The risk of hiking over lava fields is an obvious risk; falling while hiking is also a possibility….so is suing when you do both…but you won’t win

Plaintiff signed up on a cruise ship to hike on a lava field. She was fully informed of the risks and admitted to knowing the risks in advance which is defined as assumption of the risk.

Andia, M.D., v. Full Service Travel, 2007 U.S. Dist. LEXIS 88247

State: California and Hawaii, the accident occurred in Hawaii but the lawsuit was filed in California

Plaintiff: Ana Maria Andia, M.D.

Defendant: Full Service Travel, a California corporation, Celebrity Cruises, Inc., a foreign corporation, and Arnott’s Lodge and Hike Adventures

Plaintiff Claims: (1) negligence, on grounds that Defendant breached its duty of care to Plaintiff by failing to ensure the safety of participants in their excursions, and (2) negligence, on grounds that Defendant failed to warn Plaintiff of the known dangers and risks associated with the lava hike. & (1) negligence, on grounds that defendant cruise breached its duty of care to Plaintiff by failing to offer reasonably reliable and safe excursions, and (2) negligence, on grounds that defendant cruise failed to warn Plaintiff of the dangers and risks associated with the lava hike.

Defendant Defenses: assumption of the risk

Holding: for the defendant

Year: 2007

Simple case, however, the facts are long because the defendants provided the plaintiff with a ton of information about the risks of the activity which the court reviewed.

The plaintiff signed up for a hike in the lava fields in Hawaii while on a cruise ship. The information about the hike stated the distance of the hike was always changing because of the lava flow. The hikers could return at any time; however, if they did they would return the way they came by themselves.

This information was provided to the plaintiff in a description of the hike provided by the defendant cruise line, in a brochure that plaintiff was given, in a release the plaintiff signed, and during a talk before the hike began.

Plaintiff in her deposition also admitted that she was an experienced hiker, that falling was always a possibility when hiking.

During a point in the hike, the plaintiff decided to turn around. While hiking back to the ranger station she fell breaking her foot. She sued for her injuries.

The lawsuit was started in the Federal District Court of Southern California. The defendant travel company was dismissed earlier in the case. The defendant hiking company cruise line filed motions for summit judgment.

Summary of the case

The court first looked at the claims against the defendant hiking business. (The type of entity or whether it was an entity was never identified, and the court was not sure what the hiking company was also.)

The basis of the motion from the hiking company was that the risk of “…slipping, falling and injuring oneself on uneven, natural terrain is an inherent risk of lava hiking.”

The duty of care owed by the defendant hiking company in this situation is:

…a duty to use due care and avoid injury to others, and may be held liable if they’re careless conduct injures another person. The doctrine of primary assumption of the risk is an exception to this general rule. The doctrine arises where “by virtue of the nature of the activity and the parties’ relationship to the activity; the defendant owes no legal duty to protect the plaintiff from the particular risk of harm that caused the injury.”

The court then found the doctrine of primary assumption of the risk applied because:

…conditions or conduct that otherwise might be viewed as dangerous often are an integral part” of the activity itself. “The overriding consideration in the application of primary assumption of risk is to avoid imposing a duty which might chill vigorous participation in the implicated activity and thereby alter its fundamental nature.”

Summing up its own analyses of primary assumption of risk the court stated:

If the doctrine of primary assumption of risk applies, a defendant is only liable for a plaintiff’s injuries if the defendant “engages in conduct so reckless as to be totally outside the range of the ordinary activity involved in the sport or activity” or increases the inherent risk involved in the activity.

The plaintiff argued that the hiking company, Arnott’s, was guilty of gross negligence because:

Arnott’s did nothing to provide for Plaintiff’s safety on the lava hike once she determined she could not go forward; Arnott’s did nothing to warn plaintiff of the dangers of approaching too closely to the coastline; Arnott’s did not ensure plaintiff had sufficient water for her trip back to the Rangers station; Arnott’s was understaffed; Arnott’s failed to follow protocol by pressuring plaintiff to return to the ship rather than obtain treatment at the Hilo emergency room; Arnott’s offered misleading information about the trail markings; Arnott’s provided plaintiff with falsely reassuring directions back to the Rangers station; and Arnott’s permitted Plaintiff to hike in sneakers instead of boots. Plaintiff contends that this conduct constituted gross negligence, making the Agreement, which purports to exculpate Arnott’s of liability, unenforceable. Plaintiff also contends that the Agreement is an unconscionable and unenforceable contract of adhesion because it is a pre-printed form, contained multiple signatures and there was no alternative for Plaintiff but to sign it or wait at the Rangers station while the others hiked, losing a day of her cruise vacation.

However, the plaintiff’s arguments were not backed up with any facts. Arguing a point with facts that do not support your argument fails.  

The Court concludes that the doctrine of primary assumption of risk applies, negating Arnott’s general duty to prevent plaintiff from slipping and falling on lava rock, an inherent risk of the activity of lava hiking.

Nor did the actions of the defendant hiking company increase the risk of injury to the plaintiff.

The plaintiff knew the risks of hiking prior to the hike in question and admitted that in her deposition. The plaintiff was given information about the hike and had the risks of the hike explained to her four different ways prior to the hike. The plaintiff assumed the risk of here injuries, and the risk that plaintiff suffered causing her injury were visible to anyone hiking in the lava field.

The next issue the court reviewed with regard to the defendant hiking company was the duty to warn. “It is established law, at least in the exercise of ordinary care, that one is under no duty to warn an-other of a danger equally obvious to both.”

The court found for the hiking company on this issue based on the facts and found the plaintiff assumed the risk of her injuries because she could see the risk and continued on anyway. If you can see the risk, you cannot complain about not knowing about the risk.

The plaintiff’s claims against the cruise ship were then reviewed. A cruise ship has a different duty of care owed to its passengers. “The duty of care of the owner of an excursion ship is a matter of federal maritime law. That duty is to exercise reasonable care under the circumstances.”

Here the plaintiff presented no evidence that the defendant cruise line did not exercise reasonable care to the plaintiff. The same facts when applied to the case also showed the defendant cruise ship had not breached its duty to warn to the plaintiff. The information and brochure were provided by the cruise ship to the plaintiff when she signed up for the hike.

[I]t is generally accepted that where a carrier.  . . has a continuing obligation for the care of its passengers, its duty is to warn of dangers known to the carrier in places where the passenger is invited to, or may reasonably be expected to visit.” However, “there is no duty to warn of a danger that is as obvious to the injured party as to the defendant.”

So Now What?

The case was won on two issues. The first was the risks of the activity were pointed out over and over again by the hiking company to the plaintiff. Information, brochures, safety talks all stated the risks of the activity which the plaintiff accepted when she turned around.

The second issue was the plaintiff in her deposition admitted to hiking experience. Possibly one or the other could have been enough to prove a defense for the defendants in this case; however, since both were so clear, the defense was easily proven.

Many times on hikes, we point out risk, as well as birds and beauty, to others with us. If you are guiding a hike, this requirement should concentrate your attention to these issues and your actions in pointing out risks. You can cover many of the risks of an activity such as hiking with a general talk at the beginning. “We are going to be walking on uneven surfaces. There will be many rocks and roots to trip on. Pay attention to where you are putting your feet and make sure you are on a solid surface when walking.”

As much as releases are an important defense and source of information for your guests, assumption of the risk is making a comeback in the outdoor recreation industry. If your release fails for any reason, assumption of the risk is the best and maybe the only other defense you have available.

Besides the more your gusts know and understand the risks of the activity the less likely the will be to be injured and the better the experience they will have. Leave scaring guests to fun houses at Halloween.

The one confusing issue in the case was the courts use of California law to decide a case that occurred in Hawaii. The federal courts are for situations like this when the parties are from different states. The plaintiff was from California, and the defendants were from Hawaii. However, without an agreement as to the law that should be applied to the case, Hawaiian law, I believe should be applied. Here the court used California law.

What do you think? Leave a comment.

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Andia, M.D., v. Full Service Travel, 2007 U.S. Dist. LEXIS 88247

Andia, M.D., v. Full Service Travel, 2007 U.S. Dist. LEXIS 88247

Ana Maria Andia, M.D., Plaintiff, vs. Full Service Travel, a California corporation, Celebrity Cruises, Inc., a foreign corporation, and Arnott’s Lodge and Hike Adventures, a Hawaiian business of unknown structure, Defendants.

CASE NO. 06cv0437 WQH (JMA)

UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF CALIFORNIA

2007 U.S. Dist. LEXIS 88247

November 29, 2007, Decided

November 29, 2007, Filed

CORE TERMS: hike, lava, station, terrain, falling, rock, summary judgment, hiking, slipping, uneven, duty of care, assumption of risk, cruise, inherent risk, trail, ship, warn, surface, viewing, passenger, excursion, admits, hiker, duty to warn, failure to warn, negating, minutes, causes of action, totally outside, gross negligence

COUNSEL: [*1] For Ana Maria Andia, an individual, Plaintiff: Harold M Hewell, LEAD ATTORNEY, Hewell Law Firm APC, San Diego, CA; Howard M Rubinstein, LEAD ATTORNEY, Law Offices of Howard Rubinstein, Aspen, CO.

For Celebrity Cruises Inc, a foreign corporation, Arnotts Lodge and Hike Adventures, a Hawaiian business of unknown structure Defendants: Gregory Dean Hagen, Tammara N Tukloff, LEAD ATTORNEYS, Drath Clifford Murphy and Hagen, San Diego, CA.

JUDGES: WILLIAM Q. HAYES, United States District Judge.

OPINION BY: WILLIAM Q. HAYES

OPINION

ORDER

HAYES, Judge:

The matter before the Court is Defendants’ Motion for Summary Judgment, filed by Celebrity Cruises, Inc. and Arnott’s Lodge and Hike Adventures. (Doc. # 40).

Background

Defendant Celebrity Cruises, Inc. (“Celebrity”) is engaged in the business of providing passenger cruises to various destinations. 1 UMF 1. Arnott’s Lodge and Hike Adventures (“Arnott’s”) guides transport cruise ship passengers to Volcanoes National Park (“the Park”), and provide knowledge about where the lava flow is each day. UMF 3. In order to view the active lava flow, individuals must hike over cooled lava. This terrain is rugged and natural, consisting of uneven surfaces. Id. at 4; DMF 4. The Hawaii Volcanoes [*2] National Park Rangers (“Rangers”) place reflective markers and cones on the lava to be used by hikers as reference points. UMF 7.

1 The parties each submitted a statement of facts with their submissions in support of and in opposition to the Motion for Summary Judgment. The Court relies upon the facts from Defendants’ Alleged Undisputed Material Facts (“UMF”), which are undisputed by Plaintiff and supported by the cited evidence, and the facts from Plaintiff s Disputed Material Facts (“DMF”), which are undisputed by Defendants and supported by the cited evidence.

In November, 2005, Plaintiff Ana Maria Andia, M.D. was a passenger on Defendant Celebrity Cruises, Inc.’s (“Celebrity”) passenger cruise ship. Plaintiff is an experienced hiker. Andia Depo, 35: 23-25. On November 27, 2005, Plaintiff signed up to participate in a shore expedition known as the HL 15, the Kilauea Lava Viewing Hike, guided by Arnott’s. UMF 8. On November 27, 2005, there was total visibility for many miles in every direction. Id. at 5.

Prior to beginning the hike, Plaintiff read the description of the hike that states: “This tour involves approximately two to six miles of hiking over very sharp and uneven surfaces.” [*3] Id. at 10. Plaintiff also read, understood and executed the “Lava Hike Participant, Release and Acknowledgment of Risk” (“Agreement”), which provides, in relevant part:

I agree not to hold Arnott’s liable for any accident or injury beyond its control. The hike to the Lava is conducted at a brisk pace and requires physically fit participants in good health who can readily hike on varied surfaces and elevation changes for extended periods. I, as a participant, acknowledge that I am taking this activity of my own free will and that I will not hold Arnott’s responsible for any injury incurred while . . . I am hiking on the paved or natural surfaces of the National Park. . . . I understand by reading this waiver that Arnott’s guides will provide only broad direction and safety guidelines and that I remain responsible for the actual path hiked and whether I choose to take the risks with possibly still hot Lava Flows.

Id. at 11. Plaintiff also received and read a document entitled “Arnotts Adventures proudly presents: The Kilauea Lava Hike Adventure” (“Brochure”), which informed Plaintiff that she may need to turn around and head back to the Rangers station alone, and that she did not need [*4] a trail to return safely. Id. at 14.

Prior to beginning the hike, Arnott’s informed Plaintiff that the lava flow had changed and that the hike was going to be longer than anticipated for that day. Id. at 13. Arnott’s also informed all participants in the hike, including Plaintiff, that they had the option of staying at the Rangers station and not going on the hike, and that there would be four decision points during the hike at which hikers could turn around and head back to the Rangers station. Id. at 13, 18.

Prior to beginning the hike, Plaintiff understood that the marked trail was merely a preferred route, and that the trail was not necessary to safely return to the Rangers station. UMF 15; Andia Depo, 63:1-15. Plaintiff also understood that guides would not stay with her during the hike and that she might be returning to the Rangers station unaccompanied. UMF 15, 16; Andia Depo, 63: 1-15, 64:22-24. Plaintiff understood that the hike would be difficult and strenuous. Andia Depo, 52: 17-19

For the first 30 minutes of the hike, and through the first two decision points, the hike proceeded on paved surfaces. UMF 20. During this period, Plaintiff recalls seeing reflective tabs on the [*5] paved surface. Id. Plaintiff’s companion recalls seeing reflective tabs stuck to the rocks for 10-15 minutes of the hike after leaving the paved road. Plaintiff does not recall whether or not the reflective tabs were stuck to the rocks. Id. at 21. Approximately 45 minutes into the hike, and after approximately 15 minutes of walking on unpaved terrain, Plaintiff decided to return, unaccompanied by a guide, to the Rangers station. Id. at 22. About 15 minutes into her return, Plaintiff slipped on one of the rocks. When Plaintiff slipped, she twisted her ankle. Plaintiff then lifted her foot up, and hit the top of her foot on the lava rock. As a result of these events, Plaintiff fractured her foot. Id. at 23. Plaintiff testified that she then proceeded back to the Rangers station. Andia Depo, 86:22-87:14. The fall itself could have caused the fracture to become displaced and surgery may have been required regardless of whether Plaintiff attempted to walk out of the lava fields. UMF 25. Plaintiff was given the option of going to the ship’s doctor or the Hilo emergency room for treatment, and Plaintiff elected to receive treatment with the ship’s doctor. Id. at 24; Andia Depo, 89:15-25; [*6] 90:1-10. Plaintiff testified that, as a result of the fracture, she was confined to a wheel chair for a period of months, had to take time off of work, and suffers impaired balance. Id. 15:13-14.

On February 24, 2006, Plaintiff filed the First Amendment Complaint (“FAC”) against Defendants Full Service Travel, 2 Celebrity and Arnott’s. (Doc. # 3). The FAC alleges causes of action against Arnott’s for (1) negligence, on grounds that Arnott’s breached its duty of care to Plaintiff by failing to ensure the safety of participants in their excursions, and (2) negligence, on grounds that Arnott’s failed to warn Plaintiff of the known dangers and risks associated with the lava hike. The FAC alleges causes of action against Celebrity for (1) negligence, on grounds that Celebrity breached its duty of care to Plaintiff by failing to to offer reasonably reliable and safe excursions, and (2) negligence, on grounds that Celebrity failed to warn Plaintiff of the dangers and risks associated with the lava hike.

2 On October 5, 2006, Defendant Full Service Travel was dismissed from the case, with prejudice.

On August 18, 2007, Defendants filed the Motion for Summary Judgment, pursuant to Rule 56 of the Federal Rules of Civil Procedure. [*7] Defendants claim they are entitled to judgment as a matter of law because (1) Arnott’s owed Plaintiff no duty to protect Plaintiff against the assumed risk of slipping and falling on the lava rock, (2) Arnott’s owed Plaintiff no duty to warn Plaintiff of the obvious risk of injury of slipping and falling on the lava rock, (3) Celebrity did not owe Plaintiff a duty to warn of the obvious risk of slipping and falling on lava rock, (4) the alleged negligence of Defendants did not cause Plaintiff’s injuries, and (5) the claim for punitive damages against Arnott’s is not warranted. After receiving evidence and briefing from the parties, the Court heard oral argument on November 9, 2007.

Standard of Review

Summary judgment is appropriate under Rule 56 of the Federal Rules of Civil Procedure where the moving party demonstrates the absence of a genuine issue of material fact and entitlement to judgment as a matter of law. See Fed. R. Civ. P. 56(c); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986). A fact is material when, under the governing substantive law, it could affect the outcome of the case. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986). A dispute over a material [*8] fact is genuine if “the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Id.

A party seeking summary judgment always bears the initial burden of establishing the absence of a genuine issue of material fact. See Celotex, 477 U.S. at 323. If the moving party satisfies its initial burden, the nonmoving party must “go beyond the pleadings and by her own affidavits, or by the depositions, answers to interrogatories, and admissions on file, designate specific facts showing that there is a genuine issue for trial.” Id. at 324 (quoting Fed. R. Civ. P. 56(e)).

In ruling on a motion for summary judgment, the Court must view all inferences drawn from the underlying facts in the light most favorable to the nonmoving party. See Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S. Ct. 1348, 89 L. Ed. 2d 538 (1986). “Credibility determinations [and] the weighing of evidence . . . are jury functions, not those of a judge, [when] he is ruling on a motion for summary judgment.” Anderson, 477 U.S. at 255.

Choice of Law

The Court has jurisdiction over this action through diversity of citizenship, 28 U.S.C. section 1331. Federal courts exercising diversity jurisdiction must [*9] apply the substantive law of the state in which they are located, except on matters governed by the United States Constitution or federal statutes, or on procedural issues. Erie Railroad Co. v. Tompkins, 304 U.S. 64, 78, 58 S. Ct. 817, 82 L. Ed. 1188 (1938). The Complaint alleges causes of action in negligence for breach of due care and for failure to warn. The elements of the tort of negligence are essentially identical under California and Hawaii law. See White v. Sabatino, 415 F. Supp. 2d 1163, 1173 (USDC Haw. 2006); Ladd v. County of San Mateo, 12 Cal. 4th 913, 917, 50 Cal. Rptr. 2d 309, 911 P.2d 496 (1996). Furthermore, the doctrine of primary assumption of risk is a measure of a defendant’s duty of care, and is essentially identical under both Hawaii and California law. Yoneda v. Andrew Tom, 110 Haw. 367, 379, 133 P.3d 796 (2006); Knight v. Jewett, 3 Cal. 4th 296, 314-15, 11 Cal. Rptr. 2d 2, 834 P.2d 696 (1992).

Discussion

I. Plaintiff’s Claims Against Arnott’s

Arnott’s contends that the risk of slipping, falling and injuring oneself on uneven, natural terrain is an inherent risk of lava hiking. Arnott’s contends that without this risk, the means of viewing this natural phenomenon would be severely limited to the general public. Arnott’s also contends that the evidence is uncontroverted that [*10] Arnott’s provided Plaintiff with written disclosures concerning the condition of the terrain, that guides would only give broad direction on the actual hike, that Plaintiff may need to turn around and head to the Rangers station alone, and that Plaintiff did not need a trail to return safely. Arnott’s contends that there is no triable issue of fact as to whether Arnott’s is liable for breach of its duty of care because the doctrine of primary assumption of risk applies, negating any duty of Arnott’s to protect Plaintiff against the inherent risk of slipping and falling while lava hiking. Arnott’s contends that Plaintiff has failed to assert facts or introduce any evidence that demonstrates that the conduct of Arnott’s was totally outside the range of ordinary activity or that the conduct of Arnott’s increased Plaintiff’s risk of slipping and falling on the lava rock. Arnott’s also contends that there is no triable issue of fact as to whether Arnott’s is liable to Plaintiff for breach of the duty of Arnott’s to warn because the risk of slipping and falling on the natural terrain was equally obvious to Plaintiff and Arnott’s.

Plaintiff responds that the conduct of Arnott’s constituted [*11] gross negligence for the following reasons: Arnott’s did nothing to provide for Plaintiff’s safety on the lava hike once she determined she could not go forward; Arnott’s did nothing to warn Plaintiff of the dangers of approaching too closely to the coastline; Arnott’s did not ensure Plaintiff had sufficient water for her trip back to the Rangers station; Arnott’s was understaffed; Arnott’s failed to follow protocol by pressuring Plaintiff to return to the ship rather than obtain treatment at the Hilo emergency room; Arnott’s offered misleading information about the trail markings; Arnott’s provided Plaintiff with falsely reassuring directions back to the Rangers station; and Arnott’s permitted Plaintiff to hike in sneakers instead of boots. Plaintiff contends that this conduct constituted gross negligence, making the Agreement, which purports to exculpate Arnott’s of liability, unenforceable. Plaintiff also contends that the Agreement is an unconscionable and unenforceable contract of adhesion because it is a pre-printed form, contained multiple signatures and there was no alternative for Plaintiff but to sign it or wait at the Rangers station while the others hiked, losing a day [*12] of her cruise vacation. 3

3 Plaintiff does not dispute that the doctrine of primary assumption of risk applies, negating Arnott’s’ duty to prevent Plaintiff from slipping and falling on lava rock. Instead, Plaintiff relies solely on her contention that the Agreement itself is either an unenforceable exculpatory agreement or an unenforceable contract of adhesion. Defendants, however, do “not contend, nor have they even asserted, that the [Agreement] relieves them from liability for any alleged negligence, nor gross negligence.” Reply, p. 1-2.

A. Duty of Care

As a general rule, persons have a duty to use due care and avoid injury to others, and may be held liable if their careless conduct injures another person. Cal. Civ. Code § 1714. The doctrine of primary assumption of the risk is an exception to this general rule. Knight v. Jewett, 3 Cal. 4th 296, 11 Cal. Rptr. 2d 2, 834 P.2d 696 (1992). The doctrine arises where “by virtue of the nature of the activity and the parties’ relationship to the activity, the defendant owes no legal duty to protect the plaintiff from the particular risk of harm that caused the injury.” Id. at 315. Whether the doctrine of assumption of risk applies, thereby negating a duty of care, turns on [*13] the “nature of the activity or sport in which the defendant is engaged and the relationship of the defendant and the plaintiff to that activity or sport.” Id. at 309. In reviewing the nature of the activity, the doctrine of primary assumption of risk applies where “conditions or conduct that otherwise might be viewed as dangerous often are an integral part” of the activity itself. Id. at 315. “The overriding consideration in the application of primary assumption of risk is to avoid imposing a duty which might chill vigorous participation in the implicated activity and thereby alter its fundamental nature.” Ferrari v. Grand Canyon Dories, 32 Cal. App. 4th 248, 253, 38 Cal. Rptr. 2d 65 (1995).

If the doctrine of primary assumption of risk applies, a defendant is only liable for a plaintiff’s injuries if the defendant “engages in conduct so reckless as to be totally outside the range of the ordinary activity involved in the sport or activity” or increases the inherent risk involved in the activity. Saville v. Sierra College, 133 Cal. App. 4th 857, 866, 36 Cal. Rptr. 3d 515 (4th Dist. 2005); Kane v. National Ski Patrol, 88 Cal. App. 4th 204, 209, 105 Cal. Rptr. 2d 600 (4th Dist. 2001). The relationship between an instructor and student is instructive [*14] on the issue of whether the Arnott’s guides engaged in reckless conduct or increased the inherent risk involved in lava hiking. Kane, for example, involved candidates for a voluntary ski patrol who participated in a skills clinic instructed by Larry Stone, a National Ski Patrol System (“NSPS”) instructor. 88 Cal. App. 4th at 207. Stone led the clinic participants to the most difficult terrain at the resort. When the participants were reluctant to proceed through a portion of the trail, which was icy and spotted with trees, rocks and stumps, Stone asked the clinic participants what they would do “if there was a skier over the side?” Id. at 208. Although both plaintiffs felt uncomfortable with continuing down the terrain, they carried on, following Stone’s direction. Id. One plaintiff ultimately caught an “edge” with his ski, causing him to fall to his death, and the other plaintiff fell and suffered a broken leg. Id. The court granted summary judgment in favor of the defendant, holding that the doctrine of primary assumption of risk applied, negating the defendant’s duty of care. The court reasoned that “an instructor’s assessment errors – either in making the necessarily subjective [*15] judgment of skill level or the equally subjective judgment about the difficulty of the conditions – are in no way ‘outside the range of the ordinary activity involved in the sport.” Id. at 214.

Plaintiff admits that she is an experienced hiker. Andia Depo, 35:23-25. Plaintiff admits that falling is always a risk when engaging in any kind of strenuous hike on steep and uneven terrain. Id. at 153:8-14. Plaintiff admits that prior to starting the hike she was aware that she would be hiking over “very sharp and uneven surfaces.” Id. at 51:8-13. Plaintiff does not introduce any evidence to refute that hiking across uneven and challenging natural terrain is an inherent risk of hiking to active lava flow, without which the general public would be substantially deprived of viewing this natural phenomenon. The Court concludes that the doctrine of primary assumption of risk applies, negating Arnott’s general duty to prevent Plaintiff from slipping and falling on lava rock, an inherent risk of the activity of lava hiking.

Plaintiff admits that, prior to the hike, Arnott’s provided the following written disclosures, which she understood: that the natural terrain was uneven and challenging; that [*16] during the hike she would be responsible for the path she traveled; that the guides would give only broad direction; that she may have to return to the Rangers station alone; and that the trail was merely a preferred route, and not necessary to safely get back to the Rangers station. Despite these disclosures, Plaintiff asserts that the decision to allow Plaintiff to return to the Rangers station alone and subsequent conduct on the part of the Arnott’s guides constituted gross negligence. The Court finds that the decision to allow Plaintiff to return alone and subsequent conduct on the part of Arnott’s guides at most constituted “assessment errors,” but these “subjective judgment[s] about the difficulty of the condition[s],” were “in no way so reckless as to be totally outside the range of the ordinary activity involved” in the activity of lava hiking. See Kane, 88 Cal. App. 4th at 214. Plaintiff emphasizes that Arnott’s’ conduct, such as permitting her to participate in the hike wearing sneakers instead of hiking boots, was grossly negligent. However, the Court finds that there is no evidence in the record to support Plaintiff’s conclusion that Arnott’s conduct, including permitting [*17] Plaintiff to wear improper footwear, hike over thin lava crust, return to the Rangers station alone and without sufficient water, or return to the ship instead of going to the Hilo emergency room, increased the risk of Plaintiff’s injury. The Court concludes that there is no triable issue of fact as to whether Arnott’s conduct was so reckless as to be totally outside the range of the ordinary activity or otherwise increased the inherent risk involved in the activity of lava hiking.

The Court grants summary judgment on Plaintiff’s negligence claim against Arnott’s for breach of duty of care.

B. Duty to Warn

“It is established law, at least in the exercise of ordinary care, that one is under no duty to warn another of a danger equally obvious to both.” Marshall v. United Airlines, 35 Cal. App. 3d 84, 90, 110 Cal. Rptr. 416 (1973).

Plaintiff admits she is an experienced hiker, that she was aware that falling is always a risk involved in any kind of hike on steep and uneven terrain, that she knew that the terrain she would cover during the lava hike was rugged and uneven, and that she read the Agreement and the Brochure, which both emphasize the strenuous nature of the hike, the possibility that Plaintiff would [*18] have to return to the Rangers station alone and nature of the terrain. Viewing the facts in the light most favorable to Plaintiff, the Court finds that Plaintiff has failed to offer any evidence to demonstrate that the risk of slipping and falling on lava rock was any less obvious to Plaintiff than it was to Arnott’s. The Court grants summary judgment on Plaintiff’s negligence claim against Arnott’s for failure to warn.

II. Plaintiff’s Claims Against Celebrity

Celebrity contends that although Plaintiff alleges separate causes of action in negligence for breach of due care and for failure to warn, both of these claims allege only failure to warn. Celebrity contends that it had no duty to warn Plaintiff of the risk of slipping and falling on lava rock during a hike through a lava field because the risk was patently obvious and equally apparent to Plaintiff and Celebrity.

Plaintiff’s Response in Opposition to the Motion for Summary Judgment on all of Plaintiff’s claims against Celebrity states in full:

[P]laintiff relied on Celebrity to provide her with reasonably safe shore excursions. The dangers of the lava hike with Arnott’s were not readily apparent to her or anyone else who had not [*19] taken the hike. Celebrity’s reliance on Deroche is misplaced.

This was not a scooter ride, which a reasonable person knows poses obvious dangers. It was a hike to a uniquely dangerous place. [Plaintiff] reasonably relied on Celebrity to exercise due care in providing her with a safe guide service, and in offering a potentially life-threatening venture. Celebrity had a duty to ensure that Arnott’ s was a reasonable safe and reliable service. Celebrity is liable for breach of that duty.

Opposition, p. 19-20.

A. Duty of Care

The duty of care of the owner of an excursion ship is a matter of federal maritime law. DeRoche v. Commodore Cruise Line, Ltd., 31 Cal. App. 4th 802, 807, 46 Cal. Rptr. 2d 468 (1994). “That duty is to exercise reasonable care under the circumstances.” Id. at 807-8.

Plaintiff fails to introduce any evidence to support her claim that Celebrity did not exercise due care when it enrolled Plaintiff in “excursion HL 15, the Kilauea Lava Viewing Hike, an unreasonably dangerous and poorly run and operated excursion.” See FAC, P 35-36. Viewing the facts in the light most favorable to Plaintiff, the Court finds that Plaintiff has failed introduce any evidence demonstrating Celebrity breached its duty [*20] of due care to Plaintiff. The Court grants summary judgment on Plaintiff’s negligence claim against Celebrity for breach of duty of care.

B. Duty to Warn

“[I]t is generally accepted that where a carrier . . . has a continuing obligation for the care of its passengers, its duty is to warn of dangers known to the carrier in places where the passenger is invited to, or may reasonably be expected to visit.” DeRoche, 31 Cal. App. 4th at 809. However, “there is no duty to warn of a danger that is as obvious to the injured party as to the defendant.” Id. at 810.

As previously discussed, Plaintiff admits she is an experienced hiker, that she was aware that falling is a risk involved in any kind of hike on steep and uneven terrain, that she knew that the terrain she would cover for the lava hike was rugged and uneven, and that she read the Agreement and the Brochure, which both emphasize the strenuous nature of the hike, the challenging nature of the terrain and the possibility that Plaintiff would have to return to the Rangers station alone. Viewing the facts in the light most favorable to Plaintiff, the Court finds that Plaintiff has failed offer any evidence that demonstrates the risk of falling [*21] on lava rock was any less obvious to her than it was to Celebrity. The Court grants summary judgment on Plaintiff’s negligence claim against Celebrity for failure to warn.

Conclusion

Defendants’ Motion for Summary Judgment, filed by Celebrity Cruises, Inc. and Arnott’s Lodge and Hike Adventures (Doc. # 40) is GRANTED. The Court directs the Clerk of the Court to enter JUDGMENT for Defendants and against Plaintiff.

DATED: November 29, 2007

/s/ William Q. Hayes

WILLIAM Q. HAYES

United States District Judge


Jurisdiction and Venue (Forum Selection clauses) are extremely important in your releases. Where the lawsuit will be (where/Venue) and what law will be applied (Jurisdiction) is the sole issue in this case.

Advance notice of the jurisdiction and venue issues emailed to the plaintiff saves this resort. Plaintiff was not able to argue they were not told they had to sue in Bermuda. Bermuda does not allow contingency cases, and a Bermuda jury is not as likely to give money to foreigners (Americans) as a Miami jury.

Son v. Kerzner International Resorts, Inc., et al., 2008 U.S. Dist. LEXIS 67482

Date of the Decision: September 5, 2008

Plaintiff: Miyoung Son (“Mrs. Son”) and Youngkeun Son (“Mr. Son”)

Defendant: Kerzner International Resorts, Inc., Kerzner International North America, Inc., Kerzner International Limited, Kerzner International Bahamas Limited, Island Hotel Company Limited, and Paradise Island Limited

Plaintiff Claims: Response to Defendant’s Motion to Dismiss

Defendant Defenses: Motion to Dismiss

Holding: for the defendant

The plaintiff’s booked at trip at the defendant’s resort (Atlantis Resort) in the Bahamas. This was their second trip to this resort. After booking and prior to their arrival, the defendant sent emails stating that the plaintiff’s would have to sign several documents. One of the documents was a release which contained a forum selection clause or venue clauses.

No family members of the plaintiff opened any of the documents attached to the emails, but they did acknowledge receiving the emails.

At the resort during check-in, several documents, including the release were signed by the spouse.

Mr. Son stated that the check-in process lasted approximately two to three minutes, that he was asked to sign several forms, and that he did not read the forms. Mr. Son said that the resort’s front desk staff did not explain the contents of the forms. Mr. Sonfurther stated that he did not intend to sign a forum selection clause, nor was he authorized to sign one on his wife’s behalf. However, Mr. Son did not state that his wife had affirmatively told him not to sign any documents regarding her legal rights.

While taking an excursion “Mrs. Son received severe and extensive injuries as a result of being pulled through the churning propellers of the excursion boat.

The plaintiff’s filed suit in Federal District Court for the Southern District of Florida. The defendant’s filed a Motion to Dismiss the case based on the forum selection clause the plaintiff’s had signed. Meaning the lawsuit should be dismissed because the lawsuit was filed in the wrong place.

Since the plaintiff files the lawsuit, the place where the plaintiff files the lawsuit is the original forum or venue of the suit. The Burden is then on the defendant to argue the location of the lawsuit is incorrect.

Summary of the case

A forum selection clause or a venue clause is a clause in a contract where the parties agree where any lawsuit will be held. A jurisdiction clause, usually heard in the same breath determines what law will be applied to the contract. For a forum selection clause to be held to be unreasonable, it must fail one of the following tests:

…1.) when the formation of the clause was induced by fraud or overreaching; 2.) when the plaintiff would be deprived of her day in court because of inconvenience or unfairness; 3.) when the chosen law would deprive the plaintiff of a remedy, or 4.) when enforcement of the provisions would contravene public policy.

Public policy, number 4, is not necessarily the same public policy that voids releases.

The plaintiff’s argued that the forum selection clause at issue was void because:

…that the forum selection clause was formed by fraud and overreaching, that Plaintiffs will be deprived of their day in court if they have to sue in the Bahamas, that Bahamian law is fundamentally unfair, and that enforcement of the forum selection clause would contravene public policy.

The court took on each of the arguments of the plaintiff individually and then tackled several arguments not raised by the plaintiff.

Fraud and Overreaching

The plaintiff’s argued the contract was signed because of fraud and over-reaching. The argument was based on the claim that the plaintiff’s did not receive notice of the clause prior to their arrival in the Bahamas so they could cancel the trip “with impunity.” They also argued the short check in time deprived the plaintiffs of the ability to read and comprehend the rights the plaintiff was giving up when he signed the contracts.

The court’s response to this argument was:

A non-negotiated contract containing a forum selection clause may be enforceable, so long as the contract was formed under “reasonable” circumstances. In particular, the clause must be reasonably communicated to the consumer such that the consumer knows that the contract contains terms and conditions which affect the consumer’s legal rights.

[A]bsent a showing of fraud or mental incompetence, a person who signs a contact cannot avoid her obligations under it by showing that she did not read what she signed.

The clause at issue was not hidden, was not disguised in the release; the plaintiff ignored the warning that stated, “read before signing,” all of which was not enough to void the contract. “This willful ignorance cannot be used to invalidate an otherwise binding provision.”

The argument that they did not receive notice was also thrown out by the court. Just because the plaintiff did not read the emails, does not mean the plaintiff did not have the opportunity to see the clause prior to the trip.

The plaintiff then argued that the injured wife did not give the husband the authority to sign away her rights.

Plaintiffs argued at the hearing that Mrs. Son did not sign the forum selection clause, nor did she grant her husband authority to sign away her legal rights. Thus, Plaintiffs claim, the forum selection clause could not apply to Mrs. Son. The Court disagrees. First, Mrs. Son admitted that she granted her husband authority to complete all procedures necessary to check-in to the Atlantis Resort. Thus, Mr. Son had “implied authority” to sign the forum selection clause on Mrs. Son’s behalf, because it was necessary for Mr. Son to sign the clause to complete check-in.

A spouse may sign for another spouse in some states. Additional, one spouse who did not sign taking advantage of the benefits of the contract may affirm the contract. Add to that the fact the plaintiff had signed a nearly identical clause during their prior trip and their argument for fraud and overreaching was denied.

Public Policy

The plaintiff did not present any case law to support the violation of Public Policy claim so the court found it had no merit.

Discouraging Legitimate Claims

The court quickly dismissed this argument. Because the forum selection clause was based where the defendants had their business, therefor, the forum selection clause was related to the dispute. The courts and the law where the accident occurred were legitimate; therefore, the forum selection clause was related to the dispute. Consequently, the court could not find bad faith.

Forum Non Conveniens

The federal doctrine of forum non conveniens allows the Court to use its inherent power to dismiss an action because of the inconvenience of the plaintiff’s chosen forum.” Under the doctrine of forum non conveniens the court can dismiss a claim when the plaintiff’s chosen forum imposes a heavy burden on the defendant or upon the court and the plaintiff is unable to offer any specific reason of convenience to support this choice.

The decision process to support a forum non conveniens claim is:

First, the Court must consider whether an “adequate alternative forum” exists which has jurisdiction over the case. The Court must then consider whether private interest factors suggest that the Court should disturb the strong presumption in favor of a plaintiff’s choice of forum. If the Court finds that the private interest factors are indeterminate, the Court must then proceed to consider whether considerations of public interest favor a trial in the foreign forum. Dismissal is only warranted if these factors weigh heavily towards trial in the foreign forum.

An adequate alternative forum exists when the defendant is “amenable to process” in the new foreign forum. “The defendant has the burden of proving that the proposed forum is adequate, and the proposed forum has jurisdiction over the claims.” Since the defendants were based in the Bahamas and thus amenable to service of process there the plaintiff must show that they would not receive a fair trial in the Bahamas. They plaintiffs could not do that. The argued they could not afford a trial in the Bahamas since contingency fee agreements were not allowed, however, money is not part of the argument in jurisdiction and venue arguments.

Private Interest Factors

The court also reviewed the private interest factors in the case and how those applied to its decision.

Factors considered to be in a litigant’s private interest include the ease of access to sources of proof, availability of compulsory process for witnesses, cost of obtaining attendance of witnesses, ability to view the premises (if necessary), and “all other practical problems that make trial of a case easy, expeditious and inexpensive.

The court found the majority of the witnesses were located in the Bahamas were the accidents happened. The court also found the vital witnesses were all located in the Bahamas. The Florida court could not necessarily subpoena and compel the non-employee witnesses in the Bahamas to appear in court in the US. Consequently, the defendant would be at risk in defending its case because it could not compel the witnesses needed to defend its case. The witnesses in Maryland and Washington DC of the plaintiffs were for the damages’ phase of the trial and consequently, not vital.

More importantly, the plaintiff could not identify any witnesses who could testify in Florida that could not testify in the Bahamas. The distance was relatively the same to get to either place from Maryland and DC. Only one actual witness had been identified by the plaintiff as a resident of Florida, and that was an agent for the defendant.

The defendant also argued they wanted to bring the real party at interest, the excursion boat company into the trial as a third party defendant. If the excursion boat company had no interest in Florida, the Florida court could not compel the third parties to trial in Florida. The plaintiff would also argue that the defendants were agents of the third parties, and the defendants would be defending claims of agency without the benefit of the third parties to support its claims or defenses.

Public Interest Issues.

The court quoted the US Supreme Court in its analysis of the public policy issues of forum selection.

Administrative difficulties follow for courts when litigation is piled up in congested centers instead of being handled at its origin. Jury duty is a burden that ought not to be imposed upon the people of a community which has no relation to the litigation. In cases which touch the affairs of many persons, there is reason for holding the trial in their view and reach rather than in remote parts of the country where they can learn of it by report only. There is a local interest in having localized controversies decided at home. There is an appropriateness, too, in having the trial of a diversity case in a forum that is at home with the state law that must govern the case, rather than having a court in some other forum untangle problems in conflict of laws, and in law foreign to itself.

A jury in Florida has no interest in hearing or adjudicating an incident that occurred outside of its state or even the US. Bahamian law will govern the dispute because the law of the forum where the accident occurred is controlling. Forcing a Florida judge to interpret and apply Bahamian law is also an inconvenience that the court does not want to support.

Reinstatement of the Suit

The final issue that some courts, including this one reviewed is whether the plaintiffs will be foreclosed from filling suit in the proper forum if this case is dismissed. In this case, the defendant agreed to extend the statute of limitations and allow the plaintiff to file in the Bahamas after the appropriate statute had run.

Consequently, the case was dismissed.

So Now What?

 

Here, the only defendant the plaintiffs could catch was obviously in Florida so the trial was started in Florida. The defendant’s did not have an employee in Washington DC or Maryland, and the plaintiffs did not argue what is called minimum contacts to force the defendant to litigate in DC or Maryland.

Minimum contacts means the defendant does business in the state where the plaintiff filed the lawsuit and has the necessary minimum contacts to sue in that state. The amount of this contact is different in each state.

However, as here, a forum selection clause or jurisdiction and venue clauses are paramount and supersedes the rules governing the location of trials.

Forum selection clauses or jurisdiction and venue clauses provide immense advantages for recreational businesses.

1.      It prevents litigating a release in a state where releases are invalid or void. Courts in Louisiana are going to be hesitant to apply the defense of a release because a release is void in Louisiana.

2.    It makes sure the law that is important will be applied to the case. Think about applying Louisiana law to a ski accident in Colorado? Think about someone in Florida trying to understand the inherent risks of skiing as set out in the Colorado Ski Safety Statute.

3.    It makes sure the area or community that has an interest in the industry or the business has control over the case. Again, a ski accident in Louisiana where the jury does not care or understand skiing versus suing in Colorado where the jury understands and has an interest in Skiing.

4.    It eliminates arguments, time and costs of trying to get a trial back to the place that would serve the interest of justice best.

5.     It forces the plaintiff to find legal counsel in a state or area that they may not be familiar. This may eliminate all but major claims.

6.    It will force the plaintiff to expand money to prosecute a claim in a foreign (other than their own state) jurisdiction. Some of those funds may not be recoverable even if the plaintiff is successful at trial.

One interesting issue was the “impunity” argument. When you give a guest information after they have booked the trip which may change their opinion of the trip from a legal perspective, such as adding a release or another contract provisions, many states may require you to refund the guest’s money in full based on the release or additional contract terms.

Your release has limited value, if any, in many cases may be worthless, if it does not have a forum selection clauses or jurisdiction and venue clause.

IF YOU DON’T HAVE A FORUM SELECTION/JURISDICTION & VENUE CLAUSE IN YOUR RELEASE, YOUR RELEASE CAN FAIL. Contact Me.

What do you think? Leave a comment.

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Son v. Kerzner International Resorts, Inc., et al., 2008 U.S. Dist. LEXIS 67482

Son v. Kerzner International Resorts, Inc., et al., 2008 U.S. Dist. LEXIS 67482

Miyoung Son and Youngkeun Son, Plaintiffs, v. Kerzner International Resorts, Inc., et al., Defendants.

NO. 07-61171-CIV-MARRA/JOHNSON

UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF FLORIDA

2008 U.S. Dist. LEXIS 67482

September 5, 2008, Decided

September 5, 2008, Entered

COUNSEL: [*1] For Miyoung Son, Youngkeun Son, Plaintiffs: Alexander Rundlet, Victor Manuel Diaz, Jr., LEAD ATTORNEYS, Podhurst Orseck, P.A., Miami, FL; Katherine Warthen Ezell, Robert C. Josefsberg, LEAD ATTORNEYS, Podhurst Orseck Josefsberg et al, Miami, FL; Gene Locks, Jonathan W. Miller, Locks Law Firm, Philadelphia, PA; Stephen J. Nolan, Stephen J Nolan Chartered, Baltimore, MD.

For Kerzner International Resorts, Inc., a Florida corporation, in its own right, doing business as Paradise Island, doing business as Destination Atlantis, doing business as Atlantis, Kerzner International North America, Inc., a Delaware corporation, in its own right, doing business as Paradise Island, doing business as Atlantis, doing business as Destination Atlantis, Kerzner International Limited, a company of the commonwealth of the Bahamas, in its own right, doing business as Paradise Island, doing business as Atlantis, doing business as Destination Atlantis, Kerzner International Bahamas Limited, a company of the commonwealth of the Bahamas, in its own right, as a subidiary of Kerzner International Limited, doing business as Paradise Island, doing business as Atlantis, doing business as Destination Atlantis, Island [*2] Hotel Company Limited, a company of the commonwealth of the Bahamas, in its own right, as subsidiary of Kerzner International Bahamas Limited, doing business as Paradise Island, doing business as Atlantis, doing business as Destination Atlantis, Paradise Island Limited, a company of the commonwealth of the Bahamas, in its own right, as a subsidiary of Kerzner International Bahamas Limited, doing business as Paradise Island, doing business as Atlantis, doing business as Destination Atlantis, Defendants: Bruce Scott Liebman, Michelle Ioanna Bougdanos, LEAD ATTORNEYS, Akerman Senterfitt & Eidson, Fort Lauderdale, FL.

JUDGES: KENNETH A. MARRA, United States District Judge.

OPINION BY: KENNETH A. MARRA

OPINION

OPINION AND ORDER ON MOTION TO DISMISS

THIS CAUSE comes before the Court on Defendants Kerzner International Resorts, Inc., Kerzner International North America, Inc., Kerzner International Limited, Kerzner International Bahamas Limited, Island Hotel Company Limited, and Paradise Island Limited’s Motion to Dismiss Plaintiffs’ Complaint (DE 15), filed November 12, 2007. The motion is now fully briefed and is ripe for review. The Court held an evidentiary hearing on this matter on June 19, 2008. The Court has carefully [*3] considered the motion and the record and is otherwise fully advised in the premises.

Background

On August 17, 2007, Plaintiffs Miyoung Son (“Mrs. Son”) and Youngkeun Son (“Mr. Son”) ( together, “Plaintiffs”) filed a four-count Complaint (DE 1) against Defendants Kerzner International Resorts, Inc., Kerzner International North America, Inc., Kerzner International Limited, Kerzner International Bahamas Limited, Island Hotel Company Limited, Paradise Island Limited, 1 Nassau Cruses, Limited (“Nassau Cruses”), Robert Brown, Rodger Munroe, and Silvin Brown (together, “Defendants”), asserting claims of negligence and loss of consortium against all Defendants. The facts, as alleged in the Complaint and adduced at the evidentiary hearing, are as follows: Mr. and Mrs. Son, residents of Maryland, purchased a vacation package from the Kerzner Defendants for a four-night stay at the Atlantis Resort in the Commonwealth of the Bahamas in July 2005. (Compl. PP 3, 15.) The vacation was to last from August 17 to August 21, 2005. Plaintiffs were to be accompanied by their two children, Mrs. Son’s sister and brother-in-law, their three children, and a nanny. (Compl. P 15.) While in the Bahamas, Plaintiffs [*4] booked an excursion through Atlantis’s Tour and Excursions Center. (Compl. P 17.) While on the excursion, Mrs. Son received severe and extensive injuries as a result of being pulled through the churning propellers of the excursion boat. (Compl. PP 20-21.)

1 The Court will refer to the moving parties, Kerzner International Resorts, Inc., Kerzner International North America, Inc., Kerzner International Limited, Kerzner International Bahamas Limited, Island Hotel Company Limited, and Paradise Island Limited, collectively as the “Kerzner Defendants.”

Findings of Fact

1. After booking the trip, Plaintiffs received from the Kerzner Defendants a package in the mail containing information about the trip; however, the package did not contain any mention that Plaintiffs would be expected to sign a forum selection clause or choice of law clause upon check-in at the Atlantis Resort. (Pl. Ex. 1; Def. Ex. 5.)

2. On July 24, Mrs. Son received two e-mails from the Kerzner Defendants with additional information about her upcoming trip – one regarding her booking, and one regarding her sister’s family’s booking. (Pl. Ex. 3, 4; Def. Ex. 3, 4.)

3. Mrs. Son testified that she did not open the e-mails prior to [*5] departing for the Bahamas because she did not recognize the sender. Mrs. Son also testified that she did not open the e-mails and read the attached documents until very recently, but she admitted that she did receive the e-mails prior to her trip.

4. One of the documents contained in each e-mail that Mrs. Son received after making the booking stated as follows:

During guest registration at Atlantis, Paradise Island you will be asked to sign a form agreeing to the following terms related to any claims you may have as a result of your stay at the resort: I agree that any claim I may have against Atlantis, Ocean Club, or any of their officers, directors, employees or related or affiliated companies, including, without limitation, Kerzner International Limited, Kerzner International Bahamas Limited, Island Hotel Company Limited, Paradise Enterprises Limited, Paradise Island Limited and Paradise Beach Inn Limited resulting from any events occurring in The Bahamas shall be governed by and construed in accordance with the laws of the Commonwealth of The Bahamas, and further, irrevocably agree to the Supreme Court of The Bahamas as the exclusive venue for any such proceedings whatsoever. The [*6] foregoing shall apply to all persons accompanying me, and I represent that I have the authority to sign this document on their behalf.

(Pl. Ex. 3, 4; Def. Ex. 3, 4.)

5. Mrs. Son testified that she did not know she would have to sign such a document upon arrival.

6. Upon arrival, Mr. Son completed the check-in process. (Pl. Ex. 2; Def. Ex. 1.) Mr. Son signed a form on his own behalf “and the members of [his] family group or others listed below” (including Mrs. Son) which contained the following language:

I agree that any claims I may have against the Resort Parties resulting from any events occurring in The Bahamas shall be governed by and construed in accordance with the laws of the Commonwealth of The Bahamas, and further, irrevocably agree to the Supreme Court of the Bahamas as the exclusive venue for any such proceedings whatsoever.

(Pl. Ex. 2; Def. Ex. 1.) Mr. Son stated that the check-in process lasted approximately two to three minutes, that he was asked to sign several forms, and that he did not read the forms. Mr. Son said that the resort’s front desk staff did not explain the contents of the forms. Mr. Son further stated that he did not intend to sign a forum selection clause, [*7] nor was he authorized to sign one on his wife’s behalf. However, Mr. Son did not state that his wife had affirmatively told him not to sign any documents regarding her legal rights.

7. Mrs. Son testified that she did not authorize her husband to sign a forum selection clause, but Mrs. Son also did not state that she told her husband he was not to sign any legal documents on her behalf. Mrs. Son testified that she did authorize her husband to complete all necessary check in procedures on her behalf.

8. Plaintiffs previously visited the Atlantis Resort in December 2001. When completing check-in formalities in 2001, Mr. Son signed a form that states as follows:

I agree that any claim I may have against Atlantis, Ocean Club, or any of their officers, directors, employees or related or affiliated companies, including, without limitation, Sun International Hotels Limited, Sun International Bahamas Limited, Island Hotel Company Limited, Paradise Enterprises Limited, Paradise Island Limited and Paradise Beach Inn Limited resulting from any events occurring in The Bahamas shall be governed by and construed in accordance with the laws of the Commonwealth of The Bahamas, and further, irrevocably [*8] agree to the Supreme Court of The Bahamas as the exclusive venue for any such proceedings whatsoever. The foregoing shall apply to all persons accompanying me and I represent that I have the authority to sign this document on their behalf.

(DE 54.)

Standard of Review

In the Eleventh Circuit, a motion to dismiss on the basis of a forum selection clause is brought pursuant to Rule 12(b)(3) of the Federal Rules of Civil Procedure as a motion to dismiss for improper venue. Lipcon v. Underwriters at Lloyd’s, London, 148 F.3d 1285, 1290 (11th Cir. 1998). Forum selection clauses are “prima facie valid and should be enforced unless enforcement is shown by the resisting party to be ‘unreasonable’ under the circumstances.” M/S Bremen v. Zapata Off-Shore Co., 407 U.S. 1, 10, 92 S. Ct. 1907, 32 L. Ed. 2d 513 (1972). The Court may make any findings of fact necessary to resolve a motion to dismiss for improper venue, so long as the resolution of factual disputes is not an adjudication on the merits of a case. Bryant v. Rich, 530 F.3d 1368, 2008 WL 2469405 at *5 (11th Cir. 2008). Determining the reasonableness of a forum selection clause is a fact-specific inquiry to be made on a case-by-case basis. [*9] Shankles v. Costa Armatori, S.P.A., 722 F.2d 861, 864 (1st Cir. 1983).

Because the Court is sitting in diversity, Florida substantive law applies. See, e.g., Admiral Ins. Co. v. Feit Management Co., 321 F.3d 1326, 1328 (11th Cir. 2003) (“Sitting in diversity, we apply the substantive law of the forum state unless federal constitutional or statutory law compels a contrary result.”).

Discussion

A forum selection clause will be held “unreasonable” in only four circumstances: 1.) when the formation of the clause was induced by fraud or overreaching; 2.) when the plaintiff would be deprived of her day in court because of inconvenience or unfairness; 3.) when the chosen law would deprive the plaintiff of a remedy, or 4.) when enforcement of the provisions would contravene public policy. Lipcon, 148 F.3d at 1292; see also Carnival Cruise Lines, Inc. v. Shute, 499 U.S. 585, 594-95, 111 S. Ct. 1522, 113 L. Ed. 2d 622 (1988). Some courts have also made prior notice of the clause an element to consider in determining reasonableness. See, e.g., Sun Trust Bank v. Sun International Hotels, Ltd., 184 F. Supp. 2d 1246, 1258 (S.D. Fla. 2001); Corna v. American Hawaii Cruises, Inc., 794 F. Supp. 1005, 1012 (D. Haw. 1992). 2 Here, Plaintiffs [*10] argue that the forum selection clause was formed by fraud and overreaching, that Plaintiffs will be deprived of their day in court if they have to sue in the Bahamas, that Bahamian law is fundamentally unfair, and that enforcement of the forum selection clause would contravene public policy. The Court will address each of these arguments in turn.

2 In Shute, the Supreme Court did not state that lack of notice of the forum selection clause was grounds for finding that the clause was unreasonable. In fact, the Court stated that it would not “address the question of whether respondents had sufficient notice of the forum clause before entering the contract for passage” because the respondents had conceded that they had sufficient notice. Shute, 499 U.S. at 590. However, the Supreme Court found notice relevant insofar as the Court found a party’s right to reject the contract “with impunity” essential to its enforceability. Id. at 595. Thus, notice is a relevant inquiry when considering a forum selection clause to determine whether the party could walk away from the contract with a minimal penalty. In Corna, for instance, the Court found that two to three days notice of the forum selection [*11] clause insufficient, because the plaintiffs would have forfeited the entire ticket price for their trip if they had canceled the trip upon first learning of the forum selection clause. Corna, 794 F. Supp. at 1011-1012; cf. Elliott v. Carnival Cruise Lines, 231 F. Supp. 2d 555, 561 (S.D. Tex. 2002) (enforcing forum selection clause where cancellation at time notice of clause received by passenger would have resulted in refund of only 50% of purchase price).

Fraud and Overreaching

Plaintiffs argue that the formation of the agreement including the forum selection provision was “induced by fraud and overreaching.” (Pl. Resp. 9.) Plaintiffs claim that they “never received . . . any notice of a forum selection clause prior to arriving at the hotel in the Bahamas.” (Id.) Plaintiffs do not argue bad faith on the Kerzner Defendants part, and their sole argument regarding fraud and overreaching relates to notice. Plaintiffs also do not argue that the forum selection clause was hidden on the forms they signed. Instead, they argue that they did not receive notice of the clause prior to their arrival in the Bahamas, so they could not cancel “with impunity.” Further, they argue that the short check-in [*12] time period effectively deprived Mr. Son of the ability to read and comprehend the rights he was surrendering when he signed the document. (See Pl. Resp. 9-10.)

A non-negotiated contract containing a forum selection clause may be enforceable, so long as the contract was formed under “reasonable” circumstances. Shute, 499 U.S. at 593-94. In particular, the clause must be reasonably communicated to the consumer such that the consumer knows that the contract contains terms and conditions which affect the consumer’s legal rights. Shankles, 722 F.2d at 864.

With respect to the time for check-in, a perusal of the “Acknowledgment, Agreement, and Release” form shows that the clause is not hidden in any way. The page contains seven paragraphs regarding limitations on liability, choice of law, and other legal provisions. (Pl. Ex. 2; Def. Ex. 1.) While the forum selection provision is not written in a larger font, in bold font, or italicized, it is still easily readable and is set off in its own paragraph in the middle of the front side of the form. Further, the form is marked at the very top “READ BEFORE SIGNING.” Thus, the Court finds that the form clearly and unmistakably conveys that it contains [*13] terms affecting the consumer’s legal rights. The clause is not hidden among other, non-legal provisions, nor is the clause physically disguised. The fact that Mr. Son chose not to read the form that is clearly marked “read before signing” does not excuse Plaintiffs from their contractual obligation. See, e.g., Coleman v. Prudential Bache Securities, Inc., 802 F.2d 1350, 1352 (11th Cir. 1986) (“[A]bsent a showing of fraud or mental incompetence, a person who signs a contact cannot avoid her obligations under it by showing that she did not read what she signed.”). The check-in process was doubtless hurried, but the Court finds that Mr. Son was not rushed through the process so as to prevent him from taking as much time as he needed or desired to review the document thoroughly. Mr. Son made a conscious choice – he chose to sign the form without reading it in order to speed the check-in process along. This willful ignorance cannot be used to invalidate an otherwise binding provision.

Plaintiffs then argue that they did not receive notice of the forum selection clause prior to their arrival at the Atlantis resort, such that they could not reject the provision “with impunity.” In Sun Trust [*14] Bank, under similar facts, the court concluded that the same forum selection clause disputed in this case was unenforceable because the plaintiffs did not have an “objectively reasonable opportunity to consider and reject” the clause. Sun Trust Bank, 184 F. Supp. 2d at 1261. The court was presented with “undisputed” evidence that the “forum-selection clause was presented to [plaintiff] for the first time upon arrival in the Bahamas.” Id.

Contrary to Plaintiffs assertions, this case is distinct, and Sun Trust Bank is inapplicable. First, Plaintiffs had both visited the Atlantis resort in 2001, and Mr. Son signed a nearly identical forum selection provision upon arriving at the resort in 2001. Having previously signed a nearly identical forum selection provision in 2001, it is reasonable to expect that Plaintiffs would be asked to sign a similar provision on their return visit. In Horberg v. Kerzner Resorts International Ltd., No. 07-20250-CIV-UNGARO, 2007 U.S. Dist. LEXIS 97693, slip op. at 5-6 (S.D. Fla. Aug. 6, 2007), the court enforced the same forum selection clause disputed in this case on the basis that the plaintiffs had visited the Atlantis resort on previous occasions and thus “had a reasonable opportunity [*15] to consider and reject the forum selection clause.”

Also making this case distinct from Sun Trust Bank is the fact that the Kerzner Defendants provided Plaintiffs with prior notice that they would be asked to sign a form requiring all suits brought against the Kerzner Defendants be brought in the Bahamas. Plaintiffs concede that Mrs. Son received two e-mails on July 24, 2005, that contained an attachment titled “Terms and Conditions.” (Pl. Ex. 4, 5.) In the section labeled “Atlantis Registration,” the attachment explained that all guests would be asked to sign a forum selection clause upon check-in.

Mrs. Son testified that she did not remember receiving these e-mails from the Kerzner Defendants, and Mrs. Son also testified that she did not open e-mails from unrecognized senders because of the threat of computer viruses. Mrs. Son further testified that she did not expect to receive e-mails regarding her Atlantis resort trip. However, Mrs. Son received these e-mails the very same day that she booked her trip, and both e-mails had “Travel Plan” in the subject line with a reservation number. Logic would dictate that Mrs. Son must have provided her e-mail address over the phone when making [*16] the reservation since she received e-mails regarding her booking shortly thereafter. Thus, while the Court finds Mrs. Son’s testimony credible, the Court does not agree that her decision not to read the e-mails was reasonable. 3 Mrs. Son chose not to read the e-mails, but the e-mails provided sufficient notice of the forum selection and choice of law clauses her family would be required to sign upon arrival at the Atlantis Resort.

3 At the hearing, Plaintiffs’ counsel consistently averred that Plaintiffs did not have a “duty” to open the e-mails they received regarding their trip but that Plaintiff had a “duty” to open packages sent to her through the U.S. Mail. However, the Court fails to see how Plaintiffs make this distinction. Plaintiffs have not identified a specific duty that Plaintiffs might have had to open regular mail versus e-mail. Plaintiffs’ could have decided not to open the package received through the U.S. Mail as freely as they decided not to open the e-mails. The Court cannot conceive of a “duty” to open a letter any more than it can conceive of a “duty” to open an e-mail. Plaintiffs’ bear the risk that they will lose valuable information or documentation when they [*17] choose not to receive a letter, e-mail, or any other form of communication. Plaintiffs weighed the risk of losing vital information against the risk of receiving a computer virus when deciding not to open the e-mails, just as Plaintiffs weighed the risk of losing vital information against the risk of receiving anthrax powder when deciding to open the mailed package. The Kerzner Defendants’ should not be held liable because Plaintiffs’ risk calculus led them not to open the documentation.

Finally, Plaintiffs argued at the hearing that Mrs. Son did not sign the forum selection clause, nor did she grant her husband authority to sign away her legal rights. Thus, Plaintiffs claim, the forum selection clause could not apply to Mrs. Son. The Court disagrees. First, Mrs. Son admitted that she granted her husband authority to complete all procedures necessary to check-in to the Atlantis Resort. Thus, Mr. Son had “implied authority” to sign the forum selection clause on Mrs. Son’s behalf, because it was necessary for Mr. Son to sign the clause to complete check-in. 4 Alternatively, by signing the form which clearly stated he had the authority to bind everyone in his party, Mr. Son acted with “apparent [*18] authority,” because the Atlantis Resort reasonably believed his representations that he had the authority to bind Mrs. Son. 5

4 The Restatement (Third) of Agency defines “implied authority” as either (1) the authority “to do what is necessary, usual, and proper to accomplish or perform an agent’s express responsibilities or (2) to act in a manner which an agent believes the principal wishes the agent to act based on the agent’s reasonable interpretation of the principal’s manifestation in light of the principal’s objectives and other facts known to the agent.” Restatement (Third) of Agency § 2.01 cmnt. b (2006).

5 “Apparent authority is the power held by an agent or other actor to affect a principal’s legal relations with third parties when a third party reasonably believes the actor has the authority to act on behalf of the princpal and that belief is traceable to the principal’s manifestations.” Restatement (Third) of Agency § 2.03.

The parties did not brief the issue of agency, but the parties proceeded to argue the issue of agency at the hearing. In Florida, the rule of lex loci contractus determines the law to be applied when determining an issue of contract law. See Sturiano v. Brooks, 523 So. 2d 1126 (Fla. 1988). [*19] Because the contract was executed in the Bahamas, Bahamian law would apply to whether Mr. Son was acting as Mrs. Son’s agent and whether she was bound by Mr. Son’s signature. The parties, however, have not provided any evidence of (nor can the Court determine on its own initiative) the scope of Bahamian agency law. The Court has turned to the Restatement (Third) of Agency as a general guideline, not as an authoritative source on the law of the Commonwealth of the Bahamas.

Moreover, a party need not sign a forum selection clause to be bound by the terms of the clause; a party can be bound if it is “closely related” to the dispute. Hugel v. Corporation of Lloyd’s, 999 F.2d 206, 209-10 (7th Cir. 1993); see also E.I. DuPont de Nemours and Co. v. Rhone Poulenc Fiber and Resin Intermediaries, S.A.S., 269 F.3d 187, 195 (3d Cir. 2001); Manetti-Farrow, Inc. v. Gucci America, Inc., 858 F.2d 509, 514 n.5 (9th Cir. 1988). Mrs. Son is at the center of this dispute (indeed, the parties are arguing over who is responsible for her injuries) and is thus “closely related.” Therefore, she can be bound to the terms of the clause whether she actually signed it or not. Again, the Court has explained that [*20] she received all the notice to which she was entitled under the law, and she should have been aware that agreeing to a forum selection clause was part of the check-in process.

In sum, the Kerzner Defendants’ burden in this situation was only to provide reasonable notice to Plaintiffs, which the Kerzner Defendants achieved. Once the Kerzner Defendants sent Plaintiffs notice of the forum selection clause, it was Plaintiffs’ decision as to whether they read the notification. The Court rejects Plaintiffs’ argument that Defendants somehow needed to do more. Plaintiffs chose not to read the notice, and the consequences are theirs to bear. Thus, the forum selection clause will not be invalidated on this ground.

Deprivation of Day in Court and Fundamental Unfairness

Plaintiffs argue that they will be “effectively deprived of their day in court” because of the “inconvenience” of litigating in the Bahamas and because of the fundamental unfairness of Bahamian law. (Pl. Resp. 10.) First, Plaintiffs claim that Mrs. Son cannot return to the Bahamas because of the “great mental and emotional anguish” she would suffer if she was forced to return there. Mrs. Son testified that she did not want to return [*21] to the Bahamas; however, she admitted that her doctors have never stated that she is physically or mentally incapable of returning. Instead, her prohibition on travel to the Bahamas appears self-imposed and, as a result, not a persuasive justification to invalidate the forum selection clause.

Likewise, Plaintiffs claim they are “financially unable to pursue litigation in the Bahamas, where contingent fees are prohibited.” (Pl. Resp. 11.) This argument is also unavailing. The Court cannot give substantial weight to fact that contingency fee arrangements are not available in foreign forums. Magnin v. Teledyne Continental Motors, 91 F.3d 1424, 1430 (11th Cir. 1996). As the Fifth Circuit Court of Appeals has stated, “If the lack of a contingent-fee system were held determinative, then a case could almost never be dismissed because contingency fees are not allowed in most foreign forums.” Coakes v. Arabian American Oil Co., 831 F.2d 572, 576 (5th Cir. 1987) (discussing contingency fee arrangements as part of forum non conveniens analysis).

Public Policy

Plaintiffs argue that “enforcement of the provisions of the Release would contravene a strong public policy, because enforcement of the forum [*22] selection clause would imply enforcement of the entire Release.” (Pl. Resp. 11.) Plaintiffs, however, have provided no cases to suggest that enforcement of the forum selection clause by this Court would compel a Bahamian court to enforce the release of liability. The Court thus finds this argument lacks merit.

Discouraging Legitimate Claims

Finally, Plaintiffs argue that Defendants “set the Bahamas as the forum ‘as a means of discouraging [hotel guests] from pursuing legitimate claims.'” (Pl. Resp. 12.) Plaintiffs point to a case in which the Kerzner Defendants chose to litigate in New Jersey state court, Paradise Enterprises Ltd. v. Sapir, 356 N.J. Super. 96, 811 A.2d 516 (N.J. Super. Ct. 2002), to show that the Kerzner Defendants can indeed litigate in U.S. forums. Plaintiffs claim that the fact that the Kerzner Defendants will litigate in New Jersey when they so choose shows bad faith selecting the Bahamas to litigate these claims. The Court also finds this argument unpersuasive. As the Supreme Court held in Shute, where the defendant selected a Florida forum, “[a]ny suggestion of such a bad-faith motive is belied by two facts: Petitioner has its principal place of business in Florida, and many of its [*23] cruises depart from and return to Florida ports.” Here, the Kerzner Defendants, who run a resort in the Bahamas, elected a Bahamian forum to litigate disputes arising out of visitors to the Bahamian resort who are injured while staying in the Bahamas. Had Defendants selected a trial court in Thailand to settle tort claims arising out of resort stays in the Bahamas, one could make a colorable argument that the selected forum was unrelated to the dispute and selected to discourage individuals from bringing legitimate claims. Where the defendant operates a business in the selected forum and the actions that would give rise to litigation would also occur in the selected forum, the Court cannot conclude that the defendant acted in bad faith.

Accordingly, the Court finds that the forum selection clause is enforceable, and this case shall be dismissed subject to Plaintiff’s ability to refile the action in the Supreme Court of the Bahamas.

Forum Non Conveniens

Alternatively, the Court believes that this action should be dismissed on the basis of the doctrine of forum non conveniens. The federal doctrine of forum non conveniens allows the Court to use its inherent power to dismiss an action because [*24] of the inconvenience of the plaintiff’s chosen forum. Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 506-07, 67 S. Ct. 839, 91 L. Ed. 1055 (1947). Under the doctrine, dismissal is “appropriate where trial in the plaintiff’s chosen forum imposes a heavy burden on the defendant or the court, and where the plaintiff is unable to offer any specific reasons of convenience supporting his choice.” Piper Aircraft v. Reyno, 454 U.S. 235, 249, 102 S. Ct. 252, 70 L. Ed. 2d 419 (1981).

Analytically, the Court’s analysis falls into three stages. First, the Court must consider whether an “adequate alternative forum” exists which has jurisdiction over the case. La Seguridad v. Transytur Line, 707 F.2d 1304, 1307 (11th Cir. 1983). The Court must then consider whether private interest factors suggest that the Court should disturb the strong presumption in favor of a plaintiff’s choice of forum. Id. If the Court finds that the private interest factors are indeterminate, the Court must then proceed to consider whether considerations of public interest favor a trial in the foreign forum. Id. Dismissal is only warranted if these factors weigh heavily towards trial in the foreign forum. Piper Aircraft, 454 U.S. at 249. This strong presumption in favor of the plaintiff’s choice [*25] of forum is strongest when the plaintiff is a citizen or resident of the U.S. SME Racks, Inc. v. Sistemas Mecanicos Para Electronica, S.A., 382 F.3d 1097, 1102 (11th Cir. 2004).

Adequate Alternative Forum

An adequate alternative forum exists when the defendant is “amenable to process” in the foreign forum. Piper Aircraft, 454 U.S. at 254 n.22. The defendant bears the burden of establishing that its proposed forum is adequate and has jurisdiction over the case. La Seguridad, 707 F.2d at 1307. Here, all but two of the Defendants in this action are Bahamian citizens or corporations. (Compl. PP 4-14.) Defendants claim that they are “undoubtedly amenable to service of process in the Bahamas.” (Def. Mot. 15.) Likewise, Defendants have presented evidence that the Bahamian legal system recognizes negligence actions like Plaintiffs’ claims in the instant case. (Pyfrom Aff. P 10.) Thus, there is no indication that Bahamian courts would not afford Plaintiffs a remedy for their claims. Moreover, courts are loathe to hold that other forums are inadequate. See Leon v. Millon Air, Inc., 251 F.3d 1305, 1312 (11th Cir. 2001). Plaintiffs have not intimated that Bahamian courts would be inadequate. Thus, [*26] the Court finds that the Supreme Court of the Bahamas is an adequate alternative forum for the instant action.

Private Interest Factors

The Supreme Court has directed district courts to consider the “private interest of the litigant.” Gulf Oil, 330 U.S. at 508. Factors considered to be in a litigant’s private interest include the ease of access to sources of proof, availability of compulsory process for witnesses, cost of obtaining attendance of witnesses, ability to view the premises (if necessary), and “all other practical problems that make trial of a case easy, expeditious and inexpensive.” Id.

The Kerzner Defendants argue that “all of the documents related to Plaintiffs’ allegations in the Complaint are in The Bahamas.” (Def. Mot. 16.) The Kerzner Defendants do not state what documents are in the Bahamas, nor do they argue that such documents could not be brought to Florida in the event that trial was conducted here. Plaintiffs, meanwhile, have noted that they are already in possession of police and medical records from the Bahamas (see Childs Aff.), and such documents could easily be disclosed to Defendants during discovery. This factor weighs in Plaintiffs’ favor.

Notwithstanding [*27] the relative ease of access to documentary evidence, the ease of access to witnesses and the ability to compel attendance at trial is not as clear. Plaintiffs have only identified one Florida citizen witness – the corporate representative of Defendant Kerzner International Resorts, Inc. The remaining witnesses Plaintiffs seek to call are largely medical professionals from Maryland or Washington, D.C. (See Pl. Resp. 14-16.) Defendants, on the contrary, note that many prospective witnesses are located in the Bahamas: the staff at Doctors Hospital in Nassau, Bahamas, who initially treated Mrs. Son; representatives of Defendant Nassau Cruises, Ltd.; Defendants Robert Brown, Rodger Munroe, and Silvin Brown; as well as employees of the Atlantis Resort. (Def. Mot. 16.)

The Court recognizes that in Ward v. Kerzner International Hotels Ltd., Judge Jordan held that the fact that several witnesses resided in the Bahamas was insufficient to overcome the strong presumption in favor of the plaintiff. No. 03-23087-CIV, 2005 U.S. Dist. LEXIS 11081, 2005 WL 2456191 at *3 (S.D. Fla. Mar. 30, 2005). In that case, like in Sun Trust Bank, a majority of the Bahamian witnesses were employees of the defendants who, defendants claimed, [*28] would appear voluntarily. Id.; see also Sun Trust Bank, 184 F. Supp. 2d at 1263-64. In Ward, only two Bahamian witnesses were not employed by the defendants. Ward, 2005 U.S. Dist. LEXIS 11081, 2005 WL 2456191 at *3. By contrast, in this case, most of the relevant witnesses are not employees of the Kerzner Defendants. Some of the prospective witnesses are Defendants in this action, but this Court cannot effectively subpoena these foreign nationals residing in the Bahamas and compel them to appear before this Court. In fact, these Bahamian witnesses are the very witnesses that will describe the events leading to Mrs. Son’s injuries (i.e., the liability phase). The U.S. witnesses, who for the most part are medical professionals, will likely be used for the damages phase of trial. Looking at the quality of the proposed witnesses, rather than absolute numbers of potential witnesses, the Court finds that none of the most vital witnesses needed to resolve the issue of liability reside in Florida, and a substantial number of these witnesses reside in the Bahamas.

The Kerzner Defendants may be able to interview agents of Nassau Cruses, Ltd., or some of the other individual Defendants, but the Kerzner Defendants would be [*29] forced to present testimony at trial in Florida in the form of depositions or letters rogatory. Were this situation limited to a pair of witnesses whose testimony was not in controversy (as in Ward), the Kerzner Defendants would be expected to proceed using these devices. Where several of the Defendants are outside of the compulsory process of this Court and where those witnesses are the Kerzner Defendants’ main witnesses to challenge Plaintiffs’ claims of liability, as in this case, the Court believes that the Kerzner Defendants would be severely prejudiced in their ability to defend their case. As the Supreme Court explained in Gulf Oil, the doctrine of forum non conveniens should be applied to avoid these situations: “Certainly to fix the place of trial at a point where litigants cannot compel personal attendance and may be forced to try their cases on deposition, is to create a condition not satisfactory to court, jury or most litigants.” 330 U.S. at 511.

Moreover, Plaintiffs’ have not identified a single witness who would be available to testify if trial were held in Florida but would not be available to testify at trial in the Bahamas. As all but one of Plaintiffs’ witnesses are [*30] coming from locations outside of this district, all but one will have to travel. The Court believes that it would be equally feasible for Plaintiffs to arrange plane tickets and hotel stays in Nassau, Bahamas, as it would in West Palm Beach, Florida. These cities are roughly 200 miles apart, a relatively short distance considering that Plaintiffs will have to travel roughly 1,000 miles to reach either forum. While there may be some inconvenience for the one Florida witness to travel to the Bahamas, Plaintiffs cannot realistically contend that the inconvenience of traveling to Nassau would vary significantly from the inconvenience of traveling to West Palm Beach. See Wiwa v. Royal Dutch Petroleum Co., 226 F.3d 88, 107 (2d Cir. 2000) (“For any nonparty witnesses, the inconvenience of a trial in New York is not significantly more pronounced than the inconvenience of a trial in England.”).

Finally, it has been widely recognized that the inability to implead other parties directly involved in a controversy is a factor weighing heavily against the plaintiff’s choice of forum. See, e.g., Reid-Walen v. Hansen, 933 F.2d 1390, 1398 (8th Cir. 1991); Fitzgerald v. Texaco, Inc., 521 F.2d 448, 453 (2d Cir. 1975). [*31] In this case, like in Piper Aircraft, the joinder of Nassau Cruises, Ltd., Robert Brown, Rodger Munroe, and Silvin Brown is “crucial to the presentation” of the Kerzner Defendants’ case. 454 U.S. at 259. Plaintiffs want to show that Nassau Cruises and these individuals are the agents of the Kerzner Defendants and that the Kerzner Defendants are vicariously liable for her injuries. Without the ability to join this corporation and these individuals meaningfully to this case, the Kerzner Defendants would be forced to defend claims of vicarious liability with limited benefit of evidence from the persons actually involved in the incident giving rise to the claim. The Court finds this burden to be substantial. 6 Conversely, the Court can find no substantial burden on Plaintiffs (other than a financial burden from Plaintiffs’ inability to retain counsel on a contingency fee basis) from having to litigate their dispute in the Bahamas.

6 Unlike all of the cases involving injuries at resorts cited by Plaintiffs, this case is distinct because it involves an injury allegedly caused by third parties. In every other case, the plaintiff alleged that the resort was directly liable for negligence. Here, [*32] Plaintiffs do not argue direct negligence by the Kerzner Defendants, and the Kerzner Defendants can only defend their own case by compelling the attendance of the alleged direct tortfeasors. While these tortfeasors are nominally part of this lawsuit and have been served, their appearance in Court cannot be guaranteed.

After considering the private interest factors, the Court finds that they weigh substantially against Plaintiffs’ selection of the Southern District of Florida as their forum. The Court will now consider the public interest factors.

Public Interest Factors

In Gulf Oil, the Supreme Court described the considerations of public interest that district courts should consider on a motion to dismiss for forum non conveniens:

Administrative difficulties follow for courts when litigation is piled up in congested centers instead of being handled at its origin. Jury duty is a burden that ought not to be imposed upon the people of a community which has no relation to the litigation. In cases which touch the affairs of many persons, there is reason for holding the trial in their view and reach rather than in remote parts of the country where they can learn of it by report only. There [*33] is a local interest in having localized controversies decided at home. There is an appropriateness, too, in having the trial of a diversity case in a forum that is at home with the state law that must govern the case, rather than having a court in some other forum untangle problems in conflict of laws, and in law foreign to itself.

Gulf Oil, 330 U.S. at 508-09. Additionally, the Court must weigh the interest of the United States in providing a U.S. forum for its citizens with the interest of the Bahamas in adjudicating a dispute that occurred in its territory. See SME Racks, 382 F.3d at 1104.

While the Court begins with the proposition that Plaintiffs (both U.S. citizens) should not be ousted from a U.S. forum, the Court finds that the public interest factors also weigh heavily in favor of trial in the Bahamas. First, in SME Racks, the court made clear that the “United States has a strong interest in providing a forum for its citizens’ grievances against an allegedly predatory foreign business that actively solicited business and caused harm within the home forum.” 382 F.3d at 1104 (emphasis added). In SME Racks, a U.S. plaintiff brought an action against a Spanish company for breach [*34] of contract and various torts in Florida. Id. at 1099. The contract was negotiated and executed in Spain, but the alleged breach and torts allegedly occurred in Florida as the plaintiff claimed it received a shipment of defective goods in Florida. Id. This case is distinguishable from SME Racks, because the “harm” did not occur in Florida (or even in the U.S.). Instead, Plaintiffs are suing (with one exception) Bahamian companies and individuals for conduct which occurred entirely within the Bahamas. Unlike SME Racks, the presumption in favor of Plaintiffs’ choice of forum here is not as strong because of the attenuated connection of this forum with the events giving rise to the claims. See, e.g., J.C. Renfroe & Sons, Inc. v. Renfroe Japan Co., Ltd., 515 F. Supp. 2d 1258, 1274 (M.D. Fla. 2007); see also Iragorri v. United Technologies Corp., 274 F.3d 65, 73 (2d Cir. 2001) (en banc) (holding that a U.S. plaintiff’s choice of forum is not automatically granted greater deference unless the choice was motivated by “legitimate reasons”).

The parties have not addressed any administrative difficulties with pursuing this case in the Bahamas, other than the fact that contingency fee agreements [*35] for Plaintiffs’ counsel are not permitted in the Bahamas. 7 This factor, as the Court has already explained, receives no consideration. The Court also agrees with Plaintiffs that a view of the site of Mrs. Son’s accident is meaningless because the “shifting sands are no longer as they were at the time of the accident.” (Pl. Resp. 14.) The remaining factors, nonetheless, weigh heavily for the Kerzner Defendants.

7 The Court notes the logic of Chierchia v. Treasure Cay Services, 738 F. Supp. 1386 (S.D. Fla. 1990), where Judge King held that “a forum in which the personal injury action arose would present a better administrative choice than one which experiences one of the busiest criminal dockets in the U.S.” Id. at 1389.

A jury composed of residents of Palm Beach County, Florida, has a minimal (if any) interest in adjudicating a dispute between citizens of Maryland and (with one exception) citizens of the Bahamas for acts that occurred in the Bahamas. As explained in Gulf Oil, the people of Florida have no relation to this case, and thus they should not bear the burden of serving on a jury to settle a dispute between Maryland residents and Bahamian corporations for activities in Bahamian [*36] territory. In contrast, the Bahamas has an interest in settling a dispute between its citizens and foreigners for activity that happened within its sovereign territory. The Commonwealth of the Bahamas has the strongest interest in protecting tourists and visitors from the conduct of its own citizens. See, e.g., Calvo v. Sol Melia, S.A., 761 So. 2d 461, 464 (Fla. Dist. Ct. App. 2000). While the State of Florida has an interest in protecting its citizens, Plaintiffs (as well as countless other visitors to the Atlantis resort) are not citizens of Florida and they have not presented a persuasive argument for needing the protection of Florida’s laws. 8

8 An argument could be made that the United States has an interest in protecting its citizens from harm abroad. Nevertheless, the Court feels that the interests of the Bahamas are stronger, because the events giving rise to the cause of action occurred in the Bahamas and because Defendants are Bahamian nationals. Further, Plaintiffs traveled to the Bahamas on their own volition and only after the fact seek the protection of U.S. courts.

Plus, Bahamian law will most likely govern this dispute. 9 While this Court is capable of applying Bahamian [*37] law, and the Bahamas is a common law country much like our own, the Court would be forced to rely on expert testimony and evidence provided by the parties as to the substance of Bahamian law, which would add substantially to the administrative burden of having trial in this forum. “The public interest factors point towards dismissal where the court would be required to ‘untangle problems in conflict of laws, and in law foreign to itself.'” Piper Aircraft, 454 U.S. at 251 (quoting Gulf Oil, 330 U.S. at 509).

9 In Florida, courts apply the “significant relationship test” to determine the substantive law applied to personal injury actions. Bishop v. Florida Specialty Paint Co., 389 So.2d 999, 1001 (Fla. 1980). While not dispositive, the law of the state where both the injury and the conduct causing the injury occurred is, in most instances, the law to be applied. Id. Since Mrs. Son’s accident occurred in the Bahamas, the Court finds it likely that Bahamian law will apply, at least in part, to this dispute. Notably, none of the other factors Florida courts consider (residence, nationality or place of incorporation of the parties and the place where the relationship between the parties is [*38] centered) indicate that Florida law should apply. Again, these factors would suggest either Bahamian law or Maryland law should be applied.

Accordingly, the Court finds that the public interest factors also weigh in favor of dismissal of this action.

Reinstatement of Suit

The Court must ultimately determine whether Plaintiffs can reinstate their lawsuit in the alternative forum without undue prejudice or inconvenience. See Leon, 251 F.3d at 1310-11. As the Court has already explained, the inconvenience of traveling from Maryland to West Palm Beach, Florida, is no greater than the inconvenience of traveling from Maryland to Nassau, Bahamas. The distance between these locations is practically the same. In addition, Plaintiffs will not be prejudiced by dismissal, as Defendants are all subject to the jurisdiction of Bahamian courts. (Def. Mot. 19.) The statute of limitations will expire in August 2008, but Defendants have agreed to waive any statute of limitations defenses they might have under Bahamian law. (Id. at 19 n.12.) The Court, therefore, dismisses this action subject to these representations.

Conclusion

It is hereby ORDERED AND ADJUDGED that the Kerzner Defendants’ Motion to Dismiss [*39] (DE 15) is GRANTED IN PART as follows:

1. The Motion to Dismiss pursuant to Fed. R. Civ. P. 12(b)(1) is DENIED. (See DE 31.)

2. The Motion to Dismiss pursuant to Fed. R. Civ. P. 12(b)(3) is GRANTED.

3. The Motion to Dismiss on the basis of the doctrine of forum non conveniens is GRANTED.

4. The Kerzner Defendants are deemed to have waived any statute of limitations and personal jurisdiction defenses they might otherwise raise in the Supreme Court of the Bahamas.

5. This case is DISMISSED WITHOUT PREJUDICE for Plaintiff to refile in the Supreme Court of the Bahamas.

DONE AND ORDERED in Chambers at West Palm Beach, Palm Beach County, Florida, this 5th day of September, 2008.

/s/ Kenneth A. Marra

KENNETH A. MARRA

United States District Judge

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