               Case: 12-14412        Date Filed: 04/14/2014      Page: 1 of 11


                                                                      [DO NOT PUBLISH]

                  IN THE UNITED STATES COURT OF APPEALS

                            FOR THE ELEVENTH CIRCUIT
                              ________________________

                                     No. 12-14412
                               ________________________

                          D.C. Docket No. 1:11-cv-22798-CMA

BRITTANY BURDEAUX,

                                                                          Plaintiff–Appellant,

                                             versus

ROYAL CARIBBEAN CRUISES, LTD.,

                                                                        Defendant–Appellee.
                               ________________________

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

                                       (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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