Belik v. Carlson Travel Group, Inc.
2011 U.S. Dist. LEXIS 60337
| S.D. Fla. | 2011Background
- Belik, a passenger on Carnival’s Valor cruise, joined a SinglesCruise Cozumel Beach Party excursion at Señor Frog’s in Cozumel, Mexico.
- The Event was promoted to include activities like a water slide and unlimited drinks, with no warnings issued about shallow water depth or diving risks.
- Belik dove from the seawall, struck the shallow bottom, and sustained permanent quadriplegic injuries.
- SinglesCruise Defendants operated and managed the Event; Carnival allegedly had an ongoing contractual/business relationship with them and knew of the excursion’s dangers.
- Plaintiff asserts Carnival owed direct duty of care (including warnings) and that SinglesCruise acted as Carnival’s agent; Señor Frog’s Defendants allegedly contributed by serving unlimited alcohol and promoting risky activities.
- Belik asserts multiple theories of liability against Carnival (negligence, actual/apparent agency, third-party beneficiary contract, and joint venture) and seeks damages.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Duty to warn and negligence standard | Belik pleads direct negligence for failure to warn of dangers at the Event. | Carnival had no absolute duty to ensure safety or warn of open/obvious dangers. | Belik’s negligence claim survived to plead further. |
| Actual agency between Carnival and SinglesCruise | Carnival acknowledged and allowed SinglesCruise to act for it; ongoing relationship and representations show agency. | Ticket contract negates agency and Carnival never expressly acknowledged agency. | Agency sufficiently alleged; there is acknowledgment and control supporting actual agency. |
| Apparent agency and agency by estoppel | Carnival’s silence and SinglesCruise’s representations created apparent authority. | There is no genuine appearances of agency by Carnival. | Apparent agency/estoppel adequately pleaded; claim survives. |
| Third-party beneficiary contract | Belik is an intended beneficiary of Carnival-SinglesCruise contract. | Intention to benefit must be clear and direct to beneficiary; otherwise incidental. | Generally alleged intent to benefit passengers suffices at pleading stage; claim not dismissed. |
| Joint venture | There was a shared enterprise to provide the Cozumel Party to Carnival’s passengers. | Complaint lacks facts showing joint control, joint interests, profits/Losses sharing. | Joint-venture claim dismissed for lack of factual support; discovery not allowed to salvage. |
Key Cases Cited
- Ashcroft v. Iqbal, 556 U.S. 662 (U.S. 2009) (pleading standard: plausibility required)
- Bell Atl. Corp. v. Twombly, 550 U.S. 544 (U.S. 2007) (fact pleading replaced by plausibility standard)
- Isbell v. Carnival Corp., 462 F. Supp. 2d 1232 (S.D. Fla. 2006) (duty to warn sometimes extends beyond open and obvious dangers)
- First Arlington Inv. Corp. v. McGuire, 311 So. 2d 146 (Fla. 2d DCA 1975) (jury may determine duty to warn for non-obvious dangers)
- Kendrick v. Ed’s Beach Serv., Inc., 577 So. 2d 936 (Fla. 1991) (comparative negligence may apply when open and obvious dangers exist)
- Bochese v. Town of Ponce Inlet, 405 F.3d 964 (11th Cir. 2005) (intent to benefit must be clearly expressed in contract to create third-party rights)
- Whetstone Candy Co. v. Kraft Foods, Inc., 351 F.3d 1067 (11th Cir. 2003) (apparent authority concepts; silence can suffice as manifestation)
- Pardo v. Tanning Research Labs., Inc., 996 F. Supp. 1222 (M.D. Fla. 1998) (agency may be established through various evidentiary means)
- Bridgewater v. Carnival Corp., 2011 WL 817936 (S.D. Fla. 2011) (facial challenges to claims resolved before discovery)
- Doman v. Carnival Corp., 404 F. Supp. 2d 1367 (S.D. Fla. 2005) (elements of apparent agency and reliance)