next step we have towers first is royal caribbean cruises and raped on a royal caribbean vessel a complaint brought is for negligence and the common carrier royal caribbean's breach of that's duty to exercise reasonable care and its negligence in its security negligence in its policies and procedures and for failure to warn the lower court erred when it made the ultimate findings of fact as to foresee ability and as to reasonableness both which this court has repeatedly held are questions of fact to be determined after discovery at the summary judgment phase or at trial the lower court without one piece of paper of discovery made these ultimate find if we look at the complaint itself and what was alleged we have alleged that we have a young female in a bar area with a group of older men where she was allowed to gain access to alcohol is simply intoxicated this is a bully incapacitated and in this intoxicated and incapacitated state she was led away through public areas act to a cabin where she was gang raped the complaint further alleges that all of this happened in plain view of the crew members working in the area who saw or should have seen what was going on in the course and scope of performing their duties we have further alleged facts that there is a history of assaults on these cruise ships that there that they occur at an alarming rate that there is a history of minors being assaulted by crew members and by other passengers there is a history of minors gaining access to alcohol and then becoming victims of sexual assault either by a crew member or by another passenger we have further alleged that the cruise line knew based on its past experience that alcohol increased the risk of the sexual assaults and further that the cruise line knew that these assaults occurred in our areas and in cabins which are all facts that plausibly state a cause of action and add a motion to dismiss that is all the lower court needed to look at a court did not need to determine for foreseeability or reasonable miss i submit that the facts allege will allow a reasonable juror to conclude that the cruise line was negligent in failing to have proper security identifying a minor finding out why the minor was an area where she should not have been that a reasonable jury could include could conclude that the cruise line did not have pop proper policies or procedures in place and based on the history of sexual assaults happening on the cruise opposing counsel about it but let me ask you this what about their argument somewhere in breaks that you didn't allege that she looked a like a man well your honor we alleged that she was a minor and the standard is not what they actually knew but what they knew or should have known and would a reasonable have person thought she was a minor and had they had proper security what proper security or pago counsel that i want to get your response to their argument at this court or at its strongest about that point and their argument is you shouldn't a reasonable person would have known she was among that's their argument is that that's one of their arguments and on the stand yes was all due respect you accept the facts as true in the complaint and give all  when you say she was a minor in plain view that sounds like you're saying we we played did that it was plain she was a man i'm not sure you did whether you are required to or not it's another matter but i was trying to get your response to their argument on that point the my response is that it's not necessary that we have to say she looked like a minor because we left that she was a minor she i'm sorry if if she looked like she was forty two years old and we had a stipulation to that effect but in fact she was seventeen or sixteen years old that's a different negligence climb than if she looked like she was sixteen or seventeen years i'm sure you can s that much at least yet the the issue that i'm trying to point out that is we cannot say what they actually know if what they knew or should have known and here really depends on how she appeared at that time is their argument i'm not making the argument i'm just trying to get your response to it because well we allege that she was a minor and it what it does is it dovetails into the negligent security and negligent policies and procedures because one of the arguments is if they had proper policies and procedures they would have been able to tell she was a minor it happened that they knew or should have known and we have alleged that when they were negligent in failing to monitor to supervise and to adequately have procedures in place which would include identifying minors let me ask you something where you allege in paragraph twelve that royal caribbean had experienced and had actual knowledge of minors wrongfully being provided with or allowed to gain access to alcohol and then becoming the victim of assaults and batteries and sexual crimes perpetrated aboard its vessel both by crew and by other passengers is it your position that because of this history they were noticed that this happens to minors and so they had an obligation to identify minors and protect them from this type of thing yes because they are required to protect identifiable risk or forseeable risks that they knew or should have known about and again that goes to the fact that this was decided on a motion to dismiss rather than a summary judgment which we contend multiple instances of this exact type of crime happening as set forth in the doe cases and the horn case there are instances of fifty nine instances twenty three instances of prior assaults they do not have to be the exact type of assault but so long as they there that puts them on notice i have a question about the age limit is on these ships hundred twenty one for alcohol it is twenty one euro is twenty one yes and and i'm just curious think your complaint says their most multiple incidents is is this more common with crew members  happen by either crew member or other passengers and that the provision of alcohol go asked of assad this because i don't understand why she doesn't get carded when i know she can't have an alcohol again not i am in your plan of course is to yes and according to those who support even if you exclude all those that are still under investigation in a five year period before this will but it's possible sounds reasonable then yes except it's not reasonable to allow that to happen i would agree and i'll clothesline sixty follow so that that knowledge is is it not i would agree so they were well aware of the risk and that's what that's what the plaintiff is alleging paragraph eleven knew of the serious risk of crime and energy and jury to its passengers aboard just general negligence law they had a obligation to protect their passengers and crew from those kind of sexual assaults that they knew happened all too frequently didn't well  i do think there is a distinction there and if i may go into it for a minute your honor i mean before you go into it you tell me they didn't have an obligation to take reasonable efforts and as you to protect the passengers from that of course under the provide reasonable care under their circumstances that applies in this case just as it would in any other negligence case so your argument is that they did apply reasonable care absolutely and then includes then returning to paragraph twenty five to twenty seven that it's reasonable care to see a public line engine of the public areas above the vessel adult male passengers purchasing multiple holly beverages for minor causing him to become highly intoxicated and that happening in plain view multiple crewmembers who saul should have seen it and being surveilled mounted cameras security cameras and personnel but then not taking any action to prevent the service of alcohol to the minor are present prevent them from escorting her all to rent a group of men how can that be reasonable care because i think the distinctions as noted by a woman with alcohol and then think she was quote this paragraph twenty six obviously drunk disoriented in unstable being quote steered to a cabin where they brutally assaulted and gang raped her it's ok to let somebody get i wont when drunk like that disorient and escort her unstable in a group of men to a private cabin that's raising ok i would generally agree that that is any purchases herself so what well if the obligation is on the crew to act they have to know that this individual is one someone who should not be drinking to is being provided the alcohol by someone in violation of some policy three has become intoxicated and then of course the most important thing is because this was a criminal act by guess it's an intervening act under the law they have to anticipate that because this person is intoxicated that a crime is therefore going to get even in value of multiple crew members and still under surveillance by the ship security and cameras these adult male passenger stares the plaintiff who was obviously drunk disoriented and unstable to a cabin where they brutally assaulted and gang raped her in view of multiple crew members which means that multiple crew members sol a group of men steering an obviously drawn disoriented and unstable young woman to a can now given the history of what goes on and what happens in the crimes that are inflicted upon the crew members and passengers on board a vessel why is that not a breach of the duty of care a couple of things one as judge moore stated a few more simple allegations could have converted this into a claim plaintiff chose not to men that was their choice but they simply could have said they knew this person was a minor they knew the person this person was intoxicated or has been discussed in many other cases like the doe case that was referenced before they saw these gas being sexually suggestive they saw these crew members one of the other cases of discussed in the briefs involves an instance where passengers were trying to force their way into a bathroom to commit an assault there's no allegation on here at all you're arguing counsel and it's a full aisha sargon that is there could have been more extreme conduct alleged and the plaintiff would be better off and you would be worse off that doesn't mean the plaintiff hasn't done enough in these allegation to raise their right to relief above a spec with the level of a steady climb plausible on  face the fact that they could have said yeah they they had carted her knew she was a minor and i bought the alcohol far crew members did and they saw her being dragged kicking and screaming and they cheered on the man it would have been better for the plaintiff that doesn't mean that what they've alleged isn't adequate i understand your position i respectfully disagree i believe the judge moore was correct in stating that what is here isn't enough it was dismissed without prejudice more could have been alleged more could have been put in the complaint judge more specifically stated out just a few steps that need to be conducted to do that and plaintiff chose not to do so i do not believe under these facts that it is plausible even assuming that you had an individual who was drinking to assume that then in a private cabin a crime is going to occur i don't follow an automatic link to logical link between those two steps to assume that every person who's intoxicated i believe it's plausible that the facts of allowing some line to have drinks in a bar presuming they even saw that to occur i don't believe it's plausible to assume that those facts will then be the proximate cause of a rape and that is what's required here the ultimate element is what was the injury is a rape or sexual assault what was the proximate cause of that to get past the pleading stage the court needs to believe that the negligent actions of not st someone for drinking plausibly eventually lead to trucks mutlu causing an assault and that's that's where i see the gap and that's where judge moore saw the gap and said that things could have obliged differently that might have made it plausible but just like this court when there's not enough facts it doesn't state a cause of action and in terms of prior history of prior assaults a ship is not like a neighborhood there have been comparisons to say that ships are floating cities but they're not there's a distinction if you had a negligent security case taking place right outside this courthouse and downtown miami you could say we know around the federal courthouse there have been thirty crimes committed by such and such gang residents of that area cruise ships change their neighborhood dynamic every seven days if you had an unruly group of passengers on a cruise x that caused certain crimes and things occurred those seven people are gone and wholly replaced by a whole that some people i apologize seven days later that group of guess is completely replaced by a new group of guests the following week prout the problem with that that would be great if you didn't have this history of numerous incidents of this type so even though it's replaced with a new community the new community then again repeats the same problem and and so then the question is what is your client doing to address that well there  certainly things that are done to address that i don't know that there were at this point at the stage of this case and things are done in kearns of identification and security and surveillance and policies and procedures those are facts that are obviously not developed in the record because as judge moore found they didn't even state enough to get to that point there are simple things that they could have done differently they chose not to amend they bear that risk that because they didn't put enough in the initial pleading that the case be dismissed it was dismissed without prejudice at the initial stage for pleading mistakes just like the h s case from judge king at the lower court and before this court when you don't allege enough facts to make it plausible to to take it to that next step to assume that an assault occurring in a private cabin amongst guess is foreseeable and was for see oblique aws by the negligence they just simply haven't met that burden here if the negligent acts were they didn't stop someone who they didn't know was a minor because it's not alleged it was a minor and they didn't stop someone who was intoxicated and we do have to look at that allegation says plan in the complaint in the light most favorable to the plane a here we plead that she was she was a minor trying to remember a such thinks they said she was fifteen years old throughout the events and we know the drinking age is twenty one i mean at the very least one would expect that she would have been carted why isn't that enough when we look at it in the light most favorable to the plaintiffs one they would have to allege that they knew this person was drinking and they knew she was a minor but they do plain view of the bartender and right through an alleged that they saw she was drinking doesn't matter who bought the drank she was sitting there drinking well i think the distinction the judge more drew is whether it was in plain sight versus  actually actually having knowledge and he references this a number of times in his order to say that yes they say it was in plain sight but that's different saying they knew she was a minor they knew she was intoxicated they knew or should have known that she was being so you're doing cabin i think that's what means that is right in front of your face i don't know that in plain sight means that you have actual knowledge of it and i think that's abstention he was making but i also think again and this is the leap that i think is too attenuated and too far to make is that the male passenger stared the plaintiff does say mana but i don't know that it matters whether some man or not who was obviously dropped disoriented and stabler took cabin where they brutally assaulted her  about all of the drinking whether she's a minor or not it's all a saying in that paragraph alone i don't know if they can be able to prove that i don't know where the cabin was i don't know what surveillance you have or don't have on the bar out of the bar what have you but why is that not alone as a twelve basics because it's still a leap too far just to make it foreseeable that a crime is then going to occur as a as this court held in h s it is a leap too far to infer that the alleged breaches against royal caribbean in this case actually caused this fault or that the assault was foreseeable because of the action that was obs they got over it they've got twenty five have they got over that as they say the ship knows that this happened and it has a history of this happening and again my position would be that just because in the past a crime has occurred doesn't make it foreseeable in this instance when you have a different set of passengers and less as some of the other examples of cases that are cited in the briefs you have instances where somebody witnessed doing something to indicate there was a problem there had been be a complaint maybe somebody said i don't like the way this guy is acting maybe they had seen some kind of sexual overture so your position is that whenever a new group of passengers comes on royal caribbean gets a clean slate and nothing that happened with any prior groups of passengers can provide them with notice is that what your position as i think when you have an instance like this where you have an assault occurring in a private company cabin where two people enter this cabin it's out of any pla there's nothing to indicate that that is for a for a crime is foreseeable in that room without something more taking place so do you want to answer the question i asked is your position that every time a new group of passengers comes on board royal caribbean gets a new slate clean slate and nothing that happened before can inform their knowledge about what might happen with this group of passengers regarding this specific set of facts yes not not all s of facts but regarding this instance where you have this case occurring in this cabin i would agree that that is my position ok thank you thank you chief did you have anything further no i'd just like to address two points brought up by opposing counsel opposing counsel claims that plaintive should have filed an amended complaint and did not do so however if we look at judge moore's order on page four he says that even if the cruise line knew she was a minor saw the drinking saw her being incapacitated saw her being led away it was still not foreseeable so there was nothing more that i could have pled in good faith that would have satisfied judge moore and he made that very clear in his order and just like in the shipowner case that this court ordered first ruled a foreseeability is a question of fact the plaintiff in that case chose to file an appeal the second issue i would bring out it's not what the standard is not what they actually knew and actually saw it's reasonable care under the circumstances as to what they should have seen and should have known under those circumstances which we submit they were negligent in do it finally opposing counsel has alleged has argued excuse me that it's just not for that crime can happen in a cabin and becoming intoxicated and then going back to the cabin however there are multiple cases doe where they try to argue this precise crime was not for for example in the horn case they said they didn't know that they rape didn't occur following a pub crawl and in the doe case they said the rape didn't occur or following a  following they didn't know the person would nix like again and then get drunk and someone would take them away and it's just the general knowledge which we have allege sufficiently which will be supported by further discovery thank you unless there's any