Nguyen et al v. Royal Caribbean Cruises Ltd., et al
Filing
17
ORDER granting in part 6 Motion to Dismiss for Failure to State a Claim; denying as moot 6 Motion to Strike. (Amended Complaint due by 4/25/2017.) Signed by Judge Robert N. Scola, Jr on 4/13/2017. (ail)
United States District Court
for the
Southern District of Florida
John Nguyen and Jennifer Nguyen,
individually, as personal
representatives of the Estate of R.N.,
and as parents and natural
guardians of R.N., Plaintiffs,
v.
Royal Caribbean Cruises, Ltd., and
others, Defendants.
)
)
)
)
)
Civil Action No. 16-24930-Civ-Scola
)
)
)
)
)
Order on Defendant’s Motion to Dismiss
Plaintiffs John Nguyen and Jennifer Nguyen bring this suit individually
and as personal representatives of the estate of R.N., a deceased minor, against
Royal Caribbean Cruises, Ltd. (“Royal Caribbean”) and the nurses and doctors
on board Royal Caribbean’s ship, the Liberty of the Seas, on or about
December 21, 2015. This matter is before the Court on Defendant Royal
Caribbean’s motion to dismiss Counts Six, Nine, and Ten of the Complaint, and
strike the Plaintiffs’ claims for punitive damages in Counts One, Two, and
Three of the Complaint. (ECF No. 6). 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 December 21, 2015, the
Plaintiffs were on board Royal Caribbean’s ship, Liberty of the Seas, with their
two children. (Compl. ¶¶ 21-22, ECF No. 1.) Jennifer Nguyen took her eightyear-old son, R.N., to the H2O Zone Waterpark on board the ship. (Id. ¶ 33.)
According to the Complaint, the H2O Zone Waterpark is an interactive water
park for kids and families that has geysers, sculpted fountains, waterfalls, and
a small pool, among other things. (Id. ¶ 23.) The pool has a depth of five feet
seven inches, and is surrounded by a walkway covered in water that is eight
inches deep. (Id. ¶ 25.) At the time that Jennifer Nguyen and her son were at
the H2O Zone Waterpark, there were no lifeguards present, no crew members
enforcing the rules and policies applicable to the water park, and no lifesaving
medical equipment at or near the pool deck. (Id. ¶¶ 29-30.) When Jennifer
Nguyen and R.N. were at the H2O Zone Waterpark, the ship encountered rough
weather, causing the boat to rock and pool water to splash out of the pools. (Id.
¶ 32.)
Jennifer Nguyen was sitting in a lounge chair adjacent to the waterpark
when she saw R.N.’s lifeless body being pulled out of the pool in the H2O Zone
Waterpark. (Id. ¶ 34-35.) A passenger began performing CPR on R.N., but a
crew member told the passenger to stop when the passenger stated that she
was not a doctor. (Id. ¶ 35.) Approximately five minutes after R.N. was pulled
out of the pool, the shipboard doctor arrived and performed CPR on R.N. for
more than 60 minutes. (Id. ¶ 36.) No lifesaving medical equipment was used to
revive R.N. (Id.) John Nguyen was in his stateroom, and at some point after
R.N. was pulled from the pool, he was called and arrived at the scene. (Id. ¶
38.) Both John and Jennifer Nguyen witnessed the efforts to save R.N.’s life.
(Id. ¶¶ 37-38.)
On November 28, 2016, the Plaintiffs filed this suit against Royal
Caribbean, asserting various claims for negligence against Royal Caribbean
and the shipboard doctors and nurses under the Death on the High Seas Act,
46 U.S.C. §§ 30301-30308 (“DOHSA”), as well as claims for intentional and
negligent infliction of emotional distress with respect to John and Jennifer
Nguyen. The Plaintiffs request all damages recoverable under DOHSA and the
law applicable to claims for intentional and negligent infliction of emotional
distress, and punitive damages.
Royal Caribbean has moved to strike the Plaintiffs’ requests for punitive
damages with respect to their DOHSA claims, and dismiss the Plaintiffs’ claims
for intentional and negligent infliction of emotional distress. (Mot. to Dismiss at
1, ECF No. 6.)
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, 678 (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 679.
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.
Punitive Damages for Counts One, Two, and Three
Defendant Royal Caribbean has moved to strike the Plaintiffs’ claims for
punitive damages with respect to Counts One, Two, and Three of the
Complaint, because those counts are brought under DOHSA, which does not
permit punitive damages. (Mot. to Dismiss at 14-16, ECF No. 6.) In its
opposition to the Defendant’s motion to dismiss, the Plaintiffs acknowledged
that punitive damages are not recoverable under DOHSA, and stated that the
incorporation by reference of the request for punitive damages into Counts,
One, Two, and Three was a typographical error. (Pl.’s Resp. at 2-3, ECF No. 14.)
The Plaintiffs requested leave to amend the Complaint to correct the error. (Id.
at 2.) The Court therefore denies as moot the Defendant’s motion to strike the
Plaintiffs’ claim for punitive damages in Counts One, Two, and Three of the
Complaint, and grants the Plaintiffs leave to amend the Complaint to correct
the typographical errors.
B.
Intentional Infliction of Emotional Distress
Federal maritime law applies to actions for torts committed aboard a ship
sailing in navigable waters. See, e.g., Keefe v. Bahama Cruise Line, Inc., 867
F.2d 1318, 1320 (11th Cir. 1989). 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, Royal Caribbean argues that the
Plaintiffs’ allegations fail to rise to the level of outrageousness necessary to
state a claim for IIED. (Mot. to Dismiss at 4-5, ECF No. 15.)
“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) (Lenard, J.) (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) (King, J.). 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).
The Complaint alleges that Royal Caribbean deliberately and/or
recklessly inflicted emotional distress on Jennifer and John Nguyen by failing
to utilize lifeguards at swimming pools onboard its ships which are designed
and marketed for young children, posting inadequate signage to advise
passengers of the lack of lifeguards, responding to R.N.’s drowning without any
urgency and in an unreasonable amount of time, and failing to have adequate
medical equipment or lifesaving devices near the pool. (Compl. ¶¶ 86, 89, ECF
No. 1.) The Complaint alleges that Royal Caribbean’s failure to post lifeguards
at its pools despite the fact that numerous children have drowned or nearly
drowned on board Royal Caribbean’s ships, and other cruise ships, is
intentional and outrageous. (Id. ¶ 87.) In support of its allegation that Royal
Caribbean’s conduct is outrageous, the Plaintiffs allege that Disney Cruise
Lines employs lifeguards on its cruise ships. (Id.)
In its motion to dismiss, Royal Caribbean cites to Blair v. NCL (Bahamas)
Ltd., No. 16-21446, 2016 WL 5717560 (S.D. Fla. Sept. 29, 2016) (Seitz, J.), in
support of its argument that the Plaintiffs’ allegations do not rise to the
requisite level of outrageousness. (Mot. to Dismiss at 7-8, ECF No. 6.) In Blair,
the plaintiff’s child drowned in a pool on a cruise ship, and the plaintiff saw her
child’s lifeless body being pulled from the pool. 2016 WL 5717560, at *1-2. In
support of the plaintiff’s claims for IIED, the plaintiff alleged that the
defendant’s conduct was outrageous because it failed to keep lifesaving
equipment on the pool desk; failed to employ lifeguards; failed to have staff
stationed on the pool deck who were prepared for a medical drowning
emergency; and medical personnel failed to arrive promptly on the scene. Id. at
*4. In dismissing the plaintiff’s IIED claims, Judge Seitz stated:
While the consequences of these actions were heartbreaking, such
conduct simply does not reach the level required for an 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. . . 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.
Id.
In their response to the motion to dismiss, the Plaintiffs attempt to
distinguish Blair by arguing that the drowning in Blair occurred at the primary
shipboard pool, which was intended for both adults and children, whereas here
the drowning occurred at a shipboard waterpark that specifically catered to
children. (Pl.’s Resp. at 6-8, ECF No. 14.) The Plaintiffs included pictures of the
pool at issue in Blair and the pool at issue here. (Id. at 7.) The Court notes that
the pool at issue in Blair appears to have had a water slide, which is a common
feature of waterparks. (See id.) The Plaintiffs also assert that waterparks in the
United States employ lifeguards, as do many properties owned by Disney Hotel
and Resorts in Florida and four properties owned by Universal Orlando Lowes.
(Id. at 9.) However, the Plaintiffs noted in the Complaint that every cruise line
other than Disney “refuses to station lifeguards and/or crewmembers with
First Aid and/or CPR training at its shipboard pools.” (Compl. ¶ 20, ECF No.
1.) The Plaintiffs have not cited to any statutes or legal authority indicating
that the law requires the presence of lifeguards either at pools or waterparks.
The alleged conduct fails to rise to the level of outrageousness required
by the Restatement (Second) of Torts and Florida state law. Even construing
the facts in the light most favorable to the Plaintiffs, Royal Caribbean’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. Based on the allegations in the Complaint, it is
common for cruise ships not to employ lifeguards, and the Plaintiffs have cited
to no legal authority requiring cruise ships to employ lifeguards. As in Blair,
the Plaintiffs’ allegations 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 Six of the Complaint.
C. 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).
The Plaintiffs admitted in their response to the motion to dismiss that
they have not sufficiently stated a claim for NIED because they were not in the
zone of danger at the time of R.N.’s drowning. (Pl.’s Resp. at 2, ECF No. 14.)
Instead, the Plaintiffs urge the Court to adopt the “relative bystander” test
employed by some circuits. (Id. at 4.) However, this Court is bound by Eleventh
Circuit precedent applying the zone of danger test, and therefore declines to
adopt the relative bystander test. See Blair, 2016 WL 5717560 at *5 (declining
to apply the relative bystander test and noting that the court “is bound by the
rulings of the Eleventh Circuit, which. . .has made clear that the applicable test
is the zone of danger.”).
D. Conclusion
Accordingly, the Court grants in part the Defendant’s motion to dismiss
(ECF No. 15). The Court dismisses with prejudice Counts Six, Nine, and Ten
of the Complaint. The Court denies as moot the Defendant’s motion to strike
the Plaintiffs’ request for punitive damages with respect to Counts One, Two,
and Three of the Complaint, and grants the Plaintiffs leave to amend the
Complaint solely to correct the typographical errors related to their requests for
punitive damages. The Plaintiffs must file their amended complaint on or before
April 25, 2017.
Done and ordered in chambers, at Miami, Florida, on April 13, 2017.
________________________________
Robert N. Scola, Jr.
United States District Judge
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?