United States District Court, S.D. Florida
CECILIA M. ALTONAGA, UNITED STATES DISTRICT JUDGE
CAUSE came before the Court on Plaintiff, Eleanor
Brown's Motion for Summary Judgment
(“Plaintiff's Motion”) [ECF No.
filed March 12, 2018, and Defendant, Oceania Cruises
Inc.'s Motion for Summary Judgment
(“Defendant's Motion”) [ECF No.
filed March 6, 2018. The Court has carefully considered the
parties' submissions, their numerous exhibits, the
record, and applicable law.
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
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
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 ¶
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 Def.'s
Resp. to Facts ¶ 22).
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).
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]).
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.”
hiking the trail to the beach, Plaintiff did not hurry and
was very careful. (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 ¶¶
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).
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.).
Summary Judgment Standard
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