Colarte v. Carnival Corporation

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

MIAMI DIVISION

Case No. 1:24-cv-22203-WILLIAMS/GOODMAN

KARLA COLARTE,

Plaintiff,

v.

CARNIVAL CORPORATION

Defendant.

_____________________________________________/

REPORT AND RECOMMENDATIONS ON MOTION TO DISMISS

Karla Colarte (“Colarte” or “Plaintiff”) was a passenger on the Conquest, a Carnival

Corporation (“Carnival”) cruise ship. According to her Complaint [ECF No. 1, ¶ 10],

Plaintiff was “walking along Deck 4 of the ship” [on July 21, 2023] while “on her way to

breakfast in the Monet Restaurant and as she passed through a hallway into the

restaurant, she tripped and fell over an uneven/protruding moulding1/ledge which

separated the hallway from the restaurant.” Colarte alleges that this “raised, uneven, and

protruding moulding/ledge was neither open nor obvious to [her] and, after her fall, she

noticed that the moulding/ledge was dinged/dented from other pedestrians having

1 The term “moulding” is the chiefly British spelling of “molding.” See Merriam-

Webster Dictionary, https://www.merriam-webster.com/dictionary (last accessed Aug.

23, 2024). Because this is the spelling used by Plaintiff in her Complaint [ECF No. 1], the

Undersigned will employ it in this Report and Recommendations.

struck it such that it had been in this raised, uneven, and protruding condition for a

sufficient period of time to put Defendant on notice of the dangerous conditions.”

Plaintiff also claims that, other than taking her vital signs, Carnival refused to treat

her or provide her with first aid for her injuries because its medical staff refused to take

her insurance and she was unable to pay the mandatory fee for the additional medical

care she needed.

Alleging physical, emotional, and economic injuries, and seeking both

compensatory and punitive damages, Colarte filed a Complaint against Carnival. The

Complaint is broken down into three counts: Count I is for negligence; Count II is for

negligent failure to warn; and Count III is for “[n]egligence [i]n [f]ailing [t]o [r]ender

[f]irst [a]id,” and it seeks punitive damages.

Carnival filed a motion to dismiss, Plaintiff filed a response and Carnival filed a

reply. [ECF Nos. 11; 13; 20]. United States District Judge Kathleen M. Williams referred

the motion to the Undersigned for a report and recommendations. [ECF No. 14].

Carnival’s motion is based on three grounds: (1) Plaintiff’s Complaint fails to

adequately allege that Carnival was on notice of the purported dangerous condition; (2)

Carnival has no duty to provide medical care to its passengers; and (3) punitive damages

are unavailable under the scenario at issue here.

For the reasons outlined below, the Undersigned respectfully recommends that

Judge Williams grant the motion in part and dismiss the first two counts of the Complaint

(albeit without prejudice and with leave to file an amended complaint). At bottom,

though, the first two counts of the Complaint are problematic and inadequate because

they are, from a substantive perspective, overly conclusory and devoid of sufficient

specific factual allegations. However, the Undersigned finds that the failure-to-render-

medical-care allegations of Count III, taken as true, are sufficient to plausibly allege a

failure to provide reasonable care (i.e., negligence) and the intentional misconduct

required for punitive damages.

I. Factual Background (i.e., Plaintiff’s Allegations)

The following allegations concern all three counts of Plaintiff’s Complaint:

10. On or about July 21, 2023, Plaintiff was walking along Deck 4 of the

ship on her way to breakfast in the Monet Restaurant and as she passed

through a hallway into the restaurant, she tripped and fell over an

uneven/protruding moulding/ledge which separated the hallway from the

restaurant. The raised, uneven, and protruding moulding/ledge was neither

open nor obvious to Plaintiff and, after her fall, she noticed that the

moulding/ledge was dinged/dented from other pedestrians having struck

it such that it had been in this raised, uneven, and protruding condition for

a sufficient period of time to put Defendant on notice of the dangerous

conditions.

11. Other passengers on Defendant’s ships have previously been injured

under similar circumstances where Defendant failed to exercise reasonable

care to ensure that similar raised moulding/ledge [sic] did not pose a hazard

to pedestrian traffic. Zarr v. Carnival Corp[.], Case No. 17-Civ-20312-

Altonaga (“[T]he [p]laintiff was caused to trip, slip and fall on a piece of

flooring or wooden grading on the surface of the floor that had negligently

been permitted to remain, and become loose and unsecured. . . .”); Florin v.

Carnival Corp[.], Case No. 18-CIV-22131-Altonaga (“[The] [p]laintiff was

walking along the Lido Deck and as she entered one of the restaurants, she

tripped over an uneven/protruding metal grate . . . at the entrance to the

restaurant.”).

12. As a consequence, Plaintiff sustained injury to her chest, fractures of

ribs, bruising of her breasts, and injury to her knee. Although Plaintiff’s

injuries were such that she necessitated medical care in Defendant’s

infirmary, beyond taking her vitals, Defendant refused to treat her or

provide her with first aid as she was unable to pay. It is Defendant’s practice

to turn away from its infirmary passengers who are unable to pay. Hall v.

Carnival Corp[.], Case No. 21-Civ-20557-Bloom (S.D. Fla. Apr[.] 28, 2021).

13. As a consequence, Plaintiff also necessitated continued medical care

following her return home.

14. All conditions precedent to the maintenance of this action have been

performed, or, alternatively, have been waived.

[ECF No. 1, ¶¶ 10–14].

The following allegations concern Count I’s negligence theory:

15. At all times material, Defendant owed Plaintiff a duty of reasonable

care under the circumstances. Kermarec v. Compagnie Generale

Transatlantique, 358 U.S. 625, 79 S. Ct. 406 (1959); Everett v. Carnival Cruise

Lines, Inc., 912 F.2d 1355 (11th Cir. 1990); Keefe v. Bahama Cruise Line, Inc.,

867 F.2d 1318 (11th Cir. 1989), on remand, 715 F. Supp. 1069 (M.D. Fla. 1989).

16. On or about July 21, 2023, Defendant, and/or its agents, employees,

and/or servants breached its/their duty to provide Plaintiff with reasonable

care under the circumstances.

17. On or about July 21, 2023, Plaintiff was injured due to the fault and/or

negligence of Defendant, and/or its agents, employees, and/or servants as

follows:

a. Failure to exercise reasonable care for Plaintiff’s safety;

and/or

b. Failure to provide Plaintiff with a reasonably safe deck

area to walk on; and/or

c. Failure to properly supervise and control passenger

use of the deck area to ensure it was reasonably safe for use

by passengers, including Plaintiff; and/or

d. Failure to inspect, maintain, and monitor the deck area

to ensure it was reasonably safe for use by passengers,

including Plaintiff; and/or

e. Allowing a raised, uneven, and protruding

moulding/ledge above the deck surface thus creating a trip

hazard and rendering the deck unsafe for Plaintiff; and/or

f. Failure to inspect, maintain, and monitor the raised,

uneven, and protruding moulding/ledge which made the

deck unsafe for Plaintiff, rendering the deck unsafe for

Plaintiff; and/or

g. Failure to properly repair/replace the raised, uneven,

and protruding moulding/ledge despite the fact that the

condition had existed for a sufficient period of time as evinced

by dings and dents on the moulding/ledge; and/or

h. Failure to comply with safety codes and standards

designed and promulgated to reduce the risk of the type of

accident [ ] Plaintiff suffered, from happening; and/or

i. Failure to have adequate risk management procedures

in place designed to reduce the occurrence of the type of

accident suffered by [ ] Plaintiff; and/or

j. Failure to implement available safety and ergonomic

standards designed to reduce and/or prevent the type of

accident [ ] Plaintiff suffered from happening; and/or Failure

to take steps as a result of prior similar incidents to reduce

and/or prevent the type of accident [ ] Plaintiff suffered from

happening. Zarr v. Carnival Corp[.], Case No. 17-Civ-20312-

Altonaga; Florin v. Carnival Corp[.], Case No. 18-CIV-22131-

Altonaga.

k. Failure to take steps as a result of prior similar

incidents to reduce and/or prevent the type of accident [ ]

Plaintiff suffered from happening. Zarr v. Carnival Corp[.],

Case No. 17-Civ-20312-Altonaga; Florin v. Carnival Corp[.],

Case No. 18-CIV-22131-Altonaga.

18. Defendant created the foregoing conditions causing Plaintiff’s

accident.

19. Alternatively, Defendant knew of the foregoing conditions causing

Plaintiff’s accident and did not correct them, or the conditions existed for a

sufficient length of time so that Defendant, in the exercise of reasonable care

under the circumstances, should have learned of them and corrected them.

Zarr v. Carnival Corp[.], Case No. 17-Civ-20312-Altonaga; Florin v. Carnival

Corp[.], Case No. 18-CIV-22131-Altonaga.

20. The conditions created and/or known to Defendant occurred with

sufficient regularity so as to be reasonably foreseeable to Defendant. Zarr v.

Carnival Corp[.], Case No. 17-Civ-20312-Altonaga; Florin v. Carnival Corp[.],

Case No. 18-CIV-22131-Altonaga.

21. As a direct and proximate result of the negligence of Defendant,

Plaintiff was injured about Plaintiff’s body and extremities; suffered

physical pain, mental anguish, loss of enjoyment of life, disability,

disfigurement, aggravation of previously existing conditions; incurred

medical expenses in the care and treatment of Plaintiff’s injuries; and has

suffered physical handicap. The injuries are permanent or continuing in

nature, and Plaintiff will suffer the losses and impairments in the future.

Id. at ¶¶ 15–21.

The following allegations concern Count II’s failure to warn claim:

22. At all times material, Defendant owed Plaintiff a duty of reasonable

care under the circumstances, which includes a duty to warn of hidden

dangerous conditions known or, in the exercise of reasonable care,

knowable to Defendant. Poole v. Carnival Corp., Case No. 14-20237-Cooke

(S.D. Fla. Apr. 8, 2015); Luby v. Carnival Cruise Lines, Inc., 633 F. Supp. 40

(S.D. Fla. 1986), aff’d, 808 F.2d 60 (11th Cir. 1986).

23. On or about July 21, 2023, Defendant, and/or its agents, employees,

and/or servants breached its/their duty to provide Plaintiff with reasonable

care under the circumstances by failing to warn Plaintiff of a dangerous

condition known to Defendant. Zarr v. Carnival Corp[.], Case No. 17-Civ-

20312-Altonaga; Florin v. Carnival Corp[.], Case No. 18-CIV-22131-Altonaga.

24. On or about July 21, 2023, Plaintiff was injured due to the fault and/or

negligence of Defendant, and/or its agents, employees, and/or servants as

follows:

a. Failure to exercise reasonable care for Plaintiff’s safety;

and/or

b. Failure to warn Plaintiff of a dangerous condition, to

wit: a raised, uneven, and protruding moulding/ledge above

the deck surface thus creating a hidden, non-obvious trip

hazard and rendering the deck unsafe for Plaintiff; and/or

c. Failure to warn Plaintiff of a dangerous condition, to

wit: a raised, uneven, and protruding moulding/ledge up and

above the deck surface thus creating a hidden, non-obvious

trip hazard and rendering the deck unsafe for Plaintiff, which

Defendant had knowledge of and was on notice of; and/or

d. Failure to warn Plaintiff of a dangerous condition, to

wit: a raised, uneven, and protruding moulding/ledge up and

above the deck surface thus creating a hidden, non-obvious

trip hazard and rendering the deck unsafe for Plaintiff, which,

in the exercise of reasonable care, Defendant should have had

knowledge of and was on notice of.

25. Defendant created the foregoing conditions causing Plaintiff’s

accident, but did not warn Plaintiff of the hidden dangerous conditions.

26. Alternatively, Defendant knew of the foregoing conditions causing

Plaintiff’s accident, but did not warn Plaintiff of the hidden dangerous

conditions, or the conditions existed for a sufficient length of time so that

Defendant, in the exercise of reasonable care under the circumstances,

should have learned of them and warned Plaintiff of the hidden dangerous

condition. Zarr v. Carnival Corp[.], Case No. 17-Civ-20312-Altonaga; Florin

v. Carnival Corp[.], Case No. 18-CIV-22131-Altonaga.

27. The conditions created and/or known to Defendant occurred with

sufficient regularity so as to be reasonably foreseeable to Defendant, such

that Defendant was under an obligation to warn Plaintiff. Zarr v. Carnival

Corp[.], Case No. 17-Civ-20312-Altonaga; Florin v. Carnival Corp[.], Case No.

18-CIV-22131-Altonaga.

28. As a direct and proximate result of the negligence of Defendant,

Plaintiff was injured about Plaintiff’s body and extremities; suffered

physical pain, mental anguish, loss of enjoyment of life, disability,

disfigurement, aggravation of previously existing conditions; incurred

medical expenses in the care and treatment of Plaintiff’s injuries; and has

suffered physical handicap. The injuries are permanent or continuing in

nature, and Plaintiff will suffer the losses and impairments in the future.

Id. at ¶¶ 22–28.

The following allegations concern Count III’s failure to render first aid claim:

29. At all times material, Defendant owed Plaintiff a duty of reasonable

care under the circumstances which extends to rendering first aid. Hall v.

Carnival Corp[.], Case No. 21-Civ-20557-Bloom (S.D. Fla. Apr[.] 28, 2021).

30. After her fall, Plaintiff presented to Defendant’s infirmary for help.

31. Defendant advertises its infirmaries as “committed to providing the

highest quality of shipboard medical care.”

32. However, in Defendant’s infirmary, beyond the taking of her vitals,

Plaintiff was refused care because she was unable to pay the “consultation

fee” for Defendant’s physician and/or the fee for x-rays.

33. Although Plaintiff had medical insurance at the time, Defendant

refused to accept it and demanded immediate payment then before it

would care for Plaintiff.

34. Plaintiff described her pain and difficulties breathing (she would

come to learn that had [sic] suffered fractures of anterior to anterolateral left

5th to 7th ribs) and pled that she be able to see Defendant’s physician, but

was nevertheless turned away.

35. In refusing to provide Plaintiff with first aid, Defendant breached its

duty of “reasonable care under the circumstances,” not to mention that of

simple human decency.

36. As a consequence of this breach, Plaintiff suffered additional pain

and suffering until she was seen at a shoreside emergency room in

Lakeland, Florida the following day.

37. Defendant’s refusal to provide Plaintiff with the most basic first aid

was intentional, wanton, and willful to the point of being intolerable in a

civilized society.

38. As a direct and proximate result of Defendant’s refusal to render first

aid, Plaintiff was injured about Plaintiff’s body and extremities; suffered

physical pain, mental anguish, loss of enjoyment of life, disability,

disfigurement, aggravation of previously existing conditions; incurred

medical expenses in the care and treatment of Plaintiff’s injuries; and has

suffered physical handicap. The injuries are permanent or continuing in

nature, and Plaintiff will suffer the losses and impairments in the future.

Id. at 29–38.

II. Applicable Legal Standards and Analysis

To survive a motion to dismiss under Rule 12(b)(6), “a complaint must contain

sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its

face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S. Ct. 1937, 173 L. Ed. 2d 868 (2009) (quoting

Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S. Ct. 1955, 167 L. Ed. 2d 929 (2007)). To

meet this “plausibility standard,” a plaintiff must “plead[ ] factual content that allows the

court to draw the reasonable inference that the defendant is liable for the misconduct

alleged.” Id. (citing Twombly, 550 U.S. at 556). The standard “does not require ‘detailed

factual allegations,’ but it demands more than an unadorned, the-defendant-unlawfully-

harmed-me accusation.” Id. (quoting Twombly, 550 U.S. at 555).

“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.” Iqbal, 556 U.S. at

678.

On a motion to dismiss, “the court must accept all factual allegations in a

complaint as true and take them in the light most favorable to plaintiff.” Dusek v.

JPMorgan Chase & Co., 832 F.3d 1243, 1246 (11th Cir. 2016) (emphasis added).

Federal Rule of Civil Procedure 8(a) requires only “a short and plain statement of

the claim showing that the pleader is entitled to relief.” It does not “require that a plaintiff

specifically plead every element of a cause of action.” Balaschak v. Royal Caribbean Cruises,

Ltd., No. 09-21196, 2009 WL 8659594, at *6 (S.D. Fla. Sept. 14, 2009) (citing Roe v. Aware

Woman Ctr. for Choice, Inc., 253 F.3d 678, 683 (11th Cir. 2001), which, in turn, cited Jack H.

Friedenthal, et al., Civil Procedure, § 5.7 (2d ed. 1993) for the view that “[w]hat the pleader

need not do is worry about the particular form of the statement or that it fails to allege a

specific fact to cover every element of the substantive law involved.”).

To properly plead a claim for negligence under the General Maritime Law of the

United States, 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 survive a motion to dismiss, a plaintiff must plead sufficient facts to support

each element of his direct liability negligence claims (as opposed to vicarious liability),

including that the defendant had “actual or constructive notice of [a] risk-creating

condition,” at least where the risk is one commonly encountered on land and not clearly

linked to nautical adventure. See Holland v. Carnival Corp., 50 F.4th 1088, 1094 (11th Cir.

2022); Newbauer v. Carnival Corp., 26 F.4th 931, 935 (11th Cir. 2022), cert. denied, 143 S. Ct.

212 (2022).

In Newbauer, the Eleventh Circuit affirmed a district court’s granting of a cruise

ship operator’s motion to dismiss when the court found that Newbauer failed to provide

any factual allegations to support her claim that Carnival had actual or constructive

notice of the hazard which allegedly caused her injury. The plaintiff cruise-passenger

alleged she was injured when she slipped and fell on a wet, slippery transitory substance

on the cruise ship’s Lido deck. The passenger filed suit against the cruise ship operator,

alleging that it negligently failed to maintain the area and/or warn her of the condition.

In dismissing Newbauer’s claims, the district court found that “[n]one of the

[p]laintiff’s allegations suggest Carnival was on constructive notice, let alone actual

notice, of the hazard complained of because the [p]laintiff’s complaint fails to satisfy

applicable federal pleading standards under Federal Rule 8 and the Iqbal/Twombly

standard.” Newbauer v. Carnival Corp., No. 20-23757-CIV, 2021 WL 723164, at *2 (S.D. Fla.

Feb. 24, 2021), aff'd, 26 F.4th 931 (11th Cir. 2022). In affirming the district court’s decision,

the Eleventh Circuit similarly concluded that the passenger “failed to include any factual

allegations that were sufficient to satisfy the pleading standard set forth in Iqbal and

Twombly such that it is facially plausible that Carnival had actual or constructive notice of

the dangerous condition.” Newbauer, 26 F.4th at 935 (emphasis added).

More recently, the Eleventh Circuit again reaffirmed the principle that, “to survive

[a] motion to dismiss” the plaintiff must “plead sufficient facts to support each element

of his claim, including that [the defendant] had actual or constructive notice about the

dangerous condition.” Holland, 50 F.4th at 1095. In Holland, the plaintiff cruise-passenger

filed suit against the cruise ship operator, alleging he was injured when he slipped and

fell while descending a glass staircase in a highly trafficked area of the ship. Holland

alleged facts that made it possible that the cruise line had notice of the allegedly

dangerous condition, but he failed to provide factual allegations that plausibly suggested

the cruise line had notice, actual or constructive, of the dangerous condition. “Simply put,

Holland’s allegations do not cross the line from possibility to plausibility of entitlement

to relief.” Id. at 1096 (citing Iqbal, 556 U.S. at 678).

Plaintiff’s Complaint attempts to plead notice in Counts I and II with almost

identical notice allegations. However, the allegations cited by Plaintiff are generic,

conclusory, speculative, and insufficient to plead that Carnival was on notice (prior to

Plaintiff’s incident) of a dangerous condition onboard the vessel.

Plaintiff alleges Carnival knew of the conditions because the conditions existed for

a sufficient length of time or occurred with sufficient regularity. [ECF No. 1, ¶¶ 10, 19,

20]. These are not factual allegations from which notice may be inferred -- they are

threadbare allegations that do not allege specific facts suggesting how Carnival knew or

should have known of the specific dangerous condition alleged. Plaintiff primarily

alleges notice based on “the length of time” the condition had been present or the

“sufficient regularity” it occurred but has not alleged what the length of time was or how

many reoccurrences.

In Newbauer, Senior District Judge Robert N. Scola, Jr. addressed an analogous

allegation, finding it insufficient to support a contention that the cruise line had notice:

As [pled], it is impossible for the Court to tell if the hazardous condition the

[p]laintiff complaints of was present for five seconds, five minutes, or five

hours. While the [p]laintiff’s complaint makes clear it is possible that

Carnival was on notice, the [p]laintiff’s complaint does not state a claim that

is plausible on its face sufficient to survive a motion to dismiss.

2021 WL 723164 (emphasis in original).

Here, Plaintiff’s conclusory allegations closely follow those found in Newbauer and

are similarly unsupported. Even if the alleged dangerous condition had been present for

a certain length of time, Plaintiff has also failed to assert facts that Carnival was aware

that it posed a danger. See generally Beck v. Carnival Corp., No. 23-24636, 2024 WL 2939074,

at *3 (S.D. Fla. June 11, 2024) (granting cruise ship operator’s motion to dismiss three

counts of direct negligence in lawsuit filed by passenger who tripped and fell while

walking down the vessel’s gangway for failure to adequately allege notice because the

allegations are “conclusory and speculative”).

Next, Plaintiff alleges Carnival knew of the dangerous condition through “other

passengers on Defendant’s ships [that] have previously been injured under similar

circumstances”. [ECF No. 1, ¶ 11]. Plaintiff lists two incidents involving trip and falls.

[ECF No. 1 ¶ 11]. However, according to Carnival’s dismissal motion, a cursory review

of the two incidents cited by Plaintiff reveals that neither case involves the same vessel,

much less the same area or dangerous condition as alleged by Plaintiff.

This scenario runs afoul of the approach used in Kendall v. Carnival Corp., where

the Court emphasized the plaintiff’s failure to link other incidents to the specific area or

vessel. No. 1:23-CV-22921-KMM, 2023 WL 8593669, at *3 (S.D. Fla. Dec. 8, 2023) (holding

that the plaintiff’s vague assertions about incidents on entirely different vessels would

“constitute a great deviation from Eleventh Circuit precedent requiring a plaintiff to

show substantially similar accidents to the one at issue to demonstrate constructive

notice”).2

The Eleventh Circuit recently acknowledged its rules about the importance of

properly alleging notice in personal injury lawsuits against cruise ships in Patton v.

Carnival Corp., No. 22-13806, 2024 WL 1886504 (11th Cir. Apr. 30, 2024) (affirming order

dismissing trip-and-fall complaint arising from an improperly affixed metal threshold

extending across a highly trafficked hallway). Therefore, the pleading hurdles

highlighted in Newbauer and Holland remain vital.

2 The Kendall Court dismissed the complaint without prejudice and with leave to

amend. 2023 WL 8593669, at *4. The plaintiff filed an amended complaint, followed by a

second amended complaint, and the case then settled. See [ECF Nos. 19, 35, 48, 49 in No.

1:23-CV-22921-KMM].

So Counts I and II are defective for failure to adequately allege notice with

plausible facts, as opposed to conclusory and speculative rhetoric. I, therefore,

respectfully recommend that Judge Williams dismiss (albeit without prejudice) Counts

I and II for that reason.

Switching to another challenge to the Complaint (concerning Count III, for failure

to provide medical care), the Undersigned notes that Defendant contends that the United

States Supreme Court and the Eleventh Circuit (in a non-binding opinion) have

previously explained that punitive damages are not available in personal injury-based

passenger maritime claims. See The Dutra Grp. v. Batterton, 588 U.S. 358 (2019); Eslinger v.

Celebrity Cruises, Inc., 772 F. App’x 872 (11th Cir. June 28, 2019) (“Our court has held that

plaintiffs may not recover punitive damages . . . for personal injury claims under federal

maritime law.”) (internal citations omitted) (citing In re Amtrak Sunset Ltd. Train Crash,

etc., 121 F.3d 1421, 1429 (11th Cir. 1997)).3 Based on this authority, Carnival asks that

Count III and its punitive damages claim be dismissed with prejudice.

Some courts in our district have previously stricken a plaintiff-passenger’s claims

for punitive damages under far-more serious factual scenarios than the one involved

here. See Adams v. NCL (Bahamas) Ltd., Case No. 20-20438-CIV-UNGARO, ECF No. 18

(S.D. Fla., Apr. 6, 2020) (finding no valid claim for punitive damages against cruise ship

3 Because the Eleventh Circuit did not select Eslinger for publication, it is not binding

precedent. It may, however, be “cited as persuasive authority.” See Fed. R. App. P. 32.1

and 11th Cir. R. 36-2.

operator where the plaintiff alleged two crewmembers drugged her drink without her

knowledge and then raped and/or sexually assaulted her in a stateroom because the

allegations did not rise to the level of “intentional misconduct” necessary for an

“exceptional circumstance” in which punitive damages may be awarded); see also Doe v.

NCL (Bahamas) Ltd., Case No. 19-21486-CIV-ALTONAGA/Goodman, ECF No. 45 (S.D.

Fla. Aug. 29, 2019) (striking punitive damages claim pursuant to the defendant’s motion,

which relied on Eslinger, concerning a minor cruise ship passenger who alleged she had

been sexually assaulted by the defendant’s cabin steward).4

On the other hand, other courts within our district have held, in post-Eslinger

decisions, that “punitive damages may be available under maritime law upon a showing

of the defendant’s intentional misconduct.” Hindsman, 2020 WL 13369050, at *1 (emphasis

added). The Hindsman Court held that,

[t]o demonstrate intentional misconduct for the purposes of recovering

punitive damages, plaintiffs must show that “the defendant had actual

knowledge of the wrongfulness of the conduct and the high probability that

injury or damage would result and, despite that knowledge, intentionally

pursued that course of conduct, resulting in injury or damage.”

Id. at *2 (citing Tang v. NCL (Bahamas) Ltd., No. 20-cv-20967, 2020 WL 3989125, at *3 (S.D.

Fla. July 14, 2020) (quoting Mee Indus. v. Dow Chem. Co., 608 F.3d 1202, 1220 (11th Cir.

2010))).

4 But Chief District Judge Cecilia M. Altonaga later receded from this ruling in

Hindsman v. Carnival Corp., No. 19-23536, 2020 WL 13369050, *1, n.2 (S.D. Fla. Aug. 6,

2020).

Moreover, as noted, the Hindsman Court acknowledged that it was receding from

its earlier decision in Doe v. NCL (Bahamas) Ltd, No. 19-cv-21486, where it struck a punitive

damages prayer for relief in a maritime personal injury case.

Plaintiff’s personal injury-based claims are governed by U.S. maritime law, and

her claim of being refused medical care at the ship’s infirmary/medical clinic may not

warrant punitive damages under binding Eleventh Circuit precedent. See also Simpson v.

Carnival Corp., No. 20-25253, 2021 WL 6428172, at *1 (S.D. Fla. Dec. 28, 2021) (“Binding

Eleventh Circuit precedent unequivocally precludes the recovery of punitive damages in

a negligence case . . . for personal injuries under general maritime law.”) (Scola, J.).

Although, as noted, there are some courts within our district which have permitted

punitive damages in maritime personal injury complaints, the permitted exception

applies only when intentional wrongdoing can be demonstrated. See McIlwain v. Royal

Caribbean Cruises, Ltd., No. 22-cv-24025, 2023 WL 4117109 at *6 (S.D. Fla. June 20, 2023)

(citing cases); see also Escutia v. Carnival Corp., No. 23-24230, 2024 WL 1931703 at*18 (S.D.

Fla. Mar. 13, 2024) (“[T]here are some Courts in our District which have allowed punitive

damages claims in personal injury cases under maritime law after Eslinger, but they have

done so only in ‘exceptional circumstances’ upon a showing of ‘intentional misconduct’

by a defendant.”).

At bottom, there is “an intra[-]district split on whether punitive damages are

allowed in maritime cases.” McIlwain, 2023 WL 4117109, at *6 (emphasis added).

Setting aside the observation that punitive damages may not be available under

Eslinger, which is not actually “the law” in our Circuit (as it is an unpublished opinion),

pre-Eslinger authority could lead to the same conclusion here, as Carnival contends that

Plaintiff has not pled conduct on its part which would warrant punitive damages.

Under the pre-Eslinger line of case law, a plaintiff may recover punitive damages

only “where the plaintiff’s injury was due to the defendant’s ‘wanton, willful, or

outrageous conduct.’” Lobegeiger v. Celebrity Cruises, Inc., No. 11-21620, 2011 WL 3703329

at *7 (S.D. Fla. Aug. 23, 2011) (quoting Atl. Sounding Co., Inc. v. Townsend, 557 U.S. 404

(2009)); Cf. Norwegian Cruise Lines, Ltd. v. Zareno, 712 So. 2d 791, 794 (Fla. 3d DCA 1998)

(in order to award punitive damages in a maintenance and cure case against the

shipowner, the plaintiff must shows “substantive evidence of willful, callous, or

egregious conduct” by the shipowner).

A court should strike or dismiss a punitive damages request when the substance

of the allegations does not demonstrate that the alleged misconduct rises to the level

necessary to support the remedy. See Baker v. Carnival Corp., No. 06-21527, 2006 WL

3519093, at *5 (S.D. Fla. Dec. 5, 2006) (striking the plaintiff’s request for punitive damages

against a cruise ship operator in a rape case because the allegations did not rise to the

then applicable standard).

Here, the issue is whether Carnival’s conduct -- refusing to provide medical care

to an injured passenger because she had insurance but could not pay the mandatory clinic

fee -- meets the intentional misconduct standard for a punitive damages claim. See Noon

v. Carnival Corp., No. 18-23181-Civ-WILLIAMS/TORRES, 2019 WL 3886517, at *13 (S.D.

Fla. Aug. 12, 2019) (concluding that “[the] [p]laintiff may only recover punitive damages

upon a showing of intentional misconduct”); Simmons v. Royal Caribbean Cruises, Ltd., 423

F. Supp. 3d 1350, 1353–54 (S.D. Fla. 2019) (applying intentional misconduct standard to

claim for punitive damages). See also Hall v. Carnival Corp., 536 F. Supp. 3d 1306 (S.D. Fla.

2021).

Carnival’s motion contends that it had no duty to provide medical care. The

Undersigned disagrees that this principle precludes the instant claim, at least for

purposes of evaluating a motion to dismiss, where the allegations are deemed true.

Carnival relies upon Aronson v. Celebrity Cruises, Inc., for the argument that a cruise

ship has no duty to provide doctors or other medical personnel to its passengers and

therefore cannot be held liable for allegedly failing to provide medical care that it does

not owe to passengers. 30 F. Supp. 3d 1379, 1395–96 (S.D. Fla. 2014). But the Undersigned

doubts whether this view would preclude the claim here after Franza v. Royal Caribbean

Cruises, Ltd., 772 F.3d 1225 (11th Cir. 2014). In Franza, the Court determined that the

plaintiff could sue the shipowner for medical negligence under an apparent agency

theory and noted that, “with no land on the horizon, a passenger who falls ill aboard a

cruise ship has precious little choice but to submit to onboard care. The hard reality is

that, at least in the short term, he may have literally nowhere else to go.” Id. at 1242 (citing,

Fairley v. Royal Cruise Line Ltd., 1993 A.M.C. 1633, 1638 (S.D. Fla. 1993) (referring to sick

or injured passengers as a “captive audience” whose “only resort” is onboard medical

staff)).5

Aronson involved a cruise ship passenger who sustained injuries in a fall from a

rope bridge in Dominica while on a shore excursion arranged for passengers traveling on

a cruise ship owned and operated by Celebrity Cruises, Inc. The Complaint alleged (¶

22n) that Celebrity was negligent for “failing to provide proper emergency medical care.”

In other words, the claim was for failure to provide any care at all in connection with an

off-ship excursion. Here, however, Carnival had medical care available on the ship and

in fact provided it to customers who could pay the fee, which is an entirely different

circumstance.

In addition, Aronson relied on Barbetta v. S/S Beremuda Star, 848 F.2d 1364, 1369–72

(5th Cir. 1988) for a “so-called rule” which immunizes a shipowner from respondeat

superior liability whenever a ship’s employees render negligent medical care to its

passengers -- but which the Franza Court specifically declined to adopt “because [it] can

no longer discern a sound basis in law for ignoring the facts alleged in individual medical

malpractice complaints and wholly discarding the same rules of agency that we have

applied so often in other maritime tort cases.” 772 F.3d at 1238.

5 Franza, a binding Eleventh Circuit case, was issued on November 10, 2014;

Aronson, a non-binding district court case, was issued on May 9, 2014 (months before

Franza, which provided a comprehensive history of cruise ship litigation).

Moreover, the claim here is not that Carnival failed to have any medical services

available on its ship. In fact, it had an on-board medical clinic/infirmary, and its staffers

provided some initial medical care to Plaintiff when they took her vital signs. They simply

refused to provide any additional medical care when they refused to accept her insurance

and Plaintiff could not then immediately pay the additional fee.

Having decided to provide and staff an infirmary on the ship, Carnival cannot

avoid liability here, when it allegedly failed to act reasonably by simply parroting an

outdated rule that cruise ship operators have no duty to provide medical service.

“[U]nder maritime law, the owner of a ship in navigable waters owes passengers a duty

of reasonable care under the circumstances.” Sorrels v. NCL (Bah.) Ltd., 796 F.3d 1275, 1279

(11th Cir. 2015). “A carrier owes its sick and injured passengers a duty to exercise

‘reasonable care to furnish such aid and assistance as ordinarily prudent persons would

render under similar circumstances[.]’” Mumford v. Carnival Corp., 7 F. Supp. 3d 1243, 1248

(S.D. Fla. 2014).

The Hall Court, evaluating a similar fact pattern, found that the allegations were

sufficient to state a negligence claim, based on Carnival’s “failure to exercise reasonable

care to a sick or injured passenger like Plaintiff.” 536 F. Supp. 3d at 1311.

Having determined that Plaintiff stated a negligence claim, we now turn to the

punitive damages issue, which requires a ruling on whether Carnival’s conduct was

plausibly alleged to be intentional misconduct.

“To demonstrate ‘intentional misconduct’ for the purposes of recovering punitive

damages,” Plaintiff must show that “the defendant had actual knowledge of the

wrongfulness of the conduct and the high probability that injury or damage to the

claimant would result and, despite that knowledge, intentionally pursued that course of

conduct, resulting in injury or damage.” Bonnell v. Carnival Corp., 13-CV-22265, 2014 WL

12580433, at *4 (S.D. Fla. Oct. 23, 2014) (citing Mee Indus, 608 F.3d at 1220).

Similar to the fact pattern in Hall, a passenger here was refused medical care by

Carnival’s medical staff because the medical staff refused to accept her insurance and she

could not pay the applicable “consultation fee.” As analyzed by the Hall Court, the

requisite intentional misconduct was plausibly alleged when a passenger sustained an

injury significant enough to result in a need for medical care but was refused medical

treatment solely because of a financial issue. Here, Plaintiff described her pain -- caused

by an injury to her chest, fractured ribs, bruising of her breasts and a knee injury -- and

her difficulty in breathing (i.e., she would later learn that she had suffered multiple rib

fractures) but was still refused treatment.

Indeed, the Complaint alleges that she “pled” to see a physician but “was

nevertheless turned away.” [ECF No. 1, ¶ 34].

Given these allegations, the count adequately alleges the intentional misconduct6

necessary to sustain a claim for refusal to provide medical care, which, if proven, could

justify punitive damages.

III. Conclusion

The Undersigned respectfully recommends that Judge Williams grant in part

Carnival’s motion to dismiss and dismiss part of the Complaint, albeit without prejudice

and with leave to amend. Specifically, Judge Williams should dismiss Counts I and II

without prejudice and with leave to amend. But the Court should deny the dismissal

motion concerning Count III.

IV. Objections

The parties will have fourteen (14) days from the date of being served with a copy

of this Report and Recommendations within which to file written objections, if any, with

the District Judge. Each party may file a response to the other party’s objection within

fourteen (14) days of the objection. Failure to timely file objections shall bar the parties

from a de novo determination by the District Judge of an issue covered in the Report and

shall bar the parties from attacking on appeal unobjected-to factual and legal conclusions

contained in this Report except upon grounds of plain error if necessary in the interest of

6 Plaintiff’s Count III is entitled “Negligence [i]n Failing [t]o Render Aid,” but the

text alleges “intentional, wanton, and willful” misconduct “to the point of being

intolerable in a civilized society.” [ECF No. 1, ¶ 37].

justice. See 28 U.S.C. § 636(b)(1); Thomas v. Arn, 474 U.S. 140, 149 (1985); Henley v. Johnson,

885 F.2d 790, 794 (1989); 11th Cir. R. 3-1 (2016).

RESPECTFULLY RECOMMENDED in Chambers, in Miami, Florida, August 23,

2024.

4, ff q

Jdénathan Goodman

UNITED STATES MAGISTRATE JUDGE

Copies furnished to:

The Honorable Kathleen M. Williams

All Counsel of Record

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