Literature CASE ASSIGNMENT

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA

MIAMI DIVISION

CASE NO: 12-CV-22184-FAM

AMY HOWARD, and KENNETH HOWARD, her husband Plaintiffs, v. KERZNER INTERNATIONAL LIMITED, a Bahamian company; KERZNER INTERNATIONAL BAHAMAS LIMITED, a Bahamian company, ISLAND HOTEL COMPANY LIMITED, a Bahamian company; and PARADISE ISLAND LIMITED, a Bahamian company. Defendants. ________________________________________/

DEFENDANTS’ ANSWER AND AFFIRMATIVE DEFENSES TO PLAINTIFF’S COMPLAINT FOR DAMAGES

Defendants, Kerzner International Limited, Kerzner International Bahamas Limited,

Island Hotel Company Limited, and Paradise Island Limited (collectively “Defendants”), hereby

file this Answer and Affirmative Defenses to Plaintiff’s Complaint for Damages (“Complaint”)

and state as follows:

As a preliminary matter, pursuant to the agreement of the parties, Plaintiffs have

voluntarily dismissed Bobby Flay’s Mesa Grill Bahamas (“Mesa Grill”) from this lawsuit

without prejudice. See DE 11. As such, no response from Mesa Grill is required. To the extent a

response is required, Mesa Grill denies the allegations in the Complaint and adopts the

affirmative defenses herein.

1. Admitted that this purports to be an action against Defendants, but denied that any

damages exist or that damages exceed the jurisdictional requirement, exclusive of costs and

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interest.

2. Denied.

3. Without knowledge and therefore denied.

4. Admitted that long ago it was known by that name.

5. Denied as phrased.

6. Denied.

7. Denied as phrased.

8. Denied.

9. Denied as phrased.

10. Denied as phrased.

11. Denied as phrased.

12. Denied as phrased.

13. Admitted.

14. Admitted it is the operator of Atlantis, otherwise denied as phrased.

15. Denied as phrased.

16. Denied.

17. Denied.

18. Denied as phrased.

19. Denied as phrased.

20. Denied as phrased.

21. Admitted only that Bonnie Biumi has had an office in Plantation, Florida,

otherwise denied as phrased.

22. Denied as phrased.

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23. Denied as phrased.

24. Admitted only that Atlantis Resort is advertised in Florida, otherwise denied as

phrased.

25. Denied as phrased.

26. Denied as phrased.

27. Denied as phrased.

28. Denied as phrased.

29. Denied.

30. Denied as phrased.

31. Denied as phrased.

32. Denied as phrased.

33. Denied as phrased.

34-38 Pursuant to the agreement of the parties, Plaintiffs have voluntarily dismissed

Bobby Flay’s Mesa Grill Bahamas (“Mesa Grill”) from this lawsuit without prejudice. As such,

no response from Mesa Grill is required for paragraphs 34 through 38. To the extent a response

is required, Mesa Grill denies the allegations in paragraphs 34 through 38.

39. Admitted only that Amy Howard alleges she suffered personal injury as a result

of eating fish at Mesa Grill, otherwise denied.

COUNT I NEGLIGENCE OF KERZNER DEFENDANTS

40. Denied as phrased.

41. Denied as phrased.

42. Denied.

43. Denied as phrased.

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44. Denied.

45. Denied.

46. Denied.

COUNT II NEGLIGENCE OF MESA GRILL

47-52 Pursuant to the agreement of the parties, Plaintiffs have voluntarily dismissed

Bobby Flay’s Mesa Grill Bahamas (“Mesa Grill”) from this lawsuit without prejudice. As such,

no response from Mesa Grill is required for paragraphs 47 through 52. To the extent a response

is required, Mesa Grill denies the allegations in paragraphs 47 through 52.

DAMAGES (Unnumbered). Denied.

LOSS OF CONSORTIUM

53. Unknown, therefore denied.

54. Denied.

DEFENDANTS’ AFFIRMATIVE DEFENSES

As separate and complete defenses, based upon information and belief, Defendants state

as follows:

FIRST AFFIRMATIVE DEFENSE

Defendants assert that this cause of action is subject to Terms and Conditions as

described on the Atlantis, Paradise Island, Resort website and the guest registration, including

but not limited to its forum selection clause which mandates The Bahamas as the only proper

forum for this dispute.

SECOND AFFIRMATIVE DEFENSE

Defendants assert that Amy Howard did not exercise ordinary care or caution to avoid the

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events or circumstances which caused her injuries; and that Amy Howard own failure to exercise

such care was the direct and proximate cause of her injuries.

THIRD AFFIRMATIVE DEFENSE

Defendants assert that Amy Howard own negligence and/or own conduct was the sole,

proximate cause of her injuries.

FOURTH AFFIRMATIVE DEFENSE

Defendants assert that the incident was the result of superseding, intervening, and/or

unforeseeable causes from which the Defendants had no duty to protect Amy Howard.

FIFTH AFFIRMATIVE DEFENSE

Defendants assert that any claims Amy Howard has against Defendants resulting from

any events occurring in The Bahamas shall be governed by and construed in accordance with the

laws of the Commonwealth of The Bahamas

SIXTH AFFIRMATIVE DEFENSE

Defendants assert that the Supreme Court of The Bahamas is the exclusive venue for any

claims Amy Howard has against Defendants resulting from any events occurring in The

Bahamas.

SEVENTH AFFIRMATIVE DEFENSE

Defendants assert that as a result of the conduct, acts or omissions of Amy Howard as

asserted in the preceding and subsequent Affirmative Defenses (including but not limited to the

Second and Third Affirmative Defenses), that Amy Howard is estopped from claiming the

damages alleged in the Complaint.

EIGHTH AFFIRMATIVE DEFENSE

Defendants assert that Amy Howard had actual knowledge and/or notice of any alleged

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dangerous condition, if any, and realized and appreciated the potential for injury as a result of

such alleged condition; and, having a reasonable opportunity to avoid it, consciously and

voluntarily exposed herself to same.

NINTH AFFIRMATIVE DEFENSE

Defendants assert that any injuries or damages suffered by Amy Howard, if any, were

solely caused by the actions and/or omissions of third parties for whom the Defendants have no

responsibility or liability.

TENTH AFFIRMATIVE DEFENSE

Defendants assert that they cannot be held liable for an alleged injury caused by ciguatera

illness.

ELEVENTH AFFIRMATIVE DEFENSE

Defendants assert that they have no legal responsibility for the damages or injury alleged

by Amy Howard in the Complaint; however, in the event that the Defendants are held liable, any

liability being specifically denied by the Defendants, said liability will be due in whole or in part

to the breach of warranty, acts, omissions, activities, failures, recklessness or negligence of

others including but not limited to Amy Howard. Accordingly, any recovery by Amy Howard

against the Defendants should be reduced in proportion to the respective negligence, fault, or

responsibility of all other parties, persons, or entities, including their agents, servants,

representatives, or employees who contributed to or caused the injuries claimed by Amy Howard

in accordance with the law governing comparative fault.

TWELFTH AFFIRMATIVE DEFENSE

Defendants assert that their liability, if any, must be reduced by the comparative amount

of liability and/or fault attributable to Amy Howard and/or the provider of the subject fish which

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allegedly caused Plaintiff’s illness for the reasons set forth in the preceding and subsequent

affirmative defenses.

THIRTEENTH AFFIRMATIVE DEFENSE

Defendants assert that the Defendants did not have notice of the allegedly dangerous

condition, if any, and therefore did not have a duty to warn Amy Howard as to the existence of

same.

FOURTEENTH AFFIRMATIVE DEFENSE

Defendants assert that they fully discharged their duties to Amy Howard by warning of

any and all dangers and/or conditions unique to the hotel and dining at the restaurants, if any.

FIFTEENTH AFFIRMATIVE DEFENSE

Defendants assert that, to the extent applicable, any award of damages to Amy Howard, if

any, should be reduced by any collateral source payments paid to and/or received by Amy

Howard.

SIXTEENTH AFFIRMATIVE DEFENSE

Defendants assert that Amy Howard’s Complaint fails to state a claim upon which relief

may be granted.

SEVENTEENTH AFFIRMATIVE DEFENSE

Defendants assert that they have no duty to warn of natural conditions caused by

ciguatoxins.

EIGHTEENTH AFFIRMATIVE DEFENSE

Defendants assert that they cannot be held responsible for Amy Howards personal

injuries, if any, because there is no readily available test for ciguatera fish poisoning.

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NINETEENTH AFFIRMATIVE DEFENSE

Defendants asserts that they cannot be held responsible for Amy Howards personal

injuries, if any, because Mesa Grill served approximately 35 portions of grouper on the evening

Amy Howard claims to have suffered her illness. Each fish has roughly 6-8 portions.

Accordingly, this would not have been an isolated incident. None of the other hotel guests

however – including guests who ate from the same fish as Amy Howard – reported any illness.

TWENTIETH AFFIRMATIVE DEFENSE

Defendants asserts that damages, if any, should be determined according to Bahamian

law.

WHEREFORE, the Defendants having answered the Complaint and asserted affirmative

defenses, demand judgment in their favor and against Plaintiffs, along with all costs and

attorneys fees available pursuant to the Federal Rules of Civil Procedure.

Dated: October 11, 2013 Miami, Florida

Respectfully submitted,

MALTZMAN & PARTNERS, P.A. BY: /s/ Steve Holman______ Jeffrey B. Maltzman, Esq. Florida Bar No. 0048860 Steve Holman, Esq. Florida Bar No. 547840 55 Miracle Mile, Suite 320 Coral Gables, FL 33134

Tel: 305-779-5665 / Fax: 305-779-5664 Attorneys for Defendants

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CERTIFICATE OF SERVICE I HEREBY CERTIFY that the foregoing was electronically filed with the Clerk of the

Court via CM/ECF on this 11th day of October, 2013. I also certify that the foregoing was served

on all counsel or parties of record on the attached Service List either via transmission of Notices

of Electronic Filing generated by CM/ECF or in some other authorized manner for those counsel

or parties who are not authorized to receive electronic Notices of Filing.

By: /s/ Steve Holman___ Steve Holman, Esq.

SERVICE LIST CASE NO: 12-CV-22184-FAM

Robert L. Parks, Esq. [email protected] Law Offices of Robert L. Parks 799 Brickell Plaza, Suite 900 Miami, FL 33131 Telephone: (305) 445-4430 Facsimile: (305) 445-4431 Attorneys for Plaintiff

Jeffrey B. Maltzman, Esq. [email protected] Steve Holman, Esq. [email protected] MALTZMAN & PARTNERS, P.A. 55 Miracle Mile, Suite 320 Coral Gables, FL 33134 Phone: 305-779-5665

Fax: 305-779-5664 Attorneys for Defendants

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