Koens v. Cruises

• Decision Date: 25 March 2011
• Docket Number: Case Nos. 10–24371–CV,10–24373–CV.
• Citation: 774 F.Supp.2d 1215
• Parties: Adrianus KOENS, Plaintiff,v.ROYAL CARIBBEAN CRUISES, LTD., a Liberian Corporation, Defendant.Charlotte Ashfield, Plaintiff,v.Royal Caribbean Cruises Ltd., a Liberian Corporation, Defendant.
• Court: U.S. District Court — Southern District of Florida

774 F.Supp.2d 1215

Adrianus KOENS, Plaintiff,

v.ROYAL CARIBBEAN CRUISES, LTD., a Liberian Corporation, Defendant.Charlotte Ashfield, Plaintiff,

v.Royal Caribbean Cruises Ltd., a Liberian Corporation, Defendant.

Case Nos. 10–24371–CV

10–24373–CV.

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

March 25, 2011.

James Madison Walker, Walker & O'Neill PA, South Miami, FL, for Plaintiff.Jeffrey Eric Foreman, Danielle Portia Rubin, Darren Wayne Friedman, Foreman Friedman, PA, Miami, FL, for Defendants.

ORDER CONSOLIDATING CASES FOR PRETRIAL PROCEEDINGS, GRANTING WITHOUT PREJUDICE MOTIONS TO DISMISS

JAMES LAWRENCE KING, District Judge.

THIS CAUSE comes before the Court upon Motions to Dismiss filed by Defendant Royal Caribbean Cruises (“RCL”) in the two above-styled cases currently before this Court. Because of the factual similarity of these cases and to ensure judicial efficiency,¹ the Court will consolidate these cases for pre-trial proceedings.

In Ashfield, Defendant RCL filed its Motion to Dismiss (DE # 11) on January 14, 2011.² In Koens, Defendant RCL filed its motion to Dismiss (DE # 10) on February 18, 2011.³ After careful consideration and for the reasons set forth below, the Court determines that Defendant's Motions must be granted.

I. Background

Plaintiff Ashfield, an Irish citizen, was a ticketed passenger aboard a November 2009 sailing of the Royal Caribbean cruise ship, Navigator of the Seas. Plaintiff Koens, a Dutch citizen, was a ticketed passenger aboard the same sailing of the Navigator of the Seas.⁴ During that sailing of the Navigator, the ship was scheduled to stop in, among other places, Nassau. ⁵

While Plaintiffs were aboard the Navigator on that journey, they were purportedly bombarded by Royal Caribbean—through daily “Cruise Compasses,” television advertisements, and personal interactions with crew members—regarding the availability of certain shore excursions in Nassau for the day the Navigator was in port. Plaintiffs became interested in an excursion called the “Caribbean Segway Nature Tour,” which RCL advertised as a “family fun” excursion during which participants would enjoy “natural Nassau on a picturesque off-road Segway ride.” The excursion, operated by a company known as Caribbean Segway Tour, was to take place on a remote, 162–acre private nature preserve known as “Earth Village.” Based on these Royal Caribbean representations, Plaintiffs purchased tickets for the excursion from the Excursion Desk, located aboard the Navigator and manned by a Royal Caribbean employee.

However, the excursion was not the experience Plaintiffs anticipated. Plaintiffs and the other excursion participants, while touring Earth Village, were robbed at gunpoint. They were ordered by the robbers to lie facedown on the ground, and the robbers fired gunshots in their vicinity. Plaintiff Ashfield was thrown into a ditch and mistreated, having her purse stolen and a gun fired in close proximity to her person. Plaintiff Koens was forcibly thrown to the ground before being kicked in the side and having his backpack stolen. Plaintiffs feared for their physical safety.

Plaintiffs seek to recover against Defendant RCL, both for its own purported negligence and for its derivative liability as a consequence of its alleged relationship with the excursion operator, Caribbean Segway Tours. Specifically, the Complaints purport to state seven causes of action: 1) negligence; 2) misleading advertising; 3) negligent misrepresentation; 4) apparent agency; 5) actual agency; 6) breach of third-party beneficiary contract; and 7) negligent infliction of emotional distress. RCL has moved to dismiss both Complaints, largely on the basis that it cannot be held liable for criminal actions on Nassau or for the alleged actions of an entity RCL claims is an independent contractor, operating and controlling the excursion.

II. Legal Standard

“For the purposes of a motion to dismiss, the Court must view the allegations of the complaint in the light most favorable to Plaintiff, consider the allegations of the complaint as true, and accept all reasonable inferences therefrom.” Omar ex rel. Cannon v. Lindsey, 334 F.3d 1246, 1247 (11th Cir.2003). A complaint may be dismissed if the facts as pleaded fail to state a claim to relief that is plausible on its face. See Bell Atl. Corp. v. Twombly, 550 U.S. 544, 560–61, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) (abrogating former “unless it appears beyond a doubt that the plaintiff can prove no set of facts” standard and replacing it with a standard requiring “only enough facts to state a claim to relief that is plausible on its face”); Marsh v. Butler County, Ala., 268 F.3d 1014, 1037 (11th Cir.2001) (en banc) (“Pleadings must be something more than an ... exercise in the conceivable.”) (quoting United States v. Students Challenging Regulatory Ag. Proc., 412 U.S. 669, 688, 93 S.Ct. 2405, 37 L.Ed.2d 254 (1973)). Finally, “[i]n analyzing the sufficiency of the complaint, [the Court] limit[s][its] consideration to the well-pleaded factual allegations, documents central to or referenced in the complaint, and matters judicially noticed.” La Grasta v. First Union Sec., Inc., 358 F.3d 840, 845 (11th Cir.2004).

III. Discussion

For purposes of analyzing Defendant RCL's Motions to Dismiss, the stated grounds will be discussed individually as they pertain to each count of Plaintiffs' respective Complaints. Moreover, because of the substantial similarity of Plaintiffs' Complaints, the Court need not address any differences between the two.

i. Count One: Negligence

As the basis for Count I of their Complaints, Plaintiffs claim that Defendant RCL breached certain duties owed to them as passengers. According to Plaintiffs, Defendant breached those duties in the following ways, among others: failing to select a safer shore excursion for its passengers; failing to investigate the safety of its excursion operator; failing to audit the safety of its excursion operator; and failing to supervise the excursion operator. Underlying all the purported duties is Plaintiffs' contention that “Defendant knew or should have known of the high crime rate in Nassau, especially against tourists, and that cruise passengers were at risk of becoming victims.” (Case No. 10–24373 DE # 1 ¶ 21; Case No. 10–24371 DE # 1 ¶ 21). As such, Plaintiffs contend that Defendant had an obligation to take appropriate steps in light of the “real and significant dangers on tours and excursions.” ⁶

RCL moves for dismissal on the basis that such heightened duties are not appropriate here. While Defendant recognizes that cruise ships may be liable for failure to warn of known dangers, Carlisle v. Ulysses Line Ltd., 475 So.2d 248 (Fla. 3d DCA 1985), it nonetheless contends that such liability only springs from known dangers in specific geographic locations. (DE # 11 at 3); Carlisle, 475 So.2d at 251. Moreover, Defendant states that imposing heightened duties beyond a duty to warn is inappropriate.

Upon review of Plaintiffs' allegations and in light of the pertinent case law cited by the parties, the Court agrees with Defendant and finds that Plaintiffs have failed to state a cause of action for negligence. Carlisle and its progeny merely state that a cruise ship may be liable for a failure to warn of known dangers in known settings. See Carlisle, 475 So.2d at 251 (“[T]he duty to warn is limited to dangers known to exist in the particular place where the passenger is invited to, or reasonably may be expected to visit.”) (emphasis added). Permitting Plaintiffs to proceed on their claim of negligence against Defendant solely because of a rising crime rate in Nassau would improperly expand a cruise line's duties to its customers. Here, there are no allegations in either of the Complaints that RCL knew or should have known of dangerous conditions on either the Caribbean Segway Tour or on the grounds of Earth Village Nature Preserve. Instead, the only allegations pertain to “actual knowledge of crimes against tourists in Nassau, as a group of passengers on a Defendant-sponsored Nassau excursion were robbed at gunpoint approximately one month prior to the subject incident.” (DE # 1 ¶ 21). Such allegations are insufficient to trigger a duty under Carlisle. And since without duty there can be no breach, Plaintiffs have failed to state a cause of action for negligence.

Furthermore, insomuch as Plaintiffs seeks to hold Defendant liable for negligent hiring or retention, they have also failed to plead the necessary elements. While the Complaint seems to allege that Defendant RCL should be held to heightened duties relating to the allegedly negligent hiring of Caribbean Segway Tours, there is no indication that the relationship between Defendant RCL and Caribbean Segway Tours is appropriate for such a cause of action. Instead, Plaintiff's Complaint broadly alleges heightened duties that it would have applied to Defendant. The Court finds, however, that merely pleading the existence of such duties without providing a factual basis for their imposition is insufficient to state a cause of action.

Therefore, Count I of Plaintiffs' Complaints will be dismissed with leave to amend. Upon amendment, Plaintiffs are instructed to state with clarity the basis for any negligence action against Defendant, and to plead individually such separate claims as negligence and negligent retention.

ii. Count Two: Misleading Advertising

In support of their claim for Misleading Advertising under Count II of their respective Complaints, Plaintiffs allege that Defendant's failure to notify them of the “exploding crime rate in Nassau” constitutes misleading advertisement insomuch as Defendant's omission affected their decision to purchase the shore excursion. Plaintiffs cite certain language found under the FAQ section of Defendant's website in support of her claim, as well as the actions of Defendant's employees, which Plaintiffs states made them believe the tour was...