MIAMI – The U.S. District Court for the Southern District of Florida recently issued an opinion denying motions for summary judgment made by both parties in a Delray Beach woman’s suit alleging her injuries on a shore tour were due to Oceania Cruises Inc.’s misleading advertising about the excursion.
U.S. District Judge Cecilia M. Altonaga, who wrote the May 30 court order dismissing both motions for summary judgment, said, “The competing summary judgment motions and briefing are replete with disputed material facts. Why the parties filed them is unclear. … 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.”
Eleanor Brown sued Oceania Cruises Inc. (Oceania) for fraud, negligent misrepresentation, negligence and violation of Chapter 817.41 of Florida Statutes, claiming she was injured on a shore excursion hiking tour Oceania had denoted as a “moderate” activity. Brown, who cruised on the ship Riviera with her husband and friends in January 2017, stated in her complaint that she chose the Virgin Gorda and the Baths Excursion in Tortola, British Virgin Islands, after receiving the cruise marketing guide brochure from Oceania. The Baths excursion was given a label for a “moderate” activity, the suit said.
Once Brown was on the tour, she signed a waiver releasing the tour operator from liability. Brown says that the hike was in fact a strenuous activity, requiring participants to “navigate, climb, and walk in between boulders that were several feet in height and to duck down and climb steep wooden ladders,” the filing said.
The filing said Brown caught her foot between two boulders, causing her to fall and break her ankle. Brown was transported to the People’s Hospital in Tortola at the cruise ship doctor’s recommendation and flew home where she had surgery and was confined to a wheelchair for several works.
Oceania claims that Brown signed a waiver and was repeatedly warned of the rough terrain and strenuous footpath. Oceania further argues that it did not breach its duty of ordinary reasonable care because the description of the tour noted it was “strenuous”and that Brown would have seen the rough terrain because it was “open and obvious” once she got to the shore excursion.
Oceania says that they did not write or create the brochure, but that it was written by the excursion tour operator,. Brown claims that Oceania created the brochure, adding that other cruise lines have labeled the Baths excursion as difficult or strenuous.
Judge Altonaga said the court would not decide whether Oceania had met its obligation in the description of the tour to warn Brown of any dangers it knew or should have known about, noting, “A clear dispute of material fact exists regarding the sufficiency of defendant’s marketing materials. … 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.”
U.S. District Court for the Southern District of Florida, Case Number 17-22645-CIV-ALTONAGA/Goodman