DH v Carnival Corporation

January 31, 2015

DH v Carnival Corporation

Complaint

This is a complaint filed on behalf of a cruise ship passenger who alleges that she was raped by a Carnival crewmember during a cruise. The passenger alleges that the rape occurred in her cabin, while her two minor children were also in the cabin and witnessed and/or heard the rape while it was occurring.

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
MIAMI DIVISION
D.H., Individually and as Parent and Natural Guardian of R.H. and T.H. (minors),
Plaintiff,

v.

CARNIVAL CORPORATION,
Defendant.
                                                                        /

COMPLAINT AND DEMAND FOR JURY TRIAL

Plaintiff hereby sues Defendant and alleges as follows:

JURISDICTIONAL AND PRELIMINARY ALLEGATIONS

1. Plaintiff, D.H., Individually and as Parent and Natural Guardian of R.H. and T.H. (minors), is a citizen of the state of Kansas.
2. Defendant, CARNIVAL CORPORATION, is a corporation incorporated under the laws of Panama, having its principal place of business in Florida.
3. The matter in controversy exceeds, exclusive of interest and costs, the sum specified by 28 U.S.C. § 1332. In the alternative, if diversity jurisdiction does not apply, then this matter falls under the admiralty and maritime jurisdiction of this Court.
4. At all times material hereto, Defendant personally or through an agent:
   1. Operated, conducted, engaged in or carried on a business venture in this state and/or county or had an office or agency in this state and/or county;
   2. Was engaged in substantial activity within this state;
   3. Operated vessels in the waters of this state;
   4. Committed one or more of the acts stated in Florida Statute §§ 48.081, 48.181 and/or 48.193;
   5. The acts of Defendant set out in this Complaint occurred in whole or in part in this county and/or state.
   6. The Defendant was engaged in the business of providing to the public and to the Plaintiff in particular, for compensation, vacation cruises aboard their vessel.
5. Defendant is subject to the jurisdiction of the Courts of this state.
6. The causes of action asserted in this Complaint arise under the General Maritime Law of the United States.
7. At all times material hereto, Defendant owned, operated, managed, maintained and/or controlled the vessel, the Carnival Triumph.
8. On or about February 20, 2014, the Plaintiff was a paying passenger on Defendant’s vessel which was in navigable waters.
9. On or about February 20, 2014, the Plaintiff was sexually assaulted and/or raped by an employee/crewmember of Defendant, believed to be the pit boss of the casino aboard Defendant’s vessel. The crewmember followed the Plaintiff to her passenger cabin, and he raped and/or sexually assaulted the Plaintiff inside her cabin while the Plaintiff’s two minor children, R.H. and T.H., were also inside the cabin. The Plaintiff’s two minor children heard and/or witnessed their mother (i.e., the Plaintiff) being raped and/or sexual assaulted.
10. Instances of rapes and/or sexual assaults occur aboard Defendant’s vessels at an alarming rate. Yet Defendant fails to take adequate steps or provide adequate security and/or training and/or supervision to prevent such rapes and/or sexual assaults, and fails to warn its passengers of the growing epidemic of rape and sexual assault at sea. Defendant’s motive for failing to warn its passengers is financial in nature; that is, Defendant willfully chooses not to warn its passengers about rapes and sexual assaults aboard its ships so as not to scare any prospective passengers away. Such willful and outrageous conduct on the part of the Defendant exposes Defendant to punitive damages. See Lobegeiger v. Celebrity Cruises, Inc., No. 11-21620, 2011 WL 3703329, 2011 U.S. Dist. LEXI S 93933 (S.D. Fla Aug. 23, 2011).
11. The Plaintiff went to the security office on the same day (February 20, 2014) and reported the incident. Defendant’s security officer(s) attempted to dissuade the Plaintiff from pressing charges and forced the Plaintiff to write a statement stating that she would not press charges against the alleged assailant.

COUNT I – VICARIOUS LIABILITY FOR RAPE / SEXUAL ASSAULT

Plaintiff realleges, incorporates by reference, and adopts her allegations set forth in paragraphs one through eleven (11) as though alleged originally herein.

12. On or about February 20, 2014, the Plaintiff was sexually assaulted and/or raped by an employee/crewmember of Defendant, believed to be the pit boss of the casino aboard the Carnival Triumph.
13. At all times material hereto, the individual who assaulted the Plaintiff was hired, retained, and/or employed by the Defendant.
14. At all times material hereto, the individual who assaulted the Plaintiff was a member of the crew of Defendant’s cruise ship, the Carnival Triumph.
15. At all times material hereto, Defendant was and is vicariously liable for the tortious actions of its crewmembers/employees, including the individual who assaulted and/or raped the Plaintiff.
16. As a direct and proximate result of the tortious actions of the individual who sexually assaulted and/or raped the Plaintiff, for which Defendant is vicariously liable as set forth above, the Plaintiff was injured about her body and extremities, suffered physical pain and suffering, mental anguish, loss of enjoyment of life, physical disability, impairment, inconvenience in the normal pursuits and pleasures of life, feelings of economic insecurity caused by disability, disfigurement, aggravation of any previously existing conditions therefrom, incurred medical expenses in the care and treatment of her injuries including psychiatric care, suffered physical handicap, lost wages, income lost in the past, and her working ability and earning capacity has been impaired. The injuries and damages are permanent or continuing in nature, and Plaintiff will suffer the losses and impairments in the future.

WHEREFORE, the Plaintiff demands judgment for all damages recoverable under the law against the Defendant, including punitive damages, and demands jury trial of all issues so triable.

COUNT II – NEGLIGENCE

Plaintiff realleges, incorporates by reference, and adopts her allegations set forth in paragraphs one through eleven (11) as though alleged originally herein.

17. At all times material hereto, it was the duty of Defendant to provide Plaintiff with reasonable care under the circumstances while she was a passenger aboard Defendant’s ship.
18. On or about February 20, 2014, the Plaintiff was injured due to the fault and negligence of Defendant, and/or its agents, servants and/or employees as follows:
    1. Failing to provide reasonably safe conditions for Plaintiff aboard Defendant’s vessel. Said safe conditions include, but are not limited to, the prevention of permitting an atmosphere to exist wherein persons could rape and/or sexually assault passengers; target passengers; get passengers drunk; and/or drug passengers; and/or
    2. Negligently hiring the individual who assaulted and/or raped the Plaintiff; and/or
    3. Negligently retaining the individual who assaulted and/or raped the Plaintiff; and/or
    4. Failing to adequately monitor the casino; and/or
    5. Failing to adequately monitor passengers; and/or
    6. Failing to adequately monitor crewmembers targeting passengers; and/or
    7. Failing to adequately monitor crewmembers getting passengers drunk; and/or
    8. Failing to adequately monitor crewmembers drugging passengers; and/or
    9. Failing to provide adequate security aboard the vessel; and/or
    10. Failing to warn passengers of the dangers of sexual assaults and/or rapes aboard Defendant’s ships; and/or
    11. Failing to warn passengers of the prevalence of sexual assaults and/or rapes aboard Defendant’s ships; and/or
    12. Failing to protect passengers from sexual assaults, physical batteries and/or rapes aboard Defendant’s ships; and/or
    13. Failing to protect passengers from getting targeted, drunk and/or drugged by crewmembers aboard Defendants ships; and/or
    14. Failing to provide adequate training for their crewmembers; and/or
    15. Failing to provide adequate supervision for their crewmembers; and/or
    16. Failing to promulgate and/or enforce adequate policies and/or procedures to prevent sexual assaults aboard Defendant’s ships; and/or
    17. Failing to promulgate and/or enforce adequate policies and procedures designed to prevent sexual assaults by crewmembers on passengers; and/or
    18. Failing to promulgate and/or enforce adequate policies and procedures designed to prevent crewmembers from targeting passengers; and/or
    19. Failing to promulgate and/or enforce adequate policies and procedures designed to prevent crewmembers from getting passengers drunk and/or drugged; and/or
    20. Failing to report the subject sexual assault to the Federal Bureau of Investigation in a timely manner; and/or
    21. Attempting to dissuade the Plaintiff from pressing charges against the individual who assaulted the Plaintiff; and/or
    22. Failing to promulgate and/or enforce adequate policies and procedures following the report of sexual assault aboard Defendant’s ships.
19. As a direct and proximate result of the negligence of Defendant, the Plaintiff was directly and proximately caused to be sexually assaulted and/or raped and/or suffer emotional distress following the assault.
20. As a direct and proximate result of the negligence of Defendant, the Plaintiff, D.H., was injured about her body and extremities, suffered physical pain and suffering, mental anguish, loss of enjoyment of life, physical disability, impairment, inconvenience in the normal pursuits and pleasures of life, feelings of economic insecurity caused by disability, disfigurement, aggravation of any previously existing conditions therefrom, incurred medical expenses in the care and treatment of her injuries including psychiatric care, suffered physical handicap, lost wages, income lost in the past, and her working ability and earning capacity has been impaired. The injuries and damages are permanent or continuing in nature, and Plaintiff will suffer the losses and impairments in the future.

WHEREFORE, the Plaintiff demands judgment for all damages recoverable under the law against the Defendant, including punitive damages, and demands jury trial of all issues so triable.

COUNT III – NEGLIGENT INFLICTION OF

EMOTIONAL DISTRESS OF D.H.

Plaintiff realleges, incorporates by reference, and adopts her allegations set forth in paragraphs one through eleven (11) as though alleged originally herein.

21. At all times material hereto, due to the negligent and/or intentional conduct of the Defendant, the Plaintiff, D.H., was placed in an immediate risk of physical harm. Said risk of physical harm included being sexually assaulted and/or raped through a physical battery.
22. Defendant’s negligent and/or intentional conduct caused severe mental and/or emotional harm and/or distress in the Plaintiff including fear and anxiety. These emotional injuries and/or damages have also resulted in physical manifestations, such as sickness, nausea, exhaustion, fatigue, headaches, insomnia, lack of sleep, poor sleep and/or nightmares.
23. As a direct and proximate result of the negligent infliction of emotional distress by Defendant, the Plaintiff, D.H., was injured about her body and extremities, suffered physical pain and suffering, mental anguish, loss of enjoyment of life, physical disability, impairment, inconvenience in the normal pursuits and pleasures of life, feelings of economic insecurity caused by disability, disfigurement, aggravation of any previously existing conditions therefrom, incurred medical expenses in the care and treatment of her injuries including psychiatric care, suffered physical handicap, lost wages, income lost in the past, and her working ability and earning capacity has been impaired. The injuries and damages are permanent or continuing in nature, and Plaintiff will suffer the losses and impairments in the future.

WHEREFORE, the Plaintiff demands judgment for all damages recoverable under the law against the Defendant, including punitive damages, and demands jury trial of all issues so triable.

COUNT IV – INTENTIONAL INFLICTION OF

EMOTIONAL DISTRESS OF D.H.

Plaintiff realleges, incorporates by reference, and adopts her allegations set forth in paragraphs one through eleven (11) as though alleged originally herein.

24. At all times material hereto, due to the intentional conduct of the Defendant’s employee / crewmember for which the Defendant is vicariously liable for, the Plaintiff, D.H., was placed in an immediate risk of physical harm. Said risk of physical harm included being sexually assaulted and/or raped through a physical battery.
25. Defendant’s conduct (through its employee/crewmember) caused the Plaintiff to endure severe suffering and emotional distress on a continuing basis.
26. The severe suffering and emotional distress caused by Defendant’s conduct (through its employee/crewmember) caused the Plaintiff emotional injuries and/or damages which have also resulted in physical manifestations, such as sickness, nausea, exhaustion, fatigue, headaches, insomnia, lack of sleep, poor sleep and/or nightmares.
27. As a direct and proximate result of the intentional infliction of emotional distress by Defendant (through its employee/crewmember), the Plaintiff, D.H., was injured about her body and extremities, suffered physical pain and suffering, mental anguish, loss of enjoyment of life, physical disability, impairment, inconvenience in the normal pursuits and pleasures of life, feelings of economic insecurity caused by disability, disfigurement, aggravation of any previously existing conditions therefrom, incurred medical expenses in the care and treatment of her injuries including psychiatric care, suffered physical handicap, lost wages, income lost in the past, and her working ability and earning capacity has been impaired. The injuries and damages are permanent or continuing in nature, and Plaintiff will suffer the losses and impairments in the future.

WHEREFORE, the Plaintiff demands judgment for all damages recoverable under the law against the Defendant, including punitive damages, and demands jury trial of all issues so triable.

COUNT V – NEGLIGENT INFLICTION OF EMOTIONAL

DISTRESS OF R.H. AND T.H.

Plaintiff realleges, incorporates by reference, and adopts her allegations set forth in paragraphs one through eleven (11) as though alleged originally herein.

28. At all times material hereto, due to the negligent and/or intentional conduct of the Defendant, minors H. and T.H. were in the zone of danger and placed in an immediate risk of physical harm, including being physically abused, sexually assaulted and/or raped through a physical battery.
29. Defendant’s negligent and/or intentional conduct caused severe mental and/or emotional harm and/or distress in minors H. and T.H., including fear and anxiety. These emotional injuries and/or damages have also resulted in physical manifestations, such as sickness, nausea, exhaustion, fatigue, headaches, insomnia, lack of sleep, poor sleep and/or nightmares.
30. As a direct and proximate result of the negligent infliction of emotional distress by Defendant, minors H. and T.H. were injured about their body and extremities, suffered physical pain and suffering, mental anguish, loss of enjoyment of life, physical disability, impairment, inconvenience in the normal pursuits and pleasures of life, feelings of economic insecurity caused by disability, disfigurement, aggravation of any previously existing conditions therefrom, incurred medical expenses in the care and treatment of their injuries including psychiatric care, suffered physical handicap, lost wages, income lost in the past, and their working ability and earning capacity have been impaired. The injuries and damages are permanent or continuing in nature, and they will suffer the losses and impairments in the future.

WHEREFORE, the Plaintiff demands judgment for all damages recoverable under the law against the Defendant, including punitive damages, and demands jury trial of all issues so triable.

COUNT VI – INTENTIONAL INFLICTION OF EMOTIONAL

DISTRESS OF R.H. AND T.H.

Plaintiff realleges, incorporates by reference, and adopts her allegations set forth in paragraphs one through eleven (11) as though alleged originally herein.

31. At all times material hereto, due to the intentional conduct of the Defendant’s employee / crewmember for which the Defendant is vicariously liable for, minors H. and T.H. were in the zone of danger and placed in an immediate risk of physical harm, including being physically abused, sexually assaulted and/or raped through a physical battery.
32. Defendant’s conduct (through its employee/crewmember) caused minors H. and T.H. to endure severe suffering and emotional distress on a continuing basis.
33. The severe suffering and emotional distress caused by Defendant’s conduct (through its employee/crewmember) caused minors H. and T.H. emotional injuries and/or damages which have also resulted in physical manifestations, such as sickness, nausea, exhaustion, fatigue, headaches, insomnia, lack of sleep, poor sleep and/or nightmares.
34. As a direct and proximate result of the intentional infliction of emotional distress by Defendant (through its employee/crewmember), minors H. and T.H. were injured about their body and extremities, suffered physical pain and suffering, mental anguish, loss of enjoyment of life, physical disability, impairment, inconvenience in the normal pursuits and pleasures of life, feelings of economic insecurity caused by disability, disfigurement, aggravation of any previously existing conditions therefrom, incurred medical expenses in the care and treatment of their injuries including psychiatric care, suffered physical handicap, lost wages, income lost in the past, and their working ability and earning capacity have been impaired. The injuries and damages are permanent or continuing in nature, and they will suffer the losses and impairments in the future.

WHEREFORE, the Plaintiff demands judgment for all damages recoverable under the law against the Defendant, including punitive damages, and demands jury trial of all issues so triable.

Respectfully submitted,
LIPCON, MARGULIES,
ALSINA & WINKLEMAN, P.A.
Attorneys for Plaintiff
One Biscayne Tower, Suite 1776
2 South Biscayne Boulevard
Miami, Florida 33131
Telephone No.: (305) 373-3016
Facsimile No.: (305) 373-6204

By:   /s/ Jason R. Margulies
JASON R. MARGULIES
Florida Bar No. 57916
JACQUELINE GARCELL
Florida Bar No. 104358