Aronson v. Celebrity Cruises Inc., et al

Lipcon, Margulies, Alsina & Winkleman, P.A

March 15, 2012

Aronson v. Celebrity Cruises Inc., et al

Response to Motion to Dismiss

In this case an individual was hurt on a shore excursion he purhcased through a cruise line. Defendant Celebrity Cruises moved to dismiss Plaintiff’s complaint for failing to state a cause of action on which relief can be granted. The basis of the Defendant’s argument is that Celebrity owed the Plaintiff no duty of care because the injury happened off of its ship. Celebrity also argues that it cannot be held responsible for the actions of its shore excursion partner or in the alternative that the Plaintiff signed a waiver. In this response in opposition, Plaintiff argues that the law requires that the Defendant exercise reasonable care under the circumstances beyond the confines of the ship. Additionally, the Plaintiff demonstrates that as pleaded in his complaint, the cruise line and shore excursion entity share a relationship which imparts ones liability to the other. The Plaintiff also argues that Defendant’s motion must be denied because whether or not the Plaintiff understood the waiver he signed is a question properly left for a jury.

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDAspan>
MIAMI DIVISION
CASE NO.: 12-CV-20129-Williams/Turnoff
S. WILLIAM ARONSON,
Plaintiff,

vs.

CELEBRITY CRUISES, INC. and
WRAVE LTD. d/b/a WHACKY ROLLERS,
Defendants.
___________________________/

PLAINTIFF’S RESPONSE IN OPPOSITION TO DEFENDANT CELEBRITY CRUISES INC’S MOTION TO DISMISS PLAINTIFF’S COMPLAINT

COMES NOW, Plaintiff, S. William Aronson, by and through undersigned counsel, and hereby files his Response in Opposition to Defendant Celebrity Cruises, Inc.’s (hereinafter “Celebrity”) Motion to Dismiss Plaintiff’s Complaint. In support thereof, Plaintiff alleges as follows:

1. BACKGROUND.
This case arises out of severe injuries sustained by Plaintiff while on a Celebrity cruise. As part of the cruise experience, Defendant Celebrity offered to Plaintiff the opportunity to go on various excursions from the vessel Equinox. [D.E. 1,13]. On or about March 17, 2011, Plaintiff purchased from Celebrity a ticket for a shore excursion in the scheduled port of call of Roseau, Dominica. [D.E. 1,10]. The excursion, referred to as the “High Hopes, High Ropes Tour,” was operated jointly by Celebrity and the “Excursion Entity” (Defendant Wrave Ltd. d/b/a Whacky Rollers). [D.E. 1,7]. During the course of the excursion, Plaintiff was required to navigate an elevated narrow rope bridge, without adequate assistance, causing him to fall and suffer severe injuries. [D.E. 1,22].

On January 11, 2012, Plaintiff filed his Complaint against Defendant Celebrity and against the Defendant Excursion Entity [D.E. 1]. The claims against Celebrity consist of Negligence (Count I), Apparent Agency or Agency by Estoppel (Count III), Joint Venture (Count IV), and Third Party Beneficiary (Count V).

On February 17, 2012, Celebrity filed a Motion to Dismiss Count I, Count III, Count IV, and Count V of Plaintiff’s Complaint for failure to state a claim upon which relief may be granted. [D.E. 9]. Thus, at issue in Celebrity’s Motion are only those counts directed to Celebrity,

As the following memorandum of law makes clear, Celebrity’s Motion to Dismiss should be denied because Plaintiff’s Complaint properly states a claim for which relief can be granted on all five counts.

2. STANDARD OF REVIEW.

When ruling on a motion to dismiss, the Court must accept as true all of the factual allegations contained in the complaint. Erickson v. Pardus, 551 U.S. 89 (2007). In Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), the Court reaffirmed the “notice pleading” principle codified in Federal Rule of Civil Procedure 8, asserting that a complaint must offer more than a formulaic recitation of the elements of a cause of action. Three weeks after issuing Twombly, the Supreme Court put its decision in context with its ruling in Erickson v. Pardus, 551 U.S. 89 (2007). Quoting Twombly and Conley v. Gibson, 355 U.S. 41 (1957), the Supreme Court in Erickson held:

Federal Rule of Civil Procedure 8(a)(2) requires only “a short and plain statement of the claim showing that a pleader is entitled to relief.” Specific facts are not necessary; the statement need only “give the defendant fair notice of what the… claim is and the grounds upon which it rests.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41 (1957)). In addition, when ruling on a defendant’s motion to dismiss, a judge must accept as true all of the factual allegations in the complaint. Bell Atlantic Corp. Supra., at 555-556.

Id., at 93-94. (emphasis added) (Other internal citations omitted).

All in all, as this Honorable Court recently explained in the matter of Rocha v. Carnival Corporation, Case No: 10-22799-CV-LENARD/TURNOFF (S.D. Fla. 2011) [D.E. 26] even after Twombly, “it remains black-letter law today that in the ordinary case a complaint need not provide detailed factual allegations in order to withstand 12(b)(6) scrutiny.” “Twombly neither eliminated nor marginalized the liberal pleading rules.” Id., at 3-4, citing Caytrans BBC, LLC v. Equipment Rental & Contractors Corp., 2009 WL857554, at *2 (S.D. Ala. Mar. 25, 2009) and Wilchombe v. TeeVee Toons, Inc., 555 F. 3d 949, 958 (11th Cir. 2009).

3. ON COUNT I (NEGLIGENCE), PLAINTIFF PROPERLY AND SUCCINCTLY ALLEGED CARNIVAL’S “DUTY OF CARE.” THEREFORE, CELEBRITY’S MOTION TO DISMISS COUNT I (NEGLIGENCE) SHOULD BE DENIED IN ITS ENTIRETY.

A.Count I. The standard of care.

To satisfy the burden of proof in a negligence action Plaintiff must show: 1) that defendant owed plaintiff a duty; 2) that defendant breached that duty; 3) that this breach was the proximate cause of Plaintiff’s injury; and 4) that Plaintiff suffered damages. Hasenfus v. Secord, 962 F. 2d 1556, 1559-60 (11th Cir. 1992).

In the context of admiralty torts, a shipowner’s “duty” was defined in the seminal case of Kermarec v. Compagnie Generale Transatlantique, 358 U.S. 625, 632 (1959). In Kermarec the Supreme Court held that “the owner of a ship in navigable waters owes to all who are on board for purposes not inimical to his legitimate interests the duty of exercising reasonable care under the circumstances of each case.” (emphasis added).

At paragraphs 20 and 21 of the Complaint Plaintiff succinctly alleges that “ SEQ CHAPTER h r 1[i]t was the duty of Celebrity, to provide Plaintiff with reasonable care under the circumstances” and that “[o]n or about March 17, 2011, Celebrity and/or its agents … breached its duty to provide Plaintiff with reasonable care under the circumstances.”

Therefore, it is undisputed that Plaintiff pled the correct duty of care in this matter. See, i.e. Gentry v. Carnival Corp., 11-21580-JG (S.D. Fla. October 5, 2011) [D.E. 36] (“Plaintiff properly alleges that Carnival’s duty was ‘to provide Plaintiff with reasonable care under the circumstances’).

The applicable standard of reasonable care also “requires, as a prerequisite to imposing liability, that the carrier had actual or constructive notice of the risk creating condition.” Keefe v. Bahama Cruise Line., Inc., 867 F. 2d 1318 (11th Cir. 1989). Constructive notice may be established through evidence which shows 1) that the dangerous condition existed for such a length of time that in the exercise of ordinary care, the Defendant should have known of the condition; or 2) that the condition occurred with regularity and was therefore foreseeable. Kloster Cruise Ltd. v. Grubbs, 762 So. 2d 522 (Fla. 3d DCA 2000). See, Complaint, D.E. 1,25 alleging: (“Celebrity 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 Celebrity in the exercise of reasonable care under the circumstances should have learned of them and corrected them”).

B.Count I. Long standing jurisprudence sets forth that Celebrity, as a common carrier, owed Plaintiff a duty of reasonable care under the circumstances throughout the entire length of her cruise. This duty included Plaintiff’s visit and shore excursion at the port of call ofRoseau, Dominica. Contrary to Defendant’s assertions, therefore, the fact that Plaintiffs injury occurred off the vessel is immaterial for purposes of the standard of care. Pursuant to binding precedent, Celebrity’s duty of care was the same whether Plaintiff was onboard the ship or off the ship in the port of call.

In its motion to dismiss, Celebrity argues that the duty of reasonable care under the circumstances varies when incidents occur off the vessel. [D.E. 9 pg. 4]. Celebrity’s argument appears to suggest that that a ship-owner’s duty of care to a passenger onboard the vessel varies or is somehow different when that same passenger is off the vessel in a scheduled port of call. Celebrity’s argument, however, is incorrect and contrary to law. As shown below, the duty of exercising reasonable care under the circumstances is owed to passengers to the extent of their entire cruise (both onboard and off the vessel).

Maritime law applies regardless of whether the Plaintiff was injured in the vessel or in a port of call. In fact, the duty of reasonable care applies even where a cruise ship passenger has been injured in a port of call outside of the ship. In Doe v. Celebrity Cruises, et. al., 394 F. 3d 891 (11th Cir. 2004), the Court explained that it is immaterial whether a tort occurred on the ship, or in a scheduled port of call. Relying on the Supreme Court in Norfolk Southern Railroad v. Kirby, 343 U.S. at 25 (“[T]he shore is now an artificial place to draw a line”), the Doe Court focused on circumstances – similar to the case herein. For instance, that the stop “was a scheduled port-of-call, and was an integral part of the ongoing cruise or maritime activity in this case” Id., and that “in many ways the particular incident effectively began and ended aboard the cruise ship.” See Doe, at 901:

… Ports-of-call not only add to the enjoyment of a cruise but form an essential function of the cruise experience. In fact, on this particular cruise, five of the seven nights were to be spent in Bermudian ports. Plainly, individuals choose cruise ship vacations because they want to visit unfamiliar places ashore. Cruises to Alaska, the New England States, Bermuda or the Caribbean offer fundamentally different experiences, not generally because of any material difference between ships, but often because of where the ship elects to stop. See Isham v. Pacific Far East Line, Inc.., 476 F. 2d 835, 837 (9th Cir. 1973) (“where a passenger or cruise vessels puts into numerous ports, these stopovers are sine qua non of the cruise”). When a passenger selects a particular cruise, ports-of-call or stopovers provide these passengers with the “cruise experience” for which they are paying … there was little practical experience between the port-of-call and other parts of the ship. Id. (Emphasis Added).

More importantly, under Doe, the purpose behind the exercise of admiralty jurisdiction on torts committed on ports of call, is to “provide for the uniform application of maritime law.” Therefore, the standard of care for negligence does not vary whether the tort occurs on the ship or on the port of call:

Jane Doe was no less a crew passenger the moment she stepped of the ship at the port-of-call than she was the moment she stepped on the ship. We see no reason that a cruise line’s liability to their passengers while at a regularly-scheduled port of call … should vary from port to port … Indeed, a ruling that admiralty jurisdiction did not extend literally beyond the gangplank in this case would upset the very uniformity that the Supreme Court has determined so important for maritime activity.

Id. (Emphasis Added). See also Sullivan v. Ajax Navigation Corp., and Celebrity Cruises, Inc., 881 F. Supp. 906 (S.D. NY. 1995) (citing Isham v. Pacific Far East Line (9th Cir. 1973), Forrester v. Ocean Marine Indemnity Co., 11 F. 3d 1213 (5th Cir. 1993), and Tradewind Transportation Co. v. Taylor, 267 F. 2d 188 (9th Cir. 1959)):

It is well settled that a common carrier general owes a high duty of reasonable care to provide its passengers with safe transportation, adequate supervision to and from a dock or pier… Such duty extends at least to the point of embarkation and debarkation. It does not cease at each port of call where the passengers are free to disembark. Rather, it is owed for the extent of the voyage.

ample case law supports the notion that a carrier may have an obligation to warn of reasonably foreseeable risks that exists beyond the gangplank. Tradewind Transportation Co. v. Taylor, 267 F. 2d 188 (9th Cir. 1959). Such an obligation arises where the carrier knew, or should have known of dangers in places where passengers are likely to go. There is no indication in the record that Plaintiff was cautioned against sitting on the bollard. The fact that the dock was owned and controlled by the Mexican government is of little consequence. See Tradewind, 267 F. 2d at 188 (holding common carrier liable when passenger injured on premises owned and controlled by third party). Id. (emphasis added).

Herein, Celebrity’s duty of exercising reasonable care under the circumstances extended to Plaintiff’s shore excursion at the scheduled port of call of . Like Doe and Tradewind, the vessel’s visit to Roseau, Dominica, was a scheduled part of the four-night cruise, and therefore, an integral part of the on-going cruise or maritime activity. Further, like Doe and Tradewind the particular incident effectively began and ended aboard the cruise ship. It is immaterial – as explained in Sullivan above – that in addition to Celebrity, a third party may have controlled or owned the shore excursion on shore.

All in all, contrary to Celebrity’s assertions, the duty of reasonable care under the circumstances is owed to passengers to the extent of their entire cruise. This duty applies even where a cruise ship passenger has been injured in a port of call outside of the ship.

C. Count I. Contrary to Celebrity’s assertions, Plaintiff pled sufficient factual matter in support of the allegations in Count I (Negligence) in compliance with TwomblyandFed. R. Civ. P. 8(a)(2).

Celebrity argues that Count I of Plaintiff’s complaint fails to meet the pleading requirements because it does not contain sufficient factual matter. Celebrity also alleges that Plaintiffs negligence allegations are “legal conclusions.” [D.E. 9, pg. 5]. Celebrity is incorrect.

As illustrated earlier, it remains black-letter law today that a complaint need not provide detailed factual allegations in order to withstand 12(b)(6) scrutiny. As the Supreme Court explained in Twombly and subsequently in Erickson, Rule “8(a)(2) requires only a short and plain statement of the claim showing that a pleader is entitled to relief.” The statement need only “give the defendant fair notice of what the… claim is and the grounds upon which it rests.” Erickson v. Pardus, 551 U.S. 89 (2007), citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007).

Here, Plaintiff has succinctly alleged that Celebrity owed him, as a passenger, a duty of care. (see, e.g., Compl. D.E. 1,20). In support of that allegation, Plaintiff has pled with sufficient factual matter the different ways by which Defendant breached that standard of care. (See e.g., Compl. D.E. 1,22(a)-(aa), and24). [1] Plaintiffs’ allegations have therefore notified Celebrity of his claim and the grounds upon which it rests. As footnote 1 shows, there is nothing “conclusory or formulaic” about Plaintiff’s allegations. On the contrary, Plaintiff’s allegations contain a great deal of facts in support of the Negligence count.

All in all, Plaintiff has gone above and beyond the pleading requirements set forth in Federal Rule 8(a), Erickson, and Twombly, by setting forth in succinct, enumerated statements Celebrity’s negligence with sufficient particularity to give NCL notice of the claim is and the ground it rests on. See Bridgewater v. Carnival Corporation, 10-22241-JLK [D.E. 55] (S.D. Fla. 2011) (King, J.):

In large part, Plaintiffs’ claim for negligence under Count I is predicated upon a laundry list of duties allegedly owed by Carnival to Plaintiff … Nonetheless, Defendant would have this Court dismiss Count I on the basis that Plaintiff failed to plead “sufficient factual matter” to support a claim for negligence. The Court cannot agree. As was well settled by the Supreme Court in Bell Atlantic v. Twombly, 550 U.S. 544 (2007), only a short and plain statement of a claim is required. Upon consideration of the Complaint (DE #1), there can be no doubt that the allegations are sufficient to provide notice to Carnival of both Plaintiffs claims and the factual bases upon which that claim is predicated. As such, Defendant’s Motion to Dismiss must be denied as to Count I.

Id., D.E. 55 at 3.
As Judge King found in Bridgewater, there can be no doubt here that the allegations in the Complaint are sufficient to provide notice to Celebrity of Plaintiff’s claim for negligence and the factual bases upon which that claim is predicated. Moreover, these facts are sufficient to draw a reasonable inference of negligence under Iqbal against Celebrity. See Propenko v. Royal Caribbean Cruise Ltd., 10-20068, 2010 U.S. Dist. Lexis 37618 (S.D. Fla. Apr. 15, 2010) (allegation that plaintiff “was caused to fall on water on deck of the ship at or near the swimming pool, causing her serious injury” was “sufficient to draw a reasonable inference of negligence” under Iqbal).

Plaintiff sufficiently pled Celebrity’s knowledge.Celebrity additionally argues that the Plaintiff did not sufficiently pled that Celebrity “knew or reasonably should have known” of the dangerous condition causing Plaintiff’s accident. At paragraph 25 of the Complaint, Plaintiff, referring to all of the previous allegations listed in footnote 1 above (paragraphs 22(a)-(aa), and24-), succinctly alleges:

“CELEBRITY 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 Celebrity in the exercise of reasonable care under the circumstances should have learned of them and corrected them

In its Motion to Dismiss [D.E. 9, p. 5], Celebrity argues that this is a “boilerplate allegation, without any factual basis.” Celebrity, however, is incorrect.

In the Complaint, Plaintiff succinctly alleges a) that “Celebrity arranged for, sponsored, recommended and/or operated” the excursion (D.E. 1,10), b) that “Celebrity was co-owner of the excursion” (D.E. 1,14), c) that Celebrity “failed to provide an excursion that utilized proper and adequate equipment” (D.E. 1,22(b)) and d) that “Celebrity negligently failed to determine the hazards that the excursion posed to Plaintiff [and] failed to eliminate the hazard” (D.E. 1,24). Thus, the Complaint succinctly gives Defendant notice of the fact that, by virtue of Celebrity’s operation and control of the excursion (10,14) and its failure to provide the necessary safety equipment (22(b)) and to eliminate the hazards that the excursion posed (24); at all times material, Celebrity knew of the conditions that caused Plaintiff’s accident and did not correct them, or the conditions existed for a sufficient length time so that Celebrity, in the exercise of reasonable care under the circumstances should have learned of them and correct them.

Moreover, had Celebrity provided its passengers with an excursion that utilized the necessary safety equipment, the Plaintiff would not have sustained the serious injuries he ended up incurring, “when he was required to navigate an elevated narrow rope bridge, without adequate assistance, causing him to fall and suffer injurySee [D.E. 1,22].Thus, all four allegations (at paragraphs 10, 14, 22(b) and 24), show that in the absence of the necessary safety equipment, Celebrity knew or should have known the condition that caused Plaintiff’s incident. Any assertion that the Complaint does not give Celebrity notice of “what it knew” or “what it should have known” is therefore simply incorrect.

Plaintiff is not required to plead evidence. In its Motion to Dismiss [D.E. 9], Celebrity also seems to be making the argument that Plaintiff should plead evidence or even to plead every single fact/detail upon which his claim is based. However, nothing of the sort is required under Federal Rule 8(a), Twombly, or Erickson. See, i.e. Gentry v. Carnival Corp., 11-21580-JG (S.D. Fla. October 5, 2011) [D.E. 36]:

Carnival also argues that Gentry has not alleged sufficient details regarding her injury. Gentry alleged that she was injured when the seat belt restraint on the excursion bonbsled ride failed. Nevertheless, Carnival contends that it is unclear from the complaint what Gentry claims Carnival knew or should have known about the dangers of going on the excursion…

…. The Court finds that Gentry sufficiently alleged a negligence claim for purposes of surviving a Rule 12(b)(6) motion and requiring Gentry to replead this claim in greater detail would be unnecessary and inefficient. The complaint contains “enough factual matter (taken as true) to suggest that” Carnival was Negligent. Twombly, 550 U.S. at 556 … It provides Carnival with notice of what the claim is about. See Thomson v. Allstate Ins. Co., 476 F. 2d 746, 749 (5th Cir. 1973). Gentry is not required to plead evidence, nor even all of the facts upon which her claim is based. Bogosian v. Gulf Oil Corp., 561 F. 2d 434, 446 (3d Cir. 1977). Carnival will have ample opportunity to learn more about Gentry’s injury and the specific dangers which she claims Carnival failed to warn her about during discovery.

Id., at pg. 8 (emphasis added).

Here, like in Gentry, during discovery Celebrity will have ample opportunity to learn more about Plaintiff’s injury and the specific facts which he claims would have prevented his injury. Therefore, Celebrity’s Motion to Dismiss Count I, should be denied.

D. Count I. Contrary to Celebrity’s assertions, a ship-owner’s duty to warn is not a separate standard of care. Rather, it is one of the many duties owed by a ship-owner (both onboard the vessel and at the scheduled port of call) within the “reasonable care under the circumstances” standard.

In its Motion to Dismiss, in support of its failed argument that the standard of “reasonable care under the circumstances” does not apply to passengers while they are off the vessel, Celebrity also asserts, in part that “… a shipowner’s only duty to its passengers beyond the port is to warn of dangers of which the shipowner knew or should have known and which are not open and obvious in nature …”

[D.E. 9, pg. 5-6]. Celebrity is incorrect.

As shown above, Celebrity owed to Plaintiff the same standard of “reasonable care under the circumstances” both while he was onboard the ship as well as while he was off the ship in the scheduled port of Roseau, Dominica. Despite the clear weight of authority, however, in an effort to improperly limit its liability, Celebrity not only asserts that the “reasonable care under the circumstances” standard does not apply off the ship, but also argues that its only duty to Plaintiff (while she was off the ship) was to warn her of the dangers/conditions it knew or should have known about.
.
Contrary to Celebrity’s assertions, the duty to warn is not a separate standard of care. Rather it is one of the many duties owed by a ship-owner (both onboard and at the scheduled port of call) included within the “reasonable care under the circumstances” standard. As succinctly explained by this Honorable Court in Goldbach v. NCL (Bahamas) Ltd., 2006 U.S. 92026 (S.D. Fla. 2006) (Huck, J.) citing Carlisle v. Carnival Corp., 864 So. 2d 185 (Fla. 3d DCA 2003), a cruise line “owes a duty to its passengers to exercise reasonable care under all the circumstances. This duty includes a duty to warn passengers of dangers the cruise line knows or reasonably should have known.” Id. (Emphasis Added). See also Balashack v. Royal Caribbean Cruises, Ltd., 2009 U.S. Dist. LEXIS 126949 (S.D. Fla. 2009) (Altonaga, J.), involving, like in this case, a shore excursion off the vessel and holding:

… The general characteristic of the activity giving rise to the incident here is, among other things, Celebrity’s alleged negligence in selecting and promoting the “Caribbean Cooking Adventure” excursion and its failure to warn its passengers of the risks thereof. Cruise lines owe their passengers a duty of reasonable care under the circumstances of each case. See Kermarec, 358 U.S. at 362.

Id., (emphasis added).

Therefore, contrary to Celebrity’s assertions, Celebrity’s duty to warn is not a separate standard of care. Rather, regardless of whether the incident occurs on the ship or at the port of call; the duty to warn it is one of many duties owed by a ship-owner within the “reasonable care under the circumstances standard.”
E. Count I. Failure to warn: whether 1) Celebrity had actual or constructive notice of the danger and 2) whether the danger was open and obvious presents questions of fact, not ripe for adjudication at a motion to dismiss stage. Plaintiff should be given the opportunity to conduct discovery and develop the record regarding these factual questions.

Count I of the Complaint succinctly alleges that Defendant Celebrity had the duty to provide Plaintiff with reasonable care under the circumstances. [D.E. 1,20]. Plaintiff further alleges at22 (c) that Carnival breached that duty by “fail[ing] to warn Plaintiff of the dangers of with respect to going on the excursion.”

It is well settled law that for a cruise line to be liable for failing to warn passengers of dangers, the cruise line must have had actual or constructive notice of the risk creating condition. Keefe v. Bahama Cruise Line, Inc., 867 F. 2d 1318, 1322 (11th Cir. 1989). Constructive notice may be established through evidence which shows that 1) the dangerous condition existed for such a length of time that in the exercise of ordinary care, the Defendant should have known of the condition, or 2) the condition occurred with regularity and was therefore foreseeable. Kloster Cruise Ltd. v. Grubbs, 762 So. 2d 522 (Fla. 3d DCA 2000). Additionally, the duty to warn passengers only extends to those dangers which are not apparent and obvious to the passengers. Luby v. Carnival Cruise Lines, Inc., 633 F. Supp. 40 (S.D. Fla. 1986).

All questions regarding Celebrity’s “notice” are issues of fact improperly determined at a motion to dismiss stage. See Goldbach v. NCL (Bahamas) Ltd., 2006 U.S. Dist. LEXIS 92026 (S.D. Fla. 2006) (Huck, J.) (A cruise line “owes a duty to its passengers of reasonable care under all circumstances. This duty includes a duty to warn passengers of dangers the cruise line knows or reasonably should know … The question of whether Defendant knew or should have known of the danger posed is a genuine issue of fact precluding summary judgment.”) Id. (Emphasis added).

Similarly, all questions regarding the “open or obvious” nature of the dangerous condition are questions of fact which cannot be properly determined at a motion to dismiss stage. Questions as to the “open or obvious nature” of the dangerous condition are issues of fact which cannot properly be decided at a motion to dismiss stage. See Propenko v. Royal Caribbean Cruises Ltd., 2010 U.S. Dist. LEXIS 37618 (S.D. Fla. 2010) (Huck, J.):

Royal Caribbean argues that it had no duty to warn … [and] cites two cases which granted summary judgment to the defendant cruise ship companies… Propenko distinguishes these cases because they were decided on summary judgment … The Court also agrees with Propenko that the “open and obvious” question requires a context specific inquiry and necessitates development of the factual record before the Court can decide whether, as matter of law, the danger was open and obvious.

Id. (Emphasis Added). See also Rocha v. Carnival Corporation, Case No.: 10-22799-CV-LENARD/TURNOFF (S.D. Fla. 2011) [D.E. 26, pg. 4]. In Rocha, Carnival filed a Motion to Dismiss alleging that the dangerous condition that occurred off the ship in a port of call was “open and obvious.” Citing Propenko, this Honorable Court denied the cruise line’s Motion to Dismiss and held:

many of the allegations in the Complaint require a “context specific inquiry” and “necessitate the development of the factual record before the Court can decided whether, as a matter of law, [Defendant was negligent]. Defendant’s arguments, which are certainly colorable, are best addressed by way of a motion for summary judgment.

Id.(emphasis added)

Like in Goldbach, Propenko and Rocha, here, whether Celebrity failed to warn Plaintiff of the dangerous condition is a question of fact not ripe for adjudication at a motion to dismiss stage, requiring context specific inquiry and necessitating development of the factual record.

F. Count I. Celebrity’s assertion that Plaintiff has made allegations of a standard of care “greater than that supported by the law” is incorrect and has been expressly rejected by this Honorable Court as an argument not ripe at a motion to dismiss stage.

In its Motion to Dismiss [D.E. 9, pg. 5-6], referring to the allegations in Count I – other than those concerning the duty to warn – Celebrity also makes the assertion that the Plaintiff seeks to expand Celebrity’s duties beyond the duties imposed by law. ” In support thereof, for example, Celebrity asserts that it did not have a duty to “provide a safe excursion” or to “ascertain Plaintiff’s level of ability to participate in the excursion.” See D.E. 9, pg. 5-6:

… a shipowner’s only duty to its passengers beyond the port is to warn of dangers of which the shipowner knew or should have known and which are not open and obvious in nature …. the Plaintiff seeks to hold Celebrity liable for, inter alia, allegedly failing to provide a safe excursion, allegedly allowing Wrave to execute a “Waiver of Liability”, allegedly failing to ascertain the Plaintiff’s level of ability to participate in the subject shore excursion… Celebrity did not have a duty to do any of these acts …. Celebrity respectfully requests that this Court dismiss the Plaintiff’s Negligence claim to the extent that it seeks to expand Celebrity’s duties be