United States District Court, S.D. Florida
ORDER ADOPTING MAGISTRATE JUDGE McALILEY'S REPORT
Federico A. Moreno United States District Judge.
MATTER was referred to the Honorable Chris McAliley, United
States Magistrate Judge, for a Report and Recommendation on
both Defendants' motions to dismiss. The Magistrate Judge
filed a Report and Recommendation on each. The Court has
reviewed the entire file and record and has made a de
novo review of the issues presented in the objections to
the report and recommendations. The Court notes that as a
preliminary matter, because Plaintiff failed to file
objections to the Report and Recommendation on Exotic's
motion to dismiss count two of the complaint, that report is
AFFIRMED and ADOPTED, and the motion to dismiss is GRANTED
without prejudice. See Thomas v. Am, 474 U.S. 140,
150 (1985) (citing 28 U.S.C. § 636(b)(1)).
this Court must only review the remaining Report and
Recommendation issued as to Carnival Corporation's motion
to dismiss, along with the accompanying objection, response,
and notice of filing supplemental authority. Upon review, the
Court agrees with the Magistrate Judge and finds that
Plaintiff sufficiently pleads a claim for negligence in count
one, but not apparent agency or agency by estoppel in count
facts of this case, according to Plaintiffs complaint which
this Court construes as true for purposes of evaluating the
relevant motions to dismiss, are the following. See
Newtown v. Duke Energy Fla., LLC, 895 F.3d 1270, 1275
(11th Cir. 2018). Plaintiff was a fare paying passenger
onboard the Carnival Glory in September 2017. While
the cruise ship was docked in Belize City, Belize, Plaintiff
participated in a "Lamanai Ruins & Riverboat
Safari" tour "owned and/or operated by" Exotic
Shore Excursions, Ltd. Plaintiff alleges that Exotic used
poorly maintained vessels to transport passengers to and from
the Lamanai excursion. Plaintiff contends that she was on
such a vessel when the vessel's canopy collapsed and
broke loose from its supports, causing a metal bar to strike
the Plaintiff across her forehead and injure her.
now asserts three causes of action. She sues Carnival for
negligence, count one, and apparent agency or agency by
estoppel, count three. She also sues Exotic for negligence,
count two. Both Defendants filed respective motions to
dismiss. In the first, Exotic argued that the Court lacked
personal jurisdiction over it. In the second, Carnival
claimed that Plaintiff failed to properly state a cause of
action for negligence, and that the claim for apparent agency
or agency by estoppel is not a recognizable cause of action.
The Magistrate Judge recommended granting Exotic's motion
to dismiss in full, and granting Carnival's motion to
dismiss in part.
district court may accept, reject, or modify a magistrate
judge's report and recommendation." Scott v.
Miami Dade Dep't of Corr., 13-23013-CIV, 2017 WL
3336915, at *1 (S.D. Fla. Aug. 4, 2017) (citing 28 U.S.C.
§ 636(b)(1)). All objections are "accorded de
novo review, if those objections 'pinpoint the
specific findings that the party disagree with.'"
Id. (quoting United States v. Schultz, 565
F.3d 1353, 1360 (11th Cir. 2009)). "Any portions of the
report and recommendation to which no specific objection is
made are reviewed only for clear error." Id.
(citing Macort v. Prem, Inc., 208 Fed.Appx. 781, 784
(11th Cir. 2006)).
PLAINTIFF SUFFICIENTLY PLEADS A CLAIM FOR NEGLIGENCE
respect to Carnival's motion to dismiss, the Court agrees
with the Magistrate Judge that Plaintiff sufficiently pleads
a claim for negligence, but not a claim for apparent agency
or agency by estoppel. As Plaintiff concedes, the latter is
not a recognized cause of action. The Court dismisses that
count for Plaintiff to replead her theory of negligence by
way of vicarious liability.
argues that the negligence claim largely consists of
conclusory allegations which parrot the elements of
negligence. "To plead negligence, 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 plaintiffs injury; and (4) the plaintiff suffered
actual harm." Chaparro v. Carnival Corp., 693
F.3d 1333, 1336 (11th Cir. 2012). Regarding the first
element, "a cruise line's duty of 'ordinary
reasonable care under the circumstances' includes a
'duty to warn of known dangers beyond the point of
debarkation in places where passengers are invited or
reasonably expected to visit.'" K.T. v. Royal
Caribbean Cruises, Ltd., 931 F.3d 1041, 1046 (11th Cir.
2019) (quoting Chaparro, 693 F.3d at 1336).
motion argues that Plaintiff "fails to plead any facts
that would tend to establish that Carnival was on notice of
any unsafe condition on the subject excursion." But
Plaintiff does sufficiently allege notice in her complaint.
In particular, Plaintiff writes that Carnival
"periodically evaluate  the fitness and suitability of
the excursion companies thru [sic] which it allows passengers
to select shore excursions. This evaluation process includes
periodic, if not annual, site visits to, and participate in
each excursion in order to experience the excursion as would
a passenger." Further, Plaintiff writes that Carnival
"requires its chosen excursion providers [i.e., Exotic]
to maintain insurance and to provide a safe history
report." These allegations, as this Court has held many
times, are sufficient to survive a motion to dismiss. See
Kennedy v. Carnival Corp., 385 F.Supp.3d 1302, 1332
(S.D. Fla. 2019) ("[P]laintiffs sufficiently alleged
that the defendant had actual notice of the dangerous
condition through their familiarity with the excursions
through their sales relationship, inspections and continued
partnership."); Heller v. Carnival Corp., 191
F.Supp.3d 1352, 1358 (S.D. Fla. 2016) (finding that the
plaintiff adequately pled its negligence and failure to warn
claim because "Plaintiffs allegation that Carnival
should have become aware of the risk-creating condition
during inspections of the Excursion Entities is sufficient
regarding Carnival's actual or constructive notice of the
risk-creating condition." (citation omitted)).
objects by citing Mellnitz v. Carnival Corp., No.
18-cv-24933 (S.D. Fla. Apr. 30, 2019), a recent maritime case
where a plaintiff sued for damages as a result of an
excursion provider's speedboat being driven too fast and
causing Plaintiff to fall and injure herself on the deck of
the boat. Plaintiffs assertion in that case was that Carnival
knew or should have known of the supposed danger based on its
"initial approval process" and "yearly
inspections," which the Court held was insufficient to
plead notice. But here, unlike there, Plaintiff has asserted,
among other things, that Carnival undergoes periodic
inspections, which may raise the chances that Carnival knew
or should have known of the present danger. The pleading
standard is a plausible one, and it would not be
unreasonable, given Plaintiffs assertions, to draw the
inference that Carnival knew or should have known of the
risk-creating conditions on Exotic's vessel. See Bell
Atl. Corp. v. Twombly, 550 U.S. 544, 555, 570 (2007).
Furthermore, in Mellnitz, Judge Altonaga found that
the plaintiff failed to connect the yearly inspections to
actual negligence by the defendant. Here, the Court finds
that the Plaintiff carries her burden, linking the prior
inspections by Carnival to actual or constructive knowledge
of the faulty vessel.
final matter, Carnival seeks in its objections to dismiss the
negligence claim in so far as the claim alleges negligent
hiring and retention. The Court, having reviewed the entire
complaint, agrees with the Magistrate Judge that the
complaint does not contain ...