Negron et al v. Celebrity Cruises, Inc.

Filing 39

Opinion Order on Defendants 30 Motion to Dismiss. Signed by Judge Robert N. Scola, Jr on 12/19/2018. See attached document for full details. (lbc)

United States District Court
for the
Southern District of Florida
Maria Negron, and others, Plaintiffs,
v.
Celebrity Cruises, Inc., Defendant.

)
)
) Civil Action No. 18-21797-Civ-Scola
)
)

Opinion Order on Defendant’s Motion to Dismiss
This case arises out of a decision by Defendant Celebrity Cruises, Inc. to
disembark an elderly passenger complaining of medical issues in Barbados for
further testing and treatment at a local hospital, and then refusing to allow that
passenger and her family to complete the cruise.
Now before the Court is the Defendant’s motion to dismiss (ECF No. 32)
certain claims asserted in the Amended Complaint (ECF No. 29). The Court
grants the Defendant’s motion (ECF No. 32) for the reasons that follow.
1.

Background 1

The Plaintiffs, Maria Negron (“Negron”), Victor Gonzalez (“Gonzalez”),
Lizzette Gonzalez, and Miguel Gonzalez (collectively, “Plaintiffs”) purchased a
seven day cruise through the Eastern Caribbean aboard the Defendant’s ship,
Celebrity Summit, leaving on November 4, 2017, from San Juan, Puerto Rico.
(Am. Compl., ECF No. 29 at ¶ 9, 10.) Four days in, Negron, who is 84 years old,
began to feel dizzy and ill while the ship was docked in Barbados. (Id. at ¶¶ 1,
12.) Onboard medical personnel misdiagnosed Negron with a heart attack, and
disembarked all of the Plaintiffs. (Id. at ¶ 14.) Paramedics then transported
Negron to a local hospital for testing, including a CT scan. (Id. at ¶¶ 16, 17.) At
the hospital, the “Plaintiffs were exposed to unreasonable waiting times to be
attended, threatening environment, uncomfortable facilities, exposure to areas
contaminated with Ebola, lack of food and drink, limited or imprecise
information, and little communication as to Negron’s condition and further
development.” (Id. at ¶ 18.)
Fortunately, the CT scan results returned normal and Negron “felt
perfectly.” (Id. at ¶¶ 19, 20.) So, the Plaintiffs requested to return to the ship to
resume their cruise. (Id. at ¶ 20.) The Defendant, apparently, decided against
The Court accepts as true the facts pled in the Amended Complaint. See
Beck v. Deloitte & Touche, 144 F.3d 732, 735 (11th Cir. 1998) (“In evaluating the
sufficiency of a complaint, a court must accept the well pleaded facts as true and
resolve them in the light most favorable to the plaintiff.”).
1

allowing Negron, an elderly passenger who had demonstrated an inability to
withstand the physical rigor of a cruise, to continue for three more days on the
high seas. As a result, the Plaintiffs were driven back to the port by taxi, at
which point the Defendant’s personnel prevented them from re-boarding and,
instead, entered their cabins, packed and removed their belongings, and
transported them to a hotel. (Id. at ¶¶ 21-26.) This, allegedly, caused the
Plaintiffs to become confused and anxious, while also leaving them stranded in
Barbados until Gonzalez obtained a temporary passport, as he boarded the
cruise with an expired passport. (Id. at ¶¶ 30-35.) In addition, the Defendant’s
“personnel w[ere] not careful when packing the Plaintiffs’ luggage,” causing the
Plaintiffs’ medication to become “disorganized and lost throughout their
belongings.” (Id. at ¶ 36.)
Because of this, the Plaintiffs were deprived of the cruise for which they
paid; incurred unanticipated expenses, including the cost of a plane ticket for
Gonzalez to Miami (not the port of embarkation); and faced “annoy[ing]”
questions from U.S. Customs about Gonzalez’s temporary passport, among other
complaints. (Id. at ¶¶ 37, 41, 42.) The Plaintiffs specify their damages as “severe
psychological damages, emotional distress, much personal discomfort,
uncertainty, fear and lack of safety,” and “undue expenses and costs.” (Id. at ¶
47.) For their troubles, the Plaintiffs request $900,000.00. (Id. at ¶ 48.)
The Plaintiffs filed suit on May 4, 2018, for intentional infliction of
emotional distress, false imprisonment, breach of contract, and unjust
enrichment. (ECF No. 1.) The Defendant moved to dismiss the Plaintiffs’ claim for
intentional infliction of emotional distress, which the Court granted, dismissing
that claim with prejudice. (ECF No. 13, 19.) The Plaintiffs then filed an amended
complaint adding new claims for negligence (“Count I”) and trespass (“Count V”).
(ECF No. 29.) Now, the Defendant moves to dismiss those claims. (ECF No. 30.)
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 for failure to state a claim under Federal Rule of Civil Procedure
12(b)(6), the Court must accept all of the complaint’s allegations as true,
construing them in the light most favorable to the plaintiff. Pielage v. McConnell,
516 F.3d 1282, 1284 (11th Cir. 2008).
3.

Analysis

The Defendant raises two arguments in the Motion: (1) that Count I is
actually a claim for negligent infliction of emotional distress, and requires
dismissal for failing to plausibly allege that the Plaintiffs were in the “zone of
danger”; and (2) that the trespass claim should be dismissed because the
Plaintiffs had no legal interest or ownership in their cruise cabin.
In opposition, the Plaintiffs do not dispute the Defendant’s
characterization of Count I, and argue: (1) that the Amended Complaint contains
sufficient allegations of physical impact to sustain a claim for negligent infliction
of emotional distress; (2) that, in the alternative, the Plaintiffs plausibly allege
that they were placed in immediate risk of physical harm; and (3) that the
Plaintiffs sufficiently allege a legally protected interest in their cabin and thus
state a claim for trespass.
The parties agree that this matter is governed by maritime law. See
Chaparro v. Carnival Corp., 693 F.3d 1333, 1337-38 (11th Cir. 2012) (applying
federal maritime law to negligence claim arising from cruise line’s conduct
during land-based excursion).
A.

The Plaintiffs Cannot Recover for Emotional Harm

To begin, the Court agrees with the Defendant that the Plaintiffs’
negligence claim is, in fact, one for negligent infliction of emotional distress. The
Plaintiffs do not specify any physical harm for which they seek recovery under
this claim. Rather, the Plaintiffs ask for “severe emotional distress” and “mental
anguish” damages allegedly resulting from the negligent conduct of the
Defendant. (ECF No. 29 at ¶ 53.) That is a claim for negligent infliction of
emotional distress. Chaparro, 693 F.3d at 1337-38 (a claim for negligent
infliction of emotional distress “requires ‘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 symptoms.’” (quoting Consol. Rail Corp. v. Gottshall, 512 U.S. 532, 544
(1994))); cf. id. at 1337 (holding that negligence claim was sufficiently pled where
the plaintiff was alleged to have “suffered various damages, including the loss of
Liz Marie’s life.”).
Properly understood, Count I must be dismissed. Under federal maritime
law, a plaintiff seeking recovery for emotional harm due to the negligent acts of
another must satisfy “the ‘zone of danger’ test.” Id. at 1338. That doctrine bars
recovery for negligently inflicted emotional harm unless the plaintiff (i) “sustains
a physical impact as a result of” the negligent act of a defendant, or (ii) is
otherwise “placed in immediate risk of physical harm by” that conduct. Id.
(quoting Stacy v. Rederiet Otto Danielsen, A.S., 609 F.3d 1033, 1035 (9th Cir.
2010)); Smith v. Carnival Corp., 584 F. Supp. 2d 1343, 1354 (S.D. Fla. 2008)
(Moore, J.) (quoting Gottshall, 512 U.S. at 547-48 (holding that “those within the
zone of danger can recover for fright, and those outside of it cannot.”)).
First, there are no plausible allegations that the Plaintiffs sustained a
“physical impact” from the Defendant’s allegedly negligent conduct. In their
response brief, the Plaintiffs suggest the opposite due to their: (i) difficulty
locating medications in their luggage as a result to the Defendant’s method of
packing same; (ii) admission to a hospital in Barbados where other patients were
treated for ebola; and (iii) wait in a taxi outside the cruise ship while the
Defendant packed the Plaintiffs’ belongings. (ECF No. 32 at p. 4.)
But “the
words ‘physical impact’ do not encompass every form of ‘physical contact’” and,
“in particular, they do not include a contact that amounts to no more than an
exposure.” Martins v. Royal Caribbean Cruises Ltd., 216 F. Supp. 3d 1347, 1372
(S.D. Fla. 2016) (Goodman, Mag. J.) (citing Metro-N. Commuter R. Co. v. Buckley,
117 S. Ct. 2113, 2118 (1997)). Thus, to constitute a “physical impact” under the
first and second theories, above, the Plaintiffs must plausibly allege that they
actually contracted ebola or suffered a physical injury from their inability to
locate medicine within their suitcases. See id. at 1372-73 (holding that “the
‘physical impact’ test is limited to circumstances where the emotional distress
derives from an actual physical injury,” and rejecting argument that a plaintiff
suffered a physical impact through contact with an individual with
Salmonellosis, where plaintiff did not contract disease); Buckley, 117 S. Ct. at
2118-19 (holding similarly and rejecting an “expansive definition of ‘physical
contact’”). They have not. Nor have the Plaintiffs factually alleged that they
suffered “actual physical injury” from their time in the taxi, and that theory
cannot support the negligence claim either. Martins, 216 F. Supp. 3d at 137273.

And any suggestion that the Plaintiffs’ claimed emotional damages
resulted from an “immediate risk of physical harm” is legally implausible given
the complete absence of allegations of a “physical manifestation” of such an
injury. Compare (ECF No. 29 at ¶ 40 (“Upon their return to Puerto Rico, Negron
was thoroughly examined by local physicians, obtaining a clean bill of health
with no traces of a heart attack or similar situation that could put her health or
life at risk”)), with Martins, 216 F. Supp. 3d at 1371-72 (holding that “a plaintiff
seeking to recover for negligent infliction of emotional distress under the second
method of meeting the zone of danger test (i.e., when there is no physical impact)
is required to also demonstrate an objective physical manifestation of the alleged
emotional injury”), and Tassinari v. Key West Water Tours, L.C., 480 F. Supp. 2d
1318 (S.D. Fla. 2007) (Moore, J.) (holding the same, and noting the rule’s
“beneficial public policy of placing an objective and easily applied restriction on
frivolous claims”).
Perhaps the Defendant’s cautiousness deprived the Plaintiffs of the benefit
of their bargain. Maybe a ticket refund is in order. But the factual allegations of
the Amended Complaint come nowhere close to stating a claim for emotional or
psychological damages. Count I is dismissed with prejudice.
B.

The Plaintiffs Fail to State a Claim for Trespass

Count V, the trespass claim, is premised on the Defendant’s entry into the
Plaintiffs’ assigned cabin to collect and deliver their belongings. (ECF No. 29 at ¶
73.) In its motion, the Defendant argues that the Plaintiffs had no “property
interest or legally protected interest” in their cabin and therefore fail to state a
claim for trespass. (ECF No. 30 at p. 6.) The Court agrees.
“While no rule of trespass exists in maritime law, federal courts may
borrow from a variety of sources in establishing common law admiralty rules to
govern maritime liability where deemed appropriate.” Marastro Compania
Naviera, S.A. v. Canadian Maritime Carriers, Ltd., 959 F.2d 49, 53 (5th Cir.
1992). And courts look to the Restatement (Second) of Torts to determine the law
of maritime trespass. Id.; Stuart Cay Marina v. M/V Special Delivery, 510 F.
Supp. 2d 1063, 1074-75 (S.D. Fla. 2007) (Middlebrooks, J.) (applying
Restatement 2d of Torts, § 158 to maritime trespass claim).
Section 158 defines the scope of liability in trespass claims for intentional
intrusions on land:
One is subject to liability to another for trespass, irrespective of
whether he thereby causes harm to any legally protected interest of
the other, if he intentionally,
(a) enters land in the possession of another, or causes a thing
or a third person to do so, or

(b) remains on the land, or
(c) fails to remove from the land a thing which he is under a
duty to remove.
Restatement (2d) of Torts, § 158 (emphasis added). “Possession” is defined as
follows:
a person who is in possession of land includes only one who
(a) is in occupancy of land with intent to control it, or
(b) has been but no longer is in occupancy of land with intent
to control it, if, after he has ceased his occupancy without
abandoning the land, no other person has obtained
possession as stated in Clause (a), or
(c) has the right as against all persons to immediate
occupancy of land, if no other person is in possession as
stated in Clauses (a) and (b).
Id. at § 157 (emphasis added). Finally, “occupancy” under that section means
“such acts done upon the land as manifest a claim of exclusive control of the
land, and indicate to the public that he who has done them has appropriated it.”
Id. at Comment (a) (emphasis added); see also Restatement (2d) of Torts, Division
One, Chapter Seven, Topic One, Scope Note (1965) (this chapter “deal[s] with
invasions of the interest in the exclusive possession and physical condition of
land”).
So, to state a claim for trespass, the Plaintiffs must plausibly allege that
they had the exclusive control or possession of their cruise ship cabin. They have
not, and cannot.
Any possession the Plaintiffs had in the cruise cabin was not exclusive
and, indeed, was expressly subordinate to that of the Defendant under the terms
of the cruise ticket. To that end, the ticket, which the Plaintiffs attached to the
Amended Complaint, provides that the Defendant may:
search the stateroom, property or baggage of any Passenger, . . .
disembark or refuse to embark the Passenger, . . . or restrain any
Passenger at any time, without liability, at the risk and expense of
the Passenger, when in the sole opinion of the Carrier or Captain the
Passenger’s conduct or presence . . . is believed to present a possible
danger, security risk or be detrimental to himself or the health,
welfare, comfort or enjoyment of others.
(ECF No. 29-1 at § 8(e).) There are no factual allegations that the Defendant’s
cabin entry was done for a purpose other than terminating the Plaintiffs’ trip in
an effort to avoid a medical emergency on the high seas involving Negron, an
elderly passenger who presented to ship doctors as physically unfit for an open

ocean voyage. Indeed, no other inference may plausibly be drawn from the
Amended Complaint. Thus, the Plaintiffs have not, and cannot, plausibly allege
that their “possession” of the cabin was exclusive, and the Court dismisses
Count V with prejudice.
4.

Conclusion

In sum, the Court grants the Defendant’s motion to dismiss (ECF No. 30)
and dismisses Count I and V of the Amended Complaint (ECF No. 29) with
prejudice.
Done and ordered at Miami, Florida, on December 19, 2018.
________________________________
Robert N. Scola, Jr.
United States District Judge