather Charter NV ("Windfeather"), moves to dismiss Plaintiff's Complaint for lack of personal jurisdiction. D.E. 25. The Court considers each Motion in Turn.

I. FAILURE TO STATE A CLAIM

A. Legal Standard

Federal Rule of Civil Procedure 8(a)(2) provides that a plaintiff's pleading "must contain ... a short and plain statement of the claim showing that the pleader is entitled to relief." Fed. R. Civ. P. 8(a)(2). The Supreme Court has stated that a plaintiff must submit "more than an unadorned, the-defendant-unlawfully-harmed-me accusation." Ashcroft v. Iqbal , 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009). In order "[t]o 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.' " Id. (quoting Bell Atl. Corp. v. Twombly , 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) ).

In considering a motion to dismiss for failure to state a cause of action, the "plausibility standard is met only where the facts alleged enable 'the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.' " Simpson v. Sanderson Farms, Inc. , 744 F.3d 702, 708 (11th Cir.2014) (quoting Iqbal , 556 U.S. at 678, 129 S.Ct. 1937 )). "Where a complaint pleads facts that are 'merely consistent with' a defendant's liability, it 'stops short of the line between possibility and plausibility of 'entitlement to relief.' " Iqbal , 556 U.S. at 678, 129 S.Ct. 1937 (quoting Twombly , 550 U.S. at 557, 127 S.Ct. 1955 )). Although "[a] plaintiff need not plead 'detailed factual allegations[,] ... a formulaic recitation of the elements of a cause of action will not do,' " and the plaintiff must offer in support of its claim "sufficient factual matter, accepted as true, to 'raise a right to relief above the speculative level.' " Simpson , 744 F.3d at 708 (quoting Twombly , 550 U.S. at 555, 127 S.Ct. 1955 )).

B. Analysis

In its Motion to Dismiss, Carnival argues that each of the four claims asserted against Carnival are deficient and should be dismissed. The Court separately considers each claim and the parties' arguments pertaining to each claim.

1. Count I : Negligence

Carnival argues that Plaintiff's negligence claim should be dismissed because: (1) it imposes heightened duties on Carnival beyond the duty to warn; (2) it fails to allege sufficient facts showing that Carnival knew or should have known of any dangerous condition giving rise to a duty to warn; and (3) to the extent Plaintiff is attempting to bring a claim for negligent selection and retention, it should be dismissed for failure to plead a prima facie case.

To state a negligence claim against a shipowner, Plaintiff is required to plead the following: (1) Defendant had a duty to protect Plaintiff from a particular injury; (2) Defendant breached that duty; (3) the breach actually and proximately caused Plaintiff's injury; and (4) Plaintiff suffered actual harm.

Chaparro v. Carnival Corp. , 693 F.3d 1333, 1336 (11th Cir.2012) (citing Zivojinovich v. Barner , 525 F.3d 1059, 1067 (11th Cir.2008) ). While cruise ship owners and operators owe their passengers "the duty of exercising reasonable care under the circumstances of each case [,]" Kermarec v. Compagnie Generale Transatlantique , 358 U.S. 625, 630, 79 S.Ct. 406, 3 L.Ed.2d 550 (1959), the operator "is not an issuer of its passengers' safety ... There thus must be some failure to exercise due care before liability may be imposed." Long v. Celebrity Cruises, Inc. , 982 F.Supp.2d 1313, 1315 (S.D.Fla.2013).

A. Duty of Care

The Court first considers whether Plaintiff sufficiently pleaded the appropriate duty of care in her Complaint. Generally, ship owners and operators do not owe a heightened or special duty of care to their passengers. Rather, the duty is one of reasonable care under the circumstances. See Kermarec , 358 U.S. at 630, 79 S.Ct. 406 ; Everett v. Carnival Cruise Lines, Inc. , 912 F.2d 1355, 1358 (11th Cir.1990) ("The benchmark against which a ship owner's behavior must be measured is ordinary reasonable care under the circumstances, a standard which requires, as a prerequisite to imposing liability, that the carrier have had actual or constructive notice of the risk-creating condition."). Reasonableness of care, in turn, is measured by the extent to which the circumstances surrounding maritime travel are different from those encountered in daily life and pose greater danger to the passenger. Reinhardt v. Royal Caribbean Cruises , No. 1:12–cv–22105, 2013 WL 11261341, at *4 (S.D.Fla. Apr. 2, 2013).

Carnival argues that Plaintiff's negligence claim recites forty-one alleged breaches by Carnival, and the vast majority of the alleged breaches are premised on duties that go beyond the duty to warn and many of the alleged breaches are unsupported by law. In response, Plaintiff points to paragraphs 72 and 73 of the Complaint, where Plaintiff alleges that "[i]t was the duty of Defendants, to provide Plaintiff with reasonable care under the circumstances" and that "[o]n or about August 20, 2015, Carnival and/or its agents ... breached its duty to provide Plaintiff with reasonable or ordinary care under the circumstances." D.E. 1 ¶¶ 72-73.

The Court agrees with Carnival that Plaintiff has failed to sufficiently plead the appropriate standard of care. Plaintiff alleges in conclusory language that Carnival owed Plaintiff a "reasonable or ordinary duty of care"; however, the Court also finds that Plaintiff has engaged in a shotgun-style of pleading in reciting forty-one alleged breaches. Upon a close examination, many of the alleged breaches are contradictory to each other and are unsupported by law in that they attempt to impose a heightened duty upon Carnival as the shipowner. Simply alleging that Carnival owed Plaintiff a duty of "reasonable care" in a conclusory fashion, while also pleading alleged breaches that purport to impose a heightened duty upon Carnival, is not sufficient to state a valid negligence claim under maritime law.

The Court refuses to go line-by-line and determine which of Carnival's alleged breaches are appropriate and supported by law; rather, the burden will remain on Plaintiff to review her Complaint and ensure that each factual allegation is supported by law and plausible facts, and is alleged in good faith. See Gayou v. Celebrity Cruises, Inc. , No. 11–23359–CIV, 2012 WL 2049431, at *6 (S.D.Fla. June 5, 2012) ("[Plaintiff] is reminded that any alleged breaches, and the duties associated therewith, must be consistent with federal maritime law and must be supported by underlying factual allegations."). Carnival's Motion to...