Vollmar v. O.C. Seacrets, Inc.

• Decision Date: 20 December 2011
• Docket Number: Civil Action No. MJG–11–772.
• Citation: 831 F.Supp.2d 862
• Parties: Danielle VOLLMAR, Plaintiff v. O.C. SEACRETS, INC., et al., Defendants.
• Court: U.S. District Court — District of Maryland

831 F.Supp.2d 862

Danielle VOLLMAR, Plaintiff

v.O.C. SEACRETS, INC., et al., Defendants.

Civil Action No. MJG–11–772.

United States District Court,

D. Maryland.

Dec. 20, 2011.

James L. Otway, Luke A. Rommel, Otway Russo LLP, Salisbury, MD, Otway Russo LLP, for Plaintiff.

Armand J. Della Porta, Jr., Marshall Dennehey Warner Coleman and Goggin, Wilmington, DE, Christopher A. Abel, Troutman Sanders LLP, Norfolk, VA, Tameka M. Collier, Troutman Sanders LLP, Washington, DC, Christopher D. Wolf, Niles Barton and Wilmer LLP, Baltimore, MD, for Defendant.

DECISION

MARVIN J. GARBIS, District Judge.

The Court has before it Defendants O.C. Seacrets, Inc.'s and O.C. Seacrets, LLC's Motion to Dismiss and the materials submitted relating thereto. The Court has held a hearing and had the benefit of the arguments of counsel.

I. BACKGROUND¹

At all times relevant hereto, Defendants O.C. Seacrets, Inc. and O.C. Seacrets, LLC (collectively, “Seacrets Defendants”), Maryland entities, have owned and operated Seacrets Resort, a vacation-entertainment complex on the bay in Ocean City, Maryland. The Seacrets Resort provides a water taxi service between the resort bar and boats that are moored in the bay at Seacrets Resort mooring buoys.

On July 5, 2008, Defendant Scott Shepard (“Shepard”) moored his boat at a mooring buoy in Assawoman Bay near the Seacrets facility. A Seacrets water taxi ² took Shepard from his boat to the facility. Shepard, while at the facility, excessively consumed alcohol and became visibly intoxicated. Shepard, together with nine or ten others, boarded the TIPSY III,³ a Seacrets water taxi. The group was delivered to Shepard's boat. Sometime after Shepard and the group were taken to Shepard's boat, Plaintiff Danielle Vollmar (“Vollmar”) boarded a Seacrets water taxi, assumed by the Court to be the TIPSY III, and was taken from the facility to Shepard's boat.⁴

Shepard, sometime after Vollmar arrived, operated the boat while in a state of intoxication. Shepard's boat left the mooring buoy at about 1:00 a.m. and sometime before 1:58 a.m.⁵ allided ⁶ with the cement pilings of a bridge on the Isle of Wight Bay, a Maryland coastal bay within the navigable waters of the United States, approximately a mile from the Seacrets Resort. Shepard's negligence caused the allision in which Vollmar was seriously injured.

Vollmar filed the instant lawsuit against the Seacrets Defendants and Shepard, presenting claims under Admiralty and Maritime Jurisdiction (Fed.R.Civ.P. 9(h)) and based on common law negligence. The claims are:

• Admiralty and Maritime Jurisdiction

• Count I (Seacrets Defendants)—Negligence

• Count II (Shepard)—Negligence

• Count III (All Defendants)—Civil Conspiracy

• Count IV (Seacrets Defendants)—Maritime Dram Shop Liability

• Maryland Common Law

• Count V (Seacrets Defendants)—Negligence

• Count VI (Shepard)—Negligence

By the instant motions, the Seacrets Defendants seek dismissal of all claims against them.

II. DISMISSAL STANDARD

A motion to dismiss filed under Federal Rule of Civil Procedure 12(b)(6)⁷ tests the legal sufficiency of a complaint. A complaint need only contain “a short and plain statement of the claim showing that the pleader is entitled to relief, in order to give the defendant fair notice of what the ... claim is and the grounds upon which it rests.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) (citations omitted). When evaluating a 12(b)(6) motion to dismiss, a plaintiff's well-pleaded allegations are accepted as true and the complaint is viewed in the light most favorable to the plaintiff. However, conclusory statements, or a “formulaic recitation of the elements of a cause of action,” will not suffice. Id. A complaint must allege sufficient facts to “cross the line between possibility and plausibility of entitlement to relief.' ” Francis v. Giacomelli, 588 F.3d 186, 193 (4th Cir.2009) (quoting Twombly, 550 U.S. at 557, 127 S.Ct. 1955).

Inquiry into whether a complaint states a plausible claim is “a context-specific task that requires the reviewing court to draw on its judicial experience and common sense.” Id. Thus, if the well-pleaded facts contained within a complaint “do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged—but it has not shown—that the pleader is entitled to relief.” Id. (quoting Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 1950, 173 L.Ed.2d 868 (2009))(internal quotation marks omitted).

III. DISCUSSIONA. ADMIRALTY CLAIMS

1. Negligence (Count I)

Maritime tort law embodies the general principles of common law negligence adjusted for the maritime context.⁸Regan v. Starcraft Marine LLC, 719 F.Supp.2d 690, 695 (W.D.La.2010); see also Evergreen Intern., S.A. v. Norfolk Dredging Co., 531 F.3d 302, 308 (4th Cir.2008)(“The elements of a maritime negligence cause of action are essentially the same as land-based negligence under the common law, free of inappropriate common law concepts.”). To plead adequately a cause of action for negligence under general maritime law, Vollmar must allege facts sufficient to support plausible claims that: (1) there was a duty owed by the defendant to the plaintiff; (2) the duty was breached; (3) the plaintiff sustained injury; and (4) there is a causal connection between the defendant's conduct and the plaintiff's injury. Id.

These elements are addressed in turn.

a. Duty to Plaintiff

i. Dram Shop Liability

Vollmar attempts to establish that a duty was owed to her based on a dram shop liability theory under general maritime law and, alternatively, under Maryland law. If Maryland law recognized dram shop liability, Vollmar could argue that the Seacrets Defendants, having caused Shepard's intoxication, had a duty that extended to all injured by virtue of his intoxication. Vollmar, in effect, makes this argument in connection with her admiralty dram shop liability claim, discussed below. However, Maryland law does not recognize dram shop liability.⁹ Therefore, there was no duty owed Vollmar under state common law by virtue of the fact that Shepard became intoxicated at the Seacrets facility.

ii. Delivery of Shepard to the Boat

Vollmar contends that the Seacrets Defendants owed a duty to her because they delivered an intoxicated Shepard to his boat and, therefore, created a dangerous condition because it was foreseeable that he would operate the boat negligently. Therefore, it was foreseeable that he would negligently cause damage to others who might later board the boat or be injured in an accident. This theory is analogous to, and perhaps identical with, a dram shop liability theory.

To support this contention, Vollmar seeks to rely upon the rationale of Commerce Ins. Co. v. Ultimate Livery Service, Inc., 452 Mass. 639, 897 N.E.2d 50 (2008). In Commerce Ins., a private transportation service company transported an intoxicated person to his car, the person proceeded to drive the car while intoxicated and, thereafter, caused a collision in which an individual was killed. The majority in the Massachusetts court concluded that the “defendants owed a duty of reasonable care to avoid discharging a passenger, who they knew, or should have known, was intoxicated and likely to drive an automobile [and injure others thereafter].” Id. at 57. The Commerce Ins. court noted that other states' courts have decided to the contrary, and that many courts (including Maryland) have not yet addressed the issue. Id. at 57 n. 10.

Vollmar cites no Maryland authority that provides any indication that the Maryland courts would rule as did Massachusetts. Indeed, the absence of dram shop liability in Maryland law indicates that the Maryland Court of Appeals would not.

The Court also notes that in Commerce Ins., the driver allowed alcoholic drinks to be consumed within the van, transported the passengers between bars, observed the passengers drinking, and took the passengers to a liquor store to buy alcohol, prior to leaving the passenger at his car. These facts make it much more likely that the driver should have known the foreseeable risk in leaving the passenger to drive his own vehicle and might justify the expansion of the persons to whom a duty was owed. Indeed, the Commerce Ins. concurring opinion limited the decision to its facts and put weight on the proposition that the carrier knew the passengers were drinking and may have participated in getting them alcohol. Id. at 64–67. Hence, one could view the decision in Commerce Ins. as, in effect, adopting dram shop liability for a passenger transporter that provides (or actively facilitates) an inebriated passenger's consuming alcohol while being transported to his car.

Vollmar does not allege that Shepard obtained or consumed alcohol while aboard the TIPSY III. Even if there had been such an allegation, the Court would still conclude that the Seacrets Defendants, by delivering Shepard to his boat, had no duty to persons (including Vollmar) who might be injured by Shepard's operation of his boat thereafter.

iii. Delivery of Vollmar to the Boat

Vollmar contends that the Seacrets Defendants owed a duty to her, as a passenger on the TIPSY III, to deliver her safely to her destination and not put her in danger.

Vollmar's position—as an abstract statement of law—is correct. Certainly, the operator of a water taxi must provide for the safety of its passengers while boarding, traveling, and disembarking. Moreover, one can present hypothetical situations in which a water taxi operator could be viewed as putting a passenger in a dangerous situation. For example, disembarking her on a burning pier, a sinking boat, etc.

Therefore, the Court finds that the Seacrets Defendants had a duty to exercise ordinary care to avoid putting a TIPSY III passenger, such as Vollmar, in a dangerous situation. However, as discussedbelow, Vollmar has not adequately presented a plausible claim that the Seacrets Defendants violated that duty.

b. ...