Giuliani v. NCL (Bahamas) Ltd.
| Decision Date | 23 June 2021 |
| Docket Number | CASE NO.: 1:20-cv-22006-GAYLES/OTAZO-REYES |
| Parties | ESTERINA GIULIANI, Plaintiff, v. NCL (BAHAMAS) LTD., a Bermuda Company doing business as Norwegian Cruise Line, ALASKA X, and XYZ CORPORATION(S), Defendants. |
| Court | U.S. District Court — Southern District of Florida |
THIS CAUSE comes before the Court on Defendant NCL (Bahamas) Ltd.'s ("NCL") Motion to Dismiss Amended Complaint (the "Motion") [ECF No. 37]. The Court has considered the Motion and the record and is otherwise fully advised. For the reasons that follow, the Motion is granted in part and denied part.
This case arises from injuries Plaintiff Esterina Giuliani suffered during a horseback riding excursion (the "shore excursion") operated by Defendants Alaska X and XYZ Corporation(s) (collectively, the "Excursion Entities") while Plaintiff was a passenger on NCL's ship. On July 6, 2019, Plaintiff booked and paid for the shore excursion through NCL's app to partake during her trip on the NCL Bliss. See [ECF No. 26-1]. NCL made available and distributed information and materials to Plaintiff that stated that NCL operated and oversaw the shore excursion and that the shore excursion was safe. The materials did not require or recommend a particular level of experience to participate in the shore excursion. Plaintiff reviewed the information and materials regarding the shore excursion, including its safety and reliability, and relied on NCL's representations in deciding to purchase and participate in the shore excursion.
On August 28, 2019, Plaintiff participated in the shore excursion. The Excursion Entities' tour guide provided Plaintiff with insufficient instructions and safety guidelines on how to properly handle the horses and did not inquire into Plaintiff's experience level. However, Plaintiff informed the tour guide that she was not athletic and a beginner at horseback riding. During the shore excursion, the tour guide informed Plaintiff that "all the horses were rescues, that the horses would often fight each other, that they knew that Plaintiff's assigned horse . . . was wild, unruly, violent, aggressive, recently blinded in at least one eye, and more prone to being anxious and/or spooked . . . ." [ECF No. 26 at 11-12 ¶ 39]. During the grazing portion of the shore excursion, another participant's horse provoked Plaintiff's horse and the horses began to fight. Plaintiff was thrown off her horse and landed on the ground, resulting in severe injuries.
Plaintiff received medical treatment at the medical center on board NCL's ship, including x-rays on both sides of her body. The ship doctor determined that no bones were fractured or broken, instructed Plaintiff to continue moving, and prescribed her ibuprofen. The medical center did not provide her additional medical assistance to relieve her pain. On August 31, 2019, Plaintiff returned to the medical center for further care because the pain did not subside. Additional x-rays were conducted and again the medical doctors advised Plaintiff that no bones were fractured or broken but prescribed her additional medications. Because Plaintiff failed to receive appropriate medical care, she suffered severe injuries that included multiple nondisplaced fractures of her hips and pelvis, debilitating back pain, bursitis, hematoma, and labral tears.
On May 13, 2020, Plaintiff filed her original Complaint against NCL and the Excursion Entities. [ECF No. 1]. On August 6, 2020, NCL filed a Motion to Dismiss the original Complaint. [ECF No. 23]. On August 20, 2020, Plaintiff filed her First Amended Complaint in which she brings eleven counts: (1) Negligence against the Excursion Entities (Count I); (2) Misleading Advertising in Violation of Florida Statute § 817.41 against NCL (Count II); (3) Negligent Misrepresentation against NCL (Count III); (4) Negligent Selection and/or Retention against NCL (Count IV); (5) Negligent Failure to Warn against NCL (Count V); (6) Negligence against NCL Based on Apparent Agency or Agency by Estoppel (Count VI); (7) Negligence against all Defendants Based on Joint Venture between NCL and the Excursion Entities (Count VII); (8) Third-Party Beneficiary as to the Excursion Entities (Count VIII); (9) Vicarious Liability against NCL for the Negligence of the Ship's Medical Staff (Count IX); (10) Apparent Agency as to NCL for the Acts of the Ship's Medical Staff (Count X); and (11) Assumption of Duty as to NCL for the Negligence of the Ship's Medical Staff (Count XI). [ECF No. 26]. On September 3, 2020, NCL filed the instant Motion. [ECF No. 37].
To survive a motion to dismiss brought pursuant to Federal Rule of Civil Procedure 12(b)(6), a claim "must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face,'" meaning that it must contain "factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). While a court must accept well-pleaded factual allegations as true, "conclusory allegations . . . are not entitled to an assumption of truth—legal conclusions must be supported by factual allegations." Randall v. Scott, 610 F.3d 701, 709-10 (11th Cir. 2010). "[T]he pleadings are construed broadly," Levine v. World Fin. Network Nat'l Bank, 437 F.3d 1118, 1120 (11th Cir. 2006), and the allegations in the complaint are viewed in the light most favorable to the plaintiff. Bishop v. Ross Earle & Bonan, P.A., 817 F.3d 1268, 1270 (11th Cir. 2016). At bottom, the question is not whether the claimant "will ultimately prevail . . . but whether his complaint [is] sufficient to cross the federal court's threshold." Skinner v. Switzer, 562 U.S. 521, 530 (2011) (citation and internal quotation marks omitted).
In its Motion, Defendant only seeks to dismiss Counts II through VII of the First Amended Complaint. The Court first considers the applicable law and then considers each Count in turn.
"Maritime law governs actions arising from alleged torts committed aboard a ship sailing in navigable waters." Guevara v. NCL (Bah.) Ltd., 920 F.3d 710, 720 (11th Cir. 2019) ); see also Everett v. Carnival Cruise Lines, 912 F.2d 1355, 1358 (11th Cir. 1990) . This is also true for torts that "occurred at an offshore location during the course of a cruise." Ceithaml v. Celebrity Cruises, Inc., 739 F. App'x 546, 550 n.5 (11th Cir. 2018) (per curiam) (citing Doe v. Celebrity Cruises, Inc., 394 F.3d 891, 900-02 (11th Cir. 2004)). "In the absence of well-developed maritime law, courts may supplement the maritime law with general common law and state law principles." Marabella v. NCL (Bah.) Ltd., 437 F. Supp. 3d 1221, 1225 (S.D. Fla. 2020) (citing Smolnikar v. Royal Caribbean Cruises Ltd., 787 F. Supp. 2d 1308, 1315 (S.D. Fla. 2011)); see also Just v. Chambers, 312 U.S. 383, 388 (1941) ().
Here, the parties do not dispute that maritime law governs. Compare [ECF No. 37 at 4], with [ECF No. 44 at 3]. Courts apply the general principles of negligence law when analyzing tort claims brought under maritime law. See Chaparro v. Carnival Corp., 693 F.3d 1333, 1336 (11th Cir. 2012) (per curiam) (quoting Daigle v. Point Landing, Inc., 616 F.2d 825, 827 (5th Cir. 1980)). Generally, a cruise line "is not liable to passengers as an insurer, but only for its negligence." Keefe, 867 F.2d at 1322 (quoting Kornberg v. Carnival Cruise Lines, Inc., 741 F.2d 1332, 1334 (11th Cir. 1984)). To bring a negligence claim, a plaintiff must allege that: "(1) the defendant had a duty to protect the plaintiff from a particular injury; (2) the defendant breached that duty; (3) the breach actually and proximately caused the plaintiff's injury; and (4) the plaintiff suffered actual harm." Chaparro, 693 F.3d at 1336 (citing Zivojinovich v. Barner, 525 F.3d 1059, 1067 (11th Cir. 2008) (per curiam)). The Court considers each of Plaintiff's negligence-based claims in turn.
In Counts II and III, Plaintiff alleges that NCL made and disseminated false and/or misleading advertisements as to the activity level and safety of the shore excursion operated by the Excursion Entities. [ECF No. 26 at 10 ¶ 34; 25-26 ¶ 72; 28-29 ¶ 81]. NCL argues in its Motion that Plaintiff's claims should be dismissed because neither meet the heightened pleading standard of Federal Rule of Civil Procedure 9. [ECF No. 37 at 9].
To bring claims for misleading advertising under Florida Statute § 817.412 or for negligent misrepresentation, a plaintiff must allege:
(1) misrepresentation of a material fact; (2) that the representor made the misrepresentation without knowledge as to its truth or falsity or under circumstances in which he ought to have known of its falsity; (3) that the representor intended that the misrepresentation induce another to act on it; and (4) that injury resulted to the party acting in justifiable reliance on the misrepresentation.
Ceithaml v. Celebrity Cruises, Inc., 207 F. Supp. 3d 1345, 1352-53 (S.D. Fla. 2016) (quoting Holguin v. Celebrity Cruises, Inc., No. 10-CIV-20212, 2010 WL 1837808, at *1 (S.D. Fla. May 4, 2010)). As...
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