Doonan v. Carnival Corp.

• Citation: 404 F.Supp.2d 1367
• Decision Date: 30 November 2005
• Docket Number: No. 05-20128 CV.,05-20128 CV.
• Parties: Branden DOONAN, individually and as personal representative of the Estate of James Doonan, Lyndsey Doonan, Kristine Doonan, Plaintiffs, v. CARNIVAL CORPORATION, a Panamanian Corporation, and Gary Colner, ship's physician, Defendants.
• Court: U.S. District Court — Southern District of Florida

404 F.Supp.2d 1367

Branden DOONAN, individually and as personal representative of the Estate of James Doonan, Lyndsey Doonan, Kristine Doonan, Plaintiffs, v. CARNIVAL CORPORATION, a Panamanian Corporation, and Gary Colner, ship's physician, Defendants.

No. 05-20128 CV.

United States District Court, S.D. Florida, Miami Division.

November 30, 2005.

Randall Scott Goldberg, David H. Pollack, Miami, FL, for Plaintiffs.

Jeffrey Eric Foreman, Maltzman Foreman PA, Mercy Blasa Pina-Brito, Rachel Sherry Cohen, Jeffrey Bradford Maltzman, Christopher Edson Knight, Edward Joy Briscoe, Fowler White Burnett, Miami, FL, for Defendants.

ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT CARNIVAL'S MOTION TO DISMISS

MARTINEZ, District Judge.

THIS CAUSE came before the Court upon Defendant Carnival's Motion to Dismiss Plaintiffs' Amended Complaint (D.E. No. 17), filed March 21, 2005. For the reasons stated more fully herein, the motion is granted in part and denied in part.

I. Relevant Factual and Procedural Background

On January 11, 2004, James Doonan ("Doonan") embarked on a cruise aboard Carnival's ship, the Conquest. (D.E. No. 14, Am.Compl.¶ 30). Early one morning while aboard the ship, Doonan collapsed while choking and suffering from visible respiratory distress. (D.E. No. 14, Am. Compl. ¶ 32 & 34). Carnival's medical staff, including Dr. Colner, attempted cardiopulmonary resuscitation for approximately fifty minutes before pronouncing Doonan dead. (D.E. No. 14, Am. Compl.¶ 35). The medical staff did not attempt an emergency tracheotomy at any time during the fifty minute interval which the Plaintiffs allege "is standard procedure in the medical profession when a patient is choking or in acute, life threatening respiratory distress." (D.E. No. 14, Am. Compl.¶ 36). Plaintiffs further allege that had the emergency tracheotomy been performed, Doonan's death would have been prevented. (D.E. No. 14, Am.Compl.¶ 36).

On January 18, 2005, Plaintiffs filed the original, thirteen-count Complaint against Carnival and against the ship's physician seeking damages for Doonan's alleged wrongful death. (D.E. No. 1). A Motion to Dismiss the original Complaint was filed by Carnival on February 8, 2005. (D.E. No. 8). On March 17, 2005, however, the Court denied as moot the Motion to Dismiss (D.E. No. 16) in light of the fact that Plaintiffs had filed an Amended Complaint. (D.E. No. 14).

On March 21, 2005, Carnival filed its Motion to Dismiss the Amended Complaint. (D.E. No. 17). The motion has been fully briefed and is ripe for adjudication. In addition, Plaintiffs filed a Motion for Leave to Amend the Complaint by Interlineation (D.E. No. 44) on August 19, 2005.

II. Legal Standard

A complaint should not be dismissed for failure to state a claim unless it is clear that no set of facts could be proven that would support a claim for relief. Hishon v. King & Spalding, 467 U.S. 69, 73, 104 S.Ct. 2229, 81 L.Ed.2d 59 (1984); see also Bracewell v. Nicholson Air Servs., Inc., 680 F.2d 103, 104 (11th Cir.1982). The court accepts all well-pleaded allegations as true and views the motion in the light most favorable to the non-moving party. Hishon, 467 U.S. at 73, 104 S.Ct. 2229. Furthermore, the Federal Rules of Civil Procedure do not require a claimant to set out in detail all the facts upon which the claim is based. See Conley v. Gibson, 355 U.S. 41, 47, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957). All that is required is a "short and plain statement of the claim." Fed. R.Civ.P. 8(a)(2) (2004). Thus, "[t]he threshold of sufficiency that a complaint must meet to survive a motion to dismiss for failure to state a claim is ... `exceedingly low.'" Ancata v. Prison Health Services, Inc., 769 F.2d 700, 703 (11th Cir. 1985) (quoting Quality Foods de Centro America, S.A. v. Latin American Agribusiness Devel., 711 F.2d 989, 995 (11th Cir. 1983)).

Nonetheless, to survive a motion to dismiss, a plaintiff must do more than merely label his or her claims. Blumel v. Mylander, 919 F.Supp. 423, 425 (M.D.Fla.1996). In addition, dismissal of a complaint or a portion thereof is appropriate when, on the basis of a dispositive issue of law, no construction of the factual allegations will support the cause of action. Marshall County Bd. of Educ. v. Marshall County Gas Dist., 992 F.2d 1171, 1174 (11th Cir.1993).

III. Analysis

Pursuant to 28 U.S.C. § 1333, federal courts have concurrent jurisdiction with state courts over in personam admiralty matters. Diesel "Repower," Inc. v. Islander Investments Ltd., 271 F.3d 1318, 1322 (11th Cir.2001). When determining whether there is admiralty jurisdiction over tort claims, the federal judiciary traditionally looks to: 1) the locality of the wrong, which requires that the incident occur on, in, or over navigable waters, Victory Carriers, Inc. v. Law, 404 U.S. 202, 205, 92 S.Ct. 418, 30 L.Ed.2d 383 (1971), and 2) a significant relationship between the incident and traditional maritime activity. Executive Jet Aviation, Inc. v. City of Cleveland, 409 U.S. 249, 268, 93 S.Ct. 493, 34 L.Ed.2d 454 (1972). With admiralty jurisdiction comes the application of substantive maritime law. E. River S.S. Corp. v. Transamerica Delaval, Inc., 476 U.S. 858, 864, 106 S.Ct. 2295, 90 L.Ed.2d 865 (1986).

Furthermore, courts have found admiralty law applies in personal injury and contract disputes between passengers injured on cruise ships and the cruise ship companies. See e.g., Carnival Cruise Lines, Inc. v. Shute, 499 U.S. 585, 589, 111 S.Ct. 1522, 113 L.Ed.2d 622 (1991) (holding that a forum-selection clause was enforceable in a suit between injured passengers and the cruise line); Keefe v. Bahama Cruise Line, 867 F.2d 1318, 1320-21 (11th Cir.1989) ("[a]s a preliminary matter, we note that the substantive law applicable to this action, which involves an alleged tort committed aboard a ship sailing in navigable waters, is the general maritime law, the rules of which are developed by the federal courts"); Kornberg v. Carnival Cruise Lines, Inc., 741 F.2d 1332, 1334 (11th Cir.1984) (noting that "admiralty jurisdiction is also present and maritime law governs the outcome of the suit."), cert. denied, 470 U.S. 1004, 105 S.Ct. 1357, 84 L.Ed.2d 379 (1985). Therefore, this Court finds that on the basis of the facts alleged in the Amended Complaint, it has jurisdiction on the basis of admiralty and that maritime law governs.

In its motion, Defendant Carnival argues that Counts III and IV must be dismissed because under Barbetta v. S/S Bermuda Star, 848 F.2d 1364, 1369 (5th Cir.1988), a cruise line cannot be held vicariously liable for the negligence of its ship's medical staff in the treatment and care of passengers. Carnival also moves to dismiss Count V, the breach of contract claim. Upon consideration of the parties' arguments and the applicable case law, this Court has determined that Carnival's Motion to Dismiss shall be granted as to Counts III and V.

A. Count III — Vicarious Liability (Actual Agency)

The majority rule, as set forth in Barbetta, establishes that a cruise line cannot be held vicariously liable for the negligence of its ship's doctor in the care and treatment of passengers. Barbetta, 848 F.2d at 1369; see also The Korea Maru, 254 F. 397 (9th Cir.1918); The Great Northern, 251 F. 826 (9th Cir.1918); Di Bonaventure v. Home Lines, Inc., 536 F.Supp. 100 (E.D.Pa.1982); Churchill v. United Fruit Co., 294 F. 400 (D.Mass. 1923); Mascolo v. Costa Crociere, S.p.A., 726 F.Supp. 1285, 1286 (S.D.Fla.1989). The justifications for this rule are the cruise line's lack of control over the doctor-patient relationship and the cruise line's failure to possess expertise in supervising the doctor in his practice of medicine. Barbetta, 848 F.2d at 1369-70. Until recently, the "lone beacon of dissent" on this issue has been Nietes v. American President Lines, Inc. in which the court held:

[W]here a ship's physician is in the regular employment of a ship, as a salaried member of the crew, subject to the ship's discipline and the master's orders, and presumably also under the general direction and supervision of the company's chief surgeon through modern means of communication, he is, for the purposes of respondeat superior at least, in the nature of an employee or servant for whose negligent treatment of a passenger a shipowner may be held liable.

Huntley v. Carnival Corp., 307 F.Supp.2d 1372, 1374 (S.D.Fla.2004) (citing Nietes v. American President Lines, Ltd., 188 F.Supp. 219, 220 (N.D.Cal.1959)).

On August 27, 2003, however, the Florida Third District Court of Appeal rejected Barbetta and instead chose to follow the minority rule set forth in Nietes. Carlisle v. Carnival Corp., 864 So.2d 1 (Fla. 3d DCA 2003). The court in that case found that "regardless of the contractual status ascribed to the doctor, for the purposes of fulfilling the cruise line's duty to exercise reasonable care, the ship's doctor is an agent of the cruise line whose negligence should be imputed to the cruise line." Carlisle, 864 So.2d at 7. Following the Carlisle decision, one court in the Southern District of Florida also declined to apply Barbetta. Huntley, 307 F.Supp.2d at 1372 (denying Carnival's motion to dismiss claim of vicarious liability where ship's doctor was negligent in treating a passenger for injuries sustained during a "slip and fall"). Plaintiffs chiefly rely on the Carlisle and Huntley decisions in arguing that they are entitled to relief.¹ It should be noted that the Carlisle case is currently pending review before the Florida Supreme Court. 904 So.2d 430 (Fla. 2005) (granting review).

This Court has carefully considered the Plaintiffs' argument, but declines to follow either the Huntley or Carlisle decision, which are non-binding authority. Therefore, the Court does not find Plaintiffs' argument sufficiently persuasive to justify deviation from the majority rule as set forth in Barbetta, which has been the controlling authority on this issue for well...