D.H., Individually and as Parent and Natural Guardian of R.H. and T.H. (minors), Plaintiff, v. CARNIVAL CORPORATION,

Lipcon, Margulies, Alsina & Winkleman, P.A

March 22, 2015

IN THE UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

MIAMI DIVISION

CASE NO.: 15-CV-20239-SCOLA

 

D.H., Individually and as

Parent and Natural Guardian of R.H.

and T.H. (minors),

Plaintiff,

v.

CARNIVAL CORPORATION,

Defendant.

                                                                        /

 

PLAINTIFFS’ RESPONSE IN OPPOSITION TO DEFENDANT’S MOTION TO DISMISS

Plaintiff, D.H., individually and as parent and natural guardian of R.H. and T.H. (minors), responds in Opposition to Defendant, Carnival Corporation’s, Motion to Dismiss [D.E. 9].

On February 20, 2014, the Plaintiff, D.H., individually and as parent and natural guardian of R.H. and T.H., went on a Carnival cruise on board the Carnival Triumph. During the course of the cruise, D.H. and her children shared a cabin. On the night of February 20, 2014, a Carnival crewmember, believed to be the pit boss of the casino on the Carnival Triumph, followed D.H. to her passenger cabin. Once inside cabin, the Carnival crewmember raped and sexually assaulted D.H. While the Carnival crewmember was raping D.H., both of her children were in the cabin. The children, R.H. and T.H., witnessed their mother’s rape and sexual assault. [D.E. 1, ¶¶ 7 – 9].

Most troubling, when D.H. reported to officials on the cruise line what had happened to her, they treated her with indifference and hostility. Carnival’s security officers attempted to dissuade D.H. from pressing charges and forced her to write a statement stating that she would not press charges against her assailant. [D.E. 1, ¶ 11].

Instances of rape and/or sexual assault on Carnival’s vessels occur at an alarming rate. Yet Carnival fails to take adequate steps to provide adequate security and/or training and/or supervision to prevent such rapes and/or sexual assaults from happening. For starters, it does not warn its passengers of the growing epidemic of rape and sexual assaults at sea. [D.E. 1, ¶ 10].

As a result of the incident, D.H., on her own behalf and on behalf of her children, filed a Complaint alleging Strict Vicarious Liability for Rape/Sexual Assault (Count I), Negligence (Count II), Negligent Infliction of Emotional Distress of D.H. (Count III), Intentional Infliction of Emotional Distress of D.H. (Count IV), Negligent Infliction of Emotional Distress of R.H. and T.H. (Count V), and Intentional Infliction of Emotional Distress of R.H. and T.H. (Count VI).

On March 6, 2015, Carnival filed a Motion to Dismiss Counts I – VI. As shown below, Carnival’s Motion to Dismiss should be denied in its entirety.

  1. Carnival’s arguments seeking dismissal of Count I are contrary to the law of the Eleventh Circuit. As expressly held in Doe v. Celebrity Cruises, Inc., 394 F. 3d 891 (11th Cir. 2004), a cruise line is strictly liable for crewmember assaults on passengers.

Carnival’s arguments in support of dismissal of Count I (Strict Vicarious Liability for Rape/Sexual Assault) are frivolous and contrary to binding Eleventh Circuit precedent. In the Motion to Dismiss, Carnival argues that the proper standard of care for crew sexual assaults on passengers should be that of “reasonable care under the circumstances” as laid out in Kermarec v. Compagnie Generale Trasatlantique, 358 U.S. 625 (1959). In 2004, the Eleventh Circuit expressly held that this standard does not apply to crewmember assault on passengers.

The law in the Eleventh Circuit is clear: a cruise line is strictly liable for crewmember assaults on passengers. In Doe v. Celebrity Cruises, Inc., 394 F. 3d 891 (11th Cir. 2004), the Plaintiff, Jane Doe, a passenger on the cruise ship M/V Zenith, embarked on a one-week round-trip cruise from New York City to Bermuda. During the cruise, Doe reported to the cruise line’s medical staff that Baris Aydin, a crewmember and Doe’s dinner waiter, raped her. In her Complaint, Ms. Doe filed claims for strict liability against the cruise line. In an opinion entered in 2004, the Eleventh Circuit held:

The principal liability issue is which standard governs the defendants’ liability to its passenger Doe for crewmember assaults: (1) strict liability or (2) reasonable care under the circumstances. For the reasons we have detailed at some length, we conclude that the defendants owe a non-delegable duty to protect their passengers from crewmember assaults and thereby safely transport their cruise passengers, that the Supreme Court’s decisions in Brocket and Jopes remain binding precedent, that Kermarec did not overrule Brockett or Jopes, and thus that the district court did not err in concluding that the defendants are strictly liable for crewmember’s assaults on their passengers during the cruise. We add that Kermarec’s reasonable care standard does not apply to a crewmember’s sexual assault on a passenger.

Id. at 913 (emphasis added).

Squarely applicable to this case is this principle of federal maritime law that a cruise line is strictly liable for a crewmember’s assault of a passenger. Importantly, as explained in Doe, the Eleventh Circuit was not the first announce this principle of law. Rather, it recognized that this principle had been clearly established by two Supreme Court decisions, and those decisions remained binding precedent. See Doe, citing Jersey v. Brockett, 121 U.S. 637 (1887) and New Orleans & N.E.R. Co. v. Jopes, 142 U.S. 18 (1891).

In the Motion, Carnival portrays the law holding shipowners strictly liable for crewmember sexual assaults, as an antiquated principle from the “era of steam ships.” In reality, this principle has been the bedrock to ensure the safety for millions of American cruise passengers for decades. While it is accurate that cruise ships have evolved from steam-powered engines to diesel-powered behemoths; the isolation and dangers of sea-travel faced by passengers, remains the same.

Carnival owns and operates the largest cruise fleet in the world, carrying 4.5 million passengers in 2014 alone. Some of the biggest cruise ships in the industry are 5-times the size of the Titanic. In this modern reality of big ships and millions of guests, American passengers remain isolated in the middle of the ocean surrounded by strangers. In this enclosed and isolated environment, female passengers and children are vulnerable to sexual predators. If a crewmember wants to assault a passenger, that crewmember has the advantage because he lives and works on board the ship.

In international waters, there is no police and no FBI. Passengers are thus entirely dependent on the cruise line for their safety. In the event of a sexual assault and rape, a cruise passenger is at the mercy of a company financially motivated to cover its tracks, suppress evidence and control witnesses. Because there is no police at sea, the cruise line’s security personnel are charged with conducting the preliminary investigation of the incident. These investigations are usually self-serving. For instance, cruise lines zealously treat incident reports and witness statements conducted by ship personnel as “work-product in anticipation of litigation.” Morevoer, they rarely, if ever, help the victim. As alleged in the Complaint, in this case, when D.H. alerted Carnival security officers of the incident, they treated her with indifference and hostility. [D.E. 1, ¶ 9-11].

Moreover, in order to preserve evidence of a sexual assault, a passenger victim has to rely on the cruise line medical personnel obtain a rape-kit. This leads to a troubling dilemma: the people that do the rape kit are co-workers of the same person that sexually assaulted the passenger.

With this modern context in mind, in 2004 the Eleventh Circuit in Doe v. Celebrity Cruises, Inc., 394 F. 3d 891 (11th Cir. 2004), re-affirmed the long-standing principle under maritime law, that a cruise line is strictly liable for crewmember assaults on passengers. This heightened standard is more applicable than ever to the modern cruise industry. As Judge Kathleen Williams recently recognized in the matter of Jane Doe No. 8 v. Royal Caribbean Cruises, Ltd., 860 F. Supp. 2d 1337 (S.D. Fla. March 12, 2012), in 1998 when Congress amended the Child Abuse Victims’ Act, 18 U.S.C. §2255, “Congress intended to incorporate longstanding principles of federal maritime law, including the principle – applicable here – that a cruise line is strictly liable for a crew member’s assault of a passenger.”

This is also the law around the country. See Doe at 910, citing Morton v. Carnival Cruise Lines, Inc. 984 F. 2d 289 (9th Cir. 1993) (concluding that the Supreme Court’s decision in Kermarec did not overturn the general maritime rule that a ship, like other common carriers, is absolutely liable for crew member assaults on its passengers during transit).

Accordingly, Carnival’s Motion to Dismiss Count I should be denied. Moreover, Carnival’s request to certify this question for interlocutory appeal, under 28 U.S.C. §1292(b) is also unwarranted.

  1. The Florida state court cases cited in Defendant’s motion are inapposite for two reasons. First, because this case arises from events that took place on a ship, on the high seas, the exclusive applicable law is the general maritime law of the United States; Florida law is inapposite. Second, the cases cited by Defendant involve land-based resorts, not cruise ships.

            First, this matter is governed under the general maritime law of the United States, not Florida law. Accordingly, the state court cases cited by Carnival dealing with land-based resorts are inapposite. See Hesterly v. Royal Caribbean Cruises, Ltd., 515 F.Supp.2d 1278 (S.D. Fla. 2007) (“The analysis of Royal Caribbean’s Motion to Dismiss is governed by federal admiralty law because this claim involves maritime torts.”); See also Jackson v. Carnival Cruise Lines, Inc., 203 F.Supp.2d 1367, 1373 (S.D. Fla. 2002) (citing Everett v. Carnival Cruise Lines, 912 F.2d 1355, 1358 (11th Cir.1990)) (“Because this is a maritime tort … maritime law governs the substantive issues of the case.”); See also Doonan v. Carnival Corp., 404 F.Supp.2d 1367, 1370 (S.D. Fla. 2005) (holding that courts have found admiralty law applies in personal injury disputes between passengers injured on cruise ships); Keefe v. Bahama Cruise Line, 867 F.2d 1318, 1320–21 (11th Cir.1989) (“[W]e note that the substantive law applicable to this action, which involves an alleged tort committed aboard a ship sailing in navigable waters, is the general maritime law, the rules of which are developed by federal courts.”).

Notably, the general maritime law applies, even if the Plaintiff has alleged diversity of citizenship as a concurrent basis of subject matter jurisdiction. See Jackson, 203 F.Supp.2d at 1373 (“Even when, as here, the parties allege diversity of citizenship as a basis of subject matter jurisdiction, if admiralty jurisdiction also exists, federal maritime law governs the substantive issues of the case.”)

Florida law is, therefore, not applicable.[1]

Second, the state court cases that Carnival cites deal with land-based resorts, not cruise ships. As much as Carnival would like this Court to think it operates like a land-based resort, it does not. Unlike land-based resorts, cruise passengers are isolated in the middle of the ocean and their safety is at the mercy of a cruise ship. If a crewmember breaks into a cabin to rape and assault a passenger, that passenger cannot call 911, and she cannot rely on the police or the FBI. That passenger is alone.

This isolation is all the more troubling due to one key fact: when American passengers travel on Carnival ships, they are no longer in the United States of America. Instead, they are under the jurisdiction of a foreign country. Carnival’s ships are registered in Panama, the Bahamas and Malta. When a passenger steps into a Carnival ship, that passenger leaves the United States, and steps into Panama, the Bahamas or Malta.[2] In striking contrast, on a U.S. land-based resort, a guest remains in the United States, and is subject to the protections and care of local authorities (i.e. the police, fire department, FBI, etc.).

In the event of a sexual assault and rape, a land-based resort guest can immediately call the police to investigate the incident and is able to leave the resort to a local hospital, get a rape-kit and preserve evidence of her attack. In striking contrast, in the event of a sexual assault and rape, a cruise passenger is at the mercy of a cruise line motivated to cover its tracks, suppress evidence and control witnesses. Because there is no police at sea, the cruise line’s security personnel are charged with conducting the preliminary investigation of the incident. As noted above, these investigations are usually self-serving.

The isolation of cruise passengers makes them susceptible to events that a land-based resort guest would never face. For instance, on February 10, 2013, the Carnival Triumph (the same ship involved in this matter), suffered a fire in its engine room, resulting in the ship’s loss of power and propulsion. This left the ship adrift 150 miles of the coast of Mexico. Over the next four days, 3,143 passengers and 1,086 crew were forced to make do with cold food, no hot water, sweltering indoor temperatures, and few working toilets (leading to what passengers described as overrun sewage running down the walls across the ship).

Carnival caused and/or worsened all of the above by failing to arrange the disembarkation of passengers in the nearest port of call after the Triumph lost power. More specifically, at the time of the fire, the vessel was roughly 150 miles from port in Progresso, Mexico and roughly 500 miles from a port in Mobile, Alabama. Carnival initially decided to return to Mexico, but later decided to travel all the way to Mobile, Alabama. This decision was motivated solely by financial gain and Carnival’s convenience; Carnival’s ship repair facility is in Alabama. Had the Carnival Triumph been towed back to Mexico, Carnival would have needed a second tow back to the United States, at significant additional expense.

Under the same circumstances, a land-based resort guest could have simply left the resort and literally walk away. The passengers onboard the Triumph, isolated in the ocean, could not do this. Instead, they were forced to remain on a ship against their will, without proper food, water and sanitation for four days.

Accordingly, Carnival’s attempt to compare itself to a land-based resort is disingenuous at best.

III.       Plaintiff may recover punitive damages under the general maritime law, consistent with the common-law rule, where the Plaintiff’s injury was due to the defendant’s “wanton, willful, or outrageous conduct.”

Punitive damages are an available remedy under the general maritime law. As Judge Altonaga illustrated in Lobegeiger v. Celebrity Cruises, Inc., 2011 WL 3703329 (S.D. Fla Aug. 23, 2011) citing the United States Supreme Court in Atlantic Sounding Co., Inc. v. Townsend, 557 U.S. 404 (2009), “a plaintiff may recover punitive damages under the general maritime law, consistent with the common-law rule, where the plaintiff’s injury was due to the defendant’s “wanton, willful, or outrageous conduct.” See also J.G. v. Carnival Corporation, 2013 WL 795145 (S.D. Fla. March 4, 2013) (Rosembaum, J.) (Denying Carnival’s motion for partial summary judgment on punitive damages, because a strip search of a seventeen-year-old passenger could rise to the type of “gross and flagrant” conduct that would support an award of punitive damages).

Carnival’s reliance in In re Amtrak “Sunset Limited” Train Crash in Bayou Canot., 121 F. 3d 1421 (11th Cir. 1997), is misplaced. As this Court recently explained in Doe v. Royal Caribbean Cruises, Ltd., 2012 WL 920675 (S.D. Fla. March 19, 2012) (Goodman, J.), in 2009, the Supreme Court decided Atlantic Sounding Co., Inc., v. Townsend, 557 U.S. 404 (2009). In Atlantic Sounding, the Supreme Court held that an injured seaman could recover punitive damages for his employer’s willful failure to pay maintenance and cure. Thus, Atlantic Sounding’s holding was that punitive damages are available in an action for maintenance and cure. “But as one court in this district has already recognized, the broad reasoning employed by the majority undermined the Eleventh Circuit’s holding in Amtrak by reversing its assumptions about punitive damages.” Royal Caribbean, at 3. See also Id. at 3 – 4:

The Eleventh Circuit’s position in Amtrak was based on the view that personal injury plaintiffs in maritime actions did not enjoy traditional common law remedies. In re Amtrak, 121 F.3d at 1429 (“until the United States Supreme Court should decide to add state remedies to the admiralty remedies for personal injury, personal injury claimants have no claim for … punitive damages”). But Atlantic Sounding clarified that neither the Jones Act, nor the Supreme Court’s own precedents, were intended to supplant remedies that were previously available at common law. In fact, the Supreme Court adopted the opposite assumption than that of the Eleventh Circuit in Amtrak and stated the general rule that punitive damages available at common law historically “extended to claims arising under federal maritime law.” Atlantic Sounding, 129 S.Ct. at 2567. The Supreme Court commented: “Not only have our decisions repeatedly observed that the Jones Act preserves common-law causes of action such as maintenance and cure, but our case law also supports the view that punitive damages awards, in particular, remain available in maintenance and cure actions after the Act’s passage.” Atlantic Sounding Co., 129 S.Ct. at 2571. The Court further reasoned that Congress was aware of the existing law that permitted punitive damages in maritime actions when it enacted the Jones Act in 1920 and that Congress did not intend to supplant or replace common law remedies in maritime actions. Id. at 2573.

Consequently, the exceedingly narrow standard for punitive damages annunciated in Amtrak and Baker is no longer viable in view of the broad reasoning in Atlantic Sounding that, as a rule, common law remedies extend to federal maritime actions. Following Atlantic Sounding, punitive damages are therefore available in a maritime personal injury action, as at common law, for “wanton, willful, or outrageous conduct.” Id. at 2566; see also Lobegeiger, 2011 WL 3703329, at * 7. The plaintiff is no longer required to prove intentional misconduct.

Id. (emphasis added).

In this case, the facts are so outrageous and the conduct so malicious that punitive damages are warranted. A Carnival crewmember stalked and followed a passenger to her cabin, forced himself into her room, and then raped her in front of her children. Then, when D.H. alerted Carnival security officers of the incident, they treated her with indifference and hostility. [D.E. 1, ¶ 9-11]. Plaintiff anticipates discovery will show there is a growing epidemic of rape and sexual assault on Carnival ships. Plaintiff further anticipates discovery will show that there is a culture of suppression and under-reporting of cruise line assaults. In this corporate-sanctioned environment, Carnival fails to warn prospective passengers about rapes and sexual assaults for financial reasons; that is, it wilfully chooses not to warn passengers in order to attract their business and protect its bottom line. Such willful and outrageous conduct, leading to horrific attack on the Plaintiff and her children, warrants the imposition of punitive damages. [D.E. 1, ¶¶ 9-11].

All in all, at this early stage, these allegations in the Complaint are sufficient for a prayer of punitive damages. See Doe v. Royal Caribbean Cruises, Ltd., 2012 WL 920675 (S.D. Fla. March 19, 2012) (Goodman, J.):

Following Atlantic Sounding, punitive damages are therefore available in a maritime personal injury action, as at common law, for “wanton, willful, or outrageous conduct.” Id. at 2566; see also Lobegeiger, 2011 WL 3703329, at * 7. The plaintiff is no longer required to prove intentional misconduct …. After independently researching the law on pleading punitive damages, the Court finds that at this point (the pleading stage of the litigation) it would be improper to strike the prayer for punitive damages from the complaint.

  1. In Count II, Plaintiffs’ negligence claim alleges sufficient facts to state a plausible claim for relief.

In the Motion to Dismiss, Carnival argues that “Plantiffs’ negligence claim in count II, fails to contain sufficient facts to state a plausible claim for relief.” Carnival is incorrect.

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).

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, 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).

In the context of a shipowner’s negligence, in Kermarec v. Compagnie Generale Transatlantique, 358 U.S. 625, 632 (1959), 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 17 of the Complaint Plaintiff succinctly alleges that “[i]t was the duty of Defendant to provide Plaintiff with reasonable care under the circumstances while she was a passenger aboard Defendant’s ship. ” Therefore, it is undisputed that Plaintiffs 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’).

In support of the allegation, Plaintiff has pled with sufficient factual matter at least 22 specific ways by which Carnival breached the duty of providing the Plaintiff with reasonable care under the circumstances. See D.E. 1, paragraphs 18 (a) – (v).

Plaintiffs’ allegations have therefore notified Carnival of their claim. A review of paragraph 18 of the Complaint reveals that there is nothing “conclusory or formulaic” about Plaintiffs’ allegations. On the contrary, Plaintiffs’ allegations contain a great deal of specificity in support of their 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 Carnival’s negligence with sufficient particularity to give Carnival notice of what the claim is and the grounds 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 (emphasis added).[3]

  1. The Plaintiff’s children, R.H. and T.H. properly asserted claims for negligent infliction of emotional distress in Count V.

In order to recover damages for emotional distress caused by the negligence of another, (1) the plaintiff must suffer a physical injury; (2) the plaintiff’s physical injury must be caused by the psychological trauma; (3) the plaintiff must be involved in some way in the event causing the negligent injury to another; and (4) the plaintiff must have close personal relationship to the directly injured person. Elliot v. Elliot, 58 So.3d 878 (1st DCA 2011) (emphasis in originals), quoting Zell v. Meek, 665 So. 2d 1048, 1053-54 (Fla. 1995).

In this case, the Complaint succinctly alleges that due to the intentional conduct of the Defendant’s employee/crew-member (for which Defendant is vicariously liable for) the Plaintiffs were placed in immediate risk of harm. In the case of the children, R.H. and T.H., they were both in the zone of danger (i.e. same cabin witnessing their mother’s rape) and placed in an immediate risk of physical harm, including the potential of being physically abused, sexually assaulted and/or raped through a physical battery. [D.E. 1, ¶28]. The experience resulted in the children suffering from severe emotional harm and distress, and physical manifestations of such distress, including nausea, exhaustion, fatigue, headaches, insomnia, lack of sleep, poor sleep and/or nightmares. [D.E. 1, ¶29].

As noted in Carnival’s Motion, it is true that the general Maritime law limits recovery for negligent infliction of emotional distress to those persons that were placed within the zone of danger of an immediate risk of physical harm by the defendant’s negligence. Consol. Rail Corp. v. Gottshall, 512 U.S. 532 (1994). Here, however, there is no question that R.H.’s children’s were within the zone of danger: they were inside the cabin with their mother, and witnessed her getting raped and sexually assaulted.

As such, the allegations in the Complaint show that R.H.’s children have a valid claim for negligent infliction of emotional distress.

  1. Both the Plaintiff, R.H. and her children, R.H. and T.H., properly asserted claims for intentional infliction of emotional distress in Counts IV and VI.

In order to state a cause of action for intentional infliction of emotional distress, the plaintiff must demonstrate that: 1) the defendant acted recklessly or intentionally; 2) the defendant’s conduct was extreme and outrageous; 3) the defendant’s conduct caused the plaintiff’s emotional distress; and 4) plaintiff’s emotional distress was severe. Urquiola v. Linen Supermarket, Inc., 1995 WL 266582 (M.D.Fla.1995). In Metropolitan Life Ins. v. McCarson, 467 So. 2d 277 (Fla. 1985), the Florida Supreme Court relied on the definition of extreme and outrageous conduct set forth in Section 46, Restatement (Second) of Torts:

Liability has been found only where the conduct has been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious and utterly intolerable in a civilized community.  Generally, the case is one in which the recitation of facts to an average member of the community would arouse his resentment against the actor, and lead him to exclaim, “Outrageous!”

 

In this case, the facts are so outrageous and the conduct so malicious that not only punitive damages are warranted, but also liability for intentional infliction of emotional distress. A Carnival crewmember stalked and followed a passenger to her cabin, forced himself into her room, and then raped her in front of her children. Then, when R.H. alerted Carnival security officers of the incident, they treated her with indifference and hostility. [D.E. 1, ¶ 9-11]. Plaintiff anticipates discovery will show there is a growing epidemic of rape and sexual assault on Carnival ships. Plaintiff further anticipates discovery will show that there is a culture of suppression and under-reporting of cruise line assaults. In this corporate-sanctioned environment, Carnival fails to warn prospective passengers about rapes and sexual assaults for financial reasons; that is, it wilfully chooses not to warn passengers in order to attract their business and protect its bottom line. Such willful and outrageous conduct, leading to horrific attack on the Plaintiff and her children, warrants a claim for intentional infliction of emotional distress. [D.E. 1, ¶¶ 9-11].

VII.    Conclusion

           For the reasons stated above, Carnival’s Motion to Dismiss should be denied in its entirety.

 

CERTIFICATE OF SERVICE

           I HEREBY CERTIFY, that on April 7, 2015, I electronically filed the foregoing document with the Clerk of the Court using CM/ECF. I also certify that the foregoing document is being served this day on all counsel of record pro se parties identified on the attached service list in the manner specified, either via transmission of Notices of Electronic Filing generated by CM/ECF or in some other authorized manner for those counsel or parties who are not authorized to receive electronically Notices of Electronic Filing.

 

LIPCON, MARGULIES,

ALSINA & WINKLEMAN P.A.

                                                                        Attorneys for Plaintiff

                                                                        One Biscayne Tower, Suite 1776

                                                                        2 South Biscayne Boulevard

                                                                        Miami, Florida 33131

                                                                        Telephone: (305) 373-3016

                                                                        E-mail: [email protected]

                                                                        By: /s/ Carlos Felipe Llinás Negret______

                                                                               CARLOS FELIPE LLINAS NEGRET

                                                                               FLA. BAR NO. 73545

[1] In any event, as the Eleventh Circuit noted in Doe, the law in Florida applicable to cruise ships is the same as the general maritime law. See Doe at 915 citing Nadeau v. Costley, 634 So. 2d 649 (Fla. 4th DCA 1994) (“Florida holds a common carrier responsible for the willful misconduct of its employees during the entire contractual period, notwithstanding the fact that the employee’s actions fall outside the scope of employment.”).

[2] Ships are essentially floating pieces of the territory under which they are flagged.

[3] In a single footnote at page 10 of its Motion to Dismiss, Carnival argues that R.H.’s claim for negligent infliction of emotional distress (count III), should also be dismissed “as Plaintiff does not have a properly pled alleged underlying claim for negligence” under Count II. As noted above, however, in line with Twombly, R.H.’s claim for negligence sets forth in succinct, enumerated statements Carnival’s negligence with sufficient particularity to give Carnival notice of what the claim is and the grounds it rests on.