United States District Court, S.D. Florida
Printiss Jackson-Davis individually and as personal representative of the estate of Brenda Jackson, Plaintiff,
Carnival Corporation, Defendant.
ORDER ON DEFENDANT'S MOTION TO DISMISS
N. Scola, Jr. United States District Judge.
matter is before the Court upon the Defendant Carnival
Corporation's motion to dismiss and to strike (ECF No.
8). The Court has considered the motion, all opposing and
supporting materials, the record in this case and the
applicable law, and is otherwise fully advised. For the
reasons set forth below, the Court grants in part and denies
in part the motion (ECF No. 8.)
case arises as a result of the death of Brenda Jackson, the
Plaintiff Printiss Jackson-Davis's mother, on the last
day of a roundtrip cruise from New Orleans to the Caribbean
on the “Carnival Dream” ship. (See
Complaint, ECF No. 1.) Ms. Jackson was sixty-eight years old
and suffered from a mild form of chronic obstructive
pulmonary disease (“COPD”). (Id. at
¶¶ 9-10.) In the early morning hours of November
13, 2016, the Plaintiff and Ms. Jackson went to the
ship's medical facility to see a doctor as a result of
Ms. Jackson's experiencing heavy and shallow breathing.
(Id. at ¶ 10.) The “Carnival Dream”
was already underway in the Mississippi River, en route from
the Caribbean to New Orleans. (Id. at ¶ 12.)
Ms. Jackson was seen by the ship's doctor, who checked
her oxygen level and decided to administer a “breathing
treatment, ” during which the doctor directed an
assisting nurse to increase oxygen level flow to Ms. Jackson,
despite the nurse's warnings against it due to Ms.
Jackson's COPD. (Id. at ¶ 13.)
connected to the oxygen tank and receiving allegedly
excessive amounts of oxygen, Ms. Jackson began to feel
lightheaded and requested to remove the oxygen, which request
the doctor advised against. (Id. at ¶ 14.) A
short time later, the Plaintiff noticed Ms. Jackson acting
strange, and when asked if everything was okay, Ms. Jackson
responded “no” and removed the oxygen.
(Id.) Moments later, Ms. Jackson made what the
Plaintiff alleges was an “agonized screeching noise,
” and she went into cardiac arrest. (Id. at
¶ 16.) The ship doctor and other Carnival staff were
able to stabilize her, but she suffered another heart attack
shortly after. (Id. at 17.)
ship doctor determined that Ms. Jackson should be evacuated
by helicopter, but allegedly did not in fact call for an
evacuation, despite telling the Plaintiff that a helicopter
was on its way. (Id. at 18.) Nurses attempted to
intubate and draw blood from Ms. Jackson, whereupon she
suffered a severe seizure, followed by a third heart attack.
(Id. at ¶¶ 18-19.) As a result, the doctor
and other medical staff decided that Ms. Jackson could not
fly, and told the Plaintiff that the Coast Guard had been
called and was on the way. (Id. at ¶ 19.) Ms.
Jackson suffered another heart attack and died approximately
three hours after first going to the ship's medical
facility. (Id. at 20.) The Plaintiff alleges that
the Coast Guard was not in fact called until almost twelve
hours after Ms. Jackson's death, despite the medical
staff's representations. (Id.)
Complaint, the Plaintiff asserts claims of negligence against
Carnival as follows: direct negligence (Count 1), negligence
for the acts of non-medical personnel based upon vicarious
liability through actual agency (Count 2), negligence for the
acts of medical personnel based upon vicarious liability
through actual and apparent agency (Counts 3 and 4), and
negligent hiring and retention (Count 5). Carnival seeks
dismissal of the Complaint for failure to state a claim.
considering a motion to dismiss for failure to state a claim
under Federal Rule of Civil Procedure 12(b)(6), the Court
must accept all of the complaint's allegations as true,
construing them in the light most favorable to the plaintiff.
Pielage v. McConnell, 516 F.3d 1282, 1284 (11th Cir.
2008). A pleading need only contain “a short and plain
statement of the claim showing that the pleader is entitled
to relief.” Fed.R.Civ.P. 8(a)(2). “[T]he pleading
standard Rule 8 announces does not require detailed factual
allegations, but it demands more than an unadorned,
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)
(quotation omitted). A plaintiff must articulate
“enough facts to state a claim to relief that is
plausible on its face.” Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 570 (2007).
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.” Iqbal, 556 U.S. at 678. “The
plausibility standard is not akin to a ‘probability
requirement, ' but it asks for more than a sheer
possibility that a defendant has acted unlawfully.”
Id. “Threadbare recitals of the elements of a
cause of action, supported by mere conclusory statements, do
not suffice.” Id. Thus, a pleading that offers
mere “labels and conclusions” or “a
formulaic recitation of the elements of a cause of
action” will not survive dismissal. See
Twombly, 550 U.S. at 555. “Rule 8 marks a notable
and generous departure from the hyper-technical,
code-pleading regime of a prior era, but it does not unlock
the doors of discovery for a plaintiff armed with nothing
more than conclusions.” Iqbal, 556 U.S. at
argues that Count 1 alleging direct negligence should be
dismissed because the Plaintiff asserts duties that do not
exist under maritime law. Carnival argues further that Counts
2, 3, and 4 should be dismissed because Count 2 asserting
vicarious liability for the alleged negligence of non-medical
personnel fails to sufficiently allege an agency
relationship, the counts impose an improper standard of care,
and fail to adequately allege proximate causation. Finally,
Carnival argues that Count 5 asserting a claim for negligent
hiring and retention should be dismissed for failure to
sufficiently allege knowledge on the part of Carnival. The
Court considers each argument in turn.
Count 1 sufficiently states a claim for direct negligence
Court notes at the outset that the parties do not dispute
that this action is governed by general maritime law.
Generally, under maritime law a ship owner “owes to all
who are on board for purposes not inimical to his legitimate
interests the duty of exercising reasonable care under the
circumstances of each case.” Keefe v. Bahama Cruise
Line, Inc.,867 F.2d 1318, 1321 (11th Cir. 1989)
(quoting Kermarec v. Compagnie GeneraleTransatlantique,358 U.S. 625, 632 (1959)). To state
a negligence claim, a plaintiff must allege that (1) the
defendant had a duty to protect the plaintiff from a
particular injury; (2) the defendant breached that duty; (3)
the breach actually and proximately caused the
plaintiff's injury; and (4) the plaintiff suffered actual
harm. Chaparro v. Carnival Corp.,693 F.3d 1333,
1336 (11th Cir. 2012). “[A] shipowner is only liable to
its passengers for medical negligence if its conduct ...