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Ferretti v. NCL (Bahamas) Ltd.

United States District Court, S.D. Florida

March 22, 2018

ANTHONY G. FERRETTI, Plaintiff,
v.
NCL (BAHAMAS) LTD., Defendant.

          ORDER

          DARRIN P. GAYLES UNITED STATES DISTRICT JUDGE

         THIS 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.

         I. BACKGROUND[1]

         This is 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 excursion.

         Plaintiff 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.

         In the 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.

         Plaintiff 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 others.”

         II. LEGAL STANDARD

         To 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).

         III. DISCUSSION

         A. Relation Back of Amendments

         NCL 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].

         B. Negligence Claim (Count I)

         Defendant raises several arguments as to why Plaintiff's negligence claim must be dismissed. The ...


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