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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 12-14412
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D.C. Docket No. 1:11-cv-22798-CMA
BRITTANY BURDEAUX,
Plaintiff–Appellant,
versus
ROYAL CARIBBEAN CRUISES, LTD.,
Defendant–Appellee.
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Appeal from the United States District Court
for the Southern District of Florida
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(April 14, 2014)
Before PRYOR and JORDAN, Circuit Judges, and FRIEDMAN, * District Judge.
PER CURIAM:
On August 26, 2010, after disembarking from a cruise ship at the port of
Cozumel, Mexico, plaintiff-appellant Brittany Burdeaux was sexually assaulted by
*
Honorable Paul L. Friedman, United States District Judge for the District of Columbia, sitting
by designation.
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five unidentified men near a shopping district that the cruise line, defendant-
appellee Royal Caribbean Cruises, Ltd., had recommended visiting. Burdeaux
subsequently brought suit against Royal Caribbean, alleging that the cruise line had
failed to adequately warn her of the risk of sexual assault and rape in that shopping
district and in Cozumel generally. After fact discovery concluded, Royal
Caribbean moved for summary judgment. The district court found that Burdeaux
had failed to submit probative evidence that Royal Caribbean had actual or
constructive notice of a heightened risk of sexual assault and rape in the shopping
district to which Burdeaux was directed, granted Royal Caribbean’s motion, and
entered judgment against Burdeaux. Burdeaux v. Royal Caribbean Cruises, Ltd.,
No. 11-22798-CIV, 2012 WL 3202948, at *7 (S.D. Fla. 2012)).
On appeal, Burdeaux argues that the district court, in determining whether
Royal Caribbean had a duty to warn passengers of potential dangers ashore,
erroneously focused its inquiry on evidence of sexual assault and rape in the
recommended shopping district, and disregarded evidence of violent crime
generally and of sex crimes that occurred outside of the shopping district. More
generally, Burdeaux argues that a cruise line’s duty to warn is not limited to
warning of a specific risk of particular crimes or specified dangers in certain
specific locations. Burdeaux also argues that even if the district court properly
considered only evidence of sexual assault and rape in the shopping district, there
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was sufficient evidence of sexual assault and rape in that area to create a genuine
issue of material fact about whether Royal Caribbean had actual or constructive
knowledge of such risks sufficient to trigger its duty to warn of such dangers. We
find that both arguments fail and therefore uphold the district court’s grant of
summary judgment.
I. BACKGROUND
Plaintiff-appellant, Brittany Burdeaux, was a passenger on board the Royal
Caribbean Cruise Line’s vessel, the Oasis of the Seas, in August of 2010. When
the Oasis of the Seas arrived in Cozumel, Mexico, on August 26, 2010, Burdeaux
left the ship, visited the beach, took a taxi to a restaurant, and then went shopping
on her own. The shopping area she initially visited was one depicted on a
shopping map provided by the cruise line and provided to her before she
disembarked. Certain “guaranteed and recommended shops” were marked on the
map with a number and corresponding description that listed the name of the shop
and the merchandise sold. Royal Caribbean derives revenue from passengers who
purchase items from the stores designated on the map in the particular shopping
area.
While shopping inside the area depicted on Royal Caribbean’s map,
Ms. Burdeaux came across a jewelry cart that had several items for sale. The
jewelry cart was not identified on the map, and the map did not mention or
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recommend any jewelry carts. The salesman operating the jewelry cart told
Burdeaux that he had other jewelry for sale in his nearby store. Burdeaux then left
the designated shopping area with the man and followed him to a store. This store
was not named on Royal Caribbean’s map and was not one of its “recommended
and guaranteed” stores. While Burdeaux was looking at jewelry in this store, the
man she had met at the jewelry cart pushed her down a hallway into a restroom and
then forced her to perform oral sex on him. Four more unidentified men entered
the restroom and forced her to have oral and vaginal sex with them at knife point.
Ms. Burdeaux filed a complaint in federal court against Royal Caribbean for
negligently failing to warn her of the risk of being sexually assaulted in Cozumel.
She also alleged that Royal Caribbean failed to adequately investigate and/or
monitor businesses located in the area where Royal Caribbean recommended or
suggested passengers could safely go.
Following discovery, Royal Caribbean moved for summary judgment,
arguing that there was no evidence that it had actual or constructive knowledge of
a heightened risk for sexual assaults in the area where Ms. Burdeaux was assaulted
and therefore had no duty to warn passengers of such dangers. Burdeaux
responded that there was evidence in the record in support of her assertions, that
the issue of notice was a disputed issue of material fact, and that summary
judgment therefore was not appropriate.
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II. JURISDICTION AND STANDARD OF REVIEW
The Court has jurisdiction pursuant to 28 U.S.C. § 1291 because the district
court granted summary judgment and entered final judgment in favor of appellee
Royal Caribbean Cruises, Ltd. The Court reviews a district court’s grant of
summary judgment de novo, applying the same legal standards as does the district
court, viewing all the evidence and drawing all reasonable and factual inferences in
favor of the non-moving party. See Kragor v. Takeda Pharm. Am., Inc., 702 F.3d
1304, 1307 (11th Cir. 2012); Shriver v. Chertoff, 549 F.3d 1342, 1343 (11th Cir.
2008).
III. DISCUSSION
We have held that a cruise line has a duty to warn its passengers “of known
dangers beyond the point of debarkation in places where passengers are invited or
reasonably expected to visit.” Chaparro v Carnival Corp., 693 F.3d 1333, 1336
(11th Cir. 2012) (citing Carlisle v. Ulysses Line Ltd., S.A., 475 So. 2d 248, 251
(Fla. 3d DCA 1985)). Burdeaux argues that the district court erred in confining the
scope of Royal Caribbean’s duty to warn narrowly in two ways: first, by
considering only evidence specific to the exact type of crime that occurred, i.e.,
evidence of sexual assault and rape, rather than of violent crime generally; and
second, by considering only evidence specific to the location where Royal
Caribbean passengers were specifically invited to visit, i.e., the recommended
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shopping district, rather than Cozumel generally. See Burdeaux, 2012 WL
3202948, at *5 (considering evidence of “significant risk of rape or sexual assault
. . . in the shopping district depicted on the map provided to Burdeaux by Royal
Caribbean”). Appellant Royal Caribbean, by contrast, maintains that the duty to
warn is a narrow one which extends only to known specific dangers in specific
places. For two reasons, we do not have occasion to define the scope of the
“known dangers” or of the “places where passengers are invited or reasonably
expected to visit.”
A. In The District Court, Burdeaux Alleged A Narrow Duty To Warn Only Of
Sexual Assault And Rape
First, in the district court proceedings, Burdeaux only alleged, both in her
complaint and at summary judgment, that Royal Caribbean had a duty to warn
passengers specifically of the risk of sexual assault and rape. Compl. ¶ 15(a)-(b),
(g)-(l); Pl.’s Opp. to Def.’s Summary Judgment Mot. 3-5, 7-9, 13. In her
complaint, she alleged that Royal Caribbean “failed to warn the Plaintiff and other
passengers of the dangers of being sexually assaulted” in Cozumel, Compl.
¶ 15(a); failed to disclose prior problems of cruise line passengers being sexually
assaulted, id. ¶ 15(b); and failed to warn passengers of prior incidents of
passengers claiming they had been sexually assaulted or raped in port, id. ¶ 15(l);
see also id. ¶¶ 15(g), (h), (i), (j), (k). On summary judgment, Burdeaux herself
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framed Royal Caribbean’s duty to warn narrowly, arguing that “ample record
evidence supports Brittany Burdeaux’s position that [Royal Caribbean] knew or
should have known of a specific risk of rape or sexual assault in Cozumel, which
triggered [Royal Caribbean]’s duty to warn Burdeaux of such dangers.” Pl.’s Opp.
to Def.’s Summary Judgment Mot. 1. Indeed, she clarified that her claims were
“narrowly centered around rape and/or sexual assault in Cozumel, Mexico and
more specifically to the subject shopping area recommended by [Royal
Caribbean],” and that the “the alleged failure to warn is specific to the danger
that caused the harm alleged herein (sexual assault).” Pl.’s Opp. to Def.’s
Summary Judgment Mot. 5.
It is only on appeal that she asserts that Royal Caribbean should have
warned her more generally of the danger of violent crime in Cozumel. But this is
not what she alleged in her complaint or argued in the district court. In light of
Burdeaux’s allegations and arguments in the district court, it properly confined its
analysis to whether Burdeaux had submitted sufficient evidence as to whether
Royal Caribbean was on actual or constructive notice of a heightened risk of rape
or sexual assault.
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B. Burdeaux Did Not Submit Adequate Evidence To Create A Genuine Factual
Dispute, Even Assuming Royal Caribbean Had A Duty To Warn Of Dangers
Outside Of The Recommended Shopping District
Second, although Burdeaux argues that the district court improperly defined
Royal Caribbean’s duty to warn as confined to dangers “in the Cozumel downtown
shopping area,” rather than to dangers in Cozumel more generally, see Burdeaux,
2012 WL 3202948, at *6, as alleged in Burdeaux’s complaint, Compl. ¶¶ 15(a)-(b),
(e), this distinction is immaterial here. Assuming arguendo that Royal Caribbean
had a duty to warn passengers of risks likely to arise outside of the recommended
shopping district, there was not adequate evidence to support an inference that
Royal Caribbean had actual or constructive notice of a heightened risk of sexual
assault or rape in Cozumel as a whole.
The evidence upon which Burdeaux relied both before the district court and
on appeal consisted of: (1) two travel warnings from the U.S. State Department
that were in effect at the time; (2) an affidavit from a former Royal Caribbean crew
member who said it was well known among crew members that violent crimes
occurred in the shopping district in downtown Cozumel and that female crew
members would not travel alone when they went ashore; (3) an affidavit from a
prior resident of Cozumel who cited newspaper articles about violence –
particularly drug-related violence – in and around the downtown shopping area in
Cozumel; and (4) crime statistics that Burdeaux said were readily available and
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which evidenced an escalated risk of sexual assault or violent crime in Cozumel.
The district court concluded that none of this evidence created genuine issues of
material fact precluding summary judgment, Burdeaux, 2012 WL 3202948, at *6,
and we agree.
There were two arguably relevant State Department warnings that had been
promulgated in advance of the incident. Although one is headed “Cancun, Playa
del Carmen and Cozumel,” in fact it mentions the risk of violent crime, including
rape, only in Cancun; and it advises that such crimes “commonly but not
exclusively occur at night or in the early morning hours.” It says nothing about
rape or other sexual assaults in Cozumel generally, in Cozumel in the daytime
hours, or in the particular shopping area that Burdeaux visited. The only warning
it provides as to Cozumel is that “several drownings and near-drownings have been
reported.”
The second State Department warning on which Burdeaux relies does not
mention Cozumel at all; it is captioned “Crime in Cancun, Acapulco, and Other
Resort Areas.” It states: “Rape and sexual assault continue to be serious problems
in Cancun and other resort areas.” Based on the cryptic reference to “other resort
areas,” Burdeaux argues that Royal Caribbean was on sufficient notice of rape and
sexual assaults in Cozumel to trigger an obligation to place the following warning
on the shopping map given to Ms. Burdeaux: “According to the U.S. State
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Department, Rape and Sexual Assault continue to be serious problems in Cancun
and other resort areas, such as Cozumel.”
We conclude that neither of these State Department warnings creates a
genuine issue of material fact regarding Royal Caribbean’s knowledge of sexual
assaults or rape in Cozumel. The first warning references Cozumel in the heading
but focuses its discussion of violent crime exclusively on Cancun, and mentions
only a risk of drowning in Cozumel. The second warning is more general and
focuses on Cancun and Acapulco with a vague and unspecified reference to “other
resort areas,” but never mentions Cozumel at all.
Burdeaux next relies on two affidavits: one from a former Royal Caribbean
crew member, Richard Alexander, and the other from a former Cozumel resident,
Sherri Davis. Alexander’s affidavit refers to violent crimes – mostly drug-related –
in Cozumel generally and in the downtown shopping district. It says nothing about
rape or sexual assault. Davis, too, refers mostly to drug-related violent crimes and
not sexual assaults. Most of her “knowledge” comes from articles she remembers
seeing in local newspapers. The only personal knowledge she has relates to one
friend who was sexually assaulted in 2007. Davis then states: “Although I do not
personally know any other victims, I have read of other instances of sexual assaults
and violent crimes in Cozumel in publicly available newspapers between 2007 and
2010.”
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The Alexander and Davis affidavits speak to the rising crime rate and largely
drug-related violence in Cozumel – not to the prevalence of sexual assaults and
rape that is the gravamen of Burdeaux’s complaint. Furthermore, virtually all of
the assertions in Davis’ affidavit are based on her reading of newspapers while a
resident of Cozumel. Her only personal knowledge is that one friend – presumably
a Cozumel resident, not a cruise line passenger – was sexually assaulted and
violently attacked in Cozumel in November 2007, nearly three years before the
attack on Ms. Burdeaux. Neither affidavit creates a genuine issue of material fact
regarding Royal Caribbean’s actual or constructive knowledge of the dangers of
sexual assaults or rape in Cozumel. 1
IV. CONCLUSION
For the foregoing reasons, we affirm the district court’s grant of summary
judgment for Royal Caribbean Cruises, Ltd.
AFFIRMED.
1
Burdeaux also provides crime statistics indicating that the rate of reported sexual assault
in Quintana Roo, the state in which Cozumel is located, is significantly above the Mexican
national average of 14 reported instances per 100,000 inhabitants. By way of reference, the
statistics report that the national average in the United States is 30 instances per 100,000
inhabitants. Not only is the statistical report unverified, and much of it is in Spanish, the report
does not appear to support Burdeaux’s argument, as the statistics indicate that the vast majority
of sex crimes in Quintana Roo occur outside of Cozumel.
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