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Thanas v. Royal Caribbean Cruises, Ltd.

United States District Court, S.D. Florida

January 14, 2020

Marysarah Thanas, Plaintiffs,
v.
Royal Caribbean Cruises LTD., Defendant.

          ORDER ON DEFENDANT'S MOTION TO DISMISS

          Robert N. Scola, Jr. United States District Judge

         This matter is before the Court on Defendant Royal Caribbean Cruises LTD's partial[1] motion to dismiss the Plaintiff's complaint. (ECF No. 29.) The Plaintiff has filed a response (ECF No. 34) and the Defendant timely replied. (ECF No 35.) 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. 29.)

         I. Background

         The Plaintiff purchased an excursion called “Shipwreck Snuba Tour” through Royal Caribbean's website when she booked her passage on the Defendant's ship, Navigator of the Seas. (ECF No. 10 at ¶¶ 6-7.) The excursion was operated by Snuba Cayman in the Cayman Islands. (Id. at ¶ 7.) “Snuba” is a form of surface-supplied diving that uses an underwater breathing system, fins, a diving mask, weights, and a diving regulator. Air is supplied through a hose connected to compressed air cylinders contained in a flotation device at the surface. (Id. at ¶ 8.) While the Plaintiff was on the snuba excursion, she was swept by the current away from the boat and had to hold on to a rock. (Id. at ¶¶ 22-23.) Because of the exertion, the Plaintiff suffered a flash pulmonary edema caused by the rapid accumulation of water in her lungs. (Id. at ¶ 24.) She was then rescued by the boat and taken back to shore. She was transported back to the Navigator of the Seas and taken immediately to the infirmary. (Id. at ¶ 25.) When the ship returned to Miami, she was admitted to Jackson Memorial Hospital. (Id. at ¶ 26.) The Plaintiff now sues Royal Caribbean for damages suffered during the snuba trip.

         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. Counts I and II

         Count I of Plaintiff's complaint asserts a cause of action against the Defendant for its failure to instruct Thanas in the proper use of snuba equipment. (ECF No. 10 at 3.) The Defendant argues that the Court should dismiss Count I because the Plaintiff fails to allege that Royal Caribbean owed a duty to instruct Thanas on the proper use of snuba equipment. (ECF No. 29 at 7.) In response, the Plaintiff argues that she has properly alleged that the Defendant sold Thanas the snuba excursion and should have known that it posed an unreasonable risk of danger. (ECF No. 34 at 7.) Upon careful review, the Court agrees with the Defendant.

         “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 plaintiff's injury; and (4) the plaintiff suffered actual harm.” Chaparro v. Carnival Corp., 693 F.3d 1333, 1336 (11th Cir. 2012). To satisfy the first element, the Plaintiff must allege that Royal Caribbean has a duty to instruct Thanas on the proper use of snuba equipment. Count I alleges that Thanas arrived at the Snuba Cayman place of business and was required to provide information about her health and swimming ability. (ECF No. 10 at ¶ 14.) The snuba excursion staff assured her that she would have no problem on the excursion. (Id. at ¶ 15.) “Thanas was then encouraged and allowed by personnel aboard the excursion to enter the water without sufficient education, training and instruction, despite her lack of snorkeling experience and limited swimming abilities, and in seas too rough for the participants to successfully complete the snuba activity.” (Id. at ¶ 16.) There are no allegations related to Royal Caribbean's duty to instruct Thanas on proper use of snuba equipment. Count I generally asserts that the Defendant has a “duty to exercise reasonable care for the health, welfare and safety of its invitees and guests[.]” (Id. at ¶ 28.) Such conclusory allegations are insufficient to state a claim. See Chaparro, 693 F.3d at 1337 (“[I]f allegations are indeed more conclusory than factual, then the court does not have to assume their truth.”) There is no apparent connection between the Defendant's general duty of reasonable care and the specific duty to instruct Thanas on snuba equipment while participating in a third-party excursion. Accordingly, Count I must be dismissed.

         Count II of Plaintiff's complaint purports to state a claim for the Defendant's failure to adequately supervise the operation of the snuba excursion. (ECF No. 10 at 6.) Like Count I, Count II alleges that Royal Caribbean has a general duty “to exercise reasonable care for the health, welfare and safety of its invitees and guests to whom it marketed, enticed and exposed to new, novel and exciting water sports adventures.” (Id. at ¶ 36.) These allegations, however, fall short of alleging that the Defendant had a duty to supervise a snuba excursion conducted by a third-party. Accordingly, Count II must be dismissed.

         B. Count III - Failure to Warn

         Count III of Plaintiff's complaint purports to state a claim for the Defendant's failure to warn Thanas of the danger of participating in the snuba excursion. The Defendant argues that Thanas has failed to plead a duty and also failed to plead that the Defendant knew of a specific danger particular to that place. (ECF No. 29 at 11-12.)

         Like in Counts I and II, the Plaintiff alleges that the Defendant owes a general duty of care to its passengers. (ECF No. 10 at 9.) While the Plaintiff fails to specifically allege a duty to warn, the Defendant's duty to warn is part of its general duty of care to its passengers. See Chaparro, 693 F.3d at 1336 (analyzing duty to warn as a part of a shipowner's duty of “ordinary reasonable care under the circumstances”). Therefore, accepting the complaint's ...


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