Belik v. Carlson Travel Group, Inc.

26 F. Supp. 3d 1267, 2013 WL 308869, 2013 U.S. Dist. LEXIS 10470
CourtDistrict Court, S.D. Florida
DecidedJanuary 25, 2013
DocketCase No. 11-21136-CIV
StatusPublished

This text of 26 F. Supp. 3d 1267 (Belik v. Carlson Travel Group, Inc.) is published on Counsel Stack Legal Research, covering District Court, S.D. Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Belik v. Carlson Travel Group, Inc., 26 F. Supp. 3d 1267, 2013 WL 308869, 2013 U.S. Dist. LEXIS 10470 (S.D. Fla. 2013).

Opinion

ORDER

CECILIA M. ALTONAGA, District Judge.

THIS CAUSE came before the Court on Defendants, Operadora Anderson’s, S.A. de C.V. (“Operadora”) and Palangana, S.A. de C.V.’s (“Palangana[’s]”) (sometimes collectively referred to as the “Señor Frog’s Defendants[’]”) Renewed Combined Motion to Dismiss the Plaintiffs Complaint Pursuant to the Forum Non Conveniens Doctrine (“Motion”) [ECF No. 247], filed on October 23, 2012. Upon the parties’ request and notice of a mutually convenient date and time, the Court heard oral argument on the Motion on December 20, 2012.' (See [ECF Nos. 255, 269]). The Court has carefully reviewed the parties’ written submissions, oral arguments, and applicable law.

I. BACKGROUND1

Plaintiff Michael Belik (“Plaintiff’ or “Belik”) is a New York resident who took a cruise upon Carnival Cruise Lines’ (“Carnival[’s]”) ship Valor (the “Vessel”) in April 2010. Belik purchased his ticket for the cruise from Carnival’s purported agents, the SinglesCruise Defendants,2 which contract with Carnival to funnel passengers to Carnival. The SinglesCruise Defendants created and marketed to Belik a port-of-call excursion in Cozumel, Mexico known as the “Cozumel Beach Party!”. While Belik was aboard the Valor, the SinglesCruise Defendants sold Belik a ticket for the excursion.3 The event was held at the % Señor Frogs Restaurant in the port of Cozumel within sight of the Valor. The Cozumel Beach Party! was promoted to occur at the % Señor Frog’s Restaurant, complete with a rooftop water-slide directly into the ocean, with “plenty of music and drinks to keep us partying the day away!”. (Resp. Ex. D [ECF No. 252-4]). Belik maintains Carnival and the SinglesCruise Defendants knew the passengers attending the Cozumel Beach Party! would be drinking and partying, and would be encouraged to slide, jump, and dive into the waters from a seawall adjacent to the \ Señor Frog’s Restaurant. On April 9, 2010, Belik dove into the water from the seawall on numerous occasions, and on his final dive, hit his head on the ocean floor, resulting in tetraplegia.

The accident occurred in Cozumel, Quin-tana Roo, Mexico, at the Cozumel International Cruise Terminal (“CICT”). The property in and around the CICT, including the surrounding waters and adjacent submerged lands, is owned by the United Mexican States. The temporary use of the property was governed by concession agreements entered into between the Mexican government and government-controlled companies such as Administración Portuaria Integral de Quintana Roo, S.A. de C.V. At the time of Belik’s accident, the' CICT was operated and/or controlled by SSA, S.A. de C.V. (“SSA”).

[1272]*1272Operadora holds an exclusive license to use, exploit, sub-license, and sub-franchise the brand names “Señor Frog’s” and “Carlos And Charlies.” On October 15, 2001, Operadora entered into a franchise agreement with Palangana that permitted Pa-langana to use the “Señor Frog’s” brand name. In December 2001, Palangana commenced its operation of the Señor Frog’s Bar and Restaurant in downtown Cozumel. Thereafter, on March 1, 2002, Palangana commenced its operation of the íé Señor Frog’s Restaurant within the CICT. The lh Señor Frog’s Restaurant operated within an area of the CICT known as “Local 33.” Palangana obtained the right to occupy “Local 33” under a March 2, 2002 agreement with Distribuidora Cuahtémoc Moc-tezuma de Cozumel, S.A. de C.V. (“DCM”), a Mexican beer distributor. DCM obtained its right to sublease Local 33 pursuant to an agreement with TMM Puertos Y Terminales, S.A. de C.V. (“TMM”). TMM was the Mexican corporation that once served as the operator of the CICT before SSA.

Under its March 1, 2002 agreement with DCM, Palangana was permitted to promote and advertise within certain areas of the CICT, including the area called the Beach Club. The Beach Club is a common area located within the CICT, used as a common area for all persons allowed to be present in the CICT.

The seawall Belik dove from was in the CICT, and Belik maintains that seawall was controlled or managed by Operadora and Palangana. These Defendants, however, insist they did not control and/or manage the seawall around the perimeter of the Beach Club from which Belik dove. Rather, they assert the Mexican government owned the seawall, and it was controlled and/or managed by SSA. After Hurricane Wilma, SSA rebuilt the Beach Club, including the addition of the seawall located around the perimeter of the Beach Club from which Belik dove. After the seawall was added, SSA used it as a revenue source by charging local Mexican water sports concessionaires a tariff to transport customers. SSA utilized security guards to monitor and invoice local Mexican water sports concessionaires’ use of the seawall. SSA also controlled and limited access to the CICT property to authorized individuals.

On August 1, 2008, Palangana entered into a Temporary and Partial Use Agreement with SSA for the right to use an area within the CICT called “Local 36,” which is a one-story structure with a rooftop terrace. The seawall was not a part of the August 1, 2008 Agreement between Palan-gana and SSA for “Local 36.” In October 2008, Palangana purchased a waterslide. The waterslide was mounted to the seawall, with the top of the slide located at the rooftop of “Local 36.”

Plaintiffs Complaint alleges several claims for breaches of duties allegedly owed to him by various Defendants. The Complaint names the following Defendants: Carlson Travel Group, Inc. d/b/a SinglesCruise.com; Travel Leaders Leisure Group, LLC; Travel Leaders Group, LLC; Carlson Travel Holdings, Inc.;4 Carnival Corporation d/b/a/ Carnival Cruise Line; Operadora Anderson S.A. de C.V. d/b/a Grupo Andersons; Palangana S.A. de C.V. Señor Frogs d/b/a Señor Frogs; Grupo Nogalero, S.A. de C.V. Carlos N Charlies d/b/a Carlos N Charlies.5

[1273]*1273According to the Complaint, the Singles-Cruise Defendants handled all aspects of the cruise and Cozumel Beach Party! excursion, and represented they would “manage the safety and security of these events and provide a safe and high quality event and venue.” (Compl. ¶ 27 [ECF No. 1]). Carnival owed Belik a duty of care, including the duty to warn of dangers. (See id. ¶ 33). The Señor Frog’s Defendants— which presently comprise Operadora and Palangana — as owners or managers of the Señor Frog’s Restaurant where Belik was injured, provided the waterslide and unlimited drinks, and failed to provide security, warnings, or discouragement to jumping or diving into the water. (See id. ¶¶ 38, 40).

With regard to the SinglesCruise Defendants, in Count I Belik alleges they were negligent in providing security and managing the Cozumel Beach Party! event. In Count II Belik seeks to hold the Singles-Cruise Defendants liable under a theory of negligent misrepresentation involving risk of physical harm, relying on the Restatement Second of Torts section 311. Count III states a claim of vicarious or agency liability against the SinglesCruise Defendants, alleging these Defendants were the principals in an agency relationship with the Señor Frog’s Defendants. In Count IV Belik states a claim of breach of contract as an intended third party beneficiary of the SinglesCruise Defendants’ contract with the Señor Frog’s Defendants.

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26 F. Supp. 3d 1267, 2013 WL 308869, 2013 U.S. Dist. LEXIS 10470, Counsel Stack Legal Research, https://law.counselstack.com/opinion/belik-v-carlson-travel-group-inc-flsd-2013.