1:22-cv-24004
S.D. Fla.Aug 11, 2023Background
- Decedent Cherish Pankey fell overboard from Carnival Miracle on Dec. 11, 2021; body never recovered. Plaintiffs are Pankey’s estate (represented by Robbieal Terry-Brown) and Terry-Brown individually (also guardian for minor child A.H.W.).
- At a prior onboard comedy show crew allegedly witnessed and provoked a verbal/physical altercation between Pankey and her companion and did not intervene; passengers later complained about a loud domestic dispute.
- Plaintiffs filed a Second Amended Complaint asserting five counts: general negligence (Count I); negligence per se under 46 U.S.C. § 3507 and the Pennsylvania rule (Count II); negligence per se under 46 U.S.C. § 2304 and the Pennsylvania rule (Count III); a DOHSA count (Count IV); and application of Panamanian law via DOHSA (Count V). They also sought punitive and other damages including pre-death pain and suffering.
- Carnival moved to dismiss Counts II–V, to strike punitive and pre-death pain-and-suffering damages, and to dismiss Terry-Brown’s individual claims.
- The court granted the motion: Counts II, III, IV, and V dismissed with prejudice; punitive damages and pre-death pain-and-suffering claims stricken; Terry-Brown’s individual claims dismissed (she remains estate representative).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Counts II & III (negligence per se) state independent causes of action | Statutory breaches (46 U.S.C. § 3507 and § 2304) make Carnival presumptively negligent under the Pennsylvania rule | Negligence per se/Pennsylvania Rule are evidentiary presumptions that do not create independent causes of action; Counts are subsumed by general negligence | Dismissed — Counts II and III are subsumed in Count I and therefore dismissed with prejudice |
| Whether DOHSA (Count IV) is a standalone cause of action | Plaintiffs included a DOHSA count alleging wrongful death on the high seas | DOHSA is a jurisdictional/federal statute enabling a representative to bring a maritime wrongful-death claim, not a separate tort distinct from negligence; Count duplicates Count I | Dismissed as duplicative of Count I |
| Whether Panamanian law may be applied (Count V) | Plaintiffs invoked Panamanian law under DOHSA | DOHSA preempts state/foreign-law remedies where it applies; Panamanian-law claim is preempted | Dismissed |
| Whether plaintiffs may recover punitive damages and pre-death pain and suffering | Plaintiffs alleged conduct was negligent and/or willful/reckless, seeking punitive and pre-death pain-and-suffering damages | Maritime law/DOHSA generally limits recovery to pecuniary damages; pre-death pain-and-suffering is not recoverable under DOHSA; punitive damages require plausible allegations of intentional or wanton misconduct | Stricken — punitive damages and pre-death pain-and-suffering claims stricken |
| Whether Terry-Brown may sue individually (in addition to as personal representative) | Parties agree she is the estate’s personal representative; she also asserted individual claims | DOHSA permits only the personal representative to sue for exclusive benefit of beneficiaries; individual claims by the representative are not permitted under DOHSA | Dismissed — all individual-capacity claims by Terry-Brown dismissed |
Key Cases Cited
- Bell Atl. Corp. v. Twombly, 550 U.S. 544 (establishes plausibility pleading standard)
- Ashcroft v. Iqbal, 556 U.S. 662 (clarifies Twombly and rejects bare conclusions)
- Chaparro v. Carnival Corp., 693 F.3d 1333 (11th Cir. 2012) (on motion to dismiss accept plaintiff’s allegations and draw inferences favorably)
- Keefe v. Bahama Cruise Line, 867 F.2d 1318 (11th Cir. 1989) (general maritime law governs torts aboard ship)
- Kermarec v. Compagnie Generale Transatlantique, 358 U.S. 625 (federal courts develop maritime rules for onboard torts)
- Everett v. Carnival Cruise Lines, 912 F.2d 1355 (11th Cir. 1990) (maritime torts governed by federal admiralty law)
- Complaint of American Dredging Co., 873 F. Supp. 1539 (S.D. Fla. 1994) (discusses DOHSA as jurisdictional statute permitting representative to sue)
- In re Amtrak Sunset Ltd. Train Crash in Bayou Canot, Ala., 121 F.3d 1421 (11th Cir. 1997) (maritime damages generally limited to pecuniary losses; punitive damages rare)
- Dooley v. Korean Air Lines Co., 524 U.S. 116 (DOHSA does not permit recovery for pre-death pain and suffering)
- Kennedy v. Carnival Corp., 385 F. Supp. 3d 1302 (S.D. Fla. 2019) (alleging "intentional" language in a negligence claim insufficient to support punitive damages)
- Martins v. Royal Caribbean Cruises Ltd., 174 F. Supp. 3d 1345 (S.D. Fla. 2016) (DOHSA can preempt foreign-law causes of action)