Franza v. Royal Caribbean Cruises, Ltd.

• Decision Date: 30 May 2013
• Docket Number: Case No. 13–20090–CIV.
• Citation: 948 F.Supp.2d 1327
• Parties: Patricia FRANZA, as personal representative of the estate of Pasquale F. Vaglio, Plaintiff, v. ROYAL CARIBBEAN CRUISES, LTD., Defendant.
• Court: U.S. District Court — Southern District of Florida

948 F.Supp.2d 1327

Patricia FRANZA, as personal representative of the estate of Pasquale F. Vaglio, Plaintiff,

v.ROYAL CARIBBEAN CRUISES, LTD., Defendant.

Case No. 13–20090–CIV.

United States District Court, S.D. Florida.

May 30, 2013.

Philip Dixon Parrish, Philip D. Parrish, PA, Joel M. Barnett, Waks & Barnett, Miami, FL, for Plaintiff.

Darren Wayne Friedman, Elisha Sullivan, Foreman Friedman, PA, Miami, FL, for Defendant.

ORDER GRANTING DEFENDANT'S MOTION TO DISMISS (D.E. 7)

JOAN A. LENARD, District Judge.

THIS CAUSE is before the Court on Defendant Royal Caribbean Cruises, Ltd.'s Motion to Dismiss Plaintiff's Complaint and to Strike Plaintiff's Demand for Trial by Jury (“Motion,” D.E. 7), filed on February 4, 2013. On February 21, 2013, Plaintiff filed a response (“Response,” D.E. 13), and on March 7, 2013, Plaintiff filed a supplemental memorandum of law regarding the right to a jury trial (“Supplemental Response,” D.E. 17). Defendant filed its reply in support of its motion to dismiss (“Reply,” D.E. 23) on March 28, 2013, and Defendant filed its reply in support of its motion to strike Plaintiff's jury trial demand (“Supplemental Reply,” D.E. 20) on March 18, 2013. Upon review of the Complaint (D.E. 1), Motion, Response, Supplemental Response, Reply, Supplemental Reply, and the record, the Court finds as follows.

I. Background¹

Plaintiff Patricia Franza, as personal representative of the estate of Pasquale F. Vaglio, claims that Vaglio passed away as a result of the alleged negligence of shipboard medical personnel. On July 23, 2011, Vaglio was a passenger on the Explorer of the Seas, which is a cruise ship that is owned and/or operated by Defendant Royal Caribbean Cruises, Ltd. (“Royal Caribbean” or “RCL”). (Compl. ¶¶ 8–9.) While the ship was docked in Bermuda, Vaglio fell while attempting to get onto a trolley at or near the dock, suffering a severe blow to the head. ( Id. ¶¶ 9–10.) After the fall, Vaglio was taken in a wheelchair to the ship's infirmary, where he was evaluated by Nurse Racquel Y. Garcia. ( Id. ¶¶ 6, 11.) Garcia told Vaglio that “he was fine to return to his cabin, that he might have a concussion, and that [his wife] should continue to observe him.” ( Id. ¶ 11.) Vaglio and his wife returned to their cabin. ( Id. ¶ 12.) Approximately an hour and a half later, Vaglio's son and daughter-in-law returned to the cabin, noticed that Vaglio's condition was deteriorating, and called for emergency help. ( Id. ¶ 13.) Twenty minutes later, Vaglio was transported by wheelchair to the infirmary, and once he arrived at the infirmary, there was an additional delay before he was seen by the ship's physician, Dr. Rogelio Gonzales. ( Id. ¶¶ 7, 13–14.) Dr. Gonzales started a Mannitol drip and ordered that Vaglio be transferred to a hospital for further care and treatment. ( Id. ¶ 15.) The next day, Vaglio was airlifted to another hospital, where he remained in intensive care until he passed away on August 1, 2011. ( Id. ¶ 17.)

Plaintiff, in her capacity as personal representative of Vaglio's estate, has asserted claims against Royal Caribbean for negligent medical care and treatment (Count I), negligence of Royal Caribbean based upon apparent agency (Count II), and negligent hiring, retention, and training by Royal Caribbean (Count III). ( See id. ¶¶ 19–46.)

Royal Caribbean moves to dismiss Count I of the Complaint with prejudice, arguing that a ship owner cannot be held liable for the alleged negligence of the ship's medical personnel. (Motion 2–3.) Royal Caribbean moves to dismiss Count II with prejudice, arguing that a ship owner cannot be held vicariously liable for the alleged negligence of its shipboard medical personnel by pleading apparent agency. ( Id. at 4–5.) Royal Caribbean argues that Count III should be dismissed for failure to state a claim because “Plaintiff has failed to allege that RCL knew or should have known of any facts that would have put it on notice that the subject medical personnel were unfit to perform their employment duties either prior to hiring them, or during the period of their employment.” ( Id. at 9–11.) Royal Caribbean also moves to limit Plaintiff's damages to those allowed under the Death on the High Seas Act and to strike Plaintiff's jury trial demand. ( See id. at 11–15.)

In the Response, Plaintiff acknowledges that the majority of courts have found that a ship owner cannot be held liable for the alleged negligence of the ship's medical personnel, but argues that the Court should adopt a different rule. ( See Response 3–12.) Plaintiff requests that if the Court dismisses Count I with prejudice, that the Court enter final judgment thereon and certify such final judgment for immediate appeal. ( Id. at 12.) With regard to Count II, Plaintiff argues that some courts have found that a passenger may assert a claim of negligence against a shipowner based on apparent agency and that Plaintiff has alleged sufficient facts supporting the claim. ( See id. at 12–18.) Finally, Plaintiff argues that the Complaint sets forth sufficient facts to support a claim for negligent hiring or retention. ( See id. at 18–20.)

II. Legal Standards

Under Federal Rule of Civil Procedure 12(b)(6), a court may dismiss a claim for “failure to state a claim upon which relief can be granted.” In evaluating a motion to dismiss under Rule 12(b)(6), courts adopt a “two-pronged approach” whereby they first (1) eliminate any allegations in the complaint that are merely legal conclusions and then (2) where there are well-pleaded factual allegations, “assume their veracity and then determine whether they plausibly give rise to an entitlement to relief.” Am. Dental Ass'n v. Cigna Corp., 605 F.3d 1283, 1290 (11th Cir.2010) (citing Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 1950, 173 L.Ed.2d 868 (2009)).

III. Discussion

Where an alleged tort occurs aboard a ship sailing upon navigable waters, federal maritime law governs the resulting substantive claims. Wilkinson v. Carnival Cruise Lines, Inc., 920 F.2d 1560, 1564 n. 10 (11th Cir.1991). The same holds true when the alleged tort occurs at a scheduled port-of-call. See Doe v. Celebrity Cruises, Inc., 394 F.3d 891, 901–02 (11th Cir.2004).

Under general maritime law, a cruise ship owner owes a duty to its passengers to exercise “reasonable care under the circumstances.” See Kermarec v. Compagnie Generale Transatlantique, 358 U.S. 625, 632, 79 S.Ct. 406, 3 L.Ed.2d 550 (1959).

A. Negligent Medical Care and Treatment

In Count I, Plaintiff seeks to hold Royal Caribbean liable for the alleged negligent care and treatment of Vaglio by the ship's medical staff.² ( See Compl. ¶¶ 19–25.) A carrier owes its sick and injured passengers a duty to exercise “reasonable care to furnish such aid and assistance as ordinarily prudent persons would render under similar circumstances,” but it owes no duty to maintain a doctor on board for the benefit and convenience of its passengers. Barbetta v. S/S Bermuda Star, 848 F.2d 1364, 1369, 1371 (5th Cir.1988). A carrier accordingly owes no duty to train shipboard medical staff. See Wajnstat v. Oceania Cruises, Inc., No. 09–21850, 2011 WL 465340, at *3 (S.D.Fla. Feb. 4, 2011). Nor does it owe a duty to provide medical transportation, Gliniecki v. Carnival Corp., 632 F.Supp.2d 1205, 1207–08 (S.D.Fla.2009), or to provide medical equipment such as wheelchairs, Walsh v. NCL (Bahamas) Ltd., 466 F.Supp.2d 1271, 1273 (S.D.Fla.2006). Furthermore, a carrier is not required to promulgate or enforce particular medical directives regarding patient care, and it is thus not negligent if it fails to do so. Hajtman v. NCL (Bahamas) Ltd., 526 F.Supp.2d 1324, 1327 (S.D.Fla.2007).

Here, Plaintiff's allegations that Defendant failed to properly assess, diagnose, treat, monitor, and transport Vaglio are all predicated on duties of care which are not recognized under maritime law. The Court therefore finds that these allegations cannot sustain a negligence claim against Royal Caribbean. Accordingly, the Court dismisses Count I of the Complaint with prejudice.³

B. Negligence of Royal Caribbean Based Upon Apparent Agency

In Count II of the Complaint, Plaintiff seeks to hold Royal Caribbean liable for negligence of its medical staff based on a theory of apparent agency. (Compl. ¶¶ 26–40.) The prevailing conclusion in this District and the majority of other jurisdictions is that a cruise line cannot be held vicariously liable for the negligence of its ship's doctor in the care and treatment of passengers. Huang v. Carnival Corp., 909 F.Supp.2d 1356, 1359–60 (S.D.Fla.2012) (citing Barbetta, 848 F.2d at 1372);see also Peterson v. Celebrity Cruises, Inc., 753 F.Supp.2d 1245, 1247 (S.D.Fla.2010); Ridley v. NCL (Bahamas) Ltd., 824 F.Supp.2d 1355, 1362 (S.D.Fla.2010); Hesterly v. Royal Caribbean Cruises, Ltd., 515 F.Supp.2d 1278, 1284 (S.D.Fla.2007); Doonan v. Carnival Corp., 404 F.Supp.2d 1367, 1370–71 (S.D.Fla.2005); 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. Doonan, 404 F.Supp.2d at 1370 (citing Barbetta, 848 F.2d at 1369–70). While the prevailing conclusion is that a carrier cannot be held vicariously liable for the negligence of its medical staff based on respondeat superior /actual agency, some courts in this District have nonetheless concluded that a carrier may be held vicariously liable on a theory of “apparent” agency. See, e.g., Peterson v. Celebrity Cruises, Inc., 753 F.Supp.2d 1245, 1248 (S.D.Fla.2010); Hajtman v. NCL (Bahamas) Ltd., 526 F.Supp.2d 1324, 1328 (S.D.Fla.2007). Apparent agency is established when (1) an alleged principal makes some sort of manifestation causing a third party to believe that an alleged agent had authority to act for the benefit of the principal; (2) such belief was...