United States District Court, N.D. Ohio, Eastern Division
OPINION AND ORDER
Christopher A. Boyko United States District Judge
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.
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.
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
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.
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.
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.
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.
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.
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.
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.
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.
Rule 12(b)(6) Standard
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). ...