Sands v. Grupo Posada S.A. De C.V.
| Decision Date | 19 May 2016 |
| Docket Number | Civil Action No. 16-860 (ES) |
| Parties | ROSA SANDS, Plaintiff, v. GRUPO POSADA S.A. de C.V., et al., Defendants. |
| Court | U.S. District Court — District of New Jersey |
NOT FOR PUBLICATION
Before the Court is Defendants Reebok International Ltd. and adidas America, Inc.'s (collectively, the "Reebok Defendants") motion to dismiss under Federal Rule of Civil Procedure 12(b)(6). ( ) at 1-3). Plaintiff Rosa Sands ("Sands" or "Plaintiff") opposes the Reebok Defendants' motion. (D.E. No. 8 ("Pl. Opp. Br.")). The Court decides this matter without oral argument. See Fed. R. Civ. P. 78(b). For the reasons below, the Reebok Defendants' motion is GRANTED.
Sands fell down "an approximate two foot embankment" after leaving a dinner party on a beach in Mexico. . This dinner party was part of a "promotional event" known as "Raise the Bar." (Id. ¶¶ 3, 7-8). "As a result of being selected a winner of 'Raise the Bar'" offered by certain defendants—including the Reebok Defendants—in this action, Sands's daughter brought Sands to this "vacation/event" in Mexico. (Id. ¶¶ 3, 5-6).
Sands fell "as a result of dangerous and hazardous conditions then and there existing on the premises." (Id. ¶ 8; see also id. ¶ 26). She alleges that the Reebok Defendants, as well as other defendants in this action, "organized, supervised, maintained, controlled, cared for, possessed and managed the dinner party including the area of the premises where Plaintiff fell." (Id. ¶ 10). Sands claims the Reebok Defendants, as well as other defendants, had a duty "to use reasonable care to inspect and make the premises safe for Plaintiff." (Id. ¶ 11). The Reebok Defendants () "highly recommended" the premises to Sands "by offering an all expense paid trip." (Id. ¶ 14). So, Sands claims that the Reebok Defendants and other named defendants "had a duty to be familiar" with the premises "they were recommending," "had a duty to inspect the premises at issue to ensure that it was reasonably safe and free of risk," and "had a duty to warn . . . of any hazardous and/or dangerous conditions associated with the premises recommended by them." (Id. ¶ 15).
Sands appears to assert two causes of action against the Reebok Defendants: (1) premises liability; and (2) negligent selection of the premises. (Pl. Opp. Br. at 6).2 This Court has diversity jurisdiction over this action. See 28 U.S.C. § 1332(a).
To withstand 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 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Iqbal, 556 U.S. at678. "The plausibility standard is not akin to a 'probability requirement,' but it asks for more than a sheer possibility that a defendant has acted unlawfully." Id.
"When reviewing a motion to dismiss, '[a]ll allegations in the complaint must be accepted as true, and the plaintiff must be given the benefit of every favorable inference to be drawn therefrom.'" Malleus v. George, 641 F.3d 560, 563 (3d Cir. 2011) (quoting Kulwicki v. Dawson, 969 F.2d 1454, 1462 (3d Cir. 1992)). But the court is not required to accept as true "legal conclusions," and "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Iqbal, 556 U.S. at 678.
The Reebok Defendants argue that Sands alleges no facts showing that they owed her a duty of care that would support a "negligence claim under a premises liability theory." (Defs. Mov. Br. at 4). They argue that "mere sponsorship of an event, absent possession or active control over the event or over the property, does not render a defendant legally responsible." (Id. (citation omitted)). In opposition, Sands argues that her "factual allegation that the [Reebok Defendants] exercised control is sufficient." (Pl. Opp. Br. at 6). Sands contends that, at this stage, she "does not need to lay out all the facts that show how the [Reebok Defendants] exercised control over the event" and that she is entitled to discovery "to ascertain the extent of that control and authority." (Id.).
Neither Sands nor the Reebok Defendants dispute that New Jersey law applies. In fact, both parties cite a New Jersey case, Bango v. Carteret Lions Club, to advance their arguments. (See Defs. Mov. Br. at 4; Pl. Opp. Br. at 6).
"A person who induces others to come upon his premises is under a duty to exercise reasonable care for their protection." Bango v. Carteret Lions Club, 79 A.2d 57, 58 (N.J. Super. Ct. App. Div. 1951). "But in order that the defendants be held liable, it must be shown that they had such degree of control that they could have averted the danger, or such superior knowledge that they should have foreseen and given warning of a danger not apparent to the plaintiff." Id.; see also Byrd v. Salem Cmty. Coll., No. A-0759-08T10759-08T1, 2009 WL 2015128, at *6 (N.J. Super. Ct. App. Div. July 14, 2009) (citing Bango, 79 A.2d at 58). So, no liability exists where defendants "did no more than sponsor and advertise" an event—but have not "exercised any authority or control over the conduct" of the event. See O'Connell v. N.J. Sports & Exposition Auth., 766 A.2d 786, 791 (N.J. Super. Ct. App. Div. 2001) (citing Bango, 79 A.2d at 58).
Here, Sands alleges that all the defendants in this action—including the Reebok Defendants—"organized, supervised, maintained, controlled, cared for, possessed and managed the dinner party including the area of the premises where Plaintiff fell." (Compl. ¶ 10). Sands does not dispute the Reebok Defendants' contention that this is the only allegation on the subject of their control over the premises. (See Defs. Br. at 5; Pl. Opp. Br. at 6 ()).
The Court finds that this allegation, by itself, is insufficient to support a premises-liability claim against the Reebok Defendants because—at best—it amounts to a formulaic recitation that the Reebok Defendants had such degree of control that they could have averted the alleged danger. See Twombly, 550 U.S. at 555 . Accordingly, this cause of action will be dismissed without prejudice. See Phillips v. Cnty. of Allegheny, 515 F.3d 224, 245 (3d Cir. 2008) ().3
The Reebok Defendants argue that, at most under New Jersey law, "travel agents and vacation tour planners have a limited duty of care to their traveler-clients, which arises from the pecuniary benefit bestowed on defendant by plaintiff." (Defs. Mov. Br. at 5). They argue that "[n]owhere does [P]laintiff contend that she paid to or conferred any benefit upon the Reebok Defendants." (Id. at 6). So, the Reebok Defendants assert "there is no basis for finding that the Reebok Defendants owed [P]laintiff a duty of care akin to a travel agent's limited duty owed to client travelers who pay the agent." (Id.). Moreover, they argue that "[t]ravel agents and tour operators have no duty to warn" unless "they have specific, actual knowledge of previous incidents" and, further, there is "no duty to make specific inquiries into guest safety or security." (Id. at 5-6). Finally, even assuming there exists a factual basis for a duty of care relating to a negligent-selection claim, the Reebok Defendants argue that Sands "avers no facts demonstrating that the Reebok Defendants breached any duty." (Id. at 6). In opposition, Sands argues that she need not "provide factual details about pecuniary benefit and the [Reebok Defendants'] prior knowledge of the [P]laintiff's claim at this early juncture." (Pl. Opp. Br. at 7). She notes that the Reebok Defendants cite cases "decided by summary judgment after discovery had been concluded." (Id.).
To be sure, the only case law Sands cites concerns the duty imposed on travel agents. (See id.). "New Jersey courts have imposed a limited duty of care on travel agents to warn of known dangers and dangers of which it should be aware." Miloseska v. Liberty Travel, Inc., No. 12-6108, 2013 WL 178065, at *4 (D.N.J. Jan. 16, 2013) (citing Rodriguez v. Cardona Travel Bureau, 523 A.2d 281 (N.J. Super. Ct. Law Div. 1986); Josephs v. Fuller, 451 A.2d 203 (N.J. Super. Ct. Law Div. 1982)). As the Josephs case that Sands herself cites, (Pl. Opp. Br. at 7), sets forth: "[a] travel agent holds himself out as having some expertise, and a traveler should be able to rely on that expertise"—and "[i]t would seem that a travel agent who makes arrangements for a vacation not knowing anything about the accommodations, has acted negligently." 451 A.2d at 205.
At least two problems infect Sands's position regarding the alleged duty owed by the Reebok Defendants.
First, Sands argues that she may allege that the Reebok Defendants "had a duty to be familiar with the premises recommended and selected by them and inspect the premises for hazardous conditions"—but then she cites New Jersey case law...
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