# Blow v. Carnival Corporation

> District Court, S.D. Florida · May 25, 2023

URL: https://www.frixlaw.com/law-library/cases/10121982

## Case

- **Court:** District Court, S.D. Florida
- **Decided:** May 25, 2023
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

United States District Court
for the
Southern District of Florida

Tamiko Blow, et al., Plaintiffs, )
)
v. ) Civil Action No. 22-22587-Civ-Scola
)
Carnival Corporation, and others, )
Defendants. )

Order Granting in Part and Denying in Part Motion to Dismiss
This matter is before the Court on the motion to dismiss the Plaintiffs’
amended complaint filed by Defendant Carnival Corporation (“Carnival”).1 (Mot.
Dismiss, ECF No. 33.) The Plaintiff filed a response to the motion (Resp., ECF
No. 44), and the Defendant filed a reply memorandum in support of its motion
(Reply, ECF No. 49). The Plaintiffs also filed a motion for leave to amend the
complaint in the event the Court granted the motion to dismiss. (Mot. Leave Am.,
ECF No. 45.) Carnival responded to the motion for leave to amend (ECF No. 50),
and the Plaintiffs timely replied (ECF No. 52). After careful consideration of the
briefing, the record, and the relevant legal authorities, the Court grants in part
and denies in part the Defendant’s motion to dismiss (ECF No. 33) and denies
the Plaintiffs’ motion for leave to amend (ECF No. 45).
1. Background
The Plaintiffs, Tamiko and Randall Blow, bring nine separate causes of
action against Carnival Corporation, each relating to the death of Donna Faye
Nelson during the course of a snorkeling expedition in Mexico. (Am. Compl. ¶¶ 1-
6, 45-47, ECF No. 30.)2 Tamiko Blow also brings these claims on behalf of Donna
Faye Nelson’s estate, and Randall Blow brings these claims on behalf of his five
minor children. (Id. ¶¶ 2, 4.) Ms. Nelson tragically drowned while she and the
other Plaintiffs were participating in the snorkeling expedition, which the
Plaintiffs had booked through Carnival as part of a cruise on the Carnival
Panorama during late August and early September of 2021. (Id. ¶¶ 22, 27, 37, 40,
45-47.)

1 Then-Defendant Vallarta Adventures, S.A. de C.V. (“Vallarta Adventures”) joined in the motion to
dismiss the amended complaint, arguing the Court lacked personal jurisdiction over it. (Mot.
Dismiss at 22-31.) In response, the Plaintiffs voluntarily dismissed their claims against Vallarta.
(Not. Vol. Dismissal, ECF No. 43.)

2 Two of the amended complaint’s eleven counts were asserted only against Vallarta Adventures
(Counts VI and VII). (Id. ¶¶ 92-108.)
The Plaintiffs never allege the details of their relationship with Ms. Nelson,
although they establish that she was a member of the Blow family. (Id. ¶ 35.)
They do allege, however, that the Blow family embarked on the Carnival
Panorama in California for a cruise along the western coast of Mexico on August
18, 2021. (Id. ¶¶ 24, 33, 35.) Unbeknownst to the Blows (and to Carnival),
Hurricane Nora would impact the course of their cruise and contribute to Ms.
Nelson’s unfortunate death. (Id. ¶ 33.) Hurricane Nora forced the Carnival
Panorama to detour from its original schedule prior to September 1, although the
ship did not ultimately detour from Puerto Vallarta, where the Plaintiffs
undertook the snorkeling expedition with Vallarta Adventures. (Id.)
Prior to departing on the cruise, the Plaintiffs had received and viewed
promotional material for shore excursions, including the snorkeling expedition
they ultimately engaged in with Vallarta Adventures. (Id. ¶¶ 23-24.) Carnival
mailed the Plaintiffs promotional materials, and the Plaintiffs also reviewed
promotions on Carnival’s website. (Id.)
On August 29, 2021, while on the cruise and prior to the Carnival
Panorama’s arrival in Puerto Vallarta, the Plaintiffs sought out additional
information regarding shore excursions. (Id. ¶ 27.) The Plaintiffs inquired about
the snorkeling expedition, among other excursions, and ultimately purchased
tickets for the expedition, entitled the “Bubble Tour: Exclusive Majahuitas Beach
Cove.” (Id.) When the Plaintiffs inquired about the snorkeling expedition,
Carnival’s representative assured them that the expedition was “safe,” that there
would lookouts present, and that all snorkeling gear would be provided. (Id. ¶ 28.)
The Plaintiffs also allege that the promotional materials they received and viewed
established that the expedition was “easy” and safe, the materials and did not
contain adequate warnings regarding the expedition’s true nature. (Id. ¶¶ 33-35.)
On September 1, 2021, the Plaintiffs departed to engage in the expedition.
(Id. ¶ 40.) The expedition was supposed to be “a beach-based party” during which
the participating passengers could choose to snorkel from a larger boat, or take a
smaller boat to the beach and kayak, swim, or otherwise relax and enjoy the
beach. (Id. ¶¶ 41-42.) Randall Blow, Donna Faye Nelson, and four of the five
minor children chose to stay on the larger boat and snorkel. (Id. ¶ 42.) Tamiko
Blow and the fifth minor child chose to take the smaller boat to the beach, where
they swam in the ocean. (Id.)
The excursion operator—Vallarta Adventures—never instructed any of the
participants on how to use the provided snorkeling equipment. (Id. ¶ 43.)
Alternately, the Plaintiffs plead, if any instruction was given, it was “dangerously
inadequate.” (Id.) Regardless, the Plaintiffs allege that no instructions whatsoever
were given regarding “how to breathe through a snorkel,” “what to do in the event
a snorkeler ingested water,” “how to call for help if in danger,” and that the
participants should “snorkel with a buddy system” (i.e., they should not engage in
the activity without a partner to help should danger arise). (Id.)
Due to the impacts of Hurricane Nora, conditions were especially rough on
September 1, including a strong current in the water. (Id. ¶ 46.) The Blow family
all struggled with the strong current: both the snorkelers and the swimmers had
difficulty swimming in the strong waters. (Id.) After being in the water for only
about thirty minutes, Donna Faye Nelson began to ingest water and drown. (Id.
¶ 45.) Within forty-five minutes, her body was discovered. (Id. ¶ 47.) The Blow
family all observed her being retrieved from the water, after which Randall and
Tamiko attempted to perform CPR on her. (Id. ¶ 48.) Emergency responders did
not arrive on scene for almost one hour, by which time Donna Faye Nelson had
died. (Id.)
The Plaintiffs point to multiple failures on Carnival’s part (and Vallarta
Adventures’ part, which the Plaintiffs attribute to Carnival). (Id. ¶¶ 45, 48.) First,
the Plaintiffs allege that they were not warned about the strong currents in the
water, that the excursion was not canceled when it should have been due to the
impeding hurricane, that no safety lookouts were provided, that they received
inadequate instructions on the use of snorkeling equipment, and that the
snorkeling equipment and life vest that Ms. Nelson used were defective. (Id. ¶ 45.)
Second, the Plaintiffs allege that Carnival did not have a proper emergency plan
in place, that none of the Carnival or Vallarta Adventures personnel on sight
knew how to administer CPR, that there was no automated electric defibrillator
available, and that Carnival and Vallarta Adventures unreasonably delayed
alerting emergency responders of Ms. Nelson’s condition. (Id. ¶ 48.) Based on
these alleged deficiencies, and their observation of Ms. Nelson’s tragic death, the
surviving Plaintiffs all allege that they suffered from “severe mental distress.” (Id.
¶ 49.)
Based on these circumstances, the Plaintiffs bring nine claims against
Carnival: misleading advertising in violation of Florida statutory law (Count 1),
negligent misrepresentation (Count 2), negligent selection and/or retention
(Count 3), negligent failure to warn (Count 4), general negligence (Count 5),
negligence based on apparent agency or agency by estoppel Count 8), negligence
based on joint venture (Count 9), breach of contract based on third-party
beneficiary status (Count 10), and breach of non-delegable duty (Count 11). (Id.
¶¶ 63-91; 109-139.)
Carnival, in turn, moves to dismiss each claim under Federal Rule of Civil
Procedure 12(b)(6), arguing that the Plaintiffs have failed to sufficiently plead their
claims, request improper damages, and that the amended complaint is a shotgun
pleading. (Mot. Dismiss at 3-4.) The Plaintiffs argue they have sufficiently stated
each claim, they seek appropriate damages, and that the complaint is properly
pleaded. (Resp. at 1-2.) The Court will address each argument in turn, below.
2. Legal Standard
When considering a motion to dismiss under Federal Rule of Civil
Procedure 12(b)(6), the Court must accept all of the complaint’s allegations as
true, construing them in the light most favorable to the plaintiff. Pielage v.
McConnell, 516 F.3d 1282, 1284 (11th Cir. 2008). A pleading 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). “[T]he pleading standard Rule 8 announces does not
require detailed factual allegations, but it demands more than an unadorned, the-
defendant-unlawfully-harmed-me accusation.” Ashcroft v. Iqbal, 556 U.S. 662,
678 (2009) (quotation omitted). A plaintiff must 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).
“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.” Iqbal, 556 U.S. at 678. “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. “Threadbare recitals of the elements of
a cause of action, supported by mere conclusory statements, do not suffice.” Id.
Thus, a pleading that offers mere “labels and conclusions” or “a formulaic
recitation of the elements of a cause of action” will not survive dismissal. See
Twombly, 550 U.S. at 555. “Rule 8 marks a notable and generous departure from
the hyper-technical, code-pleading regime of a prior era, but it does not unlock
the doors of discovery for a plaintiff armed with nothing more than conclusions.”
Iqbal, 556 U.S. at 679.
Yet, where the allegations “possess enough heft” to suggest a plausible
entitlement to relief, the case may proceed. See Twombly, 550 U.S. at 557. “[T]he
standard ‘simply calls for enough fact to raise a reasonable expectation that
discovery will reveal evidence’ of the required element.” Rivell v. Private Health
Care Sys., Inc., 520 F.3d 1308, 1309 (11th Cir. 2008). “And, of course, a well-
pleaded complaint may proceed even if it strikes a savvy judge that actual proof of
those facts is improbable, and ‘that a recovery is very remote and unlikely.’”
Twombly, 550 U.S. at 556.
3. Analysis
First, the Court addresses Carnival’s assertion that the Plaintiffs seek
impermissible damages under the Death on the High Seas Act (“DOHSA,” 46
U.S.C. §§ 30301 et seq.). The Court finds that none of the categories of damages
the Plaintiffs seek are prohibited under DOHSA. Second, the Court finds that the
amended complaint is not a shotgun pleading. Third, and finally, the Court finds
that the Plaintiffs plead sufficient facts to establish that they are plausibly
entitled to relief under the majority of their claims—only Counts 9 and 10 fail to
state a claim upon which relief may be granted.
A. The Complaint is Governed by the Death on the High Seas Act
Carnival argues that some of the damages that the Plaintiffs seek for Donna
Faye Nelson’s death are barred by DOHSA, which allows the recovery of only
pecuniary damages. (Mot. Dismiss at 4-5); 46 U.S.C. § 30303. Carnival asserts
that damages for “loss of [Ms. Nelson’s] household support, love, guidance, and
support” should be barred as non-pecuniary. (Mot. Dismiss at 6.) The Plaintiffs do
not dispute that maritime law governs this action and, therefore, DOHSA applies
here. (Resp. at 2.) They dispute that any of the damages they seek are non-
pecuniary, however. (Id.)
“Recovery under DOHSA is expressly limited to pecuniary losses.” Sexton v.
Carnival Corp., No. 20-20990-CIV, 2021 WL 2400274, at *3 (S.D. Fla. June 11,
2021), amended on reconsideration on other grounds, No. 20-20990-CIV, 2021 WL
3006916 (S.D. Fla. July 15, 2021) (Scola, J.) (citing Sanchez v. Loffland Bros. Co.,
626 F.2d 1228, 1230 (5th Cir. 1980) (“DOHSA specifically limits recoverable
damages to those pecuniary in nature.”)).3 “The measure of recovery under
DOHSA is the actual pecuniary benefits that the decedent’s beneficiaries could
reasonably have expected to receive from the continued life of the decedent.” Id.
(cleaned up; citing Solomon v. Warren, 540 F.2d 777, 786 (5th Cir.1976)).
“Pecuniary losses include loss of support, loss of services, and loss of nurture and
guidance.” Tello v. Royal Caribbean Cruises, Ltd., 946 F. Supp. 2d 1340, 1343
(S.D. Fla. 2013) (Lenard, J.)). Pecuniary losses under DOHSA are “not so narrow
as to exclude damages for the loss of services of a husband, wife, or child,” but
damages for a decedent’s “pain and suffering” or for loss of society are barred
under DOHSA. Kennedy v. Carnival Corp., 385 F. Supp. 3d 1302, 1318 (S.D. Fla.
2019) (Torres Mag. J.) (citations omitted), report and recommendation adopted, No.
18-20829-CIV, 2019 WL 2254962 (S.D. Fla. Mar. 21, 2019) (Williams, J.). Funeral
expenses, however, are considered pecuniary damages under DOHSA. Id.
Under each of their claims for relief, the Plaintiffs plead that they suffered
the following damages: (1) “medical and body transportation expenses”; (2)
“funeral expenses”; (3) lost “financial contributions” from Ms. Nelson; (4) lost
“household support” from Ms. Nelson; (4) lost “love, guidance and support” from
Ms. Nelson; and (5) personal “severe mental distress . . . with physical

3 The Eleventh Circuit has adopted, as binding precedent, all decisions of the former Fifth Circuit
handed down prior to close of business on September 30, 1981. Bonner v. City of Prichard, 661
F.2d 1206, 1209 (11th Cir. 1981) (en banc).
manifestations” that resulted in impaired earning capacity and lost wages, along
with the lost “benefit of the Plaintiffs’ vacation, cruise, and transportation costs.”
(See, e.g., Am. Compl. at 40-41.)
None of these damages are non-pecuniary. Medical, transportation, and
funeral costs are clearly pecuniary. Kennedy, 385 F. Supp. 3d at 1318-19. Lost
household support and lost guidance, love, and support are sufficiently
pecuniary, as well. Id. Finally, the damages that the Plaintiffs seek related to any
“severe mental distress” and resulting physical manifestations are for their own
distress, not for Ms. Nelson’s. (See, e.g., Am. Compl. at 40-41.) Accordingly, those
damages are not barred by DOHSA. See Kennedy, 385 F. Supp. 3d 1302, 1318
(observing that damages for “the decedent’s ‘pain and suffering’” are barred by
DOHSA) (emphasis added).
B. The Complaint Is Not a Shotgun Pleading
Carnival also argues that the amended complaint is a shotgun pleading,
asserting that it incorrectly incorporates all of the general factual allegations into
each separate count for relief. (Mot. at 6.) That is not, however, the definition of a
shotgun pleading.
The Eleventh Circuit recognizes four types of shotgun pleadings: (1)
“complaint[s] containing multiple counts where each count adopts the allegations
of all preceding counts, causing each successive count to carry all that came
before and the last count to be a combination of the entire complaint”; (2)
complaints that are “replete with conclusory, vague, and immaterial facts not
obviously connected to any particular cause of action”; (3) complaints that do not
separate “into a different count each cause of action or claim for relief”; and (4)
complaints that assert “multiple claims against multiple defendants without
specifying which of the defendants are responsible for which acts or omissions, or
which of the defendants the claim is brought against.” Weiland v. Palm Beach
Cnty. Sheriff's Off., 792 F.3d 1313, 1321-23 (11th Cir. 2015).
To be certain, the amended complaint is not precisely a model of clarity or
easy reading. But the purpose of the Eleventh Circuit’s shotgun pleadings
jurisprudence is not to punish drafters of complaints for poor drafting choices,
such as the use of overly long paragraphs. As the Court addressed in its previous
order dismissing the original complaint as a shotgun pleading, the purpose of the
doctrine is to ensure that the Court may be able to “determine which facts the
Plaintiffs intend to support which claims.” (Order Granting Mot. Dismiss at 2,
ECF No. 27) (citing Anderson v. Dist. Bd. Of Trustees of Cent. Fla. Cmty. Coll., 77
F.3d 364, 366 (11th Cir. 1996)).
At any rate, the amended complaint fits none of the categories of shotgun
pleadings. Carnival’s primary argument—that incorporating all of the general
factual allegations into each count creates a shotgun pleading—is an incorrect
reading of the Eleventh Circuit’s precedent. A complaint constitutes a shotgun
pleading “where each count adopts the allegations of all preceding counts,
causing each successive count to carry all that came before and the last count to
be a combination of the entire complaint.” Weiland, 792 F.3d t 1321. The
Plaintiffs’ approach here does not contradict that basic requirement, and it is also
clear that the Plaintiffs’ general factual pleadings are relevant to each of the
claims for relief, even if the general allegations are more verbose than necessary.
And, finally, the Plaintiffs re-plead specific factual allegations in each count that
support those counts. Accordingly, the amended complaint is not an
incomprehensible shotgun pleading. See Perricone v. Carnival Corp., No. 15-
20309-CV, 2016 WL 1161214, at *3 (S.D. Fla. Mar. 24, 2016) (Gayles, J.)
(denying motion to dismiss complaint as shotgun pleading where the complaint
incorporated all general factual allegations in each count and also repeated
specific factual details in each count).
C. The Plaintiffs Sufficiently Plead Claims for Misleading Advertising and
Negligent Misrepresentation (Counts 1 & 2)
Carnival next moves to dismiss each of the Plaintiffs’ individual counts for
relief for failure to state a claim, beginning with Counts I and II. Carnival argues
that Count I (misleading advertising under Florida statutory law) is deficient
because the Plaintiffs never allege that the allegedly misleading brochures were
red or disseminated in Florida. (Mot. Dismiss at 7.) Carnival also claims that
personal injury plaintiffs may not avail themselves of the Florida statute. (Id.)
Finally, Carnival claims that the Plaintiffs’ common-law negligent
misrepresentation claim is supported only by conclusory allegations. (Id. at 8.)
Carnival misses the boat with each argument. First, the Plaintiffs clearly
plead that the allegedly misleading brochures were disseminated from Florida.
(Am. Compl. ¶ 66 (“Carnival distributed the above outlined misleading
advertisements and marketing material primarily from its headquarters in
Miami, Florida, U.S.A. to the general public in Florida, specifically, and to the
U.S. at large.”). Second, the clear weight of authority in this district holds that
personal injury plaintiffs may rely on the Florida statute where, as here, the
plaintiffs had engaged in a commercial transaction with the defendant. See, e.g.,
Brown v. Oceania Cruises, Inc., No. 17-22645-CIV, 2017 WL 10379580, at *7
(S.D. Fla. Nov. 20, 2017) (Altonaga, J.); see also Serra-Cruz v. Carnival Corp., No.
18-2303-CIV, 2019 WL 13190647, at *5 n.1 (S.D. Fla. Feb. 12, 2019) (Ungaro, J.).
Third, the Plaintiffs plead sufficient facts to support their common-law claim for
negligent misrepresentation.
To establish their claims for negligent misrepresentation under both Florida
common law and Fla. Stat. § 817.41, the Plaintiffs must allege sufficient facts
showing to following:

(1) misrepresentation of a material fact; (2) that the representor made the
misrepresentation without knowledge as to its truth or falsity or under
circumstances in which he ought to have known of its falsity; (3) that the
representor intended that the misrepresentation induce another to act on
it; and (4) that injury resulted to the party acting in justifiable reliance on
the misrepresentation.

Zhang v. Royal Caribbean Cruises, Ltd., No. 19-20773-CIV, 2019 WL 8895223, at
*5 (S.D. Fla. Nov. 15, 2019) (Scola, J.) (citing Serra-Cruz v. Carnival Corp., 400 F.
Supp. 3d 1364, 1371 (S.D. Fla. 2019)). Carnival challenges whether any of the
representations alleged here are plausibly alleged to be false and whether the
Plaintiffs have established that they justifiably relied on those representations.
(Mot. Dismiss at 8.) The Plaintiffs, in turn, point to their allegations in Paragraphs
65 and 73 of the amended complaint, arguing that Carnival’s alleged
representations are actionable. (Resp. at 4.)
The Plaintiffs point to several specific and meaningful misrepresentations
that Carnival allegedly made, including the following: that the snorkeling
excursion was “safe,” that Carnival stated “we will have people there to look out
for you,” that Carnival would “provide snorkel gear,” and that the excursion was
“easy.” (Am. Compl. ¶ 65.) The Court does not need to repeat its review of the
factual allegations here to explain why these representations, paired with Ms.
Nelson’s tragic death, create actionable misrepresentations. Rather, it may be
simply stated that the Plaintiffs have alleged a series of misrepresentations by
Carnival that created a very different expectation than the reality the Plaintiffs
encountered on September 1, 2021.
The Court also observes that two of Carnival’s alleged misrepresentations,
while maybe not generally actionable on their own, are in the circumstances
alleged here particularly egregious. Given the impending danger of Hurricane
Nora, and the fact that the Carnival Panorama had already been forced to detour
from one port of call due to the hurricane’s impact, Carnival had a significant
reason not to have made representations that the snorkeling expedition was
especially “safe” or “easy.” (Am. Compl. ¶ 33.) Paired with the allegations of
defective equipment and insufficient lookouts, the Plaintiffs’ these alleged
misrepresentations are all the more actionable. See, e.g., Barham v. Royal
Caribbean Cruises Ltd., 556 F. Supp. 3d 1318, 1326-27 (S.D. Fla. 2021) (Moreno,
J.), appeal dismissed, No. 21-13119-JJ, 2021 WL 6197353 (11th Cir. Nov. 22,
2021).4 And, as the Plaintiffs point out, they also plead a number of reasons why
their reliance on these alleged misrepresentations was justified, chief among them
the allegation that Carnival marketed the snorkeling expedition and
simultaneously “recommended its passengers not to engage in excursions, tours,
or activities that are not sold through Carnival.” (Am. Compl. ¶ 69.)
Accordingly, the Court finds that the Plaintiffs have sufficiently stated both
Count 1 and Count 2 and denies Carnival’s motion to dismiss them.
D. The Plaintiffs Sufficiently Plead Their Claim for Negligent Selection or
Retention against Carnival (Count 3)
Next, Carnival argues that the Plaintiffs fail to allege that Carnival had
sufficient knowledge of Vallarta Adventures’ incompetence or unfitness, and
therefore fail to support their negligent selection or retention claim. (Mot. Dismiss
at 10.) The Plaintiffs, in turn, point to their detailed allegations regarding
Carnival’s initial approval process and follow-up inspection process for excursion
operators, which should have given Carnival notice of Vallarta Adventures’
shortcomings. (Resp. at 5-6.)
To plead a claim for negligent selection, a plaintiff “must allege that the
[tour] company was incompetent or unfit to perform the work, that [the cruise
line] knew or reasonably should have known of the particular incompetence or
unfitness, and that such incompetence or unfitness proximately caused [the
plaintiff’s] injuries.” . . . Bailey v. Carnival Corp., 369 F. Supp. 3d 1302, 1310
(S.D. Fla. 2019) (Scola, J.). “The relevant inquiry is whether the cruise line
diligently inquired into the tour operator’s fitness.” Id. at 1311 (cleaned up).
Where a plaintiff alleges that a cruise line has an inspection process for excursion
operators that should have revealed the defects alleged in the complaint, but in
fact did not, that is typically sufficient to demonstrate that a defendant should
have knowledge of the alleged defects, at least at the motion to dismiss stage.
Heller v. Carnival Corp., 191 F. Supp. 3d 1352, 1358 (S.D. Fla. 2016) (Altonaga,

4 Given its relevance to the circumstances at hand, it is worth reviewing Judge Moreno’s analysis
in Barham here in full:

These facts are slightly different than the standard case involving a general promise of
safety followed by unlucky harm. First, here, there was a specific reason that Defendant
shouldn’t have made these promises. Namely, it was empirically demonstrable that a
volcanic eruption was more likely than usual . . . . Second, some of the alleged
misrepresentations here are more specific than general promises of safety. For example,
Plaintiffs highlight that RCL promised that the Excursion Entities “provides proper
equipment and ensures the safety of gear used on active excursions.” That promise was
broken considering that Plaintiffs were not provided with protective suits that protect from
severe burns, for example.

Id.
J.) (“Specifically, Plaintiff’s allegation 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.”).
That is precisely what the Plaintiffs allege here: “notice [of Vallarta
Adventures’ incompetence] should have been acquired through Carnival’s initial
approval process or its yearly inspections of the subject excursion.” (Am. Compl.
¶ 56.) The Plaintiffs even more specifically allege that Carnival did not conduct
the inspections properly, failed to determine that Vallarta Adventures did not
provide adequate instructions on the operation of snorkeling equipment, and
further was unaware of the strong summertime currents in the area during
hurricane season because Carnival did not conduct any inspections during the
summer. (Id. ¶¶ 58-59.) And the Plaintiffs establish that Carnival should have
learned about the strong currents, the lack of lookouts, the defective equipment,
and the insufficient instructions had Carnival conducted the inspections
appropriately. (Id. ¶ 61.) This is more than sufficient to demonstrate that Carnival
knew or reasonably should have known of Vallarta Adventures’ alleged
incompetence. Heller, 191 F. Supp. 3d at 1358.
Therefore, the Court denies Carnival’s motion to dismiss Count 3.
E. The Plaintiffs Sufficiently Plead Claims for Negligent Failure to Warn
and Negligence against Carnival (Counts 4 & 5)
Carnival then argues that the Plaintiffs’ claims for negligent failure to warn
and general negligence should be dismissed because the Plaintiffs seek to impose
a heightened and unwarranted duty on Carnival and because the Plaintiffs do not
sufficiently allege that Carnival was on notice of any potentially dangerous
conditions. (Mot. Dismiss at 13-14.) Further, Carnival argues, it did not even have
a duty to warn of known dangers because those dangers were open and obvious.
(Id. at 14-15.) The Plaintiffs, in turn, argue that the duty they allege Carnival to
have breached is supported by the law, and that Carnival has had extensive
notice of the dangers associated with snorkeling expeditions (which they also
pleaded in the amended complaint.) (Resp. at 7-12.) They also assert that
Carnival’s arguments about its claimed lack of a duty to warn are better
addressed on summary judgment. (Id. at 12.)
The Plaintiffs allege in both counts that Carnival owed the Plaintiffs a duty
of “reasonable care under the circumstances.” (Am. Compl. ¶¶ 85.)5 Carnival
claims that the Plaintiffs’ allegations of more specific failings elsewhere in the
amended complaint, such as the failure to provide lookouts or adequate
instructions, seek to impose on Carnival a duty it does not owe the Plaintiffs.

5 Count 5 states the duty as “reasonable or ordinary care”: hardly a distinction. (Am. Compl. ¶ 92.)
(Mot. Dismiss at 13.) Instead, Carnival argues, it owes only the duty to warn of
known dangers once its passengers departed from the ship. (Id.) But this is
incorrect.
As this Court has previously observed, “although generally the duty to warn
is the most relevant duty regarding off-vessel excursions, a cruise ship might
have additional obligations under the ‘reasonable care’ standard, if, for example,
there is an agency relationship between the cruise ship and the excursion
operator.” Bailey, 369 F. Supp. 3d at 1310 (cleaned up). “Notably, the Eleventh
Circuit did not state that the duty to warn was the only duty owed to a passenger
while on shore.” Id. (cleaned up). As the Plaintiffs observe, the correct formulation
of Carnival’s duty is that of “reasonable care under the circumstances.” Id. The
duty to warn of known dangers beyond the ship is, in fact, a subset of the general
duty a of reasonable care that a shipowner owes to its passengers. Id.
Carnival also argues that the Plaintiffs have failed to plead that Carnival
had notice of the alleged dangerous conditions associated with the snorkeling
expedition. (Mot. Dismiss at 13-14.) This is simply incorrect. The Plaintiffs offer a
bevy of support for Carnival’s notice. First, they allege that the Carnival Panorama
had previously detoured to avoid Hurricane Nora. (Am. Compl. ¶ 33.) That is
sufficient to establish notice of the storm’s potential harmful impacts. Second,
they allege that Carnival has been made aware of similar dangers associated with
snorkeling excursions based on the public filings in at least six recent lawsuits in
the Southern District of Florida (Id. ¶ 55.) At least two of those lawsuits involved
passengers drowning on snorkeling expeditions. (Id.) Third, as discussed above,
the Plaintiffs plead significant factual allegations regarding Carnival’s approval
and recurring inspection process for excursion operators, which should have
provided notice here. (Id. ¶¶ 56-61.) Fourth, and finally, the Plaintiffs allege that
Carnival deletes from its website customers’ reviews of excursions that offer
complaints about safety or prior incidents, suggesting that Carnival is clearly
aware of, at the minimum, the existence of customer complaints of prior
accidents. (Id. ¶ 32.)
Finally, the Court also observes that Carnival’s argument that it lacked a
duty to warn the Plaintiffs about the “open and obvious” dangers of snorkeling in
the open ocean is not properly resolved at this time. The Eleventh Circuit has
observed that “even though a plaintiff may be able to ascertain the danger of an
open and obvious condition via her senses, she may not understand the extent of
the danger.” Barham, 556 F. Supp. 3d at 1329 (citing Frasca v. NCL (Bahamas),
Ltd., 654 F. App’x 949, 952-53 (11th Cir. 2016)) (emphasis in original). And, as
determined in Barham, “the general, abstract risk of a volcano eruption (like
slipping on a wet deck) may be open and obvious, but the extent of that risk—
that the volcano had erupted several times in recent years and geological warning
signs were flashing—may not be.” Id. So too here: while the dangers of swimming
in the open ocean may be “open and obvious” in a general sense, the specific
dangers associated with the Plaintiffs’ snorkeling excursion—especially subject to
the weather conditions imposed by Hurricane Nora—may not be. Id.
Therefore, the Court cannot and will not say at this stage that the Plaintiffs’
allegations are insufficient to support their negligence claims, that Carnival did
not owe any duty other than the duty to warn, or that Carnival did not even owe a
duty to warn. Bailey, 369 F. Supp. 3d at 1309-10; Adams v. Carnival Corp., 482
F. Supp. 3d 1256, 1269 (S.D. Fla. 2020) (Williams, J.) (“Plaintiff's allegation of co-
ownership/co-control coupled with Carnival's internal procedures to do initial
and annual inspections of its shore excursions and Carnival selling the zip-lining
excursion through its website is sufficient [to establish notice] at the pleading
stage.”); Barham, 556 F. Supp. 3d at 1329. Accordingly, the Court denies the
motion to dismiss Counts 4 and 5.
F. The Plaintiffs Sufficiently Plead a Claim for Negligence Based on
Apparent Agency or Agency by Estoppel against Carnival (Count 8)
Next, Carnival argues that Count 8 should be dismissed because apparent
agency and agency by estoppel are theories of liability rather than claims in and
of themselves, and because the Plaintiffs’ ticket contract and Carnival’s website
(which Carnival attaches to its motion) state that excursion operators are
independent contractors. (Mot. Dismiss at 15-18.) The Plaintiffs respond that the
claim is really a negligence claim with an agency theory of liability and that
considering Carnival’s ticket contract and website exhibits would be improper at
this stage of litigation. (Resp. at 13-14.) Additionally, the Plaintiffs argue that the
Court cannot consider Carnival’s contract with Vallarta Adventures because it is
not referenced at all in the amended complaint. (Id. at 18.)
First, the Plaintiffs’ claim is a claim for negligence, based on Vallarta
Adventures’ alleged negligence, and pleaded against Carnival on liability theories
of either apparent agency or agency by estoppel. (Am. Compl. ¶ 115 (“The forgoing
acts of negligence of Carnival and the Excursion Entities were a direct and
proximate cause of Donna Faye Nelson’s death and the living Plaintiff’s [sic]
injuries.”); see, e.g., Ash v. Royal Caribbean Cruises Ltd., No. 13-20619-CIV, 2014
WL 6682514, at *7 (S.D. Fla. Nov. 25, 2014) (Goodman, Mag. J.) (“Its label
notwithstanding, Count III advances an alternative theory supporting Plaintiffs'
negligence count, namely, that Royal Caribbean is liable for the Excursion
Entities' negligence because it held those entities out as its agents.”) (emphasis in
original). As in Ash, while Count 8 is “inartfully drafted,” it is clearly enough a
negligence claim applying an agency theory of liability, and the Court therefore
construes it as such. 2014 WL 6682514, at *7.
Second, courts in the Southern District of Florida generally decline to
consider ticket contracts that are not attached to complaint when addressing tort
claims, rather than contract claims, finding the tickets not to be central to those
plaintiffs’ claims. Barham, 556 F. Supp. 3d at 1330 (declining to consider ticket
contract and observing that “other Courts in this district have found documents
like these not to be central to Plaintiffs’ claims when the claims are based in tort
rather than contract.”) (emphasis in original); Kennedy, 385 F. Supp. 3d at 1337
(determining that neither ticket contract nor defendant’s website were central to
the plaintiffs’ tort claims). To consider documents outside the four corners of the
complaint on a motion to dismiss, the Court must determine that those
documents are “(1) referred to in the Complaint, (2) central to the dispute, (3)
whose contents are not disputed, and (4) attached to the Motion [to dismiss].”
Barham, 556 F. Supp. 3d at 1331. As in Barhman and Kennedy, the Court
declines to find the ticket contract or the website captures to be “central” to the
Plaintiffs’ tort claims. 556 F. Supp. 3d at 1330; 385 F. Supp. 3d at 1337.
The Court therefore will not consider the ticket contract or website
captures, and therefore denies Carnival’s motion to dismiss Count 8.
H. The Plaintiffs Cannot State a Claim for Negligence Based upon Joint
Venture (Count 9) in Light of Carnival’s Agreement with Vallarta
Adventures
The Plaintiffs’ count for negligence based on joint venture (Count 9),
however, is premised on a contractual agreement, that Carnival provides and the
Court may accordingly consider. Barham, 556 F. Supp. 3d at 1330-31. Here, the
Plaintiffs plead that “Carnival and the Excursion Entities entered into an
agreement where Carnival would sell the subject excursion to its passengers and
the Excursion Entities would operate the subject excursion.” (Am. Compl. ¶ 118.)
Reviewing nearly identical language, Barham found the contract between the
cruise line and the tour operator both to be central to the plaintiff’s claim and to
disclaim any potential joint venture. 556 F. Supp. 3d at 1331. The Court may
therefore consider the agreement between Carnival and Vallarta Adventures,
which Carnival provides as Exhibit E to its motion to dismiss. (Mot. Dismiss Ex.
E, ECF No. 33-5.)
To demonstrate a joint venture, the plaintiff must plead the following: “(1) a
community of interest in the performance of a common purpose; (2) joint control
or right of control; (3) a joint proprietary interest in the subject matter; (4) a right
to share in the profits; and (5) a duty to share in any losses which may be
sustained.” Barham, 556 F. Supp. 3d at 1330. Here, the agreement between
Carnival and Vallarta clearly disclaims the joint control element of a joint venture:
it establishes that Vallarta Adventures may not bind Carnival or otherwise create
obligations for Carnival, and therefore does not establish joint control. (Mot.
Dismiss Ex. E § 11). Additionally, the agreement expressly disclaims an intent to
create a joint venture. (Id.) Under these facts, courts have found that a plaintiff
cannot sustain a joint venture claim. Barham, 556 F. Supp. 3d at 1330-31;
Woodley v. Royal Caribbean Cruises, Ltd., 472 F. Supp. 3d 1194, 1209-10 (S.D.
Fla. 2020) (Moore, J.) (dismissing claim for negligence based on joint venture
theory where agreement expressly disclaimed joint venture). Therefore, the Court
dismisses Count 9 for failure to state a claim upon which relief may be granted.
Because the claim is barred by plain contractual language, the Court dismisses
this claim with prejudice.
H. The Plaintiffs Cannot State a Third-Party Beneficiary Claim for Breach
of Contract against Carnival (Count 10) Based on Carnival’s Agreement
with Vallarta Adventures
As with Count 9, the Court may consider Carnival and Vallarta Adventures’
agreement with regards to Count 10, because the amended complaint specifically
references the agreement and breach of that agreement is central to the Plaintiffs’
claims. (Am. Compl. ¶ 133); Barham, 556 F. Supp. 3d at 1331 (“Here, the
contract is certainly referred to in the complaint and central to the dispute
because it is literally the contract of which the Plaintiffs claims they are third
party beneficiaries.”). And “[f]or a contract to intend to benefit a third party, such
intent must be specific and must be clearly expressed in the contract.” Id.
(citation omitted).
The agreement here does not simply fail to express a specific intent to
benefit third parties; it expressly disclaims any such intent. (Mot. Dismiss Ex. E
§ 12 (“Each party represents and warrants to the other party that . . . (c) its
execution and performance under this Agreement will not result in a breach of
any obligation to any third party or infringe or otherwise violate any third party’s
rights.”).) Courts in this district routinely find this sort of language to bar any
third-party beneficiary claim. See, e.g., Barham, 556 F. Supp. 3d at 1331 (citing
Nichols v. Carnival Corp., No. 19-20836-CIV, 2019 WL 11556754 (S.D. Fla. June
21, 2019)). Accordingly, the Court dismisses Count 10 for failure to state a claim.
Again, because this claim is barred by plain contractual language, the Court
dismisses it with prejudice.
I. The Plaintiffs Sufficiently Plead a Claim for Breach of Non-Delegable
Duty (Count 11)
Carnival argues that the final claim in the amended complaint, for breach
of non-delegable duty relating to Carnival’s alleged duty to provide a safe
excursion, imposes a duty on it that does not exist under maritime law and that
is belied by the ticket contract. (Mot. Dismiss at 21.) The Plaintiffs, in response,
assert that such a duty may be alleged when the shipowner makes some form of
guarantee or assurance to its passengers. (Resp. at 20-21.)
This Court has previously found that such a duty may be sufficiently
alleged where a plaintiff can demonstrate that some form of representation or
assurance of safety, above and beyond standard contract language, is made.
Bailey, 369 F. Supp. 3d at 1309 (denying motion to dismiss breach of non-
delegable duty claim where the plaintiff alleged that the cruise line “pointedly
assured her that the [zipline] tour was ‘safe, insured, reputable, and reliable.’”).
Such representations can potentially impose a contractual duty even if the
contract itself does not contain them. Id.
Here, the Plaintiffs allege multiple oral representations by Carnival
regarding the snorkeling expedition: that it was “safe,” that it was “easy,” that
Carnival would provide lookouts, and that Carnival would provide snorkeling
gear. (Am. Compl. ¶¶ 28, 33.) As in Bailey, these representations are sufficient to
ensure that Count 11 survives the motion to dismiss. 369 F. Supp. 3d at 1309.
The Court therefore declines to dismiss Count 11.
J. The Plaintiffs’ Motion for Leave to Amend Is Procedurally Improper
Finally, the Court denies the Plaintiffs’ motion for leave to amend the
amended complaint. The motion is procedurally improper for multiple reasons.
First, it fails to attach a proposed amended pleading in violation of Local Rule
15.1. S.D. Fla. L.R. 15.1 (“A party who moves to amend a pleading shall attach
the original of the amendment to the motion.”). Second, the Plaintiffs’ method of
requesting amendment—seeking leave to amend without identifying the intended
amendments, and doing so only in the event the Court issues an adverse ruling—
is improper. Avena v. Imperial Salon & Spa, Inc., 740 F. App’x 679, 683 (11th Cir.
2018) (“[W]e’ve rejected the idea that a party can await a ruling on a motion to
dismiss before filing a motion for leave to amend.”) Third, and finally, the Court
has dismissed Counts 9 and 10 with prejudice because they are clearly prohibited
by the terms of the contract upon which they rely; accordingly, amendment would
be futile.
4. Conclusion
For the reasons stated above, the Court grants in part and denies in part
Defendant Carnival’s motion to dismiss the complaint and dismisses Counts 9
and 10 of the amended complaint, with prejudice. (ECF No. 33.) The Court
further denies the Plaintiffs’ motion for leave to amend the complaint. (ECF No.
45.)
Done and ordered in Miami, Florida, on May 25, 2023.

Robert N. Scola, Jr.
United States District Judge

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10121982. Public record. Not legal advice.