Opinion

Klein v. Carnival Corporation

Court
District Court, S.D. Florida
Filed
Mar 29, 2022
Cited by
0 cases
Authority
More cited than 20.1%

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

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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