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
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 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 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.
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
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.
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.
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 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.
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, 173 L.Ed.2d 868 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 1974, 167 L.Ed.2d 929 (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,
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., 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, 87 L.Ed. 1065 (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, 63 S.Ct. 814 (declining to consider question of liability "in the absence of the Jones Act").
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. River S.S. Corp. v. Transamerica Delaval Inc., 476 U.S. 858, 864, 106 S.Ct. 2295, 2298-99, 90 L.Ed.2d 865 (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, 44 L.Ed.2d 251 (1975) (quoting Fitzgerald v. U.S. Lines Co., 374 U.S. 16, 20, 83 S.Ct. 1646, 1650, 10 L.Ed.2d 720 (1963)); see Moragne v. States Marine Lines, Inc., 398 U.S. 375, 405 n. 17, 90 S.Ct. 1772, 1790, 26 L.Ed.2d 339 (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, 3 L.Ed.2d 368 (1959) (explaining that courts are best equipped
The Supreme Court has likewise authorized and directed the lower federal courts to shape this law, explaining that the Constitution "empowered the federal 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, 171 L.Ed.2d 570 (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, 61 L.Ed.2d 521 (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, 79 L.Ed. 176 (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.
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
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, 64 L.Ed.2d 284 (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, 128 L.Ed.2d 148 (1994) (adopting proportionate-fault 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, 46 L.Ed. 190 (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, 42 L.Ed. 292 (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.").
Thus, we have regularly permitted passengers to invoke respondeat superior in maritime negligence suits.
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
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]").
Instead, we think it more accurate to say that, absent any statutory mandate to the contrary, the existence of an agency
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, 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
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, 647 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 [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, 647 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 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
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.
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.
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 steamships, see, e.g., Barbetta, 848 F.2d at 1369 (citing O'Brien v. Cunard S.S. Co., 154 Mass. 272, 28 N.E. 266, 267 (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, 44 L.Ed.2d 251 (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.
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 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.
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
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, 2 N.Y.2d 656, 163 N.Y.S.2d 3, 143 N.E.2d 3, 6 (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, 254 Va. 79, 486 S.E.2d 299, 303 (1997). Such wholesale immunity has never been the rule.
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
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., 249 Ga. 35, 285 S.E.2d 521, 525-26 (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 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, 431 Md. 225, 64 A.3d 887, 889 (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., 26 Cal.2d 149, 157 P.2d 1, 6 (1945) (en banc) (aerospace corporation); Jones v. Tri-State Telephone & Telegraph Co., 118 Minn. 217, 136 N.W. 741, 741-42 (1912) (telephone company); Mrachek v. Sunshine Biscuit, Inc., 283 A.D. 105, 107-08, 126 N.Y.S.2d 383 (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.
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 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:
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, 71 N.J.Super. 182, 176 A.2d 546, 549-50 (N.J.Super.Ct.Law Div. 1961); Mrachek, 283 A.D. 105 at 107-08, 126 N.Y.S.2d 383. In such cases, vicarious liability attaches in part because the treated person "ha[s] no [medical] choice." Id. at 108, 126 N.Y.S.2d 383.
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).
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
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 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.
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 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, 163 N.Y.S.2d 3, 143 N.E.2d at 8 (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
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, 154 L.Ed.2d 753 (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 (aerospace corporation); Chi. Rock Island & Pac. Ry. Co. v. Britt, 189 Ark. 571, 74 S.W.2d 398, 403 (1934) (railroad); Tri-State Telephone, 136 N.W. 741 (telephone company); Mrachek, 283 A.D. 105, 126 N.Y.S.2d 383 (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, 165 N.J. 58, 754 A.2d 1168, 1171-2 (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
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, 248 Ga. 391, 282 S.E.2d 903, 903, 904 (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, 564 N.Y.S.2d 308 (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 and community members and serve as educational and research tools for their students and professors. See Tunkl v. Regents of the Univ. of Cali., 60 Cal.2d 92, 32 Cal.Rptr. 33, 383 P.2d 441, 442 (1963); Emory Univ., 282 S.E.2d 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 response 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 own liability and vicarious liability resulting from the negligence of agents," Tunkl v. Regents of the Univ. of Cali., 60 Cal.2d 92, 32 Cal.Rptr. 33, 383 P.2d 441,
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 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., 153 Ohio St. 513, 92 N.E.2d 677, 683 (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, 103 Cal.Rptr. 487 (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, 24 S.Ct. 640, 48 L.Ed. 955 (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] 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
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.
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 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
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); 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 xrays 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.
Franza also appeals the dismissal of her claim brought under the alternative theory of apparent agency.
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 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, 291 Ga.App. 101, 661 S.E.2d 578, 585 (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., 67 N.Y.2d 72, 499 N.Y.S.2d 904, 490 N.E.2d 823, 827 (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 foundation); Morback v. Young, 58 Or. 135, 113 P. 22, 24 (1911) (same); Donnelly v. S.F. Bridge Co., 117 Cal. 417, 49 P. 559, 560 (1897) (same). Essentially, then,
Because apparent agency does not turn on any notion of control, the Barbetta rule does not directly address the question of apparent agency.
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 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
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] 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 at 926 (assuming that Louisiana courts would apply apparent agency in tort cases because they had done so in contract); see also Drexel, 582 F.2d at 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 contractors, if these physicians act with ... apparent authority"); Richmond Cnty. Hosp. Auth. v. Brown, 257 Ga. 507, 361 S.E.2d 164, 166-67 (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.
Under the doctrine of apparent agency, just as in the case of actual
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.
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 (Fla. 4th DCA 2006) (per curiam). However, the complaint alleged precisely such reliance:
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.
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.
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 provider[s]"), abrogated on other grounds by Weisgram v. Marley Co., 528 U.S. 440, 120 S.Ct. 1011, 145 L.Ed.2d 958 (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
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 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.
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 either or both theories. Accordingly, we reverse and remand for further proceedings consistent with this opinion.
