March 24, 2014
Jane Doe v. Carnival Corp.
Response to Motion to Dismiss
The cruise ship lawyers at Lipcon, Margulies & Winkleman, P.A. help passengers injured all kinds of incidents occurring aboard ships. This includes when passengers are the victim of crime at sea. In this case, a passenger was sexually assaulted by a Carnival crewmember. Crimes aboard cruise ships are under reported and happen at alarming rates. If you or someone you know was the victim of a crime aboard a cruise ship, call an experienced maritime lawyer immediately to seek help.
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
CASE NO. 14-20434-CV-UNGARO
PLAINTIFF’S RESPONSE IN OPPOSITION TO DEFENDANT’S
MOTION TO DISMISS COUNTS II AND III OF PLAINTIFF’S COMPLAINT
The Plaintiff, JANE DOE, by and through undersigned counsel and pursuant to Federal Rules of Civil Procedure, hereby responds in opposition to Defendant, CARNIVAL CORPORATION’S (“Carnival[’s]”) Motion to Dismiss Counts II and III of Plaintiff’s Complaint [D.E. 9] and, in furtherance thereof, states as follows:
The instant matter arises out of the sexual assault of the Plaintiff by one of Carnival’s crewmembers during a cruise. [D.E. 1, ¶8]. Following the sexual assault, the Plaintiff reported the incident to Carnival and told its security officer(s) that she wanted to press charges against the alleged assaulter. [D.E. 1, ¶¶10-11]. In response, Carnival’s security officer(s) attempted to dissuade the Plaintiff from pressing charges by stating that the FBI would have to get involved and the Plaintiff would be “stuck” aboard the vessel for hours. [D.E. 1, ¶11]. They further attempted to persuade the Plaintiff to allow Carnival to “deal with” the alleged assaulter, instead of the FBI. [Id.] They then forced the Plaintiff to write a statement stating that she would not press charges against the alleged assaulter. [Id.]
As a result thereof, on February 4, 2014, Plaintiff sued Carnival alleging Vicarious Liability for Rape/Sexual Assault (Count I), Negligence (Count II), Negligent Infliction of Emotional Distress (Count III), and Intentional Infliction of Emotional Distress (Count IV). [D.E. 1]. On March 6, 2014, Carnival filed its Answer and Affirmative Defenses as to Counts I and IV of Plaintiff’s Complaint [D.E. 10] and contemporaneously moved to dismiss Counts II and III of Plaintiff’s Complaint [D.E. 9].
At issue herein is Carnival’s Motion to Dismiss, wherein Carnival argues that Plaintiff’s negligence counts fail because they are based on the purported commission of an intentional tort – the sexual assault. [D.E. 9, p. 3]. As set forth in detail below, however, Plaintiff’s Complaint properly and succinctly states claims for Negligence (Count II) and Negligent Infliction of Emotional Distress (Count III) based on tortious acts of Carnival, committed by other employees of Carnival, that are separate from the sexual assault.
II. Standard for Motions to Dismiss for Failure to State a Claim
A motion to dismiss for failure to state a claim merely tests the sufficiency of the complaint; it does not decide the merits of the case. Milburn v. United States, 734 F.2d 762, 765 (11th Cir. 1984). When considering such a motion, a court must accept the allegations in the plaintiff’s complaint as true and construe them in the light most favorable to the plaintiff. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009);see also Lobo v. Celebrity Cruises, Inc., 704 F.3d 882, 887 (11th Cir. 2013).
In order to state a claim, Federal Rule of Civil Procedure 8 requires “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). The statement need only “give the defendant fair notice of what the… claim is and the grounds upon which it rests.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007).
In sum, “[t]he threshold of sufficiency that a complaint must meet to survive a motion to dismiss for failure to state a claim is exceedingly low.” Bluegreen Corp. v. PC Consulting, Inc., 0780385CIV-RYSKAMP, 2007 WL 2225983 (S.D. Fla. July 31, 2007) (citing em>In re Southeast Banking Corp., 69 F.3d 1539, 1551 (11th Cir. 1995)) (emphasis added). As such, this Court has routinely stated that such motions are “viewed with disfavor and rarely granted.” Jackson v. BellSouth Telecommunications, Inc., 181 F. Supp. 2d 1345 (S.D. Fla. 2001), aff’d sub nom. Jackson v. BellSouth Telecommunications, 372 F.3d 1250 (11th Cir. 2004) (citation omitted).
In applying the aforementioned standards to the case at bar, it is clear that Carnival’s Motion to Dismiss for failure to state a claim should be denied.
III. Plaintiff’s Complaint properly and succinctly sets forth Plaintiff’s entitlement to relief for both Negligence and Negligent Infliction of Emotional Distress, and it includes detailed factual allegations based on acts that are distinct from the sexual assault.
As stated above, Carnival argues that the Plaintiff cannot have a negligence claim based on an intentional act. This argument fails, however, because it is premised on only one tortious “act” (the crewmember’s sexual assault of the Plaintiff) as the basis for liability, which is not the case herein.
In fact, the case that Carnival relies on makes it clear that “a separate negligence claim based upon a distinct act of negligence may be brought… in conjunction with a claim for [an intentional tort].” City of Miami v. Sanders, 672 So.2d 46, 48 (Fla. 3d DCA 1996) (citing Ansley v. Heinrich, 925 F.2d 1339 (11th Cir. 1991)) (emphasis added). Thus, in Sanders, the reason why the plaintiff was not allowed to bring a negligence claim was because the court found that the intentional act of using excessive force was the “sole basis” for all the claims at issue. Sanders, 672 So.2d at 48. To that end, the court held that “the negligence component must pertain to something other than the actual application of force… It cannot serve as the exclusive basis for liability in an excessing force claim.” Id. (emphasis added).
Discussing Sanders in another matter dealing with an intentional tort, this Court rejected arguments similar to those Carnival makes herein and allowed the plaintiffs to proceed with their negligence claim. See Vogel v. City of Miami, 07-20436-CIV, 2007 WL 3355404 (S.D. Fla. Nov. 8, 2007). Specifically, the plaintiffs in Vogel sued the City of Miami for the commission of an intentional tort by police officers, as well as for the officers’ negligent failure to adequately investigate the situation before actually committing the intentional acts. Id. at 8-9. Relying on Sanders, the City of Miami moved for summary judgment on the plaintiffs’ negligence claim on grounds that “a negligence claim cannot be premised upon intentional acts.” Id. at 8. This Court, however, found that the plaintiffs’ “negligence claim [was] premised not upon actions that necessarily must be pleaded as an intentional tort, but upon a decision-making process that could potentially have been carried out in a negligent manner.” Id. at 9. Therefore, this Court ultimately held that “the Sanders rationale advanced by the City [did] not apply”. Id.
In another matter, Lelieve v. Oroso, 846 F. Supp. 2d 1294 (S.D. Fla. 2012), this Court also allowed the plaintiff to proceed with his negligence claim because it was based on allegations that were distinct from the intentional tort claim. Id. at 1308 (citing Lewis v. City of St. Petersburg, 260 F.3d 1260, 1263 (11th Cir. 2001)). Whereas the plaintiff’s intentional tort claim was for excessive force, his negligence claim was for the officer’s failure to provide immediate medical care. Lelieve, 846 F. Supp. 2d at 1308. “A reasonable factfinder may… find [defendant] negligent for failing to summon fire rescue pursuant to department orders, or follow other procedures mandated by the Miami Police Department.” Id.
Herein, similar to Vogel and Lelieve, Plaintiff’s Negligence claim (Count II) is premised upon numerous acts that are distinct from the subject sexual assault, including, but not limited to: Carnival’s attempt to dissuade the Plaintiff from pressing charges against the alleged assaulter, negligently hiring and/or retaining the alleged assaulter, inadequate security, and failing to warn passengers of the prevalence of sexual assaults aboard Carnival’s ships.
Additionally, Plaintiff’s claim for Negligent Infliction of Emotional Distress (Count III) is equally premised on acts other than the sexual assault, including Carnival’s attempt to dissuade the Plaintiff from pressing charges against the alleged assaulter and forcing the Plaintiff to write a statement stating that she would not press charges against the alleged assaulter. [D.E. 1, 11-12].
Thus, like Vogel and Lelieve, these claims are premised not upon actions that necessarily must be pleaded as intentional torts but, rather, upon a decision-making/investigative process that is alleged to have been carried out in a negligent manner. For instance, a jury could find that, regardless of whether or not the crewmember actually committed the sexual assault, Carnival was negligent in the manner in which it handled the situation.
Further, unlike another case Carnival relies on, Garcia v. Carnival Corp., 838 F. Supp. 2d 1334 (S.D. Fla. 2012), Plaintiff is not attempting to hold Carnival liable in negligence for the commission of the sexual assault by Carnival’s crewmember. Not only are the Plaintiff’s negligence claims based on acts separate from the sexual assault, but they are also based on acts and/or omissions by individuals other than the alleged assaulter (e.g., security officers) – acts and/or omissions for which Carnival is not strictly liable but, rather, liable in negligence (Counts II and III) and/or for Intentional Infliction of Emotional Distress (Count IV).
Accordingly, accepting Plaintiff’s allegations as true and construing them in the light most favorable to the Plaintiff, it is clear that the instance matter and Plaintiff’s negligence claims fall within the exception set forth in Sanders and recognized by this Honorable Court in Vogel and Lelieve. As such, Carnival’s Motion to Dismiss Counts II and III of Plaintiff’s Complaint should be denied in its entirety.
1. Motion for Leave to Amend
Should this Honorable Court grant Carnival’s motion or any portion thereof, Plaintiff respectfully requests leave to amend.
WHEREFORE, for the foregoing reasons, Plaintiff respectfully requests that this Honorable Court enter an Order denying Carnival’s Motion to Dismiss Counts II and III of Plaintiff’s Complaint [D.E. 9], and any other relief this Court deems just and proper.
LIPCON, MARGULIES, ALSINA & WINKLEMAN, P.A.
Attorneys for Plaintiff
One Biscayne Tower, Suite 1776
2 South Biscayne Boulevard
Miami, Florida 33131
Telephone No.: (305) 373-3016
Facsimile No.: (305) 373-6204
By: /s/ Jacqueline Garcell
JASON R. MARGULIES
Florida Bar No. 57916
Florida Bar No. 104358
 The complete list of acts and/or omissions that Plaintiff alleges in her Negligence claim (Count II) are as follows: a. Failing to provide reasonably safe conditions for Plaintiff aboard Defendant’s vessel. Said safe conditions include, but are not limited to, the prevention of permitting an atmosphere to exist wherein persons could rape and/or sexually assault passengers; and/or b. Negligently hiring the individual who assaulted the Plaintiff; and/or c. Negligently retaining the individual who assaulted the Plaintiff; and/or d. Failing to adequately monitor the Electricity Club; and/or e. Failing to adequately monitor passengers; and/or f. Failing to provide adequate security aboard the vessel; and/or g. Failing to warn passengers of the dangers of sexual assaults aboard Defendant’s ships; and/or h. Failing to warn passengers of the prevalence of sexual assaults aboard Defendant’s ships; and/or i. Failing to protect passengers from sexual assaults, physical batteries and/or rapes aboard Defendant’s ships; and/or j. Failing to promulgate and/or enforce adequate policies and/or procedures to prevent sexual assaults aboard Defendant’s ships; and/or k. Failing to provide adequate training for their crewmembers; and/or l. Failing to provide adequate supervision for their crewmembers; and/or m. Failing to promulgate and/or enforce adequate policies and procedures designed to prevent sexual assaults by crewmembers on passengers; and/or n. Failing to report the subject sexual assault to the Federal Bureau of Investigation in a timely manner; and/or o. Attempting to dissuade the Plaintiff from pressing charges against the individual who assaulted the Plaintiff; and/or p. Failing to promulgate and/or enforce adequate policies and procedures following the report of sexual assault aboard Defendant’s ships. [D.E. 1, 19(a)-(p)].