212 F. Supp. 3d 1264
S.D. Fla.2016Background
- Colleen Blair sued NCL (Bahamas) Ltd. and ship medical personnel after her minor child K.A.B. drowned on the Norwegian Gem; two surviving children (K.B., B.B.) witnessed the events.
- Allegations: no lifeguards, no lifesaving equipment at the pool, delayed/inadequate ship medical response (~10–15 minutes), and deficient resuscitation equipment.
- Plaintiff pleaded DOHSA wrongful-death claims (Counts I–V) plus intentional (Count VI) and negligent (Counts IX–XI) infliction of emotional distress on behalf of herself and her children.
- NCL moved to dismiss under Rule 12(b)(6), arguing DOHSA exclusivity, DOHSA bars non-pecuniary recovery, failure to plead extreme/outrageous conduct for IIED, and absence of zone-of-danger for NIED.
- Court: DOHSA is the exclusive remedy for wrongful death but does not automatically bar separate emotional-distress claims; however, many emotional-distress allegations failed pleading standards or legal tests and were dismissed or stricken.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| DOHSA exclusivity | Emotional-distress claims are separate from the DOHSA wrongful-death claim and recover distress suffered by witnesses, not recovery for the death itself | DOHSA is the exclusive remedy for death on the high seas and precludes additional claims tied to the decedent's death | DOHSA is exclusive for wrongful death but does not per se bar properly pleaded emotional-distress claims; court did not dismiss all emotional claims on DOHSA grounds |
| Non-pecuniary damages in DOHSA counts | Non-pecuniary damages are alleged in the complaint but not sought as DOHSA relief; they relate to separate emotional-distress counts | DOHSA does not permit non-pecuniary recovery and such allegations are immaterial to DOHSA claims | Court struck allegations of non-pecuniary damages from DOHSA counts I–III as immaterial |
| Intentional Infliction of Emotional Distress (IIED) | NCL’s failures (no lifeguard, no equipment, delayed medical response) collectively were extreme/outrageous enough to plead IIED | Conduct (absence of lifeguards/medical staff/equipment) is common and not beyond all bounds of decency; plaintiff failed to plead the extreme-outrageous element | IIED claim (Count VI) dismissed without prejudice for failure to plead extreme and outrageous conduct; leave to replead but cautioned given prior failed attempts |
| Negligent Infliction of Emotional Distress (NIED) / Zone of Danger | Plaintiff and surviving children were in or near the pool and faced immediate risk; alternatively urged adoption of relative-bystander test | Under maritime law (Eleventh Circuit), NIED requires zone-of-danger; plaintiff and K.B. were not in immediate risk per pleading | NIED claims by Blair and K.B. (Counts IX, XI) dismissed with prejudice; B.B.’s NIED (Count X) survives only to the extent it alleges emotional distress from his own near-drowning; allegations based solely on witnessing delayed/ inadequate medical care or the death are dismissed with prejudice |
Key Cases Cited
- Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (pleading must state a plausible claim)
- Ashcroft v. Iqbal, 556 U.S. 662 (courts disregard legal conclusions; evaluate plausibility)
- Chaparro v. Carnival Corp., 693 F.3d 1333 (Eleventh Circuit: maritime NIED governed by zone-of-danger)
- Consolidated Rail Corp. v. Gottshall, 512 U.S. 532 (zone-of-danger concept in negligence-based emotional harm claims)
- Ford v. Wooten, 681 F.2d 712 (DOHSA precludes other maritime wrongful-death actions)
- Metropolitan Life Ins. Co. v. McCarson, 467 So.2d 277 (elements for IIED under Florida law)
- Smith v. Carnival Corp., 584 F. Supp. 2d 1343 (S.D. Fla.: DOHSA did not automatically preempt emotional-distress claims arising from witnessing a death)