Witover v. Celebrity Cruises, Inc.

• Decision Date: 04 February 2016
• Docket Number: CASE NO. 15–21661–CIV–LENARD/GOODMAN
• Parties: Joyce Witover, Plaintiff, v. Celebrity Cruises, Inc., Defendant.
• Court: U.S. District Court — Southern District of Florida

161 F.Supp.3d 1139

Joyce Witover, Plaintiff,

v.Celebrity Cruises, Inc., Defendant.

CASE NO. 15–21661–CIV–LENARD/GOODMAN

United States District Court, S.D. Florida.

Signed February 4, 2016

Philip Dixon Parrish, Philip D. Parrish PA, Miami, FL, Mark Richard Hanson, Tomberg, Hanson & Halper, LLC, Boynton Beach, FL, for Plaintiff.

Darren Wayne Friedman, Jeffrey Eric Foreman, Jenna Francine Gushue, Foreman

Friedman, PA, Miami, FL, for Defendant.

ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT'S MOTION TO DISMISS (D.E. 10) AND DISMISSING COUNT 4 WITH PREJUDICE

JOAN A. LENARD

, UNITED STATES DISTRICT JUDGE

THIS CAUSE is before the Court on Defendant Celebrity Cruises, Inc.'s (“Celebrity”) Motion to Dismiss Plaintiff's Complaint (D.E. 10), filed June 16, 2015. Plaintiff filed her Response in Opposition on July 16, 2015, (D.E. 20), to which Celebrity replied on July 27, 2015, (D.E. 22). Plaintiff also filed a Notice of Supplemental Authority (D.E. 32) on December 15, 2015. Upon review of the Motion, the Response, the Reply, the Notice of Supplemental Authority and the record, the Court finds as follows:

I. BACKGROUND

On April 24, 2014, Plaintiff Joyce Witover boarded the Celebrity Constellation for a transatlantic cruise departing from Fort Lauderdale, Florida and arriving in Amsterdam, Netherlands. (D.E. 1 at ¶ 7.) Plaintiff requires the assistance of a scooter to ambulate and informed Celebrity of her special needs before and after boarding the ship. (Id. at ¶ 11.) As part of her cruise, Plaintiff discussed with Celebrity's representatives the possibility of booking shore excursions that accommodated her special needs. Celebrity allegedly advertised certain excursions which were “completely wheel-chair accessible,” including an accessible excursion in Lisbon, Portugal. (Id. at ¶ 12 and 15.) Based on Celebrity's purported representation that “their excursion would satisfy Plaintiff's special needs,” Plaintiff purchased and participated in the accessible or “easy” excursion to Lisbon.¹ (Id . at ¶ 16.) (Emphasis added.) On or about May 3, 2014, the Plaintiff travelled with her husband in a transport bus to Lisbon. While the Plaintiff was disembarking using the bus's ramp, the tour operator “turned the handle bar of Plaintiff's scooter causing [her] to fall to the ground and the scooter to fall on top of [her], causing great bodily harm.” (Id. at ¶ 18.)

Following her accident in Lisbon, Plaintiff filed the instant suit. (Id. ) Plaintiff's Complaint raises five potential claims against Celebrity: (1) breach of a non-delegable duty; (2) negligence; (3) negligent selection of a tour operator; (4) directly liability for negligence of the tour guide; (5) vicarious liability for negligence of tour guide (i.E. actual or apparent agency). (Id. ) On June 16, 2015, Celebrity filed its Motion to Dismiss Plaintiff's Complaint in its entirety, arguing that: (1) Count 1 fails to state a claim because a cruise ship passenger “may not bring a breach of contract claim against a cruise line ‘unless there is an express provision in the contract of carriage guaranteeing safe passage,’ ” (D.E. 10 at 3) (citing Doonan v. Carnival Corp., 404 F.Supp.2d 1367, 1372–73 (S.D.Fla.2005)

; (2) Count 2 fails to state a claim because Celebrity is not required to “ensure the safety of its passengers on a shore excursion ... [or] supervise or monitor shore excursion or maintain them in a reasonably safe condition free of dangers and hazards.” (Id. at 6.) Rather, Celebrity was only required to warn Plaintiff of dangers which it knew or reasonably should have known about—and Plaintiff has failed to raise any factual allegations that Celebrity was aware or should have been aware of the danger which caused her injuries. (Id. ); (3) Count 3 fails to state a claim because Plaintiff failed to raise factual allegations supporting a claim that the tour operator was incompetent or unfit and that Celebrity knew or should have known of its unfitness; (4) Count 4 fails to state a claim because Celebrity may not be held directly liable for the acts of a third-party; and (5) Count 5 fails because there can be no actual or apparent agency when the shore excursion ticket clearly states that: (a) the tour operator is a third-party contractor, (b) Celebrity does not operate or control shore excursions and (c) Celebrity will not be liable for any injuries sustained during a shore excursion. (Id. at 11.)

Plaintiff responded to Celebrity's Motion to Dismiss, arguing that: (1) she sufficiently states a claim for breach of the shore excursion contract (which was non-delegable) because her claim is separate and distinct from the contract for carriage. Alternatively, she states a claim for breach of a non-delegable tort duty (D.E. 20 at 7–12); (2) her claim for negligence survives because: (a) whether Celebrity knew or should have known of the dangerous conditions presented by the tour provider is a question of fact to be resolved after discovery, and (b) where a cruise line promotes, sell and profits from a shore excursion that was advertised as handicapped accessible, it has a duty to provide an accessible tour (id. at 12–15); and (3) her claim for actual or apparent agency survives Celebrity's Motion to Dismiss because: (a) questions of agency are intensely factual and require discovery, and (b) the disclaimer in the shore excursion ticket represents Celebrity's own definition of its relationship with its shore excursion providers (i.E. independent contractors) and this self-imposed definition cannot be dispositive of the question of agency (id. at 16–19).² Plaintiff acknowledges that certain disclaimers were contained in her shore excursion ticket, but claims that “at no time did the Guest Services representative for the Defendant inform the Plaintiff that the excursion was anything other than a produce of the Defendant. There were no disclaimers made by the representative that the excursion was owned and operated by a third party vender.” (D.E. 1 at ¶ 14.)

II. LEGAL STANDARDS

A. Rule 12(b)(6)

Under Federal Rule of Civil Procedure 12(b)(6)

, a court may dismiss an action for “failure to state a claim upon which relief can be granted.” To survive a motion to dismiss, the 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 Atlantic Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (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.” Id. “A formulaic recitation of the elements of the cause of action will not do,” id. at 1949 (quoting Twombly, 550 U.S. at 555, 127 S.Ct. 1955 ), and the allegations must include “more than an unadorned, the-defendant-unlawfully-harmed-me-accusation.” Iqbal 556 U.S. at 678, 129 S.Ct. 1937

. When considering whether a complaint should be dismissed, the Court accepts the facts alleged in the Complaint as true, and construes all reasonable inferences in the light most favorable to plaintiffs. See

Bank v. Pitt, 928 F.2d 1108, 1109 (11th Cir.1991).

III. DISCUSSION

Both Parties agree that general maritime law governs Plaintiff's claims which arise from an injury that occurred on a shore excursion. See Hoard v. Carnival Corp., 2015 WL 1954055 at *1–2, 2015 U.S. Dist. LEXIS 57538 at *4–5 (S.D.Fla. Apr. 17, 2015)

(citing Doe v. Celebrity Cruises, Inc., 394 F.3d 891, 901 (11th Cir.2004) ) (“Claims based on injuries that occur while on shore excursions during the course of a cruise are governed by federal maritime law.”).

a. Breach of Non–Delegable Contractual Duty

Celebrity correctly notes that under maritime law, a cruise ship passenger may not hold the cruise line responsible for breaching a contract of carriage unless “there is an express provision ... guaranteeing safe passage.” Doonan v. Carnival Corp., 404 F.Supp.2d 1367, 1372–73 (S.D.Fla.2005)

. The law developed in this way to ensure that passengers aboard vessels could not sidestep the warranty of seaworthiness by asserting breaches of various implied contractual duties. Cf.

Hass v. Carnival Cruise Lines, Inc., 1986 WL 10154 (S.D.Fla.1986). In its Motion to Dismiss and Reply to Plaintiff's Opposition, Celebrity implies that the undersigned previously extended the legal principles governing contracts of carriage to shore excursion contracts. (D.E. 10 at 4; D.E. 22 at 2) (noting that Plaintiff attempts to distinguish between a contract for carriage and a shore excursion contract, but arguing that “this distinction [ ] is extraneous and Plaintiff's argument is contrary to the holding of [the undersigned] in Isberner v. Celebrity Cruises, Inc. ”). In Isberner, the undersigned recognized the potential distinction between contracts for carriage and shore excursion contracts, but dismissed the plaintiff's complaint because he failed to raise any factual allegations that the cruise line breached any provision of the shore excursion contract. 2006 WL 4005569 at *3 (S.D.Fla. December 21, 2006). Therefore, the decision in Isberner was based on plaintiff's failure to plead sufficient facts—not on a legal holding extending the principle developed by Judge King in Hass to shore excursion contracts.³ In fact, the Court holds today that while concerns related to the doctrine of seaworthiness may limit causes of action for breach of a contract for carriage, such a limitation does not apply to a claim for breach of a shore excursion contract. Cf.

Martinez v. Dixie Carriers, Inc., 529 F.2d 457, 470 n. 8 (5th Cir.1976) (“[T]he unseaworthiness remedy is not available for injuries which occur on shore during the loading or unloading process and which are not caused by a vessel on navigable water.”); Harling v. United States, 416 F.2d 405, 406 (9th Cir.1969) (“The doctrine of unseaworthiness does not...