Rhodes et al v. Lazy Flamingo 2, Inc.
Filing
36
OPINION AND ORDER denying 30 Motion to Dismiss 32 Amended Complaint. Signed by Judge John E. Steele on 7/21/2015. (RKR)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
VINCENT J. RHODES and DIANA
RHODES,
Plaintiffs,
v.
Case No: 2:14-cv-561-FtM-29CM
LAZY FLAMINGO 2, INC.,
Defendant.
OPINION AND ORDER
This matter comes before the Court on review of Defendant’s
Motion to Dismiss Plaintiffs' Amended Complaint (Doc. #30) filed
on February 12, 2015.
February 26, 2015.
Plaintiff filed a Response (Doc. #33) on
For the reasons set forth below, the motion is
denied.
I.
On February 25, 2015, Plaintiffs Vincent and Diana Rhodes
filed a four-count Amended Complaint (Doc. #32) against Defendant
Lazy Flamingo 2, Inc. (Flamingo).
Taking the allegations as true,
Flamingo operates a restaurant known as the Lazy Flamingo on
Sanibel Island, Florida.
(Id. ¶ 2.)
Plaintiffs vacationed in
Florida on the afternoon of July 14, 2012.
(Doc. #32, ¶ 7.)
On
that day, Plaintiffs dined at the Lazy Flamingo, where Vincent
Rhodes (Rhodes) ordered and consumed raw oysters on the half-
shell.
(Id. ¶ 8.)
According to Plaintiffs, Flamingo failed to
warn them of the risks associated with consuming raw oysters, as
required by Fla. Stat. §§ 381.001, 384.25, and Fla. Admin. Code
Ann. r. § 64D-3.040 (Section 64D).
(Doc. #32, ¶¶ 9-11.)
These
risks included an increased chance of serious illness in those
suffering from chronic illness of the liver.
(Id.)
At the time,
Rhodes suffered from chronic liver disease (id. ¶ 13), and “had a
liver transplant” (id. ¶ 14).
The
oysters
Rhodes
consumed
at
the
Lazy
Flamingo
were
contaminated with the bacterium Vibrio vulnificus, and Rhodes
became ill within hours of eating them.
(Id. at ¶¶ 17, 18.)
By
the end of the following day, Rhodes displayed many food-poisoning
symptoms, including diarrhea, dehydration, cramping, fever, and
chills.
(Id. ¶ 19.)
Rhodes went to Health Park Medical Center in
Fort Myers, Florida for treatment. He was admitted and spent three
days in the intensive care unit.
(Id. ¶¶ 20-23.)
Rhodes remained
hospitalized for two additional days and was released on July 20,
2012.
(Id.)
The hospital staff determined a severe infection due
to the Vibrio vulnificus bacterium caused Rhodes’ illness.
(Id.
¶ 23.)
Based on these allegations, Plaintiffs seek damages against
Flamingo for negligence per se (Count I), negligence (Count II),
strict liability (Count III), and breach of warranty (Count IV).
(Doc. #31, ¶¶ 26-47).
Flamingo moves to dismiss, arguing that (1)
2
Plaintiffs improperly rely upon a duty created by a Florida statute
that was not in effect when Rhodes consumed the oysters; and (2)
the oysters served by Flamingo were not unreasonably dangerous.
(Doc. #30, pp. 2-5.)
II.
Under Federal Rule of Civil Procedure 8(a)(2), a Complaint
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).
This obligation “requires 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)(citation
omitted).
To survive dismissal, the factual allegations must be
“plausible” and “must be enough to raise a right to relief above
the speculative level.”
Id. at 555.
See also Edwards v. Prime
Inc., 602 F.3d 1276, 1291 (11th Cir. 2010).
than
an
unadorned,
This requires “more
the-defendant-unlawfully-harmed-me
accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)(citations
omitted).
In deciding a Rule 12(b)(6) motion to dismiss, the Court must
accept all factual allegations in a complaint as true and take
them in the light most favorable to plaintiff, Erickson v. Pardus,
551 U.S. 89 (2007), but “[l]egal conclusions without adequate
factual support are entitled to no assumption of truth,”
v.
Berzain,
654
F.3d
1148,
1153
3
(11th
Cir.
Mamani
2011)(citations
omitted).
“Threadbare recitals of the elements of a cause of
action, supported by mere conclusory statements, do not suffice.”
Iqbal, 556 U.S. at 678.
consistent
with
a
defendant’s
facially plausible.”
1337
(11th
omitted).
Cir.
“Factual allegations that are merely
liability
fall
short
of
being
Chaparro v. Carnival Corp., 693 F.3d 1333,
2012)(internal
quotation
marks
and
citations
Thus, the Court engages in a two-step approach: “When
there are well-pleaded factual allegations, a court should assume
their veracity and then determine whether they plausibly give rise
to an entitlement to relief.”
Iqbal, 556 U.S. at 679.
III.
A.
Count I
In
Count
I,
Plaintiffs
claim
that
Flamingo
was
per
se
negligent in failing to warn them of the health risks associated
with consuming raw oysters.
(Doc. #32, ¶¶ 26-31.)
Under Florida
law, a claim for negligence per se requires “a violation of a
statute which establishes a duty to take precautions to protect a
particular class of persons from a particular injury or type of
injury.”
Liese v. Indian River Cnty. Hosp. Dist., 701 F.3d 334,
353 (11th Cir. 2012).
The statutory duty alleged by Plaintiffs
is Section 64D, Fla. Admin Code, which provides that all food
service establishments serving raw oysters display, either on
menus or placards, the following notice: “Consumer Information:
There is risk associated with consuming raw oysters. If you have
4
chronic illness of the liver stomach or blood or have immune
disorders, you are at a greater risk of serious illness from raw
oysters, and should eat oysters fully cooked. If unsure of your
risk, consult a physician.”
(2008).
Although
not
part
Fla. Admin. Code Ann. r. § 64D-3.040
of
the
negligence
per
se
claim,
Plaintiffs also allege Fla. Admin Code Ann. r. § 61C-4.010(8)
(Section 61C) was adopted to warn those consuming raw oysters of
the risk of severe Vibrio vulnificus infections.
(Doc. #32, ¶
23.)
Flamingo moves to dismiss Plaintiffs’ cause of action for
negligence per se, arguing that Plaintiffs have not adequately
alleged a statutory duty to warn because Section 61C was not in
effect at the time Rhodes consumed the oysters.
(Doc. #30, p. 3.)
While Flamingo is correct that Section 61C was not in effect at
the time, Plaintiffs do not rely on Section 61C to form the basis
of their count.
Instead, Plaintiffs claim a duty to warn was
required by Section 64D.
(Doc. #32, ¶ 11.)
Section 64D, which
was last amended November 24, 2008, was in effect when Rhodes
consumed the oysters. Fla. Admin. Code Ann. r. § 64D-3.040 (2008).
Therefore, the Court concludes that Plaintiffs have adequately
alleged the existence of a statutory duty. Flamingo’s motion to
dismiss on the basis of this argument is denied.
5
B.
Counts II-IV
Plaintiffs
seek
damages
against
Flamingo
for
negligence
(Count II), strict liability (Count III), and breach of warranty
(Count IV).
Plaintiffs’ causes of action are each premised on
their allegation that oysters contaminated with Vibrio vulnificus
are unreasonably dangerous. Flamingo moves to dismiss these causes
of action arguing that Plaintiffs’ allegation is conclusory and
inadequate.
allege
that
(Doc. #30, p. 3.)
the
oysters
The Court disagrees.
served
to
Rhodes
were
Plaintiffs
unreasonably
dangerous because they were contaminated with Vibrio vulnificus.
(Doc. #32, ¶¶ 34, 38, 46.)
Further, Plaintiffs point to Section
61C, and allege that it was specifically adopted to warn those
consuming raw oysters of the risk of severe Vibrio vulnificus
infections.
(Id. ¶ 23.)
The Court finds that Plaintiffs have
provided sufficient factual support to plausibly allege that the
oysters consumed by Rhodes were unreasonably dangerous.
In the alternative, Flamingo moves to dismiss these causes of
action arguing that oysters contaminated with Vibrio vulnificus
are not unreasonably dangerous as a matter of law.
4-5.)
(Doc. #30, pp.
In support, Flamingo points to Bissinger v. New Country
Buffet, No. M2011-02183-COA-R9-CV, 2014 WL 2568413 (Tenn. Ct. App.
June 6, 2014), Simeon v. Doe, 618 So. 2d 848 (La. 1993), and
Bergeron v. Pacific Fodo, Inc., 2011 WL 1017872 (Conn. 2011).
(Id.)
However, these cases are not binding on the Court.
6
Flamingo
does not cite, and the Court is unaware of any Florida precedent
holding
that
bacteria
are
oysters
not
contaminated
unreasonably
with
dangerous
the
as
Vibrio
a
vulnificus
matter
of
law.
Further, the cases Flamingo cites rule on motions for summary
judgment and a motion for judgment as a matter of law following
the conclusion of a plaintiff’s case at trial.
Flamingo has
provided no case law in which such a determination was made in the
context of a motion to dismiss, where the Court must accept
plaintiff’s factual allegations as true.
Therefore, the Court
finds that these cases are not applicable, and Flamingo’s motion
to dismiss on this basis is denied.
Accordingly, it is now
ORDERED:
Defendant’s Motion to Dismiss Plaintiffs' Amended Complaint
(Doc. #30) is DENIED.
DONE AND ORDERED at Fort Myers, Florida, this
July, 2015.
Copies:
Counsel of record
7
21st
day of
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