Burton v. Carnival Corp.

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TREVON BURTON, as Personal Representative For the Estate of Ronald Fitch, deceased, Plaintiff, v. CARNIVAL CORPORATION, and CRUISE SHIP EXCRUSIONS, INC., and XYZ CORPORATIONS, Defendants.

No. 23-cv-24604-BLOOM/Torres

United States District Court, S.D. Florida

August 15, 2024

OMNIBUS ORDER ON MOTIONS TO DISMISS

BETH BLOOM UNITED STATES DISTRICT JUDGE

THIS CAUSE is before the Court upon Defendant Carnival Corporation's (“Carnival”) Motion to Dismiss Plaintiff's Complaint, ECF No. [21] (“Carnival's Motion”), and Defendant Cruise Ship Excursion, Inc.'s (“CSE”) Motion to Dismiss Plaintiff's Complaint, ECF No. [25] (“CSE's Motion”). Plaintiff Trevon Burton filed a Response in Opposition to Carnival's Motion, ECF No. [27], to which Carnival filed a Reply, ECF No. [33]. Plaintiff also filed a Response in Opposition to CSE's Motion, ECF No. [29], to which CSE filed a Reply, ECF No [34]. The Court has reviewed the Complaint, the Motions, the record in this case, the applicable law, and is otherwise fully advised. The Court also had the benefit of argument by counsel, see ECF No. [38], and thanks each attorney for his time and attention. For the reasons set forth below the Motions are granted in part and denied in part.

I. BACKGROUND

A. Complaint

Plaintiff filed his Complaint on December 6, 2023, alleging twelve claims against Carnival and CSE (collectively “Defendants”) in his capacity as Personal Representative for the Estate of Ronald Fitch (“Decedent”).^[1] See ECF No. [1]. Plaintiff also seeks to recover damages for himself, as the Decedent's grandson; and for and on behalf of the Decedent's beneficiaries, survivors and/or lineal descendants. ¶ 2. Plaintiff alleges Decedent was a fare-paying passenger aboard the Carnival Celebration and died while participating in the “St. John Champagne Catamaran Sailaway” snorkeling excursion (the “Excursion”). See id. ¶¶ 19-21. Decedent's death was caused by dangerous conditions associated with the Excursion, including “i) the strong rip current; ii) insufficient snorkel and/or swim instructions provided by Carnival and/or the Excursion Entities, ...; [and] iii) insufficient swim or snorkel gear ....” Id. ¶ 56. Carnival owns and operates the Carnival Celebration, co-operated the Excursion with CSE, and marketed the Excursion to Plaintiff and Decedent. See id. ¶¶ 18-36. Plaintiff further alleges Carnival and the Excursion Entities are responsible for the marketing materials for the Excursion which Carnival broadcasts and publishes on its website. See id. ¶ 29.

Plaintiff's Complaint asserts 12 Counts: Count I - Misleading Advertising in Violation of Florida Statute § 817.41 (Defendants); Count II - Negligent Misrepresentation (Defendants); Count III - Negligent Selection or Retention (Carnival); Count IV - Negligent Failure to Warn (Carnival); Count V - General Negligence (Carnival); Count VI - General Negligence (Defendants); Count VII - Negligent Failure to Warn (Defendants); Count VIII - Negligence Based on Apparent Agency or Agency by Estoppel (Defendants); Count IX - Negligence Based on Joint Venture (Defendants); Count X - Third-Party Beneficiary (Defendants); Count XI -Wrongful Death Claim Brought Pursuant to Indiana State Law, U.S. Virgin Islands, or Applicable State Law (Defendants); and Count XII - Quasi in Rem “Maritime Rule B” Attachment and Garnishment (CSE).^[2]

B. Motions

In separate Motions, Defendants seek dismissal of Plaintiff's Complaint pursuant to Rule 12(b)(6). Defendants argue Plaintiff's misleading advertising and negligent misrepresentation claims must be dismissed for failing to allege Defendants made any actionable misrepresentations regarding the Excursion. Defendants also argue Plaintiff's negligence claims seek to impose heightened duties and fail to plausibly allege they had notice of any risk-creating condition. Further, Defendants contend Plaintiff's wrongful death claim is conclusory, duplicative, and improperly commingles multiple jurisdictions.^[3]

The Court held a hearing on Defendants' Motions on July 8, 2024. ECF No. [38]. Counts VIII, IX, and X were dismissed for the reasons stated on the record. Id.; see ECF No. [35]. The Court also heard argument on Plaintiff's remaining claims. See ECF No. [38].

II. LEGAL STANDARD

A. Failure to State a Claim for Relief

A pleading in a civil action must contain “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(2). Although a complaint “does not need detailed factual allegations,” it must provide “more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007); see Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (explaining that Rule 8(a)(2)'s pleading standard “demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation”). Nor can a complaint rest on “‘naked assertion[s]' devoid of ‘further factual enhancement.'” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 557 (alteration in original)). “To survive 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.'” Id. (quoting Twombly, 550 U.S. at 570). When a defendant moves to dismiss for failure to state a claim upon which relief can be granted under Rule 12(b)(6), the court must accept the plaintiff's allegations as true and evaluate all possible inferences derived from those facts in favor of the plaintiff. See Am. Marine Tech, Inc. v. World Grp. Yachting, Inc., 418 F.Supp.3d 1075, 1079 (S.D. Fla. 2019).

B. General Maritime Law

“Maritime law governs actions arising from alleged torts committed aboard a ship sailing in navigable waters.” Guevara v. NCL (Bah.) Ltd., 920 F.3d 710, 720 (citing Keefe v. Bah. Cruise Line, Inc., 867 F.2d 1318, 1320-21 (11th Cir. 1989)). “In analyzing a maritime tort case, [courts] rely on general principles of negligence law.” Chaparro v. Carnival Corp., 693 F.3d 1333, 1336 (11th Cir. 2012) (quoting Daigle v. Point Landing, Inc., 616 F.2d 825, 827 (5th Cir. 1980)). “To prevail on a negligence claim, a plaintiff must show that ‘(1) the defendant had a duty to protect the plaintiff from a particular injury, (2) the defendant breached that duty, (3) the breach actually and proximately caused the plaintiff's injury, and (4) the plaintiff suffered actual harm.'” Guevara, 920 F.3d at 720 (quoting Chaparro, 693 F.3d at 1336).

The duty of reasonable care requires, “as a prerequisite to imposing liability, that the carrier have had actual or constructive notice of the risk-creating condition.” Keefe, 867 F.2d at 1322. “In other words, a cruise ship operator's duty is to shield passengers from known dangers (and from dangers that should be known), whether by eliminating the risk or warning of it.” Tesoriero v. Carnival Corp., 965 F.3d 1170, 1178 (11th Cir. 2020). Thus, a cruise-ship operator's liability often “hinges on whether it knew or should have known about the dangerous condition.” Guevara, 920 F.3d at 720.

III. DISCUSSION

A. Misleading Advertising and Negligent Misrepresentation Claims (Counts I and II)

Defendants argue Plaintiff's misleading advertising and negligent advertising claims must be dismissed because Plaintiff fails to allege Carnival or CSE made an actionable misrepresentation regarding the Excursion. Carnival contends its alleged misrepresentations are either true statements, irrelevant, or both. Plaintiff responds by conceding some of the allegations are not actionable. However, Plaintiff argues Carnival ignores the core misrepresentation in Counts I and II-that the Excursion was “easy” when it was in fact difficult-and thus concedes this is an actionable misrepresentation. Carnival replies that this is an irrelevant, non-actionable misrepresentation, as are the other alleged misrepresentations in Counts I and II. CSE argues Counts I and II should be dismissed for the same reasons and also fail to state a claim against it because, unlike Carnival, it did not publish, promote, or otherwise represent the Excursion's difficultly level to Plaintiff.

The Court is unpersuaded that Counts I and II must be dismissed for failing to allege an actionable misrepresentation. To prevail on his misleading advertising and negligent misrepresentation claims, Plaintiff must sufficiently allege the “(1) misrepresentation of a material fact; (2) that the representor made the misrepresentation without knowledge as to its truth or falsity or under circumstances in which he ought to have known of its falsity; (3) that the representor intended that the misrepresentation induce another to act on it; and (4) that injury resulted to the party acting in justifiable reliance on the misrepresentation.” Blow v. Carnival Corp., 674 F.Supp.3d 1239, 1250 (S.D. Fla. 2023) (citing Zhang v. Royal Caribbean Cruises, Ltd., No. 19-20773-CIV, 2019 WL 8895223, at *5 (S.D. Fla. Nov. 15, 2019)). Furthermore, negligent misrepresentation and misleading advertising claims are “subject to the heightened pleading standard of Rule 9(b), which requires a plaintiff to establish the ‘who, what, when, where, and how' of the fraud” Barham v. Royal Caribbean Cruises Ltd., 556 F.Supp.3d 1318, 1325-26 (S.D. Fla. 2021) (quoting Garfield v. NDCHealth Corp., 466 F.3d 1255, 1262 (11th Cir. 2006)).

Carnival specifically contends its alleged misrepresentations are not actionable. They include (1) four years old was the minimum age to participate in the Excursion; (2) the Excursion was safe and reliable, (3) CSE would be subject to personal jurisdiction in the United States; (4) CSE was insured; and (5) Carnival operated the Excursion. Plaintiff concedes his allegations regarding personal jurisdiction,...