Ferretti v. NCL ( Bahamas) LTD. et al
Filing
66
ORDER granting in part and denying in part 43 Defendant's Motion to Dismiss for Failure to State a Claim. Signed by Judge Darrin P. Gayles on 3/22/2018. (lh00)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
Case No. 17-cv-20202/GAYLES
ANTHONY G. FERRETTI,
Plaintiff,
v.
NCL (BAHAMAS) LTD.,
Defendant.
_______________________________________/
ORDER
THIS CAUSE comes before the Court on Defendant NCL (Bahamas), Ltd.’s (“NCL” or
“Defendant”) Motion to Dismiss Plaintiff’s Amended Complaint (the “Motion”) [ECF No. 43].
The Court has carefully reviewed the Motion, the record, and the applicable law. For the reasons
discussed below, the Motion is granted in part and denied in part.
I.
BACKGROUND 1
This is a maritime personal injury action. On June 14, 2017, Plaintiff Anthony G. Ferretti
(“Ferretti” or “Plaintiff”) filed his Amended Complaint against NCL setting forth the following
causes of action: Count I – Negligence, Count II – Negligent Selection and Hiring, Count III –
Vicarious Liability (Agency), and Count IV – Vicarious Liability (Apparent Agency). Plaintiff
alleges that NCL is liable for injuries he sustained on the “Maui Beach Day” shore excursion
during the course of a cruise on the NCL vessel, Pride of America. Plaintiff alleges that NCL
marketed and sold the excursion to its passengers and that NCL, through its actual or apparent
agents or employees, controlled or had the right to the control the excursion.
The Court must accept Plaintiff’s allegations, set forth below, as true for purposes
of this motion to dismiss. Brooks v. Blue Cross & Blue Shield of Fla. Inc., 116 F.3d 1364, 1369
(11th Cir. 1997).
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Plaintiff alleges the excursion operator, non-party Beach Club Maui, Inc. (“Beach Club
Maui”), was NCL’s actual agent because NCL and Beach Club Maui consented to Beach Club
Maui acting as NCL’s agent to operate the excursion, conduct inspections, and ensure
compliance with NCL’s standards including those found in the “Norwegian Cruise Line Tour
Operator Procedure and Policies.” Plaintiff alleges NCL had the right to control Beach Club
Maui with respect to the operation of the beach excursion in question and the execution of Beach
Club Maui’s duties pursuant to NCL’s procedures, policies, and standards.
In the alternative, Plaintiff contends that Beach Club Maui was NCL’s apparent agent
because their words and conduct caused Plaintiff to believe that Beach Club Maui had authority
to act for NCL with respect to the operation of the shore excursion. Plaintiff alleges NCL
promoted, vouched for, and/or recommended the excursion to passengers through the NCL
website (www.ncl.com) and use of its logo. Plaintiff states that he went on the shore excursion
under a justifiable belief that it was an NCL excursion and operated by an agent of NCL.
Plaintiff alleges he purchased and booked the excursion from NCL. Plaintiff alleges he
relied on NCL’s website to book the excursion. The website described the excursion as an
“Activity Level 1,” stating that it would “involve walking over relatively level terrain, possibly
some cobblestone, gravel, or a few steps” and that “[c]omfortable shoes are recommended.”
Plaintiff alleges that the only warning provided to him by Beach Club Maui during the excursion
was to not turn his back to the surf, for which he complied. He alleges that while walking parallel
to the shoreline, holding hands with his wife, a large wave broke approximately 10 feet away
from him with sufficient force to pull him under the water. Plaintiff landed on his head resulting
in spinal cord injuries and paralysis. Plaintiff alleges NCL had actual or constructive notice of an
unreasonably dangerous condition because “in the 24-hour period prior to [Plaintiff’s] injuries,
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the local hospital treated at least ten other spinal cord injuries from the beach in question among
others.”
II.
LEGAL STANDARD
To survive a motion to dismiss brought pursuant to Federal Rule of Civil Procedure 12(b)(6),
a claim “must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is
plausible on its face,’” meaning that it must contain “factual content that allows the court to draw
the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal,
556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). While
a court must accept well-pleaded factual allegations as true, “conclusory allegations . . . are not
entitled to an assumption of truth—legal conclusions must be supported by factual allegations.”
Randall v. Scott, 610 F.3d 701, 709-10 (11th Cir. 2010). “[T]he pleadings are construed broadly,”
Levine v. World Fin. Network Nat’l Bank, 437 F.3d 1118, 1120 (11th Cir. 2006), and the
allegations in the complaint are viewed in the light most favorable to the plaintiff, Bishop v. Ross
Earle & Bonan, P.A., 817 F.3d 1268, 1270 (11th Cir. 2016).
III.
DISCUSSION
A. Relation Back of Amendments
NCL argues that paragraphs 27(b)-(c) of Plaintiff’s negligence claim and Plaintiff’s actual
and apparent agency claims should be dismissed as time-barred because they do not relate back to
the initial Complaint [ECF No. 1]. Otherwise time-barred allegations will relate back to the date of
an earlier pleading if the amended pleading “asserts a claim or defense that arose out of the
conduct, transaction, or occurrence set out—or attempted to be set out—in the original
pleading.” See Fed. R. Civ. P. 15(c)(1)(B). The Court will deny NCL’s motion to dismiss on this
ground because it finds that the negligence and agency claims in the Amended Complaint arose out
of the same conduct, transactions, or occurrences set forth in the initial Complaint. See [ECF No. 1,
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¶44(j), (k), (m), (r); ¶¶55, 73].
B. Negligence Claim (Count I)
Defendant raises several arguments as to why Plaintiff’s negligence claim must be
dismissed. The Court addresses each argument in turn.
i. Duty
As a cruise ship operator, Defendant owes its passengers a duty of “reasonable care under
the circumstances.” Pucci v. Carnival Corp., 146 F. Supp. 3d 1281, 1286 (S.D. Fla. 2015).
Defendant moves to dismiss paragraphs 27(b)-(c) of Plaintiff’s negligence claim on the grounds
they are based on duties that are not owed by Defendant under the applicable law. Paragraphs
27(b)-(c) allege that Defendant was negligent in “failing to enforce policies and procedures the
excursion was required to follow pursuant to the Standard Shore Excursion Agreement” and in
“failing to adopt policies and procedures for participants of the excursion to ensure that passengers
were aware of the propensity of waves in the subject beach to break in the manner they did.” [ECF
No. 32, ¶27(b)-(c)]. Defendant argues it had no duty to adopt or enforce any policies or
procedures with respect to the subject excursion, and that the only duty it owed to Plaintiff while
he was on shore was to warn of known dangers in places where Plaintiff was invited or reasonably
expected to visit.
Defendant’s argument relies principally on Thompson v. Carnival Corp., which states that
“[o]nce the passenger leaves the ship, a cruise ship operator ‘only owes its passengers a duty to
warn of known dangers in places where passengers are invited or reasonably expected to visit.’”
Thompson, 174 F. Supp. 3d 1327, 1340 (S.D. Fla. Mar. 30, 2016) (citations omitted). However, as
noted in Thompson, courts within the Southern District of Florida have reached different
conclusions with respect to whether a cruise operator may owe a passenger on a shore excursion
additional duties beyond the duty to warn. See Thompson, 174 F. Supp. 3d at 1342 (citing
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competing cases). In Pucci, the court rejected the notion that the duty to warn was the only duty
owed to a passenger while off of the ship. Pucci, 146 F. Supp. 3d at 1287 n.4. The Pucci court
found that while the duty to warn is generally the most relevant duty regarding shore excursions, “a
cruise ship might have additional obligations under the ‘reasonable care’ standard, if, for example,
there is an agency relationship between the cruise ship and the excursion operator.” Id. (citing
Nielsen v. MSC Crociere, S.A., No. 10–62548–CIV, 2011 WL 12882693, at *4–6 (S.D. Fla. June
24, 2011)) (declining to dismiss a negligence claim against a cruise company arising from a shore
excursion where plaintiff claimed the cruise company owed numerous duties due to its relationship
with the excursion operator; and noting “which alleged duties may ultimately apply to Defendants
will depend on which theories of liability (i.e., partnership, agency—actual or apparent, common
carrier liability) that Plaintiff is able to prove”). While this issue has not been dispositively
addressed by the Eleventh Circuit, in Wolf v. Celebrity Cruises, Inc., also cited in Defendant’s
motion to dismiss, the Eleventh Circuit stated that the “duty to exercise reasonable care under the
circumstances . . . . includes ‘a duty to warn of known dangers beyond the point of debarkation in
places where passengers are invited or reasonably expected to visit.’” Wolf v. Celebrity Cruises,
Inc., 683 F. App’x 786, 794 (11th Cir. 2017) (emphasis added) (citing Franza v. Royal Caribbean
Cruises, Ltd., 772 F.3d 1225, 1233 (11th Cir. 2014)). The Wolf court did not state, as represented
in Defendant’s motion to dismiss [ECF No. 43, p. 5-6], that the duty to warn was the “only” duty
owed to a passenger while on shore.
Here, Plaintiff has alleged multiple theories of liability against Defendant. As such, the
determination of what duties Defendant owed to Plaintiff will depend on which theories of liability
Plaintiff is ultimately able to prove. Nielsen, 2011 WL 12882693 at *6. Therefore, the Court
declines, at this time, to dismiss the enumerated duties beyond the duty to warn in “line-item
fashion.” Pucci, 146 F. Supp. 3d at 1287.
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ii. Open and Obvious Danger Doctrine
Defendant argues that Plaintiff’s negligence claim should be dismissed because “natural
bodies of water generally, and the seas and riptides specifically, are obvious to all and no duty to
warn exists.” Bernard v. World Learning Inc., No. 09-20309-CIV, 2010 WL 11505188, at *8
(S.D. Fla. June 4, 2010); Balachander v. NCL (Bahamas) Ltd., 800 F. Supp. 2d 1196, 1203 (S.D.
Fla. 2011) (finding that the dangers of swimming in the ocean are open and obvious as a matter
of law), abrogated on other grounds by Franza v. Royal Caribbean Cruises, Ltd., 772 F.3d 1225
(11th Cir. 2014). However, based on the allegations in this case that a large wave broke
approximately 10 feet away from Plaintiff while walking parallel to the shoreline with sufficient
force to pull him under water, this argument is not appropriate at the motion to dismiss stage
because the “‘open and obvious’ question requires a context specific inquiry and necessitates
development of the factual record before the Court can decide whether, as a matter of law, the
danger was open and obvious.” Joseph v. Carnival Corp., No. 11-20221-CIV, 2011 WL
3022555, at *4 (S.D. Fla. July 22, 2011) (quoting Prokopenko v. Royal Caribbean Cruises Ltd.,
No. 10–20068–CIV–HUCK, 2010 WL 1524546 at *3 (S.D. Fla. Apr. 15, 2010)). Given the facts
alleged regarding the size and force of the wave in question, the Court declines to dismiss
Plaintiff’s negligence claim based on an open and obvious danger theory.
iii. Notice of the Hazardous Condition
Irrespective of what ultimate duties Defendant owed to Plaintiff, the standard of reasonable
care “requires, as a prerequisite to imposing liability, that the carrier have had actual or
constructive notice of the risk-creating condition.” Thompson, 174 F. Supp. 3d at 1340 (citing
Keefe v. Bahama Cruise Line, Inc., 867 F.2d 1318, 1322 (11th Cir. 1989)). To establish notice,
Plaintiff alleges that Defendant “knew or should have known that the beach in question would have
conditions which were hazardous” because “in the 24-hour period prior to Mr. Ferretti’s injuries,
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the local hospital treated at least 10 other spinal cord injuries from the beach in question among
others.” [ECF No. 32, ¶¶ 24, 28]. These allegations, without more, are insufficient to establish that
Defendant had actual or constructive notice regarding any dangerous condition at the beach in
question. There are no allegations that the alleged prior spinal cord injuries occurred in the same
manner that caused Plaintiff’s injuries. There are also no allegations that the persons who suffered
the alleged prior spinal cord injuries were Defendant’s passengers, or that Defendant, as opposed to
the “local hospital,” was aware of these prior injuries in any way.
As Plaintiff has failed to adequately allege notice, Plaintiff’s negligence claim is dismissed
without prejudice.
C. Negligent Selection and Hiring (Count II)
To state a claim for negligent selection or hiring of an independent contractor, a plaintiff
must allege that: “(1) the contractor was incompetent or unfit to perform the work; (2) the
employer knew or reasonably should have known of the particular incompetence or unfitness; and
(3) the incompetence or unfitness was a proximate cause of the plaintiff's injury.” Wolf, 683 F.
App’x at 796; Smolnikar v. Royal Caribbean Cruises Ltd., 787 F. Supp. 2d 1308, 1318 (S.D. Fla.
2011). In negligent selection or hiring cases, the critical issue is whether the principal knew or
should have known about the contractor’s unfitness at the time the contractor was hired. See
Garcia v. Duffy, 492 So. 2d 435, 438 (Fla. 2d DCA 1986) (stating that “the issue of liability
primarily focuses upon the adequacy of the employer’s pre-employment investigation into the
employee’s background.”).
Here, Plaintiff has failed to adequately allege a claim for negligent selection or hiring.
Plaintiff’s allegation that Beach Club Maui was unfit to provide beach excursion services is
conclusory and unsupported by any factual allegations. Gayou v. Celebrity Cruises, Inc., No. 1123359-CIV, 2012 WL 2049431, at *5 (S.D. Fla. June 5, 2012) (dismissing plaintiff’s claim
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because the elements of negligent hiring or retention were not “supported by any relevant facts”).
There is similarly no factual support for Plaintiff’s allegations that Defendant failed to properly vet
or investigate Beach Club Miami before hiring it. Critically, Plaintiff does not allege any improper
or unsafe conduct by Beach Club Maui, prior to being hired by Defendant, that would have put
Defendant on notice of any alleged lack of fitness. Plaintiff’s allegation that Defendant was
negligent in hiring Beach Club Maui, because Beach Club Maui allegedly failed to provide a
proper warning in this case, is wholly insufficient to state a claim because that information could
not have been available to Defendant at the time it hired Beach Club Maui. Accordingly, Plaintiff’s
negligent selection and hiring claim is dismissed without prejudice.
D. Vicarious Liability Based on Agency and Apparent Agency (Counts III and IV)
As an initial matter, actual and apparent agency are not independent causes of action, but
are instead theories of liability. See Gayou, 2012 WL 2049431, at *8 n.4; Barabe v. Apax Partners
Europe Managers, Ltd., 359 F. App’x 82, 84 (11th Cir. 2009) (holding that there is no cause of
action for “agency”). Nevertheless, the Court will construe these claims as Plaintiff attempting to
hold Defendant vicariously liable for the negligence of Beach Club Maui based on agency theories
of liability.
To hold a principal vicariously liable under an agency theory of liability, a plaintiff must
sufficiently
allege
the
elements
of
agency
in
addition
to
the
elements
of
the
underlying negligent act of the agent for which the plaintiff seeks to hold the principal liable. Rojas
v. Carnival Corp., 93 F. Supp. 3d 1305, 1310–11 (S.D. Fla. 2015). The Court finds that Plaintiff
has failed to state an underlying negligence claim against Beach Club Maui because Plaintiff has
failed to allege that Beach Club Maui had actual or constructive notice of a dangerous condition at
the beach in question. Because Plaintiff’s agency claims are due to be dismissed irrespective of
whether he has adequately alleged actual or apparent agency, the Court will not address the
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substantive allegations of these claims. See Rojas, 93 F. Supp. 3d at 1311; Zapata v. Royal
Caribbean Cruises, Ltd., No. 12-21897-CIV, 2013 WL 1296298, at *5 (S.D. Fla. Mar. 27, 2013)
(ruling that since the “factual allegations warranted the dismissal without prejudice of Plaintiff’s
negligence claim,” the plaintiff’s agency claim must also be dismissed); Brown v. Carnival Corp.,
et al., 202 F. Supp. 3d 1332, 1340 (S.D. Fla. 2016) (finding that because “Plaintiff has failed to
state a plausible negligence claim, Plaintiff’s claim for apparent agency also fails.”).
IV.
CONCLUSION
Based on the foregoing, it is ORDERED AND ADJUDGED that
1. Defendant’s Motion to Dismiss [ECF No. 43] is GRANTED in part and DENIED
in part.
2. Plaintiff’s Amended Complaint [ECF No. 32] is DISMISSED without prejudice.
Plaintiff may amend his Complaint within twenty (20) days of the date of this Order.
If he fails to do so, the Court will dismiss this action with prejudice and close the case
DONE AND ORDERED in Chambers at Miami, Florida, this 22nd day of March, 2018.
____________________________
DARRIN P. GAYLES
UNITED STATES DISTRICT JUDGE
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