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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
307 F.Supp.2d 1372, 17 Fla. L. Weekly Fed. D 415, 2004

March 12, 2004.
v. CARNIVAL CORPORATION, a foreign corporation, d/b/a CARNIVAL CRUISE

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


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


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.

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).

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).

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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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