June 11, 2013
Jane Doe v. Royal Caribbean Cruises, Ltd. – Part 3
Appellate Reply Brief
The experienced maritime attorneys at Lipcon, Margulies & Winkleman, P.A. represent client’s at all stages of their legal proceedings. This includes in the appellate courts of the United States and even in the United States Supreme Court. In this appeal to the United States Eleventh Circuit Court of Appeal, the Plaintiff seeks reversal of the U.S. District Court’s order dismissing her case.
UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
CASE NO: 12-14412
Appellant / Plaintiff,
ROYAL CARRIBBEAN CRUISES, LTD.,
Appellee / Defendant.
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF FLORIDA
REPLY BRIEF OF APPELLANT
MICHAEL A. WINKLEMAN
ALSINA & WINKLEMAN, P.A.
Attorneys for Appellant
One Biscayne Tower, Suite 1776
2 South Biscayne Boulevard
Miami, Florida 33131
Telephone: (305) 373-3016
Facsimile: (305) 373-6204
TABLE OF CONTENTS
TABLE OF CONTENTS……..i
TABLE OF AUTHORITIES…………iii
i. NOTHING IN ROYAL CARIBBEAN’S RESPONSE BRIEF CHANGES THE SIMPLE FACT THAT THE DISTRICT COURT FAR TOO NARROWLY CONSTRUED ROYAL CARIBBEAN’S DUTY TO WARN. DOE IS NOT ADVOCATING FOR CRUISE LINES TO BE INSURERS OF PASSENGER SAFETY. RATHER, DOE IS ADVOCATING THAT CRUISE LINES WITH SUPERIOR KNOWLEDGE ABOUT THE FOREIGN PORTS OF CALL THEY VISIT EACH WEEK SHOULD WARN PASSENGERS ABOUT KNOWN HEIGHTENED RISKS OF DANGER IN THOSE PORTS….1
a. To properly view the evidence in the light most favorable to DOE, this Honorable Court must first understand more about Cozumel, Mexico..4
b. DOE did not waive her argument regarding the District Court’s narrow construction of the duty to warn because it could not possibly have been raised prior to the Court issuing its narrow holding. Even if this issue had only been raised for the first time on appeal, that would not bar this Honorable Court from hearing it….5
c. Contrary to what Royal Caribbean argues in its brief, a cruise line’s duty to warn will only help passengers if it requires warnings of “general” dangers in certain ports of call. The District Court’s holding that only requires specific warnings of certain types of crimes in particular locations, ignores the fact that violence is the problem, not the particular type of violent act committed….8
Ii. TELLINGLY, ALL OF ROYAL CARIBBEAN’S ARGUMENTS IN SUPPORT OF THE DISTRICT COURT’S ORDER CENTER ON DEFENSES THAT ARE UNIVERSALLY CONSIDERED QUESTIONS OF FACT FOR A JURY…11
CERTIFICATE OF SERVICE…15
CERTIFICATE OF COMPLIANCE.15
TABLE OF AUTHORITIES
Anderson v. Liberty Lobby, Inc. , 477 U.S. 242 (1986)10
Belik v. Carlson Travel Grp., Inc. , 864 F. Supp. 2d 1302 (S.D. Fla. 2011)…12,13
Chaparro v. Carnival Corp., 693 F.3d 1333 (11th Cir. 2012).4,11
Daniels v. Weiss, 385 So.2d 661, 664 (Fla.App.1980)12
Gayou v. Celebrity Cruises, Inc. , 2012 WL 2049431 (S.D. Fla. 2012)6
Goldbach v. NCL (Bahamas) Ltd. , 2006 WL 3780705 (S.D.Fla. Dec. 20, 2006)…13
Kendrick v. Ed’s Beach Serv., Inc. , 577 So.2d 936, 938 (Fla.1991)13
Kermarec v. Compagnie Generale Transatlantique, 358 U.S. 625 (1959)…4
Koens v. Royal Caribbean Cruises, Ltd., 774 F. Supp. 2d 1215 (S.D. Fla. 2011)5
Narey v. Dean, 32 F.3d 1521, 1526-27 (11th Cir.1994)7
Sosa v. Coleman, 646 F.2d 991, 995 (5th Cir. 1981).12,14
Trotter v. Hewett, 163 So.2d 510, 511-512 (Fla. 3rd DCA 1964)…12
Weissman v. Boating Magazine, 946 F.2d 811, 814 (11th Cir.1991)8
Wright v. Hanna Steel Corp., 270 F.3d 1336, 1342 (11th Cir.2001)7
i. NOTHING IN ROYAL CARIBBEAN’S RESPONSE BRIEF CHANGES THE SIMPLE FACT THAT THE DISTRICT COURT FAR TOO NARROWLY CONSTRUED ROYAL CARIBBEAN’S DUTY TO WARN. DOE IS NOT ADVOCATING FOR CRUISE LINES TO BE INSURERS OF PASSENGER SAFETY. RATHER, DOE IS ADVOCATING THAT CRUISE LINES WITH SUPERIOR KNOWLEDGE ABOUT THE FOREIGN PORTS OF CALL THEY VISIT EACH WEEK SHOULD WARN PASSENGERS ABOUT KNOWN HEIGHTENED RISKS OF DANGER IN THOSE PORTS.
Before addressing the substance of Royal Caribbean’s response brief, DOE must set the record straight for this Honorable Court concerning a wholly irrelevant issue raised by Royal Caribbean. The Appellee’s Statement of the Case includes a description of what it depicts as DOE’s prolonged search for illegal drugs on the day of her attack. Simply put, this has nothing to do with the simple and important issues before this Honorable Court, which are: i)the breadth of a Cruise Line’s duty to warn, and ii) whether the evidence put forth by DOE created a genuine issue of material fact regarding notice, that should have been decided by a jury.
Nonetheless, Royal Caribbean hopes to color this Honorable Court’s perception of JANE DOE by indirectly blaming DOE for her rape. This is emblematic of Royal Caribbean’s main strategy throughout this litigation: drag DOE through the mud and claim that she was asking for it. This tactic is distasteful, inappropriate, and ignorant. No one deserves to be gang-raped, no matter what they were doing the hour before they were attacked.
Moreover, the fact that DOE had earlier in the day attempted to purchase illegal drugs had nothing to do with why the District Court granted summary judgment. Despite this, Royal Caribbean feels the need to address DOE’s attempt to purchase drugs in this appeal. This alone demonstrates that Royal Caribbean’s main purpose in mentioning DOE’s conduct is to improperly harass DOE and prejudice this Honorable Court.
Next, in its response brief, Royal Caribbean dramatically misconstrues the issue before this Honorable Court. According to Royal Caribbean’s framing of the issue, DOE is asking this Court to extend a cruise line’s duty to include warning of any and all dangers in ports of call. Royal Caribbean then goes on to argue that requiring such broad warnings would ultimately nullify the value of any warnings given to passengers. See Response Brief of Appellee Royal Caribbean, pg. 18. Simply put, Royal Caribbean has missed the boat.
All DOE asks this Honorable Court to do is reverse the District Court’s holding and require cruise lines to warn passengers of heightened risks of danger in ports of call about which they have superior knowledge.
This is entirely consistent with existing law.
From the beginning of her case, DOE maintained that Royal Caribbean either knew, or should have known of a heightened risk of sexual assault in Cozumel, Mexico. D.E. 1, pgs. 3-4. Thereafter, discovery uncovered evidence of significant violent crime, including sexual assaults, in and around Cozumel and including downtown Cozumel where DOE was attacked. See generally D.E. 75-5; D.E. 75-9; and D.E. 75-6. There was thus a material question of fact as to whether Royal Caribbean knew or should have known about a heightened risk of danger and provided warnings to its passengers. This question should have been decided by a jury. Instead, the District Court narrowed the scope of Royal Caribbean’s duty to warn, such that virtually no evidence could have put it on notice of danger.
What DOE is asking this Court to do is more closely define the scope of the duty to warn by holding that the evidence presented by DOE created a genuine issue of material fact regarding notice.
To this point, the District Court actually stepped beyond the bounds of existing precedent and held that there was a narrower duty to warn than what is contemplated in the Supreme Court’s case of Kermarec v. Compagnie Generale Transatlantique, 358 U.S. 625, 630, (1959) and this Court’s recent decision in Chaparro v. Carnival Corp., 693 F.3d 1333 (11th Cir. 2012).
Accordingly, Royal Caribbean’s misframing of the issues should not confuse or convolute the otherwise straightforward issues set out by this appeal.
a. To properly view the evidence in the light most favorable to DOE, this Honorable Court must first understand more about Cozumel, Mexico.
Royal Caribbean repeatedly argues that DOE did not provide evidence of heightened danger specific to the location of her attack. What this argument ignores is that the town of Cozumel is so small that all evidence related to Cozumel, is related to the area of DOE’s attack.
To be clear, DOE was attacked in downtown Cozumel. The parties have colloquially referred to this area as the “downtown shopping district” because Royal Caribbean directs passengers there to go shopping. As pointed out in DOE’s initial brief, Royal Caribbean does this because it has partnerships with the stores in downtown Cozumel. As a result of those partnerships, Royal Caribbean makes millions of dollars every year.
Downtown Cozumel is the islands only town and is officially known as San Miguel de Cozumel. A look at a map shows that San Miguel de Cozumel is roughly four square miles large and the remainder of the island is practically unpopulated. Essentially, San Miguel de Cozumel is Cozumel.
For reference, the city of Nassau in the Bahamas, where the Plaintiff in the case of Koens v. Royal Caribbean Cruises, Ltd., 774 F. Supp. 2d 1215 (S.D. Fla. 2011) was attacked, has over three times the population and land area of Cozumel. The District Court and Royal Caribbean both relied on the Koens case. This Honorable Court should be mindful of these readily verifiable facts when viewing the evidence presented by DOE.
b. DOE did not waive her argument regarding the District Court’s narrow construction of the duty to warn because it could not possibly have been raised prior to the Court issuing its narrow holding. Even if this issue had only been raised for the first time on appeal, that would not bar this Honorable Court from hearing it.
Next, Royal Caribbean hopes to prevent this Honorable Court from addressing a critical issue in this appeal, the scope of a cruise Line’s duty to warn, by baselessly arguing that DOE waived this issue because she did not raise it below.
This argument defies logic as DOE could not have argued against the District Court’s narrow construction until the Court issued its opinion on Royal Caribbean’s Motion for Summary Judgment. D.E. 98. Further, DOE had no reason to argue against the District Court’s narrow construction of the duty to warn because no other District Court had previously issued a ruling so restrictively construing this duty. Simply put, the District Court stepped far beyond the bounds of existing law regarding the duty to warn.
Regardless of this common sense argument, DOE never once advocated, as Royal Caribbean would have this Honorable Court believe, for the narrow construction of the duty to warn that the District Court ultimately enumerated. DOE’s argument has remained two-fold 1) the scope of the duty to warn should be broad enough to be triggered by actual or constructive notice of general danger where passengers go or are reasonably expected to visit, and 2) even under the most narrow construction of the duty to warn, the evidence viewed in the light most favorable to DOE, created a genuine issue of material fact to the issue of notice.
Nonetheless, even if DOE never once argued for a broader construction of the duty to warn until this appeal, that would not bar this Honorable Court from considering this argument. As this Court has previously held, certain issues raised for the first time on appeal are appropriately considered:
First, an appellate court will consider an issue not raised in the district court if it involves a pure question of law, and if refusal to consider it would result in a miscarriage of justice. Second, the rule may be relaxed where the appellant raises an objection to an order which he had no opportunity to raise at the district court level. Third, the rule does not bar consideration by the appellate court in the first instance where the interest of substantial justice is at stake. Fourth, a federal appellate court is justified in resolving an issue not passed on below … where the proper resolution is beyond any doubt. Finally, it may be appropriate to consider an issue first raised on appeal if that issue presents significant questions of general impact or of great public concern.
Wright v. Hanna Steel Corp., 270 F.3d 1336, 1342 (11th Cir.2001)(emphasis added) quoting Narey v. Dean, 32 F.3d 1521, 1526-27 (11th Cir.1994). DOE could properly present this issue on appeal because the District Court’s construction of the duty to warn is purely a question of law, and allowing an incorrect construction of this duty could result in DOE being denied her day in Court. See Weissman v. Boating Magazine, 946 F.2d 811, 814 (11th Cir.1991) (whether or not a duty of care arises in a particular case is a question of law.)
Secondly, as DOE stated above, it was impossible for her to raise an objection to the District Court’s construction of the duty to warn at the District Court level because the issue did not exist until the Court ruled on Royal Caribbean’s Motion for Summary Judgment. Thirdly, the interests of substantial justice are at stake because failing to decide this issue could result in DOE being wrongfully barred from the Courthouse. Lastly, this Honorable Court should consider this issue because it is one of great public importance. As DOE made clear in her Initial Brief, 16,000,000 passengers set sail on cruise ships each year; if the District Court’s ruling is allowed to stand, the safety of those passengers will be placed at significant risk.
c. Contrary to what Royal Caribbean argues in its brief, a cruise line’s duty to warn will only help passengers if it requires warnings of “general” dangers in certain ports of call. The District Court’s holding that only requires specific warnings of certain types of crimes in particular locations, ignores the fact that violence is the problem, not the particular type of violent act committed.
Royal Caribbean repeatedly argues that knowledge of general dangers in a port are insufficient to put it on notice and further that general warnings in response to these general dangers would be meaningless to passengers. Royal Caribbean goes on to say that DOE only provided evidence of dangers generally in and around Cozumel, thus summary judgment was appropriate. DOE submits that the evidence she offered was specific enough to put Royal Caribbean on notice of danger in Cozumel.
Firstly,DOE provided evidence of two travel warnings from the U.S. State Department that detailed a heightened risk of sexual assault in Cozumel and resort areas in Mexico. D.E. 75-7 and 75-11. Secondly, DOE provided crime statistics evidencing an escalated risk of sexual assault and/or violent crime in Cozumel. D.E. 75-6. Thirdly, DOE provided two affidavits that testified about the rising crime rates and violence in Cozumel as a whole and in the downtown shopping district. One of the affiants, a former Royal Caribbean crewmember, testified that it was well known amongst crewmembers that the shopping district was dangerous and that female crewmembers would not travel alone when they went ashore. Further, he testified that drug dealers in the area specifically targeted tourists as victims of crime.
Simply put, a reasonable trier of fact could have looked at the evidence outlined above and believed that a heightened risk of violent crime and/or sexual assault existed in Cozumel and that Royal Caribbean knew or should have known of that risk. Accordingly, summary judgment should have been denied. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986) (“[m]ore important for present purposes, summary judgment will not lie if the dispute about a material fact is “genuine,” that is, if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.)
Royal Caribbean argues that its duty should be narrow because that will best promote passenger safety, but the question this Honorable Court should ask is whether, in light of the evidence outlined above, the more prudent course would have been to alert passengers to a risk of harm. The District Court’s holding fails to do this, simply because Royal Caribbean cannot identify one particular crime in one exact location that a passenger could fall victim to.
To illustrate by way of example, assume throughout the course of a year that three separate passengers had gone ashore to the same island where one was raped, one was shot, and one was the victim of a strong arm robbery. Assume further that these incidents all happened in three separate areas of the one and only town (approximately 4 square miles large) on this island and that Royal Caribbean had access to state department travel warnings and crime statistics that evidenced a high rate of violent crime on the island. Under the District Court’s holding, Royal Caribbean would have no duty to warn its passengers of any danger. This cannot be the well reasoned approach this Honorable Court had in mind when it issued its opinion in Chaparro v. Carnival Corp., 693 F.3d 1333 (11th Cir. 2012).
All DOE is proposing is that cruise lines should have a duty to warn their passengers about heightened risks of violence in the areas they are expected to visit, regardless of the type of violence. Royal Caribbean could accomplish this by simply printing applicable U.S. State Department travel warnings (in effect at the time) on the same “cruise compass” that it prints its port shopping guides on or by offering verbal warnings during its port lectures. Instead, Royal Caribbean chooses only to push its business ventures in port through those mediums. It’s the classic ‘profits over safety’ scenario, and the District Court’s holding is a blueprint to maximize profits at the expense of the safety of its passengers.
Ii. TELLINGLY, ALL OF ROYAL CARIBBEAN’S ARGUMENTS IN SUPPORT OF THE DISTRICT COURT’S ORDER CENTER ON DEFENSES THAT ARE UNIVERSALLY CONSIDERED QUESTIONS OF FACT FOR A JURY.
Royal Caribbean argues that there was no error in granting summary judgment because 1) it did not have actual or constructive notice of danger in Cozumel, 2) the dangers in Cozumel were open and obvious, and 3) there was an intervening criminal act by a third party. All of these defenses should properly be decided by a jury because the evidence outlined above presented more than just a mere scintilla on which a jury could have made a decision regarding Royal Caribbean’s negligence.
“It is only when the facts are susceptible of only one inference that the question is one of law for the court. Otherwise it should be submitted to the jury.” Trotter v. Hewett, 163 So.2d 510, 511-512 (Fla. 3rd DCA 1964). Certainly, more than one inference can be drawn from the evidence offered by DOE.
Further, “even where the evidence is not in dispute, when conflicting reasonable inferences may be drawn from the admitted facts, questions of negligence and negligence causation are peculiarly questions of fact which should be determined by the jury.” Sosa v. Coleman, 646 F.2d 991, 995 (5th Cir. 1981) citing Daniels v. Weiss, 385 So.2d 661, 664 (Fla.App.1980).
1) Because DOE proffered evidence in support of her claims, the questions of actual or constructive notice should have been fact questions for a jury. Belik v. Carlson Travel Grp., Inc., 864 F. Supp. 2d 1302, 1309 (S.D. Fla. 2011) (“It is also a fact question as to whether Carnival had actual or constructive notice of the danger.”) Goldbach v. NCL (Bahamas) Ltd., No. 06–21248–CIV–HUCK/SIMONTON, 2006 WL 3780705, at *2 (S.D.Fla. Dec. 20, 2006) (“The question of whether Defendant knew or should have known of the danger posed by Szumowski’s performance is a genuine issue of material fact precluding summary judgment.”).
2) Similarly, whether or not a danger is open and obvious is not a bar to a claim, but rather a defense to be weighed by the jury when apportioning fault. See Kendrick v. Ed’s Beach Serv., Inc., 577 So.2d 936, 938 (Fla.1991). (“[E]ven when a person engaging in a non-contact sport such as diving knows of an open and obvious danger, the person may still recover damages under the principles of comparative negligence if the elements of the tort have been proven.”) Royal Caribbean raises the open an obvious argument on appeal, but the District Court did not grant summary judgment on this point. “That is because the District Court could not say as a matter of law that the danger was so open and obvious as to obviate [Royal Caribbean’s] duty to warn.” Belik v. Carlson Travel Grp., Inc., 864 F. Supp. 2d 1302, 1309 (S.D. Fla. 2011).
Ironically, by arguing that the danger in Cozumel is open and obvious, Royal Caribbean has implicitly admitted that it had notice of dangerous conditions. Further, while this danger might be open and obvious to Royal Caribbean because it sent multiple ships to Cozumel each week, it was not readily apparent to DOE who had little to no travel experience.
3) Lastly, Royal Caribbean’s argument that summary judgment should have been granted because DOE’s rape was the result of an intervening criminal act committed by a third party misses the point. As acknowledged by Royal Caribbean, the District Court did not grant summary judgment because of any intervening criminal act. D.E. 98. In not allowing summary judgment based on this argument, the District Court was in line with the generally accepted principal that intervening acts of third parties only break the chain of liability if the intervening act was not foreseeable. Foreseeability is, of course, a question for the jury.
The former Fifth Circuit addressed this issue in the case of Sosa v. Coleman, 646 F.2d 991, 995 (5th Cir. 1981). Therein, relying on a Florida Supreme Court case the Court held:
In Gibson v. Avis Rent-A-Car System, Inc., 386 So.2d 520 (Fla.1980), the court held: A person who has been negligent is not liable for the damages suffered by another when some separate force or action is “the active and efficient intervening cause,” the “sole proximate cause,” or an “independent cause.” (citations omitted.) On the other hand, one who is negligent is not absolved of liability when his conduct “sets in motion” a chain of events resulting in injury to the plaintiff. (citations omitted.)(T)he question of whether to absolve a negligent actor of liability is more a question of responsibility. (citations omitted.) If an intervening cause is foreseeable the original negligent actor may still be held liable. The question of whether an intervening cause is foreseeable is for the trier of fact.
Id (emphasis added). Ultimately, a jury should have decided whether or not the evidence offered by DOE, including the crime statistics, demonstrated that DOE’s attack was foreseeable.
In sum, each of the points raised by Royal Caribbean are well settled questions of fact for a jury. This is precisely what should occur: a jury should decide the issue of notice. Thus, reversal and remand is warranted.
This Honorable Court should clearly define a Cruise Lines duty to warn, such that this duty has an actual safety benefit to the 16,000,000 passengers that go on cruises each year. In order to do that, the Court should reverse the District Court’s narrow holding, and find that DOE presented a genuine issue of material fact that should have been presented to a jury.
CERTIFICATE OF COMPLIANCE
I HEREBY CERTIFY that the size and style of type used in this Initial Brief is Times New Roman in 14 Point Type.
ALSINA & WINKLEMAN, P.A.
Attorney for Appellant
One Biscayne Tower, Suite 1776
2 South Biscayne Boulevard
Miami, Florida 33131
Telephone: (305) 373-3016
By: s/ Michael A. Winkleman
MICHAEL A. WINKLEMAN
FLORIDA BAR NO.: 36719