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Brown v. Oceania Cruises, Inc.

United States District Court, S.D. Florida

May 30, 2018

ELEANOR BROWN, Plaintiff,
v.
OCEANIA CRUISES, INC., Defendant.

          ORDER

          CECILIA M. ALTONAGA, UNITED STATES DISTRICT JUDGE

         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 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 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. (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.).

         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 ...


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