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Ferretti v. NCL (Bahamas) Ltd.

United States District Court, S.D. Florida

June 22, 2018

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

          ORDER

          DARRIN P. GAYLES UNITED STATES DISTRICT JUDGE

         THIS CAUSE comes before the Court on Defendants' Motion to Dismiss Plaintiff's Second Amended Complaint (the “Motion”) [ECF No. 74].[1] The Court has carefully reviewed the Motion, the record, and the applicable law. For the reasons discussed below, the Motion is granted.

         I.BACKGROUND[2]

         This is a maritime personal injury action. On April 16, 2018, Plaintiff Anthony G. Ferretti, Jr. (“Plaintiff”), filed his Second Amended Complaint [ECF No. 69] against Defendant NCL (Bahamas) Ltd. (“Defendant”) 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 Defendant is liable for injuries he sustained on the “Maui Beach Day” shore excursion during the course of a cruise on the Defendant's vessel, Pride of America. Plaintiff alleges that Defendant marketed and sold the excursion to its passengers and that Defendant, through its actual or apparent agents or employees, controlled or had the right to control the excursion.

         Plaintiff alleges the excursion operator, non-party Beach Club Maui, Inc. (“Beach Club Maui”), was Defendant's actual agent because Defendant and Beach Club Maui consented to Beach Club Maui acting as Defendant's agent to operate the excursion, conduct inspections, and ensure compliance with Defendant's standards including those found in the “Norwegian Cruise Line Tour Operator Procedure and Policies.” Plaintiff alleges Defendant 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 Defendant's procedures, policies, and standards.

         In the alternative, Plaintiff contends that Beach Club Maui was Defendant's apparent agent because their words and conduct caused Plaintiff to believe that Beach Club Maui had authority to act for Defendant with respect to the operation of the shore excursion. Plaintiff alleges Defendant promoted, vouched for, and/or recommended the excursion to passengers through the Defendant's 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 Defendant's excursion and operated by an agent of Defendant.

         Plaintiff alleges he purchased and booked the excursion from Defendant. Plaintiff alleges he relied on Defendant'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.” [ECF No. 69 ¶ 17]. 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, with 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 Defendant 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 10 other spinal cord injuries from the beach in question among others.” [Id. ¶ 25]. Plaintiff alleges that Beach Club Maui complied with its contractual obligation to provide Defendant with safety reports concerning previous injuries to individuals on the subject beach, thereby placing Defendant on notice of prior injuries. In the alternative, Plaintiff alleges Beach Club Maui failed to provide the contractually required reports and Defendant failed to follow-up with Beach Club Maui regarding its failure to provide the required reports.

         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, 556 (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. Negligent Selection and Hiring (Count II)

         As an initial matter, negligent selection or hiring and negligent retention are separate and distinct causes of action. To state a claim for negligent selection or hiring of an independent contractor, a plaintiff must allege that: “(1) the contractor was incompetent or unfit to perform the work; (2) the employer knew or reasonably should have known of the particular incompetence or unfitness; and (3) the incompetence or unfitness was a proximate cause of the plaintiff's injury.” Wolf v. Celebrity Cruises, Inc., 683 Fed.Appx. 786, 796 (11th Cir. 2017) (quoting Davies v. Commercial Metals Co., 46 So.3d 71, 74 (Fla. 5th DCA 2010)). In negligent selection or hiring cases, the critical issue is whether the principal knew or should have known about the contractor's unfitness before or at the time the contractor was hired. Garcia v. Duffy, 492 So.2d 435, 438 (Fla. 2d DCA 1986) (stating that “the issue of liability primarily focuses upon the adequacy of the employer's pre-employment investigation into the employee's background”). On the other hand, to state a claim for negligent retention, a plaintiff must allege that “during the course of employment, the employer becomes aware or should have become aware of problems with an employee that indicated his unfitness, and the employer fails to take further action such as investigating, discharge, or reassignment.” Id. at 438-39. Thus, allegations that may be sufficient to state a claim for negligent retention will not be sufficient to state a claim for negligent hiring.

         Here, Plaintiff has for the third time failed to adequately allege a claim for negligent selection or hiring. Plaintiff alleges “[t]he excursion operator was unfit or incompetent to provide beach excursion services and [Defendant] knew or reasonably should have known of its lack of fitness.” [ECF No. 69 ¶ 46]. However, Plaintiff does not allege how Beach Club Maui was incompetent or unfit to operate the shore excursion at the time it was hired by Defendant or why Defendant knew or should have known of that deficiency prior to hiring Beach Club Maui. Further, Plaintiff provides no factual allegations indicating that Defendant conducted a deficient investigation into Beach Club Maui's fitness prior to hire. While Plaintiff alleges that Defendant failed to properly investigate/vet Beach Club Maui, [id. ¶ 47(a)-(c)], these allegations are temporally ambiguous and Plaintiff's Response [ECF No. 75] provides no further clarity. The Court is unable to determine whether Plaintiff is alleging that Defendant failed to investigate Beach Club Maui's policies before Beach Club Maui was hired or after. Accordingly, Plaintiff's claim for negligent selection and hiring is dismissed without prejudice.

         B. Amendment of Claim Through Opposition Brief and ...


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