The opinion
United States District Court
for the
Southern District of Florida
Marisa Klein, Plaintiff, )
)
v. ) Civil Action No. 21-22662-Civ-Scola
)
Carnival Corporation, Defendant. )
Order Granting Motion to Dismiss
This matter is before the Court on Defendant Carnival Corporation’s
(“Carnival”) motion to dismiss Plaintiff Marisa Klein’s amended complaint
under Federal Rule of Civil Procedure 12(b)(6). (Mot., ECF No. 10.) Ms. Klein is
suing Carnival for two counts of negligence in connection with an injury she
allegedly sustained aboard the Carnival Victory. First, she says Carnival
negligently sat her next to a drunk passenger who struck her. (Count 1, Am.
Compl. ¶¶ 4-11, ECF No. 8.) Second, she says Carnival was negligent because
it served the passenger alcohol despite him clearly being drunk. (Count 2, Id.
¶¶ 12-20.)
Carnival argues that Ms. Klein has failed to allege negligence in both
respects. The Court agrees. Accordingly, the Court grants Carnival’s motion to
dismiss (ECF No. 10) Ms. Klein’s amended complaint.
1. Legal Standard
A motion to dismiss under Rule 12(b)(6) challenges the legal sufficiency of a
complaint. See Fed. R. Civ. P. 12(b)(6). A complaint 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). At the same time, the complaint “must . . . contain
sufficient factual matter, accepted as true, to state a claim to relief that is
plausible on its face.” Am. Dental Ass’n v. Cigna Corp., 605 F.3d 1283, 1289
(11th Cir. 2010) (cleaned up) (quoting Bell Atlantic 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.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
“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. A
court must dismiss a plaintiff’s claims if [s]he fails to nudge his “claims across
the line from conceivable to plausible.” Twombly, 550 U.S. at 570.
2. Discussion
“To prevail on a negligence claim, a plaintiff must show 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.” Guevara v. NCL
(Bahamas) Ltd., 920 F.3d 710, 720 (11th Cir. 2019) (cleaned up). “Where an
attack on a passenger is carried out by a non-crewmember, such as a criminal
intruder or a fellow passenger, courts apply the standard of ordinary care
under the circumstances to determine whether the cruise line should be held
liable.” Doe v. Royal Caribbean Cruises, Ltd, No. 11-23323-CIV, 2011 WL
6727959, at *2 (S.D. Fla. Dec. 21, 2011) (Goodman, Mag. J.) (cleaned up); see
also H.S. v. Carnival Corp., 727 F. App’x 1003, 1006 (11th Cir. 2018); Brown v.
NCL (Bahamas) Ltd., No. 15-21732-CIV, 2016 WL 8716482, at *8 (S.D. Fla.
Oct. 13, 2016) (Lenard, J.). Under that standard, where the risk-creating
condition is one commonly encountered on land, a cruise line must have had
active or constructive notice of a risk-creating condition in order to be found
liable. Guevara v. NCL (Bahamas) Ltd., 920 F.3d 710, 720 (11th Cir. 2019);
Taylor v. Royal Caribbean Cruises, Ltd., No. 20-14754, 2021 WL 3502626, at *3
(11th Cir. Aug. 10, 2021).
Carnival says that Ms. Klein fails to state a claim for negligence because:
(1) the passenger’s actions are an intervening cause of her injury (see id. 5),
(2) she does not allege that Carnival was on notice of the passenger’s “violence”
(see Mot. 4), and (3) she does not allege causation (see id.).
Carnival’s first argument turns on foreseeability. See Doe, 2011 WL
67279595 at *2 (“a party may be liable in negligence for intervening criminal
acts if the acts are foreseeable.”); Sexton v. United States, 132 F. Supp. 2d 967,
975 (M.D. Fla. 2000). But foreseeability is a matter of fact that is usually
reserved for a jury. See Palma v. BP Prod. N. Am., Inc., 347 F. App’x 526, 527–
28 (11th Cir. 2009). As such, this first argument is premature.
Carnival’s next argument turns on whether Ms. Klein sufficiently pleads
that it had notice of a risk-creating condition. Ms. Klein defends that she
sufficiently pleads notice where she notes that the passenger was “visibly
drunk,” “inappropriately loud” and had a flushed face with red eyes (see Am.
Comp. ¶ 9; Resp. 2, ECF No. 13). Those descriptions, she says, are enough
because “anyone who has ever worked in an establishment that serves lots of
alcohol knows that excessive alcohol can quickly and easily lead to violence.”
(Resp. 2.) But her bare description of the passenger’s physical attributes only
make notice of a risk-creating condition conceivable—not plausible.
To be sure, Ms. Klein admits that she is not even sure “whether the man
struck her with violent intent.” (Id. 2.). She even says “i]t is possible the man
was so drunk he thought he was giving Klein a jovial slap on the back.” (Id.) As
such, Ms. Klein’s suit rests on the implicit assertions that: (1) for count one,
Carnival was—or should have been—on notice that a drunken passenger would
touch a stranger seated next to them without consent, and (2) for count two,
Carnival was similarly on notice that providing alcohol to a drunken passenger
would result in that passenger touching a stranger without consent. Such
conjecture is well beyond the realm of plausibility. For that reason, the Court
agrees that Ms. Klein insufficiently pleads Carnival’s notice with respect to both
counts.
The Court also agrees with Carnival’s argument on causation as to count
two. Ms. Klein makes no actual connection between Carnival’s ship-wide
alcohol service and her injury. Cf. Brown v. Oceania Cruises, Inc., No. 17-
22645-CIV, 2017 WL 10379580, at *5 (S.D. Fla. Nov. 20, 2017) (Altonaga, J.).
As stated, the traceability of her alleged injury remains in Carnival placing her
next to the passenger. In fact, Ms. Klein repeats for count two the same factual
allegations she makes for count one. The notion that Carnival’s alcohol service
caused Ms. Klein’s injury simply never crosses “the line from conceivable to
plausible.” See Twombly, 550 U.S. at 570.
3. Conclusion
Accordingly, the Court dismisses the amended complaint and grants
Carnival’s motion to dismiss (ECF No. 10). The clerk shall close this case.
Done and ordered in Miami, Florida, on March 29, 2022.
dobert N. Ve Jr.
United States District Judge