Telles v. SeaWorld Parks & Entertainment LLC.

Filing 30

OPINION AND ORDER: Plaintiff's Count II, III, and V of the Second Amended Complaint are STRIKEN. Defendant SeaWorld's Second Motion to Dismiss 24 with respect to such counts is hereby DISMISSED AS MOOT. Defendant SeaWorld's Second Motion to Dismiss 24 with respect to the remaining Counts I and IV is GRANTED. In Essence, this case is dismissed in its entirety. Signed by District Judge Robert G. Doumar on 09/03/2020. (bboy, )

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IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF VIRGINIA
NEWPORT NEWS DIVISION

COURTNEY E.N. TELLES,
Plaintiff,
V.

CIVILNO.4:20cv6

SEAWORLD PARKS &

ENTERTAINMENT LLC,
Defendant.

OPINION AND ORDER

This personal injury action arises from an incident that occurred on September 30, 2018,
when Ms. Courtney E.N. Telles("Plaintiff) attended the Howl-O-Scream event at Busch Gardens
Williamsburg. Plaintiff claims that an unidentified employee of defendant SeaWorld Parks &

Entertainment LLC's ("Defendant SeaWorld"), who was dressed up as a clown, intentionally
startled Plaintiff causing her to hit her head on a set of lockers and suffer serious injuries. ECF
No. 22. Plaintiffs second amended complaint fails to specify in particular counts the exact causes

of action being pursued against Defendant SeaWorld. However, this Court, in an endeavor to
clarify these allegations, which are lumped together, has discerned the following alleged causes of
action and listed them in counts: first, Count I, assault (ECF No. 22 1|10); second. Count II,
negligence under a premise's liability theory (id. ^ 12); third, Count III, negligent training and
supervision (id.

14(a)-(b)); fourth, Count IV, simple negligence (id ^14(c)); and fifth, Count

V, gross negligence (id ^ 14). Defendant SeaWorld now moves to dismiss Plaintiffs second

amended complaint pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure for failure
to state a claim. ECF No. 24. The Court concludes that oral argument is unnecessary because the
1

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facts and legal arguments are adequately presented in the parties' briefs. For the reasons stated
herein, Counts II, III, and V of the second amended complaint are STRICKEN on the Court's
own motion, and Defendant SeaWorld's motion to dismiss with respect to the remaining Counts I
and IV are GRANTED.
I.

PROCEDURAL HISTORY

On November 19, 2019, Plaintiff commenced this personal injury action against Busch
Entertainment Corp., d/b/a SeaWorld Parks & Entertainment, LLC d/b/a Busch Gardens

Williamsburg in the Circuit Court for the City of Norfolk seeking $1,500,000 in damages for
injuries she suffered at Busch Gardens Williamsburg on September 30, 2018.

Circuit Court

Complaint, ECF No. 1-1 ("Cir. Ct. CompL") at 6.
On December 20,2019, Defendant SeaWorld removed the action to this Court piirsuant to
28 U.S.C. §§ 1332, 1441, and 1446. ECF No. 1. On December 27, 2019, Defendant SeaWorld

filed a motion to transfer this case from the Norfolk Division to the Newport News Division
pursuant to 28 U.S.C. § 1404 ("Motion to Transfer") as well as a memorandum in support of its
Motion to Transfer. ECF Nos. 5, 6. On that same date. Defendant SeaWorld filed a motion to

dismiss for failure to state a claim under Rule 12(b)(6) as well as a memorandum in support of its
Motion to Dismiss ("First Motion to Dismiss"). ECF Nos. 7, 8. Defendant SeaWorld's First

Motion to Dismiss sought to dismiss Plaintiffs Complaint with prejudice. ECF No. 7 at 1.
Defendant SeaWorld's First Motion to Dismiss also stated that Plaintiff "[ijncorrectly identified
in the caption as'Busch Entertainment Corp. d/b/a SeaWorld Parks & Entertainment, LLC.' Busch
Entertainment Corporation was converted into a limited liability company on November 19, 2009,
and thereafter merged with SeaWorld, which is the sole surviving entity." Id. at 1 n.l.

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On December 31, 2019, Plaintiff filed a motion to amend/correct complaint and correct
misnomer ("Motion to Amend and Correct Misnomer") and a brief in support. EOF Nos. 9, 10.
On January 2, 2020, Plaintiff sought an extension of time to respond to Defendant SeaWorld's
First Motion to Dismiss ("First Motion for Extension"). EOF No. 11. On January 2, 2020, the
Court granted Plaintiffs unopposed Motion to Amend and Correct Misnomer and held that

Defendant SeaWorld need not file new responsive pleadings and that SeaWorld's previously filed
responsive pleadings were deemed filed in response to Plaintiffs amended complaint. ECF No.
12. Plaintiff filed her amended complaint on January 6,2020("First Amended Complaint"). ECF
No. 13. The First Amended Complaint alleges four claims against Defendant SeaWorld: (1)
assault; (2) negligence under a premise's liability theory;(3) negligent training and supervision;
and (4)simple negligence. Id. On January 6, 2020, The Honorable Magistrate Judge Douglas E.
Miller granted Plaintiffs First Motion for Extension to respond to Defendant SeaWorld's First
Motion to Dismiss. ECF No. 14.

On January 17, 2020,the Court granted Defendant SeaWorld's Motion to Transfer and the

case was transferred from the Norfolk Division to the Newport News Division. ECF Nos. 16, 17.
On January 17,2020,Plaintifffiled a response in opposition to Defendant SeaWorld's First Motion

to Dismiss. ECF No. 17. On January 23, 2020, Defendant SeaWorld filed a reply brief. ECF No.
18. On February 3, 2020, Defendant SeaWorld requested oral argument for its pending First

Motion to Dismiss, stating that both parties agreed that oral argument was appropriate. ECF No.
19. On February 24, 2020,the Court conducted a hearing on same("Motion to Dismiss Hearing").
ECF No. 20. At the conclusion of the Motion to Dismiss Hearing, the Court ruled from the bench
and granted Defendant SeaWorld's First Motion to Dismiss and dismissed Plaintiffs First

Amended Complaint as follows. The Court dismissed Count II, the negligence under a premise's

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liability theory claim, and Count III, the negligent training and supervision claim, with prejudice.
See Transcript of Motion to Dismiss Hearing,ECF No.23("Tr. Mot. to Dismiss Hr'g") at 8:7-10.
The Court dismissed Count I, the assault claim, and Count IV,the simple negligence claim, without
prejudice. Id. at 9:6-9; 11:1-6. The Court also granted Plaintiff leave to amend Counts I and IV
by filing an amended complaint within fourteen (14) days, which was memorialized in a written
Order. Id; ECF No. 21.

Based on the Court's bench ruling during the Motion to Dismiss Hearing and its February
25 Order, Plaintifffiled her second amended complaint("Second Amended Complaint")on March
6, 2020. S^ Second Amended Complaint, ECF No. 22 ("Second Am. Compl."). The Second
Amended Complaint provides additional factual details and realleges the same four claims against

Defendant SeaWorld, and asserts a fifth claim of gross negligence, despite the Court's rulings from
the bench.'

On March 20, 2020, Defendant SeaWorld filed the instant Motion to Dismiss Plaintiffs

Second Amended Complaint("Second Motion to Dismiss") along with a Memorandum in Support
of its Motion to Dismiss Plaintiffs Second Amended Complaint ("Memorandum in Support").
ECF Nos. 24, 25. On April 2, 2020, Plaintiff filed a motion and brief in support for extension of

time to file a response to Defendant SeaWorld's Motion to Dismiss ("Second Motion for
Extension"), which was granted by The Honorable Magistrate Douglas E. Miller on April 3, 2020.
ECF Nos. 26, 27. Plaintiff filed her response in opposition to Defendant SeaWorld's Second
Motion to Dismiss on May 4, 2020, and conceded that the Court previously ruled "that this case

may continue as to the intentional tort of assault...."("Response in Opposition"). ECF No. 28 at

'The Court during the Motion to Dismiss hearing did not give Plaintiff leave to amend her First Amended Complaint
to add additional claims, such as the new gross negligence claim. Instead the Court granted Plaintiff limited leave to
amend her assault claim (Count I) and simple negligence claim (Count IV).
Tr. Mot. to Dismiss Hr'g at 9:6-911:1-6.

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1-2. On May 11, 2020, Defendant SeaWorld filed its reply to Plaintiffs Response in Opposition
("Reply"). ECF No. 29. The Court in this era of pandemics declined to set the matter for hearing

because the facts and legal arguments are adequately presented in the parties' briefs and oral
argument would not aid in the Court's decisional process. See Fed. R. Civ. P. 78. Defendant
SeaWorld's Second Motion to Dismiss is now before the Court. ECF No. 24.
II.

FACTUAL BACKGROUND

The facts recited herein are drawn from the Plaintiffs Second Amended Complaint and are

assumed true only for purposes of deciding the motion to dismiss currently before the Court. They
are not to be considered factual findings by this Court. See Erickson v. Pardus. 551 U.S. 89, 94
(2007).

This personal injury action arises from an unidentified SeaWorld employee, who was
dressed up as a clown,intentionally startling Plaintiff causing her to hit her head on a set of lockers

(the "Howl-O-Scream Incident"). Sec. Am.Compl. fl5-9. Specifically, on September 30,2018,
at approximately 6:55 p.m., Plaintiff and a friend, Mr. John Dickerson ("Mr. Dickerson"), were

attending the Howl-O-Scream Halloween event at Busch Gardens amusement park located in
Williamsburg, Virginia ("Busch Gardens Williamsburg"). S^ id

1,6,13. Busch Gardens

Williamsburg is owned and operated by Defendant SeaWorld.

According to the Second Amended Complaint, Plaintiff and Mr. Dickerson were lawfully
situated at the set of blue rental lockers located near the entrance of the ride Tempesto, which is in
the Italy section of Busch Gardens Williamsburg, when the Howl-O-Scream Incident occurred.

Id 12. Plaintiff states that she and Mr. Dickerson were attempting to secure their personal items
in the blue rental lockers in order to ride Tempesto, when "a fully costumed, make-up dressed,
bald-head, angry-yet odd, smiling park employed clown" crept up behind her, "whisper[ed]

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something unintelligible in her right ear... and then hoUer[ed] out[.]" Id fl 7-8. Plaintiff alleges
that when the unidentified employee of Defendant SeaWorld crept up behind her she was bent
over, facing the lockers, focused on securing her belongings, and "unaware of what was going on
behind her." Id

6-8. However,Plaintiff also states that right before the unidentified employee

crept up behind her, "she felt and could quickly sense something awry." Id ^ 8. Plaintiff alleges
that the unidentified employee of Defendant SeaWorld intentionally startled, assaulted and
frightened her, causing her to "lurch[] up, shocked, scared and totally frightened. . . [and] fall
backwards and strike her head on a set of lockers. .. ." Id m 9, 10, 12. Plaintiff alleges that
immediately after the Howl-O-Scream Incident, she felt pain and that "the costumed clown and
another defendant employed actor quickly exited the blue rental locker area in unison. . . [and

were] not seen again while the Plaintiff is at the theme park." Sec. Am. |
Compl. 9. Plaintiff
contends that her friend, Mr. Dickerson, witnessed the entire Howl-O-Scream Incident. Id

Plaintiff alleges that an unidentified employee of Defendant SeaWorld startled her, and

that his true identity was concealed because he was "fully costumed, [and] dressed [as a] baldhead[ed], angry-yet odd, smiling clown." Id

7,11. Plaintiff also contends that "[t]he only

information known by the [P]laintiff was that the clown was a[n][alleged] male employee, wearing
a costume with red hair, a frilled collar and had on exaggerated makeup." Id T| 11. Plaintifffurther
argues that she had a "reasonable expectation ofbeing in located in a safe zone," and was "mentally
not expecting to be intentionally frightened, scared, or startled by a Howl-O-Scream actor." Id
6-7. As a result of the Howl-O-Scream Incident, Plaintiff contends that has sustained serious and

permanent injuries from alleged interaction, which "will continue to disable [Pjlaintiff from all
other activities formerly associated with her person and station in life." Id

15-18.

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III.

LEGAL STANDARD

Defendant SeaWorld moves to dismiss Plaintiffs Second Amended Complaint pursuant to
Rule 12(b)(6) of the Federal Rules of Civil Procedure for failure to state a claim upon which relief
can be granted. The function of a motion to dismiss under Rule 12(b)(6) is to test the legal
sufficiency of the complaint Neitzke v. Williams. 409 U.S. 319, 326-27(1989).
A Rule 12(b)(6) motion permits dismissal of a complaint where it "fail[s] to state a claim
upon which relief can be granted." Fed. R. Civ. P. 12(b)(6). A Rule 12(b)(6) motion must be read
in conjunction with Rule 8(a)(2), which requires "a short and plain statement of the claim showing
that the pleader is entitled to relief," Fed. R. Civ. P. 8(a)(2), so as to "give the defendant fair notice
of what the . . . claim is and the grounds upon which it rests." Bell Atl. Corp. v. Twomblv. 550
U.S. 544, 550(2007)(internal quotation omitted). To survive a motion to dismiss, the complaint
need not contain detailed factual allegations, but the "[f]actual allegations must be enough to raise
a right to relief above the speculative level." Twomblv. 550 U.S. at 555. The claim must be
"plausible on its face." Id at 570.

When reviewing the legal sufficiency of a complaint, the Court must construe the factual

allegations "in the light most favorable to plaintiff." Schatz v. Rosenberg. 943 F.2d 485, 489(4th
Cir. 1991)(quotation omitted); Davis. 896 F. Supp. at 566 (citing Martin Marietta Corp. v. Inf1
Telecomm. Satellite Org.. 991 F.2d 94, 97 (4th Cir. 1992)). "Although a complaint need not
contain detailed factual allegations, '[Ijactual allegations must be enough to raise a right to relief
above the speculative level on the assumption that all the allegations in the complaint are true.'"
Andreana v. Virginia Beach City Pub. Sch.. No. 2:17-CV-574,2018 WL 2182297, at *5(E.D. Va.
May 9, 2018)(quoting Twpmbly,550 U.S. at 555).

Legal conclusions, which provide the complaint's framework, are not entitled to the

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assumption of truth if they are not supported by factual allegations. Ashcroft v. Iqbal. 556 U.S.
662, 664 (2009). "Threadbare recitals of the elements of a cause of action, supported by mere
conclusory statements, do not suffice." Id at 678. If the factual allegations alleged by the plaintiff
do not nudge the plaintiffs claims "across the line from conceivable to plausible, their complaint
must be dismissed." Twomblv. 550 U.S. at 570. Additionally,"a plaintiff may not introduce new
allegations or new facts in an opposition to a defendant's motion to dismiss." Hooker v. Disbrow.

No. 1:16-CV-1588-GBL-JFA, 2017 WL 1377696, at *4(E.D. Va. Apr. 13, 2017)(citing Barclay
White Skansa. Inc.v. Battelle Mem'l Inst.. 262 Fed. Appx. 556, 563 (4th Cir. 2008)(stating that

plaintiffs may not amend their complaint through briefs in opposition to a motion for summary
judgment)).

The Fourth Circuit has held that a motion to dismiss under Rule 12(b)(6) should be granted
only in "very limited circumstances." Rogers v. Jefferson-Pilot Life Ins. Co.. 883 F.2d 324, 325

(4th Cir. 1989). However, dismissal is appropriate if it appears that the plaintiff is not "entitled to
relief under any legal theory which might plausibly be suggested by the facts alleged." Harrison
V. United States Postal Serv.. 840 F.2d 1149, 1152 (4th Cir. 1988)(citation omitted); Davis v.
Hudeins, 896 F. Supp. 561, 566 (E.D. Va. 1995)(citing Conlev v. Gibson. 355 U.S. 41, 45-46
(1957)).
IV.

DISCUSSION

As noted above, Plaintiffs Second Amended Complaint asserts five^ causes of action
against Defendant SeaWorld in relation to the Howl-O-Scream Event. Defendant SeaWorld,in its
Second Motion to Dismiss, seeks dismissal of all Plaintiffs claims.

^ It is unclear to the Court whether Plaintiffs Second Amended Complaint actually seeks to replace her original claim
of simple negligence with a gross negligence claim or whether Plaintiff seeks to also allege a claim for gross
negligence in addition to her claim of simple negligence.

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However, before the Court turns to the merits of Defendant SeaWorld's Second Motion to

Dismiss, the Court notes that Plaintiffs Second Amended Complaint does not comport with the
Court's bench ruling during the Motion to Dismiss Hearing for two reasons—first, Plaintiffs
Second Amended Complaint reasserts the very claims—Count II, the negligence under a premise's
liability theory claim, and Count III, the negligent training and supervision claim—that the Court
previously dismissed with prejudice; and second. Plaintiffs Second Amended Complaint seeks to
assert a new claim of gross negligence, without leave of the Court.

Plaintiff in her Response in Opposition, "acknowledges that she refiled her original

negligence cause of action, in abundance of caution, to maintain any and all factual underpinnings
that were considered in this Honorable Court's ruling [during the Motion to Dismiss Hearing] ...
[And]Plaintiff understands that the negligence count is stricken by this Court." ECF No. 28 at 12. However, Plaintiffs Response in Opposition does not address her new claim of gross
negligence.

During the Motion to Dismiss Hearing, the Court only granted Plaintiff leave to amend her

assault claim (Count I) and simple negligence claim (Count IV).^ Nonetheless, Plaintiff reasserted
Counts II and III and seems to add a fifth claim of gross negligence. These claims exceed scope
of the Court's bench ruling and thus are not properly before the Court. Therefore, on the Court's
own Motion, Count II, Count III, and Count V,Plaintiffs new gross negligence claim, are hereby
stricken pursuant to Rule 12(1) of the Federal Rules of Civil Procedure. Accordingly, Defendant
SeaWorld's Second Motion to Dismiss with respect to these claims is dismissed as moot. Because

Counts II, III, and V are stricken, the only issues before the Court is whether Plaintiffs remaining

^ During the Motion to Dismiss Hearing, the Court did not dismiss with prejudice Plaintiffs Count IV,simple
negligence claim, instead the Court only dismissed Count II, the negligence under a premise's liability theory claim,
and Count III, the negligent training and supervision claim.

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causes of actions, Counts I (negligence) and IV (simple negligence), as amended, state claim for
relief sufficient to survive Defendant SeaWorld's pending Motion to Dismiss. The Court will
address each claim in turn.
A.

Plaintiff's Assault Claim

As noted above, Count I asserts a state law claim of assault against Defendant SeaWorld.
See Sec. Am. Compl. ^10. To state a claim of assault under Virginia law, a plaintiff must allege
that "(1)'an act intended to eause either[(a)]harmful or offensive contact with another person
or[(b)]apprehension of such contact'(2)'that creates in that other person's mind a reasonable

apprehension of an imminent battery.'" Dao v. Faustin. 402 F. Supp. 3d 308,317(E.D. Va. 2019)
(quoting Koffman v. Garnett. 574 S.E.2d 258, 261 (Va. 2003)((citing Restatement (Second) of
Torts § 21 (1965)). "Unlike the tort of battery, '[tjhere is no requirement that the victim of such
acts be physically touched.'" Pendleton v. Nat'l Wildlife Fed'n. No. CIV.A 5:IOCV00009, 2010
WL 1212566, at *4(W.D. Va. Mar. 26, 2010)(quoting Etherton v. Doe. 268 Va. 209, 597 S.E.2d
87, 89(Va. 2004)).

Plaintiffs claim for assault is premised on the HowhO-Seream Incident that occurred on
September 30, 2018, while Plaintiff and her friend Mr. Dickerson attended the HowFO-Scream

event at Busch Gardens Williamsburg.

Sec. Am. Compl.

1,7. As previously summarized.

Plaintiff alleges that while she was attempting to secure her personal items in the blue rental
lockers, an alleged employee of Defendant SeaWorld, who was dressed up as a clown, crept up
behind her, "whisper[ed] something unintelligible in her right ear . . . and then holler[ed] out[.]"

Id.

5-8. Plaintiff alleges that when the unidentified employee of Defendant SeaWorld crept up

behind her she was bent over,facing the lockers,focused on securing her belongings, and "unaware
of what was going on behind her." Id TUf 6-8. However, Plaintiff also states that right before the

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unidentified employee of Defendant SeaWorld crept up behind her, "she felt and could quickly
sense something awry." Id T| 8. Plaintiff alleges that the unidentified employee of Defendant

SeaWorld intentionally startled, assaulted and frightened her, causing her to "lurch[] up, shocked,
scared and totally frightened. . . [and] fall backwards and strike her head on a set of lockers. ..."
1411119, 10, 12.
Defendant SeaWorld contends that Plaintiffs Count I should be dismissed because

Plaintiffs Second Amended Complaint, like the First Amended Complaint, "fails to plead any
actual threat, 'harmful or offensive contact'(she pleads no physical contact at all), or other details
[from the Howl-O-Scream Incident] that would lead to a plausible claim for tortious assault." ECF
No.25 at 4. In fact, Defendant SeaWorld argues that the entire factual support for Plaintiffs Count

I "is the allegation that 'plaintiff was intentionally startled, assaulted, and frightened. . .

Id.

(citing Sec. Am. Compl. ^ 10). Defendant SeaWorld also contends that Plaintiffs attempt to
provide additional support for Count I—namely, the allegation that "[a] man [dressed as a clown]
whisper[ed] something unintelligible in to [Plaintiffs] right ear and side of her front-facing head
and then hollers out!" (Sec. Am. Compl. H 8)—is insufficient to plausibly suggest that Plaintiff
was placed in reasonable apprehension of imminent battery. ECF No. 25 at 4-5. This is because

"there is no mention ofany contact whatsoever,and whatever the clown said was 'unintelligible'—
which, by definition, means she didn't hear what he said and could not have plausibly thought it
was a threat that would cause a reasonable apprehension of imminent battery." Id
Defendant SeaWorld relies Eastern District of Virginia case, Dalv v. Virginia. No.

3:14CV250-HEH, 2014 WL 2759078, at *10 (E.D. Va. June 17, 2014), as support. In Daly, the
court found that Virginia ABC agents who allegedly "bang[ed] on the passenger's side window

and shout[ed] at [p]laintiff may have been unsettling, but falls short of plausibly placing [p]laintiff

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in reasonable apprehension of bodily harm." No. 3:14CV250-HEH, 2014 WL 2759078, at *10

(E.D. Va. June 17, 2014). Based on Daly. Defendant SeaWdrld contends that "[i]f banging on a
window and shouting is not enough to state a claim for assault, then certainly Plaintiffs claims
[regarding the Howl-O-Scream Incident] . . . must fail as a matter of law. The fact that Plaintiff

has alleged she was in a "safe zone" [the] "Howl-O-Scream"[event] does nothing to change the
analysis." Id. at 5.

The Court previously dismissed Plaintiffs Count I without prejudice because it could not

reasonably infer from the facts alleged in Plaintiffs First Amended Complaint that the Howl-OScream Incident and the actions of the unidentified employee of Defendant SeaWorld stemming
thereof constituted an assault against Plaintiff. Mot. to Dismiss Tr. at 9:6-10("...but you're going
to have to set forth the facts which constitute an assault. It's not present in these facts."). The
Court has reviewed Plaintiff s Second Amended Complaint finds that Plaintiff has failed to cure

this factual deficiency and provide this Court with allegations that could "nudge [P]laintiffs claims
'across the line from conceivable to plausible.'" Twomblv. 550 U.S. at 570.

Specifically, the Court finds that Plaintiffs Second Amended Complaint does not
adequately allege necessary elements of assault—i.e. any actual threat, "harmful or offensive
contact[,]" or any apprehension of an immediate battery. Rather, the Court finds that Plaintiffs

attempt to bolster her assault claim through the addition of factual allegations—^namely, the

allegation that the unidentified employee of Defendant SeaWorld whispered something
unintelligible in her right ear before hollering out—falls short of plausibly placing Plaintiff in

reasonable apprehension of bodily harm.'^ The Court reaches this conclusion because any
inference of Plaintiffs apprehension of imminent battery by the unidentified employee of
^ The Court finds that the new factual allegations in Plaintiffs Second Amended Complaint also fail to plead that
there was an actual threat or harmful or offensive contact.
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Defendant SeaWorld is discredited by the affirmative allegations that (1) prior to the employee

hollering out Plaintiff was bent over, facing the lockers, focused on securing her belongings,
unaware of what was going on behind her; and(2)that she could not comprehend the forewarning
unintelligible whisper.

Moreover, the Court finds that Plaintiffs allegations in her Second Amended Complaint
are insufficient to establish a cause of action for assault based on relevant case law in the Eastern

District of Virginia as well in the Virginia state courts. For example, the Virginia Supreme Court
in Kauftnan held that the plaintiffs pleadings were insufficient to establish a claim of assault

against defendant because the plaintiff did not have apprehension of imminent battery "in the very

short period of time that it took the coach to lift Andy into the air and throw him violently to the
ground." 574 S.E.2d at 261;^also Bowles v. Mav. 166 S.E. 550, 553 (Va. 1932)(holding that

the facts ofrecord were insufficient to prove a claim for assault, where the only evidence to support
the claim was that the defendant shook his finger at the plaintiff"while the parties were seated and
plaintiff was some eight feet or more from where defendant was sitting"). Similarly, the district
court in Dalv, dismissed the plaintiffs assault claim and found that allegations of Virginia ABC

officers "banging on the passenger's side window and shouting at [the pjlaintiff[while he was in
the vehicle] may have been unsettling, [but fell] short of plausibly placing [the p]laintiff in
reasonable apprehension of bodily harm." No. 3:14CV250-HEH, 2014 WL 2759078, at *10(E.D.
Va. June 17, 2014);^ Balas v. Huntington Ingalls Industries. Inc.. 711 F.3d 401, 412 (4th Cir.
2013)(affirming the dismissal of the plaintiffs assault claim because plaintiff failed to show that

her supervisor's hug"was harmful or offensive, or that[her supervisor]intended the hug to involve
any contact beyond the hug itself or intended to make [the plaintiff] think that it would. The

circumstances indicate that the requisite intent was absent, and any apprehension of an imminent

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battery [the plaintiff] might have felt was not objectively reasonable.").
Accordingly, Count I of Plaintiffs Second Amended Complaint is dismissed and
Defendant SeaWorld's Second Motion to Dismiss is granted.
B.

Plaintiff's Negligence Claim

Count rV of Plaintiffs Second Amended Complaint asserts a simple claim of negligence
against Defendant SeaWorld. Sec. Am. Compl. *\\ 14(c). However, based on Plaintiffs Response
in Opposition to Defendant SeaWorld's Second Motion to Dismiss,it seems that Plaintiff no longer
seeks to assert any type of negligence claim against Defendant SeaWorld. ECF No. 28 at 1-2

("Plaintiffasks this court to only sustain, consistent with its ruling from the bench at oral argument
the denial of the motion as to the civil assault cause of action. . . . Plaintiff understands that the

negligence count is stricken by this Court."). To the extent Plaintiff misunderstood the Court's

ruling from the bench during the Motion to Dismiss Hearing—which permitted Plaintiffto proceed
with Count IV—and Plaintiff has not conceded the viability of her negligence claim, the Court
will briefly discuss such claim below.

To state a claim of negligence under Virginia law, a "[pjlaintiff must allege that (i)

[djefendants owed him a legal duty; (ii) [djefendants breached that legal duty; (iii) [pjlaintiff
suffered damages; and (iv) the damages were proximately eaused by [djefendants' actions."

Vaughn V. Patient First. No.4:16CV39,2016 WL 11673421,at *5(E.D. Va. Aug. 10,2016)(citing
Federico v. Lincoln Militarv Hous.. LLC. 127 F. Supp. 3d 623,641 (E.D. Va. 2015)).
Plaintiffs Second Amended Complaint alleges that Defendant SeaWorld was negligent
because (1) it owed various duties to Plaintiff including, the duty "to exercise reasonable care for

the safety of the [Pjlaintiff]^;]"(2)that Defendant SeaWorld breached such duties;(3)that Plaintiff
suffered serious injuries as a result of Defendant SeaWorld's breaches and the Howl-O-Scream

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Incident; and (4) that Defendant SeaWorld's "negligence and recklessness" was "a direct and

proximate" cause of Plaintiffs injuries and damages. Sec. Am. Compl.

14(c), 15-17.

Defendant SeaWorld contends that Plaintiffs Count IV must be dismissed because

Plaintiff fails to plead (1) "facts showing how [Defendant] SeaWorld breached any duty to
Plaintiff, or that any such breach was the proximate cause of her alleged damages [from the Howl0-Scream Incident;]" and (2)"any respondent superior liability such that [Defendant] SeaWorld
could be liable for the unknown employee's actions." ECF No. 25 at 6. Specifically, Defendant

SeaWorld argues that Plaintiffs negligence claim rests on three duties:(1) the duty to "exercise
ordinary care in the maintenance ofits premises to protect the plaintifffrom harm and owed a duty
to warn of any dangerous or hazardous conditions."(Sec. Am. Compl.
train, supervise, and monitor its employees; (id

4,14(d));(2)the duty to

14(a)-(b)); and (3) the duty to "exercise

reasonable care for Plaintiffs safety[]"(id ^[14(c)). Two of these duties—the duty to maintain the

premises and the duty to train, supervise, and monitor its employees—were dismissed by this Court
during the Motion to Dismiss Hearing. Id at 7. Defendant SeaWorld argues to the extent it did

have a duty "to exercise reasonable care for Plaintiffs safety[,]" Plaintiff has failed to "plead any
factual allegations tending to show that [Defendant] SeaWorld was, itself, negligent, nor does
Plaintiff plead a breach of duty attributable to [Defendant] SeaWorld." Id

Defendant SeaWorld also argues that to the extent Plaintiff relies on the theory of
respondeat superior as a basis for attributing liability to Defendant SeaWorld for the unidentified
employee's alleged intentional actions that caused the Howl-O-Scream Incident, the Second

Amended Complaint offers no new substantive support for this allegation. Moreover, SeaWorld

argues "[e]ven if Plaintiff were able to establish the clown was a SeaWorld employee, she pleads

that the clown's acts were intentional...[and][o]ne cannot be intentionally negligent in Virginia."

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Case 4:20-cv-00006-RGD-DEM Document 30 Filed 09/03/20 Page 16 of 17 PageID# 192

Id. at 8 n.3 (quoting Willoughbv v. Virginia. Civil Action No. 3:16cv784, 2017 U.S. Dist. LEXIS
153417, at *17(E.D. Va. Sep. 20, 2017)).

The Court agrees and finds that Plaintiffs Second Amended Complaint fails to plausibly
allege a claim of negligence against Defendant SeaWorld. At bottom, the Court takes issue with

the "duty" and "breach" prongs requisite to establishing simple negligence. Specifically, the Court
finds that even though Plaintiffs Second Amended Complaint alleges that Defendant SeaWorld
had a duty "to exercise reasonable care for Plaintiffs safety[,]" Plaintiff fails provide any factual
allegations to show how Defendant SeaWorld breached such duty in connection with the Howl-0Scream Incident, or how Defendant SeaWorld would be responsible for its unidentified
employee's alleged actions during the Howl-O-Scream Incident. "Negligence cannot be presumed
solely because an accident occurred." Kerzner v. Home Depot. U.S.A.. Inc.. No. 2:19-CV-618,

2020 WL 1237009, at *2(E.D. Va. Mar. 13, 2020). Thus, because Plaintiff has failed to satisfy
the duty and breach prongs required to establish simple negligence, Plaintiffs Count IV is

dismissed and Defendant's Second Motion to Dismiss Count IV should be granted.
V.

CONCLUSION

For the foregoing reasons, Plaintiffs Counts II, III, and V of the Second Amended

Complaint are STRICKEN pursuant to Rule 12(f) of the Federal Rules of Civil Procedure. ECF

No. 22. Accordingly, Defendant SeaWorld's Second Motion to Dismiss with respect to such
counts is hereby DISMISSED AS MOOT. ECF No. 24. Defendant SeaWorld's Second Motion

to Dismiss with respect to the remaining Counts 1 and IV is GRANTED. Id In essence, this case
is dismissed in its entirety.

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Case 4:20-cv-00006-RGD-DEM Document 30 Filed 09/03/20 Page 17 of 17 PageID# 193

The Clerk is DIRECTED to forward a copy of this Order to all Counsel of Record.

IT IS SO ORDERED.

cnior United StMtn*; District Jud^e
UMTED STATES DISTRICT JUDGE

Norfolk, VA^
September

,2020

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