            Case: 11-14047   Date Filed: 09/05/2012   Page: 1 of 10

                                                                      [PUBLISH]

              IN THE UNITED STATES COURT OF APPEALS

                      FOR THE ELEVENTH CIRCUIT

                        ________________________

                              No. 11-14047
                          Non-Argument Calendar
                        ________________________

                   D. C. Docket No. 1:11-cv-21890-DLG

AIDA ESTHER CHAPARRO,
Individually,
CEFERINO PEREZ,
Individually,
AMILKAR PEREZ CHAPARRO,
Individually,
CEFERINO PEREZ AND AIDA ESTHER CHAPARRO,
as the Personal representatives of the Estate of Liz
Marie Perez Chaparro,

                                                Plaintiffs-Appellants,

                                   versus

CARNIVAL CORPORATION,
a foreign corporation,
d.b.a. Carnival Cruise Lines,

                                            Defendant-Appellee.
                        ________________________

                 Appeal from the United States District Court
                     for the Southern District of Florida
                       ________________________
                             (September 5, 2012)
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Before DUBINA, Chief Judge, HULL and MARTIN, Circuit Judges.

PER CURIAM:

      Appellants Ceferino Perez and Aida Esther Chaparro, individually and as

the personal representatives of the estate of their daughter, Liz Marie Perez

Chaparro (“Liz Marie”), and Amilkar Perez Chaparro (collectively “Appellants”)

appeal the district court’s Rule 12(b)(6) dismissal of their complaint against

Appellee, Carnival Corporation (“Carnival”), for negligence and negligent

infliction of emotional distress. The district court found that dismissal was

warranted because the complaint’s allegations were conclusory and insufficiently

factual. We disagree and reverse the judgment of dismissal.

                                         I.

      Liz Marie and Appellants (her parents and brother) took a vacation aboard a

Carnival cruise ship, the M/V VICTORY. Appellants allege that an unidentified

Carnival employee encouraged Liz Marie’s father and brother to visit Coki Beach

and Coral World upon disembarking the ship in St. Thomas, Virgin Islands. On

July 12, 2010, Appellants left the ship and traveled to Coki Beach independently

of the ship’s sponsored excursions in St. Thomas. On their way back to the ship

from Coki Beach, Appellants and Liz Marie rode an open-air bus past a funeral

service of a gang member who recently died in a gang-related shooting near Coki

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Beach. Cars of funeral attendees were parked along the narrow road, blocking the

bus’s passage. While stuck in traffic, gang-related, retaliatory violence erupted at

the funeral, shots were fired, and Liz Marie was killed on the bus as an innocent

passerby.

      Appellants sued Carnival in the Southern District of Florida, claiming that

Carnival negligently failed to warn them about the crime problem, reported gang-

related violence, and potential for public shootings in St. Thomas generally, and

Coki Beach specifically. They further alleged that Carnival’s negligent failure to

warn resulted in Carnival’s negligent infliction of emotional distress. The district

court granted Carnival’s motion to dismiss under Federal Rule of Civil Procedure

12(b)(6), giving Appellants leave to amend their complaint. Appellants chose not

to amend their complaint, rather, they timely appealed the district court’s order

dismissing their case.

                                          II.

      “We review de novo the district court’s grant of a Rule 12(b)(6) motion to

dismiss for failure to state a claim, accepting the complaint’s allegations as true

and construing them in the light most favorable to the plaintiff.” Cinotto v. Delta

Air Lines Inc., 674 F.3d 1285, 1291 (11th Cir. 2012).

                                         III.


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       The district court concluded that dismissal under Rule 12(b)(6) was

appropriate because many of the complaint’s key allegations were conclusory

rather than factual, and thus, the pleading failed to satisfy the requirements of

Ashcroft v. Iqbal, 556 U.S. 662, 129 S. Ct. 1937 (2009). Appellants contend that

the complaint’s allegations are more than adequate to survive a motion to dismiss.

Carnival, rather than discussing the sufficiency of the pleading, argues that

Appellants’ case is based upon a heightened duty of care that exceeds the

reasonable ordinary care standard recognized by controlling maritime law. Before

discussing the pleading standard under Iqbal, we first address the more

fundamental issue raised by Carnival—i.e., whether Carnival has a duty to warn

passengers of known dangers at ports of call.

       A. The duty to warn

       In Count I of their complaint, Appellants allege that Carnival negligently

failed to warn them of general and specific dangers of crime in St. Thomas and

Coki Beach. “In analyzing a maritime tort case, we rely on general principles of

negligence law.” Daigle v. Point Landing, Inc., 616 F.2d 825, 827 (5th Cir.

1980).1 To plead negligence, a plaintiff must allege that (1) the defendant had a


       1
         In Bonner v. City of Prichard, 661 F.2d 1206, 1207 (11th Cir.1981) (en banc), the Eleventh
Circuit adopted as binding precedent the decisions of the Fifth Circuit rendered prior to October 1,
1981.

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duty to protect the plaintiff from a particular injury; (2) the defendant breached

that duty; (3) the breach actually and proximately caused the plaintiff’s injury; and

(4) the plaintiff suffered actual harm. Zivojinovich v. Barner, 525 F.3d 1059, 1067

(11th Cir. 2008) (per curiam) (citing Clay Elec. Coop., Inc. v. Johnson, 873 So. 2d

1182, 1185 (Fla. 2003)). Concerning the duty element in a maritime context the

Supreme Court held in Kermarec v. Compagnie Generale Transatlantique, 358

U.S. 625, 630, 79 S. Ct. 406, 409 (1959) that “a shipowner owes the duty of

exercising reasonable care towards those lawfully aboard the vessel who are not

members of the crew.” (emphasis added). We have likewise said that,

      the benchmark against which a shipowner’s behavior must be
      measured is ordinary reasonable care under the circumstances, a
      standard which requires, as a prerequisite to imposing liability, that
      the carrier have had actual or constructive notice of the risk-creating
      condition, at least where . . . the menace is one commonly
      encountered on land and not clearly linked to nautical adventure.

Keefe v. Bahama Cruise Line, Inc., 867 F.2d 1318, 1322 (11th Cir. 1989)

(emphasis added).

      More specifically, a Florida intermediate appellate court has said that a

cruise line owes its passengers a duty to warn of known dangers beyond the point

of debarkation in places where passengers are invited or reasonably expected to

visit. Carlisle v. Ulysses Line Ltd., S.A.,475 So. 2d 248, 251 (Fla. Dist. Ct. App.



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1985). In spite of Carnival’s objection that Carlisle is an improper expansion of a

shipowner’s liability to passengers, the Southern District of Florida has often

acknowledged and applied the standard articulated in Carlisle. See, e.g., Koens v.

Royal Caribbean Cruises, Ltd., 774 F. Supp. 2d 1215, 1219–1220 (S.D. Fla.

2011); McLaren v. Celebrity Cruises, Inc., No. 11–23924–CIV, 2012 WL

1792632, at *8–9 (S.D. Fla. May 16, 2012); Gentry v. Carnival Corp., No.

11–21580–CIV, 2011 WL 4737062, at *3 (S.D. Fla. Oct. 5, 2011). It is true that

federal courts are not bound by a Florida state court’s admiralty decision, see E.

River S.S. Corp. v. Transamerica Delaval, Inc., 476 U.S. 858, 864, 106 S. Ct.

2295, 2299 (1986), but the rule in Carlisle is consonant with the federal maritime

standard of “ordinary reasonable care under the circumstances,” see Keefe, 867

F.2d at 1322.

      Carnival also argues that dismissal was appropriate because Liz Marie’s

shooting death was unforeseeable, and that there is no duty to warn of an

unforeseeable danger. See Daigle, 616 F.2d at 827 (stating that a failure to warn

does not constitute a breach in the duty of care “unless the resultant harm is

reasonably foreseeable”). Appellants have alleged, however, that Carnival was

aware of gang-related violence and crime, including public shootings, in St.

Thomas generally and near Coki Beach specifically. At the pleading stage of

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litigation, we ask only if plaintiffs have adequately stated a claim for which relief

can be granted. Carnival’s argument on foreseeability is more appropriate after

discovery at the summary judgment stage or at trial.

      2. The sufficiency of the pleading

      Having established the scope of Carnival’s duty, we next address the district

court’s findings on the sufficiency of Appellants’ complaint. Federal Rule of Civil

Procedure 8(a)(2) requires that a complaint provide “a short and plain statement of

the claim showing that the pleader is entitled to relief.” Rule 8’s pleading standard

“does not require ‘detailed factual allegations,’ but it demands more than an

unadorned, the-defendant-unlawfully-harmed-me accusation.” Iqbal, 556 U.S. at

678, 129 S. Ct. at 1949 (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127

S. Ct. 1955, 1964 (2007)). A complaint that provides “labels and conclusions” or

“a formulaic recitation of the elements of a cause of action” is not adequate to

survive a Rule 12(b)(6) motion to dismiss. Twombly, 550 U.S. at 555, 127 S. Ct.

at 1965. Rather, “[t]o survive . . . a complaint must contain sufficient factual

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

Iqbal, 556 U.S. at 678, 129 S. Ct. at 1949 (quoting Twombly, 550 U.S. at 570, 127

S. Ct. at 1974). A facially plausible claim must allege facts that are more than

merely possible. Iqbal, 556 U.S. at 678, 129 S. Ct. at 1949. Factual allegations

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that are “‘merely consistent with’ a defendant’s liability” fall short of being

facially plausible. Id. at 678, 129 S. Ct. at 1949 (quoting Twombly, 550 U.S. at

557, 127 S. Ct. at 1966). The plausibility standard “calls for enough fact to raise a

reasonable expectation that discovery will reveal evidence” of the defendant’s

liability. Twombly, 550 U.S. at 556, 127 S. Ct. at 1965. But if allegations are

indeed more conclusory than factual, then the court does not have to assume their

truth. See Mamani v. Berzain, 654 F.3d 1148, 1153–54 (11th Cir. 2011).

      Appellants’ complaint alleges the following: a Carnival employee

encouraged Appellants to visit Coki Beach in St. Thomas; Carnival was familiar

with Coki Beach because it sold excursions there; Carnival generally knew of

gang violence and public shootings in St. Thomas; Carnival knew of Coki Beach’s

reputation for drug sales, theft, and gang violence; Carnival knew or should have

known of the gang member’s shooting and funeral taking place near Coki Beach;

Carnival failed to warn Appellants of any of these dangers; Carnival knew or

should have known of these dangers because Carnival monitors crime in its ports

of call; Carnival’s negligence in encouraging its passengers to visit Coki Beach

and in failing to warn disembarking passengers of general and specific incidents of

crime in St. Thomas and Coki Beach caused Liz Marie’s death; and Appellants

have suffered various damages, including the loss of Liz Marie’s life. This

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negligent failure-to-warn claim is more than a mere recitation of the elements of

the cause of action. The facts alleged in the complaint are plausible and raise a

reasonable expectation that discovery could supply additional proof of Carnival’s

liability. See Twombly, 550 U.S. at 556, 127 S. Ct. at 1965. We consequently

conclude that the district court erred in dismissing Appellants’ negligence claim

under Iqbal.

      The district court also dismissed Count II, the claim for negligent infliction

of emotional distress, because that claim requires an adequately pled underlying

claim of negligence. Because Appellants pled negligence sufficiently, we

conclude that they likewise stated a valid claim for negligent infliction of

emotional distress. Such a claim requires “mental or emotional harm (such as

fright or anxiety) that is caused by the negligence of another and that is not

directly brought about by a physical injury, but that may manifest itself in physical

symptoms.” Consol. Rail Corp. v. Gottshall, 512 U.S. 532, 544, 114 S. Ct. 2396,

2405 (1994) (discussing tort claims brought under the Federal Employers’

Liability Act). Common law standards vary in what sort of harm the plaintiff must

suffer (an actual “physical impact,” presence in the “zone of danger,” or status as a

mere bystander), but federal maritime law has adopted Gottshall’s application of

the “zone of danger” test which allows recovery if a plaintiff is “placed in

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immediate risk of physical harm by [defendant’s negligent] conduct.” Stacy v.

Rederiet Otto Danielsen, A.S., 609 F.3d 1033, 1035 (9th Cir. 2010); Williams v.

Carnival Cruise Lines, Inc., 907 F. Supp. 403, 406 (S.D. Fla. 1995). The

complaint alleges that Appellants were trapped in the bus during the shooting near

Coki Beach, that they feared for their lives, that they witnessed Liz Marie’s

shooting and death, and that they have consequently experienced various physical

manifestations of their emotional distress. Thus, we hold that Appellants’ claim

for negligent infliction of emotional distress also was dismissed erroneously.

                                        IV.

      Appellants’ complaint sufficiently states claims for which relief can be

granted. Therefore, we reverse the district court’s judgment of dismissal and

remand this case for further proceedings consistent with this opinion.

      REVERSED and REMANDED.




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