H.S. v. Carnival Corporation

• Court: Court of Appeals for the Eleventh Circuit
• Decided: March 12, 2018
• Docket: 17-14372
• Status: Unpublished

Opinion

Case: 17-14372 Date Filed: 03/12/2018 Page: 1 of 9

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT ________________________

No. 17-14372 Non-Argument Calendar ________________________

D.C. Docket No. 1:16-cv-20331-JLK

H.S., minor, by and through her parents, natural guardians and next friends, R.S. and L.S.,

Plaintiff-Appellant,

versus

CARNIVAL CORPORATION, a Panamanian corporation,

Defendant-Appellee,

MAX HARMON, an Ohio resident, JODEE C. EDWARDS, an Ohio resident,

Defendants. Case: 17-14372 Date Filed: 03/12/2018 Page: 2 of 9

________________________

Appeal from the United States District Court for the Southern District of Florida ________________________

(March 12, 2018)

Before WILLIAM PRYOR, JULIE CARNES, and HULL, Circuit Judges.

PER CURIAM:

H.S. appeals the dismissal with prejudice of her amended complaint against

Carnival Corporation. H.S. alleged that, while on board a Carnival cruise ship, she

drank alcohol and was sexually assaulted in a male teenaged passenger’s stateroom

because Carnival earlier failed to curtail her “physical contact and sexual activity”

with two teenaged boys in a youth nightclub on the ship. The district court ruled

that H.S. failed to state claims of negligence, fraud in the inducement, and fraud by

concealment. See Fed. R. Civ. P. 9, 12(b)(6). H.S. argues that Carnival should have

foreseen from its failure to supervise the teenagers that their “activity would

continue, possibly in different areas of the ship” and that the failure of Carnival to

“detect[] [and curtail] the unruly sexual behavior” was the proximate cause of

H.S.’s sexual assault. We affirm the dismissal of H.S.’s complaint.

H.S.’s complaint stemmed from an incident that occurred in late January

2015 while she was vacationing with her parents on the Carnival Pride. H.S., a 14-

year-old girl, decided to participate in a youth program offered on the Pride.

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Although the Pride had a program for adolescents between the ages of 12 and 14,

H.S.’s mother registered H.S. for Club O2, which was a program Carnival

“designed specifically for 15–17 year olds.” The program allowed teenagers to

“come and go as [they] please[d]” from a lounge containing couches, a dance floor,

and gaming systems. Carnival advertised that the “lounge creates a safe and

comfortable environment for our teen guests . . . [to participate in] activities teens

enjoy doing with their peers,” that there is “no smoking or alcohol allowed in the[]

lounges,” and that “[u]nruly behavior will not be permitted.” And Carnival

“reserve[d] the right to remove and exclude from any further participation . . .

anyone demonstrating behavior, including but not limited to biting, fighting,

hitting, throwing, kicking, foul language, [and] bringing or consuming alcohol &

tobacco.” Carnival stated that the program staff had “to meet important educational

and professional requirements” and were “either college educated in education,

child psychology or youth recreation—OR—[had] extensive professional

experience with children, such as teaching, coaching or daycare.”

H.S.’s complaint related to her alleged ongoing activity with two teenaged

passengers, K.M.A. and E.H. According to H.S., “[o]n or before January 30,

2015,” she “consumed [whisky] provided by E.H.” During the evening of January

30, 2015, K.M.A. attempted to “remove H.S.’s clothing and . . . [to] digital[ly]

penetrate” her inside Club O2, but she “resisted, stopped the sexual activity and

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left the Club O2 premises.” And during the evening of January 31, 2015, while

H.S. was sharing a couch with the two boys inside Club O2, K.M.A. laid his head

in H.S.’s lap, K.M.A. put his hands between H.S.’s legs, and E.H. put his arm

around H.S. and tickled her. H.S. alleged that the boys were “emboldened” by “the

failure of any adult supervisor or crewmember” to “discover[], prevent[] or stop”

the sexual activities and then “coaxed, misled, and persuaded H.S.” to go to E.H.’s

stateroom, where H.S. drank alcohol and engaged in oral sex and sexual

intercourse with E.H.

H.S. sued Carnival for negligence, fraud in the inducement, and fraudulent

concealment. H.S. alleged that she was sexually assaulted because Carnival was

negligent in failing to adequately train its security staff and crew members how “to

supervise adolescents onboard and at Club O2,” in failing “to warn parents . . .

concerning the past history of sexual assault on board its vessels,” in failing to

observe or “to intervene to prevent or interrupt” the sexual contact between H.S.,

K.M.A, and E.H., and in failing “to inform H.S.’s parents of her involvement in

sexual activity within Club O2.” With respect to her claim of fraud in the

inducement, H.S. alleged that the sexual assault was a “direct and proximate result

of” misrepresentations by Carnival that “all onboard youth activities would be age

appropriate and supervised by competent, professionally trained and/or

experienced crewmembers . . ., that ‘unruly behavior’ would not be tolerated in

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youth programming, and that . . . youth facilities and programs would be tobacco

and alcohol free.” As to her claim of fraudulent concealment, H.S. alleged that her

sexual assault was proximately caused by Carnival “knowingly and deliberately

conceal[ing] and fail[ing] to disclose to its passengers . . . the true risk and

incidence of sexual assault or sexual misconduct aboard its vessels” and by

representing in its “marketing campaigns,” “on its website and in publicized

testimony by [its] representatives to Congress,” “through agents and trade

organizations,” and in “statements to the news media” that “the incidents of sexual

assault or misconduct during cruises was low” or “uncommon” and the cruise line

“had zero tolerance for such misconduct.” Carnival filed a motion to dismiss.

The district court dismissed H.S.’s amended complaint. The district court

ruled that H.S. failed to state a claim of negligence because she “allege[d] [no]

facts plausibly showing the breach of duty [by Carnival] was the proximate cause

of [her] injury, or that the criminal act by which [she] was harmed was foreseeable

based upon what Carnival observed or should have observed.” The district court

also ruled that H.S. failed, as required to plead fraud in the inducement, “to allege

an injury which [was] the consequence of reliance on the alleged

misrepresentations” that Club O2 was “age appropriate, professionally supervised

and safe,” “alcohol-free,” and would eject participants involved in “unruly

behavior.” And the district court ruled that H.S. provided no details about “the time

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or place” when Carnival fraudulently concealed information about sexual assaults

on its vessels and that H.S. “fail[ed] to respond to [the] argument [of Carnival] in

favor of dismissal” as required in a local rule of the district court, see S.D. Fla.

L.R. 7.1(c).

“We review de novo the district court’s grant of a Rule 12(b)(6) motion to

dismiss for failure to state a claim, accepting the complaint’s allegations as true

and construing them in the light most favorable to the plaintiff.” Chaparro v.

Carnival Corp., 693 F.3d 1333, 1335 (11th Cir. 2012) (internal quotation marks

and citation omitted). But we will not credit “unwarranted deductions of fact.”

Aldana v. Del Monte Fresh Produce, N.A., 416 F.3d 1242, 1248 (11th Cir. 2005).

“[A] complaint must contain sufficient factual matter, accepted as true, to ‘state a

claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678

(2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). To survive

a motion to dismiss, a plaintiff must plead “factual content that allows the court to

draw the reasonable inference that the defendant is liable for the misconduct

alleged.” Id.

The district court did not err by dismissing H.S.’s claim of negligence. To

state a claim of negligence, H.S. had to allege that Carnival breached a duty to

supervise her and that the breach actually and proximately caused her injury. See

Chaparro, 693 F.3d at 1336. Because the proximate cause of H.S.’s injury was an

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intervening criminal act by “a fellow passenger,” Carnival could not be liable in

negligence unless the “injury by its nature could have been reasonably anticipated

or naturally expected to occur or reasonably foreseen in time [for Carnival] to have

prevented the injury.” See Bullock v. Tamiami Trail Tours, Inc., 266 F.2d 326, 331

(5th Cir. 1959) (internal quotation marks omitted). H.S. failed to allege how

Carnival could have foreseen from the teenagers’ conduct in Club O2 that H.S.

would visit E.H.’s stateroom, become intoxicated, and be sexually assaulted. H.S.’s

allegations established instead that Carnival was obligated to supervise her inside

Club O2.

H.S. argues that her “allegations regarding foreseeability are far more

detailed and specific” than those provided in the complaint of negligence that

survived the motion to dismiss in Chaparro, but we disagree. In Chaparro, the

parents of a Carnival passenger sued after their daughter was fatally shot while

following the recommendation of a Carnival employee to visit Coki Beach on the

island of St. Thomas. 693 F.3d at 1335. We concluded that the parents’ allegation

“that Carnival was aware of gang-related violence and crime, including public

shootings, in St. Thomas generally and near Coki Beach specifically” established

that their daughter’s injury was reasonably foreseeable to Carnival and created a

basis for imposing on the carrier a duty to warn of the risk of danger. Id. at 1336.

In contrast, H.S. alleged no facts to support a plausible inference that Carnival was

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aware of teenage boys sexually assaulting teenage girls on its vessels or, more

specifically, that teenage girls were leaving the youth nightclub, visiting peers’

staterooms unchaperoned, and being sexually abused. As the district court

reasoned, “It is a leap too far to infer that Carnival’s failure to supervise and

prevent minors from engaging in consensual touching and sexual activity in a

public area of the ship . . . [made] a subsequent sexual assault in a private area of

the ship . . . foreseeable based on what Carnival should have observed.”

The district court also did not err by dismissing H.S.’s claim of fraud in the

inducement. H.S. alleged no facts that would allow a plausible inference that she

was injured as a result of relying on the representations of Carnival that Club O2

was supervised and safe. See Babbit Elecs., Inc. v. Dynascan Corp., 38 F.3d 1161,

1176 (11th Cir. 1994). H.S. alleged that she suffered harm after she left Club 02.

H.S. has abandoned any challenge that she could have made to the dismissal

of her claim of fraudulent concealment. “[T]he law is by now well settled in this

Circuit that a legal claim or argument that has not been briefed before the court is

deemed abandoned and its merits will not be addressed.” Access Now, Inc. v. Sw.

Airlines Co., 385 F.3d 1324, 1330 (11th Cir. 2004). H.S. does not dispute that she

failed to satisfy the particularity requirement to plead her claim of fraud. See Fed.

R. Civ. P. 9(b). We deem abandoned any argument that H.S. could have made

contesting the dismissal of this claim.

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We AFFIRM the dismissal with prejudice of H.S.’s complaint.