Opinion
Case No. 05-22030-CIV-SEITZ/MCALILE Y.
March 8, 2006
MEMORANDUM OPINION AND ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS' MOTION TO DISMISS THE PLAINTIFF'S AMENDED COMPLAINT
THIS CAUSE is before the Court on Defendants NCL America, Inc., NCL (Bahamas) Ltd. f/k/a Norwegian Cruise Line Limited's ("Defendants") Motion to Dismiss the Plaintiff's Amended Complaint [DE-31] filed pursuant to Fed.R.Civ.P. 12(b)(6). For the reasons set forth below, the Court denies the Defendant's motion as to Count I and grants the motion as to Count H.
FACTUAL AND PROCEDURAL BACKGROUND
Plaintiff's two count Amended Complaint [DE-24] seeks injunctive relief in Count I for alleged violations of the Americans with Disabilities Act, 42 U.S.C. §§ 12181, et seq. ("ADA") and money damages in Count H for alleged negligence that caused her personal injury. She asserts jurisdiction based on 28 U.S.C. §§ 1331 (federal question), 1333 (admiralty), 1343 (civil rights) and 1367 (supplemental). Amend. Compl. ¶ 1. The relevant facts in the light most favorable to Plaintiff are as follows:
Plaintiff suffers from Osteogenesis Imperfecta, otherwise known as brittle bone disease, which requires her to use either a wheelchair or crutches for mobility. Amend. Compl. ¶ 7. Between August 1 and 8, 2004, Plaintiff was a fare-paying passenger aboard Defendants' cruise ship Pride of Aloha. Amend. Compl. ¶ 6. The ship includes approximately 800 guest cabins as well as several restaurants, lounges, retail stores, pools and decks. Amend. Compl. ¶ 20. Plaintiff alleges that nine barriers on the Pride of Aloha deny access to disabled persons, such as herself, of the goods and services offered to non-disabled passengers on board. Amend. Compl. ¶ 23. Those barriers include:
(a) insufficient number of accessible cabins;
(b) insufficient variety of amenities and pricing of accessible cabins;
(c) inflated prices for accessible rooms compared to similar rooms for non-disabled passengers;
(d) insufficient door pressure and reach range to amenities in accessible cabins;
(e) insufficient number of public restrooms in public areas of the ship;
(f) insufficient disabled accessible seating in public areas, including theaters, lounges and bars;
(g) inaccessible seating and paths of travel in the ship's Blue Hawaii night club;
(h) inadequate transportation and access to excursions which are offered to non-disabled passengers;
(i) unavailability of lifts and inadequate paths of travel to the pool and spa.
Amend. Compl. ¶ 25. Plaintiff further alleges that these barriers may all be removed in a readily achievable manner and that such barrier removal will not conflict with the internal order of the cruise ship. Amend. Compl. ¶ 27.
In Count II, Plaintiff alleges that Defendants were negligent in failing to provide her with a cabin door in a designated "accessible" room that was usable by a person with her disabilities. In particular, Plaintiff alleges that Defendants had a duty to provide a door meeting the ADA's five pounds of pressure standard (Amend. Compl. ¶ 34). Plaintiff further alleges that Defendants breached this duty by failing to provide an appropriate door (Amend. Compl. ¶ 36) and that the breach proximately caused injury to her arms, shoulders and body causing her to be rushed to the emergency room on August 11, 2005. (Amend. Compl. ¶ 37-38).
Defendants move to dismiss Count I because the Amended Complaint fails to allege the barriers with sufficient specificity to allow the Court to determine whether the relief requested conflicts with international law and because there are no existing ADA regulations for new construction and alteration of cruise ships. Defendants move to dismiss Count II maintaining that there is no legally cognizable claim for negligence or negligence per se under the ADA.
MOTION TO DISMISS STANDARD
Federal Rule of Civil Procedure 12(b)(6) provides that a party may move the Court to dismiss a claim for "failure to state a claim upon which relief can be granted." Rule 12(b)(6) tests the legal sufficiency of a party's claim for relief. Such a motion does not decide whether the plaintiff will ultimately prevail on the merits, but instead whether she has properly stated a claim and should therefor be permitted to offer evidence to support it. Scheuer v. Rhodes, 416 U.S. 232, 236 (1974). The rule provides that dismissal of a claim is appropriate when "the movant demonstrates 'beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief."' Harper v. Blockbuster Entertainment Corp., 139 F.3d 1385, 1387 (11th Cir. 1998) (quoting Conley v. Gibson, 355 U.S. 41, 45-46 (1957)). To survive a Rule 12(b)(6) motion to dismiss, a complaint generally need only provide a short and plain statement of the claim and the grounds on which it rests. Conley, 355 U.S. at 47. When a claim is challenged under Rule 12(b)(6), a court will presume that all well-pleaded allegations are true and view the pleadings in the light most favorable to the plaintiff. Scheuer, 416 U.S. at 236; Arango v. U.S. Dept. Of Treasury, 115 F.3d 922, 923 (11th Cir. 1997).ANALYSIS
I. The Effect of Spector v. Norwegian Cruise Line Ltd.
Defendants argue, relying on Spector v. Norwegian Cruise Line Ltd, 125 S. Ct. 2169 (2005), that the Amended Compliant must be dismissed because Plaintiff fails to sufficiently specify which portions of the Pride of Aloha are inaccessible. Defendants maintain that such failure makes it impossible for the Court to make a "threshold determination of [the extent to which] the ADA would apply in the first place and/or whether the clear statement rule comes into play" . . . . and whether there is a "conflict wit h international law." Def. Mem. at. 3. This argument is unavailing. Spector does not require any heightened pleading standard for Title III cases arising on cruise ships, nor does it impose any obligation to establish the absence of international conflicts in order for a plaintiff to state a claim. Instead, Spector helps define, in the cruise ship context, the Title III requirement that any barrier removal must be "readily achievable" as set forth in 42 U.S.C. § 12182(b)(2)(iv). The Spector Court explained that those barrier removals that would compromise the safety of the ship or the passengers would fail the "readily achievable" standard. In particular,
Defendants correctly retreat from their clear statement argument. See Reply at 2 n. 2. The clear statement rule analysis applies only to cruise ships sailing under a foreign flag. Spector, 125 S.Ct. 2174-75. Defendants concede that the Pride of Aloha sails under the U.S. flag. See Reply at 2.
a barrier removal requirement under Title III that would bring a vessel into noncompliance with the International Convention for the Safety of Life at Sea (SOLAS) [citation omitted], or any other international legal obligation, would create serious difficulties for the vessel and would have a substantial impact on its operations, and thus would not be readily achievable.Id. at 2180; see also id. (the "readily achievable" standard of Title III "must take into consideration the modification's effect on shipboard safety.").
Whether a proposed modification is "readily achievable" is part of a plaintiff's prima facie case. Brother v. CPL Investments, Inc., 317 F. Supp.2d 1358, 1370 (S.D. Fla 2004). Thus, if any of Plaintiff's proposed barrier removals in this case conflict with the SOLAS or other international legal obligations, and would have a substantial impact on the Pride of Aloha's operations and safety, it will likely be barred under Spector because it is not readily achievable.
While it makes sense, from the viewpoint of judicial efficiency and economy, to resolve any issues of international conflicts early in the case, as they will likely be dispositive of the particular barrier removal at issue, the present state of the law does not require that those issues must be resolved at the pleading stage as Defendants suggest. Certainly, Spector itself compels no such conclusion. See Spector, 125 S. Ct. at 2184 (noting that courts are free, as a "prudential matter," to consider the question of international conflicts at the outset of litigation). Some proposed barrier removals (e.g., moving life boats) may be in such obvious conflict with SOLAS that they can be dismissed from the face of the complaint. Others may require significant discovery before the conflict becomes apparent. Cf. Brother, 317 F. Supp.2d at 1371 (noting that "[p]laintiffs are not equipped by knowledge, training or education in the many technical and engineering elements that can be affected by particular removal methods. Thus, the suggestion of methods of removal and a showing that the suggested methods are readily achievable require guidance by an expert."). In any event, at this stage Paragraph 25 of the Amended Complaint sets forth a sufficient description of the alleged barriers on the Pride of Aloha to forestall any determination that the Plaintiff's proposed modifications would necessarily conflict with SOLAS or other international obligations. As one example, Plaintiff alleges that the unavailability of lifts impedes access to the pool and spa for people with disabilities like herself. Amend. Compl. ¶ 25(i). It is difficult to fathom what international obligation would conflict with a requirement that the Pride of Aloha be fitted with a pool lift, and Defendants refer the Court to no such obligation. Should further discovery reveal such a conflict, the Court would expect Plaintiff to voluntarily concede such a fact in an effort to promote a speedy, cost efficient resolution of the claims. If that does not occur, the Defendants have two vehicles available to resolve the issue before trial, a motion for judgment on the pleadings and a motion for summary judgment.
H. Accessibility Standards for Cruise Ships.
Defendants next argue that Count I should be dismissed because regulations implementing the ADA's requirements for new construction and alteration ( 28 C.F.R. Pt. 36, Subpart D) ("Subpart D") for cruise ships have not yet been promulgated by the appropriate federal agencies. Defendants argue that in the absence of any regulations it "is not required to remove any physical barriers." Def. Mem. at 5.
This argument does not apply to all of Defendant's allegedly discriminatory conduct. The discriminatory pricing allegation in ¶ 25(c) does not require barrier removal. Such a claim is governed by 28 C.F.R. § 36.301(c).
Title III directs the Department of Justice ("DOJ") and Department of Transportation ("DOT") to promulgate regulations governing accessibility for public accommodations. See 42 U.S.C. § 12186. While new construction and alteration regulations governing land based facilities were promulgated in 1991, the DOJ has taken the position that these regulation do not apply to cruise ships. See Resnick v. Magical Cruise Company Ltd., 148 F. Supp.2d 1298, 1303-1305 (M.D. Fla. 2001) (discussing ADA regulatory history pertaining to cruise ships); see also id at 1304 ("The Department [of Justice] will not interpret the new construction and alteration provisions of subpart D to apply to the type of facilities discussed here [including cruise ships], pending further development of specific requirements.") (quoting Americans with Disabilities Act Title III Technical Assistance Manual, III-5.3000). To date, however, DOJ and DOT have yet to promulgate separate new construction and alteration regulations for cruise ships. For this reason, two courts have dismissed claims against cruise ships that are purportedly based on Subpart D. See Resnick, 148 F. Supp. 2d at 1395 ("the Court sees no basis under the current ADA scheme for a plaintiff to bring a claim that a cruise ship has failed to adhere to guidelines which have been declared inapplicable to cruise ships by the departments charged with promulgation of such guidelines."); Deck v. Am. Hawaii Cruises, Inc., 51 F. Supp.2d 1057 (D. Haw. 1999) ("to the extent Plaintiff's claims fall within subpart D of the ADA regarding new construction and alterations of facilities, these claims are not covered by the ADA.").
Importantly, none of the reported cases discussed by Defendants have held that other provisions of the ADA are inapplicable to cruise ships, just because the Subpart D regulations do not apply. See Resnick, 148 F. Supp.2d at 1305 (". . . nor does this Court now hold that a claim for denial of access to or on a cruise ship cannot be maintained as a matter of law even in the absence of [Subpart D] regulations."); Deck, 51 F. Supp.2d at 1061 ("to the extent that Plaintiff raises other ADA claims, they are clearly applicable to cruise ships, and are thus properly brought in the instant case"). Thus, while DOJ and DOT's failure to promulgate Subpart D regulations prevents an ADA action based on Subpart D, that failure does not prevent other claims based on other sections of the ADA.
Plaintiff in the instant action does not base her claims on Subpart D, but rather on Subpart C governing removal of barriers. See Amend. Compl. ¶ 23; (referencing barrier removal under 42 U.S.C. § 12182). Thus, the absence of Subpart D regulations is no bar to her action under the readily achievable standard. See Ass'n For Disabled Americans, Inc. v. Concorde Gaming Corp., 158 F. Supp.2d 1353, 1362 n. 4, 1364-68 (S.D. Fla. 2001) (evaluating access to restaurants, rest rooms, dance floors, and gaming tables on a casino ship under the readily achievable standard); Access Now, Inc. v. Holland Am. Line-Westours, Inc., 147 F. Supp.2d 1311, 1312-13 (S.D. Fla. 2001) (rejecting a similar Subpart D argument). Although the existence of Subpart D regulations would act as a safe harbor of sorts for those cruise ships which comply with such requirements, as well as provide guidance for determining what constitutes a "readily achievable" barrier removal, their non-existence does not bar actions based on Subpart C. See Concorde Gaming, 158 F. Supp.2d at 1362 n. 4. Finally, because Plaintiff is not seeking to hold Defendants liable under regulations that have not been promulgated, Defendants' due process and ex post facto arguments are not well taken. Accordingly, the Defendants' motion to dismiss Count I is denied.
III. Negligence and Negligence Per Se.
Defendants urge the Court to dismiss Count II of the Amended Complaint arguing that negligence per se based on a violation of the ADA is not an actionable claim. Defendants' reliance on Wagner v. Regent Investments, Inc., 903 F. Supp 966 (E.D. Va. 1995) for support is misplaced. Wagner involved the removal to federal court of a state law claim founded on alleged violations of the ADA. Significantly, defendant based his removal solely on federal question jurisdiction. Wagner, 903 F. Supp at 968. The court granted plaintiffs motion to remand, finding that a negligence case founded on the ADA was not sufficiently federal in nature to meet the "arising under" standard of 28 U.S.C. § 1331. Id. at 970. The court did not decide, let alone consider, whether a negligence per se claim stated a cause of action under state law. The other cases cited by Defendants are to the same effect.
Defendants next argue that Plaintiff's negligence per se cause of action fails to state a claim under Florida law. Def. Mem. at 11. The doctrine of negligence per se has been long accepted in Florida. See DeJesus v. Seaboard Coast R.R. Co., 281 So.2d 198, 200-01 (Fla. 1973). "[N]egligence per se is a violation of any . . . statute which establishes a duty to take precautions to protect a particular class of persons from a particular injury or type of injury." Id. at 201. In a negligence per se case, the duty is defined by the applicable statute rather than the common law, and a breach of the statute itself constitutes a breach of the duty. See generally D. Dobbs, 1 The Law of Torts § 134 (2001). To make her case for negligence per se, the Plaintiff must demonstrate that she is a person the ADA was designed to protect, that her injury is the type of injury the ADA is designed to protect against, and that her injuries are the proximate result of the Defendants' violation of the ADA. See Torres v. Offshore Professional Tour, Inc., 629 So.2d 192, 194 (Fla. 3d DCA 1993). Because the ADA was not designed to protect those with disabilities from personal injuries, Plaintiff is unable to state a claim for per se negligence. Indeed, 42 U.S.C. § 12101(b) expressly states that the purpose of the ADA is the elimination of discrimination against individuals with disabilities. See also PGA Tour, Inc. v. Martin, 532 U.S. 661, 674 (2001) ("Congress enacted the ADA in 1990 to remedy widespread discrimination against disabled individuals.") No mention is made of promoting safety or eliminating physical hazards of potential personal injury for the disabled. While protection from injury for the disabled is no doubt a fortunate by-product of the ADA, it is clear that the statute was not designed with that purpose in mind and therefore the Court declines to impose a per se duty on cruise ships based on the ADA. Accordingly, Defendants' motion to dismiss Plaintiff's claim of negligence per se is granted.
Although initially arguing that Florida law applies to Plaintiff's negligence claim, Defendants later argue that federal maritime law applies. Compare Def. Mem. at 11 with Def. Reply at 6. Plaintiff relies on Florida law. Pl. Mem. at 14-19. The Court notes that federal maritime law is largely in accord with the principles discussed in this section. See Keefe v. Bahama Cruise Line, Inc., 867 F.2d 1318, 1322 (11th Cir. 1989) ("we hold that the benchmark against which a shipowner's behavior must be measured is ordinary reasonable care under the circumstances."). The parties have cited no case law to the contrary.
As to a common law negligence claim, the ADA does not allow recovery of money damages for violations of its standards. See 42 U.S.C. § 1288; see also Concorde Gaming, 158 F. Supp.2d at 1359. Therefore, Plaintiff's attempt to recover damages for violation of the ADA's five pound door pressure standard under the rubric of negligence fails. In other words, Plaintiff may not use the ADA's standards alone to impose a duty on the Defendants. This is not to say that a disabled person can never bring a common law action arising from injuries caused by negligent conduct in the context of public accommodation. Rather, to do so a plaintiff must identify a recognized duty at common law, independent of the ADA standards. Plaintiff has not done so here. Accordingly, Count II is dismissed. If Plaintiff can plead such a common law duty, consistent with her pleading obligations under Fed.R.Civ.P. 8 and 11, then she may seek leave to amend consistent with Rule 15.
IV. Punitive Damages
Defendants next move the Court to dismiss Count II, or in the alternative to strike certain allegations in the Amended Complaint, because punitive damages are unavailable in a negligence case arising in admiralty absent allegations of wilful or wanton conduct. See In re Amtrak "Sunset Limited", 121 F.3d 1421, 1423 (11th Cir. 1997). Plaintiff concedes that punitive damages are unavailable. See P1. Resp. at 18. Accordingly, the Court strikes with prejudice those allegations requesting punitive damages in the Amended Complaint.
V. Pleading Damage s
Lastly, Defendants argue that the negligence claim in Count II should be dismissed because Plaintiff has failed to sufficiently allege damages. Def. Mem. at 13-14. Although Count II is dismissed, the Court notes that Plaintiff's allegations of damage, while somewhat conclusory, are nonetheless sufficient to comply with Fed.R.Civ.P. 8(a). Plaintiff alleges "physical injury [" to her arms, shoulders and body"], hospitalization, mental anguish, humiliation and other economic and non-economic damages." Amend. Compl. ¶ 32, 37-38. Whether Plaintiff's injuries are permanent or whether any pre-existing injuries were exacerbated (see Def. Mem. at 14) need not be pled in the Amended Complaint. Such facts are properly the subject of discovery, not pleading. In the alternative, Defendant asks for a more definite statement pursuant to Fed.R.Civ.P. 12(e). Because Rule 8(a) requires the pleader to serve only a short plain statement showing an entitlement to relief, motions for more definite statements are "not favored." Eye Care Int'l v. Underhill, 92 F. Supp.2d 1310, 1316 (M.D. Fla. 2000). Rule 12(e) is not a substitute for discovery. Campbell v. Miller, 836 F. Supp 827, 832 (M.D. Fla. 1993). In order for the motion to be granted, the pleading must be so hopelessly vague that a defendant cannot be expected to frame a response. S.E.C. v. Digital Lightwave, Inc., 196 F.R.D. 698, 700 (M.D. Fla. 2000). The standard has not been met in this case.
Defendants' reliance on S.D. Fla. L.R. 7.1(A) to argue for a more definite statement regarding attorney's fees is misplaced. Local Rule 7.1(A) is directed to motions for fees. It does not alter a party's pleading requirement.
For the forgoing reasons it is hereby
ORDERED
(1) Defendants' Motion to Dismiss [DE-31] is DENIED as to Count I;
(2) Defendants' Motion to Dismiss [DE-31] is GRANTED as to Count H. Plaintiff has until March 21, 2006 to seek leave to replead a common law negligence claim provided she can plead a recognized common law duty apart from the ADA standards;
(3) Plaintiff's allegations in the Amended Complaint regarding punitive damages are STRICKEN WITH PREJUDICE;
(4) Defendants' Motion for a More Definite Statement [DE-31] is DENIED.
DONE AND ORDERED.