Wu et al v. NCL (Bahamas) LTD.
Filing
32
ORDER Grants In Part re 15 MOTION TO DISMISS 1 Complaint FOR FAILURE TO STATE A CLAIM filed by NCL (Bahamas) LTD. Signed by Judge Robert N. Scola, Jr on 4/10/2017. (ail) (Main Document 32 replaced on 4/11/2017) (ail).
United States District Court
for the
Southern District of Florida
Grace Wu and Chris Ding,
individually and as parents and
natural guardians of S.D., Plaintiffs,
v.
NCL (Bahamas) Ltd., Defendant.
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)
)
) Civil Action No. 16-22270-Civ-Scola
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)
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Order on Defendant’s Motion to Dismiss
Plaintiffs Grace Wu and Chris Ding bring this suit individually and as
parents of S.D., a minor, against NCL (Bahamas) Ltd. (“NCL”) for bodily injury
and emotional distress suffered by the Plaintiffs while on board a ship owned
by NCL. This matter is before the Court on Defendant NCL’s motion to dismiss
Counts Two and Three of the Complaint. (ECF No. 15). For the reasons set
forth in this Order, the Court grants in part the Defendant’s motion to
dismiss.
1. Background
The Complaint alleges that, on or about June 15, 2015, the Plaintiffs
sailed on the Defendant’s ship, Norwegian Sun. (Compl. ¶¶ 10-11, ECF No. 1.)
On June 18, 2015, Grace Wu and Chris Ding took S.D. to the “Kid’s Korner,”
an area on the ship designated for children. (Id. ¶¶ 11, 15.) S.D was eleven
years old. (Id. ¶ 12.) An NCL employee nicknamed “Jumper” led a group of
children, including S.D., in a game called “Pictionary.” (Id. ¶ 15.) S.D., following
Jumper’s directions, ran towards a set of stairs and tripped over a bean bag
that was partially blocking the entrance to the stairs. (Id.) S.D.’s mouth struck
one of the steps. (Id.) The impact fractured S.D.’s front right tooth and caused
the nerve root of the tooth to be exposed, which subluxed an adjacent tooth.
(Id.) When Grace Wu and Chris Ding came to pick up S.D., S.D. was crying and
her tooth was severely chipped. (Id. ¶ 16.)
On June 17, 2016, the Plaintiffs filed this suit against NCL, asserting
claims for negligence, intentional infliction of emotional distress, and negligent
infliction of emotional distress. The Defendant has moved to dismiss the
Plaintiffs’ claims for intentional infliction of emotional distress and negligent
infliction of emotional distress. (Mot. to Dismiss, ECF No. 15.)
2. Legal Standard
Federal Rule of Civil Procedure 8(a) requires “a short and plain statement
of the claims” that “will give the defendant fair notice of what the plaintiff's
claim is and the ground upon which it rests.” Fed. R. Civ. P. 8(a). The Supreme
Court has held that “[w]hile a complaint attacked by a Rule 12(b)(6) motion to
dismiss does not need detailed factual allegations, a plaintiff's obligation to
provide the ‘grounds' of his ‘entitlement to relief’ requires more than labels and
conclusions, and a formulaic recitation of the elements of a cause of action will
not do. Factual allegations must be enough to raise a right to relief above the
speculative level.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)
(internal citations omitted).
“To survive a motion to dismiss, a complaint must contain sufficient
factual matter, accepted as true, to state a claim to relief that is plausible on its
face.” Ashcroft v. Iqbal, 556 U.S. 662 (2009) (quotations and citations omitted).
“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.” Id. Thus, “only a complaint that states a plausible
claim for relief survives a motion to dismiss.” Id. at 1950. When considering a
motion to dismiss, the Court must accept all of the plaintiff's allegations as
true in determining whether a plaintiff has stated a claim for which relief could
be granted. Hishon v. King & Spalding, 467 U.S. 69, 73 (1984).
3. Analysis
A.
Intentional Infliction of Emotional Distress
The parties agree that this matter is governed by maritime law. (Mot. to
Dismiss 1, ECF No. 15; Pl.’s Resp. 1, ECF No. 29.) Courts sitting in admiralty
typically look to the standards set out in the Restatement (Second) of Torts § 46
(1965) as well as state law to evaluate claims for intentional infliction of
emotional distress (“IIED”). See, e.g., Wallis v. Princess Cruises, Inc., 306 F.3d
827, 841 (9th Cir. 2002) (citations omitted) (noting that since there is no
maritime law concerning IIED claims, courts regularly employ the Restatement
(Second) of Torts to evaluate IIED claims in federal maritime cases); Stires v.
Carnival Corp., 243 F.Supp.2d 1313, 1319 (M.D. Fla. 2002) (citing to both the
Restatement (Second) of Torts and Florida state law in case asserting claim for
IIED for tort that occurred on a cruise ship).
Section 46 of the Restatement (Second) of Torts states, in relevant part,
that “one who by extreme and outrageous conduct intentionally or recklessly
causes severe emotional distress to another is subject to liability for such
emotional distress, and if bodily harm to the other results from it, for such
bodily harm.” To state a claim for IIED under Florida law, a plaintiff must
show: (1) deliberate or reckless infliction of mental suffering; (2) outrageous
conduct; (3) that the conduct caused emotional distress; and (4) that the
distress was severe. Nettles v. City of Leesburg Police Dep’t, 415 Fed. App’x.
116, 122 (11th Cir. 2010) (quoting Hart v. United States, 894 F.2d 1539, 1548
(11th Cir. 1990)). Here, NCL argues that the Plaintiffs’ allegations fail to rise to
the level of outrageous conduct necessary to state a claim for IIED. (Mot. to
Dismiss at 4-5, ECF No. 15.)
The Complaint alleges that NCL “deliberately and/or recklessly inflicted
emotional distress” on the Plaintiffs by “failing to utilize employees in the ‘Kid’s
Korner’. . . who would monitor the Kid’s Korner so that it would be clear of
hazards and objects which would not be readily perceived by an eleven year old
child. . . .” (Compl. ¶ 28, ECF No. 1.) The Complaint alleges that NCL “actively
decided not to train or monitor its staff” and that NCL’s misconduct is “wholly
intentional and calculated to save NCL money while greatly increasing the risk
to its passengers.” (Id. ¶ 29.) Finally, the Complaint alleges that NCL’s conduct
is outrageous and shocking because it invites children into the Kid’s Korner
“knowing that many will become injured and knowing that the incident(s) could
easily be prevented.” (Id. ¶ 31.)
The Defendant’s alleged conduct fails to rise to the level of
outrageousness required by the Restatement (Second) of Torts and Florida
state law. “Outrageous” conduct is that which “goes beyond all possible bounds
of decency and is regarded as atrocious and utterly intolerable in a civilized
community.” Rubio v. Lopez, 445 Fed. App’x. 170, 175 (11th Cir. 2011). The
Restatement of Torts and Florida courts have stated that:
It has not been enough that the defendant has acted with an intent
which is tortious or even criminal, or that he has intended to inflict
emotional distress, or even that his conduct has been
characterized by ‘malice,’ or a degree of aggravation which would
entitle the plaintiff to punitive damages for another tort.
Restatement (Second) of Torts, § 46, cmt. d; Brown v. Zaveri, 164 F. Supp. 2d
1354, 1362 (S.D. Fla. 2001) (citations omitted).
Notably, the cause of action for IIED is “sparingly recognized by the
Florida courts.” Vamper v. United Parcel Service, Inc., 14 F. Supp. 2d 1301,
1306 (S.D. Fla. 1998). A plaintiff alleging IIED faces an extremely high burden,
as Florida courts have repeatedly found a wide spectrum of behavior
insufficiently “outrageous.” A brief survey of Florida and maritime cases
addressing claims of IIED underscores this point. See, e.g., Rubio v. Lopez, 445
Fed. App’x. at 175 (finding failure to allege sufficient outrageous conduct where
deputy sheriff hobble-tied arrestee on black asphalt pavement in sun, resulting
in second-degree burns to face and chest); Wallis, 306 F.3d at 842 (finding no
outrageous conduct where crew member on cruise ship remarked in the
plaintiff’s hearing after her husband fell overboard that her husband was
probably dead and that his body would be sucked under the ship, chopped up
by the propellers, and would probably not be recovered); Garcia v. Carnival
Corp., 838 F.Supp.2d 1334, 1339 (S.D. Fla. 2012) (Moore, J.) (finding no
outrageous conduct where crew members assaulted cruise passenger and
prevented her from leaving her room for a period of time); Vamper, 14 F. Supp.
at 1306–07 (finding no outrageous conduct where defendants fabricated
reckless driving charge against plaintiff, called him the “n” word, threatened
him with termination, and physically struck him on ankle).
Even construing the facts in the light most favorable to the Plaintiffs,
NCL’s alleged conduct is not such that it “goes beyond all possible bounds of
decency and is regarded as atrocious and utterly intolerable in a civilized
community.” See Rubio, 445 Fed. App’x. at 175. The Plaintiffs’ allegations
simply do not rise to the level of outrageousness required by the applicable
case law. Therefore, the Court grants the Defendant’s motion to dismiss Count
Two of the Complaint.
B. Negligent Infliction of Emotional Distress
A claim for negligent infliction of emotional distress (“NIED”) requires an
adequately pled underlying claim of negligence. Chaparro v. Carnival Corp., 693
F.3d 1333, 1337 (11th Cir. 2012). In addition, an NIED claim “requires mental
or emotional harm (such as fright or anxiety) that is caused by the negligence
of another. . . .” Id. at 1337-38 (quoting Consol. Rail Corp. v. Gottshall, 512 U.S.
532, 544 (1994)). Federal maritime law utilizes the “zone of danger” test. Id.
The zone of danger test permits recovery for emotional injury to those plaintiffs
who sustain a physical impact as a result of a defendant’s negligent conduct.
Tassinari v. Key West Water Tours, L.C., 480 F.Supp.2d 1318, 1323 (S.D. Fla.
2007) (Moore, J.) (citing Consol. Rail Corp., 512 U.S. at 547-48). In addition, the
zone of danger test permits recovery for NIED if “a plaintiff is placed in
immediate risk of physical harm by defendant’s negligent conduct.” Chaparro,
693 F.3d at 1337-38 (internal quotations and citations omitted).
Here, the Complaint does not allege that Grace Wu and Chris Ding were
placed in immediate risk of physical harm by NCL’s negligent conduct. Rather,
the Complaint indicates that Grace Wu and Chris Ding were not present when
S.D. fell, because the Complaint alleges that it was when they picked up S.D.
from the Kid’s Korner that they found that her tooth was chipped. (Compl. ¶
16, ECF No. 1.) Therefore, Grace Wu and Chris Ding cannot assert a claim for
NIED.
However, the Defendant does not address whether the Plaintiffs can state
a claim for NIED on behalf of S.D. (Mot. to Dismiss at 5-6, ECF No. 15.) The
Complaint alleges that “NCL’s negligent conduct. . .caused the Plaintiffs and
their minor child severe mental and emotional anguish and harm.” (Compl. ¶
35, ECF No. 1.) Recovery for NIED by plaintiffs who have suffered actual
physical harm is “generally liberally granted.” Tassinari, 480 F.Supp.2d at
1323 (citing Norfolk and Western Ry. Co. v. Ayers, 538 U.S. 135, 146-49
(2003)). Since the Plaintiffs have alleged that S.D. “suffered severe mental and
emotional anguish and harm,” the Court must next analyze whether the
Complaint adequately pleads a claim for negligence.
“To plead negligence in a maritime case, a plaintiff must allege that (1)
the defendant had a duty to protect the plaintiff from a particular injury; (2) the
defendant breached that duty; (3) the breach actually and proximately caused
the plaintiff’s injury; and (4) the plaintiff suffered actual harm.” Franza v. Royal
Carribean Cruises, Ltd., 772 F.3d 1225, 1253 (11th Cir. 2014). The duty of care
owed by a cruise operator to its passengers is ordinary reasonable care under
the circumstances, “which requires, as a prerequisite to imposing liability, that
the carrier have actual or constructive notice of the risk-creating condition.”
See Keefe v. Bahama Cruise Line, Inc., 867 F.2d 1318, 1322 (11th Cir. 1989);
Thomas v. NCL (Bahamas), Ltd., 203 F.Supp.3d 1189, 1192 (S.D. Fla. 2016)
(Williams, J.). However, “[w]here a cruise ship operator created the unsafe or
foreseeably hazardous condition, a plaintiff need not prove notice in order to
show negligence.” Long v. Celebrity Cruises, Inc., 982 F.Supp.2d 1313, 1317
(S.D. Fla. 2013) (Torres, J.)
The Complaint alleges that NCL had a duty to passengers to: (1) maintain
its premises in a reasonably safe manner under the circumstances, (2) exercise
reasonable care and effort to avoid subjecting the Plaintiffs to suffering or
inconvenience, and (3) warn the Plaintiffs of dangerous conditions that existed
in places where NCL knew, or should have known, that the Plaintiffs would
visit. (Compl. ¶¶ 20-21, ECF No. 1.) The Complaint alleges that NCL breached
these duties by failing to use reasonable care and ensure that the floor of the
Kid’s Korner was clear of hazards and objects which would not readily be
perceived by an eleven-year-old child, and failing to warn S.D. that the bean
bag was in front of the stairs. (Id. ¶¶ 22-23.) The Complaint alleges that the
hazardous condition was either known to the Defendant or had existed for a
sufficient length of time that Defendant should have known of it. (Id. ¶ 25.)
Finally, the Complaint alleges that the Defendant’s negligence caused S.D.’s
injuries. (Id. ¶ 26.) Therefore, the Complaint sufficiently alleges the elements of
a negligence claim. Indeed, the Defendant has not moved to dismiss the
Plaintiffs’ claim for negligence.
Since the Plaintiffs have alleged facts sufficient to state a claim for
negligence and have alleged that S.D. has suffered mental and emotional
anguish and harm, the Plaintiffs have sufficiently stated a claim for NIED with
respect to S.D.
C. Conclusion
Accordingly, the Court grants in part the Defendant’s motion to dismiss
(ECF No. 15). The Court dismisses with prejudice Count Two of the
Complaint, and dismisses with prejudice Count Three of the Complaint with
respect to Grace Wu and Chris Ding. However, the Court declines to dismiss
Count Three with respect to S.D.
Done and ordered in chambers, at Miami, Florida, on April 10, 2017.
________________________________
Robert N. Scola, Jr.
United States District Judge
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