Dudley v. NCL (Bahamas) Ltd.

688 F.Supp.3d 1194

Christopher DUDLEY, Plaintiff, v. NCL (BAHAMAS) LTD., d/b/a NCL Dolphin Encounters, d/b/a Blue Lagoon Island, Defendants.

Case No. 23-cv-21041-BLOOM/Otazo-Reyes

United States District Court, S.D. Florida

Entered August 16, 2023

Signed August 15, 2023

Louis Maxwell Holzberg, Holzberg Legal, Miami, FL, Glenn J. Holzberg, Law Offices of Glenn J. Holzberg, Miami, FL, for Plaintiff.

Stephanie Hurst Wylie, Sioli Alexander Pino, Miami, FL, for Defendants.

ORDER ON MOTION TO DISMISS

BETH BLOOM, UNITED STATES DISTRICT JUDGE

THIS CAUSE is before the Court upon Defendant NCL (BAHAMAS) Ltd.'s ("NCL" or "Defendant") Motion to Dismiss Complaint, ECF No. [7] ("Motion"). Plaintiff Christopher Dudley filed a Response in Opposition, ECF No. [14], to which Defendant filed a Reply, ECF No. [21]. The Court has reviewed the Motion, the Response, the Reply, the record in this case, applicable case law, and is otherwise fully advised. For the reasons set forth below, the Motion is granted in part and denied in part.

I. BACKGROUND

On March 17, 2023, Plaintiff filed his Complaint against NCL and Co-Defendant Dolphin Encounters doing business as Blue Lagoon Island ("Blue Lagoon") (collectively, "Defendants"). See ECF No. [1]. On March 20, 2022, Plaintiff participated in the Blue Lagoon Segway and Beach with Lunch excursion (the "Subject Excursion"). Id. ¶¶ 21, 23. Plaintiff alleges he sustained a severe injury to his leg, among other injuries, when he was thrown from a Segway, run over by it, landed on the ground, and the Segway fell on top of him. Id. ¶¶ 27, 29. NCL is a cruise line operator who owned and operated Norwegian Sky, the cruise ship aboard which he was a passenger. Id. ¶¶ 3, 5. Blue Lagoon provides the subject excursion including the Segway Tour. Id. ¶ 42. Plaintiff asserts five counts: Count I: Negligence (NCL); Count II: Negligent Selection and Retention of Tour Operator (NCL); Count III: Negligence (Blue Lagoon); Count IV: Apparent Agency or Agency by Estoppel (NCL); and Count VI:¹ Joint Venture (Defendants). See generally id.

On May 30, 2023, NCL filed the instant Motion seeking dismissal of Plaintiff's Complaint, contending that the allegations are insufficient to state claims against NCL. See ECF No. [7]. Plaintiff responds that the allegations in his Complaint are sufficiently pled. See ECF No. [14].

II. LEGAL STANDARD

A. Failure to State a Claim

A pleading 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, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007); see Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (explaining that Rule 8(a)(2)'s pleading standard "demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation"). Additionally, a complaint may not rest on " 'naked assertion[s]' devoid of 'further factual enhancement.' " Iqbal, 556 U.S. at 678, 129 S.Ct. 1937 (quoting Twombly, 550 U.S. at 557, 127 S. Ct. 1955). "Factual allegations must be enough to raise a right to relief above the speculative level." Twombly, 550 U.S. at 555, 127 S. Ct. 1955. If the allegations satisfy the elements of the claims asserted, a defendant's motion to dismiss must be denied. See id. at 556, 127 S.Ct. 1955.

When reviewing a motion to dismiss, a court, as a general rule, must accept the plaintiff's allegations as true and evaluate all plausible inferences derived from those facts in favor of the plaintiff. See Chaparro v. Carnival Corp., 693 F.3d 1333, 1337 (11th Cir. 2012); Miccosukee Tribe of Indians of Fla. v. S. Everglades Restoration Alliance, 304 F.3d 1076, 1084 (11th Cir. 2002); AXA Equitable Life Ins. Co. v. Infinity Fin. Grp., LLC, 608 F. Supp. 2d 1349, 1353 (S.D. Fla. 2009) ("On a motion to dismiss, the complaint is construed in the light most favorable to the non-moving party, and all facts alleged by the non-moving party are accepted as true."); Iqbal, 556 U.S. at 678, 129 S.Ct. 1937.

B. General Maritime Law

In cases involving alleged torts "committed aboard a ship sailing in navigable waters," the applicable substantive law is general maritime law, the rules of which are developed by the federal courts. Keefe v. Bahama Cruise Line, Inc., 867 F.2d 1318, 1320 (11th Cir. 1989) (citing Kermarec v. Compagnie Generale Transatlantique, 358 U.S. 625, 628, 79 S.Ct. 406, 3 L.Ed.2d 550 (1959)); see also Everett v. Carnival Cruise Lines, 912 F.2d 1355, 1358 (11th Cir. 1990) ("Because this is a maritime tort, federal admiralty law should control. Even when the parties allege diversity of citizenship as the basis of the federal court's jurisdiction (as they did in this case), if the injury occurred on navigable waters, federal maritime law governs the substantive issues in the case."). In the absence of well-developed maritime law, courts may supplement the maritime law with general common law and state law principles. See Smolnikar v. Royal Caribbean Cruises, Ltd., 787 F. Supp. 2d 1308, 1315 (S.D. Fla. 2011)

III. DISCUSSION

Defendant moves to dismiss Counts I, II, IV, and VI, asserting that the claims are either premised on duties not owed under maritime law, unsupported by sufficient factual pleading, or contradicted by documents properly attached to his Motion. See generally ECF No. [7]. Plaintiff responds that each claim is sufficiently pled and the Court should not consider extrinsic evidence not specifically attached or made central to his Complaint in assessing Defendant's Motion. See generally ECF No. [14]. The Court addresses the parties' arguments as they relate to each Count.

A. Count I: Negligent Failure to Warn and General Negligence

Defendant contends that Count I should be dismissed because (1) the Complaint fails to allege duties imposed by maritime law; (2) the open and obvious doctrine is fatal to the duty to warn theory of liability; (3) the Complaint fails to allege a hazardous condition existed; and (4) Plaintiff fails to allege that NCL had actual or constructive notice of the allegedly deficient instruction provided by Blue Lagoon. ECF No. [7] at 4-7. Plaintiff responds that (1) NCL owes a duty of reasonable care to plaintiff; (2) the dangerous condition was not open and obvious; (3) Plaintiff alleges numerous failures by NCL; and (4) Plaintiff sufficiently pled notice. ECF No. [14] at 4-14. The Court addresses each argument in turn.

"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 v. NCL (Bahamas) Ltd., 920 F.3d 710, 720 (11th Cir. 2019) (quoting Chaparro, 693 F.3d at 1336). Further, "[i]t is clearly established that cruise lines owe their passengers a duty to warn of known or foreseeable dangers." Flaherty v. Royal Caribbean Cruises, Ltd., No. 15-CV-22295, 2015 WL 8227674, at *3 (S.D. Fla. Dec. 7, 2015). However, in order to have a duty to warn of a danger, the cruise line must have "actual or constructive notice of the unsafe condition." Horne v. Carnival Corp., 741 F. App'x 607, 608 (11th Cir. 2018) (citing Keefe, 867 F.2d at 1322).

i. Duties Imposed by Maritime Law

Defendant argues that a theory of strict liability "is not sustainable under the governing maritime law." ECF No. [7] at 4. Plaintiff responds that "Defendant misstates that Plaintiff is claiming NCL is strictly liable for the subject incident" and that "Defendant owes Plaintiff a duty of reasonable care under the circumstances. ECF No. [14] at 4.

Generally, "[o]nce [a] passenger leaves the ship, a cruise ship operator 'only owes its passengers a duty to warn of known dangers in places where passengers are invited or reasonably expected to visit.' " Thompson v. Carnival Corp., 174 F. Supp. 3d 1327, 1340 (S.D. Fla. 2016). "Although generally the duty to warn is the most relevant duty regarding off-vessel excursions, a cruise ship might have additional obligations under the reasonable care standard, if, for example, there is an agency relationship between the cruise ship and the excursion operator." Bailey v. Carnival Corp., 369 F. Supp. 3d 1302, 1310 (S.D. Fla. 2019) (internal quotation marks and citation omitted). "The duty to warn of known dangers beyond the ship is, in fact, a subset of the general duty of reasonable care that a shipowner owes to its passengers." Blow v. Carnival Corp., No. 22-22587-CIV, 674 F.Supp.3d 1239, 1252 (S.D. Fla. May 26, 2023).

In Count I of the Complaint, Plaintiff alleges that NCL,

individually and/or by and through its service providers, agents, servants, joint venturers and/or employees owed Plaintiff non-delegable duties, including a duty to warn of dangers of which the carrier knew or reasonably should have known. This duty extends beyond the port to places where the passenger is invited to or may reasonably be expected to visit. NCL advertised, marketed, sold and contracted with Plaintiff to provide the subject excursion including the Segway Tour excursion and, thus, should have expected Plaintiff to visit it and participate in it.

ECF No. [1] ¶ 45.

Defendant argues that "[a]fter the passenger leaves the ship, the shipowner only owes the passenger the duty to warn of known dangers in areas where they are reasonably expected to visit." ECF No. [7] at 4. Defendant further asserts that "[t]he shipowner does not owe a legal duty to provide a safe shore excursion; the governing maritime law does not recognize such a duty." Id. In support of those arguments, Defendant primarily relies on Chaparro v. Carnival Corp., 693 F.3d 1333, 1337 (11th Cir. 2012) and Thompson v. Carnival Corp., 174 F. Supp. 3d...