Bailey v. Carnival Corp.
369 F. Supp. 3d 1302
S.D. Fla.2019Background
- Plaintiff Julie Bailey, a Carnival cruise passenger, was injured during a zipline shore excursion in Mexico operated by Lost Mayan; she alleges the line failed to stop and she suffered severe ankle fractures requiring surgery.
- Bailey booked the excursion through Carnival, which marketed and promoted the tour on its website as a "Carnival Excursion," vouched for its safety and insurance, and discouraged booking non-Carnival excursions.
- Bailey sued Carnival and Lost Mayan; against Carnival she pleaded (1) breach of a non-delegable duty (contractual and tort-based), (2) negligence in 27 specific respects, and (3) negligence based on apparent agency/agency by estoppel.
- Carnival moved to dismiss all claims against it under Rule 12(b)(6), arguing among other things: statute of limitations/relation-back problems, no contractual duty to provide a safe excursion, no tort-based non-delegable duty, inadequate notice allegations, and preclusion of apparent agency by ticket disclaimers.
- The Court denied dismissal in large part: it found the amended non-delegable-duty claim related back to the original complaint (except for two medical-treatment subclaims that appear time-barred and require Bailey to show cause), sustained the contractual non-delegable-duty claim, dismissed the tort-based non-delegable-duty claim with prejudice, dismissed negligent hiring/retention allegations for failure to plead facts, and allowed the apparent-agency-based negligence claim to proceed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Relation-back/statute of limitations for amended non-delegable-duty claim | Amended claim arises out of same conduct/occurrence as original suit and thus relates back | Amended claim alleges new distinct conduct (contract/oral modifications) and is time-barred | Claim relates back to original complaint except two medical-treatment subclaims (¶¶33(e),(f)) that appear untimely; Bailey must show cause |
| Existence of a contractual non-delegable duty | Carnival promoted/vouched for excursion and orally guaranteed safety; those representations created a contractually-based non-delegable duty to provide a safe excursion | No contractually-established duty; ticket language negates such a guarantee and Carnival cannot be an insurer of off-ship safety | Plaintiff sufficiently pleaded a contractual non-delegable duty to survive dismissal |
| Tort-based non-delegable duty | Plaintiff alleged a general non-delegable duty beyond contract | Carnival: no tort-based non-delegable duty; broadening shipowner duty impermissible | Tort-based non-delegable-duty claim dismissed with prejudice (Plaintiff did not oppose) |
| Negligence (duty to warn, notice, negligent selection/retention) | Carnival had duties beyond mere warning given its representations; Carnival knew of prior adverse passenger comments and thus had notice | Carnival owed only a duty to warn; allegations of notice and negligent selection are conclusory and insufficient | Duty-to-warn is not necessarily exclusive; some negligence allegations (including notice via prior adverse comment cards) survive; negligent hiring/retention claims dismissed for lack of factual support |
| Apparent agency / agency by estoppel | Carnival's marketing, website portrayals, crew promotion, and other representations led Bailey reasonably to believe Lost Mayan acted as Carnival's agent, inducing reliance | Ticket and website disclaimers labeling operators as independent contractors bar apparent agency | Plaintiff pleaded the three elements of apparent agency sufficiently; disclaimers present factual issues not resolvable on motion to dismiss, so claim survives |
Key Cases Cited
- Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (established plausibility standard for pleadings)
- Ashcroft v. Iqbal, 556 U.S. 662 (applied pleading-standards framework to factual plausibility)
- Pielage v. McConnell, 516 F.3d 1282 (11th Cir.) (Rule 12(b)(6) standard and pleading construction)
- Moore v. Baker, 989 F.2d 1129 (11th Cir.) (relation-back/notice analysis for amended claims)
- Franza v. Royal Caribbean Cruises, Ltd., 772 F.3d 1225 (11th Cir.) (elements of apparent agency)
- Witover v. Celebrity Cruises, Inc., 161 F. Supp. 3d 1139 (S.D. Fla.) (shipowner shore-excursion contractual duties can be sufficiently pleaded)
- Smolnikar v. Royal Caribbean Cruises Ltd., 787 F. Supp. 2d 1308 (S.D. Fla.) (duty to investigate fitness of excursion operator relevant to negligent-selection inquiry)