774 F. Supp. 2d 1215
S.D. Fla.2011Background
- The court consolidates Ashfield and Koens for pre-trial proceedings due to factual similarity.
- Ashfield is an Irish citizen; Koens is a Dutch citizen; both were passengers on the Navigator of the Seas in November 2009 with Nassau as a port of call.
- Plaintiffs allege RCL advertised excursions to Nassau, including the Caribbean Segway Nature Tour at Earth Village, which they booked onboard.
- During the excursion, Plaintiffs were robbed at gunpoint; Ashfield was assaulted and Koens was assaulted and had belongings stolen.
- Plaintiffs sue RCL on seven theories including negligence and various agency/contract theories; RCL moves to dismiss.
- The court grants the motions to dismiss (with leave to amend where noted) and outlines grounding for each count.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Duty to warn and heightened duties | Ashfield/Koens argue heightened duty due to known Nassau dangers. | RCL argues Carlisle limits duty to known dangers in specific locations; no heightened duty. | Count I dismissed with leave to amend. |
| Misleading advertising | Ashfield/Koens claim omission of Nassau crime rate constitutes misleading advertising. | RCL contends insufficient basis for misleading advertising claim. | Count II dismissed with option to amend within 20 days. |
| Negligent misrepresentation | RCL failed to vet safety of tour operators; misrepresentations about safety. | No factual basis to support liability for safety record of tour operators. | Count III dismissed without prejudice to amend. |
| Apparent agency | RCL held out Caribbean Segway Tours as its apparent agent through marketing and silence on identification. | No factual allegations of agency relation; ticket contract labels operators as independent contractors. | Count IV dismissed without prejudice to amend. |
| Actual agency | RCL acknowledged control over the operator; operators acted for RCL. | No underlying contractual or factual basis for actual agency. | Count V dismissed without prejudice to amend. |
Key Cases Cited
- Carlisle v. Ulysses Line Ltd., 475 So. 2d 248 (Fla. 3d DCA 1985) (duty to warn limited to known dangers in the place visited)
- Biscayne Inv. Group v. Guarantee Mgmnt. Servs., Inc., 903 So.2d 251 (Fla. 3d DCA 2005) (elements of fraud in the inducement and negligent misrepresentation)
- Tiara Condominium Ass'n v. Marsh & McLennan Cos., Inc., 607 F.3d 742 (11th Cir. 2010) (elements of fraud in the inducement under Florida law; reliance required)
- Omar ex rel. Cannon v. Lindsey, 334 F.3d 1246 (11th Cir. 2003) (pleading standard for complaint sufficiency)
- Bell Atl. Corp. v. Twombly, 550 U.S. 544 (S. Ct. 2007) (pleading standard: plausibility required)
- Marsh v. Butler County, 268 F.3d 1014 (11th Cir. 2001) (en banc pleading standard for plausibility)
- La Grasta v. First Union Sec., Inc., 358 F.3d 840 (11th Cir. 2004) (review of complaint; consider central documents)
- Fojtasek v. NCL (Bahamas) Ltd., 613 F. Supp. 2d 1351 (S.D. Fla. 2009) (absence of facts to show agency relationship)