Pucci v. Carnival Corp.
| Decision Date | 18 November 2015 |
| Docket Number | CASE NO. 15-22241-CIV-ALTONAGA/O'Sullivan |
| Citation | 146 F.Supp.3d 1281 |
| Parties | Alfred Pucci, et al., Plaintiffs, v. Carnival Corporation, et al., Defendants. |
| Court | U.S. District Court — Southern District of Florida |
Stephen F. Cain, Stewart Tilghman Fox & Bianchi, Miami, FL, for Plaintiffs.
Jeffrey Eric Foreman, Noah Daniel Silverman, Rachael Mitchell Fagenson, Foreman Friedman, P.A., Miami, FL, for Defendant, Carnival.
Carlos Javier Chardon, Hamilton, Miller & Birthisel, LLP., Miami, FL, for Defendant, Cruise Ship Excursions, Inc.
CECILIA M. ALTONAGA
THIS CAUSE came before the Court on Defendant, Carnival Corporation's (“Carnival['s]”) Motion to Dismiss Plaintiffs' Amended Complaint (“Carnival Motion”) [ECF No. 29], filed August 27, 2015; and Defendant, Cruise Ship Excursions, Inc.'s (“CSE['s]”) Motion to Dismiss Plaintiffs' Amended Complaint (“CSE Motion”) [ECF No. 34], filed September 21, 2015. Plaintiffs, Alfred Pucci (“Alfred”) and Michael W. Pucci (“Michael”) (collectively, “Plaintiffs”) filed a Response...(“Carnival Response”) [ECF No. 35] to the Carnival Motion on September 24, 2015; Carnival filed a Reply...(“Carnival Reply”) [ECF No. 39] on October 13, 2015. Plaintiffs filed a Response...(“CSE Response”) [ECF No. 38] to the CSE Motion on October 8, 2015; CSE filed a Reply... (“CSE Reply”) [ECF No. 42] on October 22, 2015. The Court has carefully reviewed the parties' written submissions, the record, and applicable law.
On August 17, 2014, Judith Pucci (“Judith”) boarded Carnival's ship, The Valor , for a seven-night cruise from Puerto Rico to the Virgin Islands. (See Am. Compl. ¶ 12). She was traveling with her son, Michael, his wife, and their three children. (See id. ). While aboard The Valor , on August 17 or 18, 2014, Judith inquired into participating in a snorkeling excursion promoted by Carnival and operated by CSE, called the Champagne Catamaran Sail and Snorkel (“Champagne Excursion”). (See id. ¶¶ 21–22). Carnival marketed, promoted, advertised, and sold shore excursions, including the Champagne Excursion, directly to passengers at excursion desks aboard The Valor , as well as on its website, brochures, and television system. (See id. ¶ 14). Carnival and CSE (collectively, “Defendants”) contracted to offer the Champagne Excursion, and shared in the profits and losses associated with the excursion's success or failure. (See id. ¶ 19).
Carnival was informed Judith was not a good swimmer,2 but Carnival employees, agents and/or personnel assured Judith the Champagne Excursion was safe and appropriate for her, despite her limited abilities and advanced age. (See id. ¶ 21). Carnival marketed the Champagne Excursion as an “easy” excursion. (See id. ). Through its marketing and sales process, Carnival assured Judith and her family that booking a “Carnival shore excursion” ensured the highest safety standards were followed. (Id. ¶ 22). Consequently, Judith purchased a ticket for the Champagne Excursion. (See id. ¶ 14).
On August 18, 2014, Judith boarded CSE's vessel, The Adventuress , to embark on the Champagne Excursion. . The Champagne Excursion involved sailing in the U.S. Virgin Islands from St. Thomas to St. John, and snorkeling off Honeymoon Beach, which has been the site of several snorkeler and swimmer drownings. (See id. ¶¶ 19–20). Defendants knew or should have known the snorkeling portion of the Champagne Excursion was not appropriate for all passengers and posed an increased risk of injury and death to inexperienced passengers. (See id. ¶ 20).
Personnel aboard the Champagne Excursion encouraged and allowed Judith to enter the water without sufficient education, training, and instruction, despite her lack of snorkeling experience and limited swimming abilities. (See id. ¶ 23). Personnel never performed an in-water safety evaluation during the Champagne Excursion to ensure Judith could safely snorkel. (See id. ¶ 25). Defendants also failed to have sufficient personnel available or assigned to monitor the snorkeling participants, such as by looking out for, recognizing, and responding to dangers presented by the water conditions or the actions/inactions of snorkeling participants. (See id. ¶ 27). Personnel further failed to implement a “buddy system” for snorkeling; thus, Judith snorkeled alone without proper training or monitoring, and became separated from the other snorkelers. (See id. ¶¶ 24–26).
Eventually, personnel “aboard the excursion” noticed Judith floating face down near a reef, in an area inappropriate for snorkeling. (Id. ¶ 28). By the time Defendants' agents, servants, and/or employees responded to Judith's aid, she was unresponsive. (See id. ¶ 29). Personnel pulled Judith from the water and attempted resuscitation, but Judith passed away. (See id. ¶ 30). A subsequent autopsy determined drowning as the cause of death. (See id. ).
Following Judith's death, Alfred (Judith's husband) and Michael filed this lawsuit against Defendants. (See generally Compl. [ECF No. 1] ). In the Amended Complaint, Plaintiffs assert the following claims against Carnival: Negligence (Count I), Negligent Selection/Retention of Tour Operator (Count III), Negligence for Apparent Agency or Agency by Estoppel (Count IV), Negligent Misrepresentation (Count V), Fraudulent Misrepresentation (Count VI), and Joint Venture (Count VII). (See generally Am. Compl.). Plaintiffs also bring two claims against CSE: Negligence (Count II), and Joint Venture (Count VII). (See generally id. ). Plaintiffs' negligence claims (Counts I and II) are predicated on a long list of actions and omissions by Defendants including: failing to warn Judith of the hazards associated with snorkeling for an inexperienced snorkeler, failing to provide Judith with adequate aquatic safety instructions, failing to supervise snorkelers, and failing to timely render aide to Judith. (See id. ¶¶ 39–49).
Plaintiffs' misrepresentation claims against Carnival (Counts V and VI) are based on Carnival's alleged misrepresentation to Judith the Champagne Excursion was “easy” and safe, despite her lack of experience and swimming ability. (See id. ¶¶ 63–70). Plaintiffs predicate their Joint Venture theory of liability (Count VII) on numerous facts, such as: (1) Defendants entered into an agreement, “whether by formal contract or through their subsequent and ongoing course of conduct” (id. ¶ 77), whereby Carnival sold tickets for the Champagne Excursion and CSE operated the excursion; (2) Defendants had joint and/or shared control over aspects of the joint venture; (3) Defendants had a joint proprietary and/or ownership interest in the Champagne Excursion; and (4) Defendants shared profits and losses sustained from the joint venture. (See id. ¶¶ 77–82).
Plaintiffs seek compensatory damages (including damages for Alfred's lost support and services, companionship and protection, and mental pain and suffering, and Michael's mental pain and suffering), punitive damages, interest, and costs associated with bringing the action. (See id. ¶ 87). Defendants seek to dismiss all claims against them. (See generally Carnival Mot. & CSE Mot.).
“To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’ ” Ashcroft v. Iqbal , 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009)
(quoting Bell Atl. Corp. v. Twombly , 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) ). Although this pleading standard “does not require ‘detailed factual allegations,'...it demands more than an unadorned, the defendant-unlawfully-harmed-me accusation.” Id. (alteration added) (quoting Twombly , 550 U.S. at 555, 127 S.Ct. 1955 ). Pleadings must contain “more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Twombly , 550 U.S. at 555, 127 S.Ct. 1955 (citation omitted). Indeed, “only a complaint that states a plausible claim for relief survives a motion to dismiss.” Iqbal , 556 U.S. at 679, 129 S.Ct. 1937
(citing Twombly , 550 U.S. at 556, 127 S.Ct. 1955 ). To meet this “plausibility standard,” a plaintiff must “plead[ ] factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. at 678, 129 S.Ct. 1937 (alteration added) (citing Twombly , 550 U.S. at 556, 127 S.Ct. 1955 ). “The mere possibility the defendant acted unlawfully is insufficient to survive a motion to dismiss.” Sinaltrainal v. Coca
–
Cola Co. , 578 F.3d 1252, 1261 (11th Cir.2009) (citing Iqbal , 556 U.S. at 678, 129 S.Ct. 1937 ), abrogated on other grounds by
Mohamad v. Palestinian Auth. , ––– U.S. ––––, 132 S. Ct. 1702, 182 L.Ed.2d 720 (2012).
Carnival argues Plaintiffs: (1) fail to state a claim for negligence because they inadequately allege Defendants had notice of a risk-creating condition that proximately caused Judith's death, and the dangers associated with natural bodies of water are open and obvious as a matter of law; (2) fail to state claims for misrepresentation because they do not plead with sufficient particularity; (3) cannot hold Defendants liable on a theory of joint venture because the agreement between Carnival and CSE states Defendants are not joint venturers; and (4) may not recover emotional damages because maritime law prohibits such recovery. (See generally Carnival Mot.). CSE similarly argues (1), (3), and (4); and additionally contends Plaintiffs fail to allege facts for which punitive damages may be awarded under maritime law. (See generally CSE Mot.).
To properly plead a negligence claim, a plaintiff must allege four elements: “a legal duty on the defendant to protect the plaintiff from particular injuries; (2) the defendant's breach of that duty; (3) the plaintiff's injury being actually and proximately caused by the breach; and (4...
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