Stires v. Carnival Corp.

• Decision Date: 07 November 2002
• Docket Number: No. 6:02-cv-542-Orl-31JGG.,6:02-cv-542-Orl-31JGG.
• Citation: 243 F.Supp.2d 1313
• Parties: Maranda STIRES, Plaintiff, v. CARNIVAL CORPORATION d/b/a Carnival Cruise Lines, Defendant.
• Court: U.S. District Court — Middle District of Florida

243 F.Supp.2d 1313

Maranda STIRES, Plaintiff, v. CARNIVAL CORPORATION d/b/a Carnival Cruise Lines, Defendant.

No. 6:02-cv-542-Orl-31JGG.

United States District Court, M.D. Florida, Orlando Division.

November 7, 2002.

Order Denying Motion to Amend Nov. 21, 2002.

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Jackson O. Brownlee, Beusse, Brownlee, Bowdoin & Wolter, P.A., Orlando, FL, Richard Robol, Robol Law Office, LPA, Columbus, OH, for Plaintiff.

Timothy William Ross, Jeffrey B. Maltzman, Darren Friedman, Kaye, Rose & Maltzman, LLP, Miami, FL, for Defendant.

ORDER

PRESNELL, District Judge.

This Court has for its consideration Defendant's Motion to Dismiss Plaintiffs' Amended Complaint and incorporated memorandum of law (Doc. 29) and Plaintiffs Response thereto (Doc. 37). The Court has carefully considered the Plaintiffs Amended Complaint, the Defendant's Motion and accompanying memorandum, Plaintiffs Response and accompanying memorandum, and is otherwise fully advised in the premises.

I. BACKGROUND FACTS¹

In response to an advertisement in her home state of Ohio, Plaintiff, Maranda Stires, along with her grandmother, mother, and cousin, planned a cruise with D fendant Carnival Corporation d/b/a Carnival Cruise Lines ("Carnival") on the M/S Tropicale. Stires and her family boarded the Tropicale on September 23, 2000 in Florida.

Soon after boarding the ship, one of the ship's head-waiters, Ruben Sanchez, began making sexual overtures towards Stires. On September 28, 2000, at approximately 12:20 a.m., Stires left the casino on the eighth floor of the Tropicale to search for her cousin in the dining room. Sanchez, while allegedly acting in concert with other employees, took Stires to the floor on which the crew's quarters were located and proceeded to sexually assault her. Later that same night, Sanchez recommenced the sexual assault. However, this time, Sanchez did not stop at assaulting Stires, but proceeded to commit sexual battery on Stires. During the course of the sexual assault and battery, Sanchez repeatedly referred to Stires as a "puta," the Spanish word for whore. After the sexual battery, Stires returned to her cabin where she collapsed.

After washing her face and hands, Stires located her mother and told her of the battery. Stires and her mother asked Carnival's employees if Stires could make a report to the captain of the Tropicale. The employees declined the request. Instead, the employees directed Stires to the ship's nurse and doctor who performed a physical examination on Stires. The examination revealed signs of the sexual battery. During the course of the examination, the doctor remarked "Ruben and the other waiters, oh yes, we on the ship know all about them." Stires inquired if that meant that Carnival knew of Sanchez' sexual propensity. The doctor replied, "You have to understand that I'm paid by Carnival."

Following the examination, Stires asked if she could shower. She was not permitted to do so. As a result, Stires was forced to remain in the soiled condition for 48 hours after the battery. The staff did, however, promise that upon docking, they would ensure that Stires would be taken to a local hospital. Carnival did not keep this promise.

Subsequently, Stires requested all documents and information in Carnival's possession concerning the sexual battery. Carnival produced no documents and told Stires that Sanchez was a Colombian national with no ties to the United States. Carnival further stated that there had been no previous problems and that Carnival would ensure that Sanchez was deported from the United States. Purportedly, Carnival made these false representations in order to induce Stires' reliance thereon.

On May 7, 2002, Stires filed a multicount complaint against Carnival asserting jurisdiction based upon both admiralty and diversity jurisdiction. The complaint was later dismissed (See Order, Doc. 23) for Stires' failure to respond to Carnival's motion to dismiss (Doc. 17). Stires filed an Amended Complaint asserting the following claims: (1) negligence; (2) negligent investigation, hiring, retention, supervision, and management; (3) assault, battery, and rape under the theory of respondeat superior; (4) intentional infliction of emotional distress under the theory of respondeat superior; (5) fraud and misrepresentation; (6) breach of duties as a common carrier; (7) liability under Doe v. Celebrity Cruises, 145 F.Supp.2d 1337 (S.D.Fla.2001); (8) violation of Florida's Deceptive and Unfair Trade Practices Act, section 501.101 et seq., Florida Statutes; (9) punitive damages in the amount of $37,500,000.

II. STANDARD OF REVIEW

A court should not dismiss a complaint for failure to state a claim unless it appears beyond a doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief. Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957); Hishon v. King & Spalding, 467 U.S. 69, 73, 104 S.Ct. 2229, 81 L.Ed.2d 59 (1984); see also Sea Vessel, Inc. v. Reyes, 23 F.3d 345, 347 (11th Cir. 1994) (citation omitted). In evaluating a motion to dismiss a complaint, the court must accept all the alleged facts as true, and draw all inferences from those facts in the light most favorable to the plaintiff. See, e.g., Cruz v. Beto, 405 U.S. 319, 92 S.Ct. 1079, 31 L.Ed.2d 263 (1972); Runnings v. Texaco, Inc., 29 F.3d 1480, 1483 (11th Cir.1994). The court, however, does not generally accept as true conclusory allegations. South Florida Water Mgmt. Dist, v. Montalvo, 84 F.3d 402, 408 n. 10 (11th Cir.1996) (citing Associated Builders, Inc. v. Alabama Power Co., 505 F.2d 97, 100 (5th Cir.1974)). A motion to dismiss for failure to state a claim merely tests the sufficiency of the complaint; it does not decide the merits of the case. Milburn v. United States, 734 F.2d 762, 765 (11th Cir.1984). Consideration of matters beyond the complaint is improper in the context of a motion to dismiss. Id.

III. ANALYSIS

A. Standard of Care

Carnival asserts that Stires has failed to state a claim because she has alleged an improper standard of care throughout her complaint. In this vein, Carnival argues that the only duty owed to Stires is that of reasonable care under the circumstances citing Kermarec v. Compagnie Generate Transatlantique, 358 U.S. 625, 79 S.Ct. 406, 3 L.Ed.2d 550 (1959). Carnival's argument is only partially correct. As discussed in Doe v. Celebrity Cruises, 145 F.Supp.2d 1337, 1341-45 (S.D.Fla.2001), Kermarec is distinguishable on its facts and absent binding Eleventh Circuit precedent, the majority rule is that a common carrier, such as a cruise line, is vicariously liable for the intentional torts of its employees. See id. and citations discussed therein. However, to state a claim of negligence against a cruise ship owner a plaintiff must allege that the defendant failed to exercise "reasonable care under the circumstances." Doe, 145 F.Supp.2d at 1347. Thus, each type of claim may have a different standard of care and the applicable standard for each count will be addressed as necessary.

B. Negligence (count 1)

Carnival avers that Stires has failed to state a claim for negligence because her claim does not state the proper standard of care. A review of Stires' complaint reveals that she has alleged different standards of care within her negligence count. Stires asserts that Carnival had the duty "to exercise reasonable care ...." (PI. Am. Compl. at ¶ 85). Then, she asserts, "Defendant had a heightened standard of care toward Plaintiff ...." (Id. at ¶ 87). Thus, it appears that Stires is intermingling a different standard of care from her other claims into her negligence claim. Accordingly, Stires' negligence claim is dismissed without prejudice. Should Stires choose to replead her negligence claim, she should allege that Carnival failed to exercise reasonable care under the circumstances and allege facts sufficient to show Carnival's own acts were negligent. Doe, 145 F.Supp.2d at 1347-48.

However, to the extent that Stires is attempting in her negligence claim to hold Carnival liable for the negligent acts of the ship's doctor and nurse, no cause of action exists. "[A] ship owner cannot be responsible for the negligence of its ship doctor." Id. at 1345-46 (citations omitted). Accordingly, any negligence claim by Stires against Carnival for the negligent acts of the M/S Tropicale's doctor or nurse is dismissed with prejudice.

C. Negligent Investigation, Hiring, Retention, Supervision, and Management (count 2)

Carnival asserts that Stires has failed to aver facts sufficient to show a breach of duty to exercise reasonable care in hiring. Carnival's assertion is misplaced. In order to state a cause of action for the tort of negligent hiring or retention recognized in Florida, a plaintiff must allege facts showing that the employer was put on notice of the harmful propensities of the employee. Willis v. Dade County Sch. Bd., 411 So.2d 245, 246 (Fla. 3d DCA 1982). The principal difference between negligent hiring and negligent retention as a basis for employer liability is the time at which the employer is charged with knowledge of the employee's unfitness. Garcia v. Duffy, 492 So.2d 435, 438 (Fla. 2d DCA 1986). Negligent hiring occurs when, prior to the time the employee is actually hired, the employer knew or should have known of the employee's unfitness, and the issue of liability primarily focuses upon the adequacy of the employer's pre-employment investigation into the employee's background. Id. (citing Williams v. Feather Sound, Inc., 386 So.2d 1238 (Fla. 2d DCA 1980)).

In paragraphs 94, 101, and 102, Stires alleges that Carnival was negligent in screening, hiring, investigating, retaining, and supervising Sanchez and its other employees and that such negligence was the proximate cause of her damages. Furthermore, in the factual allegations of her complaint, which are incorporated by reference in count...