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Wu v. NCL (Bahamas) Ltd.

United States District Court, S.D. Florida

April 11, 2017

Grace Wu and Chris Ding, individually and as parents and natural guardians of S.D., Plaintiffs,
NCL (Bahamas) Ltd., Defendant.


          Robert N. Scola, Jr United States District Judge

         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. ...

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