D.C. v. Princess Cruise Lines

Filed 9/14/06 D.C. v. Princess Cruise Lines CA2/5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FIVE

APPEAL from a judgment of the Superior Court of Los Angeles County.

Elihu M. Berle, Judge. Affirmed.

Macaluso & Associates, APC, and Todd E. Macaluso and Stacy M. King for Plaintiff and Appellant.

Kaye, Rose & Partners, LLP, and Lawrence W. Kaye, Anita M. Eilert, and Gerald L. Gorman for Defendant and Respondent.

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Appellant D. C. appeals from the judgment entered in favor of Princess Cruise Lines, Ltd., after its motion for summary judgment was granted. We affirm.

Summary

The events from which this lawsuit arose took place on August 25, 2003. Appellant, then 15 years old, was on a cruise with his grandmother and other members of his family. On the third morning, he went to the ship's gym to work out, then into the sauna. Later that morning, he told his grandmother and Princess officials that he had been sexually assaulted in the sauna. Local police were notified. An Alaska State Trooper, Mark Granda, was dispatched to the ship, and an investigation began. Appellant was unable to make an identification from photographs, but the following day he identified John Johnson, another passenger, as the assaulter. Johnson was arrested. He later pled to a charge of indecent exposure.

Through his guardian ad litem, his mother, appellant sued Princess for negligence, negligent supervision, premises liability and negligent infliction of emotional distress, based on allegations Princess failed to protect him from the sexual assault. A cause of action for intentional infliction of emotional distress was based on allegations that Princess intentionally delayed Johnson's identification and apprehension.

Princess moved for summary judgment on several theories, including duty and causation. The trial court granted summary judgment on all theories, and entered judgment in Princess's favor.

Facts

Prior Crimes

For Princess, Mona Ehrenreich, Princess's Senior Vice President for Legal Affairs, declared that from 1993-2002, Princess's fleet of twelve ships carried over 5 million passengers. The fleet carried 820,990 passengers in 2003, the year the assault took place. During Ehrenreich's ten years with Princess, there had been no reports of anyone being sexually attacked or assaulted in or near any steam room, shower, or spa aboard any Princess ship. Had there been such an incident, it would have been reported to her.

In response, appellant cited Ehrenriech's deposition testimony that there were seven incidents of sexual assault between 1993 and 2002. These were passengers/crew member incidents, not incidents between two passengers. None took place in the spa or sauna. One involved a minor. That incident took place in a passenger cabin, and the accusation was of an assault by a crew member.

The spa and the warning sign

Princess proffered evidence from Denise Giblin, the spa receptionist, and Princess Chief of Security Eric Foster: the sauna is in the spa area, which also includes a gym, beauty parlor, lap pool, massage rooms and lounge. The saunas are located across from the reception desk and entered through a changing room. There is an alarm button in the sauna, which alerts the receptionist about 25 feet away. Passengers and cleaning staff continually frequent the spa area.

Unaccompanied minors were not allowed in the spa area, and a warning sign outside the sauna bans unaccompanied minors under 16 from the sauna.

The sign includes numerous warnings, all in the same type, centered on the page. The first warning is "THE USE OF THE SAUNA AND STEAM ROOM IS AT YOUR OWN RISK ELDERLY PERSONS, PREGNANT WOMEN, CHILDREN, INFANTS AND THOSE WITH HEALTH CONDITIONS REQUIRING MEDICAL CARE SHOULD NOT USE THE SAUNA OR STEAM ROOM WITHOUT MEDICAL ADVICE. IF IN DOUBT, CONTACT THE SHIP'S DOCTOR." The sign next warns "DO NOT USE THE SAUNA OR STEAM ROOM IF SUNBURNED," then "UNSUPERVISED USE BY CHILDREN UNDER THE AGE OF 16 IS PROHIBITED," then "USE OF THE SAUNA OR STEAM ROOM WHILE UNDER THE INFLUENCE OF ALCOHOL, NARCOTICS, DRUGS OR MEDICINES MAY LEAD TO SERIOUS CONSEQUENCES AND IS NOT RECOMMENDED," DO NOT USE ALONE," and "PROLONGED USE OF THE SAUNA OR STEAM ROOM MAY RESULT IN NAUSEA, DIZZINESS, FAINTING, OVERHEATING, OR OTHER SIDE EFFECTS. IF ANY SUCH SYMPTOMS ARE EXPERIENCED, LEAVE THE SAUNA IMMEDIATELY."

The sign then states "IF ASSISTANCE IS NEEDED, OPERATE THE SAUNA OR STEAM ROOM ALARM OR TELEPHONE 911."

In response, appellant proffered Trooper Granda's deposition testimony that he did not recall seeing the warning sign and Foster's testimony that he did not know the exact location of the warning sign and that he frequently saw unaccompanied children under 16 in the spa area. Foster would tell those children to leave, and believed that that was the responsibility of the spa employees, too.

Appellant himself testified that he and other teenage passengers had previously used the gym and sauna without being stopped by a receptionist, and that he did not know that the sauna was forbidden to passengers under 16.

Appellant also relied on Foster's testimony that children were excluded from the sauna for "safety reasons." In full, Foster testified that children were banned because the sauna had "super-generated heat and if they're unattended, because they are children, they may not know the implications of dehydration. It's a safety feature."

The investigation

Appellant left his card key in the spa. He did not return directly to his cabin after the assault. Before he did, Johnson himself went to appellant's cabin and returned the card key to appellant's grandmother, Marion B. When appellant did return, he reported the assault to his grandmother and his aunt. They called the purser's office.

For Princess, Senior Assistant Purser David Bradley declared that the matter was reported to him at about 10:50 am. He immediately met with appellant and Marion B., and contacted the spa manager, who said that his staff was not aware that anything had happened in the spa that morning. After meeting with appellant, Bradley took him to be examined by the ship's doctor. He then called the Port Agent and asked that local authorities be notified. Trooper Granda arrived during appellant's medical examination. According to Foster, the investigation was turned over to him at that time.

At the recommendation of the ship's doctor, appellant was taken to a hospital in Juneau for an examination. Bradley and Foster went through the passenger list to find matches for appellant's description of the perpetrator, a black male, age 35-45. (Johnson's photograph was not in the group, because he was 61 years old.) When appellant returned to the ship, he was shown photographs of every individual who fit into that group and made an identification. (Marion B. testified that neither she nor appellant was sure of the identification, but that they were pressed by Princess staff. ) That passenger was contacted, but on seeing him in person, appellant said that he was not the perpetrator.

Appellant proffered Marion B.'s deposition testimony that while she and appellant were first looking at photographs with Foster (within an hour or hour and a half after the assault was reported) Foster told her that an employee (the parties assume it was spa receptionist Giblin) had seen Johnson hanging around the spa area and acting suspiciously.[1]

Foster denied having made any such statement. Giblin's declaration was that Johnson had frequently used the sauna, and that she remembered him because she had exchanged his cabin key card for a locker key. (Her duties included booking appointments, checking passengers into the spa facilities, and issuing locker keys to passengers.) However, she at no point prior to the incident saw him acting suspiciously, and never stated that she had. Granda's testimony was that he at one point spoke to spa employees, but did not hear that any passenger had been suspicious.

Appellant and his grandmother went to dinner. According to Bradley and Foster, they and Trooper Granda went to the spa to interview the staff about black men who had used the spa that morning. Johnson's name arose at that time, as did five other names.

Giblin's recollection was different: she declared that she first became aware of the assault on August 25, the day of the assault, when she was notified by shipboard security, and was first interviewed by Alaska State Troopers the next day.

Bradley further declared that appellant was shown additional photographs later that night, including Johnson's, based on the information he received from the spa. Appellant did not make an identification, but the next day, as he and Marion B. were leaving on a shore excursion, they saw Johnson on the pier. That afternoon, when they returned from the excursion, they identified him from his photograph.

Bradley gathered all the information he had about Johnson and sent it to Trooper Granda, who returned to the ship that evening with a Skagway police officer. In an effort to find Johnson, Bradley called his room, then made an announcement throughout the ship, then found Johnson's dinner reservation, went to the dining room and asked Johnson to step outside. At that point, Trooper Granda spoke to Johnson, then allowed him back into the dining room. Later that evening, Trooper Granda asked that Johnson be brought back. A ship wide announcement was made, and about fifteen minutes later, Johnson was arrested.

Appellant testified that after the assault, "especially when [Johnson] was on the ship," he was frightened. He feared that Johnson would hurt him, or his grandmother.

Expert declarations

Appellant had two expert declarations, from Charles Harris, Senior Chief Security Officer of Carnival Cruise lines between 1991 and 1994, and from Alexander Anolik, a lawyer with an expertise in travel law.

Harris declared that the presence of sexual assault on ships was "well known" and "well documented" and that as the result of his work, he had become aware of the "prevalence" of sexual assaults and rapes on cruise ships. While retained in a case against Carnival, he learned that Carnival had had over 100 reported cases of sexual assault and rape on its ships. FBI agents in Miami "have said that they are called to investigate a shipboard sexual assault case about every other week." The International Council of Cruise Lines, of which Princess was a member, had addressed the issue of the high number of sexual assaults in the cruise industry.

Anolik declared that the warning sign was not effective to inform unaccompanied minors that they were prohibited from the sauna. The most obvious "risk management protection" would have been to enforce that rule, and a cruise line which did not do so "must take steps to protect children while in that area." Princess could have put security cameras at the entrance to the spa and used alternative methods to warn parents of the rule. Instructions could have been prominently printed in the brochures, tickets, and daily newsletter, and passengers traveling with minors could have been verbally informed.

Appellant also proffered Trooper Granda's testimony that the spa and sauna area "was secluded enough that any number of things could happen in that area without any personnel knowing about it," that "there should have been something more in place to be able to keep children out of the area," and that there should have been an attendant present, "someone there to monitor the operations of what is going on."

Discussion

The negligence and premises liability causes of action

Appellant argues that as a business invitee, he stood in a special relationship with Princess, under which Princess had a duty to him. We do not understand Princess to disagree -- nor do we. "As a general matter there is no duty to act to protect others from the conduct of third parties. [Citation.] One exception to that general rule is found in the 'special relationship' doctrine. A defendant may owe an affirmative duty to protect another from the conduct of third parties, or to assist another who has been attacked by third parties, if he or she has a 'special relationship' with the other person. [Citations.]" (Morris v. De La Torre (2005) 36 Cal.4th 268, 269.)

Princess does disagree with appellant's assertion that the duty of care was defined by its status as a common carrier. This is not an issue which need detain us. Appellant describes the duty as "the highest duty of care," but asks only that we apply standard California negligence law, citing, for instance, Ann M. v. Pacific Plaza Shopping Center (1993) 6 Cal.4th 666, 674 and Delgado v. Trax Bar & Grill (2005) 36 Cal.4th 224. [2]

That is the applicable law. It "requires landowners to maintain land in their possession and control in a reasonably safe condition. [Citations.] In the case of a landlord, this general duty of maintenance, which is owed to tenants and patrons, has been held to include the duty to take reasonable steps to secure common areas against foreseeable criminal acts of third parties that are likely to occur in the absence of such precautionary measures. [Citations.]" (Ann M. v. Pacific Plaza Shopping Center (1993) 6 Cal.4th 666, 674; Wiener v. Southcoast Childcare Centers, Inc. (2004) 32 Cal.4th 1138, 1146.)

Appellant's argument is that Princess breached its duty when it allowed him to go into the sauna unsupervised, and that Princess created a risk when it allowed minors to "come into contact" with naked adults without parental supervision. He contends that foreseeability does not depend on evidence of identical prior acts, and that the evidence of other sexual assaults on the Princess line and on other cruise lines, and the evidence that there were low cost preventative measures available to Princess, means there is a triable issue of fact on whether this assault could have been foreseen. He also argues that the court erred by failing to apply the balancing test set forth in Ann M. v. Pacific Plaza Shopping Center, supra, 6 Cal.4th at p. 674 and Delgado v. Trax Bar & Grill, supra, 36 Cal.4th at pp. 237-238.)

"The existence of a duty and foreseeability, when analyzed to determine the scope of a duty, is a question of law that an appellate court will determine de novo." (Wiener v. Southcoast Childcare Centers, Inc. supra, 32 Cal.4th at p. 1146.) We find that the assault was not foreseeable as a matter of law.

Appellant is correct that foreseeability is determined in light of all the circumstances, and is not merely a question of prior identical incidents. (Isaacs v. Huntington Memorial Hospital (1985) 38 Cal.3d 112, 124.) However, the lack of any even similar incident on any Princess ship is an important, even decisive, factor here. The evidence was that there had been no prior incidents of sexual assaults in the sauna, and only one prior incident of sexual assault on a minor, in the entire Princess fleet, in the ten years prior to this incident. The single incident involving a minor did not take place in the sauna, but in a passenger cabin. Nothing in that incident made this one foreseeable or informed Princess of the necessity of strictly enforcing its ban on unsupervised minors in the sauna. The expert evidence does not change this evidentiary picture. Harris's declaration includes no information about sexual assaults on minors, or sexual assaults in a sauna or spa, or on the Princess line.

In part in reliance on Granda's testimony and Anolik's declaration, appellant argues that the sauna was uniquely dangerous, and presented the "perfect setting" for a sexual assault on an unsupervised child, citing the fact that sauna users are unclothed and describing the area as an "enclosed remote space." It is true that sauna users may be unclothed, and that the sauna is enclosed, but it is also true that the sauna is a public space. It had a glass door, and was open to all male passengers. Indeed, at his deposition, appellant testified that this assault was halted for a time when a passenger entered the sauna. Nor can the sauna accurately be described as "remote." It is close to the changing room and spa facilities. The reception desk was close, and there was an alarm button. We cannot see that the sauna so strongly presented itself as a location for assault on a minor as to make the assault foreseeable.

Nor do we see that, as appellant suggests, the evidence is that Princess did foresee the assault. Appellant makes this argument based on the warning sign and the presence of a receptionist in the spa. The sign shows only that Princess sought to protect all passengers from health risks. The receptionist had other duties besides keeping minors from using spa facilities, and we cannot deduce from her presence that Princess believed that minors were at risk.

Appellant next argues that Princess is liable because Giblin saw Johnson's suspicious behavior, but failed to contact security. The only evidence that Giblin observed suspicious behavior from Johnson was Marion B.'s statement that Foster told her that Giblin had said so. The evidence is so vague as to be meaningless. Without any information about the specifics of the "suspicious" behavior, there is no way to conclude that Johnson's behavior made anything foreseeable, or that Giblin or Princess should have behaved differently.[3]

Nor are we persuaded by appellant's argument under the Ann M. balancing test. Ann M. held that the decision to impose a duty of care to protect against criminal assaults requires a balance of the foreseeability of the harm against the burden of the duty to be imposed. After citing the familiar Rowland v. Christian (1968) 69 Cal.2d 108, 112-113 factors,[4] Ann M. held that in cases where the burden of preventing future harm is great, a high degree of foreseeability may be required. If there are strong policy reasons for preventing the harm, or the harm can be prevented by simple means, a lesser degree of foreseeability may be required. (Ann M., supra, 6 Cal.4th at pp. 678-679.)

Appellant's argument is that the preventative steps, strict exclusion of minors from the sauna, would cost little, and would not burden Princess. Perhaps, although the evidence in this case establishes that teenage passengers wanted to use the sauna, and there is surely a cost in denying a passenger use of ship facilities. It is also true that the step appellant suggests would not prevent all sexual assaults in the sauna, only those on minors under the age of 16, or prevent all sexual assaults on minors, which could take place in other areas of the ship. Similarly, given that access to the sauna was through very public areas, where observation was likely, we cannot conclude (as appellant suggests) that cameras outside the sauna would have deterred this assault.

"[A] duty to take affirmative action to control the wrongful acts of a third party will be imposed only where such conduct can be reasonably anticipated." (Ann M., supra, 6 Cal.4th at p. 676.) Princess established that this assault could not have been.

Intentional infliction of emotional distress

For this cause of action, appellant relies on Giblin's declaration that although she was first contacted by shipboard security on the day of the assault, she was not interviewed by Trooper Granda until the next day. Combined with Marion B.'s deposition testimony that shortly after the assault, Foster told her that the spa knew of a suspicious passenger, appellant concludes that Princess knew that Johnson was the culprit, or could have discovered that fact by showing photographs to Giblin, and further concludes that Princess's investigation was a sham and an attempt to delay, and that Princess deliberately failed to inform Trooper Granda that there was a material witness, Giblin, and deliberately thwarted the investigation. Appellant also finds evidence for this deliberate attempt in the fact that ship personnel were unable to immediately locate Johnson after appellant identified him from a photograph.[5]

The elements of the tort of intentional infliction of emotional distress are extreme and outrageous conduct by the defendant with the intention of causing, or reckless disregard of the probability of causing, emotional distress, the plaintiff's suffering severe or extreme emotional distress, and actual and proximate causation of the emotional distress by the defendant's outrageous conduct. The defendant must have engaged in conduct intended to inflict injury or engaged in with the realization that injury will result. (Davidson v. City of Westminster (1982) 32 Cal.3d 197, 209, 210.) "It is not enough that the conduct be intentional and outrageous. It must be conduct directed at the plaintiff, or occur in the presence of a plaintiff of whom the defendant is aware." (Christensen v. Superior Court (1991) 54 Cal.3d 868, 903.)

We do not see in this evidence the extreme and outrageous conduct the tort requires, or any evidence which would indicate that Princess intended to injure appellant, or realized that such an injury could result. The evidence simply does not add up to a plan to thwart the investigation, and certainly not one to injure appellant.

It does appear that Johnson's name arose when spa employees were interviewed, suggesting that it might have been better to interview spa employees sooner. However, that alone cannot establish a triable issue on this tort, in light of the evidence that police were called immediately after appellant reported the assault, and that Trooper Granda took over the investigation once he arrived. Trooper Granda knew that the assault took place in the spa area. There is no evidence that he was prevented from visiting the spa or speaking to spa employees. Indeed, the evidence is that he did so, when he saw fit to do so.

Disposition

The judgment is affirmed. Respondent to recover its costs of appeal.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

ARMSTRONG, Acting P. J.

We concur:

MOSK, J.

KRIEGLER, J.

Publication Courtesy of San Diego County Legal Resource Directory.

Analysis and review provided by El Cajon Property line Lawyers.

[1] Princess's double hearsay objection to the statement was sustained, but, as appellant argues, both Foster's statement and Giblin's would be party admissions.

[2] Neither party asserts that Alaska law applies. Princess does make arguments under federal maritime law, but at oral argument the parties agreed that federal maritime law is the same as California law on all relevant issues.

[3] Appellant also cites Granda's deposition testimony that Johnson had a criminal history of indecent exposure and criminal trespass, although there is no evidence that Princess knew that, or could have.

[4] The foreseeability of harm to the plaintiff, the degree of certainty that the plaintiff suffered injury, the closeness of the connection between the defendant's conduct and the injury suffered, the moral blame attached to the defendant's conduct, the policy of preventing future harm, the extent of the burden to the defendant and the consequences to the community of imposing a duty to exercise care with resulting liability for breach, and the availability, cost, and prevalence of insurance for the risk involved. (Ann M., supra, 6 Cal.4th at p. 678.)

[5] Appellant also argues that Princess had an unwritten policy of interfering with sexual assault allegations, citing Harris's declaration that, based on his knowledge of how crimes on board ships should be investigated, "it is readily apparent that Defendant's crew members were being directed to interfere with and obstruct the identification of the perpetrator . . . ." This statement was excluded on Princess's foundational and other objections. Appellant challenges that ruling, arguing that it is implicit in the statements that Harris obtained this knowledge when he was Chief Security Officer for Carnival and thus that it is based on personal knowledge. Harris's experience at Carnival might qualify him to opine on proper methods of investigation. We do not see that the experience supports the sweeping conclusion that these facts add up to a policy of deliberate interference.