Nina Gibilaro v. Royal Caribbean Cruises, Ltd., John Does (Ship’s Doctor(s)) and Jane Does (Ship’s Nurse(s))

Lipcon, Margulies, Alsina & Winkleman, P.A

April 15, 2011

Nina Gibilaro v. Royal Caribbean Cruises, Ltd., John Does (Ship’s Doctor(s)) and Jane Does (Ship’s Nurse(s))

Response in Opposition to Defendant’s Motion to Dismiss Complaint

In this response to a motion to dismiss the Plaintiff argues that she has properly pled the necessary facts and law to sustain a cause of action against Royal Caribbean Cruises for the negligence of its shipboard physician.  This is an area of law in which Lipcon, Margulies, Alisa, & Winkleman have been at the forefront of the action advocating for passenger rights and safety.

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
MIAMI DIVISION
CASE NO. 10-CV-24258-LENARD/TURNOFF
NINA GIBILARO,
Plaintiff,

v.

ROYAL CARIBBEAN CRUISES, LTD.,

JOHN DOES (ship’s doctor(s)),
JANE DOES (ship’s nurse(s)),
Defendants.
__________________________/

PLAINTIFF’S RESPONSE IN OPPOSITION TO DEFENDANT ROYAL CARIBBEAN CRUISES LTD.’S MOTION TO DISMISS PLAINTIFF’S AMENDED COMPLAINT

COMES NOW, the Plaintiff, Nina Gibilaro, by and through undersigned counsel, and hereby files her Response in opposition to Defendant Royal Caribbean Cruises Ltd.’s (hereinafter “RCCL”) Motion to Dismiss Plaintiff’s Amended Complaint [D.E. 9], and in response relies on the following memorandum of law.

MEMORANDUM OF LAW

I. OVERVIEW

This matter arises from a cruise operated by RCCL. Plaintiff, Nina Gibilaro, was a paying passenger on Defendant’s vessel, Vision of the Seas. On or about November 8, 2009, Nina Gibilaro sustained severe injuries to her left leg when she rested her leg on a cabin’s table top and glass from the table shattered beneath her left leg. Shards of glass instantly gashed Nina Gibilaro’s left leg. The ship’s medical facility treated her injuries for over five hours, resulting in 680 stitches in her left upper thigh. Despite the severity of Nina Gibilaro’s medical condition, the ship’s doctor(s) and other medical personnel failed to provide prompt, proper and/or adequate medical treatment.

On January 13, 2011, the Plaintiff filed a four-count Amended Complaint alleging claims for Negligence Against RCCL (Count I), Apparent Agency Against RCCL for the Acts of John Doe(s) and/or Jane Doe(s) (Count II)[1], Joint Venture Between RCCL and John Doe(s) and/or Jane Doe(s) (Count III) and Negligence Against John Doe(s) and/or Jane Doe(s) (Count IV). [D.E. 1]. Defendant RCCL moved to dismiss Counts I, II and III of Plaintiff’s Amended Complaint. As the following memorandum of law makes clear, Defendant’s Motion to Dismiss should be denied because Plaintiff’s Amended Complaint properly states a claim for which relief can be granted on all four counts. In the alternative, in the event that this Honorable Court finds the allegations in Plaintiff’s Amended Complaint are not sufficient, Plaintiff moves for leave to amend the Amended Complaint.

II. MOTION TO DISMISS STANDARD

Rule 12(b)(6) of the Federal Rules of Civil Procedure provides that dismissal of a claim is appropriate “only if it is clear that no relief could be granted under any set of facts that could be proved consistent with the allegations.” Blackstone v. Alabama, 30 F. 3d 117, 120 (11th Cir. 1994). In analyzing a motion to dismiss, the Court must accept as true all facts alleged and draw all inferences therefrom in the light most favorable to the non-moving party. Hunnings v. Texaco, Inc., 29 F. 3d 1480, 1484 (11th Cir. 1994). A complaint should not be dismissed for failure to state a cause of action unless it appears beyond a doubt that Plaintiff can prove no set of facts that would entitle him to relief. Conley v. Gibson, 355 U.S. 41-45 (1957). Finally, the scope of a court’s review must be limited to the four corners of the complaint. St. George v. Pinellas County, 285 F. 3d 1334, 1337 (11th Cir. 2002).

III. DEFENDANT’S CLAIM THAT FEDERAL MARITIME LAW GOVERNS MARITIME TORTS IS UNDISPUTED BECAUSE PLAINTIFF’S AMENDED COMPLAINT SUCCINCTLY STATES THAT PLAINTIFF’S CLAIMS ARISE UNDER GENERAL MARITIME LAW.

Defendant initially claims that federal maritime law governs Plaintiff’s causes of action because admiralty jurisdiction exists. Plaintiff agrees with this conclusion, to the extent that the Amended Complaint clearly states in paragraph 4, “At all times material hereto, the causes of action asserted in this Complaint arise under the General Maritime Law of the United States.” [D.E. 1]. The Complaint sufficiently alleges jurisdiction under diversity jurisdiction, and in the event that diversity jurisdiction does not apply, then under the admiralty and maritime jurisdiction of this Court. [D.E. 1, 1]. However, regardless of whether diversity or admiralty jurisdiction exists, federal maritime law governs Plaintiff’s claims, as set forth in the Amended Complaint. General federal maritime law is applied regardless of whether the suit is brought in the admiralty forum, on the “ law side” of the federal court in diversity or in state court. F.W.F., Inc. v. Detroit Diesel Corp., 494 F. Supp. 2d. 1342, 1353 (S.D. Fla. 2007). Therefore, it is undisputed that general federal maritime law governs the Plaintiff’s claims.

IV. PLAINTIFF’S AMENDED COMPLAINT PROPERLY ALLEGES A CAUSE OF ACTION FOR NEGLIGENCE.

RCCL argues that Count I of Plaintiff’s Amended Complaint fails to allege how the omissions in paragraph 9 proximately caused Plaintiff’s alleged bodily injury. To properly plead a claim of negligence, a plaintiff must allege that (1) a legal duty on the defendant to protect the plaintiff from particular injuries; (2) the defendant’s breach of that duty; (3) the plaintiff’s injury being actually and proximately caused by the breach and (4) the plaintiff suffering actual harm from the injury. Zivojinovich v. Barner, 525 F.3d 1059, 1067 (11th Cir. 2008). Plaintiff’s Amended Complaint sufficiently pleads all the necessary elements factual allegations to suggest that the Defendant acted negligently, further providing RCCL with fair notice of the claim, as explained below.

Plaintiff’s Amended Complaint succinctly alleges the Defendant’s legal duty to exercise reasonable care in paragraph 7: “ It was the duty of Defendant RCCL to exercise reasonable care under the circumstances.” RCCL further argues that Plaintiff’s Amended Complaint contains generic and conclusory allegations of Defendant’s breach of their duty to exercise reasonable care under the circumstances. Defendant cites to Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2008), which states, “the pleading standard Rule 8 announces does not require ‘detailed factual allegations,’ but it demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation. Id., at 555, 127 S.Ct. 1955 (citing Papasan v. Allain, 478 U.S. 265, 286 (1986)<). Factual allegations must be enough to raise a right to relief above the speculative level. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). Plaintiff sufficiently alleges breach of this duty as follows:

On or about November 8, 2009, RCCL and/or its agents, servants, and/or employees breached its duty to provide Plaintiff NINA GIBILARO with reasonable care under the circumstances.

Plaintiff was injured due to the fault and/or negligence of RCCL, and/or its agents, servants, and/or employees as follows:

Failure to warn Plaintiff not to rest her leg on the table in the cabin she was in at the time of the incident; and/or

b. Failure to warn Plaintiff of the fact that the table in the cabin she was in at the time of the incident was not equipped with safety glass; and/or

c. Failure to provide any warning to Plaintiff to enable her to appreciate the risk to her health that the cabin’s table in the cabin she was in at the time of the incident posed; and/or

d. Failure to provide instruction to Plaintiff before and/or while on the subject vessel with respect to cabin safety; and/or

e. Failure to provide protective equipment to Plaintiff in the passenger cabin with respect to:

i. Shatter-proof and/or safety glass equipped cabin table; and/or

ii. A protective covering surrounding the cabin table’s glass top that would prevent the glass, if broken, from injuring the cabin’s occupant from coming into contact with it; and/or

iii. Using a material for the cabin table’s top that would prevent harm to the cabin’s occupants if the table were to break.

f. Failure to promulgate and/or enforce adequate policies and procedures to ensure the safety of the Plaintiff while on the subject vessel; and/or

g. Failure to identify hazards the passenger cabin’s table posed to the Plaintiff; and/or

h. Failure to promulgate and/or enforce an adequate contingency plan to prevent the kind of injuries encountered by the Plaintiff; and/or

i. Failure to provide adequate first response personnel on the subject vessel; and/or

j. Failure to provide adequate training to the personnel leading and/or supervising passengers on the subject vessel; and/or

k. Defendant RCCL violated the International Safety Management Code by failing to have an adequate Safety Management System Manual and/or by failing to adequately implement and follow the Safety Management System Manual they have; and/or

l. Failure to provide reasonably prompt, proper, and adequate medical care to Plaintiff while on board the vessel and being cared for by the vessel’s medical personnel; and/or

m. Failure to affirmatively disclose to the Plaintiff that the subject vessel’s cabin table had not been recently inspected, investigated and/or ascertained to be adequate for the then existing conditions and/or Plaintiff’s reasonable safety; all of which caused Plaintiff to be injured.

11. At all times material hereto, Defendant negligently failed to determine the hazards on the vessel to Plaintiff, failed to eliminate the hazard, failed to modify the hazard and failed to properly warn Plaintiff of the hazard. In addition, Defendant RCCL violated the International Safety Management Code and failed to have a proper, adequate and safe Safety Management System Manual.

12. Defendant RCCL 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.

13. At all times material hereto, Plaintiff NINA GIBILARO had no prior knowledge or warning of the risks that the cabin’s table in the cabin she was in at the time of the incident posed to her safety.

14. At all times material hereto, Defendant RCCL failed to maintain the safety and security of the cabin table in the cabin she was in at the time of the incident on the vessel Vision of the Seas.

Defendant overlooked paragraphs 15 and 16 of Count I, which clearly state the element of causation:

As a direct and proximate result of the negligence of Defendant RCCL in paragraphs 9 through 14, the cabin’s table shattered beneath Plaintiff’s left leg when she rested her left leg on the cabin’s table, severely cutting Plaintiff’s left upper thigh and resulting in 680 stitches.

As a result of the negligence of Defendant RCCL, the Plaintiff NINA GIBILARO was injured about Plaintiff’s body and extremities, suffered physical pain, mental anguish, loss of enjoyment of life, disability, disfigurement, aggravation of any previously existing conditions therefrom, incurred medical expenses in the care and treatment of Plaintiff’s injuries, suffered physical handicap, lost wages and her working ability has been impaired. The injuries are permanent or continuing in nature and Plaintiff will suffer the losses and impairments in the future. In addition, Plaintiff lost the benefit of Plaintiff’s vacation, cruise, and transportation costs.

Finally, Plaintiff’s Amended Complaint succinctly alleges the element of actual harm suffered by the Plaintiff:

As a result of the negligence of Defendant RCCL, the Plaintiff NINA GIBILARO was injured about Plaintiff’s body and extremities, suffered physical pain, mental anguish, loss of enjoyment of life, disability, disfigurement, aggravation of any previously existing conditions therefrom, incurred medical expenses in the care and treatment of Plaintiff’s injuries, suffered physical handicap, lost wages and her working ability has been impaired. The injuries are permanent or continuing in nature and Plaintiff will suffer the losses and impairments in the future. In addition, Plaintiff lost the benefit of Plaintiff’s vacation, cruise, and transportation costs.

Therefore, RCCL’s argument challenging the sufficiency of Count I should therefore be denied.

V. Barbetta AND CARLISLE Clearly Hold that While a Cruise Line is not Vicariously Liable for a Shipboard Physician’s Malpractice Based on a Theory of Respondent Superior, A Cruise Line May be Vicariously Liable Based on Alternative Theories such as Joint Venture, Apparent Agency and/or Agency by Estoppel. THUS, Plaintiff properly stated a claim for apparent agency.

In its’ Motion to Dismiss, RCCL seeks to overstretch the holding from Barbetta v. S/S Bermuda Star, 848 F. 2d 1364 (5th Cir. 1988) and Carnival Corp. v. Carlisle, 953 So. 2d 461 (Fla. 2007). Barbetta and Carlisle hold only that cruise lines will not be held vicariously liable for a shipboard’s physicians malpractice based on a theory of respondeat superior. As Barbetta states: “we hold that general maritime law does not impose liability under the doctrine of respondeat superior upon a carrier or ship owner for the negligence of a ship’s doctor who treats the ship’s passengers.” Id., at 848 F. 2d at 1372. (emphasis added). Similarly, Carlisle establishes that “the ship owner is not vicariously liable under the theory of respondeat superior for the medical negligence of the shipboard physician.” 953 So. 2d at 471 (emphasis added). Accordingly, RCCL’s argument that they can never be held vicariously liable for a shipboard’s physician’s malpractice is an incorrect interpretation of the law. General Maritime Law supports other theories with which to hold a cruise line liable for the medical malpractice of a ship’s physician, such as apparent agency and joint venture.

A. Liability based on a Theory of Apparent Agency/and or Agency by estoppel is a valid cause of Action.

There is a simple, yet critical, distinction between claims based on respondeat superior and claims based on apparent agency. While a claim based on respondeat superior is premised on control (i.e. an employer’s control or right to control his employee), a claim based on apparent agency is based on manifestations. Therefore, when a shipowner holds a doctor out to be its’ agent, under circumstances suggesting that the doctor was treating the Plaintiff on behalf of the carrier and the Plaintiff so relied to his detriment, then the Defendant could be held liable for the ship doctor’s malpractice. See Fairley v. Royal Cruise Line, Ltd., 1993 A.M.C. 1633 (S.D. Fla. 1993); see also Doonan v. Carnival Corporation, 404 F. Supp. 2d 1367 (S.D. Fla. 2005)(Plaintiff’s allegations that the cruise line held the ship’s doctor out as an officer were sufficient to state a claim against cruise line on basis of apparent agency).

The three elements necessary to establish “apparent agency” are: (1) the alleged principal makes some sort of manifestation causing a third party to believe that the alleged agent had authority to act for the benefit of the principal; (2) that such belief was reasonable and (3) that the claimant reasonably acted on such belief to his detriment. Doonan v. Carnival Corp., 404 F. Supp. 3d 1378, 1371 (S.D. Fla. 2005). Plaintiff’s Amended Complaint satisfactorily alleges the requisite ultimate facts that establish apparent agency, as detailed below.

Element (1) the alleged principal makes some sort of manifestation causing a third party to believe that the alleged agent had authority to act for the benefit of the principal:

At all times material hereto, Defendants John Doe(s) and Jane Doe(s) were represented and/or made manifestations to the Plaintiff, the Plaintiff’s family, and the ship’s passengers as employees and/or agents of Defendant RCCL as follows:

a. They wore a ship’s uniform;

b. They ate with the ship’s crew;

c. They were under the commands of the ship’s officers;

d. The Ship’s Doctor was called a ship’s officer by RCCL, the ship’s other officers and crew;

e. The literature provided by the Defendants and the Defendant’s representatives showed the doctors and nurses as crew members and employees of RCCL;

f. The doctors and nurses worked in the ship’s hospital;

g. They were paid a salary by RCCL;

h. They worked aboard the vessel;

i. They spoke to the Plaintiff as though they had authority to do so by RCCL; and

j. The infirmary was located aboard the vessel.

At no time did the Defendant RCCL, John Doe(s) and/or Jane Doe(s) represent to the Plaintiff in particular or the ship’s passengers in general in a meaningful way that John Doe(s) and/or Jane Doe(s) were not agents or employees of Defendant RCCL.

Element (2) that such belief was reasonable:

At all material times, the Plaintiff reasonably relied on the representations that John Doe(s) and/or Jane Doe(s) were employees and/or agents of Defendant RCCL.

At all material times, the Plaintiff’s belief that the ship’s medical staff had authority to act for the Defendant was reasonable because:

a. They wore a ship’s uniform;

b. They ate with the ship’s crew;

c. They were under the commands of the ship’s officers;

d. The Ship’s Doctor was called a ship’s officer by RCCL, the ship’s other officers and crew;

e. The literature provided by the Defendants and the Defendant’s representatives showed the doctors and nurses as crew members and employees of RCCL;

f. The doctors and nurses worked in the ship’s hospital;

g. They were paid a salary by RCCL;

h. They worked aboard the vessel;

i. They spoke to the Plaintiff as though they had authority to do so by RCCL; and

j. The infirmary was located aboard the vessel.

22. At all material times, the Defendant RCCL is estopped to deny that John Doe(s) and/or Jane Doe(s) were its agents or employees.

Element (3) that the claimant reasonably acted on such belief to his detriment:

The Plaintiff NINA GIBILARO reasonably acted on such belief to her detriment and was injured due to the fault and/or negligence of Defendant RCCL through the acts of its apparent agents, John Doe(s) and/or Jane Doe(s), as follows:

Failing to timely evacuate the Plaintiff immediately from the ship and/or timely divert the ship; and/or

Failing to have proper licenses to practice medicine in the jurisdiction of the ship.
Therefore, Plaintiff’s cause of action based on apparent agency is well-supported by ultimate facts and RCCL’s Motion to Dismiss Count II of Plaintiff’s Amended Complaint should be denied.

B. THE EXISTENCE OF AN AGENCY RELATIONSHIP IS A QUESTION OF FACT FOR THE JURY, WHICH IS NOT PROPERLY DECIDED ON A MOTION TO DISMISS.

RCCL argues that Plaintiff’s apparent agency claim is an attempt to circumvent Barbetta. This argument is wrong for several reasons. First, the existence of an agency relationship is determined by the actual practices and relationship of the parties. Harper ex. rel. Daley v. Toler, 884 So.2d 1124, 1133-34 (Fla. 2nd DCA 2004). Second, it is well established that General Maritime Law embraces the principles of agency and that the existence of an agency relationship is a question of fact for the jury. See Doonan v. Carnival Corp., 404 F. Supp. 2d 1367 (2005) (citing Archer v. Trans/American Servs., Ldt., 834 F. 2d 1570 (11th Cir. 1988)). See also: Borg-Warner Leasing v. Doyle Elec. Co., 33 F. 2d 833, 833 836 (11th Cir. 1984); Church of Scientology of California v. Blackman, 446 So. 2d 190 (Fla. 4th DCA 1984); Bernstein v. Dwork, 320 So. 2d 472 (Fla. 3d DCA 1975); Amerven, Inc. v. Abbadie, 238 So. 2d 321, 322 (Fla. 3d DCA 1970). Accordingly, Plaintiff’s apparent agency count is proper and RCCL’s Motion to Dismiss Count II of Plaintiff’s Amended Complaint should be denied.

VI. Plaintiff Stated a Valid Cause of Action based on J