Patricia Franza v. Royal Caribbean Cruises, Ltd. , 772 F.3d 1225 ( 2014 )

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[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 13-13067
________________________
D.C. Docket No. 1:13-cv-20090-JAL
PATRICIA FRANZA,
as Personal Representative of the Estate of
Pasquale F. Vaglio,
Plaintiff - Appellant,
versus
ROYAL CARIBBEAN CRUISES, LTD.,
a Liberian corporation,
Defendant - Appellee.
________________________
Appeal from the United States District Court
for the Southern District of Florida
________________________
(November 10, 2014)
Before MARCUS and ANDERSON, Circuit Judges, and GOLDBERG, * Judge.
*
Honorable Richard W. Goldberg, United States Court of International Trade Judge, sitting by
designation.
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MARCUS, Circuit Judge:
In this maritime negligence dispute, an elderly cruise ship passenger fell and
bashed his head while the vessel, the “Explorer of the Seas,” was docked at port in
Bermuda. The injured traveler, Pasquale Vaglio, was wheeled back onto the ship,
where he sought treatment from the onboard medical staff in the ship’s designated
medical center. Over the next few hours, Vaglio allegedly received such negligent
medical attention that his life could not be saved. In particular, the ship’s nurse
purportedly failed to assess his cranial trauma, neglected to conduct any diagnostic
scans, and released him with no treatment to speak of. The onboard doctor, for his
part, failed even to meet with Vaglio for nearly four hours. Tragically, Vaglio died
about a week later. Now, Vaglio’s daughter, appellant Patricia Franza, seeks to
hold the cruise line, Royal Caribbean Cruises, Ltd. (“Royal Caribbean”),
vicariously liable for the purported negligence of two of its employees, the ship’s
doctor and its nurse, under one of two theories: actual agency (also termed
respondeat superior) or apparent agency.
Franza commenced this suit against Royal Caribbean in the United States
District Court for the Southern District of Florida under 28 U.S.C. § 1333 and the
general maritime law, but the district court dismissed her complaint in its entirety.
First, in disposing of Franza’s actual agency claim, the trial court applied a
longstanding rule set forth most prominently in Barbetta v. S/S Bermuda Star, 848
2
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F.2d 1364 (5th Cir. 1988). Although the general maritime law of the United States
has long embraced the principles of agency law, the so-called “Barbetta rule”
immunizes a shipowner from respondeat superior liability whenever a ship’s
employees render negligent medical care to its passengers. The rule confers this
broad immunity no matter how clear the shipowner’s control over its medical staff
or how egregious the claimed acts of negligence. Separately, the trial court
dismissed Franza’s apparent agency claim as inadequately pled.
On appeal, Franza raises two questions of first impression. No binding
precedent in this Court or in its predecessor, the former Fifth Circuit Court of
Appeals, decided whether a passenger might invoke the principles of actual
agency, or those of apparent agency, to impute to a cruise line liability for the
medical negligence of its onboard nurse and doctor. After thorough review, we
hold that both theories are available in this case. We have repeatedly emphasized
that vicarious liability raises fact-bound questions, and we can discern no sound
reason in law to carve out a special exemption for all acts of onboard medical
negligence. Much has changed in the quarter-century since Barbetta. As we see it,
the evolution of legal norms, the rise of a complex cruise industry, and the
progression of modern technology have erased whatever utility the Barbetta rule
once may have had. We thus decline to adopt the Barbetta rule, and find that the
complaint in this case plausibly establishes a claim against Royal Caribbean under
3
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the doctrine of actual agency, as well as a claim under the principles of apparent
agency. Accordingly, we reverse and remand for further proceedings consistent
with this opinion.
I.
When we review a dismissal granted under Federal Rule of Civil Procedure
12(b)(6) for failure to state a claim, we accept the well-pled allegations in the
complaint and construe them in the light most favorable to the plaintiff. Chaparro
v. Carnival Corp., 693 F.3d 1333, 1335 (11th Cir. 2012) (per curiam). Viewed
through this lens, the facts as pled and the procedural history are straightforward.
On July 23, 2011, Pasquale Vaglio was a passenger aboard the “Explorer of
the Seas,” a cruise ship owned and operated by Royal Caribbean. Compl. ¶¶ 9; 8.
Together with his wife and family, id. ¶¶ 11, 13, Vaglio traveled with Royal
Caribbean to a port-of-call in Bermuda. After the ship docked in Bermuda early in
the morning, Vaglio fell while boarding a trolley “at or near the dock” and suffered
a severe blow to the head. Id. ¶ 10. Although Vaglio “could have easily been
referred ashore for . . . examination, evaluation and treatment,” id. ¶ 44, he was
instead “taken in a wheelchair to the ship’s infirmary,” id. ¶ 11. In fact,
notwithstanding other treatment options, Vaglio allegedly “was required to go to
the ship’s medical center to be seen for his injuries.” Id. ¶ 35 (emphasis added).
4
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Vaglio first entered the ship’s infirmary at about 10:00 a.m. Id. ¶ 11. No
physician examined him at that time; rather, Racquel Y. Garcia, a nurse allegedly
employed full-time by Royal Caribbean, performed the first relevant medical
evaluation. Id. Nurse Garcia knew about the trolley accident, and indeed she
observed a lump and an abrasion on Vaglio’s head. Id. Nevertheless, without
administering or even recommending any diagnostic scans, Nurse Garcia advised
Vaglio and his wife that Vaglio “was fine to return to his cabin.” Id. ¶ 11.
Cautioning only “that [Vaglio] might have a concussion,” the nurse instructed
Vaglio’s wife to keep an eye on her husband’s condition. Id. Vaglio received no
“further care or treatment” during this first visit to the ship’s infirmary. Id.
Instead, “relying on the advice of the ship’s medical personnel,” the Vaglios
returned to their cabin at around 10:45 a.m. Id. ¶ 12.
Ninety minutes later, at about 12:15 p.m., Vaglio’s son and daughter-in-law
“noted a deterioration in [Vaglio’s] status.” Id. ¶ 13. Concerned, his daughter-in-
law called 911, but it took approximately twenty minutes for “someone [to]
arrive[ ] with a wheelchair to transport Mr. Vaglio to the infirmary.” Id.
According to the complaint, Vaglio then encountered another delay: the onboard
medical staff would not examine Vaglio until the ship’s personnel obtained credit
card information. Id. ¶ 14.
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At about 1:45 p.m., nearly four hours after his first visit to the ship’s
infirmary, Vaglio was finally evaluated by the “ship’s physician,” Dr. Rogelio
Gonzales. Id. ¶¶ 7, 15. Like Nurse Garcia, Dr. Gonzales was allegedly an
employee of Royal Caribbean. Id. ¶ 7. During his examination, Dr. Gonzales
started a Mannitol drip and ordered that Vaglio be transferred to King Edward
Memorial Hospital in Bermuda “for further care and treatment.” Id. ¶ 15. Vaglio
arrived at the Bermudian hospital at approximately 4:22 p.m., about two-and-a-half
hours after his only meeting with Dr. Gonzales, and more than six hours after he
was first examined by Nurse Garcia. Id. ¶ 16. By that time, Vaglio’s life was
beyond saving. Id. On July 24, 2011, the day after his deadly fall, Vaglio was
airlifted to Winthrop-University Hospital in Mineola, New York. Id. ¶ 17. There
he remained in intensive care until he died one week later.
On January 10, 2013, Patricia Franza, Vaglio’s daughter and the personal
representative of his estate, initiated this suit under 28 U.S.C. § 1333 and the
general maritime laws of the United States. 1 Notably, Franza did not attempt to
sue any of the relevant medical personnel directly. Instead, she filed a three-count
complaint solely against Royal Caribbean, and she continues to press two of her
1
In relevant part, 28 U.S.C. § 1333 provides: “The district courts shall have original jurisdiction,
exclusive of the courts of the States, of . . . [a]ny civil case of admiralty or maritime jurisdiction,
saving to suitors in all cases all other remedies to which they are otherwise entitled.”
6
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three claims on appeal. 2 Both remaining counts charge Royal Caribbean with the
negligence of its onboard medical personnel, and both counts arise from the same
nine categories of allegedly negligent conduct: (1) “failing to properly assess
[Vaglio’s] condition”; (2) “allowing a nurse to make the initial assessment”; (3)
“failing to have a doctor assess [Vaglio]”; (4) “failing to timely diagnose and
appropriately treat [Vaglio]”; (5) “failing to order appropriate diagnostic scans to
further assess the degree of injury”; (6) “failing to obtain consultations with
appropriate specialists”; (7) “failing to properly monitor [Vaglio]”; (8) “failing to
evacuate [Vaglio] from the vessel for further care in a timely manner”; and (9)
“deviating from the standard of care for patients in Mr. Vaglio’s circumstances
who had suffered a significant blow to the head.” Id. ¶ 20.
Franza ascribed this misconduct to Royal Caribbean in two ways. First,
Franza invoked the doctrine of actual agency, alleging that Royal Caribbean was
negligent “by and through the acts of its employees or agents.” Id. In the
alternative, she argued that Royal Caribbean was liable “under the theory of
apparent agency,” id. ¶ 40, because the cruise line purportedly “manifested to
[Vaglio] . . . that its medical staff . . . were acting as its employees and/or actual
agents,” id. ¶ 28, and Vaglio, in turn, “relied to his detriment on his belief that the
2
Franza’s complaint contained one count of “negligent hiring, retention[,] and training by [Royal
Caribbean].” Compl. ¶¶ 41-46. On appeal, however, Franza has specifically abandoned that
claim.
7
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physician and nurse were direct employees or actual agents of [Royal Caribbean].”
Id. ¶ 38.
On May 30, 2013, the district court granted Royal Caribbean’s motion to
dismiss. Franza v. Royal Caribbean Cruises, Ltd., 948 F. Supp 2d 1327 (S.D. Fla.
2013). The trial court addressed Franza’s actual agency claim separately from the
one based on apparent agency. The court dismissed the actual agency count as a
matter of law and with prejudice. Specifically, the district court applied the
Barbetta rule to conclude that Franza’s actual agency claim was “predicated on
duties of care which are not recognized under maritime law.” Id. at 1331. Next,
although acknowledging that some courts had applied the doctrine of apparent
agency in similar cases, the district court dismissed Franza’s apparent agency
claim as inadequately pled. In particular, the trial court determined that Franza had
not plausibly claimed that Vaglio ever relied on the appearance of an agency
relationship. Id. at 1332-33.3 Following the holding in Barbetta, the district court
had no occasion to address whether Franza had sufficiently alleged the fact of
negligence, and did not consider whether Franza had plausibly pled the requisite
indicia of control that might have justified imputing liability to Royal Caribbean
for its employees’ wrongful acts. Franza timely appealed.
II.
3
Though the district court gave Franza leave to amend her allegations of apparent agency,
Franza elected not to do so.
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We review de novo the district court’s dismissal for failure to state a claim
under Rule 12(b)(6), examining Franza’s allegations in the light most favorable to
the plaintiff. Hill v. White, 321 F.3d 1334, 1335 (11th Cir. 2003) (per curiam).
“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.’”
Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S. Ct. 1937, 1949 (2009) (quoting Bell
Atlantic Corp. v. Twombly, 550 U.S. 544, 570, 127 S. Ct. 1955, 1974 (2007)).
This standard is met “where the facts alleged enable ‘the court to draw the
reasonable inference that the defendant is liable for the misconduct alleged.’”
Simpson v. Sanderson Farms, Inc., 744 F.3d 702, 708 (11th Cir. 2014) (quoting
Iqbal, 556 U.S. at 678, 129 S. Ct. at 1949). Put differently, “[i]t is sufficient if the
complaint succeeds in ‘identifying facts that are suggestive enough to render [each
required element] plausible.’” Rivell v. Private Health Care Sys., Inc., 520 F.3d
1308, 1310 (11th Cir. 2008) (per curiam) (quoting Watts v. Fla. Int’l Univ., 495
F.3d 1289, 1296 (11th Cir. 2007)).
III.
On appeal, Franza first challenges the dismissal of her actual agency claim.
Neither the Supreme Court nor this Court has ever decided, in binding precedent,
whether a passenger may hold a shipowner vicariously liable for the medical
negligence of the ship’s employees. In De Zon v. American President Lines, Ltd.,
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the Supreme Court held that a “shipowner was liable in damages for harm suffered
as the result of any negligence on the part of the ship’s doctor.” 318 U.S. 660, 669,
63 S. Ct. 814, 819 (1943). However, the De Zon Court cabined this holding to
apply only where a ship’s doctor breached a shipowner’s special duty to a seaman
-- not a passenger -- under the Jones Act. See id. at 668 (declining to consider
question of liability “in the absence of the Jones Act”). 4 Separately, pursuant to
repealed Eleventh Circuit Rule 36-1, this Court once affirmed without opinion a
dismissal order resembling the order at issue here. See Nanz v. Costa Cruises, Inc.,
932 F.2d 977 (11th Cir. 1991) (Table). We are not bound, however, by a table
disposition. See, e.g., U.S. Steel, LLC, v. Tieco, Inc., 261 F.3d 1275, 1280 n.3
(11th Cir. 2001) (“An affirmance pursuant to Rule 36-1 has no precedential
value.”).
A.
We begin with these basic principles. Federal admiralty jurisdiction flows
from the Constitution itself, see U.S. Const. art. III, § 2 (“The judicial Power shall
extend . . . to all Cases of admiralty and maritime Jurisdiction . . . .”), and “[w]ith
admiralty jurisdiction comes the application of substantive admiralty law.” E.
4
Although De Zon’s holding clearly applies only to cases involving injuries to seamen, arising
under the Jones Act, Royal Caribbean suggests the Supreme Court implicitly approved the
principles elaborated in Barbetta, since the Court observed that the rule barring suits by
passengers had been developed by “judges of great learning, for courts of last resort of states
having much to do with maritime pursuits.” De Zon v. Am. Pres. Lines, 318 U.S. 660, 666 n.2,
63 S. Ct. 814, 818 (1943). This dicta in no way expressed any view about the wisdom or
efficacy of the Barbetta rule.
10
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River S.S. Corp. v. Transamerica Delaval Inc., 476 U.S. 858, 864, 106 S. Ct. 2295,
2298-99 (1986). “Absent a relevant statute, the general maritime law, as
developed by the judiciary, applies.” Id. at 2299. Indeed, the Supreme Court has
repeatedly explained in maritime suits that the “Judiciary has traditionally taken
the lead in formulating flexible and fair remedies in the law maritime, and
‘Congress ha[s] largely left to [the Supreme] Court the responsibility for
fashioning the controlling rules of admiralty law.” United States v. Reliable
Transfer Co., 421 U.S. 397, 409, 95 S. Ct. 1708, 1715 (1975) (quoting Fitzgerald
v. U.S. Lines Co., 374 U.S. 16, 20, 83 S. Ct. 1646, 1650 (1963)); see Moragne v.
States Marine Lines, Inc., 398 U.S. 375, 405 n.17, 90 S. Ct. 1772, 1790 (1970)
(noting that courts are not barred from announcing maritime rules simply because
Congress has “not legislat[ed] on [the] subject”); Romero v. Int’l Terminal
Operating Co., 358 U.S. 354, 361, 79 S. Ct. 468, 474 (1959) (explaining that courts
are best equipped “to draw on the substantive law ‘inherent in the admiralty and
maritime jurisdiction’” (quoting Crowell v. Benson, 285 U.S. 22, 55, 52 S. Ct. 285,
294 (1932))); see also 1 Benedict on Admiralty, Ch. VII, § 110 (2014) (stating that
Congress’s maritime authority “is impliedly inherent in or derived from the grant
of the judicial power”).
The Supreme Court has likewise authorized and directed the lower federal
courts to shape this law, explaining that the Constitution “empowered the federal
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courts,” including “the Tribunals inferior to the Supreme Court,” to “develop[ ]”
the general maritime law. Romero, 358 U.S. at 360-61, 79 S. Ct. at 474 (internal
quotation marks omitted); see, e.g., Transamerica, 476 U.S. at 865, 106 S. Ct. at
2299 (endorsing maritime theory of products liability first adopted by several
circuits); see also Exxon Shipping Co. v. Baker, 554 U.S. 471, 508 n.21, 128 S. Ct.
2605, 2630 (2008) (observing that “modern-day maritime cases . . . support
judicial action to modify a common law landscape largely of [the courts’] own
making”); Edmonds v. Compagnie Generale Transatlantique, 443 U.S. 256, 259,
99 S. Ct. 2753, 2756 (1979) (“Admiralty law is judge-made law to a great extent
. . . .”). In short, we enjoy considerable latitude in maritime cases because, under
the constitutional grant, the “[b]oundaries” of maritime law generally “were to be
determined in the exercise of the judicial power.” The Thomas Barlum, 293 U.S.
21, 43, 55 S. Ct. 31, 38 (1934).
Congress has not imposed vicarious liability where, as here, a passenger
seeks recovery from a shipowner for the medical negligence of the ship’s
employees.5 Nor has Congress barred the application of vicarious liability in this
5
In 1882, Congress passed legislation requiring certain passenger ships to carry medical
personnel and to furnish “surgical instruments, medical comforts, and medicines proper and
necessary for diseases and accidents incident to sea-voyages, and for the proper medical
treatment of such passengers during the voyage.” Pub. L. No. 47-374, § 5, 22 Stat. 188 (1882)
(codified at 46 U.S.C. § 155 (1982)). “[T]he services of such surgeon or medical practitioner
[were required to] be promptly given, in any case of sickness or disease, to any of the
passengers . . . who . . . need[ed] his services.” Id. The “master of the vessel” was liable for any
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context. 6 Thus, in addressing Franza’s claims, we are obliged to exercise our
broad discretion in admiralty and maritime to develop this law, just as the Fifth
Circuit did in Barbetta.
Under the general maritime law, a shipowner traditionally has owed no duty
to practice medicine or to carry a physician on board. See De Zon, 318 U.S. at
668, 63 S. Ct. at 819 (acknowledging that “there may be no duty to the seaman to
carry a physician”).7 Therefore, the shipowner is only liable to its passengers for
medical negligence if its conduct breaches the carrier’s more general duty to
violation of this statute. Id. However, Congress repealed this act in 1983, see Pub. L. No. 98-89,
§ 4(b), 97 Stat. 600 (1983), without ever enacting substitute legislation.
6
In a few areas of maritime law, Congress has specifically limited the application of agency
principles. See, e.g., 33 U.S.C. § 905(b) (2012) (forbidding third-party suits against shipowners
under Longshore and Harbor Workers’ Compensation Act where injured person was “employed
by the vessel to provide stevedoring services” and “the injury was caused by the negligence of
persons engaged in providing stevedoring services to the vessel”); Hurst v. Triad Shipping Co.,
554 F.2d 1237 (3d Cir. 1977) (tracing Congress’s policy rationale for § 905(b) exception); 46
U.S.C. § 30505(b) (2012) (capping certain maritime liability where shipowner lacks “privity or
knowledge”); Paradise Divers, Inc. v. Upmal, 402 F.3d 1087, 1089-90 (11th Cir. 2005) (per
curiam) (explaining Congress’s policy rationale for § 30505 limitation). As we have observed,
however, no such legislation protects a maritime principal from all vicarious liability in a case
like this one.
7
Franza suggests, however, that new laws now require cruise ships to carry medical personnel.
She points specifically to one statute, 46 U.S.C. § 3507 (2012), which mandates that cruise ships
provide “medical staff” who possess either a “current physician’s or registered nurse’s license”
to render “medical treatment” to victims of sexual assault. Id. § 3507(d). We do not read this
codification as creating a broad based obligation that ships carry medical personnel onboard in
order to meet the general health needs of their passengers. Franza also argues that many cruise
ships are flagged in the Bahamas, where cruise ships must carry a “duly qualified medical
practitioner.” See Bahamian Merchant Shipping Act § 124. But Franza’s complaint alleges that
Royal Caribbean is a Liberian corporation, Compl. ¶ 5, and does not specify where the “Explorer
of the Seas” is flagged. Nor, finally, is it otherwise clear what impact a Bahamian statute would
have on a cruise ship’s obligations arising under the general maritime law of the United States.
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exercise “reasonable care under the circumstances.” Kermarec v. Compagnie
Generale Transatlantique, 358 U.S. 625, 632, 79 S. Ct. 406, 410 (1959). Franza
does not argue that Royal Caribbean violated this duty directly. Rather, she asks
us to hold Royal Caribbean vicariously liable under the doctrine of respondeat
superior, precisely because the ship’s medical employees allegedly failed to treat
her father with appropriate care.
Though we have never examined whether the principles of vicarious liability
apply to a passenger’s claim for onboard medical negligence, the federal courts
have been especially active in the general area of maritime torts. See Exxon, 554
U.S. at 508 n.21, 128 S. Ct. at 2630 (highlighting “the large part [that courts] have
taken in working out the governing maritime tort principles”). In maritime tort
cases, the federal courts often have: (1) adopted new theories of tort liability, see,
e.g., Transamerica, 476 U.S. at 865, 106 S. Ct. at 2299 (“join[ing] [several circuits]
in recognizing products liability, including strict liability, as part of the general
maritime law”); (2) introduced new causes of action, see, e.g., Am. Export Lines,
Inc. v. Alvez, 446 U.S. 274, 284-86, 100 S. Ct. 1673, 1679-80 (1980) (recognizing
claim for loss of consortium under general maritime law), and Moragne, 398 U.S.
375, 90 S. Ct. 1772 (recognizing cause of action for wrongful death under general
maritime law); and (3) promulgated new remedial rules, see, e.g., McDermott, Inc.
v. AmClyde, 511 U.S. 202, 114 S. Ct. 1461 (1994) (adopting proportionate-fault
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rule for calculation of nonsettling maritime tort defendants’ compensatory
liability).
Moreover, across well over a century of maritime tort precedent, the
Supreme Court has required maritime principals to answer for the negligence of
their onboard agents. See, e.g., The Kensington, 183 U.S. 263, 268, 22 S. Ct. 102,
104 (1902) (characterizing as “unjust and unreasonable” any attempt by carriers to
contract around “responsibility for the negligence of . . . their servants”); The J.P.
Donaldson, 167 U.S. 599, 603, 17 S. Ct. 951, 953 (1897) (holding shipowner
“responsible for injuries caused to third persons by [the] negligence” of ship’s
captain). These teachings now permeate the general maritime law. See, e.g.,
Langfitt v. Fed. Marine Terminals, Inc., 647 F.3d 1116, 1121 (11th Cir. 2011)
(“[A]n otherwise non-faulty employer [is] vicariously liable for the negligent acts
of its employee acting within the scope of employment.”); Archer v.
Trans/American Servs., Ltd., 834 F.2d 1570, 1573 (11th Cir. 1988) (“Federal
maritime law embraces the principles of agency.”).
That maritime law has long incorporated the concept of respondeat superior
should come as no surprise. Shipowners, like other principals, exercise real control
over their agents. See, e.g., Barrios v. La. Const. Materials Co., 465 F.2d 1157,
1164 (5th Cir. 1972) (detailing maritime principal’s “control over the operations
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which resulted in the injury to [plaintiff]”). 8 In maritime cases, as elsewhere, we
therefore think it “manifestly just” to hold principals responsible for the conduct
they command from their employees. Sony Corp. of Am. v. Universal City
Studios, Inc., 464 U.S. 417, 437, 104 S. Ct. 774, 786 (1984); see Restatement
(Second) of Agency § 219 cmt. a (“[F]rom [the acknowledgment of a principal’s
right of control], the idea of responsibility for the harm done by the servant’s
activities follow[s] naturally.”).
Thus, we have regularly permitted passengers to invoke respondeat superior
in maritime negligence suits.9 In Suzuki of Orange Park, Inc. v. Shubert, for
example, a passenger in a watercraft was struck by another recreational vessel on a
slalom course. 86 F.3d 1060, 1061-62 (11th Cir. 1996). In addressing the question
of liability, we observed that the corporate owner of the watercraft could be
“vicariously liable under principles of respondeat superior” if the passenger’s
injury were negligently inflicted by a driver “acting on [the owner’s] behalf.” Id.
at 1066 & n.5 (emphasis omitted). In Gibboney v. Wright, two minor passengers
8
In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), we adopted as
binding precedent all Fifth Circuit decisions issued before October 1, 1981.
9
Additionally, our admiralty precedent is rife with cases holding principals vicariously liable
under respondeat superior for injuries negligently inflicted by agents to agents. See, e.g., In re
Dearborn Marine Serv., Inc., 499 F.2d 263, 284-86 (5th Cir. 1974); Barrios, 465 F.2d at 1164;
Tri-State Oil Tool Indus., Inc. v. Delta Marine Drilling Co., 410 F.2d 178, 187 (5th Cir. 1969).
Because liability is sometimes complicated by statutory concerns in this related context,
however, we separately collect these cases only to demonstrate the broad salience of respondeat
superior in our admiralty precedent.
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aboard a borrowed racing sloop were injured in a flash fire caused by an
improperly secured fuel tank. 517 F.2d 1054, 1055-56 (5th Cir. 1975). There, the
former Fifth Circuit discerned “ample basis under familiar maritime principles to
impute [the] negligence [of both the vessel’s manufacturer and a marine surveyor]
to [the shipowner,] so far as liability [for injury to the passengers] [was]
concerned.” Id. at 1059. And in Ramjak v. Austro-American S.S. Co., the former
Fifth Circuit found a shipowner vicariously liable where a seaman -- “in a spirit of
ostentation and bravado” -- negligently climbed the ship’s mast and fell onto a
passenger. 186 F. 417, 418 (5th Cir. 1911); see also Doe v. Celebrity Cruises, Inc.,
394 F.3d 891, 908, 913 (11th Cir. 2004) (citing Restatement (Second) of Agency
and holding cruise line strictly liable for crew member assaults on passengers).
Quite simply, our precedent has long allowed passengers to invoke the doctrine of
respondeat superior in a diverse medley of maritime tort disputes.
We do not stand alone in this. Our sister circuits, too, have generally applied
agency principles to impute liability in maritime tort cases. See Matheny v. Tenn.
Valley Auth., 557 F.3d 311, 315 (6th Cir. 2009) (accepting concession that tugboat
owner was liable for third-party death caused by tugboat captain’s negligence);
CEH, Inc. v. F/V Seafarer, 70 F.3d 694, 705 (1st Cir. 1995) (holding shipowner
“vicarious[ly] liabl[e]” where captain was shipowner’s “agent” who sabotaged
third-party lobstering operation); McDonough v. Royal Caribbean Cruises, Ltd., 48
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F.3d 256, 258 (7th Cir. 1995) (holding cruise line vicariously liable where steward
pushed dolly over passenger’s foot); Jackson Marine Corp. v. Blue Fox, 845 F.2d
1307, 1310 (5th Cir. 1988) (applying “general agency principles” to impute
captain’s fraud on third-party to shipowner); De Los Santos v. Scindia Steam
Navigation Co. Ltd., 598 F.2d 480, 489 (9th Cir. 1979) (explaining that shipowner
could incur liability under respondeat superior if crewmembers knew of allegedly
defective condition that injured plaintiff); Pritchett v. Kimberling Cove, Inc., 568
F.2d 570, 579 (8th Cir. 1977) (holding boat owner “vicariously” liable where
owner’s “agent” negligently entrusted boat to minor who injured passengers in
second boat); Ira S. Bushey & Sons, Inc. v. United States, 398 F.2d 167, 171-72
(2d Cir. 1968) (holding United States vicariously liable to third-party dry-dock
owner after Coast Guardsman negligently caused dry-dock to sink); see also
Landstar Express Am., Inc. v. Fed. Mar. Comm’n, 569 F.3d 493, 498 (D.C. Cir.
2009) (using “common law agency principles” to interpret Shipping Act of 1984);
Servis v. Hiller Sys. Inc., 54 F.3d 203, 207 (4th Cir. 1995) (interpreting Suits in
Admiralty Act in light of “basic principles of agency law” and Restatement
(Second) of Agency); Peter v. Hess Oil Virgin Islands Corp., 903 F.2d 935, 940
(3d Cir. 1990) (construing Longshore and Harbor Workers’ Compensation Act to
incorporate “borrowed servant doctrine”); Bartlett-Collins Co. v. Surinam
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Navigation Co., 381 F.2d 546, 550 (10th Cir. 1967) (commenting in admiralty case
that “existence of an agency is a question to be decided by the trier of the fact”).
Thus, even absent any statutory mandate, the Supreme Court and all of the
federal circuits have for many years generally applied agency rules across a rich
array of maritime cases. Against this dynamic backdrop, Franza makes only a
modest request. We can see nothing inherent in onboard medical negligence, when
committed by full-time employees acting within the course and scope of their
employment, that justifies suspending the accepted principles of agency.
Certainly, nothing in our case law creates -- or even suggests -- a bright-line zone
of immunity for the onboard negligence of a cruise ship’s medical employees.
We acknowledge, however, that other circuits have long barred vicarious
liability in this particular context. See Barbetta, 848 F.2d at 1372 (“[G]eneral
maritime law does not impose liability under the doctrine of respondeat superior
upon a carrier or ship owner for the negligence of a ship’s doctor who treats the
ship’s passengers.”); accord The Great Northern, 251 F. 826, 832 (9th Cir. 1918);
The Korea Maru, 254 F. 397, 399 (9th Cir. 1918); cf. Cummiskey v. Chandris,
S.A., 895 F.2d 107, 108 (2d Cir. 1990) (per curiam) (citing Barbetta and
“declin[ing] the invitation to break with maritime precedent” “on the facts before
[the court]”). 10 In effect, these cases stand for the sweeping proposition that no
10
Several district courts within this Circuit have extended this principle to protect carriers from
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conceivable set of facts could ever justify holding a shipowner vicariously liable
when a passenger receives negligent medical care aboard its ship. We remain
unpersuaded.
Instead, we think it more accurate to say that, absent any statutory mandate
to the contrary, the existence of an agency relationship is a question of fact under
the general maritime law. See Naviera Neptuno S.A. v. All Int’l Freight
Forwarders, Inc., 709 F.2d 663, 665 (11th Cir. 1983) (“[T]he existence of an
agency relationship is a question of fact.”); accord Garanti Finansal Kiralama A.S.
v. Aqua Marine & Trading Inc., 697 F.3d 59, 71 (2d Cir. 2012) (same); Hawkspere
Shipping Co., Ltd. v. Intamex, S.A., 330 F.3d 225, 236 (4th Cir. 2003) (observing
that existence of agency relationship presents “triable issue of fact”); Chan v.
Soc’y Expeditions, Inc., 39 F.3d 1398, 1406 (9th Cir. 1994) (noting that existence
of agency relationship “is a question of fact”); Equilease Corp. v. M/V Sampson,
756 F.2d 357, 363 (5th Cir. 1985) (“The existence of any agency relationship is a
question of fact . . . .” (emphasis added)); Bartlett-Collins, 381 F.2d at 550 (“[T]he
existence of an agency is a question to be decided by the trier of the fact.”). Thus,
as we see it, at the pleading stage, a passenger must allege “sufficient facts to
render it facially plausible that . . . an agency relationship [is] . . . present.” Bamert
liability for the actions of ships’ nurses, as well as their doctors. See, e.g., Hajtman v. NCL
(Bahamas) Ltd., 526 F. Supp. 2d 1324, 1327-28 (S.D. Fla. 2007); Jackson v. Carnival Cruise
Lines, Inc., 203 F. Supp. 2d 1367, 1374-76 (S.D. Fla. 2002); Stires v. Carnival Corp., 243 F.
Supp. 2d 1313, 1318 (M.D. Fla. 2002).
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v. Pulte Home Corp., 445 F. App’x 256, 265 (11th Cir. 2011) (citing Davila v.
Delta Air Lines, Inc., 326 F.3d 1183, 1185 (11th Cir. 2003)). In cases of medical
malpractice, as in other maritime respondeat superior cases, the essential element
of the relationship is the principal’s control over its agents.
Plainly, under the ordinary rules of agency, the allegations in Franza’s
complaint support a finding that Nurse Garcia and Dr. Gonzales were agents of
Royal Caribbean. According to our unambiguous precedent, an agency
relationship requires: “(1) the principal to acknowledge that the agent will act for
it; (2) the agent to manifest an acceptance of the undertaking; and (3) control by
the principal over the actions of the agent.” Whetstone Candy Co. v. Kraft Foods,
Inc., 351 F.3d 1067, 1077 (11th Cir. 2003). Franza adequately alleged each of
these elements.
For starters, Franza’s complaint plausibly established: (1) that Royal
Caribbean “acknowledged” that Nurse Garcia and Dr. Gonzales would act on its
behalf, and (2) that each “accepted” the undertaking. Most importantly, Franza
specifically asserted that both medical professionals were “employed by” Royal
Caribbean, were “its employees or agents,” and were “at all times material acting
within the scope and course of [their] employment.” Compl. ¶¶ 6, 7, 20.
Furthermore, the cruise line directly paid the ship’s nurse and doctor for their work
in the ship’s medical center. Id. ¶ 28. Third, the medical facility was created,
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owned, and operated by Royal Caribbean, id., whose own marketing materials
described the infirmary in proprietary language, see id. (“[T]he doctor and nurse
both worked at what [Royal Caribbean] describes in its advertising as its medical
centers[.]” (emphasis added and internal quotation marks omitted)). Fourth, the
cruise line knowingly provided, and its medical personnel knowingly wore,
uniforms bearing Royal Caribbean’s name and logo. Id. ¶ 29. And, finally, Royal
Caribbean allegedly represented to immigration authorities and passengers that
Nurse Garcia and Dr. Gonzales were “members of the ship’s crew,” id. ¶¶ 31, 33,
and even introduced the doctor “as one of the ship’s Officers,” id. ¶ 30. Taken as
true, these allegations are more than enough to satisfy the first two elements of
actual agency liability.
Moreover, the facts alleged in Franza’s complaint plausibly demonstrate that
Royal Caribbean exercised “control” over the ship’s medical personnel. See
Whetstone, 351 F.3d at 1077. As we have explained, control is the fulcrum of
respondeat superior. We have recognized the following considerations as
“probative” of control in the maritime context: “(1) direct evidence of the
principal’s right to or actual exercise of control; (2) the method of payment for an
agent’s services, whether by time or by the job; (3) whether or not the equipment
necessary to perform the work is furnished by the principal; and (4) whether the
principal had the right to fire the agent.” Langfitt, 647 F.3d at 1121. Franza’s
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complaint plausibly supports a finding of control under at least three of these four
factors.
To begin with, Franza alleged substantial “direct evidence” of Royal
Caribbean’s “right to control” Nurse Garcia and Dr. Gonzales. Id. The onboard
medical personnel were: (1) “employed by” Royal Caribbean, Compl. ¶¶ 6, 7; (2)
hired to work in a facility that the cruise line “owned and operated,” id. ¶ 28; (3)
paid directly by the cruise line, id.; (4) considered to be members of the ship’s
“crew,” id. ¶ 31, 33; and (5) “required” to wear uniforms furnished by Royal
Caribbean, id. ¶ 29. Additionally, the cruise line “put the ship’s physician and
nurse under the command of the ship’s superior officers.” Id. ¶ 32 (emphasis
added). At the pleading stage, these allegations offer considerable “direct
evidence” of the cruise line’s “right to control” its medical staff.
Franza’s specific assertions about the ship’s “method of payment” bolster
her claim that Royal Caribbean controlled its onboard medical personnel. See
Langfitt, 647 F.3d at 1121. Franza alleged that Royal Caribbean paid “salaries” to
the ship’s medical staff. Compl. ¶ 28. This compensation structure normally
suggests an agency relationship, since payment is “by time” and not “by the job.”
Langfitt, 648 F.3d at 1121; see Restatement (Second) of Agency § 220 cmt. h
(observing that “payment by hour or month” indicates “the relation of master and
servant”). Additionally, onboard passengers are allegedly “billed directly by
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[Royal Caribbean] through the passengers’ Sign and Sail Card.” Compl. ¶ 28.
Thus, the cruise line exercises complete control over any funds that might
otherwise have flowed directly from the passengers to the medical professionals in
consideration of treatment rendered.
Finally, Royal Caribbean allegedly “pays to stock the ‘medical centers’ with
all supplies, various medicines and equipment,” id. ¶ 28, which lends further
support to a finding of control by the cruise line. See Langfitt, 648 F.3d at 1121
(finding agency more likely where “the equipment necessary to perform the work
is furnished by the principal”). Franza did not specifically allege whether Royal
Caribbean had the “right to fire” its onboard medical personnel, and thus her
complaint does not directly address the fourth factor indicating control under
Langfitt. Nevertheless, as we have seen, Franza did assert that Nurse Garcia and
Dr. Gonzales were “member[s] of the crew,” Compl. ¶ 31, 33, who were “under
the command of the ship’s superior officers,” id. ¶ 32. Presumably, the company
maintains the authority to fire crewmembers. See Robert D. Peltz, Has Time
Passed Barbetta by?, 24 U.S.F. Mar. L.J. 1, 31 (2012) (noting that “[t]ypical
employment agreements give the cruise line the right to terminate the shipboard
doctor’s employment”) [hereinafter Peltz, Has Time Passed Barbetta by?].
Royal Caribbean urges us to look beyond the complaint, to Vaglio’s
passenger ticket contract, which the cruise line attached to its motion to dismiss
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and which purports to limit the ship’s liability for onboard medical services.
According to Royal Caribbean, the contract makes clear that onboard medical
personnel are independent contractors, not employees or agents. At this early stage
in the proceedings, however, we decline to consider the passenger ticket contract
for three reasons. First, Franza did not attach the ticket contract to the complaint.
Second, the complaint makes no mention of the contract. See Bickley v. Caremark
Rx, Inc., 461 F.3d 1325, 1329 n.7 (11th Cir. 2006) (permitting court to consider
defendant’s exhibits only if “the plaintiff refers to certain documents in the
complaint and those documents are central to the plaintiff’s claim” (internal
quotation marks and citation omitted)); Hoffman-Pugh v. Ramsey, 312 F.3d 1222,
1225 (11th Cir. 2002) (same); see also Fin. Sec. Assurance, Inc. v. Stephens, Inc.,
500 F.3d 1276, 1284 (11th Cir. 2007) (considering materials beyond complaint and
its exhibits where plaintiff referred to document in complaint, document was
central to claim, contents were undisputed, and defendant attached document to
motion to dismiss). Finally, even if we were to look to the contract at this stage,
we would not consider the nurse and doctor to be independent contractors simply
because that is what the cruise line calls them. See, e.g., Cantor v. Cochran, 184
So. 2d 173, 174 (Fla. 1966) (“While the obvious purpose to be accomplished by
this document was to evince an independent contractor status, such status depends
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not on the statements of the parties but upon all the circumstances of their dealings
with each other.”).11
On balance, then, Franza’s complaint unambiguously establishes an agency
relationship between the employer, Royal Caribbean Cruises, Ltd., and its full-time
employees, Nurse Garcia and Dr. Gonzales. Nothing in the complaint suggests
that these medical professionals somehow acted outside the scope and course of
their employment or that the requisite control was missing. Thus, applying the
standard principles of agency, we are compelled to hold that Franza’s complaint
sets out a plausible basis for imputing to Royal Caribbean the allegedly negligent
conduct of its onboard medical employees.
B.
We decline to adopt the rule explicated in Barbetta, because we can no
longer discern a sound basis in law for ignoring the facts alleged in individual
medical malpractice complaints and wholly discarding the same rules of agency
that we have applied so often in other maritime tort cases.12 No decision of the
11
Additionally, we note that the ticket contract arguably is internally inconsistent: at one point
the contract actually discusses medical personnel and independent contractors in the alternative,
see Mot. to Dismiss Ex. A, Franza v. Royal Caribbean Cruises, Ltd., 13-20090-CIV (S.D. Fla.
Feb. 4, 2013), at 2 (“To the extent Passengers retain the services of medical personnel or
Independent contractors . . . .” (emphasis added)), seemingly suggesting that medical personnel
are not independent contractors.
12
Several courts have already rejected or cast doubt upon the majority rule enunciated by the
Fifth Circuit in Barbetta. See, e.g., Huntley v. Carnival Corp., 307 F. Supp. 2d 1372, 1374-75
(S.D. Fla. 2004) (declining to apply majority rule); Nietes v. Am. President Lines, Ltd., 188 F.
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Supreme Court or this Court binds us to the strictures of Barbetta, and though we
do not lightly deviate from a rule applied widely and for many years by other
federal courts, we are now reluctant to endorse the approach taken by the Fifth,
Ninth, and Second Circuits. As Justice Holmes famously put it, we should not
follow a rule of law simply because “it was laid down in the time of Henry IV,”
particularly where “the grounds upon which it was laid down have vanished long
since, and the rule simply persists from blind imitation of the past.” Oliver
Wendell Holmes, The Path of the Law, 10 Harv. L. Rev. 457, 469 (1897).13
When we exercise our broad admiralty jurisdiction, “our experience and new
conditions [sometimes] give rise to new conceptions of maritime concerns.” The
Thomas Barlum, 293 U.S. at 52, 55 S. Ct. at 41-42. Here, the roots of the Barbetta
rule snake back into a wholly different world. Instead of nineteenth-century
Supp. 219, 220-21 (N.D. Cal. 1959) (same); Mack v. Royal Caribbean Cruises, Ltd., 838 N.E.2d
80, 91(Ill. App. Ct. 2005) (same); see also Lobegeiger v. Celebrity Cruises, Inc., 11-21620-CIV,
2011 WL 3703329 at *9 n.8 (S.D. Fla. Aug. 23, 2011) (noting weakness in majority rule);
Fairley v. Royal Cruise Line, Ltd., 1993 A.M.C. 1633 (S.D. Fla. 1993) (same); Carnival Corp. v.
Carlisle, 953 So. 2d 461, 469-70 (Fla. 2007) (same).
13
Royal Caribbean argues that we must follow Barbetta in order to preserve the uniformity of
maritime law. See Appellee’s Br. at 20-24. Uniformity is a powerful and motivating concern in
federal admiralty jurisdiction. See, e.g., So. Pac. Co. v. Jensen, 244 U.S. 205, 216, 37 S. Ct. 524,
529 (1917), superceded by statute, 69 Pub. L. 803, 44 Stat. 1424 (1927), codified as amended at
33 U.S.C. § 901 et seq., (highlighting “the proper harmony and uniformity of” maritime law).
However, the federal admiralty interest in uniformity is not a stare decisis command. Moreover,
the Supreme Court introduced the principles of uniformity and harmony specifically to prevent
undue encroachment upon national maritime law by the several states. See, e.g., Romero, 358
U.S. at 373, 79 S. Ct. at 480 (“[S]tate law must yield to the needs of a uniform federal maritime
law when this Court finds inroads on a harmonious system.”); see also Mink v. Genmar Indus.,
Inc., 29 F.3d 1543, 1548 (11th Cir. 1994) (characterizing “federal [maritime] interest in
uniformity” as “a reverse-Erie doctrine”).
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steamships, see, e.g., Barbetta, 848 F.2d at 1369 (citing O’Brien v. Cunard S.S.
Co., 28 N.E. 266, 267 (Mass. 1891)), we now confront state-of-the-art cruise ships
that house thousands of people and operate as floating cities, complete with well-
stocked modern infirmaries and urgent care centers. In place of truly independent
doctors and nurses, we must now acknowledge that medical professionals routinely
work for corporate masters. And whereas ships historically went “off the grid”
when they set sail, modern technology enables distant ships to communicate
instantaneously with the mainland in meaningful ways. In short, despite its
prominence, the Barbetta rule now seems to prevail more by the strength of inertia
than by the strength of its reasoning. See United States v. Reliable Transfer Co.,
421 U.S. 397, 410, 95 S. Ct. 1708, 1715 (1975). In our view, “[t]he reasons that
originally led” other courts to adopt “the rule have long since disappeared.” See
id. The rule rests on three basic arguments that a shipowner cannot exercise
meaningful control over its medical staff. But as we see it, none withstands close
scrutiny. We address each in turn.
1.
The first pillar is the claim that any doctor-patient (or nurse-patient)
relationship, whether on land or at sea, precludes vicarious liability by its very
“nature.” Barbetta, 848 F.2d at 1369. Historically, courts have offered two
separate arguments to explain why no third-party principal could ever
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meaningfully control the conduct of a medical professional and, therefore, no
liability could be vicariously imposed. Nowadays, however, the great majority of
American common law courts have disavowed this categorical liability exception
and each of the rationales that once compelled it.
a.
Traditionally, courts insulated medical professionals from vicarious liability
simply because of the professionals’ special skills and independent judgment.
Essentially, these courts reasoned that, as a policy matter, highly trained medical
practitioners would and should freely use their own best judgment. Thus, the
courts decided as a matter of law that employers could not exercise control over
doctors to the extent necessary to establish an agency relationship. See, e.g.,
Parsons v. Yolande Coal & Coke Co., 91 So. 493, 495 (Ala. 1921) (barring
vicarious liability because doctor “renders services requiring such training, skill,
and experience, the exercise of which must be in accordance with his best
judgment and without interference”); Schloendorff v. Soc’y of N.Y. Hosp., 105
N.E. 92, 94 (N.Y. 1914) (Cardozo, J.) (precluding vicarious liability because
medicine was “an independent calling . . . sanctioned by a solemn oath”); Pearl v.
W. End St. Ry. Co., 57 N.E. 339, 339 (Mass. 1900) (Holmes, C.J.) (finding “no
more distinct calling than that of the doctor, and none in which the employ[ee] is
more distinctly free from the control or direction of his employer”); see also Eads
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v. Borman, 277 P.3d 503, 511 (Or. 2012) (en banc) (noting historical view that
medical professionals, “because of the skill and judgment they exercised,” were
not subject to employer’s “control”).
Contemporary common law courts, however, have overwhelmingly
abandoned this approach. As a fundamental matter, “[t]he rules for determining
the liability of the employer for the conduct of both superior servants and the
humblest employees are the same,” Restatement (Second) of Agency § 220 cmt. a,
and employers routinely answer for the misconduct of their skilled employees, see,
e.g., Bing v. Thunig, 143 N.E.2d 3, 6 (N.Y. 1957) (objecting that “the special skill
of other employees (such as airplane pilots, locomotive engineers, chemists, to
mention but a few) has never been the basis for denying the application of
respondeat superior”). Informed by this general rule, the courts have come to
recognize that no principled distinction separates medical skill from other
categories of expertise or requires universal immunization from oversight. As one
court observed, “consistent application of the proposition [barring vicarious
liability for medical negligence based on the degree of skill involved] . . . would
require that virtually every professional who is expected to exercise independent
judgment . . . would have to be deemed an independent contractor.” McDonald v.
Hampton Training Sch. for Nurses, 486 S.E.2d 299, 303 (Va. 1997). Such
wholesale immunity has never been the rule.
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Moreover, as the medical profession has developed, many courts have come
to acknowledge that “an obligation to maintain control of their medical judgment
does not . . . prevent a physician or nurse from becoming a[n] . . . employee.”
Arango v. Reyka, 507 So. 2d 1211, 1214 (Fla. Dist Ct. App. 1987). Unlike
“physicians of the past,” who often functioned as “distinct independent entities and
independent centers of occupation and profession,” today’s medical practitioners
routinely work for major conglomerates, corporations, and other large associations.
Villazon v. Prudential Health Care Plan, Inc., 843 So. 2d 842, 854 (Fla. 2003). As
the Florida Supreme Court has remarked, “[t]he thought of visiting a private and
independent office of a totally independent physician may now be one more of
history and cultural conditioning than current reality.” Id.
The fact is that modern healthcare professionals often participate in diverse
agency relationships. They are employed, for example, by hospitals, universities,
clinics, other practitioners, and corporations of all kinds. Such principals may
powerfully influence the medical judgment and conduct of their employees in
many different ways. They might, for instance, restrict the practice of medicine
“through hiring criteria, training, formal practice guidelines, hierarchical
supervision structures, peer review groups[,] and disciplinary measures.” Harris v.
Miller, 438 S.E.2d 731, 737 (N.C. 1994) (footnote omitted). Even subtler
constraints may be enough to establish agency relationships in certain cases. See,
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e.g., Hodges v. Doctors Hosp., 234 S.E.2d 116, 118 (Ga. Ct. App. 1977) (finding
jury question on issue of agency because hospital required staff physician to
perform rotations in emergency room and paid him $100 per day); Newton Cnty.
Hosp. v. Nickolson, 207 S.E.2d 659, 661-63 (Ga. Ct. App. 1974) (finding jury
question on issue of agency because hospital paid physician on hourly basis and set
physician’s work schedule).
Amidst these broad networks of control, it should come as no surprise that
the courts overwhelmingly recognize and apply the principles of vicarious liability
in the world of modern medicine. See, e.g., Univ. of Ala. Health Servs. Found.,
P.C. v. Bush ex rel. Bush, 638 So. 2d 794, 799 (Ala. 1994) (recognizing vicarious
liability for medical negligence under Alabama law); Villazon, 843 So. 2d at 854-
55 (same under Florida law); Allrid v. Emory Univ., 285 S.E.2d 521, 525-26 (Ga.
1982) (same under Georgia law); see also Eads, 277 P.3d at 511-12 (“[M]ost
jurisdictions now hold that an entity that employs a physician is subject to
vicarious liability for that physician-employee’s malpractice if the negligent act
was committed in the course and scope of the employment.”).
This does not mean, of course, that every medical practitioner is someone
else’s agent. The application of the doctrine is plainly fact-specific, and no bright-
line rule could fit every circumstance. Again, control of the agent by the principal
remains the touchstone of the analysis. Thus, the courts have considered agency
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relationships on a case by case basis, and a wide variety of employers have faced
vicarious liability for the medical negligence of their employees. See, e.g., Univ.
of Ala. Health Servs., 638 So. 2d at 801-02 (university foundation); Villazon, 843
So. 2d at 854 (health maintenance organization); Allrid, 285 S.E.2d at 525-26
(hospital); see also TransCare Md., Inc. v. Murray, 64 A.3d 887, 889 (Md. 2013)
(ambulance transport company); Cox v. M.A. Primary & Urgent Care Clinic, 313
S.W.3d 240, 254 (Tenn. 2010) (urgent care clinic); Rannard v. Lockheed Aircraft
Corp., 157 P.2d 1, 6 (Cal. 1945) (en banc) (aerospace corporation); Jones v. Tri-
State Telephone & Telegraph Co., 136 N.W. 741, 741-42 (Minn. 1912) (telephone
company); Mrachek v. Sunshine Biscuit, Inc., 283 A.D. 105, 107-08 (N.Y. App.
Div. 1953) (corporate bakery). As a matter of law, we are hard-pressed to see why
the principal-agent relationship between a shipowner and a medical professional
should be treated any differently -- particularly where the shipowner employs a
large medical staff, wholly outfits the clinics where its medical employees work,
and exercises sufficient control over those personnel.
b.
Separately, we are told that shipowners cannot control onboard medical
personnel because the doctor-patient (or nurse-patient) relationship is “under the
control of the passengers themselves.” Barbetta, 848 F.2d at 1369 (quoting
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O’Brien, 28 N.E. at 267). The Supreme Judicial Court of Massachusetts put it this
way, in a nineteenth-century opinion cited heavily in Barbetta:
[The passengers] may employ the ship’s surgeon, or some other
physician or surgeon who happens to be on board, or they may treat
themselves if they are sick, or may go without treatment if they prefer;
and, if they employ the surgeon, they may determine how far they will
submit themselves to his directions, and what of his medicines they
will take and what reject, and whether they will submit to a surgical
operation or take the risk of going without it. The master or owners of
the ship cannot interfere in the treatment of the medical officer when
he attends a passenger. He is not their servant, engaged in their
business, and subject to their control as to his mode of treatment.
O’Brien, 28 N.E. at 267; accord The Great Northern, 251 F. at 831-32. Under this
rule, the passenger -- as patient -- always calls the shots.
There are a number of problems with this load-bearing Barbetta principle.
Most basically, we remain unimpressed by the assumption that a patient always
controls his medical relationships as a matter of law. Again, the facts are critical.
It makes little sense, for example, to suggest that an unconscious trauma patient
meaningfully chooses the emergency treatment he receives. What’s more, for
some time, the courts have imputed vicarious liability where employers have
required their employees or prospective employees to submit to a company
doctor’s care. See, e.g., Lockheed Aircraft Corp., 157 P.2d at 6; Tri-State
Telephone, 136 N.W. at 741; Beadling v. Sirotta, 176 A.2d 546, 549-50 (N.J.
Super. Ct. Law Div. 1961); Mrachek, 283 A.D. 105 at 107-08. In such cases,
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vicarious liability attaches in part because the treated person “ha[s] no [medical]
choice.” Id. at 108.
More to the point, we are particularly skeptical of the view that the patient
always holds the critical reins in this particular context. With no land on the
horizon, a passenger who falls ill aboard a cruise ship has precious little choice but
to submit to onboard care. The hard reality is that, at least in the short term, he
may have literally nowhere else to go. See, e.g., Fairley v. Royal Cruise Line Ltd.,
1993 A.M.C. 1633, 1638 (S.D. Fla. 1993) (characterizing injured or sick
passengers as “captive audience” whose “only resort” is onboard medical staff);
Carlisle v. Carnival Corp., 864 So. 2d 1, 5 (Fla. Dist. Ct. App. 2003) (rejecting “the
unrealistic suggestion that an ailing cruise passenger at sea has some meaningful
opportunity to simply forego treatment by the ship’s doctor”), decision quashed
953 So. 2d 461, 469-70 (Fla. 2007) (“find[ing] merit” in intermediate appellate
court’s holding but applying Barbetta rule because “federal principles of harmony
and uniformity” constrain state courts in maritime cases). Moreover, even where
resources exist to evacuate passengers to land-based medical facilities, afflicted
persons may reasonably be reluctant to seek treatment from an unknown doctor or
medical facility in a foreign land. Franza’s complaint only underscores these
problems, to the extent she claims that Vaglio “was required to go to the ship’s
medical center to be seen for his injuries.” Compl. ¶ 35 (emphasis added).
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In any case, even if we were to assume that a patient always controls the
treatment he receives, we would not be required to conclude that a patient
exclusively controls the doctor-patient relationship. As we have recognized
elsewhere, “courts have found that a [physician’s employer] may be vicariously
liable for the negligent acts of physicians even where the [employer] does not
control the manner and method of the physician’s work.” Johns v. Jarrard, 927
F.2d 551, 556 (11th Cir. 1991) (applying Georgia law) (emphasis added). Modern
courts widely acknowledge that a principal “both can, and in fact do[es],
significantly control the overall delivery of medical services . . . even if the
[principal] does not direct a professional’s discrete actions in treating individual
patients.” Eads, 277 P.3d at 511. Notwithstanding a patient’s right to opt in or out
of treatment, an employer can influence a doctor’s (or nurse’s) practice of
medicine in countless other ways. See, e.g., Harris, 438 S.E.2d at 737 (hiring
criteria, training, practice guidelines, supervision, peer review, and disciplinary
measures); see also Hodges, 234 S.E.2d at 118 (scheduling and compensation);
Newton Cnty. Hosp., 207 S.E.2d at 661-63 (same).
Again, these mechanisms of control will not always yield a finding of
agency. But agency is a question of fact, and we see no sound reason for refusing
to apply its principles in this context. The long and the short of it is that, outside
the maritime realm, the doctor-patient relationship no longer ineluctably, and as a
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matter of law, bars application of respondeat superior. One by one, American
common law courts have responded to seismic shifts in the medical industry by
holding principals responsible for the medical negligence of their agents. Given
the “wholesale abandonment of the rule in most of the area where it once held
sway,” Moragne, 398 U.S. at 388, 90 S. Ct. at 1781, we are reluctant to cling to
these arguments under the general maritime law.
2.
The second pillar on which Barbetta rests is the claim that the scope and
nature of a cruise line’s expertise renders it unable to supervise a medical
professional. As many courts have observed, with a note of finality, “[a] ship is
not a floating hospital.” Barbetta, 848 F.2d at 1369 (quoting Amdur v. Zim Israel
Navigation Co., 310 F. Supp. 1033, 1042 (S.D.N.Y. 1969)). In other words, since
a shipowner is “not in the business of providing medical services to passengers,”
we are told that no cruise line could “possess the expertise requisite to supervise” -
- and, by extension, to control -- the ship’s medical personnel. Id. (internal
quotation marks omitted). Even if some entities might be vicariously liable for
medical negligence, the argument goes, a cruise line is no such entity as a matter of
law.
Again, we are unpersuaded by the breadth of this immunity-yielding rule of
law. In the first place, it seems to us disingenuous for large cruise lines to disclaim
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any medical expertise when they routinely provide access to extensive medical
care in the infirmaries they have constructed for this very purpose. Viewing
Franza’s complaint in a light most favorable to the plaintiff, Royal Caribbean is
sufficiently involved in the business of providing medical care to yield the
possibility of liability. Thus, for example, the cruise line allegedly owns and
operates onboard medical centers, Compl. ¶ 28, which are staffed by doctors and
nurses whom the cruise line has hired, trained, outfitted, paid, and controlled, id. ¶¶
6, 7. Moreover, if we credit Franza’s claim that Royal Caribbean “pays to stock
the ‘medical centers’ with all supplies, various medicines and equipment,” id. ¶ 28,
we also presume the cruise line knows at least something about its purchases.
Taken at face value, these allegations evince at least some institutional knowledge
of medicine. In fact, courts recognize the medical knowledge of hospitals on
largely the same basis. See Bing, 143 N.E.2d at 11 (concluding that hospitals
directly “undertake to treat the patient” because they “employ on a salary basis a
large staff of physicians, nurses and internes” and “charge patients for medical care
and treatment”); accord Harris, 438 S.E.2d at 736-37; Eads, 277 P.3d at 511. 14
14
What’s more, we suspect that Franza’s allegations only scratch the surface. We have no
difficulty imagining other cases in which additional evidence could demonstrate a cruise line’s
medical expertise -- particularly since, in the public domain, cruise lines routinely claim to
possess such knowledge. See, e.g., Peltz, Has Time Passed Barbetta by?, at 19 (quoting
statement by Director of Princess Cruise Lines Medical Department claiming that “major cruise
lines have designed modern medical facilities comprising several ICUs, computerized radiology,
and sophisticated laboratories” and “have achieved accreditation to international health care
standards and ISO 9001 certification”); id. at 14-16 (noting that sixteen major cruise lines
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There can be no dispute, however, that a cruise ship is different from a
hospital. Undeniably, the practice of medicine is far more central to hospital
operations than to the business of cruising. But under basic agency principles, the
scope of an employer’s vicarious liability is not limited to negligence arising from
its primary business. Instead, common law courts regularly have imputed liability
for actions taken “in the scope of [the agent’s] authority or employment,” Meyer v.
Holley, 537 U.S. 280, 285, 123 S. Ct. 824, 829 (2003), without further requiring
that any such conduct implicate the principal’s core business. Therefore, when a
person is “employed” to perform medical services, Compl. ¶¶ 6, 7, and where any
negligence occurs “within the scope and course of [that] employment,” id.,
vicarious liability is sometimes appropriate -- even if the employer is not a
primarily medical enterprise. See, e.g., Lockheed Aircraft Corp., 157 P.2d 1
cooperated with American College of Emergency Physicians to develop and adopt “industry-
wide guidelines” addressing “unique needs and limitations of shipboard medical infirmaries”);
Adam Goldstein, Medical Tranquility and Peace of Mind, Royal Caribbean (Sept. 27, 2010),
http://www.royalcaribbean.com/connect/medical-tranquility-and-peace-of-mind (touting cruise
line’s onboard lab equipment, x-ray units, and clot-busting thrombolytics); Press Release,
Princess Cruises, Princess Cruises’ Medical Departments Earn Unique Distinction with
Prestigious Quality Certification and Accreditation (May 6, 2010),
http://www.princess.com/news/press_releases/ 2010/05/Princess-Cruises’-Medical-Departments-
Earn-Unique-Distinction-with-Prestigious-Quality-Certification-and-Accreditation.html (“[O]ur
medical centers achieve similar quality standards to medical facilities ashore[.]”); Royal
Caribbean Cruises Ltd., 2012 Stewardship Report, 17 (2012),
http://media.royalcaribbean.com/content/en_US/pdf/13034530_RCL_2012StwrdshpTwoPgrs_v4
.pdf (noting that shipowners supply equipment and provide training to enable onboard blood
transfusions). We do not credit as fact any information not pled in the complaint, but we note
that another plaintiff could have cited any of this information to rebut the basic assumption that
cruise ships are not in the business of providing medical services.
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(aerospace corporation); Chi. Rock Island & Pac. Ry. Co. v. Britt, 74 S.W.2d 398,
403 (Ark. 1934) (railroad); Tri-State Telephone, 136 N.W. 741 (telephone
company); Mrachek, 283 A.D. 105 (corporate bakery); Ebert v. Emerson Elec.
Mfg. Co., 264 S.W. 453, 458 (Mo. Ct. App. 1924) (manufacturing plant); see also
Gen. Elec. Co. v. Rees, 217 F.2d 595, 599 (9th Cir. 1954) (suggesting that
malpractice of employee-doctor “might have bound” General Electric); Hawksby
v. DePietro, 754 A.2d 1168, 1171-2 (N.J. 2000) (explaining that newspaper
company might have been liable for employee-doctor’s negligence absent workers’
compensation scheme). Against this authority, Barbetta stands for the proposition
that cruise lines peculiarly lack all medical expertise -- so much so that a
shipowner, unlike every other class of employer that employs medical staff, can
never be held vicariously liable for medical malpractice as a matter of law.
In particular, where the provision of some medical services is incidental to
the principal’s core business, courts have not hesitated to entertain the possibility
of vicarious liability. See, e.g., Blackburn v. Blue Mountain Women’s Clinic, 286
Mont. 60, 79-80 (Mont. 1997) (reversing district court’s dismissal of family
planning clinic in suit concerning counselor’s negligence); Speed v. Iowa, 240
N.W.2d 901 (Iowa 1976) (affirming judgment against state for medical
malpractice occurring at University of Iowa’s Student Health Infirmary); cf.
Kleinknecht v. Gettysburg College, 989 F.2d 1360, 1374-75 (3d Cir. 1993)
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(suggesting college might be vicariously liable for negligence of athletic program
trainers during medical emergency); Santiago v. Archer, 136 A.D.2d 290, 292
(N.Y. App. Div. 1988) (reversing district court’s grant of summary judgment
because union might be vicariously liable for medical malpractice occurring at its
clinic).
One example that strikes us as particularly salient is case law addressing
whether universities should be exempt from medical malpractice when they choose
to open medical clinics that serve their student bodies and members of the
community. University clinics are in many ways similar to cruise ship medical
centers. Both types of facilities provide an abbreviated menu of treatment and
procedure options as compared to a hospital or private physician’s office. Emory
Univ. v. Porubiansky, 282 S.E.2d 903, 903, 904 (Ga. 1981) (noting that clinic
patients agree to treatment that “proceed[s] more slowly” and may not be able to
“insist on complete treatment”); Ash v. N.Y. Univ. Dental Ctr, 164 A.D.2d 366,
369 (N.Y. App. Div. 1990) (noting that a clinic might “limit[] itself to certain types
of care or refus[e] to perform certain procedures”). Moreover, neither a cruise line
nor a university is in the primary business of providing medical services. Finally,
each entity claims to have constructed and maintained its facilities, not for the
purpose of entering the medical service business, but as a supplement to its
primary business. For the universities, clinics provide basic services to students
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and community members and serve as educational and research tools for their
students and professors. See Tunkl v. Regents of the Univ. of Cali., 383 P.2d 441,
442 (Cal. 1963); Emory Univ., 282 S.E. at 905. And for the cruise lines, medical
centers allegedly are provided as a convenience to passengers who may become ill
at sea.
In the university clinical program context, courts have declined to create
sweeping immunity from medical malpractice liability, explaining that these
characteristics of clinics do not justify “an exemption from the duty to exercise
reasonable care.” Emory Univ., 282 S.E.2d at 905. As the Georgia Supreme Court
has observed, clinics, and thus the universities that run them, “engage in the
practice of [medicine]” by “offering services.” Id. This fact, rather than the
university’s core business or underlying purposes for deciding to provide medical
care, is of primary importance when determining whether an exemption from
liability is appropriate. See id. (“The status of Emory University School of
Dentistry as primarily a training institution does not allow for an exemption from
the duty to exercise reasonable care.”). Additionally, in reponse to a university’s
argument that it should be immune from vicarious, though not direct, negligence,
the California Supreme Court has noted that no feature of clinical programs
justified such a departure from general principles of agency. The court observed
that “a legion of decisions . . . have drawn no distinction between the corporation’s
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own liability and vicarious liability resulting from the negligence of agents,” Tunkl
v. Regents of the Univ. of Cali., 383 P.2d 441, 448 (Cal. 1963), and that no
rationale supported adopting a different rule in the case of university clinics. In
our view, blanket immunity from vicarious liability is similarly unwarranted when
cruise ships choose to create, stock, and operate onboard medical centers with their
own physicians and nurses. Taking Franza’s allegations at face value, Royal
Caribbean employed medical personnel who rendered negligent services in the
course and scope of their medical employment, onboard a ship outfitted by the
principal with a medical infirmary or urgent care center. This seems to us to be
sufficient medical knowledge to at least withstand a motion to dismiss for failure to
state a claim.
Moreover, no principle from maritime tort law justifies treating shipowners
so differently from ordinary employers. On the contrary, shipowners have been
held vicariously liable for misconduct that falls at least this far outside the
heartland of the cruising business. In Muratore v. M/S Scotia Prince, for example,
a shipowner’s subcontractor’s photographer-employees tortiously photographed
and harassed a passenger. 845 F.2d 347, 349-50 (1st Cir. 1988). The First Circuit
affirmed the shipowner’s vicarious liability because the tortfeasors were “part of
[the ship’s] crew,” even though the shipowner was not primarily in the business of
photography. Id. at 353. If shipowners could be held liable for the photography of
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a subcontractor’s employee, we see little reason to suppose they could not be
called to answer for the medical negligence of the practitioners they directly
employ and control. Cf. Rogers v. Allis-Chalmers Mfg. Co., 92 N.E.2d 677, 683
(Ohio 1950) (acknowledging possibility that machinery manufacturer could be
vicariously liable for negligence by employees “engaged in athletic activities,”
though manufacturer was “not in the business of athletics”); Strait v. Hale Constr.
Co., 26 Cal. App. 3d 941, 950 (Cal. Dist. Ct. App. 1972) (affirming farmer’s
vicarious liability for highway collision caused by on-loan employee-operator of
farmer’s loaned machine, though farmer was avowedly “not in the business of
renting heavy equipment and furnishing an operator”).
There are also important policy reasons that inform against broad immunity
for cruise lines against any liability for their medical staff’s malpractice. Carriers
owe their ailing passengers “a duty to exercise reasonable care to furnish such aid
and assistance as ordinarily prudent persons would render under similar
circumstances.” Barbetta, 848 F.2d at 1371 (internal quotation marks omitted).
By investing in medical infrastructure and hiring skilled medical employees, cruise
ships avoid the potentially high cost of providing reasonable care in more
expensive ways. See, e.g., The Iroquois, 194 U.S. 240, 243 (1904) (explaining that
reasonable care depends on, inter alia, “the proximity of an intermediate port”).
The shipowner, by providing onboard medical resources, will often “avoid[ ] [its]
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sometimes inconvenient and costly duty to change course for the benefit of an
ailing passenger.” Nietes, 188 F. Supp. at 221. Under the Barbetta rule,
shipowners have access to a liability free method of discharging their duty of care
to passengers that is outside the realm of meaningful judicial review. Additionally,
beyond any potential for cost avoidance, cruise lines may even profit affirmatively
from onboard medical care. For instance, they might charge passengers for
treatment rendered. See Compl. ¶ 28. And, surely, for at least some ticket-buying
customers, the availability of onboard medical facilities is a deal-maker. 15 In short,
cruise lines have chosen quite deliberately to enter the business of medicine, often
in a large way, and they reap the tangible benefits of this business strategy. Thus,
it seems hardly anomalous to require cruise lines to bear the burden of this choice.
See generally Gregory C. Keating, The Idea of Fairness in the Law of Enterprise
Liability, 95 Mich. L. Rev. 1266, 1269 (1997).16
15
Indeed, in one study, persons over sixty represented nearly thirty percent of all respondents
who had ever taken a cruise vacation. Taylor Nelson Sofres, 2011 Cruise Market Profile Study,
Cruise Lines Int’l Assoc., 32 (June 2011), http://www.cruising.org/sites/default/files/pressroom/
Market_Profile_2011.pdf. Considering the likely preferences of this key demographic, we think
it very unlikely that cruise lines will respond to their new liability by eliminating onboard
medical care.
16
Several other policy arguments suggest setting aside the Barbetta rule. First, as compared with
an employee-doctor, a resource-rich cruise line can more readily bear the cost of a plaintiff’s
injury. See generally Prosser & Keeton, The Law of Torts 500-01 (5th ed. 1984) (noting that
employer is better able to “absorb,” “distribute,” and “shift” losses caused by employee torts)
[hereinafter Prosser & Keeton, The Law of Torts]; Guido Calabresi, Some Thoughts on Risk
Distribution and the Law of Torts, 70 Yale L.J. 499, 527 (1961) (describing “deep pocket”
justification for imposing liability on principals).Second, by imposing vicarious liability for
employee torts, we encourage profit-seeking employers to minimize the risk of costly tortious
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All told, Barbetta’s assumption that cruise lines lack any medical expertise is
difficult to accept in light of the industry’s decision to construct, outfit, and staff
medical centers onboard its ships. Moreover, no feature peculiar to cruise lines
distinguishes them from other corporate principals which must ordinarily answer
for the medical negligence of their employees. Again, we are loath to adopt a
principle of law that always immunizes a shipowner without regard to any of the
facts.
3.
The final pillar on which Barbetta rests is the notion that shipowners never
exercise “sufficiently immediate” control over their onboard medical personnel to
warrant vicarious liability. Barbetta, 848 F.2d at 1371 (quoting Amdur, 310 F.
Supp. at 1042). At its core, this argument assumes that no shipowner may ever be
close enough to control its onboard medical staff, whether the ship is
geographically near or distant from the principal’s home base. The glaring
problem we see with this conclusion is its fact-dependent premise. Put simply,
shipowners and their vessels (and their onboard medical staff) are not always far
apart. Thus, for example, whenever onboard treatment occurs before a ship
conduct. See generally Richard A. Posner, A Theory of Negligence, 1 J. Legal Stud. 29, 43
(1973) (describing respondeat superior as mechanism encouraging employers to “invest until the
last cent of [their] investment . . . saves one cent in . . . costs”); Prosser & Keeton, The Law of
Torts, at 500 (identifying “modern justification for vicarious liability” as “deliberate allocation of
risk” (footnote omitted)).
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departs, the owner of the vessel may be very close at hand. Moreover, a ship that
has already set sail may still be near its harbor of origin, or a ship may hug the
coastline and remain close to land-based medical facilities. And some ships may
even be owned by physical persons, whose supervision would certainly be
“immediate” whenever they traveled onboard. In short, principals and onboard
agents may be physically close together. To the extent that physical separation
vitiates control, the relevant questions are fact-based and ill-suited to resolution by
a per se rule of law.
Furthermore, as a general rule, the mere fact of physical separation between
principals and agents does not inevitably defeat respondeat superior -- in medical
malpractice cases or elsewhere. Again, the facts are everything. See, e.g., Scott v.
SSM Healthcare St. Louis, 70 S.W.3d 560, 568 (Mo. Ct. App. 2002) (“reject[ing]
the notion that [an agency] relationship cannot be found merely because the
hospital does not have the right to stand over the doctor’s shoulder”); see also
TransCare Md., 64 A.3d at 889-90, 903 (suggesting that ambulance company could
be vicariously liable for employee-paramedic’s negligence aboard helicopter);
Sigmon v. Tompkins Cnty., 449 N.Y.S.2d 621, 623 (N.Y. Sup. Ct. 1982)
(suggesting that ambulance company could be vicariously liable for medical
malpractice rendered by employee nurse traveling in ambulance); Restatement
(Second) of Agency § 220 cmt. d (“[T]he control or right to control needed to
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establish the relation of master and servant may be very attenuated.” (emphasis
added)); cf. Grigsby v. Coastal Marine Serv. of Tex., Inc., 412 F.2d 1011, 1031
(5th Cir. 1969) (implying unseaworthiness liability of “remote owner” where
“conduct . . . somehow implicates” that owner).
Even if distance may undercut liability in some cases, we see no need to
adopt a one size fits all rule where advanced technology often enables effective
communication between shore based principals and onboard medics. We do not
have to hypothesize about scenarios to support this point, because cruise lines
proudly advertise their own capabilities. Several cruise lines now purport to staff
extensive land-based medical departments with expert personnel. See Peltz, Has
Time Passed Barbetta by?, at 20 & n.69 (citing examples). By many accounts,
these and other onshore practitioners meaningfully communicate with a ship’s
medical employees even while the ship is at sea. See, e.g., id. at 21-22 (detailing
onboard treatment of passenger’s acute-onset stroke “[w]ith clinical and logistical
assistance” of shore-based medical team). These communications occur through
channels that were unheard of when the Fifth Circuit decided Barbetta, long before
the advent of widespread cellular and satellite communications. See, e.g., Royal
Caribbean Cruises Ltd., 2010 Stewardship Report, 8 (2010),
www.royalcaribbeanpresscenter.com/download-press-release/891/ (highlighting
modern cruise line’s “teledermatology” partnership with shore based university);
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Holland America Line, Onboard Medical Services and Facilities, 1 (2005),
http://www.hollandamerica.com/assets/news/PR_Medical.pdf (explaining that
“[t]he ship is able to access any medical specialist at [University of Texas Medical
Branch] in Galveston” and “radiologists can provide an instant overread of any x-
rays done on board). Because, twenty-six years after Barbetta, we now think a
shipowner could plausibly supervise a ship’s medical employees in places near and
far, we reject the sweep of the rule’s final rationale.
In short, we do not find that the arguments set forth in Barbetta justify its
broad grant of immunity from vicarious liability in all claims of medical
malpractice. Rather, we think we are obliged to follow our own maritime
precedent, which demands fact-intensive treatment of agency questions. We
cannot accept a legal principle that would erect a categorical exception from this
settled practice, and we see no reason to follow an outdated rule that serves no
useful purpose in modern maritime law. Thus, we hold that Franza’s allegations
established a plausible agency relationship between the employer, Royal Caribbean
Cruise Lines, Ltd., and its employees, Nurse Garcia and Dr. Gonzales, and that the
district court improvidently granted the Rule 12(b)(6) motion to dismiss.
IV.
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Franza also appeals the dismissal of her claim brought under the alternative
theory of apparent agency. 17 We are the first circuit to address whether a
passenger may use apparent agency principles to hold a cruise line vicariously
liable for the onboard medical negligence of its employees. Like the district court,
we conclude that a passenger may sue a shipowner for medical negligence if he
can properly plead and prove detrimental, justifiable reliance on the apparent
agency of a ship’s medical staff-member. However, we part ways with the district
court’s conclusion that Franza’s apparent agency claim was pled inadequately. As
we see it, Franza has plausibly alleged all of the elements of apparent agency.
A.
Plainly, actual agency and apparent agency are distinct theories of liability.
Unlike actual agency, the doctrine of apparent agency allows a plaintiff to sue a
principal for the misconduct of an independent contractor who only reasonably
appeared to be an agent of the principal. See, e.g., Borg-Warner Leasing, 733 F.2d
17
Many courts use the terms apparent agency, apparent authority, ostensible agency, and agency
by estoppel interchangeably. Though some courts have distinguished apparent agency and
apparent authority as theories of liability that require no reliance, we have never recognized that
distinction. See, e.g., Borg-Warner Leasing v. Doyle Elec. Co., 733 F.2d 833, 836 (11th Cir.
1984) (requiring “detrimental reliance” to establish “apparent authority” under Florida law);
Arceneaux v. Texaco, Inc., 623 F.2d 924, 926-27 (5th Cir. 1980) (requiring “reliance” to
establish “apparent authority in tort cases” under Louisiana law); Crowe v. Hertz Corp., 382 F.2d
681, 688 (5th Cir. 1967) (equating “apparent agency” with “agency by estoppel” and requiring
“reliance” under Georgia law). In any case, even if we were to acknowledge the possibility of
“apparent agency” liability without reliance, Franza’s complaint did not allege vicarious liability
on any such theory. Accordingly, we intend the term “apparent agency” in the ordinary sense.
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at 836 (Florida law); Crowe, 382 F.2d at 688 (Georgia law); see also Restatement
(Second) of Agency § 267.
These separate doctrines have been applied for quite different reasons and
under very different circumstances. While respondeat superior derives from a
principal’s right to control the conduct of its agents, liability under apparent agency
flows from equitable concerns. See Brown ex rel. Brown v. St. Vincent’s Hosp.,
899 So. 2d 227, 236 (Ala. 2004) (equating apparent agency with agency by
estoppel under Alabama law); Jackson Hewitt, Inc. v. Kaman, 100 So. 3d 19, 31
(Fla. Dist. Ct. App. 2011) (“[L]iability based on apparent authority is a form of
estoppel.”); Capital Color Printing, Inc. v. Ahern, 661 S.E.2d 578, 585 (Ga. Ct.
App. 2008) (noting that “doctrine of apparent agency is predicated on principles of
estoppel” (internal quotation marks and alteration omitted)); accord Primeaux v.
United States, 181 F.3d 876, 879 (8th Cir. 1999) (“[O]stensible agency is no
agency at all; it is in reality based entirely on an estoppel.” (internal quotation
marks and citation omitted)); Drexel v. Union Prescription Ctrs., Inc., 582 F.2d
781, 791 (3d Cir. 1978) (equating apparent agency and agency by estoppel under
Pennsylvania law); Sennott v. Rodman & Renshaw, 474 F.2d 32, 38 (7th Cir.
1973) (same under Illinois law); Hill v. St. Clare’s Hosp., 490 N.E.2d 823, 827
(N.Y. 1986) (same under New York law); see also Baptist Mem’l Hosp. Sys. v.
Sampson, 969 S.W.2d 945, 947 (Tex. 1998) (noting doctrine’s equitable
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foundation); Morback v. Young, 113 P. 22, 24 (Or. 1911) (same); Donnelly v. S.F.
Bridge Co., 49 P. 559, 560 (Cal. 1897) (same). Essentially, then, liability may be
appropriate under apparent agency principles when a principal’s conduct could
equitably prevent it from denying the existence of an agency relationship.
Because apparent agency does not turn on any notion of control, the Barbetta
rule does not directly address the question of apparent agency. 18 Apprehending
this distinction, many district courts within this Circuit have already recognized a
shipowner’s apparent agency liability for onboard medical negligence. See, e.g.,
Aronson v. Celebrity Cruises, Inc., __ F. Supp. 2d ___, No. 12-CV-20129, 2014
WL 3408582, at *12 (S.D. Fla. May 9, 2014); Lobegeiger v. Celebrity Cruises,
Inc., 869 F. Supp. 2d 1356, 1361 (S.D. Fla. 2012); Peavy v. Carnival Corp., No.
1:12-CV-20782, 2012 WL 5306353, at *2 (S.D. Fla. Oct. 26, 2012); Gentry v.
Carnival Corp., No. 11-21580-CIV, 2011 WL 4737062, at *4-5 (S.D. Fla. Oct. 5,
2011); Smolnikar v. Royal Caribbean Cruises Ltd., 787 F. Supp. 2d 1308, 1324
18
A few courts have suggested that, because of Barbetta’s prominence, no plaintiff could ever
reasonably mistake the agency status of onboard medical personnel “[a]bsent an explicit
manifestation by the ship owner countering the settled principle that medical staff [members] are
not their agents.” Huang v. Carnival Corp., 909 F. Supp. 2d 1356, 1361 (S.D. Fla. 2012); see
also Hajtman, 526 F. Supp. 2d at 1328-29 (holding that Barbetta rule precluded any reasonable
belief that medical staff were agents of shipowner); Warren v. Ajax Navigation Corp., 1995
A.M.C. 2609 (S.D. Fla. 1995) (same). Whatever its merits, this argument does not survive our
departure from the traditional rule. Separately, other courts have concluded that the Barbetta rule
bars apparent agency claims because apparent agency is merely a form of respondeat superior.
See, e.g., Balachander v. NCL (Bahamas) Ltd., 800 F. Supp. 2d 1196, 1204 (S.D. Fla. 2011);
Wajnstat v. Oceania Cruises, Inc., No. 09-21850-CIV, 2011 WL 465340, at *4 (S.D. Fla. Feb. 4,
2011). We think that view misapprehends the analytical distinction between actual and apparent
agency.
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(S.D. Fla. 2011); Peterson v. Celebrity Cruises, Inc., 753 F. Supp. 2d 1245, 1248
(S.D. Fla. 2010); Ridley v. NCL (Bahamas) Ltd., 824 F. Supp. 2d 1355, 1362 (S.D.
Fla. 2010); Rinker v. Carnival Corp., No. 09-23154-CIV, 2010 WL 9530327, at *4
(S.D. Fla. June 18, 2010); Barnett v. Carnival Corp., No. 06-22521-CIV, 2007 WL
1746900, at *2 (S.D. Fla. June 15, 2007); Hajtman v. NCL (Bahamas) Ltd., 526 F.
Supp. 2d 1324, 1328 (S.D. Fla. 2007); Suter v. Carnival Corp., 2007 A.M.C. 2564
(S.D. Fla. 2007); Doonan v. Carnival Corp., 404 F. Supp. 2d 1367, 1371-72 (S.D.
Fla. 2005); Huntley v. Carnival Corp., 307 F. Supp. 2d 1372, 1375 (S.D. Fla.
2004); Fairley v. Royal Cruise Line Ltd., 1993 A.M.C. 1633, 1639-40 (S.D. Fla.
1993).
We agree with this view. As we have noted at some length, the principles of
agency permeate the general maritime law, see Archer, 834 F.2d at 1573, and
apparent agency is no exception. The great weight of admiralty precedent has long
allowed plaintiffs to sue shipowners based on the apparent authority of third-
parties. See El Amigo v. Houston Marine Eng’g Works, 285 F. 868, 870 (5th Cir.
1923) (upholding claim against shipowner because third-party who ordered
supplies, repairs, and necessities “ha[d] apparent authority to bind the vessel”);
accord Garanti, 697 F.3d at 72 (reversing summary judgment in maritime contract
dispute because of factual question regarding third-party’s “actual or apparent
authority to act on [shipowner’s] behalf” (emphasis added)); Hawkspere, 330 F.3d
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at 236 (affirming shipowner’s maritime lien because no issue of fact existed “as to
whether [third-party] acted as an actual or apparent agent for [shipowner]”
(emphasis added)); Lake Charles Stevedores, Inc. v. Professor Vladimir Popov
MV, 199 F.3d 220, 228 (5th Cir. 1999) (affirming denial of maritime lien on
theory of “apparent authority” because shipowner did not “undert[ake] actions that
caused [plaintiffs] reasonably to believe that [third-party] was its agent”); Cactus
Pipe & Supply Co. v. M/V Montmartre, 756 F.2d 1103, 1111 (5th Cir. 1985)
(absolving shipowner of liability for damaged cargo because third-party did not
have “apparent authority” to issue bills of lading); cf. Marine Transp. Servs. Sea-
Barge Grp., Inc. v. Python High Performance Marine Corp., 16 F.3d 1133, 1138-
39 (11th Cir. 1994) (recognizing doctrine of equitable estoppel in maritime
context).
The federal circuits have made only passing references to apparent agency
principles in maritime tort cases. See, e.g., Reino de España v. Am. Bureau of
Shipping, Inc., 691 F.3d 461, 474 n.16 (2d Cir. 2012) (suggesting that maritime
principal might have been liable for reckless conduct if alleged agent had
possessed “apparent authority” to receive certain notifications); Kawasaki Kisen
Kaisha, Ltd. v. Plano Molding Co., 696 F.3d 647, 659 (7th Cir. 2012) (implying
that maritime principal might have been liable for negligence under doctrine of
“apparent authority” if plaintiffs had established their “belie[f] that [third-party]
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was acting as [principal’s] agent”). Nonetheless, given the broad salience of
agency rules in maritime law, see Archer, 834 F.2d at 1573, and the important role
the federal courts play in setting the bounds of maritime torts, see Exxon, 554 U.S.
at 508 n.21, 128 S. Ct. at 2630, we think apparent agency principles apply in this
context. Indeed, the equitable foundations of apparent agency are just as important
in tort as in contract. See Arceneaux, 623 F.2d at926 (assuming that Louisiana
courts would apply apparent agency in tort cases because they had done so in
contract); see also Drexel, 582 F.2d 791-92 (concluding under Pennsylvania law
that “policies” and “factual issues” support apparent agency in both contract and
tort).
Having long applied the principles of apparent agency in maritime cases, we
can discern no sound basis for allowing a special exception for onboard medical
negligence, particularly since we have concluded that actual agency principles
ought to be applied in this setting as well. Outside the maritime realm, many
common law courts -- including the courts found in all three states of this Circuit --
have recognized vicarious liability for the medical negligence of apparent agents.
See, e.g., Brown, 899 So. 2d at 238 (“see[ing] no reason” in medical malpractice
case “to abandon [the Alabama Supreme Court’s] rule” of apparent agency);
Roessler v. Novak, 858 So. 2d 1158, 1162 (Fla. Dist. Ct. App. 2003) (holding
principal “vicariously liable for the acts of physicians, even if they are independent
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contractors, if these physicians act with . . . apparent authority”); Richmond Cnty.
Hosp. Auth. v. Brown, 361 S.E.2d 164, 166-67 (Ga. 1987) (recognizing vicarious
liability where principal “represented to [plaintiff] that its emergency room
physicians were its employees”); see also Eads, 277 P.3d at 514 (“[T]he weight of
authority in other jurisdictions is that, in a proper case, a hospital or other entity
can be held vicariously liable for a physician’s negligence on an apparent authority
theory.”). Medical negligence triggers the same equitable concerns whether it
arises on land or at sea, and, therefore, we think apparent agency liability may be
appropriate in both settings.
B.
Under the doctrine of apparent agency, just as in the case of actual agency,
vicarious liability turns on the facts presented. When applying the tort and contract
law of several states, we have repeatedly observed that apparent agency liability
requires finding three essential elements: first, a representation by the principal to
the plaintiff, which, second, causes the plaintiff reasonably to believe that the
alleged agent is authorized to act for the principal’s benefit, and which, third,
induces the plaintiff’s detrimental, justifiable reliance upon the appearance of
agency. See Borg-Warner Leasing, 733 F.2d at 836 (Florida law); Arceneaux, 623
F.2d at 927 & n.4 (Louisiana law); Crowe, 382 F.2d at 688 (Georgia law).
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Applying these general principles to the facts alleged in this case, we conclude that
Franza has plausibly and adequately pled all three elements of apparent agency.
In the first place, Royal Caribbean purportedly made a number of salient
representations to Vaglio. The cruise line: (1) “promote[d] its medical staff and
represent[ed] them as being [cruise line] employees through brochures, internet
advertising, and on the vessel,” Compl. ¶ 26; (2) publicly described the medical
centers in proprietary language, id. ¶ 28; (3) billed passengers directly for onboard
medical services, id. ¶ 28; (4) required its doctors and nurses to wear uniforms
bearing the cruise line’s name and logo, id. ¶ 29; (5) held out Dr. Gonzales and
Nurse Garcia as “members of the ship’s crew” to passengers and immigration
authorities, id. ¶¶ 31, 33; and (6) “introduce[d]” Dr. Gonzales to the ship’s
passengers “as one of the ship’s Officers,” id. ¶ 30.
Second, based on these allegations, Vaglio reasonably could believe that Dr.
Gonzales and Nurse Garcia were authorized to render medical services for the
cruise line’s benefit. Indeed, according to Franza’s complaint, Royal Caribbean
actually intended that its passengers perceive the ship’s medical staff to be agents
of the cruise line, insofar as the cruise line encouraged “the idea that the medical
staff who work in its ‘medical centers’ are employed by the cruise line as part of a
marketing tool to induce passengers such as [Vaglio] to buy cruises on its ships.”
Id. ¶ 27.
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Finally, as for the third element, the district court dismissed Franza’s
apparent agency claim because her complaint “d[id] not state how Vaglio relied on,
or changed his position in reliance on, his alleged belief that the doctor and/or
nurse was Royal Caribbean’s agent.” Franza, 948 F. Supp. 2d at 1333. We
disagree. It is true that “apparent agency [cannot] exist for the benefit of the
person injured without reliance upon the apparent holding out of the principal.”
Crowe, 382 F.2d at 688. Moreover, this reliance must be “detrimental,” Borg-
Warner Leasing, 733 F.2d at 836, and “justifiabl[e],” Arceneaux, 623 F.2d at 927
n.4 (quoting Restatement (Second) of Agency § 267); see also Drexel, 582 F.2d at
791; Stone v. Palms W. Hosp., 941 So. 2d 514, 520 n.13 (Fla. 4th DCA 2006) (per
curiam). However, the complaint alleged precisely such reliance:
[Vaglio] relied to his detriment on his belief that the physician and
nurse were direct employees or actual agents of [Royal Caribbean] in
that [Vaglio] followed the advice of the nurse and/or physician who
did not seek any further medical testing or evaluation while the ship
was in Bermuda, that he relied on the ship’s nurse and/or physician,
[and] that he did not follow-up with the ship’s medical staff as he was
told that he did not have any serious injury.
Compl. ¶ 38.
We are hard-pressed to see how this pleading falls short. Indeed, Franza
explained that Vaglio (1) “relied to his detriment” (2) “on his belief” (3) that Dr.
Gonzales and Nurse Garcia “were direct employees or actual agents of [Royal
Caribbean].” Furthermore, through the specifying phrase, “in that,” she alleged
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precisely how Vaglio relied on the appearance of agency: (1) he “followed the
advice of the nurse and/or physician,” (2) despite the fact that those medical
personnel “did not seek any further medical testing or evaluation while the ship
was in Bermuda,” and (3) the degree of his reliance was so pronounced “that he
did not [even] follow up with the ship’s medical staff.” At this early stage in the
proceeding, one plausible interpretation of Franza’s allegations is that Vaglio
indeed relied to his profound detriment on the appearance of agency, in that he
would not have blindly trusted the advice of unknown medical personnel (who
sought no counsel from other medical professionals while the ship was docked) if
the ship’s doctor and nurse had not borne the imprimatur of a well-known and
trusted cruise line. Under these circumstances, and in light of Royal Caribbean’s
advertised medical expertise, detrimental reliance may have been justifiable.
Of course, we recognize that Franza could have taken her allegations one
step further. Thus, she could have specifically claimed that Vaglio would not have
followed the advice of the ship’s medical personnel had he suspected they were not
actually the agents of Royal Caribbean. Effectively, however, that sort of
statement would only put Franza’s existing message in the negative. We do not
require plaintiffs to perform such linguistic gymnastics in order to defeat a motion
to dismiss. On these specific allegations, then, we are constrained to reverse the
district court’s dismissal of Franza’s apparent agency claim.
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V.
Having determined that Franza plausibly alleged two alternative theories of
vicarious liability, we turn to a final question: whether the complaint adequately
supports a claim of negligence in the first place. We think it does. To plead
negligence in a maritime case, “a plaintiff must allege that (1) the defendant had a
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.” Chaparro, 693 F.3d at 1336. All four elements
are met here.
First, Franza alleged that Royal Caribbean was duty-bound to “provide
prompt and appropriate medical care” following Vaglio’s severe head injury.
Compl. ¶ 19. It is indisputable that cruise lines must treat their passengers with
“ordinary reasonable care under the circumstances.” Keefe v. Bahama Cruise
Line, Inc., 867 F.2d 1318, 1322 (11th Cir. 1989) (per curiam). Implicit in this
variable standard is the notion that cruise lines will not always be held to the same
standard of care that would guide treatment onshore. This is as it should be, since
standards of care typically vary among differently situated healthcare providers.
See, e.g., Jackson v. Pleasant Grove Health Care Ctr., 980 F.2d 692, 694 & n.2
(11th Cir. 1993) (recognizing in nursing home negligence case that, under
Alabama law, relevant standard of care governs “similarly situated health care
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provider[s]”), abrogated on other grounds by Weisgram v. Marley Co., 528 U.S.
440, 120 S. Ct. 1011 (2000); see also Cruz-Vázquez v. Mennonite Gen. Hosp.,
Inc., 613 F.3d 54, 56 (1st Cir. 2010) (noting that standard of care depends on
“relevant medical circumstances”); Watson v. United States, 485 F.3d 1100, 1109-
10 & n.7 (10th Cir. 2007) (finding no clear error in determination that ambulatory
care clinic was not required under applicable standard of care to stock Mannitol,
since evidence suggested that “Mannitol was not a medication normally
administered outside of a hospital setting”); cf. Fla. Stat. Ann. § 766.102 (2013)
(defining standard of care in medical malpractice action “in light of all relevant
surrounding circumstances”). Here, the precise contours of Royal Caribbean’s
duty depend on questions of fact that need not and cannot be answered at this
stage. However, Franza’s specific allegations suffice.
Second, Royal Caribbean, by and through its medical personnel, purportedly
breached its duty in “one or more of the following ways”: (1) “failing to properly
assess the condition” of Vaglio; (2) “allowing a nurse to make the initial
assessment”; (3) “failing to have a doctor assess [Vaglio]”; (4) “failing to timely
diagnose and appropriately treat [Vaglio]”; (5) “failing to order appropriate
diagnostic scans to further assess the degree of injury”; (6) “failing to obtain
consultations with appropriate specialists”; (7) “failing to properly monitor
[Vaglio]”; (8) “failing to evacuate [Vaglio] from the vessel for further care in a
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timely manner”; and (9) “deviating from the standard of care for patients in Mr.
Vaglio’s circumstances who had suffered a significant blow to the head.” Compl.
¶ 20. If proven, these allegations could establish a breach of even a modest duty of
care, framed by the particular circumstances of the case.
Third, Franza has alleged that, as a “direct and proximate result of [this]
negligence,” Vaglio’s “condition deteriorated to the point that he fell into a coma
and died.” Id. ¶ 22. In fact, had Vaglio “received the appropriate care and
treatment,” the claim is made that, “more likely than not[,] . . . he would have
survived.” Id. ¶ 23. Finally, Vaglio suffered damages as a result of Royal
Caribbean’s alleged negligence. Vaglio’s estate “has become obligated to pay
significant medical bills and other expenses,” id. ¶ 24, and his “widow . . . has lost
his pension, his social security, medical insurance, and the value of his services
and incurred expenses for medical care, funeral services[,] and interment,” id. ¶ 25.
Taken in a light most favorable to Franza, these assertions set forth a prima facie
claim of negligence.
VI.
In sum, the allegations in Franza’s complaint plausibly support holding
Royal Caribbean Cruises, Ltd., vicariously liable for the medical negligence of its
onboard nurse and doctor. Because Franza adequately pled all of the elements of
both actual and apparent agency, we hold that Franza may press her claims under
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either or both theories. Accordingly, we reverse and remand for further
proceedings consistent with this opinion.
REVERSED AND REMANDED.
63