January 12, 2012

Heather Morris v. Royal Caribbean Cruises, Ltd.

Response to Motion to Dismiss

In this case, a passenger on Royal Caribbean’s Oasis of the Seas was injured while using the vessel’s Flow Rider attraction. This surfing simulator had been modified in order to fit on Royal Caribbean’s ship. The Plaintiff contends that this modification made the Flow Rider inherently dangerous, leading directly to her injury. Plaintiff brought a claim based on negligence and a strict products liability action. The Defendant moved to dismiss the Plaintiff’s strict products liability action, arguing that such a claim was not cognizable under general maritime law. In this response the Plaintiff answers those claims and demonstrates to the Court that in the present case, Royal Caribbean was not just the provider of a cruise, but also the manufacturer of a product and could thus be held liable under a theory of strict products liability for the deficiencies of that product.

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
MIAMI DIVISION
CASE NO. 11-23206-CIV-GRAHAM /GOODMAN
HEATHER MORRIS,
Plaintiff,

vs.

ROYAL CARIBBEAN CRUISES LTD.,
Defendants.
__________________________________________/

PLAINTIFF’S RESPONSE IN OPPOSITION TO DEFENDANT’S MOTION TO DISMISS

COMES NOW, Plaintiff, Heather Morris, by and through undersigned counsel, and hereby files her Response in Opposition to Defendant, Royal Caribbean Cruises Ltd. (hereinafter “RCCL”), Motion to Dismiss Count II of Plaintiff’s Amended Complaint [D.E. 11]. In support thereof, Plaintiff alleges as follows:

I. Background.[1]

This case arises out of severe injuries sustained by Plaintiff while on a Royal Caribbean Cruise. On or about September 12 2010, Plaintiff traveled as a paying passenger aboard Defendant’s vessel the Oasis of the Seas. [D.E. 7, 7]. On said date, the Plaintiff participated in an attraction onboard the Oasis of the Seas called the FlowRider Surfing Simulator (hereinafter “FlowRider”). Id., at 8.

The FlowRider is an attraction that shoots a thin sheet of water up a sloped surface at a high velocity to simulate the surface of a wave. Users then attempt to ride this sheet of water on board either laying down or standing up. Id., at 9.

The FlowRider on board the Oasis of the Seas is different from a standard FlowRider, because employees and/or agents of RCCL modified it by shortening its overall length in order to fit the attraction on the deck of the cruise ship. Id., 10.

Due to this shorter length, a person propelled up the surface of the “wave” can be thrown into the back wall at a very high velocity, since unlike a standard flow rider, the back wall of the attraction is much closer to the “wave” front. This makes an already inherently dangerous attraction even more dangerous, such that it becomes unreasonably dangerous. This is not an obvious danger of which a passenger should be aware. Id., 11.

Due to the inherently and unreasonably dangerous nature of the FlowRider, participants require instruction in its use before they can attempt to safely ride the attraction. Id., 12.

Participants are supposed to get on the attraction by stepping on their board or laying down on their board from the top of the attraction. By doing so, the participants own downward momentum on the face of the wave, works against the flow of water to prevent the participant from being shot up off the top of the wave and into the rear wall. Id., 13.

Plaintiff’s instructors, employees and/or agents of RCCL, instructed and encouraged Plaintiff to ride the FlowRider in a non-traditional and dangerous manner, by jumping onto the attraction at its front end. The front of the attraction is the lowest point of the FlowRider, and the exact location of the jets which propel water up the rides sloped surface. For this reason, the thin sheet of water is traveling at its fastest at this location on the ride. Id., 14.

At all relevant times, Plaintiff’s instructors, employees and/or agents of RCCL, provided no guidance to Plaintiff on how to safely ride the FlowRider in this non-traditional and dangerous manner. Id., 15.

When Plaintiff stepped onto the FlowRider, as encouraged by her instructors, RCCL employees and/or agents, she was violently knocked off of her feet by the excessive force of the water coming from the jets in front of her. Without her downward momentum to prevent her being shot backwards at excessive speed, Plaintiff was jettisoned rearward upon her fall. She was shot up the face of the “wave”, over its crest, and into the closer back wall of the modified FlowRider. Id., 16.

RCCL employees and/or agents, which were supposed to be supervising the FlowRider, attempted to move Plaintiff by her arms, despite the Plaintiff being immobilized with pain and pleading for these employees and/or agents not to move her. Id., 17. As a result of the foregoing, Plaintiff suffered two separate fractures to her lower leg and ankle which ultimately required surgery, leaving her permanently impaired. Id., 18.

On December 5, 2011, Plaintiff filed her Amended Complaint Against RCCL [D.E. 7], bringing claims against Defendant RCCL on grounds of: Negligence (Count I); and Products Liability (Count II).

On December 27, 2011, Defendant RCCL filed a Motion to Dismiss, pursuant to Federal Rule of Civil Procedure 12(b)(6) (“the Motion”). In the Motion [D.E. 11], Royal Caribbean only challenges Count II of the Amended Complaint (Products Liability). Count II is therefore the only claim at issue here. [2]

As set forth in detail below, RCCL’s Motion to Dismiss should be denied.

II. Standard of Review.

When ruling on a motion to dismiss, the Court must accept as true all of the factual allegations contained in the complaint. Erickson v. Pardus, 551 U.S. 89 (2007). In Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007),the Court reaffirmed the “notice pleading” principle codified in Federal Rule of Civil Procedure 8, asserting that a complaint must offer more than a formulaic recitation of the elements of a cause of action. Three weeks after issuing Twombly, the Supreme Court put its decision in context with its ruling in Erickson v. Pardus, 551 U.S. 89 (2007). Quoting Twombly and Conley v. Gibson, 355 U.S. 41 (1957), the Supreme Court in Erickson held:

Federal Rule of Civil Procedure 8(a)(2) requires only “a short and plain statement of the claim showing that a pleader is entitled to relief.” Specific facts are not necessary; the statement need only “give the defendant fair notice of what the&claim is and the grounds upon which it rests.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41 (1957)). In addition, when ruling on a defendant’s motion to dismiss, a judge must accept as true all of the factual allegations in the complaint. Bell Atlantic Corp. Supra., at 555-556.

Id., at 93-94. (emphasis added) (Other internal citations omitted).

All in all, as this Honorable Court recently explained in the matter of Rocha v. Carnival Corporation, Case No: 10-22799-CV-LENARD/TURNOFF (S.D. Fla. 2011) [D.E. 26] even after Twombly, “it remains black-letter law today that in the ordinary case a complaint need not provide detailed factual allegations in order to withstand 12(b)(6) scrutiny.” “Twombly neither eliminated nor marginalized the liberal pleading rules.” Id., at 3-4, citing Caytrans BBC, LLC v. Equipment Rental & Contractors Corp., 2009 WL857554, at *2 (S.D. Ala. Mar. 25, 2009) and Wilchombe v. TeeVee Toons, Inc., 555 F. 3d 949, 958 (11th Cir. 2009).

III. Plaintiff properly pled the elements – supported by sufficient allegations – against Royal Caribbean in support of her claim for strict products liability (Count II).

A. Pursuant to binding Supreme Court precedent, strict products liability is a viable cause of action in admiralty cases.

In East River Steamship Corp. v. Transamerica Delaval, Inc., 476 U.S. 858 (1986), the Supreme Court recognized that the law of products liability, including negligence and strict liability (as alleged in Count II here), is part of the general maritime law. See East River Steamship, at 865 – 866:

The Courts of Appeals sitting in admiralty overwhelmingly have adopted concepts of products liability . based &on strict liability. Indeed, the Court of Appeals for the Third Circuit previously had stated that the question of whether principles of strict products liability are part of maritime law “is no longer seriously contested.”

We join the Courts of Appeals in recognizing products liability, including strict liability, as part of the general maritime law. This Court’s precedents relating to injuries of maritime workers have long pointed in that direction &The Court’s rationale in those cases – that strict liability should be imposed on the party best able to protect persons from hazardous equipment – is equally applicable when the claims are based on products liability. And to the extent that products actions are based on negligence, they are grounded on principles already incorporated into the general maritime law. See Kemarec v. Compagnie Generale Transatlantique, 358 U.S. at 632.

Id. (emphasis added) (other internal citations omitted).

Products liability grew out of a public policy judgment that people need more protection from dangerous products.Id., at 866. The applicable substantive law of products liability in admiralty is Section 402a of the Restatement (Second) of Torts (1965), which requires that the plaintiff show: (1) the product was defective – that is, unreasonably dangerous in normal use; (2) the product was in normal use at the time the injury occurred; (3) the defect caused the injury. Id.

A product can be unreasonably dangerous, if it was negligently or defectively designed. See Jig the Third Corp. v. Puritan Marine Ins. Underwriters Corp., 519 F. 2d 171 (5th Cir. 1975); Moser v. Texas Trailer Corp., 623 F. 2d 1006 (5th Cir. 1980).

Liability is imposed both upon sellers and manufacturers who negligently fail to warn of a defect or design or construction where the existence of the defect of the product is known and the manufacturer or seller, by exercising reasonable diligence, could have made such warnings available to the user or consumer. Jones v. Bender Welding & Machine Works, Inc., v. S.S. “Torinita,” 581 F. 2d 1331 (9th Cir. 1978); Miller Industries v. Caterpillar Tractor Co., 733 F. 2d 813 (11th Cir. 1984).

Finally, the plaintiff in a products liability case must also prove that the defective or dangerous condition caused the injury. Proximate causation will be determined by a finding of whether or not the defect or dangerous condition was a substantial factor in the resulting harm. Harrison v. Flota Mercante Gran-colombiana, S.A., 577 F. 2d 968 (5th Cir. 1978).

b. Defendant RCCL is wearing two hats. One involves RCCL as the ship-owner/operator of the vessel. The other involves RCCL as the manufacturer of the modified FlowRider on board the Oasis of the Seas. In its capacity as manufacturer, RCCL is responsible to Plaintiff, under a theory of strict products liability.

In it’s Motion to Dismiss [D.E. 11], Defendant argues that “while product liability is applicable in admiralty to manufacturers and sellers &there is no authority for the position that strict liability for defective products extends to the owner or operator of a vessel.” Id., at p. 4.

Defendant misses the point. Here, in Count I, Plaintiff is suing RCCL in its capacity as ship-owner/operator of the Oasis of the Seas on grounds of Negligence.[3] In Count II (Strict Products Liability), however, Plaintiff is suing RCCL in its capacity as the manufacturer of the modified FlowRider on board its ship. Thus, because Count II is only directed at RCCL “the manufacturer,” and not RCCL “the Owner/Operator of the vessel;” Defendant’s arguments are inapposite.[4]

In fact, the scope of persons subject to liability in a maritime strict products liability case is very broad, including all sorts of manufacturers. Miller Industries v. Caterpillar Tractor Co., 733 F. 2d 813 (11th Cir. 1984). The term “manufacturer” is thus broadly construed, and can include the manufacturer of component facts of a vessel. See Hubschman v. Antilles Airboats, Inc., 440 F. Supp. 828 (D. Vi. 1977); Boncich v. M.P. Howlet, Inc., 421 F. Supp. 1300 (E.D.N.Y 1976).

In the Amended Complaint, Plaintiff specifically alleged that RCCL manufactured the modified FlowRider (a component part of the Oasis of the Seas), alleging, in part:

Defendant RCL was a manufacturer, designer, distributor, and/or was otherwise within the chain of distribution of the FlowRider product, having put the FlowRider on which the Plaintiff was injured into the channels of trade.

At all times material hereto, Defendant RCL manufactured, designed, installed, and/or utilized the FlowRider on the Oasis of the Seas, and as such owed a duty to its passengers, and in particular to the plaintiff, to design the “FlowRider” without any defects.

At all times material hereto, Defendant RCL, through its agents and/or employees who were acting in the course and scope of their employment and/or agency with the Defendant, designed, installed, and utilized the FlowRider with two back steps at the top of each side of the sloped platform against which passengers would be propelled after a fall. These steps are much closer to the top of the wave than they are on a standard FlowRider, which is/was an unreasonably and inherently dangerous design and a foreseeable risk of serious injury, thus it breach its duty of care to the Plaintiff.

Therefore, taking these allegations as true, because RCCL manufactured a modified FlowRider (unique and different to other FlowRiders) to fit in the deck of the Oasis of the Seas; RCCL qualifies as a “manufacturer of a component of a vessel” subject to liability in a strict products liability case.

c. Plaintiff pled sufficient facts in support of her strict products liability claim to notify RCCL of her claim and the grounds upon which it rests.

As set forth above, in order to pled the elements of strict products liability, a Plaintiff must show: (1) the product was defective and unreasonably dangerous; (2) the Defendant failed to warn Plaintiff of the defect or design; (3) Defendant knew or had a reason to know about the defective condition; and (4) the defect caused the injury.

First, Plaintiff made sufficient factual allegations to show that the product was defective and unreasonably dangerous:

Second, Plaintiff made sufficient factual allegations to show that the Defendant had a duty to warn Plaintiff of the defect or design and in fact failed to warn the Plaintiff:

HEATHER MORRIS’ instructors, employees and/or agents of RCL, provided no guidance to Plaintiff on how to safely ride the FlowRider in this non-traditional and dangerous manner.

Since passengers would not be aware of the dangers involved, RCL had a duty to warn passengers participating in the FlowRider attraction that the attraction was likely to be dangerous.

Third, Plaintiff made sufficient factual allegations to show that the Defendant knew or had a reason to know about the defective condition:

At all times material hereto, Defendant RCL, knew or had reason to know that the FlowRider was unreasonably dangerous. RCL knew or had reason to know that the FlowRider was unreasonably and inherently dangerous because prior incidents like the one described herein have occurred on their vessels.

And, finally, Plaintiff made sufficient factual allegations to show that the defect caused the injury:

The design flaw and lack of warnings which made the FlowRider onboard the Oasis of the Seas inherently and unreasonably dangerous was the direct and proximate cause of Plaintiff’s injuries.

In sum: Plaintiff has succinctly pled sufficient facts in support of the elements of strict products liability (Count II). Plaintiff’s allegations have therefore notified RCCL of her claim and the grounds upon which it rests.Erickson v. Pardus, 551 U.S. 89 (2007).

WHEREFORE, Plaintiff respectfully request that this Honorable Court enter an Order denying RCCL’s Motion to Dismiss. Alternatively, in the event this Honorable Court grants RCCL’s Motion to Dismiss, or any part thereof, Plaintiff respectfully moves this court for leave to file an Amended Complaint.

[1] Since these facts are referenced in the Complaint, the Court must accept them as true. Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007).

[2] In its Motion to Dismiss, RCCL did not challenge Count I of the Complaint (Negligence).

[3] Count I is not challenged by RCCL in its Motion to Dismiss.

[4] Defendant’s cases are also inapposite. Defendant relies on these cases for the proposition that strict liability does not apply to owner/operators of cruise lines. However, these cases dealt with circumstances in which the cruise line was being sued as a ship-owner/operator, not (as here) as the manufacturer of the dangerous instrumentality.

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