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Murphy v. Carnival Corp.

United States District Court, S.D. Florida

August 20, 2019

Mary Ann Murphy and others, Plaintiffs,
v.
Carnival Corporation and others, Defendants.

          ORDER ON DEFENDANT'S MOTION TO DISMISS

          ROBERT N. SCOLA, JR., UNITED STATES DISTRICT JUDGE

         This matter is before the Court on Defendant Carnival Corporation's partial motion to dismiss the Plaintiff's complaint. (ECF No. 14.) The Plaintiff has filed a response (ECF No. 15) and the Defendant timely replied. (ECF No. 16.) Having considered the record, the parties submissions, and the applicable law, the Court grants in part and denies in part the Defendant's motion. (ECF No. 14.)

         I. Background

         The Plaintiff, Mary Ann Murphy, is the widow and personal representative of the Estate of the deceased, Daniel Murphy. (Amended Complaint at ¶ 2, ECF No. 6.) The Plaintiff is suing Carnival Corporation (“Carnival”) and the nurses and doctors (the “Medical Defendants”) that treated the deceased during his trip on Carnival's ship. According to the Plaintiff's complaint, the deceased was a passenger on the Defendant's vessel in May 2018. (Id. at ¶ 16.) On or about May 9-11, 2018, the deceased was taken to the ship's medical center with complaints of chest pain, discomfort, profuse sweating, chills, stomach ache, diarrhea, lethargy, and weakness. (Id. at ¶ 17.) At the medical center, the Medical Defendants examined and treated the deceased. According to the complaint, the Defendants failed to properly address his low temperature, blood pressure, and low pulse. (Id. at 18.) The electrocardiogram equipment used to measure his heart function was not working properly or was not being operated correctly by the Medical Defendants. (Id.) The Medical Defendants' sent the deceased back to his stateroom and he later suffered a fatal heart attack. According to the Plaintiff, the Defendants' failure to properly treat and diagnose the deceased led directly to his death. (Id. at ¶ 19.)

         II. Legal Standard

         A court considering a motion to dismiss, filed under Federal Rule of Civil Procedure 12(b)(6), must accept all allegations in the complaint as true, construing them in the light most favorable to the plaintiff. Pielage v. McConnell, 516 F.3d 1282, 1284 (11th Cir. 2008). Although a pleading need only contain a short and plain statement of the claim showing that the pleader is entitled to relief, a plaintiff must nevertheless 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). Faced with a motion to dismiss, a court should therefore “1) eliminate any allegations in the complaint that are merely legal conclusions; and 2) where there are well-pleaded factual allegations, ‘assume their accuracy and then determine whether they plausibly give rise to an entitlement to relief.'” Am. Dental Ass'n. v. Cigna Corp., 605 F.3d 1283, 1290 (11th Cir. 2010) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 662 (2009)). “Regardless of the alleged facts, a court may dismiss a complaint on a dispositive issue of law.” Surgery Center of Viera, LLC v. Southeastern Surveying and Mapping Corp., No. 17-cv-754-orl-40TBS, 2018 WL 922202, at *3 (M.D. Fla. Jan. 31, 2018) (citations and quotations omitted).

         III. Analysis

         A. Count I

         The Defendant first moves to dismiss Count I for negligent hiring and retention. (ECF No. 14 at 5.) The Defendant argues that the Plaintiff has failed to allege ultimate facts sufficient to support her claims that the Medical Defendants were incompetent, and that Carnival was put on notice of the harmful propensities of the Medical Defendants. (Id. at 5-6.)

         To state a claim for negligent hiring or retention, a plaintiff must allege that “(1) the agent/employee/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.” Witover v. Celebrity Cruises, Inc., 161 F.Supp.3d 1139, 1148 (S.D. Fla. 2016) (Lenard, J.) (citations and quotations omitted). To satisfy the second element of this claim, “a plaintiff must allege facts showing that the employer was put on notice of the harmful propensities of the agent/employee/contractor.” Id. (citations and quotations omitted). Negligent hiring occurs when the employer knew or should have known of the employee's unfitness before the employee was hired. Id. The issue of liability “primarily focuses upon the adequacy of the employer's pre-employment investigation into the employee's background.” Id. Negligent retention occurs “after employment begins, where the employer knows or should know of the employee's unfitness and fails to take further action such as investigating, discharge or reassignment.” Id. (citations and quotations omitted).

         The Plaintiff alleges that the Medical Defendants lacked the proper education, licenses, training, experience, and skills to work in emergency and critical condition environments; to properly triage and prioritize treatment of patients; to adequately diagnose and treat patients such as the deceased; and to properly operate the medical equipment such as the electrocardiogram machine. (ECF No. 6 at 10.) This is sufficient to satisfy the first element of a negligent retention/hiring claim. See Witover v. Celebrity Cruises, Inc., 161 F.Supp.3d at 1148 (holding that allegations that the tour operator's practices and procedures were unsafe was sufficient to satisfy the first element of negligent retention).

         With regard to the second element, Carnival's knowledge, the complaint states that Carnival “knew of the foregoing conditions rendering the Medical Defendants unqualified and/or incompetent, or the conditions existed for a sufficient length of time so that Carnival, in the exercise of reasonable care under the circumstances, should have learned them.” (ECF No. 6 at ¶ 24.) According to the Plaintiff, this knowledge should have been acquired through Carnival's background checks, investigating the employment history of the Medical Defendants, and periodically investigating and verifying their credentials. (Id.)

         “For all practical purposes, Plaintiff has done little more than assert fact-free, wholly conclusory, boilerplate allegations that Carnival knew or should have known about certain alleged deficiencies in the training and performance of the doctor and [ ] medical staff. Plaintiff has failed to allege facts that are suggestive enough to render each element of [her] claim for negligent hiring [and] retention [ ] plausible.” Gharfeh v. Carnival Corp., 309 F.Supp.3d 1317, 1332-33 (S.D. Fla. 2019) (Goodman, Mag. J.) (citations and quotations omitted). The Plaintiff has not asserted any facts that Carnival's background checks and hiring practices were deficient or that the Medical Defendants have made medical errors in the past such that Carnival was on notice of their deficiencies. See Id. (holding that boilerplate allegations that Carnival “knew or should have known to investigate” the doctor's “educational credentials and training including her prior employment” was insufficient). Accordingly, Count I is dismissed.

         B. Counts ...


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