Blair v. NCL (Bahamas) LTD. et al
Filing
36
ORDER GRANTING IN PART MOTION TO DISMISS AMENDED COMPLAINT. Defendant's Motion to Dismiss Plaintiff's Amended Complaint DE 24 is GRANTED in part and DENIED in part. The allegations about non-pecuniary damages incurred by Plaintiff and her children are STRICKEN from Counts I, II, and III. Count VI is DISMISSED without prejudice. Counts IX and XI are DISMISSED with prejudice. Count X is DISMISSED with prejudice in part. The portion of Count X based on B.B.'s emotional distr ess arising from witnessing the delayed and inadequate medical care K.A.B. received and from witnessing K.A.B.'s death are DISMISSED with prejudice. The Motion is DENIED in all other respects. Plaintiff shall file a second amended complaint in accordance with this Order by October 7, 2016. (Amended Pleadings due by 10/7/2016). Signed by Judge Patricia A. Seitz on 9/29/2016. (mc)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
CASE NO. 16-21446-CIV-SEITZ/TURNOFF
COLLEEN BLAIR, ET AL.,
Plaintiff,
vs.
NCL (BAHAMAS) LTD., ET AL.,
Defendant.
------------------------~/
ORDER GRANTING IN PART MOTION TO DISMISS AMENDED COMPLAINT
THIS MATTER is before the Court on Defendant's Motion to Dismiss Plaintiffs
Amended Complaint [DE-24]. This action arises from the drowning and near-drowning of two
children aboard Defendant NCL (Bahamas) Ltd.'s ship. Plaintiff, Colleen Blair, is the mother of
the two children and another child who witnessed the events. Plaintiff has sued NCL (Bahamas)
Ltd. ("NCL") and the ship's medical personnel in a nine count Amended Complaint. 1 NCL is a
defendant in all counts except Counts IV and V, which are exclusively against the medical
personnel defendants. NCL now seeks to dismiss all counts against it pursuant to Federal Rule
of Civil Procedure 12(b)( 6). While the Death on the High Seas Act is the exclusive remedy for
Plaintiffs child's death, the Act does not preclude Plaintiffs separate emotional distress claims.
However, for the reasons set forth below, Plaintiffs intentional infliction of emotional distress
claims (Count VI) are dismissed without prejudice, Plaintiffs negligent infliction of emotional
distress claims brought on behalf of herself and her child not directly involved in the incident
(Counts IX and XI) are dismissed with prejudice, and the allegations of non-pecuniary damages
1
Due to an apparent numbering error, the Amended Complaint contains Counts I, II, III,
IV, V, VI, IX, X, and XL There is not a Count VII or VIII. The Court will refer to the counts by
the numbers Plaintiff used.
Plaintiff incurred are stricken from Counts I, II, and III as irrelevant.
I.
The Amended Complaint
Plaintiff, Colleen Blair brings this action on behalf of herself, individually; as personal
representative of the estate of her deceased minor child, K.A.B.; and as parent and guardian of
her two surviving minor children, K.B. and B.B. In May 2015, Plaintiff and her three children
were passengers aboard NCL's ship, the Norwegian Gem.
While on board, Plaintiff and the children went to one of the ship's pools. Plaintiff
briefly lost sight ofK.A.B. and B.B. while they were in the pool. (Am Compl.
~20.)
The next
thing she knew, Plaintiffs children K.A.B. and B.B. were being pulled out of opposite ends of
the pool by other passengers. (Jd.) K.A.B.'s body was lifeless and passengers began yelling for
medical equipment and staff. Approximately 10 minutes after the drowning occurred, a bag of
medical equipment arrived on the scene. However, the bag lacked proper and/or working
medical equipment to aid in the resuscitation efforts of K.A.B. The bag contained a suction
device that did not work and by the time NCL medical personnel arrived on the scene, nearly 15
minutes after K.A.B. was pulled from the pool, it was too late to use the automated external
defibrillator because K.A.B. no longer had a pulse. Because of the delay in NCL medical
personnel arriving on scene, passengers with medical backgrounds began resuscitation attempts
on K.A.B. While K.A.B. died as a result of the drowning, B.B. did not sustain any serious
physical injuries. Plaintiff, B.B., and K.B. witnessed the other passengers' attempts to save
K.A.B. and the death ofK.A.B. (Am Compl.
~23.)
Plaintiff maintains that NCL advertises its cruises as "family friendly" and "kid friendly."
Despite this, NCL does not have lifeguards who monitor the pool area. Further, NCL does not
2
keep lifesaving equipment at or near the pool area in case of an emergency. Nor does NCL staff
the pool area with people trained in dealing with medical emergencies.
Counts 1-V are all brought pursuant to the Death on the High Seas Act ("DOHSA").
Plaintiffs first count alleges negligence against NCL. Count II alleges negligence against NCL
based on a theory of respondeat superior for the alleged negligence of the medical defendants.
Count III alleges negligence against NCL for the acts of the medical defendants based on
apparent agency. Counts IV and V allege negligence against the medical defendants. Count VI,
directed against all Defendants, is a claim for intentional infliction of emotional distress incurred
by Plaintiff, B.B., and K.B. Count IX is Plaintiffs claim against all Defendants for negligent
infliction of emotional distress. Count X is brought on B.B.' s behalf for negligent infliction of
emotional distress against all Defendants, and Count XI is brought on K.B. 's behalf for negligent
infliction of emotion distress against all Defendants.
NCL's motion seeks to dismiss all claims against it or, in the alternative, to strike certain
portions of the pleading.
II.
Motion To Dismiss Standard
The purpose of a motion to dismiss filed pursuant to Federal Rule of Civil Procedure
12(b)( 6) is to test the facial sufficiency of a complaint. The rule permits dismissal of a complaint
that fails to state a claim upon which relief can be granted. It should be read alongside Federal
Rule of Civil Procedure 8(a)(2), which requires a "short and plain statement ofthe claim showing
that the pleader is entitled to relief." Although a complaint challenged by a Rule 12(b)(6) motion
to dismiss does not need detailed factual allegations, a plaintiff is still obligated to provide the
"grounds" for his entitlement to relief, and a "formulaic recitation of the elements of a cause of
3
action will not do." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007).
When a complaint is challenged under Rule 12(b)( 6), a court will presume that all
well-pleaded allegations are true and view the pleadings in the light most favorable to the
plaintiff. American United Life Ins. Co. v. Martinez, 480 F.3d 1043, 1066 (11th Cir. 2007).
However, once a court "identifies pleadings that, because they are no more than conclusions, are
not entitled to the assumption of truth," it must determine whether the well-pled facts "state a
claim to relief that is plausible on its face." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). A
complaint can only survive a 12(b)(6) motion to dismiss if it contains factual allegations that are
"enough to raise a right to relief above the speculative level, on the assumption that all the
[factual] allegations in the complaint are true." Twombly, 550 U.S. at 555. However, a well-pled
complaint survives a motion to dismiss "even if it strikes a savvy judge that actual proof of these
facts is improbable, and 'that a recovery is very remote and unlikely."' Twombly, 550 U.S. at
556.
III. Discussion
NCL moves to dismiss all counts against it based on four reasons: (1) DOHSA is the
exclusive remedy for the death ofK.A.B.; (2) claims for non-pecuniary damages, including
punitive damages, are barred by DOHSA; (3) NCL's actions were not extreme and outrageous
and therefore Plaintiff cannot establish a necessary element of her intentional infliction of
emotional distress claims; and (4) neither Plaintiff nor her surviving children were within the
"zone of danger" and therefore Plaintiff cannot establish a necessary element of the negligent
infliction of emotional distress claims. The Court will address each of these arguments.
4
A.
DOHSA is the Exclusive Remedy for K.A.B.'s Death But Does Not Preclude
Plaintifrs Emotional Distress Claims
NCL moves to dismiss all non-DOHSA claims against it because DOHSA is the
exclusive remedy available to Plaintiff to recover for K.A.B. 's death. Neither party disputes that
"where a cause of action exists for wrongful death under DOHSA, no additional action exists
under general maritime law for wrongful death caused by negligence." See Ford v. Wooten, 681
F.2d 712, 716 (11th Cir. 1982). NCL argues that all of Plaintiffs additional claims for emotional
damages are based on K.A.B.'s death and are, therefore, precluded by DOHSA. Plaintiff
maintains that her four emotional distress causes of action allege claims separate and apart from
wrongful death. Plaintiff maintains that her emotional distress claims are not barred by DOHSA
because they are for the emotional distress suffered by Plaintiff and her surviving minor children
as a result of Defendants' actions, not for the emotional distress caused by K.A.B.'s death.
While it is clear that DOHSA forecloses any type of wrongful death claim, it is not as
clear that it forecloses all claims for emotional distress related to a death. The authorities on this
issue are limited and the Eleventh Circuit has not ruled on this issue. Two of the cases NCL
relies on are inapplicable to the facts before this Court. In Rux v. Republic of Sudan, 495 F.
Supp. 2d 541 (E.D. Va. 2007), the plaintiffs' emotional distress claims were dismissed where the
plaintiffs' distress was brought on by learning of their loved ones' death aboard the U.S.S. Cole;
they had not been physically present at the time and place of the deaths. Similarly, the plaintiffs'
motion to amend to add a claim for emotional distress was denied in Howard v. Crystal Cruises,
Inc., 1992 A.M. C. 1645 (E.D. Ca. 1992), where the claim apparently was based on the emotional
distress incurred as a result of a death. Thus, in both these cases, the emotional distress for
5
which the plaintiffs sought recovery was the emotional distress incurred as the result of learning
of a loved one's death.
In contrast, the court in Ostrowiecki v. Aggressor Fleet, Ltd., 2008 U.S. Dist. LEXIS
62713 (E.D. La. 2008), permitted the plaintiffs to proceed on their emotional distress claims
because their emotional distress was not caused by the same negligent actions that caused the
decedent's death. The court held that not allowing the claims to proceed would "enable
defendants to escape liability for any emotional distress inflicted in the wake of a death on the
high seas." !d. at *28. In Smith v. Carnival Corp., 584 F. Supp. 2d 1343 (S.D. Fla. 2008), the
court held that DOHSA did not preempt emotional distress claims. While the Smith court held
that the plaintiffs could pursue emotional distress claims based on the same negligent actions that
led to the decedent's death, the claims were dismissed with leave to replead. The Smith court
held that DOHSA did not foreclose the plaintiffs from pursuing emotional distress claims based
on the distress the plaintiffs suffered from witnessing the decedent's death. Thus, under Smith,
the plaintiffs could pursue both a DOHSA claim and emotional distress claims based on the same
negligent actions. Martins v. Royal Caribbean Cruises, Ltd., 2016 A.M.C. 873 (S.D. Fla. 2016),
followed Smith and permitted emotional distress claims to proceed based on the same negligent
actions underlying the plaintiffs' DOHSA claim.
Here, unlike in Rux and Howard, it appears that Plaintiff seeks to recover for the
emotional distress she and her surviving children incurred not as a result of learning ofK.A.B.'s
death but as the result ofhowNCL's actions directly affected Plaintiff and her children. Thus,
the Court agrees with Plaintiff that her emotional distress claims are not per se barred by
DOH SA. However, Plaintiff must adequately plead such claims. As set out in sections C. and
6
D. ,below, Plaintiff has failed to adequately plead most of her emotional distress claims and,
accordingly, they must be dismissed. 2
B.
DOHSA Does Not Permit Recovery for Non-Pecuniary Damages
NCL seeks to dismiss all of Plaintiffs claims for non-pecuniary damages. While Plaintiff
does not dispute that DOHSA does not permit the recovery of non-pecuniary damages, Plaintiff
points out that such damages are not sought in her DOHSA claims, Counts I-V. The claims for
non-pecuniary damages are only contained in Plaintiffs non-DOHSA based claims, those based
on intentional and negligent infliction of emotional distress. However, Plaintiffs DOHSA based
claims do set out the various non-pecuniary damages allegedly suffered by Plaintiff and her
children. Thus, while Plaintiff does not seek recovery of these damages in her DOHSA claims,
she does allege that such damages were incurred. As a result, in the alternative, NCL seeks to
strike these allegations from the pleadings as immaterial. The Court agrees that such allegations
are immaterial to the DOHSA claims and, therefore, these allegations are stricken.
C.
Plaintiff's Intentional Infliction of Emotional Distress Claims Are Dismissed
Without Prejudice
NCL moves to dismiss Plaintiffs claims in Count VI, brought on behalf of herself and
her surviving children, for intentional infliction of emotional distress because Plaintiff has not
pled facts sufficient to meet one of the elements of such a claim. In order to state a claim for
intentional infliction of emotional distress, Plaintiff must plead the following elements: (1)
2
Because Plaintiff has failed to adequately plead, the Court need not decide, at this point,
whether to follow Ostrowiecki, and limit Plaintiffs claims to those arising from negligence
separate and apart from the negligence that caused K.A.B.' s death, or to follow Smith and
Martins, which would permit emotional distress claims arising from the same negligence that
caused K.A.B.'s death.
7
extreme and outrageous conduct; (2) an intent to cause, or reckless disregard to the probability of
causing, emotional distress; (3) severe emotional distress suffered by the plaintiff; and (4) that
the conduct complained of caused the plaintiffs severe emotional distress. Metropolitan Life
Insurance Co. v. McCarson, 467 So. 2d 277,278 (Fla. 1985). NCL contends that Plaintiff has
not pled facts sufficient to establish the first element of her claim - extreme and outrageous
conduct.
To demonstrate that a defendant engaged in outrageous conduct, a plaintiff must allege
facts that show that a defendant's actions were "so outrageous in character, and so extreme in
degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and
utterly intolerable in a civilized community." Metropolitan Life, 467 So.2d at 278-79 (quoting
Restatement (Second) ofTorts ยง 46 (1965)). This is an objective determination; the subjective
response of the person suffering emotional distress does not control. Liberty Mutual Insurance
Co. v. Steadman, 968 So. 2d 592, 595 (Fla. 2d DCA 2007). Whether conduct is outrageous
enough to support a claim of intentional infliction of emotional distress is a question of law, not
offact. Id.
Plaintiff maintains that the following circumstances, taken as a whole, amount to extreme
and outrageous conduct by NCL: NCL's failure to employ lifeguards, while advertising itself as
"family friendly" and "kid friendly;" NCL's failure to keep lifesaving equipment on the pool
deck; NCL's failure to have staff stationed on the pool deck who are prepared for a medical
drowning emergency; and the length of time it took for NCL medical personnel to arrive,
approximately 15 minutes, after K.A.B. was pulled from the pool. While the consequences of
these actions were heartbreaking, such conduct simply does not reach the level required for an
8
intentional infliction of emotional distress claim. As NCL points out, many hotel pools do not
have lifeguards or medical personnel nearby. Thus, given how common it is not to have
lifeguards or medical personnel at pools, their absence must be generally accepted by society.
Thus, such a situation clearly does not amount to behavior "so extreme in degree, as to go
beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in
a civilized community." Furthermore, Plaintiff has not cited to any statutes or other legal
authority indicating that the law requires the presence of lifeguards or medical personnel near
pools. Consequently, NCL's actions do not constitute extreme and outrageous conduct.
Accordingly, Plaintiffs intentional infliction of emotional distress claims, Count VI, must be
dismissed. While the Court will dismiss the count without prejudice and with leave to replead,
Plaintiff is cautioned that, given that she has already had two attempts to plead a claim, without
significant additional facts, such a claim will fail. 3
D.
Plaintifrs Negligent Infliction of Emotional Distress Claims Are Dismissed in
Part
NCL seeks to dismiss Plaintiffs negligent infliction of emotional distress claims, Counts
IX, X, and XI, because Plaintiff, K.B., and B.B. were not in the "zone of danger." In order to
state a claim for negligent infliction of emotional distress a plaintiff must allege "mental or
emotional harm (such as fright or anxiety) that is caused by the negligence of another and that is
not directly brought about by a physical injury, but that may manifest itself in physical
3
ln deciding whether to amend this claim, counsel is reminded of his duty as an officer of
the Court and under the Federal Rules of Civil Procedure to not engage in litigation that does not
have a factual basis. The Court issues this reminder because NCL raised many of the same issues
in its motion to dismiss Plaintiffs first complaint as it raises in the instant motion and the current
Amended Complaint does not seem to have seriously addressed many of the problems previously
raised by NCL.
9
symptoms." Chaparro v. Carnival Corp., 693 F.3d 1333, 1337-38 (11th Cir. 2012) (quoting
Consolidated Rail Corp. v. Gottshall, 512 U.S. 532, 544 (1994)). While different jurisdictions
have adopted different standards for what sort of harm a plaintiff must suffer, federal maritime
law has adopted the "zone of danger" test which allows recovery if a plaintiff sustains a physical
impact or is placed in immediate risk of physical harm by a defendant's negligent conduct.
Chaparro, 693 F.3d at 1338; Consolidated Rail, 512 U.S. at 547-48. NCL maintains that, based
on the allegations in the Amended Complaint, Plaintiff, K.B., and B.B. were not in the zone of
danger because their emotional distress arose from witnessing the efforts to save K.A.B. and
witnessing the passing of K.A.B., not from any fear for their own safety.
Plaintiff maintains that she and her surviving children were all within the zone of danger.
Plaintiff also urges that the law be changed and the Court apply the "relative bystander" test, not
the zone of danger test. The Court, however, is bound by the rulings of the Eleventh Circuit,
which, as set out above, has made clear that the applicable test is the zone of danger. Thus, until
the Eleventh Circuit instructs differently, the Court will apply the zone of danger test and
Plaintiff may raise this issue with the Court of Appeals.
As to Plaintiff and K.B., Plaintiff argues that the zone of danger was the subject pool and
the area immediately surrounding the pool because Plaintiff and K.B. were exposed to the risk of
physical harm based on the lack of a lifeguard. At the time of the incident, Plaintiff and K.B.
were sitting in the area immediately adjoining the pool. According to Plaintiffs response to the
instant motion, once they saw K.A.B. and B.B. drowning in the pool, Plaintiff and K.B. had to
make a decision as to whether to put their own lives at risk in order to save K.A.B. and B.B.
There are two problems with this argument. First, according to the Amended Complaint (~20),
10
Plaintiff did not see either K.A.B. or B.B. drown or go under the water- she momentarily lost
sight of them and then saw them being pulled out of opposite ends of the pool. Thus, contrary to
her arguments in response to the motion to dismiss, neither Plaintiff nor K.B. had to make a
decision as to whether to get into the pool. Second, given that neither Plaintiff nor K.B. ever left
the pool deck area and got into the pool themselves, they were in no immediate risk of physical
harm based on NCL's failure to employ lifeguards. Further, because neither Plaintiff nor K.B.
needed medical attention, they were never in fear for their safety as a result of the alleged
negligence relating to the delayed and inadequate medical care provided. Consequently,
Plaintiffs claims for negligent infliction of emotional distress brought on behalf of herself and
K.B. are dismissed. Because Plaintiff and K.B. never entered the pool during the drowning or
resuscitation efforts and never needed medical attention, their claims, Counts IX and XI, are
dismissed with prejudice.
B. B., who was pulled out of the pool at the same time as K.A.B., is in a different position
than Plaintiff and K.B. According to the Amended Complaint, B.B. not only witnessed his
sister's drowning and the failed attempts to save her, but also was himself placed in immediate
risk of physical harm by his own near drowning in the pool caused by NCL's failure to have a
lifeguard. Taken in the light most favorable to Plaintiff, such allegations of his risk of physical
harm are sufficient to state a cause of action for negligent infliction of emotional distress on
behalfofB.B. because they place B.B. in the zone of danger.
NCL argues that B.B. was not in the zone of danger because he was not rendered
negligent medical care. NCL maintains that the complaint alleges that the negligence that must
be the basis of the negligent infliction of emotional distress claim is the lack of a lifeguard
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coupled with the negligent medical care rendered to K.A.B. and that the harm B.B. suffered is the
distress incurred by watching his sister's passing. NCL, however, reads the Amended Complaint
too narrowly. The Amended Complaint alleges that the lack of a lifeguard itself was negligent.
Thus, to be in the zone of danger, B.B. did not need to seek medical care as argued by NCL.
Further, while the Amended Complaint alleged that B.B. suffered distress as a result of watching
his sister's death, it also alleges that B.B. suffered distress as a result of his own near-drowning.
Taking the allegations in the light most favorable to Plaintiff, Plaintiffs claim for negligent
infliction of emotional distress to B.B. sufficiently states a cause of action based on his emotional
distress from his own near drowning, only.
The Amended Complaint also alleges that B.B. suffered emotional distress from "seeing,
hearing and witnessing the delayed and inadequate medical treatment" K.A.B. received and from
witnessing K.A.B.'s death. However, the Amended Complaint does not contain any allegations
that B.B. needed or received medical treatment after being pulled from the pool. Thus, B.B. was
not in the zone of danger created by any alleged negligence relating to the receipt of medical
care. Consequently, the portions of the claim based on witnessing the delay in and receipt of
medical care by K.A.B. are dismissed with prejudice. The Court will require Plaintiff to amend
this count to remove all of the allegations related to K.A.B.'s medical care and ultimate death
because Plaintiff can only recover for B.B.'s emotional distress arising from his own near
drowning. Consequently, the motion to dismiss Count X is granted in part and denied in part.
Accordingly, it is hereby
ORDERED THAT:
1.
Defendant's Motion to Dismiss Plaintiffs Amended Complaint [DE-24] is
12
GRANTED in part and DENIED in part:
a.
The allegations about non-pecuniary damages incurred by Plaintiff and her
children are STRICKEN from Counts I, II, and III.
b.
Count VI is DISMISSED without prejudice.
c.
Counts IX and XI are DISMISSED with prejudice.
d.
Count X is DISMISSED with prejudice in part. The portion of Count X
based on B.B.'s emotional distress arising from witnessing the delayed and
inadequate medical care K.A.B. received and from witnessing K.A.B.'s
death are DISMISSED with prejudice.
e.
2.
The Motion is DENIED in all other respects
Plaintiff shall file a second amended complaint in accordance with this Order by
October 7, 2016. The Second Amended Complaint, in addition to possibly repleading the
intentional infliction of emotional distress count, shall correct the count misnumbering issue
noted in footnote 1 and remove all allegations that have been str~en or dismissed by this Order.
DONE AND ORDERED in Miami, Florida, this
0/9 day of Septemb
, 2016.
PATRICIA A. SEIT
UNITED STATES DISTRICT JUDGE
cc:
All counsel of record
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