Twyman v. Carnival Corp.

• Decision Date: 16 October 2019
• Docket Number: CASE NO. 19-21896-CIV-ALTONAGA/Goodman
• Citation: 410 F.Supp.3d 1311
• Parties: Gyjuanna TWYMAN and Michael Twyman, Plaintiffs, v. CARNIVAL CORPORATION and Carnival PLC, Defendants.
• Court: U.S. District Court — Southern District of Florida

410 F.Supp.3d 1311

Gyjuanna TWYMAN and Michael Twyman, Plaintiffs,

v.CARNIVAL CORPORATION and Carnival PLC, Defendants.

CASE NO. 19-21896-CIV-ALTONAGA/Goodman

United States District Court, S.D. Florida.

October 16, 2019

Jacqueline Garcell, Luis Alexander Perez, Jason Robert Margulies, Lipcon, Margulies, Alsina, Winkleman, P.A., Miami, FL, for Plaintiffs.

Jeffrey Eric Foreman, Noah Daniel Silverman, Foreman Friedman, PA, Miami, FL, for Defendants.

ORDER

CECILIA M. ALTONAGA, UNITED STATES DISTRICT JUDGE

THIS CAUSE is before the Court on Defendants, Carnival Corporation and Carnival PLC's (collectively "Carnival['s]" or "Defendants['s]") Motion to Dismiss Second Amended Complaint [ECF No. 37]. Plaintiffs filed a Response to the Motion [ECF No. 47]; to which Defendants filed a Reply [ECF No. 50]. The Court has carefully considered the Second Amended Complaint ("SAC") [ECF No. 31], the parties' written submissions, the record, and applicable law.

I. BACKGROUND

This case arises out of the death of cruise ship passenger, Nicholas Twyman ("Decedent"). (See generally SAC). Plaintiffs, Gyjuanna Twyman and Michael Twyman are Decedent's parents, and Gyjuanna Twyman is the personal representative of Decedent's estate. (See id. ¶¶ 1–2). Plaintiffs reside in Indiana (see id. ¶ 1), and Carnival is a foreign corporation with its base of operations in Miami, Florida (see id. ¶¶ 3–4).

On May 13, 2018, Plaintiffs were passengers aboard Defendants' vessel, the Carnival Sunshine. (See id. ¶ 13). The cruise included a stop at the Grand Turk Cruise Center (the "Cruise Center"), which opened in 2006 and was designed exclusively for ships owned and operated by Carnival. (See id. ¶¶ 10–13). Carnival owned, operated, managed, maintained, and/or controlled the Cruise Center. (See id. ¶ 11).

On May 15, 2018, prior to arriving at the Cruise Center, Decedent approached the vessel's shore excursion desk and inquired whether there was an available jet ski excursion in Grand Turk. (See id. ¶ 14). A Carnival crewmember informed Decedent that Carnival operated the Cruise Center and "[t]here was not a formal shore excursion in Grand Turk involving jet skis, but that jet skis would be available for rent by the hour ...." (Id. (alterations added)). Shortly thereafter, Plaintiffs approached the shore excursion desk with the same inquiry and received the same response from the same crewmember. (See id. ¶ 15). Plaintiffs understood from the crewmember's representations that the jet ski vendors operating from the Cruise Center had authority to act for and on behalf of Carnival. (See id. ¶ 16).

On May 16, 2018, the Carnival Sunshine arrived at Grand Turk and Plaintiffs joined other passengers at the Cruise Center's private beach. (See id. ¶¶ 17–18). Decedent located a jet ski rental facility, operated by a local company, Wet Money Enterprise¹ (see id. ¶ 19), and rented three jet skis (see id. ¶ 21). When Decedent, his father, and a fellow passenger rented the jet skis, they were not given any instructions by Wet Money Enterprise "other than being told where the ‘kill switch’ was on the jet skis and to not ride ‘too close’ to the cruise ship which was docked nearby[.]" (Id. ¶ 21 (alteration added)). Decedent — a first-time jet ski operator — was not warned or instructed as to the maneuverability of the jet ski, nor was he aware of the need to throttle while turning. (See id. ¶¶ 21–22).

While operating the jet ski, Decedent collided into his fellow passenger's jet ski and was thrown into the water. (See id. ¶¶ 24–25). Representatives from either the Cruise Center or Wet Money Enterprise arrived at the scene but did not attempt to rescue Decedent. (See id. ¶ 26). As Decedent remained non-responsive in the water, his father jumped off his own jet ski into the water, lifted Decedent onto the jet ski, and raced to the Cruise Center's beach. (See id. ¶ 27). There were no first responders or lifeguards present on the beach to aid Decedent, and his mother — a registered nurse who witnessed the accident from the beach — rushed to the scene and performed CPR on Decedent. (See id. ¶¶ 29–30).

Approximately fifteen minutes later, paramedics arrived with an Automated External Defibrillator (AED). (See id. ¶¶ 31, 33). The paramedics were unaware of how to use the AED, requiring Decedent's mother to lead the medical response. (See id. ¶ 33). Despite these efforts, Decedent remained unresponsive and later died. (See id. ¶ 35). An autopsy revealed Decedent's cause of death to be multiple blunt force injuries and drowning. (See id. ¶¶ 35–36).

On May 10, 2019, Plaintiffs filed this action against Carnival. (See Compl. [ECF No. 1] ). On August 5, 2019, Plaintiffs filed the operative Second Amended Complaint. (See generally SAC).

Counts I to IV of the Second Amended Complaint are all brought under the Death on the High Seas Act, 46 U.S.C. section 30302. Count I alleges negligent operation of the Cruise Center by Defendants. Count II alleges the negligence of Carnival Corporation based on a failure-to-warn theory. Count III alleges the negligence of Carnival Corporation in directing Plaintiffs to the jet ski rental operation at the Cruise Center. Count IV alleges negligence against Defendants under an apparent agency or agency by estoppel theory.

Count V is a claim by Michael Twyman against Defendants for negligent infliction of emotional distress. And finally, Count VI is a claim by Gyjuanna Twyman against Defendants for negligent infliction of emotional distress. (See generally SAC). Carnival moves to dismiss all counts for failure to state claims for relief. (See generally Mot.).

II. LEGAL STANDARD

"To survive a motion to dismiss [under Rule 12(b)(6) ], 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) (alteration added; 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) (citation omitted), abrogated on other grounds by Mohamad v. Palestinian Auth. , 566 U.S. 449, 132 S.Ct. 1702, 182 L.Ed.2d 720 (2012).

When reviewing a motion to dismiss, a court must construe the complaint in the light most favorable to the plaintiff and take the factual allegations therein as true. See Brooks v. Blue Cross & Blue Shield of Fla., Inc. , 116 F.3d 1364, 1369 (11th Cir. 1997) (citing SEC v. ESM Grp., Inc. , 835 F.2d 270, 272 (11th Cir. 1988) ).

III. DISCUSSION

Carnival argues Plaintiffs: (1) improperly assert, for the first time in the Second Amended Complaint, time-barred claims on behalf of Michael and Gyjuanna Twyman; (2) fail to state negligence claims because they inadequately allege Carnival was on notice of a dangerous condition, and the dangers associated with riding jet skis are open and obvious; (3) fail to state a negligence claim under a theory of apparent agency or agency by estoppel because they inadequately allege the existence of an apparent agency relationship between Carnival and Wet Money Enterprise; and (4) fail to state claims of negligent infliction of emotional distress because they inadequately allege sufficient facts to establish that either Michael or Gyjuanna Twyman was in the zone of danger. (See generally Mot.; Reply). The Court addresses each argument in turn.

A. Limitations Period

Carnival contends Plaintiffs' newly asserted claims in Counts I to IV are barred by a one-year contractual limitations period provided in their cruise ticket contracts. (See Mot. 6–9). Specifically, Carnival asserts its ticket contract contains a one-year limitations clause for personal injury claims, and the newly asserted claims in the Second Amended Complaint, filed more than one year after Plaintiffs' injuries, should be dismissed as time-barred. (See id. ).

Plaintiffs offer no rebuttal to Carnival's contention the ticket contract terms are valid and apply to their claims. (See Resp. 4–5). Instead, Plaintiffs argue the newly asserted claims relate back to the timely filed initial Complaint. (See id. ). According to Plaintiffs, the Complaint provided Carnival with "ample and sufficient notice" of the additional, individual claims now asserted. (Id. 5). To this, Carnival briefly addresses the relation-back doctrine, insisting nothing prevented Plaintiffs from filing Counts I to IV in their initial Complaint or their Amended Complaint [ECF No. 17], and consequently, Plaintiffs fail to meet the prerequisite notice requirement. (See Reply 2–3 (alteration added)). The Court agrees with Plaintiffs.

" Federal Rule of Civil Procedure 15(c) governs relation back of amendments to pleadings in federal court, and provides several ways in which an amended pleading can relate back to an original pleading." Saxton v. ACF Indus., Inc. , 254 F.3d 959, 962 (11th Cir. 2001). Otherwise time-barred claims relate back to the filing date of...