Knapp v. American Cruise Lines, Inc.

Filing 34

RULING (see attached) granting 21 Plaintiffs' Motion to Amend Complaint and granting the 31 Parties' Joint Motion to Stay Case Proceedings. Plaintiffs must file and serve their proposed "Amended Complaint" on or before October 31, 2018, at which time that pleading will become Plaintiffs' operative Complaint against American Cruise Lines, Inc. in this action. All case proceedings are stayed pending the scheduled private mediation before the Honor able Anthony Robaina (Retired) on November 1, 2018. Within fourteen days following that mediation, on or before November 15, 2018, the parties must file a joint status report with the Court. As requested, the Court has extended the case deadlines following the mediation as set forth in this Ruling. Should the case continue after the mediation, the parties must adhere to these deadlines. Signed by Judge Charles S. Haight, Jr. on October 23, 2018. (Dorais, L.)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF CONNECTICUT

MERLYN V. KNAPP and BEVERLY
KNAPP,
Plaintiffs,

Civil Action No.
3: 17 - CV - 2130 (CSH)

v.
AMERICAN CRUISE LINES, INC.,
Defendant,
v.

OCTOBER 23, 2018

OTIS ELEVATOR COMPANY,
Third-Party Defendant.

RULING ON PLAINTIFFS' MOTION TO AMEND COMPLAINT [Doc. 21] AND THE
PARTIES' JOINT MOTION TO STAY CASE PROCEEDINGS [Doc. 31]
HAIGHT, Senior District Judge:
I. INTRODUCTION
Plaintiffs Merlyn Knapp and Beverly Knapp, husband and wife, bring this action for bodily
injuries sustained by Merlyn while cruising aboard the paddle wheel riverboat QUEEN OF THE
WEST ("QOW") on the Columbia River, departing from Portland, Oregon, on May 6, 2017, and
returning to that same port on May 13, 2017. Defendant American Cruise Lines, Inc. ("ACL")
owned and operated the QOW.

The vessel, which had multiple decks, was equipped with an

elevator, which transported passengers from one deck to another. Third-Party Defendant Otis

1

Elevator Company ("Otis") installed and maintained the elevator.1
As set forth in the Complaint [Doc. 1], Plaintiffs allege that Merlyn Knapp, aged eighty-eight
at the departure date of the cruise, suffered from diabetes and diabetic neuropathy of his legs and
feet, which interfered with his ability to walk comfortably. Doc. 1, ¶ 14. Consequently, he rented
a motorized scooter to take with him on the cruise to assist his movement around the QOW. Id.,
¶ 15. On May 8, 2017, while the QOW was docked at The Dalles, Oregon, a port on the Columbia
River, the Knapps entered the vessel's elevator after lunch to go from the main deck to the fourth
deck. Id., ¶¶ 19-20. Merlyn Knapp drove his scooter onto the elevator. Id., ¶ 20. According to the
Complaint, the elevator was defective and failed to stop level with the landing on the fourth deck,
instead overshooting the landing and stopping higher than its surface: a condition termed as
"misleveling." Id., ¶ 21. Merlyn, seated in his scooter and facing the back wall of the elevator, was
unaware of the misleveling and backed his scooter out of the elevator to exit on the fourth deck. Id.,
¶¶ 24-25. Due to the misleveling, his scooter's "rear wheels dropped off the edge of the misleveled
floor of the elevator," causing him to "fall backward, striking his head and neck against the fourthfloor deck and an immediately adjacent vertical door." Id., ¶ 26. Merlyn sustained "severe, painful
and permanent injuries," including, inter alia: "a severe shock to his nervous system" and "a severe
flexion injury of his neck, with fractures of the C7 vertebra in his neck and the T1 vertebra in his
upper back." Id., ¶ 27. Alleging Merlyn's severe injuries and substantial money damages, Plaintiffs
filed this action to recover from ACL.
In their original Complaint, Plaintiffs asserted three counts of state law claims against ACL:
1

The Knapps initiated the present action in this Court by filing their Complaint against ACL
on December 20, 2017. Doc. 1. Thereafter, ACL impleaded Otis by Third-Party Complaint on
February 23, 2018. Doc. 7.
2

negligence, bystander emotional distress, and loss of consortium. These three claims sounded in
tort but also arose under maritime law. For example, the Complaint included allegations against
ACL for such maritime claims as "failing to maintain the vessel in accordance with applicable
United States Coast Guard Regulations, including 46 C.F.R. Subchapter K," and "failing to provide
a seaworthy vessel for carrying Mr. Knapp as a passenger for hire."2 See Doc. 1, ¶¶ 33 (h) and (i).
On March 21, 2018, Plaintiffs filed a third-party complaint against defendant Otis based on
that company's installation and maintenance of the allegedly defective elevator. As in their main
Complaint against ACL, Plaintiffs asserted a negligence claim against Otis, alleging, inter alia, that
Otis failed to maintain and properly service the elevator, failed to properly and timely inspect the
elevator for reasonable safety, failed to repair the elevator and/or to cause ACL to make and purchase
necessary repairs, and failed to warn Merlyn Knapp about the elevator's defective condition or to
install a warning device regarding misleveling on the elevator. Doc. 14, ¶¶ 33(a)-(h).
In their Third-Party Complaint, as in their main Complaint against ACL, Plaintiffs also
included two derivative claims against Otis on behalf of Beverly Knapp. The first claim was for
"bystander emotional distress," stemming from the distress she suffered in witnessing her husband
being injured, evacuated, transported and treated for his serious injuries. Id., ¶¶ 36-38. The second
count was for "loss of consortium" for the damage to Beverly's marriage, including a "loss of society,
affection, comfort, care and support" of her husband Merlyn. Id., ¶¶ 39-40.
Pending before the Court are two motions which will be addressed in this Ruling. The first
is Plaintiffs' "Motion for Leave to Amend Complaint" [Doc. 21], in which Plaintiffs seek leave to
2

Subchapter K of Chapter 46 of the Code of Federal Regulations pertains to "small
passenger vessels carrying more than 150 passengers or with overnight accommodations for more
than 49 passengers."
3

add three claims. First, Plaintiffs request leave to add a fourth count to allege that ACL was reckless
in that it had actual knowledge that the elevator was worn out, defective, and subject to misleveling
before Merlyn Knapp was injured and failed to either warn Plaintiffs or to repair the defect. Doc.
21, at 2. In addition, Plaintiffs request to add two "derivative counts" against ACL, the Fifth and
Sixth Counts, seeking recovery for reckless "bystander emotional distress" and reckless "loss of
consortium," respectively. Plaintiffs represent that they have acquired information to bring the
proposed amendments from documents received during the initial discovery disclosures from Otis.
Plaintiffs assert that they bring this motion "in good faith" and that justice requires permitting said
amendments under Federal Rule of Civil Procedure 15(a)(2).
ACL opposes Plaintiffs' proposed amendments, arguing that the newly added claims would
be "futile." Doc. 25, at 5. First, ACL claims that Plaintiffs will be unable to meet the standard
necessary to plead that ACL was "reckless" in the Fourth Count. Moreover, ACL maintains that
even if Plaintiffs could plead the necessary facts, they "have waived such claims in their contract
with ACL" when they purchased their tickets for their trip aboard the QOW. Id., at 5, 13. According
to ACL, in that contract, Plaintiffs waived "all claims for consequential or punitive damages." Id.,
at 13.

In addition, ACL asserts that the derivative claims in the Fifth and Sixth Counts are

duplicative of those brought in the Second and Third Counts. Id., at 5 n.1.
In the second pending motion addressed by this Ruling, the parties jointly request a stay of
the case proceedings to allow them to focus on participating in an upcoming, scheduled mediation
of this matter. Doc. 31. As part of this motion, they ask the Court to reset each case deadline with
an extension of 120 days. Id., at 4.
The Court resolves Plaintiffs' motion to amend and the parties' motion to stay herein.
4

II. DISCUSSION
A. Standard to Amend
Pursuant to Rule 15(a), Fed. R. Civ. P., a plaintiff may amend his complaint once as a matter
of course within twenty-one days after service of the complaint or within twenty-one days after
service of a responsive pleading (i.e., answer or motion to dismiss) or of a Rule 12(b), (e), or (f)
motion, whichever is earlier. See Fed. R. Civ. P. 15(a)(1)(A) and (B). Thereafter, a party may
amend its pleading only by leave of court or written consent of the adverse party; and "[t]he court
should freely give leave when justice so requires." Fed. R. Civ. P. 15(a)(2).
In Foman v. Davis, 371 U.S. 178, 182 (1962), the United States Supreme Court articulated
the relevant standard for a court to determine whether to grant a party's request to amend his or her
pleading under Federal Civil Rule 15(a)(2). In particular, the Foman court stated: "In the absence
of any apparent or declared reason – such as undue delay, bad faith or dilatory motive on the part of
the movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice
to the opposing party by virtue of allowance of the amendment, futility of the amendment, etc. – the
leave sought should, as the rules require, be 'freely given.'" 371 U.S. at 182. "Of course, the grant
or denial of an opportunity to amend is within the discretion of the District Court, but outright refusal
to grant the leave without any justifying reason appearing for the denial is not an exercise of
discretion; it is merely abuse of that discretion and inconsistent with the spirit of the Federal Rules."
Id.
"Where the amended portion of the complaint would fail to state a cause of action, however,
the district court may deny the party's request to amend." Parker v. Columbia Pictures Indus., 204
F.3d 326, 339 (2d Cir. 2000) (citing S.S. Silberblatt, Inc. v. East Harlem Pilot Block, 608 F.2d 28,
5

42 (2d Cir.1979)). Under such circumstances, the amendment would be futile.
The burden of proving futility rests on the party opposing the amendment. Schaghticoke
Tribal Nation v. Norton, No. 3:06-CV-81(PCD), 2007 WL 867987, at *11 (D. Conn. March 19,
2007). "[I]n making this determination [regarding futility], the court should not consider the merits
of a claim or defense on a motion to amend unless the amendment is clearly frivolous or legally
insufficient on its face." Id. (quotation marks omitted). See also Zuppardi's Appizza, Inc. v. Tony
Zuppardi's Appiza, LLC, No. 3:10-CV-1363 (RNC), 2012 WL 1067652, at *1 (D. Conn. Mar. 30,
2012).
B. Plaintiff's Motion to Amend
1. "Good Faith" Basis for Amendment
In their "Motion to Amend" the Complaint, the Plaintiffs request to "add one count against
American Cruise Lines, Inc. ('ACL'), seeking damages for ACL's 'reckless disregard for the safety
of its passengers.'" Doc. 21, at 1 (citing proposed Amended Complaint). They also request to add
"two counts derivative therefrom, for bystander emotional distress and loss of consortium." Id.
As Plaintiffs explain, they "became aware of the existence of facts giving rise to [their]
proposed new counts after they received an initial document production from defendant Otis
Elevator Company, in compliance with [Rule] 26(a)," Fed. R. Civ. P. Id., at 2. With the new facts,
Plaintiffs "now allege that ACL had actual knowledge, long before [Merlyn] was injured, that the
pump and the valve system in its elevator was worn out, defective and subject to misleveling." Id.
Accordingly, "Plaintiffs claim that ACL behaved recklessly by failing to repair or replace the pump
and valve system and by failing to warn plaintiff [Merlyn Knapp] that the elevator misleveled." Id.
Plaintiffs include these new allegations in their proposed Fourth Count, at paragraphs 127 to 136 and
6

144. Id. They also append supporting exhibits to their proposed Amended Complaint as "Exhibit
B." Id., at 24-37.
With respect to the Foman standard, Plaintiffs assert that their motion to amend "is made in
good faith, does not result in undue delay, will not prejudice defendant's ability to defend this case,
and would not be futile." Doc. 21, at 2. They thus assert that "[t]he court should freely give leave
[to amend] when justice so requires. " Id. (quoting Fed. R. Civ. P. 15(a)(2)).
In particular, Plaintiffs argue that "[t]he record demonstrates that [their] proposed amendment
is made in good faith" after they received the initial disclosures from third party defendant Otis. Id.,
at 3. The documents from Otis allegedly provided the factual basis for the proposed recklessness
claim. Id. Plaintiffs thereafter set forth a summary of the newly disclosed facts. Id., at 3-5.
Key among the new facts recounted are the following. On June 1, 2016, Roy V. Sarrafian,
P.E., the Director of Engineering for ACL, sent an email to Otis employees Ryon Keath Rosvold and
Steven Haupt, stating that ACL still had "some unresolved issues with [the] elevator on the Queen
of the West" and "need[ed] to get a plan together to get this wrapped up" by the end of the week.
Doc. 21, at 3, 25. On the same day, Rosvold responded, stating that Otis's technician had gone to
the ship and was recommending replacement of valves and starter contacts because "the elevator is
re-levelling so often that starter contacts are suffering over-use." Id., at 3, 26 (Otis document OECKOU0000001).
According to Plaintiffs, six days later, Otis's Rosvold urged ACL to purchase "a whole new
pump unit" to replace critical components that had become old and obsolete. Id., at 3, 27. Said new
pump would make operation of the elevator "quieter," more reliable, and "better ab[le] to fine tune
levelling." Id., at 3-4, 27 (OEC-KOU0000003).
7

Then on June 28, 2016, Otis's Rosvold emailed ACL's Sarrafian, Haupt and Fry a proposal
to "replace the existing faulty Beranger valve with a new Maxton valve" at a "[p]rice [of]
$14,763.09." Id., at 4, 30 (OEC- KOU0000006). ACL did not, however, replace the faulty valve.
Id., at 4.
Ten months then passed with the QOW out of service for the winter. Id. On May 5, 2017,
three days before Merlyn Knapp was injured, R.D. Fry of ACL emailed Otis's Rosvold, copying ACL
Director of Engineering Sarrafian. In that email, Fry stated:
[T]he elevator on the QOW seems to be having a problem leveling itself to the floor
it is called to. It is either 6 inches higher or lower from the floor. Then after a period
of time it levels its self. The ship will be a[t] Jantzen Beach at 11 p.m. tonight and
will leave at 1:30 p.m. tomorrow. I'd like to see about getting somebody down there
to look at this.
Id. at 4, 34 (text of email, OEC-KOU0000042).
Otis responded by sending its technician Mike Ziegler to the QOW. Id. Rosveld reported
Ziegler's findings on May 8, 2017, at 10:54 a.m.:
He found that the existing Beranger valve continues to be problematic and needs to
be replaced. This valve is original to elevator installation. We have had no luck in
finding a direct replacement for this valve. Our only suggestion is to replace with a
new Maxton valve (originally proposed June, 2016). Here is that proposal again.
Id., at 4.
Three hours later, at approximately 2:00 p.m., Merlyn Knapp was injured exiting the elevator
on the QOW's fourth deck. QOW's Mate Matthew Gelatt made the 911 call to get help for Merlyn,
which was recorded on .mp3 audio data files. Id., at 4-5. In that call, Gelatt was heard stating to
the operator that Merlyn "fell getting off the elevator in his scooter and the elevator wasn't level."
Id., at 5.

8

Plaintiffs present an email from ACL's Sarrafian to Otis's Rosvold on May 9, 2017, the day
after Merlyn Knapp was injured. At that time, ACL decided to go forward with the valve
replacement work on the elevator. Id. That email states:
Consider this the confirmation. We want to get the parts ordered ASAP with
expedited delivery for tomorrow. As discussed we would like the work to begin
tomorrow night in Portland, OR.
I will sign the proposal and get it to you within ½ [one-half] hour.
Doc. 21, at 35 (OED-KOU00000043).
Plaintiffs show that by May 10, 2017, at 3:30 p.m., the valve replacement had not been
completed. At that time Sarrafian wrote an email to Rosvold, voicing his frustration about the pace
of the work on the defective elevator:
Ryon,
When exactly will you receive the part? The way the elevator is running right now
it is significantly drawing on the crew's resources to continue safe operation. We
need to get the unit up and running as quickly as possible.
Id., at 36-37 (OEC-KOU0000068-69).
On the basis of the documents produced by Otis, Plaintiffs "maintain . . . that they have a
good faith basis to claim that ACL acted recklessly by refusing to spend the funds necessary to repair
the elevator for almost one year, and until after Mr. Knapp sustained his life-changing injury." Id.,
at 5. Plaintiffs concede that ACL "may dispute the merits of this claim, but their objection should
not be sufficient to preclude [P]laintiffs from even raising it." Id. Plaintiffs thus seek "an opportunity
to litigate the issue [of recklessness] on its merits, and develop a full evidentiary record." Id.
2. Other Foman Factors
Plaintiffs assert that as to "undue delay," they have moved to amend their complaint "early

9

in the case" and the "amendment will not cause delay." Doc. 21, at 6. The depositions of fact
witnesses remain ongoing and the amendment should not require extension of any of the deadlines
in the discovery plan.3 As to timing, Plaintiffs also allege that "[t]o the extent that defendant ACL
may claim that the Amended Complaint is subject to dismissal as a matter of law, it will have ample
time to prosecute such motions as it deems necessary." Id.
With respect to prejudice, Plaintiffs claim that Defendants ACL and Otis will suffer none.
The facts giving rise to Plaintiff's claims – Merlyn Knapp's injury on May 8, 2017, and ACL's
conduct which gave rise to that injury – were already alleged in the initial complaint. Id., at 6-7.
Therefore, the amendment "should not unduly affect defense strategy or impact discovery efforts."
Id., at 7 (citing Gross v. Donovan, No. 3:06-CV-1703 (VLB), 2014 WL 1246498, at *1 (D. Conn.
Mar. 24, 2014), for the proposition: "One of the most important considerations in determining
whether amendment would be prejudicial is the degree to which it would delay the final disposition
of the action."). In the case at bar, Plaintiffs emphasize that discovery has not been completed and
the amendments will not, in any event, require the opposing party to expend significant additional
resources to conduct discovery or prepare for trial. Id., at 7.
Finally, as to futility, Plaintiffs "contend that the amendment is not futile." Id. It is not
subject to a bar like the statute of limitations and lies "within the scope of notice of injury that has
been provided to ACL." Id. Moreover, the amendment falls under the Court's subject matter

3

Although discovery is currently set to close on October 30, 2018, the parties have jointly
moved for a stay of case deadlines, which, if granted herein, will permit additional time for
depositions.
10

jurisdiction, which is based on diversity. Id.4
From the record of the case, the Court finds that there is no indication that Plaintiffs delayed
unduly in bringing these amendments, acted in bad faith, or repeatedly failed to cure deficiencies in
any prior amendment. Rather, upon reviewing documents produced by Otis, Plaintiffs discovered
relevant facts upon which to base their newly proposed claims. They then promptly moved to amend
their Complaint for the first and only time.
Furthermore, the Court concurs with Plaintiffs that, given the present status of the case,
allowing the proposed amendments would not prejudice ACL or Otis. Discovery has not closed; and
there is no indication that it will be unduly expanded due to the proposed amendments. As the
Second Circuit noted in Block v. First Blood Assocs., 988 F.2d 344, 350 (2d Cir. 1993), undue
prejudice arises when the new claim would: (i) require the opponent to expend significant additional
resources to conduct discovery and prepare for trial; (ii) significantly delay the resolution of the
dispute; or (iii) prevent the plaintiff from bringing a timely action in another jurisdiction. None of
those problems will result from Plaintiffs' proposed amendments.
Having found no other basis for denying amendment, the Court will turn to the actual text
of the Amended Complaint to determine whether including the proposed claims would be futile –
i.e., whether they fail to state claims upon which relief can be granted.

4

As discussed in this Court's "Memorandum and Order" filed on June 25, 2018 [Doc. 23],
Plaintiffs assert that the Court's subject matter jurisdiction is based on diversity of citizenship, 28
U.S.C. § 1332(a), as well as maritime jurisdiction, 28 U.S.C. § 1333(1), and supplemental
jurisdiction under 28 U.S.C. § 1367. Doc. 23, at 2-4; see also Doc. 21, ¶¶ 5-9.
11

3.

Futility - Substance of Proposed Amendments

Upon initial examination of the counts and language of the proposed amendments, the Court
notes that Plaintiffs have added Counts Four to Six in their Amended Complaint. In the Fourth
Count, they begin pleading their claim for "recklessness" by alleging that ACL was knowingly
reckless in: primarily targeting wealthy elderly passengers for their cruises, knowing that many of
these passengers "suffered from health conditions and handicaps that limited their mobility;" and
inducing such passengers to book passage on the QOW by representing that the QOW "was equipped
with handicap-accessible rooms and an elevator for ease of movement between decks." Doc. 21, at
17 (¶¶ 119-20). Plaintiffs further allege that the Knapps relied on such representations and promises
to book their cruise on the QOW for May 6-13, 2017. Id., at 18 (¶ 121). Given the Knapps'
stateroom assignment on the second deck and the QOW's main dining room's location on the first
deck, ACL knew that the Knapps would have to "utilize the elevator to transport [Merlyn] and his
scooter from his stateroom to the dining hall." Id., at 18 (¶ 126). Furthermore, "[f]or years prior to
May 6, 2017, ACL knew that the elevator in its vessel was old, outmoded, and in need of repair or
replacement." Id., at 18 (¶ 127).
Plaintiffs then incorporate the information they obtained from the Otis document production,
including, for example, that "[a]s of June 1, 2016, . . . an Otis representative notified ACL senior
engineering staff in writing that the elevator was malfunctioning in that it did not accurately stop
level with the landing." Id., at 18-19 (¶ 129). Given this problem with the elevator, on June 28,
2016, Otis proposed to replace the "existing faulty Beranger valve" with a "new Maxton valve" at
a cost of $14,763.09. Id., at 19 (¶ 131). Although ACL evaluated the proposal, knowing that "the
elevator did not accurately stop level with the landing, "which constituted a tripping hazard" to its
12

passengers," ACL chose "not to purchase the Maxton valve repair from Oits" and not to inform its
passengers of this decision. Id., at 19 (¶¶ 133-34).
Furthermore, in this "recklessness" count, Plaintiffs allege that on the day before the Knapps'
scheduled departure on the QOW, May 5, 2017, ACL's shipboard engineer wrote to Otis that the
elevator was "having a problem leveling itself to the floor it is called to," such that it was "either 6
inches higher or lower from the floor." Id., at 19 (¶ 135). Yet, ACL "chose not to warn its cruise
ship passengers (including plaintiffs) of the hazard posed by the misleveling elevator." Id., at 19
(¶ 136).
Plaintiffs recount the sequence of events on May 8, 2017, culminating in Merlyn's injury to
his neck upon backing his scooter off the misleveled elevator on the fourth deck.

Id., at 19-20

(¶¶ 137-43). Plaintiffs then sum up their recklessness charge, basing it on the following factual
allegations: (1) ACL "knew that it marketed to an older demographic," which "includ[ed] passengers
with mobility problems who would need to use the elevator;" ACL "deliberately chose not to
implement the recommended repair to correct the known misleveling problem with its elevator;"
ACL knew that QOW would "be out of service during the winter of 2016 and the spring of 2017 and
that ACL and Otis would have ample time to make the necessary repairs;" ACL knew that the price
of the repair was "about $16,000, or about the price of four cruise tickets;" ACL knew that, due to
their "physical limitations," the Plaintiffs would need to use the elevator to move between decks on
the QOW; and ACL was aware that the elevator had "worn out valves that caused it to mislevel," but
failed to follow the requirement to report this "hazardous condition" to the United States Coast

13

Guard Captain of the Port under 46 C.F.R. § 122.203;5 and ACL "chose to perform temporary or
stopgap repairs in the elevator without gaining permission from the Officer in Charge of Marine
Inspection," thereby violating provisions of 46 C.F.R., "including 46 C.F.R. § 176.700."6

Doc.

21, at 20-21 (¶¶ 144 (a)-(g)).
Finally, Plaintiffs allege that ACL was reckless in choosing to operate the vessel during
Plaintiffs' cruise, knowing that the QOW had a defective elevator immediately prior to the vessel's
departure and failing to notify or warn the Plaintiffs or other passengers about the elevator
misleveling. Id., at 21 (¶¶ 144 (h)-(j)). According to Plaintiffs, in choosing not to spend the money
to make the necessary repairs, ACL exposed its passengers, including the Plaintiffs, to a "known and
entirely unnecessary risk," in an effort to improve the bottom-line profitability of its cruise ship
operations." Id., at 21-22 (¶ 144(k)).
The Court finds that the allegations set forth in this recklessness count are sufficient to state
a claim under Connecticut law. As the Connecticut Appellate Court held in Sheiman v. Lafayette
Bank & Trust Co., 4 Conn. App. 39, 45-46 (1985):
Recklessness is a state of consciousness with reference to the consequences of one's
acts. It requires a conscious choice of a course of action either with knowledge of
the serious danger to others involved in it or with knowledge of facts which would
disclose this danger to any reasonable man, and the actor must recognize that his
conduct involves a risk substantially greater . . . than that which is necessary to make
his conduct negligent. It is more than negligence, more than gross negligence.

5

46 C.F.R. § 122.203 provides that "[w]henever there is a hazardous condition . . . on board
the vessel, the owner, master, agent, or person in charge shall immediately notify the Captain of the
Port of the port or place of destination and the Captain of the Port of the port or place in which the
vessel is located of the hazardous condition."
6

Pursuant to 46 C.F.R. § 176.700(a), "[r]epairs or alterations to the hull, machinery, or
equipment that affect the safety of the vessel must not be made without the approval of the cognizant
OCMI [Officer in Charge, Marine Inspection], except during an emergency."
14

4 Conn. App. at 45-46 (citations and internal quotation marks omitted). Consistently and more
recently, the Connecticut Appellate Court summarized:
One is guilty of reckless misconduct when knowing or having reason to know of facts
which would lead a reasonable [person] to realize that the actor's conduct not only
creates an unreasonable risk of bodily harm to the other but also involves a high
degree of probability that substantial harm will result to him.
Craig v. Driscoll, 64 Conn. App. 699, 721 (2001) (citing Restatement, 2 Torts, § 500) (internal
quotation marks omitted), aff'd, 262 Conn. 312 (2003).
In the case at bar, Plaintiffs have alleged that ACL knew that the defective valve on the
elevator, which caused the elevator to mislevel, created an unreasonable risk of bodily harm to the
passengers of the QOW. According to Plaintiffs' allegations, ACL was explicitly informed of this
"misleveling" problem by Otis. See Doc. 21, at 18 (¶¶ 127, 129-32). ACL allegedly "knew that the
elevator did not accurately stop level with the landing, resulting in [the] QOW's passengers
experiencing an unexpected discrepancy between the level of the elevator car and the level of the
landing, which constituted a tripping hazard." Id., at 19 (¶ 132). Nonetheless, ACL consciously
chose not to repair the hazardous condition. Specifically, ACL "chose not to purchase the Maxton
valve repair from Otis or anyone else" and "chose not to disclose to its passengers that it had
declined to repair the elevator." Id., at 19 (¶¶ 133-34). In other words, ACL is alleged to have
consciously chosen not to repair a problem which a reasonable man would have known created an
unreasonable risk of bodily harm to others. ACL also chose not to warn its passengers about the risk.
When analyzing futility of a proposed amendment under Rule 15(a)(2), the district court
determines whether the amended claim could withstand a Rule 12(b)(6) motion to dismiss for failure
to state a claim. Dougherty v. Town of North Hempstead Bd. Of Zoning Appeals, 282 F.3d 83, 88

15

(2d Cir.2002) ("An amendment to a pleading will be futile if a proposed claim could not withstand
a motion to dismiss pursuant to Rule 12(b)(6)."). Accordingly, the court employs the "plausibility"
standard set forth in the United States Supreme Court's seminal holding of Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009).7 Under Iqbal, "[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." 556 U.S. at 678. The complaint must provide "more than the unadorned,
the-defendant-unlawfully-harmed-me accusation." Id. "A pleading that offers 'labels and conclusions'
or 'a formulaic recitation of the elements of a cause of action will not do.'" Id. (quoting Bell Atlantic
Corp. v. Twombly, 550 U.S 544, 555 (2009)).
In the case at bar, at the pleading stage, Plaintiffs' factual allegations in the Fourth Count are
sufficient to permit the requested amendment. This recklessness claim is plausible under Iqbal, as
drafted. In particular, Plaintiffs' recklessness claim "has facial plausibility" because the Plaintiffs
have pled "factual content that allows the court to draw the reasonable inference that the defendant
is liable for the misconduct alleged." Iqbal, 556 U.S. at 678.
To recapitulate, as alleged in the proposed Amended Complaint, including the appended
Exhibits [Doc. 21]: Merlyn Knapp suffered his injury on board the QOW on May 8, 2017, as the
result of the vessel's elevator misleveling. The documents appended in Exhibit B appear to establish
that on June 1, 2016, almost a year previously, employees of ACL and Otis had an exchange of emailed communications, in which the ACL employee told Otis that ACL continued to have "some

7

The Second Circuit has consistently adhered to the United States Supreme Court's seminal
"plausibility" standard set forth in Iqbal. See, e.g., Shin v. Am. Airline, Inc., 726 F. App'x 89, 90 (2d
Cir. 2018); Allco Fin. Ltd. v. Klee, 861 F.3d 82, 94 (2d Cir. 2017); Christine Asia Co. v. Ma, No.
16-2519-CV, 2017 WL 6003340, at *1 (2d Cir. Dec. 5, 2017).
16

unresolved issues" with the QOW's elevator, and Otis's employee responded by advising ACL that
an Otis technician (who had boarded the vessel that day) was recommending replacement of elevator
valves and starter contacts because "the elevator is re-leveling so often that starter contacts are
suffering over-use." This exchange supports Plaintiffs' allegation that ACL was made aware by Otis
of the nature and cause of precisely the same elevator malfunction that caused Merlyn Knapp's
grievous injuries eleven months later. Otis followed up. On or about June 7, 2016, Otis's employee
urged his opposite number at ACL to purchase "a whole new pump unit" for the QOW elevator, to
replace old and obsolete components; the new pump, Otis advised ACL at that time, would make
the elevator's operation quieter, more reliable, and (significantly) better able to "fine tune leveling."
The exchanges in 2016 between ACL and Otis came to an end when on June 28, 2016, Otis's
employee e-mailed to the ACL personnel a proposal to "replace the existing faulty Beranger valve
with a new Maxton valve" at a price of $14,763.09.
As set forth in Plaintiffs' recklessness claim, there is no indication that ACL made any
response to Otis's proposal of June 28, 2016. On May 5, 2017 (the day before the Knapps boarded
the QOW at Portland for the one-week river cruise), ACL's employee e-mailed his opposite number
at Otis and stated: "The elevator on the QOW seems to be having a problem leveling itself to the
floor it is called to. . . . I'd like to see about getting somebody down here to look at this."8 Otis
promptly dispatched another technician to the vessel, whose findings Otis communicated to ACL
in an e-mail sent at 10:54 a.m. on May 8, 2017: "He found that the existing Beranger valve continues
to be problematic and needs to be replaced." (emphasis added). The plausible reading of this advice

8

For Otis, ACL's May 2017 communication may have invoked the shade of Yogi Berra:
"Déjà vu all over again."
17

is that the elevator's misleveling in June of 2016 was still causing problems in May of 2017. Otis's
recommendation to ACL was blunt, to the point, and (significantly) repetitive. Otis's May 8, 2017,
e-mail to ACL concludes: "This valve is original to the elevator installation. We have had no luck
in finding a direct replacement for this valve. Our only suggestion is to replace with a new Maxton
valve (originally proposed June, 2016). Here is that proposal again." (emphasis added). Otis sent
this e-mail to ACL three hours before the QOW’s elevator, whose misleveling appears to have been
chronic, misleveled again and precipitated Merlyn Knapp's injuries. Accepting the veracity of the
well-pled allegations in the Fourth Count, construing all reasonable inferences in Plaintiffs' favor,
it is plausible to infer that if ACL had accepted Otis's June 2016 proposal and replaced the old
elevator valve with a new one, the Knapps' river cruise would have been that carefree, restorative
voyage of which they dreamt and for which they paid.
The briefs of counsel for ACL on these motions labor to suggest that this unfortunate
sequence of events may fairly be ascribed to Otis. The question on Plaintiffs' Rule 15 motion to
amend their complaint to assert recklessness claims against ACL is whether ACL (whose burden
it is) has made a showing that the proposed amendment would be futile: that is to say, the actionable
misconduct can be ascribed only to Otis as a matter of law, and Plaintiffs do not allege against ACL
plausible claims of recklessness that would survive a motion to dismiss. ACL does not and cannot
make that showing.
As alleged, Otis's proposal to ACL in June of 2016 – replace the vessel elevator's original,
failing parts with new ones – would be described to first-year law students in Contracts I as an offer
by Otis which ACL could accept (thereby creating a contract between the parties) or reject
(explicitly by negative response) or implicitly (by disregarding the offer for a year). Otis, with its
18

alleged contracted-for expertise in the manufacture, installation and maintenance of elevators on
impressive vessels like the QOW, identified for ACL the cause of QOW's elevator misfunction,
recommended the solution and specified its cost. But Otis could not compel ACL to contract with
it and correct the vessel elevator's misleveling in June of 2016. ACL chose not to do so at that time,
for reasons the present record does not reveal. It appears that because the elevator's shortcomings
were not corrected, Merlyn Knapp was injured in May 2017. The duties of the owner of a vessel on
navigable waters to passengers for hire under common law and maritime law were owed to the
Knapps by ACL, not Otis.
While this Ruling says nothing about the viability of any claim the Knapps may assert against
Otis, the fact-intensive pleadings demonstrate the Plaintiffs' entitlement under Rule 15(a), in the
interest of justice, to amend their complaint so as to assert claims for reckless misconduct against
ACL. Their motion for leave to do so will accordingly be granted. ACL counsel's brief in
opposition cites cases more in an exercise of misplaced advocacy than as a source of apposite
authority. Whether on a full plenary record Plaintiffs can prove these claims is a question for another
day.
C. ACL's Opposition to Proposed Amendment
1. Standard for Recklessness
In making its finding of plausibility regarding Plaintiffs' recklessness claim, the Court has
considered the following opposition from ACL. In its response to Plaintiffs' motion to amend, ACL
opposes Plaintiffs' proposed amendment, arguing first that Plaintiffs cannot plead sufficient facts
to bring a recklessness claim in the Fourth Count. ACL recites facts to show that Otis was engaged
as the exclusive agent and expert by ACL "to recertify, inspect, repair, troubleshoot, test, and survey
19

the QOW's elevator." Doc. 25, at 6. Moreover in the months and days leading up to the misleveling
incident which injured Merlyn Knapp, Otis "had worked on the QOW's elevator numerous times,"
had tested and inspected the QOW's elevator to provide ACL with "a clean 'Certificate of
Inspection'" in 2017, and had "reported no problems with the elevator to ACL."

Id., at 6-7.

Specifically, "Otis did not mention or reference the Beranger valve or discuss the Maxton valve"
– the valves related to leveling – "in connection with its March 9, 2017 inspection," just "weeks
before the alleged incident." Id., at 7.
According to ACL, on May 5, 2017, ACL's Mr. Fry emailed Otis's Mr. Rosvold to inform
him that "the QOW's elevator 'seems to be having a problem leveling itself to the floor it is called
to.'" Id., at 8. Fry further told Rosvold that "ACL wanted an Otis technician to work on the issue
immediately, as the QOW was set to sail the following day at 1:30 pm." Id. The following day, a
Mr. Ziegler allegedly repaired the elevator and "did not report any continued problems with the
elevator." Id.

ACL thus concludes that "if Plaintiffs' injuries were caused by anyone other than

Plaintiffs," they were "caused solely by the primary, active, and sole negligence, culpable conduct,
wrongful acts and/or omissions of Otis Elevator, and any fault of ACL was secondary and passive."
Id.
ACL surmises that under these facts, recited by its counsel, Plaintiffs cannot meet the
standard to allege that ACL was reckless because "[t]here is a wide difference between negligence
and a reckless disregard of the right or safety of others." Id., at 9 (citing Tiffany v. Spring Lake Vill.
Condo. 1, Inc., No. CV146024824S, 2014 Conn. Super. LEXIS 3114, at *3 (Conn. Super. Ct. Dec.
18, 2014)).
ACL also points to Connecticut court cases in which allegations that a party knew of, but
20

failed to warn others, or monitor or repair known defects were insufficient to state claims for
recklessness. Id. ACL relies on the case of Deptulski v. Ansonia Acquisitions, LLC, No.
KNLCV156025135S, 2016 Conn. Super. LEXIS 175, *6 (Conn. Super Ct. Jan. 25, 2016), an
unpublished opinion by the Connecticut Superior Court. In that case, a defective staircase collapsed
in a rented apartment, causing the decedent to fall to his death. The plaintiff, administrator of the
decedent's estate, alleged that the defendants, two limited liability companies who owned and/or
operated the apartments, had notice that the stairs were defective and hazardous to users but failed
to inspect, make repairs, make the area safe, or warn users.
ACL states that "[i]n granting the defendants' motion to strike, the court concluded that the
'plaintiff has alleged facts amounting to nothing more than negligence.'" Doc. 25, at 10-11 (quoting
Deptulski, 2014 Conn. Super. LEXIS 3114, at *3). In ACL's opinion, "[t]he inadequate allegations
in Plaintiffs' proposed amended complaint fare no better" than those in Deptulski. Id., at 11.
I find, however, that the Deptulski complaint is clearly distinguishable from the presently
proposed amended complaint. In Deptulski, the "plaintiff's factual allegations in the negligence
count and recklessness count [were] identical." 2016 Conn. Super. LEXIS 175, at *3. The only
difference was that in the negligence count, the plaintiff alleged that the defendants' actions
amounted to "negligent acts or omissions," and in the recklessness count, the actions amounted to
"reckless, willful and/or wanton acts or omissions." Id., at *3-4. The Deptulski court thus stated:
To state a claim for common-law reckless misconduct, the pleader must set forth
specific, subordinate, supporting facts. See Dumond v. Denehy, 145 Conn. 88, 90,
139 A.2d 58 (1958); D. Wright, J. FitzGerald, W. Ankerman, Connecticut Law of
Torts (Third Ed., 1991), §61. "Simply using the word, 'reckless' or 'recklessness' is
not enough. A specific allegation setting out the conduct that is claimed to be
reckless or wanton must be made." Dumond v. Denehy, . . . 145 Conn. [88], 91
[1958)].
21

Id., at *5.9
In the case at bar, however, the Plaintiffs have alleged a particular set of facts to show
recklessness, which as the court in Deptulski describes, is "more than negligence," "more than a
failure to exercise a reasonable degree of watchfulness to avoid danger," and "more than "mere
mistake resulting from inexperience, excitement, or confusion, and more than . . . simple
inattention." Id., at *6 (citations omitted).
Moreover, the Deptulski court rejected the defendants' assertion that "passive conduct or
omissions, such as a failure to inspect or repair, can never, as a matter of law, rise to the level of
conduct that would constitute recklessness." Id.. The Deptulski court thus clarified that it was "not
persuaded that there is any such per se rule in the law;" and "[no] such rule has been articulated by
any appellate court, and the trial courts that have addressed the issue are in disagreement." Id. The
Deptulski court declared that "the better approach is to evaluate the particular allegations of the
complaint, regardless of whether the conduct is an act of commission or omission, and to determine
whether they show facts that 'take on the aspect of highly unreasonable conduct, involving an
extreme departure from ordinary care, in a situation where a high degree of danger is apparent.'"
Id., at *7 (citing DiTeresi v. Stamford Health System, Inc., 142 Conn. App. 72, 90 (2013)).
Utilizing such a fact-specific test, this Court finds that Plaintiff's allegations rise to the level
of describing "highly unreasonable conduct" in a situation where there was indeed "a high degree
of danger" that was apparent. Plaintiffs allege that ACL knew of the serious misleveling problem
and yet allowed the QOW guests to use the elevator, to their peril, without warning of a defect that
9

Summarizing its holding, the Deptulski court stated: "The plaintiff has alleged facts
amounting to nothing more than negligence in Count Two, not recklessness, and simply using the
work reckless does not suffice." 2016 Conn. Super. LEXIS 175, at *6 (emphasis added).
22

would foreseeably result in injury and without making the necessary repair. Guests on an elevator
in a cruise ship are often excited to be aboard and could easily fail to note the misleveling of the
elevator and fall to their injury. A cruise ship that purposely fails to take the necessary steps in
ensure its passengers' safety may be deemed "reckless" in "a situation where a high degree of danger
is apparent." As in Deptulski, this Court rejects defendant ACL's argument that any failure to
inspect or repair fails to rise to the level of recklessness.
In addition, the Court notes that ACL seeks to refute the allegations in Plaintiff's proposed
amended complaint by presenting, interpreting, and/or arguing "facts" its counsel has set forth in its
opposition brief, including, for example, ACL's version of its interactions with Otis in servicing the
elevator. First of all, statements by counsel are not evidence. Second, "the court should not consider
the merits of a claim or defense on a motion to amend unless the amendment is clearly frivolous or
legally insufficient on its face." Sokolski v. Trans Union Corp., 178 F.R.D. 393, 396-97
(E.D.N.Y.1998) (citation and internal quotation marks omitted). See also Schaghticoke Tribal
Nation v. Norton, No. 3:06CV81 PCD, 2007 WL 867987, at *11 (D. Conn. Mar. 19, 2007). The
party opposing a motion for leave to amend has the burden of proving that amendment is futile based
on the allegations in the claim itself, and not by disputing issues of fact.
The Court recognizes that the parties may have disputed issues of material fact to be
examined at summary judgment or resolved in trial. However, on a motion to amend the complaint,
the court's duty is not to resolve disputed factual issues, but rather to determine whether the
allegations set forth in the complaint state a claim upon which relief may be granted. If there is no

23

plausible claim, the amendment is futile.10
As described above, following Iqbal, the Second Circuit has embraced the concept of a
complaint being legally sufficient if it is plausible. See, e.g., Absolute Activist Value Master Fund,
Ltd. v. Ficeto, 677 F.3d 60, 65 (2d Cir. 2012) ("To survive a motion to dismiss [pursuant to 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.”) (citing and quoting Ashcroft v. Iqbal, 556 U.S. 662 (2009)).
Factual disputes do not factor into a plausibility analysis under Iqbal and its progeny. In deciding
whether to dismiss a complaint under Rule 12(b)(6), or to grant leave to file an amended complaint
under Rule 15(a)(2), the Court accepts the truth of well-pleaded factual allegations, and considers
whether they state a claim that is plausible on its face. The facts alleged in Knapp's proposed
amended complaint state plausible claims.
2. Choice Not to Make Repairs
ACL also argues that choosing not to make repairs does not per se equate with recklessness.
In support, ACL cites Jiminez v. American Steak House, LLC, Case No. CV106001715S, 2010
Conn. Super. LEXIS 2965 (Conn. Super. Ct. Nov. 15, 2010). ACL states that in Jiminez, "the
plaintiff alleged that the defendant [restaurant owner]: (1) consciously chose not to inspect the
premises [of its restaurant]; (2) made a willful and conscious decision not to warn customers of the
dangerous condition created by a damaged restaurant booth due to the burden and/or costs associated
10

Even were this a pending motion for summary judgment instead of a motion to amend,
counsel's statements in a brief are not evidence in these proceedings. "Only sworn testimony of
witnesses may comprise evidence, if relevant and admissible." Travelers Indem. Co. v. Excalibur
Reinsurance Corp., No. 3:11-CV-1209 CSH, 2013 WL 4012795, at *1 (D. Conn. Aug. 5, 2013).
See also, e.g., United States v. Milikowsky, 896 F. Supp. 1285, 1311 (D. Conn. 1994), aff'd, 65 F.3d
4 (2d Cir. 1995) (describing as a curative jury instruction: "statements, questions, and arguments
of counsel are not evidence").
24

with presenting such a warning; and (3) made a willful and conscious decision not to repair the
restaurant booth due to the burden and/or costs associated with that repair." Doc. 25, at 12 (citing
Jiminez, 2010 Conn. Super. LEXIS 2965, at *2 n.2). ACL states that nonetheless the defendant's
motion to strike the recklessness count was granted because such allegations that the defendant
sought to avoid costs by tolerating the status quo were insufficient. Id. (citing Jiminez, 2010 Conn.
Super. LEXIS 2965, at *3). ACL thus argues that Plaintiffs' proposed amendment with its
"Defendant-sought-to-avoid-costs" refrain should be stricken as well.
Furthermore, ACL asserts that it did not decide not to repair to avoid costs; rather,
"substantial information provided by Otis . . . amply demonstrates that the Beranger valve presented
no danger to ACL's crew and passengers." Doc. 25, at 12. "If the replacement of this valve was
critical to the safe operation of the elevator, surely Otis would have mentioned it when its 'crew was
on-site th[e] week [of March 2017],' and when it proposed other preventative maintenance or
certification work in January and March 2017." Id., at 13.
The Court finds that as in Deptulski, the plaintiff in Jimenez inserted the exact same
allegations in both her negligence and recklessness claims. The Jimenez court thus agreed with the
defendant that the "plaintiff cannot transform a negligence count into a count for wilful and wanton
misconduct merely by appending a string of adjectives to allegations that clearly sound in
negligence." 2010 Conn. Super. LEXIS 2965, *2.
In addition, with respect to expenditure of costs on repairs, the Jimenez court held that it did
not accept that "a decision to avoid costs by tolerating the status quo is ipso facto a reckless decision,
such that an injury resulting from it must be practically considered intentional." Id. In other words,
not all decisions to maintain the status quo regarding repairs are reckless. "Recklessness requires
25

a conscious choice of a course of action either with knowledge of the serious danger to others
involved in it or with knowledge of facts which would disclose this danger to any reasonable man,
and the actor must recognize that his conduct involves a risk substantially greater . . . than that which
is necessary to make his conduct negligent."11 Id.
Here, Plaintiffs have alleged facts to support recklessness which go beyond those stated in
their negligence account. See Part II.B.3., supra. Moreover, ACL once again attempts to refute the
allegations of Plaintiffs' proposed claim of recklessness with conflicting factual assertions by its
counsel in its opposition brief. Such statements do not comprise evidence. If there is admissible
evidence to back them, that evidence must be presented at the proper time and in the proper context
– either upon summary judgment, following full discovery, or at trial.

11

The alleged danger in the Jimenez case, the restaurant booth, had a detached piece at the
bottom. When the plaintiff, who had been sitting in the booth, got up to leave, she caught the bottom
of her foot on the detached piece and fell, causing her serious and painful injuries. Plaintiff premised
her recklessness claim against the defendant restaurant owner on an alleged decision to avoid costs
by leaving the restaurant booth in its status quo, instead of repairing or replacing it. See Jiminez,
2010 Conn. Super. LEXIS 2965, *2 . She thus stated that her fall was due to the "willful, wanton,
and reckless conduct of the defendant" in failing to inspect the premises and in making the conscious
decision not to warn customers of the damaged booth and/or not to repair the booth due to costs
associated with warning and/or repair. Id., at *2 n.2. Plaintiff Jimenez did not, however, allege facts
to demonstrate that defendant actually knew of the existing hazard with respect to this booth and
failed to make it safe. Rather, she incorporated her negligence allegations – that defendant "knew
or should have known" of the defect – but failed to plead "knowledge of a serious danger to others."
Id., at *2 (citation omitted) & n.1. As the Jiminez court stated, to be reckless, a defendant must
actually know of the dangerous condition and make "a conscious choice of a course of action" as to
a "serious danger to others." Id., at *2. Under the facts alleged in Jiminez, failure to repair was thus
insufficient to plead "highly unreasonable conduct involving an extreme departure from ordinary
care." Id. The allegations regarding cost of repair and tolerance of the "status quo" failed to show
that an injury resulting from the failure to repair "must be practically considered intentional." Id.,
at *3 (citation omitted). The court thus struck the restlessness claim, which left the negligence claim
to proceed. Id.
26

3. Waiver of Punitive or Consequential Damages
In addition, in opposing Plaintiffs' proposed "recklessness" amendments, ACL claims that
Plaintiffs have contracted away their right to sue for consequential or punitive damages.12 In its
opposition, ACL thus states that "[a]ny potential amendment of the complaint would be futile
because Plaintiffs waived any claim they have for consequential or punitive damages." Doc. 25, at
13. ACL asserts that when the Plaintiffs purchased their tickets for their trip aboard the QOW, they
entered into a contract with ACL regarding "Terms & Conditions of Passage." Id. Included in that
contract's terms and conditions was a "LIMITATION OF LIABILITY" provision, stating: "Passenger
WAIVES all claims for consequential or punitive damages." Id. According to ACL, the Knapps
were "expressly notified of this provision before they purchased their tickets and received a printed
copy of ACL's terms and conditions months before [their] cruise on the QOW." Id. ACL asks the
Court to interpret this "clear and unambiguous" contract to "give effect according to its terms." Id.
(citation omitted).
The fact that ACL alleges contractual waiver does not negate Plaintiffs' right to amend their
complaint. Plaintiffs may state any plausible claims; and then ACL may answer or respond,
presenting whatever defenses it may have to such claims. Under Connecticut law, the affirmative
defense of "[w]aiver is defined generally as 'the voluntary relinquishment of a known right.'" RBC
Nice Bearings, Inc. v. SKF USA, Inc., 318 Conn. 737, 748 (2015) (quoting MacKay v. Aetna Life
Ins. Co., 118 Conn. 538, 547 (1934)). Therefore, whether the Knapps contractually waived their
rights to recover certain damages may involve issues of fact, such as whether they intended to
12

ACL does not specify whether this argument is directed solely to the Fourth Count or also
encompasses the derivative Fifth and Sixth Counts. Regardless of that designation, the Court's
analysis of the argument is unaltered.
27

voluntarily relinquish these rights. It is not the Court's function to resolve such factual disputes with
respect to the plausibility of a claim on a motion to amend. Unlike cases of res judicata, statute of
limitations, collateral estoppel, or statutory waiver, where the defense appears on the face of the
complaint, the district court cannot dismiss a proposed amendment on facts outside the complaint.
As in a motion to dismiss, the court may only consider allegations in the complaint, documents
attached or incorporated into the complaint, and matters of public record. See generally 5A C.
Wright and A. Miller, Federal Practice and Procedure: Civil § 1364, 475-80 (1990). See also, e.g.,
Coal. for Competitive Elec., Dynergy Inc. v. Zibelman, No. 17-2654-CV, 2018 WL 4622696, at *3
(2d Cir. Sept. 27, 2018) ("For Rule 12(b)(6) purposes, the complaint include[s] any written
instrument attached to it as an exhibit or any statements or documents incorporated in it by
reference.") (citation and internal quotation marks omitted).
Following Iqbal, the Second Circuit has embraced the concept of a complaint being legally
sufficient if it is plausible. See, e.g., Absolute Activist Value Master Fund, Ltd., 677 F.3d at 65. The
court decides whether the plaintiff has stated a valid claim under any possible theory, accepting the
allegations as true and construing all reasonable inferences in the plaintiff's favor. A factual dispute
regarding the existence of a potential defense does not factor into this plausibility analysis.
Here, the facts alleged in the Knapp's proposed amended complaint state plausible claims.
ACL may later plead and present evidence of its affirmative defense regarding contractual waiver.13
13

With respect to ACL's proposed waiver defense, however, the Court notes that once ACL
presents the contract at issue as evidence of its defense, there will be legal issues to be resolved. For
example, in addition to contract interpretation, there is the potential applicability of a federal statute,
46 U.S.C. § 30509(a). With respect to vessels, Section 30509(a) generally prohibits "[t]he owner,
master, manager, or agent of a vessel transporting passengers between ports in the United States, or
between a port in the United States and a port in a foreign country," from including in a "contract
a provision limiting the liability of the owner, master, or agent for personal injury or death caused
28

4. Plaintiffs' Proposed Derivative Claims
As set forth supra, Plaintiffs have proposed two new claims in the Fifth and Sixth Counts
that derive from their recklessness claim: bystander emotional distress and loss of consortium. ACL
opposes the addition of those claims, asserting in a footnote that Plaintiffs' proposed "'derivative'
counts (Counts 5 and 6 of the proposed Amended Complaint) merely repeat, word for word, Counts
2 (Bystander Emotional Distress) and 3 (Loss of Consortium)." Doc. 25, at 5 n.1. ACL concludes
that, "[a]s simply duplicative counts, with no additionally pled facts, the Court should deny Plaintiffs'
motion to add such claims." Id. In other words, ACL alleges that these claims are futile, failing
to state claims upon which relief may be granted.
a. Bystander Emotional Distress
Comparing Plaintiffs' Second and Fifth Counts for "bystander emotional distress," the Court
finds that they are not actually identical. The claim in the Second Count is based upon, and
incorporates by reference, the factual allegations which give rise to Plaintiffs' negligence claim. See
Doc. 21, at 16 (¶¶ 35-68) ("Second Count," incorporating by reference "Paragraphs 1 through 34 of
the First Count"). In contrast, the Fifth Count, also based on "Bystander Emotional Distress,"

by the negligence or fault of the owner or the owner's employees or agents." See, e.g., Johnson v.
Royal Caribbean Cruises, Ltd., 449 F. App'x 846, 847 (11th Cir. 2011) (holding that pursuant to
§ 30509, passenger's "waiver of liability" was void with respect to her claim that cruise ship's
negligence resulted in her personal injury).
Furthermore, even outside the maritime context, a contract between a carrier and passengers
may be deemed an invalid "adhesion contract" where the contract is "formed as a 'product of a gross
inequality of bargaining power' between parties." Klos v. Lotnicze, 133 F.3d 164, 168 (2d Cir. 1997)
(quoting Aviall, Inc. v. Ryder Sys., Inc., 913 F. Supp. 826, 831 (S.D.N.Y. 1996)). Such contracts are
generally unenforceable as "offend[ing] basic notions of civility and fair play," a concept that
"evolved from public policy." Id. at 168.
29

incorporates by reference the factual allegations giving rise to the "recklessness" claim in the Fourth
Count. Id., at 22 (¶¶ 152-95) ("Fifth Count," incorporating by reference "Paragraphs 108 through
151 of the Fourth Count"). Therefore, the Fifth Count alleges that ACL's recklessness, as opposed
to its negligence, led to Beverly's losses due to bystander emotional distress.
The Connecticut state law claim for "bystander emotional distress" has been defined as "a
derivative claim, pursuant to which a bystander who witnesses another person (the primary victim)
suffer injury or death as a result of the negligence of a third party seeks to recover from that third
party for the emotional distress that the bystander suffers as a result."14 Squeo v. Norwalk Hospital
Assn., 316 Conn. at 564, 113 A.3d 932 (emphasis added). Alternatively, such a claim may be based
on the reckless, as opposed to negligent, injury of the primary victim, which causes the bystander
witness to suffer emotional distress. See, e.g., Craig, 64 Conn. App. at 721-22 (holding that mother
and brother stated causes of action for negligent and reckless infliction of bystander emotional
distress, finding that plaintiffs "may claim alternative relief") (emphasis added).
Consequently, depending on the particular allegations of the complaint, a plaintiff may bring
a claim in one count for "negligent infliction of bystander emotional distress" and a second count for
14

In Clohessy v. Bachelor, 237 Conn. 31, 56 (1996), the Connecticut Supreme Court
delineated the required elements of "bystander emotional distress" as follows:
To summarize, we conclude that a bystander may recover damages for emotional
distress under the rule of reasonable foreseeability if the bystander satisfies the
following conditions: (1) he or she is closely related to the injury victim, such as the
parent or the sibling of the victim; (2) the emotional injury of the bystander is caused
by the contemporaneous sensory perception of the event or conduct that causes the
injury, or by arriving on the scene soon thereafter and before substantial change has
occurred in the victim's condition or location; (3) the injury of the victim must be
substantial, resulting in his or her death or serious physical injury; and (4) the
bystander's emotional injury must be serious, beyond that which would be anticipated
in a disinterested witness and which is not the result of an abnormal response.
30

"reckless infliction of bystander emotional distress." Such claims are based on different, alternative
theories so are not duplicative. In discussing two such bystander emotional distress claims, the
Appellate Court of Connecticut explained in Craig v. Driscoll, 64 Conn. App. 699 (2001), aff'd, 262
Conn. 312 (2003):
We conclude that the allegations of [recklessness in] counts four and six go beyond
the allegations of carelessness and negligence alleged in counts three and five.
Counts four and six, therefore, allege a separate cause of action. Whether the
evidence will support a reckless cause of action is not to be decided here. See DeVita
v. Esposito, 13 Conn.App. 101, 105, 535 A.2d 364 (1987) (alternative pleading
justified when pleader does not know all facts necessary to make election), cert.
denied, 207 Conn. 807, 540 A.2d 375 (1988). The question is whether the complaint
states a cause of action. We conclude that counts four and six state a cause of action,
that a jury should determine whether the defendants proximately caused the plaintiffs'
injuries and, if so, whether their acts were reckless or merely negligent.
44 Conn. App. at 722.
In the present case, as in Craig, the claim in the proposed Fifth Count includes facts that "go
beyond the allegations of carelessness and negligence" alleged in the Second Count for negligent
"bystander emotional distress claim." 64 Conn. App. at 722. The Fifth Count is thus not duplicative.
Should ACL wish to challenge the merits of either of the Second or Fifth Counts, it may do so at
summary judgment or in trial.
b. Loss of Consortium
As to the Third and Sixth Counts, these two claims seek recovery for "loss of consortium,"
based on ACL's negligence and recklessness, respectively. Again, the earlier claim, the Third Count.
incorporates the negligence allegations in Paragraphs 1 through 34 of the First Count; and the
proposed Sixth Count incorporates the allegations of recklessness in Paragraphs 108 to 151 of the
Fourth Count. See Doc. 21, at 17 (¶¶ 73-106); id., at 23 (¶¶ 200-43). These claims are thus not

31

identical, but rather alternative theories of recovery.
Loss of consortium was first recognized as a cause of action in Connecticut for both spouses
in Hopson v. St. Mary's Hospital, 176 Conn. 485, 494-96 (1979); and the term "consortium"
generally encompasses "the services and the financial support of a spouse" and a "variety of
intangible relations which exist between spouses living together in marriage," 176 Conn. 487. The
intangible elements include, for example, "affection, society, companionship and sexual relations.”
Id. Like a "bystander emotional distress" claim, loss of consortium is a derivative cause of action
"dependent on the legal existence of the predicate action." Cavallaro v. Hospital of St. Raphael, 92
Conn. App. 59, 62, n. 5 (2005) (internal quotation marks omitted), cert. denied, 276 Conn. 926
(2005).
In the Third Count, the action is predicated on ACL's negligence in causing harm to Plaintiff
Beverly Knapp's husband; and in the Sixth count, the action is predicated on ACL's recklessness in
causing those injuries. The Third and Sixth Counts thus comprise alternative theories of liability so
are not duplicative in their allegations. For this reason, the Court will allow them to proceed. They
are not futile.
Furthermore, the Court notes that as to the proposed derivative claims in the Fifth and Sixth
Counts, ACL has presented no legal support for its argument to dismiss them. ACL merely declares
them "duplicative." If a party's position is "not sufficiently supported legally or factually to enable
the Court to assess its merits," the Court may not base a ruling on that asserted position. See, e.g.,
Country Club of Fairfield, Inc. v. New Hampshire Ins. Co., No. 3:13-CV-00509 (VLB), 2014 WL
3895923, at *8 (D. Conn. Aug. 8, 2014); see also D. Conn. L. R. 7(a) ("Any motion involving
disputed issues of law shall be accompanied by a memorandum of law" and "[f]ailure to submit a
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required memorandum may be deemed sufficient cause to deny the motion"). A memorandum with
assertions unsupported by law cannot properly be characterized as a "memorandum of law."
In sum, defendant ACL has failed to sustain its burden of proving futility of these derivative
claims. Having found that none of the claims in the proposed amended portion of the complaint is
futile, the Court will grant the Plaintiff's motion to amend [Doc. 21].
D. Parties' Joint Motion to Stay Proceedings in Aid of Mediation
The parties have jointly moved for a one hundred twenty (120) day stay of all pretrial
deadlines to enable the parties to "pursue private mediation of the issues raised in this litigation."
Doc. 31, at 1. The parties represent that the case is "scheduled to be mediated with the Honorable
Anthony Robaina (Retired) on November 1, 2018, in Hartford, Connecticut." Id., at 3.
As the parties assert, the district court has the inherent, discretionary authority to issue stays
in many circumstances, including when appropriate to permit the parties to participate in mediation."
Id. (citing Avdanced Bodycare Solutions, LLC v. Thione Int'l, Inc., 524 F.3d 1235, 1241 (11th Cir.
2009)). See also Landis v. N. Am. Co., 299 U.S. 248, 254 (1936) ("[T]he power to stay proceedings
is incidental to the power inherent in every court to control the disposition of the causes on its docket
with economy of time and effort for itself, for counsel, and for litigants.").
In the case at bar, the parties believe that "the granting of the requested stay will serve the
interests of both judicial economy, as well as economy of the parties' time and effort." Id. At this
time, the Knapps, ACL, and Otis are all "willing to mediate their disputes without the need for
engaging in additional formal discovery."

Id. In particular, the stay will potentially avoid the

"distraction and expense of discovery," such as depositions in Oregon, Florida, Maryland and
Connecticut. Id., at 3-4. Moreover, the private mediation in Connecticut may successfully resolve
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the litigated matter so that it may "potentially obviate the need for the resumption of the instant
litigation." Id., at 4.
Based on the parties' representations, the Court concurs that the stay is in the interests of
justice, preventing further expense to the parties during and leading up to the mediation. It will
enable the parties to adequately prepare for, and fully participate in, the scheduled mediation. The
Court will extend the deadlines as set forth infra.
III.

CONCLUSION

For the reasons previously discussed, Plaintiffs' "Motion to Amend the Complaint" [Doc.
21] is hereby GRANTED in its entirety. Plaintiffs must file and serve their proposed "Amended
Complaint" on or before October 31, 2018. Upon filing, this pleading shall become Plaintiffs'
operative complaint against ACL in this action and should be so addressed in the upcoming
scheduled mediation on November 1, 2018.
In addition, the parties' "Joint Motion to Stay Proceedings in Aid of Mediation" [Doc. 31]
is hereby GRANTED. As requested by all parties, in recognition that the case may remain pending
following the November 1, 2018, mediation, the Court sets the following revised case deadlines.
The Defendants must answer or respond to the Amended Complaint on or before November 30,
2018. All discovery shall be completed by August 28, 2019. Dispositive motions must be filed on
or before September 30, 2019, or within thirty (30) days after the close of discovery, whichever is
later. The parties' joint trial memorandum is due on or before October 29, 2019, or within thirty (30)
days after the Court rules on the last-filed dispositive motion, whichever is later. The case shall be
trial ready on December 2, 2019, or within thirty (30) days after the joint trial memorandum is filed,
whichever is later.
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In addition, the parties are hereby ORDERED to file a joint status report within fourteen (14)
days after the close of the November 1, 2018, mediation – on or before November 15, 2018.
The foregoing is SO ORDERED.
Signed: New Haven, Connecticut
October 23, 2018
/s/Charles S. Haight, Jr.
CHARLES S. HAIGHT, JR.
Senior United States District Judge

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