district court docket no.: 11-cv-21890-dlg ceferino perez ...case no.: 11-14047 district court...

CASE NO.: 11-14047District Court Docket No.: 11-cv-21890-DLG

UNITED STATES COURT OF APPEALSELEVENTH CIRCUIT

__________________________________________________________________

CEFERINO PEREZ and AIDA ESTHERCHAPARRO, as the personal representatives

of the estate of LIZ MARIE PEREZ CHAPARRO; CEFERINO PEREZ and AIDA ESTHER,

CHAPARRO, individually; and AMILKARPEREZ CHAPARRO, individually,

Plaintiffs/Appellants,

vs.

CARNIVAL CORPORATION, d/b/aCARNIVAL CRUISE LINES,

Defendant/Appellee.__________________________________________________________________

APPEAL TAKEN FROMUNITED STATES DISTRICT COURTSOUTHERN DISTRICT OF FLORIDA

__________________________________________________________________

APPELLANTS’ INITIAL BRIEF__________________________________________________________________

PHILIP D. PARRISH, P.A.7301 SW 57 Court, Suite 430th

Miami, FL 33143Tel: (305) 670-5550Fax: (305) 670-5552

Case: 11-14047 Date Filed: 01/30/2012 Page: 1 of 31

On Point NewsOn Point News

http://www.onpointnews.com


CERTIFICATE OF INTERESTED PERSONSAND CORPORATE DISCLOSURE STATEMENT

Undersigned counsel for Appellants certifies that the following is a complete

list of persons and entities who have an interest in the outcome of this case:

TRIAL JUDGE

Judge Donald L. Graham

Magistrate Judge Jonathan Goodman

ATTORNEYS

Jonathan Bruce Aronson, Esq., Attorney for Plaintiff

Aronson Law Firm, Attorneys for Plaintiff

Lauren D. DeFabio, Esq., Attorney for Defendant

Curtis J. Mase, Esq., Attorney for Defendant

Mase Lara Eversole, P.A., Attorneys for Defendant

Philip D. Parrish, Esq., Attorney for Appellant

Philip D. Parrish, P.A., Attorneys for Appellant

Valentina M. Tejera, Esq., Attorney for Defendant

James M. Walker, Esq., Attorney for Plaintiff

Walker & O’Neill, P.A., Attorneys for Plaintiff

C 1 of 2





PARTIES

Carnival Corporation (CCL), Defendant/Appellee

Carnival Cruise Lines, Inc., Defendant/Appellee

Aida Esther Chaparro, Plaintiff/Appellant

Amikar Perez Chaparro, Plaintiff/Appellant

Ceferino Perez, Plaintiff/Appellant

________________________Philip D. Parrish, Esq.FBN: 541877

C 2 of 2





i

STATEMENT REGARDING ORAL ARGUMENT

Oral argument is warranted in this case because the district court’s order

misapplied the Iqbal/Twombly pleading standard by mischaracterizing factual

allegations as legal conclusions.

CERTIFICATE OF TYPE SIZE AND FONT

Undersigned counsel certifies that the size and style of type used in this brief

is 14-point Times New Roman.





ii

TABLE OF CONTENTS

CERTIFICATE OF INTERESTED PERSONSAND CORPORATE DISCLOSURE STATEMENT.. . . . . . . . . . . . . . . . . . 2

STATEMENT REGARDING ORAL ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . i

CERTIFICATE OF TYPE SIZE AND FONT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . i

TABLE OF CONTENTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii

TABLE OF AUTHORITIES.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iv

STATEMENT OF JURISDICTION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

STATEMENT OF ISSUES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

STATEMENT OF THE CASE AND FACTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

STANDARD OF REVIEW.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

SUMMARY OF THE ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

ARGUMENT.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

I. THE COMPLAINT STATES A VALID CLAIM AGAINST CARNIVAL FORFAILURE TO WARN.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

II. PLAINTIFFS’ COMPLAINT ALLEGES A CAUSE OF ACTION FORNEGLIGENT INFLICTION OF EMOTIONAL DISTRESS ON BEHALF OFTHE PLAINTIFFS, WHO WERE RIDING IN THE SAME OPEN AIRVEHICLE AND WERE CAUGHT IN THE SAME CROSSFIRE WHICHKILLED LIZ MARIE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

CONCLUSION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21





iii

CERTIFICATE OF COMPLIANCE.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

CERTIFICATE OF SERVICE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

SERVICE LIST. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22





iv

TABLE OF AUTHORITIES

American Dental Association v. Cigna Corp., 605 F.3d 1283 (11 Cir. 2010). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .th 7

Ashcroft v. Iqbal, ___ U.S. ___, 129 S.Ct. 1937173 L.Ed.2d 868 (2009). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . i, 1, 5, 8, 9, 13

Belik v. Carlson Travel Group, Inc., 2011 WL 2221224 (S.D. Fla. June 6, 2011). . . . . . . . . . . . . . . . . . . . 7, 10, 11

Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . i, 1, 4, 5, 8-10, 13

Brooks v. Blue Cross and Blue Shield of Florida, Inc., 116 F.3d 1364 (11 Cir. 1997). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .th 10

Bullock v. Tamiami Trail Tours, Inc., 266 F.2d 326 (5 Cir. 1959). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .th 18

Cain v. Vondz, 703 F.2d 1279 (11 Cir. 1983). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .th 18

Carlisle v. Ulysses Line Ltd., 475 So.2d 248 (Fla. 3d DCA 1985). . . . . . . . . . . . . . . . . . . . . . . . 4-7, 11-19

Christman v. Holmes, 2011 WL 3823136 (11 Cir. 2011).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .th 9

Consol. Rail Corp. v. Gottshall, 512 U.S. 532, 114 S.Ct. 2396, 129 L.Ed.2d 427 (1994). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

Doe v. Celebrity Cruises, Inc., 394 F.3d 891 (11 Cir. 2011). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .th 12, 13

Evans v. St. Lucie County Jail,





v

2011 WL 6156831 (11 Cir. 2011).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .th 9

Gillmor v. Caribbean Cruise Line, Ltd., 789 F. Supp. 488 (D.P.R. 1992). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12, 17

Goldbach v. NCL (Bahamas) Ltd., 2006 WL 3780705 (S.D. Fla. 2006). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

Hercules, Inc. v. Stevens Shipping Co., 765 F.2d 1069 (11 Cir. 1985). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .th 18

Isbell v. Carnival Corp., 462 F.Supp.2d 1232 (S.D. Fla. 2006). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

John Morrell & Co. v. Royal Caribbean Cruises, Ltd., 534 F.Supp.2d 1345 (S.D. Fla. 2008). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

Joseph v. Carnival Corp., 2011 WL 3022555 (S.D. Fla. 2011). . . . . . . . . . . . . . . . . . . . . . . . . . 6, 15, 16

Kermarec v. Compagnie Generale Traansatlantique, 358 U.S. 625 (1959) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

Kibwika v. Broward County Sheriff’s Office, 2012 WL 45429 (11 Cir. 2012).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .th 9

Koens v. Royal Caribbean Cruise, Ltd., 774 F.Supp.2d 1215 (S.D. Fla. March 25, 2011). . . . . . . . . . . . . . . . 6, 13, 14

Lawlor v. Incres Nassau Steamship Line, 154 F. Supp. 764 (D. Mass. 1958). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

Mamani v. Berzain, 654 F.3d 1148 (11 Cir. 2011). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .th 9

Martinez v. Ashtin Leasing, Inc., 417 Fed.Appx. 883 (11 Cir. 2011). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .th 9





vi

Matrixx Initiatives, Inc. v. Siracusano, ___U.S.___, 131 S.Ct. 1309 (2011). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

Shanks v. Potter, 2011 WL 6004022 (11 Cir. 2011).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .th 9

Smith v. Carnival Corp., 584 F.Supp.2d 1343 (S.D. Fla. 2008). . . . . . . . . . . . . . . . . . . . . . . . . . . 19, 21

Smolnikar v. Royal Caribbean Cruises, Ltd., 2011 WL 2066768 (S.D. Fla 2011). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

Sullivan v. Ajax Navigation Corp., 881 F.Supp. 906 (S.D.N.Y. 1995).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

Watts v. Fla. Int’l Univ.,495 F.3d 1289 (11 Cir. 2007). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .th 9

Werndli v. Greyhound Lines, Inc., 412 So.2d 384 (Fla. 2d DCA 1982). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

Wilkerson v. HNS, Inc., 438 Fed.Appx. 769 (11 Cir. 2011). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .th 9

Zivojinovich v. Barner, 525 F.3d 1059 (11 Cir. 2008). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .th 10

Other Authorities

28 USC §1291. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

Restatement (Second) of Torts Section 448 (1965).. . . . . . . . . . . . . . . . . . . . . . . . 18





1

STATEMENT OF JURISDICTION

The orders granted the Appellee Carnival Cruise Lines’ Motion to Dismiss

Plaintiffs’ Complaint (DE 27) and thereafter dismissed the case (DE 28).

Accordingly, this Court has final order jurisdiction pursuant to 28 USC §1291.

STATEMENT OF ISSUES

1. Whether the District Court erred as a matter of law when it dismissed the

Plaintiffs’ submitted Complaint under the Iqbal/Twombly pleading standard, and

mischaracterized the numerous and specific factual allegations in the Plaintiffs’

Complaint as mere legal conclusions?

STATEMENT OF THE CASE AND FACTS

This case involves the tragic and preventable death of a fifteen-year-old girl,

Liz Marie Perez Chaparro, who was cruising aboard the Defendant’s vessel with her

brother and parents in celebration of her quinceñera. Liz Marie was shot and died in

her father’s arms because Defendant Carnival Cruise Lines failed to discharge its duty

of reasonable care to warn its passengers (including the Chaparro family) of dangers

which it knew or should have known existed in a place where the Chaparros were not

only expected to visit, but were directed by Carnival. The specific area was Coki

Beach and Coki Point, an area of St. Thomas which Carnival knew had been the site

of numerous recent gang related and other criminal activities.





2

The Allegations in the Complaint

The Complaint alleges that Ceferino Perez and Aida Esther Chaparro are

husband and wife and are the natural parents of their deceased daughter, Liz Marie

Perez Chaparro. (DE 1 ¶2). Amilkar Perez Chaparro is the brother of the deceased.

(DE 1 ¶4). The Plaintiffs were passengers aboard the M/V Victory for a seven day

Caribbean cruise. (DE 1 ¶12). The first night of the cruise, Mr. Perez and his son

were attending a party on the top deck of the ship when a male employee who was

serving drinks described Coki Beach and Coral World to Plaintiff and highly

recommended that he and his family visit those attractions. (DE 1 ¶19).

The Complaint also alleges that Carnival employs many crew members and

shoreside employees in its Miami headquarters who are responsible for issues of

passenger safety, and directly involves itself in all incidents when its passengers are

reported to be victims of crime either onboard Defendant’s ships or at ports-of-call.

(DE 1 ¶7). Carnival “monitors crime rates throughout the Caribbean and Mexico,”

through its cruise ship employees and employees at its Miami headquarters, as well

as its network of port agents, (DE 1 ¶28).

The Complaint also sets forth numerous Virgin Islands crime statistics for

2009-2010. For instance, in 2009, the murder rate in the Virgin Islands was at an all

time record of 56 homicides per 100,000 people, or approximately 10 times the





3

national average for the United States. (DE 1 ¶29). As of July 2010, when the

Plaintiffs’ Decedent was murdered, the Virgin Islands already had 43 homicides in

that territory containing slightly in excess of 100,000 people. (DE 1 ¶30). The

average murder per 100,000 people in the United States is five. (DE 1 ¶30).

In response to the rising crime rate, the Virgin Islands officials convened a

meeting of the Committee on Public Safety, Homeland Security and Justice to discuss

violent crimes in April of 2010, just a few months before Liz Marie was murdered in

St. Thomas. (DE 1 ¶33). The Attorney General of the Virgin Islands was quoted in

the local newspaper acknowledging that “innocent persons can get killed in the

crossfire of the many revenge killings that are going on in the streets of St. Thomas,

St. Croix, and St. John.” (DE 1 ¶33).

Plaintiffs further asserted that Coki Beach is a popular destination in St.

Thomas for both locals and tourists, and that a Carnival employee specifically

recommended Coki Beach and Coral World (located adjacent to Coki Beach), to

which Carnival sold excursions to its passengers such as the Plaintiffs, as a safe

destination. (DE 1 ¶18-19).

The Complaint also alleged that Coki Beach/Coki Point is well known as a

location for drug sales, thefts, and gang violence, and that there had been numerous

reported violent crimes in the vicinity of Coki Beach/Coki Point, of which Carnival





4

was well aware. (DE 1 ¶20; 16). The Complaint alleges that Carnival failed to warn

Plaintiffs that the Coki Beach area was a particularly dangerous area (DE 1 ¶45). The

Complaint asserts factually that while riding in an open air bus while leaving Coki

Beach, the Plaintiffs’ Decedent Liz Marie Perez Chaparro was shot and killed in the

crossfire of a gang related shooting. (DE 1 ¶21).

The Complaint contains allegations of varying factual specificity. There are

a number of general allegations which address the rampant violent crime that was

well publicized in St. Thomas for the period leading up to this incident. (DE 1 ¶¶31-

34). Second, there are more specific allegations of violent crime at or near Coki

Point/Coki Beach, which are the specific locations which the Plaintiffs allege they

should have been warned not to go near, in accordance with Carlisle. (DE 1

¶¶20;38). Finally, there are even more specific allegations concerning precisely how

and where the shooting occurred, when the open air bus in which the Chaparro family

was traveling past the funeral of a murdered gang member. (DE 1 ¶¶21-25). These

latter allegations were intended to provide some “meat” to the “bones” of the

elements of the cause of action, in accordance with the teachings of Bell Atlantic

Corp. v. Twombly, 550 U.S. 544 (2007). They were not necessarily intended to be

allegations that Carnival should have known of the specific detail of the funeral and

the traffic flow. However, discovery may have very well shown that Carnival was or





5

should have been aware of those specific matters as well.

The Complaint asserts that a warning to the Plaintiffs and any other passengers

that the area in and around Coki Beach and Coki Point was known to be dangerous,

as a place of frequent criminal activity, would have sufficed to discharge Carnival’s

duty, and would have sufficed to warn the Chaparro family not to travel to Coki

Beach, thereby saving Liz Marie Perez Chaparro’s young life. (DE 1 ¶¶45; 48). The

Complaint also alleged that Carnival’s failure to warn the Chaparros was the

proximate cause of Liz Marie’s death. (DE 1 ¶50).

Carnival filed a motion to dismiss Plaintiffs’ Complaint pursuant to Fed. R.

Civ. P. 12(b)(6). (DE 10). Following a perfunctory discussion of the Iqbal/Twombly

standard, Carnival primarily argued that Carlisle and its progeny impermissibly

extended the Kermarec v. Compagnie Generale Traansatlantique, 358 U.S. 625, 632

(1959) standard of care owed to passengers by shipowners. (DE 10 p.5). Next,

Carnival asserted that the duty to warn in ports-of-call extends only to known dangers

in known settings. (DE 10 p.8-9). In addition, Carnival argued that it could not be

liable for the criminal acts of a third party. (DE 10 p.9). Finally, Carnival asserted

that the Plaintiffs had failed to assert a cause of action for negligent infliction of

emotional distress sufficient to survive the “zone of danger test” used in maritime

law.





6

The District Court’s Order of Dismissal

The District Court dismissed the Chaparros’ Complaint despite recognizing

that maritime law recognizes that a cruise ship owner such as Carnival owes a duty

to warn its passengers of dangers that the carrier reasonably should have known “to

exist in the particular place where the passenger is invited to, or reasonably may be

expected to visit.” (DE 27 p.3). The District Court held that, “although Plaintiffs

make every effort to fit their allegations to the standard described in Carlisle, many

of the allegations Plaintiffs rely on are legal conclusions.” (DE 27 p.4). However,

the District Court did not identify any specific factual allegation which it deemed to

constitute a legal conclusion. Instead, the District Court cited two other district court

dismissal orders in cases which are easily distinguished from the present case. See

Koens v. Royal Caribbean Cruise, Ltd., 774 F.Supp.2d 1215 (S.D. Fla. March 25,

2011), and Joseph v. Carnival Corp., 2011 WL 3022555 (S.D. Fla. 2011). (DE 27

p.4-5). Because the trial court determined that Count I of the Plaintiffs’ Complaint

failed to assert a cause of action for negligence, it found that Count II failed to assert

the predicate act of negligence for negligent infliction of emotional distress and also

dismissed Count II of the Complaint. (DE 27 p.5).

Although the District Court allowed the Plaintiffs an opportunity to amend the

complaint, the Plaintiffs elected to proceed with this appeal because their initial





7

Complaint clearly states a valid cause of action for negligence and negligent infliction

of emotional distress, and should not have been dismissed in the first instance.

STANDARD OF REVIEW

This Court reviews de novo the District Court’s grant of a motion to dismiss

for failure to state a claim, accepting the allegations in the complaint as true and

construing them in a light most favorable to the plaintiff. American Dental

Association v. Cigna Corp., 605 F.3d 1283 (11 Cir. 2010). Thus, in considering ath

motion to dismiss, a court should eliminate any legal conclusions contained in the

complaint, and then determine whether the factual allegations, which are assumed to

be true, give rise to relief. American Dental Association v. Cigna Corp., 605 F.3d

1283, 1290 (11 Cir. 2010). See also Belik v. Carlson Travel Group, Inc., 2011 WLth

2221224 (S.D. Fla. June 6, 2011).

SUMMARY OF THE ARGUMENT

It is well established in maritime law that cruise lines such as Carnival have a

duty to their passengers such as the Plaintiffs to warn them of known dangers in

known settings. Carlisle v. Ulysses Line Ltd., 475 So.2d 248, 251 (Fla. 3d DCA

1985). This duty to warn “is limited to dangers known to exist in the particular place

where the passenger is invited to, or reasonably may be expected to visit.” Id.

The Complaint in this case specifically alleges that Carnival breached the duty





8

to warn the Plaintiffs of known dangers in known settings. Specifically, it asserts that

Carnival monitors crimes in all of its ports-of-call, and that the specific area where

Liz Marie Perez Chaparro was murdered – the vicinity of Coki Beach/Coki Point in

St. Thomas, Virgin Islands – was well known to Carnival as a place of frequent

violent criminal activity. Accordingly, the District Court erred when it dismissed the

Plaintiffs’ Complaint for failure to assert a plausible cause of action under the

Iqbal/Twombly pleading standard. This Court should reverse and remand to the

District Court to allow this cause of action to proceed.

ARGUMENT

I. THE COMPLAINT STATES A VALID CLAIMAGAINST CARNIVAL FOR FAILURE TOWARN.

“To survive a motion to dismiss, a complaint must contain sufficient factual

matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’”

Matrixx Initiatives, Inc. v. Siracusano, ___U.S.___, 131 S.Ct. 1309, 1322 n.12 (2011)

(quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d

929 (2007)). See also Ashcroft v. Iqbal, ___ U.S. ___, 129 S.Ct. 1937, 1949, 173

L.Ed.2d 868 (2009).

Despite a great deal of hand wringing on the part of plaintiffs everywhere, the

standard is not that difficult to meet. As Twombly put it, the plausibility standard





See, e.g., Kibwika v. Broward County Sheriff’s Office, 2012 WL 45429 (11 Cir. 2012);1 th

Wilkerson v. HNS, Inc., 438 Fed.Appx. 769 (11 Cir. 2011); Evans v. St. Lucie County Jail, 2011th

WL 6156831 (11 Cir. 2011); Shanks v. Potter, 2011 WL 6004022 (11 Cir. 2011); Christman v.th th

Holmes, 2011 WL 3823136 (11 Cir. 2011); Martinez v. Ashtin Leasing, Inc., 417 Fed.Appx.th

883 (11 Cir. 2011).th

9

merely requires that a plaintiff allege sufficient facts to nudge his “claims across the

line from conceivable to plausible.” 550 U.S. at 570, 127 S.Ct. at 1974. A review of

this Court’s (largely unpublished) decisions which have affirmed dismissals under

this pleading standard reveals a slew of improperly pled pro se complaints,1

complicated securities actions, or attempts to assert exotic envelope-pushing causes

of action under the Alien Tort Statute, e.g., Mamani v. Berzain, 654 F.3d 1148 (11th

Cir. 2011).

Stating a plausible claim for relief merely requires pleading “factual content

that allows the court to draw the reasonable inference that a defendant is liable for the

misconduct alleged.” Id. A claim has facial plausibility when the plaintiff pleads

factual content that allows the court to draw the reasonable inference that the

defendant is liable for the misconduct alleged. Iqbal, at 1949. The rule does not

impose a probability requirement at the pleading stage, but instead simply calls for

enough facts to raise the reasonable expectation that discovery will reveal evidence

of a necessary element. Watts v. Fla. Int’l Univ.,495 F.3d 1289, 1295-96 (11 Cir.th

2007).





10

Although the pleading standard “does not require ‘detailed factual

allegations,’...it demands more than an unadorned, the-defendant-unlawfully-harmed-

me accusation.” Id. (quoting Twombly, 550 U.S. at 555). In other words, the

pleadings must contain “more than labels and conclusions, and a formulaic recitation

of the elements of the cause of action will not do.” Twombly, 550 U.S. at 555.

Nevertheless, when reviewing a motion to dismiss, a court must construe the

complaint in the light most favorable to the plaintiff and take the factual allegations

therein as true. Brooks v. Blue Cross and Blue Shield of Florida, Inc., 116 F.3d 1364,

1369 (11 Cir. 1997).th

The District Court Misapplied the Pleading Standard

To properly plead a negligence claim, a plaintiff must allege four elements: (1)

a legal duty on the defendant to protect the plaintiff from particular injuries; (2) the

defendant’s breach of that duty; (3) the plaintiff’s injury being actually and

proximately caused by the breach; and (4) the plaintiff suffering actual harm from the

injury. See Zivojinovich v. Barner, 525 F.3d 1059, 1067 (11 Cir. 2008); Belik v.th

Carlson Travel Group, Inc., 2011 WL 2221224 (S.D. Fla. 2011). The Complaint in

the present matter alleges each of these elements in a factual context that is virtually

indistinguishable from the seminal cases involving a cruise line’s duty to warn

passengers of dangers which it might encounter ashore.





Lawlor v. Incres Nassau Steamship Line, 154 F. Supp. 764 (D. Mass. 1958).2

11

The District Court’s order of dismissal properly acknowledges the holding in

Carlisle v. Ulysses Line, Ltd., S.A., 475 So. 2d 248 (Fla. 3d DCA 1985) in which the

court explained the duty which a cruiseline such as Carnival owes to its passengers

as they disembark in ports-of-call:

This duty extends throughout the length of the voyage, anddoes not cease at each port of call, only to resume when thepassenger re-embarks. See generally, Isham v. Pacific FarEast Line, Inc., 476 F. 2d 835, 837 (9 Cir. 1973) (“whereth

a passenger or cruise vessel puts into numerous ports in thecourse of the cruise, these stopovers are the sine qua nonof the cruise”); Lawlor, 161 F. Supp. at 767 (“one of theprinciple purposes of the trip is for the passengers to goashore at Caribbean ports.”)

Carlisle, 475 So. 2d at 251. Carnival’s duty is “to warn of dangers known to the2

carrier in places where the passenger is invited to, or may reasonably be expected to

visit.” Id. at 248. The Appellants properly alleged a breach of that duty which caused

them severe damage, i.e. the loss of their daughter. The Appellants alleged that

Carnival knew that its passengers, including the Appellants, could be expected to visit

Coki Beach or Coki Point as they were popular tourist destinations which were

actively promoted by Carnival itself. (DE 1 ¶¶15; 18; 19).

It is well established that cruise lines such as Carnival have an obligation to

warn of reasonably foreseeable risks that exist even beyond the gangplank. Belik v.





12

Carlson Travel Group Inc., 2011 WL 2221224 (S.D. Fla. June 6, 2011) (“Whether

or not Belik was invited by Carnival to Señor Frog’s, he alleges that Señor Frog’s is

a place Carnival passengers are expected to visit. ... the duty to warn extends to places

passengers are expected to visit.”); Smolnikar v. Royal Caribbean Cruises, Ltd., 2011

WL 2066768 (S.D. Fla 2011)(applying Carlisle); John Morrell & Co. v. Royal

Caribbean Cruises, Ltd., 534 F.Supp.2d 1345, 1350 (S.D. Fla. 2008)(same); Isbell v.

Carnival Corp., 462 F.Supp.2d 1232 (S.D. Fla. 2006)(same); Goldbach v. NCL

(Bahamas) Ltd., 2006 WL 3780705 (S.D. Fla. 2006). See also, Sullivan v. Ajax

Navigation Corp., 881 F.Supp. 906 (S.D.N.Y. 1995); Gillmor v. Caribbean Cruise

Line, Ltd., 789 F. Supp. 488, 491 (D.P.R. 1992). Moreover, this duty is not limited

to the excursions which the cruise line itself promotes; Carlisle involved a failure

to warn of dangers known to exist at a particular beach, even though there was no

specific excursion sold by the cruise line for that beach. Id. at 251.

In Doe v. Celebrity Cruises, Inc., 394 F.3d 891 (11 Cir. 2011), this Courtth

acknowledged the importance of ports-of-call to the cruising industry:

...First, the stop in Bermuda was a scheduled port-of-call,and an integral part of the on-going cruise or maritimeactivity in this case. The ports-of-call not only add to theenjoyment of the cruise but form an essential function ofthe cruise experience. In fact, on this particular cruise, fiveof the seven nights were to be spent in Bermudian ports.Plainly, individuals choose cruise ship vacations because





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they want to visit unfamiliar places ashore. Cruises toAlaska, the New England states, Bermuda or the Caribbeanoffer fundamentally different experiences, not generallybecause of any material difference between ships, but oftenbecause of where the ships are put to stop. See Isham v.Pacific Far East Line, Inc., 476 F.2d 835, 837 (9 Cir.th

1973) (“where a passenger or cruise vessel puts intonumerous ports in the course of a cruise, these stopoversare the sine qua non of the cruise.”). When a passengerselects a particular cruise, ports-of-call or stopoversprovide those passengers with the “cruise experience” forwhich they are paying. Simply put, the destination orports-of-call are frequently the main attraction.

Doe v. Celebrity Cruises, Inc., 394 F.3d 891, 901 (Fla. 2004).

The District Court acknowledged the Carlisle duty, but mistakenly ruled that

the Plaintiffs had pled mere legal conclusions. A review of the District Court’s order

suggests that the court actually decided that Carnival should not be held liable as a

matter of public policy, rather than the Plaintiffs’ failure to plead sufficient facts. For

instance, neither of the two decisions cited by the District Court focused primarily

upon the Iqbal/Twombly pleading standard. Rather, they focused upon whether the

factual scenarios of those two cases would have represented an unwarranted

expansion of Carlisle.

The Complaint in Koens v. Royal Caribbean Cruises, Ltd., 2011 774 F.Supp.2d

1215 (S.D. Fla. 2011) alleged generally that the entire port of Nassau, the capital of

the Bahamas, was dangerous. It did not allege that a specific area in the city was





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dangerous. Furthermore, there were “no allegations...that RCL knew or should have

known of dangerous conditions on either the Caribbean Segway Tour or on the

grounds of Earth Village Nature Preserve.” Id. at 1220. In Koens Judge King – and

indeed Royal Caribbean itself – acknowledged the Carlisle rule that cruise lines may

be held liable for failing to warn their passengers of known dangers ashore. Judge

King was simply not willing to extend Carlisle beyond the duty to warn of known or

knowable dangers in known settings. Id.

Here, in contrast, there are specific allegations that Carnival Cruise Lines knew

or should have known that the area in and around Coki Beach and Coki Point had

been the scene of rampant gang violence and that, therefore, this specific area in St.

Thomas was unreasonably dangerous. The Complaint does not assert that the entire

port of St. Thomas was dangerous. Here, the Complaint fits squarely within Carlisle,

and avoids the problems of the complaint in Koens, and therefore states a proper

cause of action for negligent failure to warn.

Indeed, the allegations in the present Complaint are more specific even than

those in Carlisle. There, it was alleged that “following the advice of the ship’s

activities director,” the passengers traveled a perimeter road around the island until

they discovered an isolated access road which they took down to a secluded

waterfront site known as “Yamacraw Beach.” On their return trip they were





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ambushed by three masked gunmen who opened fire on them with shotguns, shooting

them all and killing Mr. Carlisle. 475 So.2d at 249. Afterwards, the passengers

learned that “other tourists and a member of the ship’s crew had been victims of

violent acts perpetrated in various places on the island. The Bahamian police

reported that the particular beach where plaintiffs were attacked was “very bad.” Id.

(Emphasis added). Thus, the allegations in the present Complaint are even more

specific than the allegations in Carlisle, which appear to generally assert that other

passengers and members of the ship’s crew had been victims of violent acts

perpetrated in “various places on the island.”

The District Court also relied upon Joseph v. Carnival Corp., 2011 WL

3022555 (S.D. Fla. 2011) in dismissing the Plaintiffs’ action herein. That case too

is distinguishable from the present case. In Joseph, the plaintiff/decedent died while

parasailing during a stopover in Cozumel. The complaint asserted that parasailing

involves “latent dangers” which can arise when a parasailing vendor fails to take

certain precautions, such as using properly selected maintained and inspected

equipment. Id. at *1. Citing to Koens, Judge Huck dismissed the plaintiff’s claim,

after acknowledging a cruise line’s duty to warn of “dangers of which the carrier

knows, or reasonably should have known.” Id. at *2 (citing Carlisle).

In Joseph, the plaintiff simply pled that Carnival knew or should have known





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that prior deaths associated with the latent dangers of parasailing had occurred and

that some of those had occurred in and around Cozumel. Id. at *3. The Joseph

complaint asserted a very broad duty to warn passengers of the “latent dangers of

parasailing and to instruct them on how to recognize such dangers.” Id.

Nevertheless, the plaintiff failed to allege that Carnival knew or even had reason to

know of any incidents associated with the latent dangers of parasailing involving the

specific vendor engaged by the decedent in order for the plaintiff to even identify the

specific parasail vendor. Id. Nor were there any allegations of a relationship between

Carnival and the vendor. Id.

The present case is easily distinguished from Joseph. In the present case the

facts are virtually identical to Carlisle. As Judge Huck noted in Joseph, requiring a

cruise ship to warn of every conceivable “theoretical, potential problem or danger that

may be associated with all of its passengers possible shoreside activities,” paints with

too broad of a brush. Under such a theory, a cruise line “would have a duty to warn

that one may be attacked by a shark while swimming in the ocean, may drown while

snorkeling, may slip and fall in a local retail establishment, may get a stomach virus

from eating in a local restaurant, and so on.” Id. at *3 n.4.

But allegations that a cruise line has a duty to warn of such vague and

theoretical probabilities has little to do with the allegations in the Plaintiffs’





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Complaint in the present case. Here, the Complaint specifically alleges that Carnival

keeps track of crime in all of the ports-of-call which it visits; that Carnival knew and

had reason to know that the Coki Beach/Coki Point area of St. Thomas had been the

scene of significant violent criminal activity, and that the beach was also a popular

destination of its passengers. Furthermore, the Complaint alleges that a Carnival

employee specifically recommended Coki Beach to the Plaintiffs the evening before

the port stop. These factual allegations clearly assert a claim under Carlisle, because

they assert that Carnival knew about a specific danger (violent crime) in a specific

area (Coki Beach/Coki Point) where it had reason to believe its passengers would go.

Carnival Can Be Liable for the Foreseeable Criminal Acts of a Third Party

Carnival argued below that it could not be held liable for the criminal actions

of third parties. Although the District Court did not dismiss on this basis, the matter

is worth addressing here because it goes to the heart of Carnival’s duty to warn. “The

short answer to this contention is that a party may be liable in negligence for

intervening criminal acts if the acts are foreseeable.” Carlisle v. Ulysses Line, Ltd.,

475 So.2d 248, 251 (Fla 3d DCA 1985). Cruise lines are liable in negligence for third

party crimes against passengers if the cruiseline knew or should have known of the

criminal danger and failed to warn passengers. Gillmor v. Caribbean Cruise Line,

Ltd., 789 F.Supp. 488 (D.P.O. 1992). As stated by the Gillmor court, “if the pier was





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a high crime area and the vessel employee did not advise the passenger of this fact,

he breached his duty and as a result the passenger innocently went into “the mouth

of the wolf... .” Id. at 491. See also Bullock v. Tamiami Trail Tours, Inc., 266 F.2d

326 (5 Cir. 1959)(where injury to passenger by third party could have beenth

“reasonably anticipated” or “naturally expected to occur” or “reasonably foreseen,”

the carrier must protect the passenger from or warn him of, the danger); Cain v.

Vondz, 703 F.2d 1279, 1282-83 (11 Cir. 1983). See generally Restatement (Second)th

of Torts Section 448 (1965). The issue of foreseeability is ordinarily a jury question

where there is sufficient evidence of foreseeability to preclude a determination of the

issue as a matter of law. Bullock; Carlisle v. Ulysses Line, Ltd., S.A., 475 So.2d 248,

251 (Fla. 3d DCA 1985); Werndli v. Greyhound Lines, Inc., 412 So.2d 384 (Fla. 2d

DCA 1982)(an action by bus passenger against carrier in bus terminal sublessee for

injuries sustained in an attack by third party near dark in the, closed, and locked

terminal, evidence was sufficient to create jury question as to whether criminal attack

on passenger was reasonably foreseeable). Furthermore, the doctrine of intervening

negligence has historically been disfavored by admiralty courts. Hercules, Inc. v.

Stevens Shipping Co., 765 F.2d 1069, 1075 (11 Cir. 1985).th

Carnival need not be omniscient to be on notice of the numerous violent crimes

committed at or near Coki Beach and Coki Point, and issue a warning to its





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passengers. Indeed, the Attorney General of the Virgin Islands himself predicted that

an innocent bystander would soon be murdered in a crossfire. (DE 1 ¶33). The

incident here is actually more foreseeable than was the incident in Carlisle.

II. PLAINTIFFS’ COMPLAINT ALLEGES ACAUSE OF ACTION FOR NEGLIGENTINFLICTION OF EMOTIONAL DISTRESS ONBEHALF OF THE PLAINTIFFS, WHO WERERIDING IN THE SAME OPEN AIR VEHICLEAND WERE CAUGHT IN THE SAMECROSSFIRE WHICH KILLED LIZ MARIE.

The District Court did not rule on the substance of this claim. Rather, it

dismissed this claim because it dismissed the Plaintiffs’ Count I, which alleged the

necessary predicate act of negligence upon which this Count was based. In Smith v.

Carnival Corp., 584 F.Supp.2d 1343 (S.D. Fla. 2008), the court adopted the “zone of

danger” test, in conformity with Consol. Rail Corp. v. Gottshall, 512 U.S. 532, 114

S.Ct. 2396, 129 L.Ed.2d 427 (1994).

Under the zone of danger test plaintiffs may recover for emotional injury under

two scenarios: (1) when the plaintiffs sustain a physical impact as the result of

defendant’s negligent conduct; or (2) when the plaintiffs are placed in the immediate

risk of physical harm by that conduct. Smith, 584 F.Supp.2d at 1354; Gottshall, 512

U.S. at 547-48.

Here, the allegations in the Complaint clearly establish that all of the Plaintiffs





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were placed in immediate risk of physical harm. Specifically, the Complaint alleges:

61. LIZ MARIE PEREZ CHAPARRO was shot in theside while traveling near Coki Beach. The open air busthat Plaintiffs were traveling in became stuck in a trafficjam caused by people attending the funeral of a slain gangmember.

62. When the shooting started passengers on the bus,including Plaintiffs, dove to the floor of the bus. The buswas sprayed with bullets. Plaintiffs were in fear for theirlives during the shooting.

63. LIZ MARIE PEREZ CHAPARRO cried out to herfather, CEFERINO PEREZ, that she had been hit. Hesaw that she had a gun shot wound in her lower abdomen.

64. Passengers on the bus called for an ambulance. Whenthe ambulance did not arrive, the bus driver beganspeeding to the hospital.

65. CEFERINO PEREZ began performing CPR on LIZMARIE PEREZ CHAPARRO. AMILKAR PEREZCHAPARRO and other passengers on the bus held on toCEFERINO PEREZ and LIZ MARIE PEREZCHAPARRO to keep them from being thrown from thespeeding bus.

66. CEFERINO PEREZ performed CPR on his daughterall the way to the hospital but LIZ MARIE PEREZCHAPARRO was declared dead shortly after arriving atthe hospital.

(DE 1 ¶61-66).

Thus, the Plaintiffs adequately alleged that they were within the zone of





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danger. By comparison, the surviving daughters in Smith were merely bystanders to

their mother’s drowning, and were never in danger. Accordingly, the Complaint

states a valid cause of action for negligent infliction of emotional distress, and the

District Court erred when it dismissed Count II.

CONCLUSION

The Complaint states a plausible claim for relief against Carnival. This Court

should reverse the order of dismissal.

CERTIFICATE OF COMPLIANCE

I certify that this brief complies with the type-volume limitation set forth in

FRAP 32(a)(7)(B).

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that on January 30, 2012, the Initial Brief is beingserved by U.S. Mail this day on all counsel of record on the attached Service List.

PHILIP D. PARRISH, P.A.7301 SW 57 Ct, Ste 430th

Miami, FL 33143Tel: (305) 670-5550Fax: (305) [email protected] for Appellants

By:________________________Philip D. ParrishFBN: 541877





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SERVICE LIST

James M. Walker, [email protected] & O’NEILL, P.A.7301 SW 57 Court, Ste 430th

South Miami, Fl 33143Tel: (305) 995-5300Fax: (305) 995 5310Co-counsel for Plaintiffs

Jonathan B. Aronson, [email protected] LAW FIRM5730 SW 74 Street, Ste 800Miami, Florida 33143Tel: (305) 662 1233Fax: (305) 662 1266Co-counsel for Plaintiffs

Philip D. Parrish, [email protected] D. PARRISH, P.A.7301 SW 57 Ct, Ste 430th

Miami, FL 33143Tel: (305) 670-5550Fax: (305) 670-5552Co-counsel for Plaintiffs

Curtis J. Mase, [email protected] E. DeFabio, [email protected] M. [email protected] LARA EVERSOLE, P.A.2601 S Bayshore Dr Ste 800Miami, Fl 33133Tel: (305) 377 3770Fax: (305) 377 5655Counsel for Defendant





district court docket no.: 11-cv-21890-dlg ceferino perez ...case no.: 11-14047 district court...

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