Opinion
Case No. 2:20-cv-840-FtM-38NPM
2021-03-29
Lisa CONNER, Plaintiff, v. MARRIOTT HOTEL SERVICES, INC. and Premier Amusements, Inc., Defendants.
Cory A. Baird, Baird Law Group, Jason Christopher Mulholland, Law Offices of Jason Mulholland, PA, Tampa, FL, for Plaintiff. Kyle J. Stewart, Jennifer Patricia Brooks, Hamilton, Miller & Birthisel, LLP, Miami, FL, for Defendant Marriott Hotel Services, Inc. Dennis Michael Campbell, Jared Dall'au, Campbell Law Firm, PLLC, Coral Gables, FL, for Defendant Premier Amusements, Inc.
Cory A. Baird, Baird Law Group, Jason Christopher Mulholland, Law Offices of Jason Mulholland, PA, Tampa, FL, for Plaintiff.
Kyle J. Stewart, Jennifer Patricia Brooks, Hamilton, Miller & Birthisel, LLP, Miami, FL, for Defendant Marriott Hotel Services, Inc.
Dennis Michael Campbell, Jared Dall'au, Campbell Law Firm, PLLC, Coral Gables, FL, for Defendant Premier Amusements, Inc.
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SHERI POLSTER CHAPPELL, UNITED STATES DISTRICT JUDGE Before the Court is Defendant Premier Amusements, Inc.’s Motion to Dismiss (Doc. 24) and Plaintiff Lisa Conner's response in opposition (Doc. 29). The Court grants the Motion in part.
The operative pleading is the Second Amended Complaint. (Doc. 19)
While at Defendant Marriot Hotel Services, Inc.’s hotel, Conner played a virtual reality game. Premier maintained and serviced the hotel's gaming system. During play, Conner lost balance and fell. She sued each Defendant for negligence. After dismissal and amendment, she now sues Premier for negligence sounding in premises liability, strict liability failure to warn, negligent failure to warn, negligent mode of operations, as well as negligent hiring, training, supervision, and retention of employees. Premier moves to dismiss for failing to state a claim.
LEGAL STANDARD
A complaint must recite "a short and plain statement of the claim showing that the pleader is entitled to relief." Fed. R. Civ. P. 8(a)(2). This pleading standard "does not require ‘detailed factual allegations,’ but it demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation." Ashcroft v. Iqbal , 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Bell Atl. Corp. v. Twombly , 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) ). "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.’ " Id. (quoting Twombly , 550 U.S. at 570, 127 S.Ct. 1955 ). A facially plausible claim allows a "court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id.
DISCUSSION
The Court takes each theory in turn.
A. Negligence
In Count 2, Connor alleges Premier failed "to exercise reasonable care to maintain the premises ... containing the [gaming system] in a reasonably safe condition and free from risks known to Defendant, but not apparent to Plaintiff." (Doc. 19 at 4-5). This is a negligence claim for premises liability.
To sustain a premises liability action based on a landowner's negligence, a plaintiff must prove the standard elements of a negligence claim: duty, breach of duty, proximate causation, and damages—with the added element that the landowner had possession or control of the premises when the alleged injury occurred. E.g., Lisanti v. City of Port Richey , 787 So. 2d 36, 37 (Fla. 2d DCA 2001). In Florida, the duty a landowner owes depends on the plaintiff's relationship to the property. See Seaberg v. Steak N’ Shake Operations, Inc. , 154 F. Supp. 3d 1294, 1299 (M.D. Fla. 2015). A landowner owes an invitee to the premises two distinct duties. The landowner must (1) warn dangers; and (2) maintain the premises in a reasonably safe condition. Rocamonde v. Marshalls of Ma, Inc. , 56 So. 3d 863, 865 (Fla. Dist. Ct. App. 2011). These duties do not make the owner of real property "an insurer of the safety of persons on the property, nor is the owner strictly liable, or liable per se without fault, for injuries resulting from dangerous conditions on owned property." Haynes v. Lloyd , 533 So. 2d 944, 946 (Fla. Dist. Ct. App. 1988). A cause of action for premises liability does not demand the legal title or ownership, "but the failure of a person who is in actual possession and control (be it the owner, an agent, a lessee, a construction contractor, or other possessor with authority and control), to use due care to warn or to exclude, licensees and invitees from areas known to the possessor to be dangerous because of operations or activities or conditions." Id.
Connor must plead facts sufficient to establish a plausible claim for relief. At issue are the allegations on control or possession. The Complaint fails to allege any facts plausibly supporting an inference that Premier had possession or control over the premises. It is not clear what role Premier had in relation to the property and therefore what duty it owed. The Complaint alleges Premier performed maintenance. But this cannot establish possession or control for this claim. As alleged, Premier might be the gaming system repair company, third party in charge of Marriott's arcade area, or the distributor of the gaming system. Whatever Premier's role may be, the Complaint must plausibly state how it is liable.
So Count 2 is dismissed without prejudice. The last dismissal was on shotgun pleading grounds, and Connor requested leave to amend. The Court, therefore, will allow Connor one last chance to state a claim
B. Strict Liability to Warn and Negligent Failure to Warn
In Counts 3 and 4, Conner alleges that absence of a warning in the gaming system posed a foreseeable risk of harm that made the system unreasonably dangerous and caused her injury.
To establish a viable claim for strict liability failure to warn, a pleading must state the defendant (1) manufactured or distributed the product, (2) failed to "adequately warn of a particular risk that was known or knowable in light of the generally recognized and prevailing best scientific and medical knowledge available at the time of manufacture and distribution," and (3) that the failure proximately caused the plaintiff's injury. Griffin v. Kia Motors Corp. , 843 So.2d 336, 339 (Fla. 1st DCA 2003). A negligent failure-to-warn claim demands plaintiff prove a manufacturer or distributor failed to warn of a risk for reasons felling below the standard of care (i.e., "what a reasonably prudent manufacturer would have known and warned about"). Ferayorni v. Hyundai Motor Co. , 711 So.2d 1167, 1172 (Fla. Dist. Ct. App. 1998) (citation omitted). The difference between the two is "a prima facie case of strict liability failure to warn does not require a showing of negligence." Id.
Premier argues Counts 3 and 4 should be dismissed because they don't "describe or even mention the content of any warnings that were provided." (Doc. 24 at 6). Yet, as the Court understands it, Conner alleges a complete failure to warn, rather than inadequate warning. She says Premier "failed to provide instructions or warnings." (Doc. 19 at 2, 5-6). So contrary to Premier's argument, the Complaint's failure to identify the specific game is not fatal at this stage. Whether a warning was actually given and its content is a matter better addressed at summary judgment. For now, it is enough for Connor to allege she received no warning at all. Thus, Counts 3 and 4 survive. C. Negligent Mode of Operations
In Count 5, Conner alleges Premier had a duty to not create dangerous or unsafe conditions on the premises through their mode of operation over a failure to exercise due care to minimize the foreseeable risk created by the gaming system, causing Conner's injury.
Generally, "The duty of premises owners to maintain their premises in a safe condition is not exclusively limited to detecting dangerous conditions on the premises after they occur and then correcting them; the duty to exercise reasonable care may extend to taking actions to reduce, minimize, or eliminate foreseeable risks before they manifest themselves as particular dangerous conditions on the premises." Markowitz v. Helen Homes of Kendall Corp. , 826 So. 2d 256, 259 (Fla. 2002). Negligent mode of operation is a theory of negligence that focuses on the way a business operates; the difference between it and negligence is that it that eliminates the requirement for constructive knowledge. Strickler v. Walmart, Inc. , No. 2:18-cv-781-FtM-38MRM, 2020 WL 2308306, at *6 (M.D. Fla. May 8, 2020).
Like premises liability above, the relationship sustaining the duty of reasonable operation turns on ownership or control of the premises and Premier's activities. So as with Count 2, Conner failed to allege facts sufficient to establish what Premier's relationship is to the premises. Without facts to establish Premier's role on the premises, there is insufficient evidence to establish its mode of operation is somehow negligent. Count 5 is dismissed with leave to amend.
D. Negligent Hiring, Training, Supervision, and Retention
In Count 6, Conner alleges Premier failed in its duty to exercise reasonable care in hiring, supervision, training, or retention to provide warnings to avoid foreseeable harm due to the gaming system. Each of the four theories have their own separate elements. Long v. E. Coast Waffles, Inc. , No. 2:16-cv-322-FtM-99MRM, 2016 WL 3763236 (M.D. Fla. July 14, 2016). Yet all require an employer-employee relationship. See, e.g. , Martinez v. Pavex Corp. , 422 F. Supp. 2d 1284, 1298-99 (M.D. Fla. 2006).
Conner fails to allege a single fact for how Premier was negligent in relation to any employees. In fact, Connor doesn't even allege the existence of Premier's employee at Marriott. Without facts to establish Premier's role on the premises, the statement Premier "operated" the gaming system cannot establish Premier failed to exercise reasonable care in the hiring, training, supervising, or retaining any employees. Conner argues information relating to employees would be revealed in discovery. Yet Twiqbal rejected such we'll-figure-it-out-in-discovery arguments. The Complaint must plausibly allege how Premier was negligent in relation to its employees at Marriott. And Count 6 must be repled.
Accordingly, it is now
ORDERED :
(1) Defendant's Motion to Dismiss (Doc. 24) is GRANTED in part. Counts 2, 5, and 6 are DISMISSED without prejudice.
(2) Plaintiff must FILE an amended complaint on or before April 9, 2021 . The failure to file a timely amended complaint will result in the closing of this case without further notice .
DONE and ORDERED in Fort Myers, Florida on March 29, 2021.