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Allen v. NCL America, LLC

United States District Court, N.D. Ohio, Eastern Division

March 2, 2017

MARVIN ALLEN, Plaintiff,
NCL AMERICA, LLC., Defendant.


          Christopher A. Boyko United States District Judge

         This matter comes before the Court upon Defendant NCL America LLC's Motion (ECF DKT No. 35) to Dismiss Plaintiff's Second Amended Complaint. For the following reasons, the Court GRANTS in part Defendant's Motion to Dismiss.

         Plaintiff filed his original Complaint on October 8, 2015, alleging injuries sustained while employed aboard Defendant's vessel, M/S “Pride of America.” Plaintiff alleged three causes of action: (1) Negligence under the Jones Act, (2) Unseaworthiness in Violation of General Maritime Law, and (3) Breach of Maintenance and Cure. After filing an Amended Complaint to correctly identify the proper Defendant, Defendant moved to dismiss Plaintiff's Amended Complaint for failure to state a claim upon which relief could be granted. The Court granted, in part and denied in part, Plaintiff's Complaint, granting dismissal of Counts I and II of his First Amended Complaint for failing to state sufficient facts. The Court denied dismissal of his Breach of Maintenance and Cure claim. In April 2016, the Court granted Plaintiff's Motion to Amend his Complaint and Defendant moved once again for dismissal.

         Plaintiff's Second Amended Complaint alleges that Plaintiff is a 59 year old retired corrections officer hired by Defendant for the Utility Hotel position aboard its cruise ship, the M/S Pride of America. On May 17, 2015, Defendant flew Plaintiff from Detroit, Michigan, Plaintiff's home, to Kahului, Hawaii, where he joined the vessel. Without any notice, Plaintiff was reassigned to the Utility Galley position which required more physical capacity and exertion than the Utility Hotel position.

         On May 20, 2015, while working in the galley, Plaintiff was required to carry a large, heavy tub of silverware from the dishwasher to an elevated transfer table within certain time constraints Plaintiff alleges were unreasonable. As a result, Plaintiff struck his left knee on the exposed leg of the table not once but twice, the first while carrying a large tub of silverware, the second when carrying a large stack of plates. Plaintiff severely injured his knee resulting ultimately in total knee replacement.

         According to Plaintiff, Defendant was negligent in failing to maintain the galley area, including the transfer table, in a reasonably safe condition; failing to discover, inform and warn Plaintiff of the latent and/or patent defects and/or dangerous conditions existing in the galley, especially when obscured by carrying a large tub; failing to correct the above defects; failing to provide a reasonably safe work method; failing to instruct and supervise Plaintiff; failing to provide adequate assistance; failing to monitor and supervise; failing to assign Plaintiff work within his capacity; failing to inspect the vessel and the galley to discover and correct the unsafe work conditions of which Defendant knew or should have known. Plaintiff further alleges Defendant had constructive and/or actual knowledge of the unreasonably dangerous conditions of the galley; that Defendant had actual and/or constructive knowledge that its lack of advance notice of the change in Plaintiff's job and lack of training presented an unreasonable risk of danger to Plaintiff because of the heavy lifting requirements within unreasonable time constraints and that Defendant had actual and/ or constructive knowledge that this heavy lifting in unreasonable time constraints was unsafe for Plaintiff.

         Plaintiff alleges claims for Negligence under the Jones Act, Unseaworthiness of the Vessel in violation of maritime law and Breach of its Duty of Maintenance and Cure.

         Defendant moves to dismiss Counts I and II of Plaintiff's Second Amended Complaint for the same alleged deficiencies that prompted the dismissal of these claims in the first motion to dismiss. According to Defendant, general maritime law applies to the claims in this action because the alleged tort occurred on navigable waters. Furthermore, Plaintiff's claims at Counts I and II suffer the same factual deficiencies as his First Amended Complaint in that it fails to state with sufficient particularity what was wrong with the elevated table, what about the table required a warning or constituted a latent or patent danger, why Plaintiff needed instruction, training or assistance regarding how to walk and how to carry silverware or plates and how to avoid walking into the table, why he needed monitoring or supervision, what the exact risk or hazard was or how Defendant knew of the risk or hazard and what actual time constraints were imposed.

         According to Defendant, Plaintiff never articulates what the dangers actually were or how any alleged failure to train, instruct or assist Plaintiff proximately caused his injuries and there are no facts supporting Plaintiff's allegation that the Utility Galley position was more demanding than the Utility Hotel position. Moreover, Plaintiff never alleges Defendant knew of any unidentified physical limitation of Plaintiff.

         Under the Jones Act, a Defendant must provide seaman employees a reasonably safe place to work and it breaches that duty when it disregards a danger of which it knew or should have known. However, it must first have notice and the opportunity to correct the danger. Furthermore, it is under no duty to warn of open and obvious dangers. Because Plaintiff fails to allege any facts that the table was anything but open and obvious and because Plaintiff has alleged no facts demonstrating Defendant knew the table was dangerous, Defendant argues Plaintiff's Negligence claim must be dismissed. Defendants further argue Plaintiff's Second Amended Complaint is entirely devoid of facts establishing that some negligent act on the part of Defendant proximately caused Plaintiff's injury. Therefore, Defendant contends it is entitled to dismissal of Count I.

         Defendant also challenges the sufficiency of the Second Amended Complaint on Count II for the same reasons as Count I. Plaintiff's Second Amended Complaint asserts no facts supporting the conclusion that there was a defective condition on Defendant's ship nor does he allege Defendant had notice of any unsafe or defective condition aboard its ship prior to Plaintiff's injury. Plaintiff further fails to distinguish negligence and unseaworthiness. Lastly, Plaintiff's Second Amended Complaint never alleges how Defendant's vessel's alleged unseaworthiness resulted in his injuries.

         Plaintiff's Response is straightforward and direct. He asserts the allegations in his Second Amended Complaint sufficiently state facts plausibly supporting his claims. He further contends that because Defendant caused the hazardous condition it had constructive notice of the dangerous condition such that knowledge may be conferred upon Defendant. Plaintiff points to other Jones Act cases wherein the facts plead were no more detailed than those Plaintiff plead in this case yet they survived dismissal. Plaintiff concedes that an isolated act cannot support a claim of unseaworthiness but argues a series of negligent acts can. For these reasons, Plaintiff argues against dismissal.

         Civil Rule 12(b)(6) Standard

         In deciding a motion to dismiss under Fed.R.Civ.P. 12(b)(6), the court must accept as true all of the factual allegations contained in the complaint. Erickson v. Pardus, 551 U.S. 89, 93-94 (2007). ...

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