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Jackson-Davis v. Carnival Corp.

United States District Court, S.D. Florida

March 23, 2018

Printiss Jackson-Davis individually and as personal representative of the estate of Brenda Jackson, Plaintiff,
v.
Carnival Corporation, Defendant.

          ORDER ON DEFENDANT'S MOTION TO DISMISS

          Robert N. Scola, Jr. United States District Judge.

         This 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.)

         1. Background

         This 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.)

         While 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.)

         The 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.)

         In the 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.

         2. Legal Standard

         When 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, the-defendant-has-unlawfully-harmed-me accusation.” 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).

         “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.” 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 679.

         3. Analysis

         Carnival 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.

         A. Count 1 sufficiently states a claim for direct negligence against Carnival

         The 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 ...


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