United States District Court, S.D. Florida
ANTHONY G. FERRETTI, Plaintiff,
NCL (BAHAMAS) LTD., Defendant.
P. GAYLES UNITED STATES DISTRICT JUDGE
CAUSE comes before the Court on Defendant NCL
(Bahamas), Ltd.'s (“NCL” or
“Defendant”) Motion to Dismiss Plaintiff's
Amended Complaint (the “Motion”) [ECF No. 43].
The Court has carefully reviewed the Motion, the record, and
the applicable law. For the reasons discussed below, the
Motion is granted in part and denied in part.
a maritime personal injury action. On June 14, 2017,
Plaintiff Anthony G. Ferretti (“Ferretti” or
“Plaintiff”) filed his Amended Complaint against
NCL setting forth the following causes of action: Count I -
Negligence, Count II - Negligent Selection and Hiring, Count
III - Vicarious Liability (Agency), and Count IV - Vicarious
Liability (Apparent Agency). Plaintiff alleges that NCL is
liable for injuries he sustained on the “Maui Beach
Day” shore excursion during the course of a cruise on
the NCL vessel, Pride of America. Plaintiff alleges
that NCL marketed and sold the excursion to its passengers
and that NCL, through its actual or apparent agents or
employees, controlled or had the right to the control the
alleges the excursion operator, non-party Beach Club Maui,
Inc. (“Beach Club Maui”), was NCL's actual
agent because NCL and Beach Club Maui consented to Beach Club
Maui acting as NCL's agent to operate the excursion,
conduct inspections, and ensure compliance with NCL's
standards including those found in the “Norwegian
Cruise Line Tour Operator Procedure and Policies.”
Plaintiff alleges NCL had the right to control Beach Club
Maui with respect to the operation of the beach excursion in
question and the execution of Beach Club Maui's duties
pursuant to NCL's procedures, policies, and standards.
alternative, Plaintiff contends that Beach Club Maui was
NCL's apparent agent because their words and conduct
caused Plaintiff to believe that Beach Club Maui had
authority to act for NCL with respect to the operation of the
shore excursion. Plaintiff alleges NCL promoted, vouched for,
and/or recommended the excursion to passengers through the
NCL website (www.ncl.com) and use of its logo. Plaintiff
states that he went on the shore excursion under a
justifiable belief that it was an NCL excursion and operated
by an agent of NCL.
alleges he purchased and booked the excursion from NCL.
Plaintiff alleges he relied on NCL's website to book the
excursion. The website described the excursion as an
“Activity Level 1, ” stating that it would
“involve walking over relatively level terrain,
possibly some cobblestone, gravel, or a few steps” and
that “[c]omfortable shoes are recommended.”
Plaintiff alleges that the only warning provided to him by
Beach Club Maui during the excursion was to not turn his back
to the surf, for which he complied. He alleges that while
walking parallel to the shoreline, holding hands with his
wife, a large wave broke approximately 10 feet away from him
with sufficient force to pull him under the water. Plaintiff
landed on his head resulting in spinal cord injuries and
paralysis. Plaintiff alleges NCL had actual or constructive
notice of an unreasonably dangerous condition because
“in the 24-hour period prior to [Plaintiff's]
injuries, the local hospital treated at least ten other
spinal cord injuries from the beach in question among
survive a motion to dismiss brought pursuant to Federal Rule
of Civil Procedure 12(b)(6), a claim “must contain
sufficient factual matter, accepted as true, to ‘state
a claim to relief that is plausible on its face, '”
meaning that it must contain “factual content that
allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570
(2007)). While a court must accept well-pleaded factual
allegations as true, “conclusory allegations . . . are
not entitled to an assumption of truth-legal conclusions must
be supported by factual allegations.” Randall v.
Scott, 610 F.3d 701, 709-10 (11th Cir. 2010).
“[T]he pleadings are construed broadly, ”
Levine v. World Fin. Network Nat'l Bank, 437
F.3d 1118, 1120 (11th Cir. 2006), and the allegations in the
complaint are viewed in the light most favorable to the
plaintiff, Bishop v. Ross Earle & Bonan, P.A.,
817 F.3d 1268, 1270 (11th Cir. 2016).
Relation Back of Amendments
argues that paragraphs 27(b)-(c) of Plaintiff's
negligence claim and Plaintiff's actual and apparent
agency claims should be dismissed as time-barred because they
do not relate back to the initial Complaint [ECF No. 1].
Otherwise time-barred allegations will relate back to the
date of an earlier pleading if the amended pleading
“asserts a claim or defense that arose out of the
conduct, transaction, or occurrence set out-or attempted to
be set out-in the original pleading.” See Fed.
R. Civ. P. 15(c)(1)(B). The Court will deny NCL's motion
to dismiss on this ground because it finds that the
negligence and agency claims in the Amended Complaint arose
out of the same conduct, transactions, or occurrences set
forth in the initial Complaint. See [ECF No. 1,
¶44(j), (k), (m), (r); ¶¶55, 73].
Negligence Claim (Count I)
raises several arguments as to why Plaintiff's negligence
claim must be dismissed. The ...