Brown v. Oceania Cruises, Inc.

Filing 126

ORDER denying 74 Motion for Summary Judgment; denying 79 Motion for Summary Judgment. Signed by Judge Cecilia M. Altonaga on 5/30/2018. (ps1)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
CASE NO. 17-22645-CIV-ALTONAGA/Goodman
ELEANOR BROWN,
Plaintiff,
v.
OCEANIA CRUISES, INC.,
Defendant.
___________________________/
ORDER
THIS CAUSE came before the Court on Plaintiff, Eleanor Brown’s Motion for
Summary Judgment (“Plaintiff’s Motion”) [ECF No. 79]1, filed March 12, 2018, and Defendant,
Oceania Cruises Inc.’s Motion for Summary Judgment (“Defendant’s Motion”) [ECF No. 74]2,
filed March 6, 2018.

The Court has carefully considered the parties’ submissions, their

numerous exhibits, the record, and applicable law.
I.

BACKGROUND

This is a maritime personal injury action. Plaintiff is a resident of Delray Beach, Florida,
who, at the time of the subject incident, was 78 years old. (See Def.’s Resp. to Facts ¶ 1).
Plaintiff and her husband, Joel Brown, were passengers on the cruise ship Riviera, which left

Defendant, Oceania Cruises Inc., filed a Response (“Defendant’s Response”) [ECF No. 95], to which
Plaintiff filed a Reply (“Plaintiff’s Reply”) [ECF No. 107]. In support of her Motion, Plaintiff filed a
Statement of Material Facts (“Plaintiff’s Facts”) [ECF No. 78], to which Defendant filed a Response
(“Defendant’s Response to Facts”) [ECF No. 96]. Plaintiff filed a Reply to Defendant’s Response to her
Statement of Facts (“Plaintiff’s Facts Reply”) [ECF No. 109].
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Plaintiff submitted a Response (“Plaintiff’s Response”) [ECF No. 83], to which Defendant filed a Reply
(“Defendant’s Reply”) [ECF No. 93]. Additionally, Defendant filed a Statement of Undisputed Facts in
Support of its Motion (“Defendant’s Facts”) [ECF No. 73], to which Plaintiff filed a Response
(“Plaintiff’s Response to Facts”) [ECF No. 84]. Defendant filed a Reply to Plaintiff’s Response to its
Statement of Undisputed Facts (“Defendant’s Facts Reply”) [ECF No. 94].
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port on January 3, 2017 and returned on January 13, 2017. (See Pl.’s Facts ¶ 2). Plaintiff, her
husband, and their friends often go on cruises as a group. (See Def.’s Facts ¶ 3). On these
cruises, the group participates in shore tours together, which the group selects and purchases
based on the cruise lines’ marketing materials. (See id. ¶ 4). When choosing a shore excursion,
the group eliminates from its consideration all tours with easy or difficult/strenuous symbols,
considering only tours with “moderate” symbols. (Id. ¶ 5 (internal quotation marks omitted)).
During their January cruise, Plaintiff and her group purchased and participated in the
Virgin Gorda and the Baths Excursion (the “Excursion”) in Tortola, British Virgin Islands. (See
id. ¶ 9; see also Pl.’s Facts ¶ 3). Plaintiff chose the excursion after she received the Cruise
Vacation Guide, a marketing advertisement sent to her by Defendant. (See Def.’s Resp. to Facts
¶ 7). Plaintiff alleges Defendant created the advertisement (see Pl.’s Facts ¶ 7), while Defendant
states it was created and written by the Excursion tour operator (see Def.’s Resp. to Facts ¶ 7).
The advertisement described the Excursion as a “moderate activity.” (Def.’s Facts ¶ 20 (internal
quotation marks omitted); see also Pl.’s Facts ¶ 13; Def.’s Resp. to Facts ¶ 13).
Several other major cruise lines also market the Excursion, although the excursions
offered by each cruise line may not be identical. (See Def.’s Facts ¶ 27; see also Pl.’s Resp. to
Facts ¶ 27). Defendant’s sister company, Seven Seas Cruises (also known as Regent) rates the
Excursion a “strenuous activity,” but its definition of strenuous may differ from Defendant’s.
(Pl.’s Facts ¶ 17 (internal quotation marks omitted); see also Def.’s Resp. to Facts ¶ 17).
Defendant’s parent company, NCL (Bahamas) Ltd., rates the Excursion an “Activity Level 3”
(Def.’s Resp. to Facts ¶ 22 (internal quotation marks omitted)), which Plaintiff claims equates to
a “strenuous activity” rating (Pl.’s Facts Reply ¶ 22 (internal quotation marks omitted)).
Defendant disagrees, stating NCL’s rating system is not comparable to Defendant’s own. (See

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Def.’s Resp. to Facts ¶ 22).
Defendant notes a number of other cruise lines market the Excursion with varying
descriptions, including “strenuous,” “active,” “an extensive amount of walking over steep and
slippery terrain,” and “moderate.” (Def.’s Facts ¶¶ 30–34 (internal quotation marks omitted)).
Defendant asserts the descriptions and warnings given by other cruise lines regarding the
Excursion are substantially similar to its own.

(See id.).

Plaintiff disputes Defendant’s

comparison of its description and warnings to those of other cruise lines because there may be
“discrepancies” between Defendant’s tour and those offered by other companies. (Pl.’s Resp. to
Facts ¶¶ 30–34).
On the day of the Excursion, Plaintiff left the cruise ship by ferry and subsequently was
taken to the Excursion site by bus. (See Pl.’s Facts ¶ 34). The Excursion included a walking
portion leading to a beach where Excursion participants could relax and explore the area. (See
id. ¶ 37).

Before embarking on the Excursion, Plaintiff signed a release applying to “all

activities” arranged by the tour operator. (Plaintiff’s Deposition [ECF No. 65-1] 94: 22–23; see
also Release [ECF No. 65-4]).
The Release stated “I understand that the Activities can involve risks and dangers of
damage to personal property and serious bodily injury . . . I fully accept and assume all such
risks and responsibility for losses, costs, and damages I incur as a result of my participation.”
(Release 1 (alteration added)). The Release defined the “activities” as “hiking the dirt paths
to/from The Baths and Devils Bay, swimming, snorkeling, jumping or diving in the waters/pools
at The Baths and the Devils Bay, climbing on rocks and through the boulder trail between The
Baths and Devils Bay, including all unmarked trails in this National Park territory.” (Id.).
While hiking the trail to the beach, Plaintiff did not hurry and was very careful.

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(See Def.’s Facts ¶ 49).

She was surprised to find boulders on the path, but nevertheless

continued hiking until she came to the last boulder. (See Def.’s Facts ¶¶ 47 & 51). When
Plaintiff stepped onto the final boulder, she turned around to look for her husband. (See id. ¶¶
51–52; see also Pl.’s Facts ¶ 48). As she turned around, Plaintiff’s foot got caught between two
boulders and her ankle broke. (See Def.’s Facts ¶ 55; Pl.’s Facts ¶ 48). Medical personnel
treated Plaintiff on the scene, transported her to a medical facility, and then transported her back
to the cruise ship. (See Pl.’s Facts ¶¶ 54–56).
After the cruise ship’s doctor recommended Plaintiff disembark because of her injury,
Plaintiff left the ship and was transported to People’s Hospital in Tortola. (See id. ¶¶ 57–58). At
the hospital, Plaintiff refused surgery on her broken ankle and was cleared to return home.
(See id. ¶¶ 59-62). Once back in Florida, Plaintiff visited her doctor, Dr. Kevin Palmer, who
took x-rays and informed her she needed surgery. (See id. ¶ 63). Plaintiff had surgery on her
ankle and was confined to a wheelchair for several weeks. (See id. ¶ 64; Def.’s Resp. to Facts ¶
64).
Plaintiff filed a Complaint [ECF No. 1] against Defendant on July 14, 2017. The
operative pleading, Plaintiff’s Third Amended Complaint [ECF No. 45], was filed on November
30, 2017. The Third Amended Complaint alleges four counts: (1) negligence (Count I); (2) fraud
(Count II); (3) violation of Chapter 817.41, Florida Statutes (Count III); and (4) negligent
misrepresentation (Count IV). (See generally id.). Plaintiff seeks summary judgment on Counts
I, II, and III; while Defendant seeks summary judgment on all counts. (See generally Pl.’s Mot.;
Def.’s Mot.).

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II.

LEGAL STANDARDS

A. Summary Judgment Standard
Summary judgment is rendered if the pleadings, the discovery and disclosure materials
on file, and any affidavits show there is no genuine issue as to any material fact and the movant
is entitled to judgment as a matter of law. See Fed. R. Civ. P. 56(a), (c). An issue of fact is
“material” if it might affect the outcome of the case under the governing law. See Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). It is “genuine” if the evidence could lead a
reasonable jury to find for the non-moving party. See id.; see also Matsushita Elec. Indus. Co. v.
Zenith Radio Corp., 475 U.S. 574, 587 (1986).
At summary judgment, the moving party has the burden of proving the absence of a
genuine issue of material fact, and all factual inferences are drawn in favor of the non-moving
party. See Allen v. Tyson Foods Inc., 121 F.3d 642, 646 (11th Cir. 1997). Courts must consider
the entire record and not just the evidence singled out by the parties. See Clinkscales v. Chevron
U.S.A., Inc., 831 F.2d 1565, 1570 (11th Cir. 1987). The non-moving party’s presentation of a
“mere existence of a scintilla of evidence” in support of its position is insufficient to overcome
summary judgment. Anderson, 477 U.S. at 252.
If there are any factual issues, summary judgment must be denied and the case proceeds
to trial. See Whelan v. Royal Caribbean Cruises Ltd., No. 1:12-CV-22481, 2013 WL 5583970,
at *2 (S.D. Fla. Aug. 14, 2013) (citing Envtl. Def. Fund v. Marsh, 651 F.2d 983, 991 (5th Cir.
1981)). Even when the parties “agree on the basic facts, but disagree about the inferences that
should be drawn from these facts[,]” summary judgment “may be inappropriate.” Id. (alteration
added; citation omitted). “If reasonable minds might differ on the inferences arising from
undisputed facts, then . . . [c]ourt[s] should deny summary judgment.” Id. (alterations added;
citations omitted). Additionally, courts cannot weigh conflicting evidence. See Skop v. City of
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Atlanta, Ga., 485 F.3d 1130, 1140 (11th Cir. 2007) (quoting Carlin Commc’n, Inc. v. S. Bell Tel.
& Tel. Co., 802 F.2d 1352, 1356 (11th Cir. 1986)).
B. General Maritime Law
“General maritime law governs tort actions between a cruise line and its passengers.”
Taiariol v. MSC Crociere, S.A., No. 0:15-CV-61131, 2016 WL 1428942, at *3 (S.D. Fla. Apr.
12, 2016) (citing Keefe v. Bahama Cruise Line, Inc., 867 F.2d 1318, 1320 (11th Cir. 1989)).
Federal maritime law applies when: (1) the alleged tort occurred on navigable waters; (2) the
incident has the potential to disrupt maritime commerce; and (3) the general activity giving rise
to the incident has a substantial relationship to traditional maritime activity. See Frasca v. NCL
(Bah.), Ltd., 654 F. App’x 949, 951 (11th Cir. 2016) (citing Doe v. Celebrity Cruises, Inc., 394
F.3d 891, 900 (11th Cir. 2004)).
III.

ANALYSIS

A. Count I — Negligence
Plaintiff argues she is entitled to summary judgment on her negligence claim because
Defendant failed in its duty to warn her of the dangers of the Excursion’s terrain, and this failure
resulted in her injury. (See Pl.’s Mot. 4–11). For its part, Defendant insists it is entitled to
summary judgment on Plaintiff’s negligence claim because its rating of the tour was not an
objective description, it repeatedly warned Plaintiff of the Excursion’s strenuous nature, the
conditions of the path were open and obvious, and any negligence on its part did not cause
Plaintiff’s injury. (See Def.’s Mot. 3–11).
“Under maritime law, the owner of a ship in navigable waters owes passengers a ‘duty of
reasonable care’ under the circumstances.” Sorrels v. NCL (Bah.) Ltd., 796 F.3d 1275, 1279
(11th Cir. 2015) (citations omitted). To prevail in a maritime negligence claim, a plaintiff must

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show: “(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 v. Carnival Corp., 693 F.3d 1333,
1336 (11th Cir. 2012) (citations omitted).
Defendant admits it had a duty of “ordinary reasonable care under the circumstances” to
protect Plaintiff by warning of “dangers of which [it] knows, or reasonably should have known.”
(Def.’s Mot. 4 (alteration added; internal quotation marks and citation omitted)). Defendant
argues it fulfilled that duty because “Plaintiff [w]as [r]epeatedly [w]arned of the [s]hort [b]ut
[s]trenuous [f]ootpath.” (Id. (alterations added; emphasis omitted)). Plaintiff admits Defendant
provided warnings, but argues the warnings were “inadequate” because they described the
Excursion as a “moderate” activity. (See Pl.’s Mot. 6–9). Plaintiff and Defendant clearly
disagree on whether Defendant’s description of the Excursion as “moderate” was an adequate
warning, and each party cites to facts from the record to support its interpretation of the warning.
For example, Plaintiff cites to testimony and declarations that the path required
participants “to navigate, climb, and walk in between boulders that were several feet in height”
(id. 6); and to “duck down and climb steep wooden ladders” (id. 7 (emphasis and internal
quotation marks omitted)). Defendant cites to its marketing materials, arguing its description of
the terrain as “rough and uneven” accurately conveys the Excursion’s risks. (Def.’s Mot. 15).
Defendant also points to the waiver Plaintiff signed and its description of “climbing on rocks and
through the boulder trail.” (Def.’s Facts ¶ 43; see also Def.’s Mot. 5). Finally, Defendant argues
the danger to Plaintiff was “open and obvious,” and therefore it had no duty to warn her. (Def.’s
Mot. 9).

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The Court will not decide on its own – effectively as the trier of fact – whether the
description of the Excursion satisfied Defendant’s duty to warn Plaintiff of dangers of which it
knew or reasonably should have known. A clear dispute of material fact exists regarding the
sufficiency of Defendant’s marketing materials, as evidenced by the parties’ submissions
showing other cruise lines variously described similar excursions as moderate (see Def.’s Facts
¶¶ 28, 34); strenuous (see Pl.’s Facts ¶ 22; Def.’s Facts ¶¶ 30–31); or something else entirely (see
Def.’s Facts ¶¶ 29, 32). “‘Whether adequate efforts were made to communicate a warning to the
ultimate user and whether the warning if communicated was adequate are uniformly held
questions for the jury.’” Magazine v. Royal Caribbean Cruises, Ltd., No. 12-23431-CIV, 2014
WL 1274130, at *4 (S.D. Fla. Mar. 27, 2014) (quoting Stapleton v. Kawasaki Heavy Indus., Ltd.,
608 F.2d 571, 573 (5th Cir. 1979)). Accordingly, the question of what language is sufficient to
warn of the dangers of the Excursion is a factual matter for the jury to decide.
Defendant’s argument the danger to Plaintiff was “open and obvious” is also insufficient
to warrant summary judgment. As the undersigned has previously noted, “[i]n similar cruise
ship cases where ship operators argued the plaintiffs were barred from recovery because the
dangers were open and obvious, courts have found summary judgment inappropriate.” Geyer v.
NCL (Bah.) Ltd., 204 F. Supp. 3d 1354, 1358 (S.D. Fla. 2016) (alteration added; citation
omitted).
The many disputes of material fact present in this case render Defendant’s citation to
Young v. Carnival Corp. unavailing. (See Def.’s Mot. 7–8 (citing Young v. Carnival Corp.,
No. 09-21949-CIV, 2011 WL 465366 (S.D. Fla. Feb. 4, 2011))). The parties cannot agree on
whether Plaintiff was an experienced hiker, whether she understood the difficulty level of the
terrain she would traverse, and whether she was partly responsible for her injury. (See Plaintiff’s

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Surreply [ECF No. 122] 2–3). With few undisputed facts on which to rely, the Court cannot say
this case is so factually similar to Young that summary judgment is appropriate as a matter of
law.
Moreover, even if the dangers posed by the Excursion were open and obvious, “[t]he fact
a complained-of danger is open and obvious is not a total bar to recovery.” Pucci v. Carnival
Corp., 146 F. Supp. 3d 1281, 1289 (S.D. Fla. 2015) (alteration added (citing Belik v. Carlson
Travel Grp., Inc., 864 F. Supp. 2d 1302, 1309 (S.D. Fla. 2011)).

Summary judgment is

accordingly denied as to Count I.
B. Count II — Fraud
The Court looks to Florida law to determine the elements of fraud in a cruise ship
personal injury case. See Coastal Fuels Mktg., Inc. v. Fla. Exp. Shipping Co., Inc., 207 F.3d
1247, 1251 (11th Cir. 2000) (“[W]hen neither statutory nor judicially created maritime principles
provide an answer to a specific legal question, courts may apply state law provided that the
application of state law does not frustrate national interests in having uniformity in admiralty
law.” (alteration added; citations omitted)). “The elements [of] actionable fraud are (1) a false
statement concerning a material fact; (2) knowledge by the person making the statement that the
representation is false; (3) an intention that the representation induces another’s reliance; and (4)
consequent injury by the other party acting in reliance on the representation.” Stires v. Carnival
Corp., 243 F. Supp. 2d 1313, 1320 (M.D. Fla. 2002) (alteration added; citations omitted).
To prove Defendant made a false statement of material fact, Plaintiff argues Defendant’s
marketing materials contained “a false and woefully inadequate description of the Excursion”
because they labeled the Excursion as moderate rather than strenuous.

(Pl.’s Mot. 13).

Defendant argues it merits summary judgment because the marketing materials are intended to

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assist customers, “not to make true or false statements.” (Def.’s Mot. 12). Both positions fail to
persuade.
To start, the parties cannot even agree on who rated the Excursion as “moderate.”
Plaintiff alleges Defendant did so (see Pl.’s Facts ¶ 13); while Defendant states the Excursion
“[was] marketed as ‘moderate’ at the request of the tour operator, Island Shipping and Trading
Co., not Oceania” (Def.’s Resp. to Facts ¶ 13 (alteration added)). The meaning of the content of
the marketing materials is also in dispute: Plaintiff interpreted the advertisement as describing
“maybe little rocks you have to move over, climb over” (Pl.’s Facts ¶ 29); an interpretation
Defendant states “ignores the description’s plain language” (Def.’s Resp. to Facts ¶ 29).
Factual determinations about whether Defendant’s marketing materials constitute a false
statement are a matter for the jury, not the Court. Because the three remaining elements of fraud
— knowledge, intent, and consequent injury — depend upon whether there truly was a “false
statement concerning a material fact,” Stires, 243 F. Supp. 2d at 1320, summary judgment is not
appropriate.
C. Count III — Misleading Advertising
Plaintiff’s claim of misleading advertising arises under Section 817.41, Florida Statutes.
“[T]o maintain a civil action for violation of the statute [a plaintiff must] prove each of the
elements of common law fraud in the inducement, including reliance and detriment, in order to
recover damages.” Joseph v. Liberty Nat’l Bank, 873 So. 2d 384, 388 (Fla. 5th DCA 2004)
(alteration added; citations omitted). A fraud-in-the-inducement claim requires a plaintiff allege:
(a) the representor made a misrepresentation of a material fact; (b) the representor knew or
should have known of the falsity of the statement; (c) the representor intended the representation

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would induce another to rely and act on it; and (d) the plaintiff suffered injury in justifiable
reliance on the representation. See id. (citations omitted).
Disputes of fact exist with respect to whether Defendant made a misrepresentation of
material fact. Plaintiff relies on the Excursion ratings issued by Regent Seven Seas Cruises and
Norwegian Cruise Line to argue Defendant’s rating of “moderate” is a misrepresentation. (See
Pl.’s Mot. 6). According to Defendant, its Excursion rating is not a misrepresentation because its
ratings are not intended to represent any objective truth at all. (Def.’s Mot. 3). Defendant also
argues the ratings of other operators of Virgin Gorda and the Baths excursions — including those
of Carnival Cruise Line, Norwegian Cruise Line, and Shore Excursions Group — are similar to
its “moderate” rating, indicating the rating is appropriate. (See id. 4; Def.’s Facts ¶¶ 19, 28, 34).
The facts underlying these arguments are in dispute: for example, Defendant denies Plaintiff’s
assertion it uses the same rating system as Regent or NCL (compare Pl.’s Facts ¶¶ 17, 22; with
Def.’s Resp. to Facts ¶¶ 17, 22); while Plaintiff disputes Defendant’s contention the Excursion
ratings of Celebrity Cruises, Disney Cruise Line, and Silversea are comparable to Defendant’s
own (compare Def.’s Facts ¶¶ 31–33; with Pl.’s Resp. to Facts ¶¶ 31–33).
The parties also dispute numerous other material facts regarding the first element of
Plaintiff’s claim of misleading advertising, including (1) how much effort was required for the
Excursion (compare Def.’s Facts ¶¶ 13, 48, with Pl.’s Facts ¶ 29); (2) who was responsible for
the rating (compare Pl.’s Facts ¶ 8, with Def.’s Facts ¶ 20); and even (3) the size of the
“boulders” on the trail (compare Pl.’s Facts ¶ 38, with Def.’s Resp. to Facts ¶ 38). As with a
claim for fraud, the Court cannot analyze the last three elements of misleading advertising
without determining whether Defendant made a misrepresentation of a material fact. See Joseph,

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873 So. 2d at 388. Because disputes of material fact remain with respect to whether Defendant’s
advertisements were misleading, summary judgment is denied as to Count III.
D. Count IV — Negligent Misrepresentation
To prove a claim for negligent misrepresentation under Florida law, “a plaintiff must
demonstrate (1) misrepresentation of a material fact; (2) that the representor made the
misrepresentation without knowledge as to its truth or falsity or under circumstances in which he
ought to have known of its falsity; (3) that the representor intended that the misrepresentation
induce another to act on it; and (4) that injury resulted to the party acting in justifiable reliance
on the misrepresentation.” Fojtasek v. NCL (Bah.) Ltd., 613 F. Supp. 2d 1351, 1355 (S.D. Fla.
2009) (citing Wallerstein v. Hosp. Corp. of Am., 573 So. 2d 9, 10 (Fla. 4th DCA 1990)).
The first element of a negligent misrepresentation claim is identical to the first element of
a claim for misleading advertising. See Balaschak v. Royal Caribbean Cruises, Ltd., No. 0921196-CIV, 2009 WL 8659594, at *7–8 (S.D. Fla. Sept. 14, 2009). Thus, the same disputed
facts precluding summary judgment on Plaintiff’s misleading advertising claim apply to the
negligent misrepresentation claim as well. Accordingly, summary judgment is denied as to
Count IV.
IV.

CONCLUSION

The competing summary judgment motions and briefing are replete with disputed
material facts. Why the parties filed them is unclear, other than perhaps to advocate their
competing positions to the Court in anticipation of presenting them to the jury at trial. For the
foregoing reasons, it is
ORDERED AND ADJUDGED as follows:
1. Plaintiff’s Motion for Summary Judgment [ECF No. 79] is DENIED.

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2. Defendant’s Motion for Summary Judgment [ECF No. 74] is DENIED.
DONE AND ORDERED in Miami, Florida, this 30th day of May, 2018.

_________________________________
CECILIA M. ALTONAGA
UNITED STATES DISTRICT JUDGE
cc:

counsel of record

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