Lipkin v. Norwegian Cruise Line Ltd.

• Decision Date: 06 March 2015
• Docket Number: Case No. 13–CV–24206.
• Citation: 93 F.Supp.3d 1311
• Parties: Jack LIPKIN, Plaintiff, v. NORWEGIAN CRUISE LINE LIMITED; Norwegian Cruise Lines, Inc. ; NCL (Bahamas) Ltd., d/b/a NCL; NCL America, Inc., and Miami–Dade County, Defendants.
• Court: U.S. District Court — Southern District of Florida

93 F.Supp.3d 1311

Jack LIPKIN, Plaintiff

v.NORWEGIAN CRUISE LINE LIMITED; Norwegian Cruise Lines, Inc. ; NCL (Bahamas) Ltd., d/b/a NCL; NCL America, Inc., and Miami–Dade County, Defendants.

Case No. 13–CV–24206.

United States District Court, S.D. Florida.

Signed March 6, 2015.

Scott Lyon Henratty, MaloveHenratty, P.A., Fort Lauderdale, FL, for Plaintiff.

Amanda Jane Freilich, Brian Hugo McGuire, Darren Wayne Friedman, Jeffrey Eric Foreman, Foreman Friedman, PA, Miami, FL, Erica Sunny Shultz Zaron, Miami, FL, Richard Charles Seavey, Metro Dade Center, Miami, FL, for Defendants.

ORDER

KATHLEEN M. WILLIAMS, District Judge.

THIS MATTER is before the Court on the Norwegian Defendants' Motion to Dismiss the Amended Complaint, [D.E. 21] and the Norwegian Defendants' Motion for Summary Judgment [D.E. 40], Miami–Dade County's Motion to Dismiss the Amended Complaint [D.E. 28] and Miami–Dade County's Motion for Summary Judgment [D.E. 38]. For the reasons stated below, the Norwegian Defendants' Motion to Dismiss is GRANTED IN PART, the Norwegian Defendants' Motion for Summary Judgment is GRANTED, Miami–Dade County's Motion to Dismiss is DENIED, and Miami–Dade County's Motion for Summary Judgment is GRANTED.

I. Background

Plaintiff Jack Lipkin is an 83–year–old resident of Delray Beach, Florida. In November 2012, Lipkin traveled on an 11–day cruise with his wife, Natalie, aboard the Norwegian Sun [D.E. 46 at 1]. The cruise concluded on November 25, 2012, at the Port of Miami, where Lipkin and his wife disembarked from the ship and entered Port Terminal C, heading toward the baggage claim area [D.E. 40 ¶¶ 4–5]. While his wife sought wheelchair assistance, Plaintiff, walking with the aid of a cane, stepped onto a moving walkway (alternately referred to as a people mover) to traverse a hallway in the terminal. Id. at ¶ 8. Lipkin stood still on the left side of the tread belt among about 10 other cruise passengers, including a woman assisting a man in a wheelchair on the walkway in front of him. Id. at ¶¶ 15, 17. For reasons unknown, the wheelchair became stuck at the end of the walkway, creating a barrier to oncoming passengers on the walkway, including Lipkin. Id. at ¶ 19. While attempting to free the wheelchair, the woman (whose identity remains unknown) collided with Lipkin, causing him to fall [D.E. 48 ¶ 20]. Lipkin suffered a broken hip in the fall [D.E. 45–10 at 8–9].

Lipkin originally filed this action against the Norwegian Defendants on November 20, 2013 [D.E. 1]. The original Complaint contained twelve claims of negligence and breach of contract against the four Norwegian Defendants. Id. Lipkin subsequently filed an Amended Complaint to add Miami–Dade County as a Defendant [D.E. 17]. The Amended Complaint asserts four negligence claims and four breach of contract claims against the four Norwegian Defendants, and a negligence claim against Miami–Dade County. Id.

In his Amended Complaint, Lipkin advances several theories of negligence liability, alleging, among other things, that Norwegian breached its duty of care by “allowing or directing people to access and/or use people movers in wheelchairs,” “fail[ing] to safely and properly assist and/or monitor people walking through their building,” and “fail[ing] to reasonably and safely warn Plaintiff of the dangers of people using wheelchairs on the people movers.” Id.

At the time of the accident, no Norwegian employees were present at the entrance or exit of the moving walkway [D.E. 40 ¶ 10]. Yellow warning decals were affixed at the base of the walkway at its entrance and exit, which read: “Caution Passengers Only” [D.E. 40–4 at 2; D.E. 40–5 at 21]. The signs also instructed passengers to “hold handrail,” “attend children,” and “avoid sides,” and they included an illustration of a wheeled device (described by the Norwegian Defendants as either a “cart” or “chair”) inside a red circle with a slash [D.E. 40 ¶¶ 10; D.E. 40–5 at 21]. The walkway is owned by Miami–Dade County and maintained by the County under an agreement with the walkway's manufacturer, Schindler [D.E. 48 ¶ 2; D.E. 40–2 at 6].

The Norwegian Defendants have filed a motion to dismiss the Amended Complaint on the grounds that Lipkin is asserting negligence claims under Florida law in this maritime action [D.E. 21], and a motion for summary judgment [D.E. 40]. Miami–Dade County has also filed a motion to dismiss, in which it argues that the Court does not have subject matter jurisdiction because the claims against Norwegian are not in fact in admiralty [D.E. 28], and a motion for summary judgment [D.E. 38]. Plaintiff opposes the motions.

II. Miami–Dade County's Motion to Dismiss for Lack of Subject Matter Jurisdiction [D.E. 28]

Because district courts are courts of limited jurisdiction, the Court first must examine where it has subject matter jurisdiction over this case. See, e.g., Miccosukee Tribe of Indians of Fla. v. Cypress, 975 F.Supp.2d 1298, 1305 (S.D.Fla.2013). In his Amended Complaint, Plaintiff has asserted a single negligence claim against Miami–Dade County for “allowing” cruise passengers to use wheelchairs on the walkway, and for the County's failure to warn of this danger [D.E. 17 ¶ 60]. The County has filed a motion to dismiss the case, arguing that the Court does not have subject-matter jurisdiction over this action because the claims against Norwegian do not arise in admiralty [D.E. 28 at 6–16]. The County further argues that the Court should decline to exercise supplemental jurisdiction over the claim against the County because the state law claim predominates over the maritime claims. Id. at 16–18. Plaintiff [D.E. 29] and the Norwegian Defendants [D.E. 32] have objected to the motion.

A. Standard of Review

The County has moved to dismiss this action pursuant to Fed.R.Civ.P. 12(b)(1) [D.E. 28]. A Rule 12(b)(1) motion to dismiss may present a facial or factual attack on subject-matter jurisdiction. McElmurray v. Consol. Gov't of August–Richmond Cnty., 501 F.3d 1244,1251 (11th Cir.2007). Facial attacks challenge subject-matter jurisdiction based on the allegations in the complaint, and the district court takes as true the allegations contained in the complaint when considering the motion. Lawrence v. Dunbar, 919 F.2d 1525, 1529 (11th Cir.1990). In contrast, factual attacks challenge the existence of subject-matter jurisdiction in fact, and in such cases “no presumptive truthfulness attaches to plaintiff's allegations.” Id.

B. Analysis

The County's principal argument is that, because Plaintiff's injury occurred in the Port of Miami Terminal after disembarking from the Norwegian Sun, this matter does not fall within the Court's admiralty jurisdiction [D.E. 28 at 6–16]. To determine if a claim falls within a court's admiralty jurisdiction, the court must consider the site of the tort (the “locality” test) and the relationship between the tort and traditional maritime activity (the “nexus” test). See Bunge Corp. v. Freeport Marine Repair, Inc., 240 F.3d 919, 923–24 (11th Cir.2001) (citing Executive Jet Aviation, Inc. v. City of Cleveland, 409 U.S. 249, 253, 93 S.Ct. 493, 34 L.Ed.2d 454 (1972) ). Both Plaintiff and Norwegian assert that the allegations raised in the Amended Complaint satisfy the locality and nexus tests to establish admiralty jurisdiction [D.E. 29; D.E. 32].

“A court applying the location test must determine whether the tort occurred on navigable water or whether injury suffered on land was caused by a vessel on navigable water.” Jerome B. Grubart, Inc. v. Great Lakes Dredge & Dock Co., 513 U.S. 527, 534, 115 S.Ct. 1043, 130 L.Ed.2d 1024 (1995). Courts of this circuit have held that torts committed by cruise lines or their employees while in port may satisfy the location test. See, e.g., Doe v. Celebrity Cruises, Inc., 394 F.3d 891, 899 (11th Cir.2004) ; Duck v. Royal Caribbean Cruises, Ltd., No. 11–22702–FAM (S.D. Fla. June 28, 2013) [D.E. 46]. This includes torts committed on shore by a ship or its employees “while the vessel is being unloaded.” See Duck, D.E. 46 at 3. For this reason, an alleged injury in port during the disembarkation process satisfies the location test because “the process of transporting cruise ship passengers from the ship to a nearby point onshore is part of the ‘unloading’ of that vessel.” Id.

In this case, the Amended Complaint alleges that Norwegian and/or its employees were negligent for failing to prevent the collision on the walkway during the disembarkation process [D.E. 17 ¶¶ 13–14]. Because the disembarkation process is part of the unloading of a vessel, the Court finds that the tort as alleged in the Amended Complaint was caused by the Norwegian Sun for purposes of the location test.

Under the “nexus test,” a court must examine (1) whether the incident had a potentially disruptive impact on maritime commerce, and (2) whether a substantial relationship existed between the activity giving rise to the incident and traditional maritime activity. Bunge, 240 F.3d at 924–25. Here, Plaintiff asserts that Norwegian is negligent for “allowing or directing people to disembark on wheelchairs while using the people movers without supervision” [D.E. 17 ¶ 21(b) ]. “The failure to provide for the safe unloading of a commercial vessel such as a cruise ship has a rather obvious potential to disrupt maritime commerce.” Duck, D.E. 46 at 3–4. And the “failure to provide a reasonably safe means of debarking, with consequent injury to the passenger, is a tort within admiralty jurisdiction.” Tullis v. Fid. and Cas. Co. of N.Y., 397 F.2d 22, 23–24 (5th Cir.1968).¹ The Court therefore finds that the tort alleged in the complaint also satisfies the connection test, and this cause of action is within its admiralty jurisdiction.

Because the Court finds that the Amended Complaint falls within the admiralty jurisdiction of this Court, Miami–Dade County's motion to dismiss [D.E. 28] is DENIED.

III. Norwegian's Motion to Dismiss for Failure to State a Claim [D.E. 21]

A. Standard of Review

To...