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Meadors v. Carnival Corp.

United States District Court, S.D. Florida, Miami Division

August 30, 2017

EVELYN MEADORS, Plaintiff,
v.
CARNIVAL CORPORATION, Defendant.

          ORDER DISMISSING COUNT II OF THE COMPLAINT

          JONATHAN GOODMAN UNITED STATES MAGISTRATE JUDGE.

         In “All the Young Punks, ” the Clash, an English band which first gained fame in the 1970s as part of the British punk rock movement, musically discussed the reality that “a contract is a contract.”[1" name="FN1" id="FN1">1] In this case, however, a theme directly contrary to those lyrics is at issue in the motion to dismiss: what is not in the contract cannot be the basis of a breach of contract claim.

         Defendant Carnival Corporation moves to dismiss Count II of this two-count personal injury lawsuit for failure to state a claim for breach of contract. [ECF No. 10, pp. 7-12]. Carnival answered Count I (for negligence), however, and also asserted affirmative defenses to the negligence count. [ECF No. 10, pp. 1-6]. Plaintiff Evelyn Meadors filed a response and Carnival filed a reply. [ECF Nos. 13');">13');">13');">13; 15].

         The lawsuit concerns an injury Meadors allegedly sustained when she was a passenger aboard a Carnival cruise ship named the Carnival Conquest. At bottom, Meadors alleges that a male crew member directed her, her husband, and another couple through a door where they walked up a flight of non-carpeted stairs. She says that she slipped and fell on a foreign substance after climbing one flight of the metal stairs. She also contends that the foreign substance was not open and obvious when she slipped on it, on the landing between the third and fourth decks. She further alleges that she later learned that the crewmember had directed her to enter a door marked “Crew Only.”

         For the reasons outlined below, the Court grants Carnival's motion to dismiss Meadors' breach of contract claim (Count II). This dismissal is without prejudice and technically gives Meadors leave to file an amended complaint if she wishes to pursue the now-dismissed breach of contract claim. But it seems highly unlikely that Meadors will be able to successfully do that because the contract does not contain the language she thinks it contains.

         Factual Background[2] and Procedural History

         Meadors was a fare-paying passenger on the Carnival Conquest. She boarded the vessel on November 28, 2016, at Port Everglades, Florida, where she and the other passengers were leaving for an eight-day cruise to the Caribbean. Approximately three hours after boarding the vessel, Meadors slipped on a landing.

         A Carnival crewmember took her by wheelchair to the vessel's medical ward, where she received medical treatment. She was released to her cabin later that night. She required additional medical treatment after the cruise returned to Port Everglades. As of the time the lawsuit was filed in November 2016, Meadors continued to receive medical treatment.

         Count I of her Complaint is for negligence. Count II is for breach of contract. Meadors did not attach the ticket contract to her complaint. Count II alleged that the “written contract of carriage” required Carnival to “transport the Plaintiff during the cruise in a safe manner and return her safely to the port of origin.” [ECF No. 1, ¶ 35]. It also alleged that the written contract provided her with “safe passage on a Vessel in which the common areas of the Vessel and all other areas of the Vessel which employees of the Defendant directed its passengers to use were maintained in a reasonably safe condition.” [ECF No. 1, ¶ 36].

         Carnival's motion to dismiss Count II was initially based on two grounds: (1) the lawsuit is time-barred because it was filed after the contractual deadline, and (2) there is no express or implied contract guaranteeing safe passage to Meadors. But in its reply, Carnival effectively abandoned the first argument by failing to address it. Therefore, this Order will address only the second argument, which the Court finds dispositive anyways.

         Carnival's motion explained that Meadors did not attach to her Complaint a copy of the passenger ticket contract. Therefore, Carnival attached a copy of a sample passenger ticket contract containing the identical terms contained in Meadors' original passenger ticket contract. Carnival's motion also explained that Meadors and her counsel have actual knowledge of the terms of the passenger ticket contract because it was cited in the Complaint. Carnival also attached a cruise ticket contract acceptance report, showing that Meadors accepted the ticket contract on November 9, 2015 at 3:01 p.m. [ECF No. 10-3], and Meadors does not in any way challenge that.

         In her response, Meadors accepts for purposes of the dismissal motion that the exemplar passenger ticket Carnival attached to its motion contains “identical terms” to those in her original passenger ticket contract. [ECF No. 13');">13');">13');">13, p. 2');">p. 2]

         Significantly, Meadors' response does not pinpoint any language from the contact in which Carnival guaranteed her safe passage or to transport her in a safe manner. Indeed, it does not cite any specific contract language. Instead, the response argues, in a conclusory way, that her complaint “pleads all of the necessary elements to maintain a cause of action for Breach of Contract.” [ECF No. 13');">13');">13');">13, p. 7].

         Applicable ...


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