United States District Court, S.D. Florida
Grace Wu and Chris Ding, individually and as parents and natural guardians of S.D., Plaintiffs,
NCL (Bahamas) Ltd., Defendant.
ORDER ON DEFENDANT'S MOTION TO DISMISS
N. Scola, Jr United States District Judge
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.
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.)
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.)
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).
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).
Intentional Infliction of Emotional Distress
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
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.)
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.)
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.