Back to Cruise Ship Law Back to Cruise Ship Lawyer Huntley v. Carnival Corporation HUNTLEY v. CARNIVAL CORPORATION, 307 F.Supp.2d 1372 (S.D.Fla. 03/12/2004) United States District Court, S.D. Florida 03-21925-CIV-KING 307 F.Supp.2d 1372, 17 Fla. L. Weekly Fed. D 415, 2004 March 12, 2004. KATHLEEN HUNTLEY v. CARNIVAL CORPORATION, a foreign corporation, d/b/a CARNIVAL CRUISE LINES, and DR. GREGORYM. McNAMARA, M.D Peter J. Oppenheimer, Esq., Samuel M. Spatzer, P.A., Miami, FL, FOR PLAINTIFF Jeffrey E. Foreman, Esq., Rachel S. Cohen, Esq., Mase & Gassenheimer, P.A., Miami, FL, FOR DEFENDANTS The opinion of the court was delivered by: JAMES KING, Senior District Judge ORDER DENYING DEFENDANT CARNIVAL CORPORATION'S MOTION TO DISMISS THIS CAUSE comes before the Court upon Defendant Carnival Corporation's ("Defendant") Motion to Dismiss, filed December 3, 2003, and orally argued on February 3, 2004.*fn1 BACKGROUND On July 21, 2002, Plaintiff began her seven day cruise aboard Defendant's ship the "Sensation." While in the casino bar of Defendant's ship, "Plaintiff slipped and fell on a substance and injured her body and extremities." (Pl's Compl. ? 10.) Plaintiff was subsequently treated on the ship by Dr. Gregory M. McNamara, M.D. ("Dr. McNamara"), who is a physician employed by Defendant to render medical assistance to the passengers and crew aboard the "Sensation." On July 18, 2003, Plaintiff filed her five-count Complaint.*fn2 Count I alleges negligence against Page 2 Defendant for failure to use reasonable care in maintaining the common areas of the "Sensation." Count n alleges vicarious liability against Defendant for alleged medical malpractice based on actual or apparent agency. Count III alleges negligent hiring and retention of medical staff against Defendant. Count IV alleges direct medical negligence against Defendant as a health care provider. Count V alleges medical malpractice against Dr. McNamara. In its current Motion, Defendant argues that Counts n and IV must be dismissed because under Barbetta v. S/S Bermuda Star,*fn3 a cruise ship cannot be held vicariously liable for the alleged negligence of the ship's doctor. In her Response, Plaintiff argues that there is a trend in the law away from Barbetta, and the Court should adopt the reasoning set forth in Carlisle v. Carnival Corp.*fn4 and deny Defendant's Motion to Dismiss. LEGAL STANDARD A motion to dismiss will be granted only where it is clear that no set of facts consistent with the allegations could provide a basis for relief. Fed.R.Civ.P. 12(b)(6). "It is well established that a complaint should not be dismissed for failure to state a claim pursuant to Fed.R.Civ.Pro. 12(b)(6) `unless it appears beyond doubt that plaintiff can prove no set of facts that would entitle him to Page 3 relief.'" Bradberry v. Pinellas County, 789 F.2d 1513, 1515 (11th Cir. 1986) (quoting Conley v. Gibson, 355 U.S. 41, 45-46 (1957)). For purposes of a motion to dismiss, a court must construe the complaint in the light most favorable to the plaintiff and accept as true all facts alleged by the plaintiff. Hishon v. King & Spalding, 467 U.S. 69, 73 (1984). The issue is not whether the plaintiff will ultimately prevail, but "whether the claimant is entitled to offer evidence to support the claims." Little v. City of North Miami, 805 F.2d 962, 965 (11th Cir. 1986) (citation omitted). DISCUSSION Under the majority rule*fn5 of Barbetta, if a cruise line's doctor is negligent in treating a passenger, the cruise line cannot be held vicariously liable for the doctor's negligence. 848 F.2d 1364, 1369 (5th Cir. 1988). The reasons set forth for this rule are the cruise line's lack of control over the doctor-patient relationship (Barbetta argues that such relationship "is under the control of the passengers themselves"), and the cruise line's lack of expertise in providing medical services to its passengers (Barbetta argues that "[a] ship is not a floating hospital"). Id. at 1369-70. Until recently, the "lone beacon of dissent"*fn6 was Nietes v. American President Lines. Ltd., which held that: where a ship's physician is in the regular employment of a ship, as a salaried member of the crew, subject to the ship's discipline and the master's orders, and presumably also under the direction and supervision of the company's chief surgeon through modern means of communication, he is, for the purposes of respondeat superior at least, in the nature of an employee or servant for whose negligent treatment of a passenger a shipowner may be held liable. 188 F. Supp. 219, 220 (N.D. Cal. 1959). On August 23, 2003, however, the Third District Court of Page 4 Appeal of Florida rejected Barbetta and choose to follow the minority rule set forth in Nietes, Carlisle, 864 So.2d at 5. In a thorough and well-reasoned opinion, the Carlisle Court rejected Barbetta's finding that a passenger at sea has any meaningful control over his or her relationship with the ship's doctor, finding instead that "a cruise passenger at sea and in medical distress does not have any meaningful choice but to seek treatment from the ship's doctor." Id; see also Fairley, 1993 AMC at 1638 (cited with approval in Carlisle). Moreover, Carlisle rejected the argument that a cruise line is not in the business of providing its passengers with medical care and thus, lacks the necessary expertise to be held vicariously liable for the ship doctor's negligence. 864 So.2d at 6. Instead, the Court reasoned that because a seriously ill or injured passenger is sufficiently foreseeable and likely to disrupt maritime pursuits, such incidents can be found to be "substantially related to traditional maritime activity."*fn7 Id. Additionally, the Court noted that "the cruise line is already held vicariously liable for the negligence of the same ship's doctor in the treatment of hundreds of people ? the crew." Id. at 7. The Carlisle Court thus concluded that "regardless of the contractual status ascribed to the doctor [as an independent contractor], for purposes of fulfilling the cruise line's duty to exercise reasonable care, the ship's doctor is an agent of the cruise lie whose negligence should be imputed to the cruise line" 864 So.2d at 7 (emphasis added). Back to Top |
| Cruise Ship Injury Case - Cruise Ship Passenger brings claim under cause of action of medical malpractice A Cruise Ship Injury Case Involving Injury to Passenger - passenger brings malpractice claim against doctor. Cruise line argues that a cruise ship cannot be held vicariously liable for the alleged negligence of ship's doctor. The court denies the motion and demands defendant cruise line's answer. |
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