McCullough v. Royal Caribbean Cruises, Ltd.

• Decision Date: 21 July 2017
• Docket Number: Case No. 16–cv–20194–GAYLES
• Citation: 268 F.Supp.3d 1336
• Parties: Lynn MCCULLOUGH and William McCullough, Plaintiffs, v. ROYAL CARIBBEAN CRUISES, LTD., et al., Defendants
• Court: U.S. District Court — Southern District of Florida

268 F.Supp.3d 1336

Lynn MCCULLOUGH and William McCullough, Plaintiffs,

v.ROYAL CARIBBEAN CRUISES, LTD., et al., Defendants,

Case No. 16–cv–20194–GAYLES

United States District Court, S.D. Florida.

Signed July 21, 2017

John Scarola, Patrick Edward Quinlan, Christian D. Searcy, Bernard Joseph O'Donnell, Jr., Searcy Denney Scarola Barnhart & Shipley, PA, West Palm Beach, FL, David Frank Pope, Banker Lopez Gassler P.A., Tampa, FL, for Plaintiffs.

Curtis Jay Mase, Cameron Wayne Eubanks, Gabriel Joseph Fernandez, William Robert Seitz, Caroline Leigh Milewski, Mase Tinelli, P.A., Alexandra Valdes, Steven Russell Safra, Warren H. Chin, Scott Allan Cole, Cole, Scott & Kissane, P.A., Andrew Edward Beaulieu, Mase Lara, P.A., Michael Anthony Pineiro, Marcus Neiman & Rashbaum LLP, Miami, FL, Marci L. Strauss, Mark Atlas, Litchfield Cavo, LLP, Fort Lauderdale, FL, for Defendants.

ORDER

DARRIN P. GAYLES, UNITED STATES DISTRICT JUDGE

THIS CAUSE comes before the Court on the Joint Motion to Dismiss Second Amended Complaint [ECF No. 125] filed by Defendants Royal Caribbean Cruises, Ltd. ("Royal Caribbean"); Rain Forest Adventures (Holdings) Ltd. ("RF Holdings"); Elite Shore Excursions Foundation ("Elite Shore"); Rain Forest Sky Rides, Ltd. ("Rain Forest Sky Rides"); Rain Forest Tram, Ltd. ("RF Tram"); Canopy Enterprises, Inc. ("Canopy"); ENT–Consulting, Inc. ("ENT"); EMJO Investments Ltd. ("EMJO"); AP Electrical Service, LLC ("AP Electrical"); Harald Joachim von der Goltz; John Dalton; and Andrew Pierce,¹ as well as the Motion to Strike Supporting Affidavits [ECF No. 243] filed by Defendants EMJO, AP Electrical, Pierce, and Dalton. The Court has carefully considered the parties' briefs, the record in this case, and the applicable law and is otherwise fully advised in the premises.

I. BACKGROUND

According to the allegations in the Second Amended Complaint, Plaintiff William McCullough earned a Royal Caribbean cruise for himself and his wife, Plaintiff Lynn McCullough, through his work as an insurance agent. Second Am. Compl. ¶ 42. He then purchased excursion tickets by going to Royal Caribbean’s website and using an access code. Id. ¶ 43. One of the excursions the McCulloughs purchased was the Adrena–Line zip line course. Id. Mr. McCullough paid Royal Caribbean for two tickets on the tour for July 15, 2015, and received a receipt from Royal Caribbean for the purchase. Id. ¶ 44. On July 11, 2015, the McCulloughs boarded the Royal Caribbean Adventure of the Seas vessel in San Juan, Puerto Rico, for a seven-day pleasure cruise. Id. ¶ 46. The McCulloughs received their tickets for the Adrena–Line tour from Royal Caribbean while on board the ship. Id. ¶ 47.

On July 15th, the Adventure of the Seas docked in St. Lucia and the McCulloughs were transported to the Rain Forest Adventure Park in Babonneau, St. Lucia (the "Park"), where the excursion would take place. Id. ¶ 48. At the Park, the McCulloughs were told that there would be two "surprises" on the Adrena–Line, but were not told that rappelling would be one of the "surprises." Id. ¶ 50. As they progressed through the tour, the McCulloughs arrived at Platform 15, whereupon they were informed for the first time that they would need to rappel down to the next platform. Id. ¶ 51. The rappelling portion was set up as a two-line system: a "live rope" (so called because the rope moves with the participant as the participant rappels down) with a figure eight attached to a sling fastened to a tree, and a "dead rope" (so called because the rope does not move with the participant) anchored to a boom arm with a figure eight attached to the participant’s harness. Id. ¶ 52. The rappelling station did not have any "fail safe" method to ensure that, in the event of human error, such as in connecting, securing, or holding the ropes, a participant’s fall would be stopped or slowed before hitting the ground. Id. The station also had nothing to soften the impact of landing on rock below. Id.

In participating in this activity, Mrs. McCullough did everything she was asked or told to do by the Park guide and the guides at Platform 15. Id. ¶ 55. When Mrs. McCullough stepped off the platform, however, she was not properly secured, braked, stopped, caught, or otherwise slowed down in any manner and was allowed to free fall to the ground from the deck of the platform (a distance of nearly fifty feet) by the employees stationed on Platform 15 and on the ground below Platform 15. Id. ¶ 56. The Defendants' joint investigation concluded that there was a breakdown in communication between the sending guide and receiving guide at Platform 15, which resulted in Mrs. McCullough being sent down without someone being prepared to receive her. Id. ¶ 57. The guides also deviated from proper protocol and Park policy in not using the two-line system; rather, they had agreed in advance to use only the dead rope for smaller or lighter participants in order to save time on a busy "cruise day." Id. ¶¶ 49, 57. The Park’s manager was aware of this change in the procedure and did not object. Id. ¶ 58. The Defendants' joint investigation also concluded that emergency medical technicians were not on site as advertised by the Park in its marketing brochures. Id. ¶ 59. Mrs. McCullough was moved on a backboard to the Park’s "EMT Room" and ultimately transported to a local hospital by ambulance. Id.

Mr. McCullough was standing on Platform 15 and observed his wife’s fall. Id. ¶ 60. Because the Park did not have proper emergency equipment and personnel, he slipped and twisted his left knee. Id. Mr. McCullough alleges that he "suffered severe emotional and psychological distress, with physical manifestations, as a result of this experience." Id. ¶ 60. As for Mrs. McCullough, she sustained a broken neck, destruction of her disc at C–7 that necessitated the fusion of C–6 to T–1, a punctured lung

, a broken right leg, a shattered right heel bone, a broken left ankle, a shattered left heel bone, damage to her teeth and jaw, damage to her arms and shoulders, and paralysis from the chest (T–3 level) down. Id. ¶ 61.

The McCulloughs filed a Complaint in this Court on January 15, 2016 [ECF No. 1], and amended that Complaint on February 16, and July 14, 2016 [ECF Nos. 12 & 71]. In the Second Amended Complaint, they sue Royal Caribbean and a complex network of other parties and entities, which the McCulloughs collectively refer to as the "Rain Forest Defendants"—Defendants Elite Shore, RF Holdings, Rain Forest Sky Rides, RF Tram, Canopy Enterprises, EMJO, ENT, and von der Goltz—as well as two employees of the so-called Rain Forest Defendants.² A brief introduction to these parties is beneficial.

Defendant Elite Shore is a Panamanian company that has allegedly agreed to act as the agent for Defendant Rain Forest Sky Rides (a St. Lucia company) in negotiating agreements with cruise companies and obtaining the required insurance. Second Am. Compl. ¶ 27(a). At all relevant times, Elite Shore was entirely owned by Defendant RF Holdings (a British Virgin Islands company), which itself has been owned in significant part by Defendant EMJO (also a British Virgin Islands company). Id. ¶¶ 27(b), 27(j). Rain Forest Sky Rides has been nearly entirely owned by Defendant RF Tram, a Hong Kong company. Id. ¶ 27(g). RF Tram, with Defendant von der Goltz signing on its behalf, has retained Defendant ENT to maintain an office in Miami, Florida, and provide it with service in the United States, including managing the relationship with the cruise ship industry. Id. ¶ 27(h). RF Holdings and RF Tram have the same three directors, including von der Goltz. Two of those directors, including von der Goltz, also serve as directors of Defendant Canopy. Id. ¶ 27(o). Defendant Dalton was a professional engineer who provided services for and/or was directly employed by the Rain Forest Defendants. Id. ¶ 7. And Defendant Pierce—the principal of Defendant AP Electrical—was a park inspector who also provided services for and was directly employed by the Rain Forest Defendants. Id. ¶ 8.

The McCulloughs seek compensatory, punitive, and loss of consortium damages from the Defendants on the following nine claims: (1) negligence and gross negligence against Royal Caribbean; (2) negligent misrepresentation against Royal Caribbean; (3) negligence and gross negligence against the Rain Forest Defendants; (4) vicarious liability on theories of apparent agency or agency by estoppel against Royal Caribbean; (5) joint venture against Royal Caribbean and the Rain Forest Defendants; (6) vicarious liability on a theory of actual agency against Royal Caribbean; (7) breach of third-party beneficiary contract against the Rain Forest Defendants; (8) strict liability against Dalton, Pierce, and AP Electrical; and (9) negligence against Dalton, Pierce, and AP Electrical. See id. ¶¶ 65–130.

The Defendants filed the instant motion to dismiss on October 24, 2016. Within the motion, EMJO, AP Electrical, Pierce, and Dalton (the "Jurisdiction Defendants") argue that this Court cannot exercise personal jurisdiction over them. On November 28th, the McCulloughs filed a motion urging the Court to either defer ruling on personal jurisdiction pending a merits determination or completion of jurisdictional discovery [ECF No. 135]. After considering the parties' arguments on the issue, the Court granted the McCulloughs sixty days' leave to take jurisdictional discovery of the four Jurisdiction Defendants [ECF No. 189]. Following that discovery, the McCulloughs filed an addendum brief as to personal jurisdiction [ECF No. 236], and the Jurisdiction Defendants replied to that addendum [ECF No. 243]. Imbedded in that reply, the Jurisdiction Defendants move to strike as untimely four affidavits filed by the McCulloughs with their addendum.

II. DISCUSSION

A. Personal Jurisdiction

The Court must first decide whether it can appropriately exercise personal jurisdiction over the Jurisdiction Defendants. "A plaintiff seeking to establish personal...