Kennedy v. Carnival Corp.
385 F. Supp. 3d 1302
S.D. Fla.2019Background
- Decedent (John Valentiejus-Riggle) died after diving toward water inflatables during an Isla Pasion shore excursion in Cozumel, Mexico while a passenger on Carnival Freedom; suit filed by Kathleen Kennedy as personal representative of the estate.
- Plaintiff sued Carnival (and the excursion operator) alleging negligence, negligent hiring/selection, and agency/apparent agency theories; amended complaint followed earlier dismissal recommendations.
- Carnival moved to dismiss, arguing lack of capacity (proper personal representative), DOHSA preemption/limitation of damages (bar on non-pecuniary and punitive damages), insufficient notice for negligence, and failure-to-plead negligent hiring and agency.
- Magistrate Judge Torres found plaintiff is seeking probate appointment and denied dismissal for lack of capacity without prejudice (likely appointment not speculative).
- Court held DOHSA applies (injury occurred in foreign territorial waters / "high seas" for DOHSA) and therefore non-pecuniary and punitive damages are barred and were stricken with prejudice.
- Court denied dismissal of negligence and apparent-agency claims (failure-to-warn theory adequately pleaded), but granted dismissal with prejudice of negligent hiring/selection and of punitive damages.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Capacity to sue | Kennedy is pursuing probate appointment; claims should relate back once appointed | Kennedy is not currently the personal representative, so lacks capacity under Rule 17/Florida law | Denied dismissal; plaintiff actively seeking appointment so capacity challenge deferred (without prejudice) |
| Applicability of DOHSA | Complaint pleaded general maritime law under §1333; injury occurred ashore so DOHSA inapplicable | Death-precipitating injury occurred in foreign territorial waters/high seas; DOHSA applies and preempts other remedies | DOHSA applies as matter of law (injury in waters beyond U.S. territorial limits); preempts state/maritime supplementation |
| Non-pecuniary & punitive damages | Plaintiffs seek loss of companionship, pain and suffering, punitive damages | DOHSA limits recovery to pecuniary losses and (court argues) bars punitive damages | Non-pecuniary damages stricken with prejudice; punitive damages stricken with prejudice (DOHSA bars punitive; alternatively complaint fails to plausibly allege intentional misconduct) |
| Negligence, notice, and agency theories | Carnival oversaw/inspected excursions, profited from them, so knew or should have known of dangerous conditions; apparent agency alleged | Carnival lacked notice; dangers were open and obvious; tickets/website disclaimers negate agency; negligent hiring/selection not pleaded | Negligence claim (failure-to-warn theory) and apparent-agency survive 12(b)(6); negligent hiring/selection dismissed with prejudice; fact questions (notice, open-and-obvious) reserved for discovery/summary judgment |
Key Cases Cited
- Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007) (pleading must state plausible claim to survive Rule 12(b)(6))
- Ashcroft v. Iqbal, 556 U.S. 662 (2009) (complaint must contain sufficient factual matter to state a plausible claim)
- Executive Jet Aviation, Inc. v. City of Cleveland, 409 U.S. 249 (1972) (maritime nexus required for admiralty jurisdiction absent statute to contrary)
- Sea-Land Servs. v. Gaudet, 414 U.S. 573 (1974) (DOHSA pecuniary-damages limitation includes funeral expenses)
- Offshore Logistics, Inc. v. Tallentire, 477 U.S. 207 (1986) (DOHSA preempts supplemental state wrongful-death remedies)
- Dooley v. Korean Air Lines Co., 524 U.S. 116 (1998) (DOHSA provides exclusive recovery for deaths on the high seas; non-pecuniary damages precluded)
- Miles v. Apex Marine Corp., 498 U.S. 19 (1990) (survivors' recovery under maritime law limited to pecuniary losses; limits expansion of remedies)
- Chaparro v. Carnival Corp., 693 F.3d 1333 (11th Cir.) (2012) (shipowner duty to warn exists when it had actual or constructive notice of shore-based dangers)
- Wolf v. Celebrity Cruises, Inc., [citation="683 F. App'x 786"] (11th Cir.) (2017) (existence of duty to warn is question of law; requires actual or constructive notice)