Sexton v. Carnival Corp.
| Decision Date | 10 June 2021 |
| Docket Number | Civil Action No. 20-20990-Civ-Scola |
| Parties | Skyler Wayne Sexton, Individually and as Personal Representative for the Estate of Kimberly Sexton, deceased, Plaintiffs, v. Carnival Corporation, and others, Defendants. |
| Court | U.S. District Court — Southern District of Florida |
Plaintiff Skyler Wayne Sexton ("Plaintiff") brought this action against Defendant Carnival Corporation ("Carnival") seeking to recover for damages suffered related to the death of Kimberly Sexton ("Sexton") while she was aboard the Carnival Sunshine cruise ship in March 2019. (Second Am. Compl. ("complaint"), ECF No. 24 at ¶14.) Carnival moves for summary judgment on all of the Plaintiff's remaining counts. (ECF No. 46.) The Plaintiff opposes the motion arguing the genuine issues of fact remain to be decided at trial. (ECF No. 58.) Having considered the parties' briefing, the record, and the relevant legal authorities, Carnival's motion is granted in part and denied in part. (ECF No. 46.)
The Plaintiff brings this wrongful death action against Carnival in his individual capacity, and on behalf of the Estate of his mother Kimberly Sexton and of Sexton's survivors Judy Burton, Sexton's mother, and Claire Hardy, an unrelated minor. (ECF No. 24 at ¶ 2.)
Kimberly Sexton and 18 of her family members and friends, including the Plaintiff, were aboard the Carnival Sunshine in March 2019. ECF No. 24 at ¶15; ECF No. 47 at ¶ 1.) On or about March 22, 2019, Sexton was taken to the ship's on-board medical center with complaints of shortness of breath and a sore throat. Id. The onboard physician and nurses examined Sexton and she was prescribed Cephalexin. (ECF No. 1 ¶ 16.) Sexton was discharged from the medical center shortly thereafter. (Id.)
Later that day, Sexton began having trouble breathing and ultimately went into cardiac arrest. (ECF No. 24 at ¶ 16; ECF No. 47 ¶¶ 3,4.) The shipboard medical staff attempted to resuscitate Sexton. Their efforts were unsuccessful, and Sexton was pronounced dead on March 22, 2019. (ECF No. 24 at ¶ 16; ECF No. 47 ¶ 5.)
Carnival has a post-mortem care policy. (ECF No. 47 at ¶ 11; ECF No. 58 at ¶ 11.) Section 4.2 of the post-mortem care policy provides "contact photo manager to send a designated person to take photos of the place of death and also to take photos of the body from various angles." The body must be naked and with all lines and tubes still in place." (ECF No. 58-5.). Consistent with that policy, a Carnival photo manager, under the direction of an onboard doctor, photographed Sexton's naked body from various angles. (ECF No. 47 at ¶¶ 11, 12).1 Carnival did not ask Sexton's relatives for permission to take the photographs despite its knowledge that Sexton's next of kin were on the vessel. (Id. at ¶¶ 9-12.) The Plaintiff did not learn of the photographs until the discovery phase of this litigation.
Sexton is survived by the Plaintiff, her son, Burton, her mother, and Hardy, a minor in her care. (ECF No. 24 at ¶ 2.) The Plaintiff, Sexton's son, and Burton, Sexton's mother, were adults at the time of Sexton's death. The Plaintiff had not lived with Sexton for 9 years. (ECF No. 47 at ¶ 17; ECF No. 58 at 3.) After the Plaintiff moved out of Sexton's home, Sexton provided him with financial assistance. (ECF No. 47 ¶ 17.) Sexton gave the Plaintiff $200 for groceries on a bi-weekly basis and had previously paid for the Plaintiff's utility bills. (ECF No 47 at ¶ 18; ECF No. 58 at ¶ 18.) Burton did not live with Sexton, but Sexton would occasionally bring her soda and ice cream. (ECF No. 47 at ¶ 28.)
Sexton lived with Hardy, a minor, for three years before her death. (ECF No. 47 at ¶ 19; ECF No. 58 at ¶ 19.) Hardy is the daughter of Sexton's ex-boyfriend and continued living with Hardy after their separation. (ECF No. 47 at ¶ 20 No. 58 at ¶ 19.) After Sexton's death, the Plaintiff and his wife adopted Hardy and she now lives with them. Sexton's funeral expenses were paid through a combination of community funding, including funds raised through "Go Fund Me," and by the Veterans of Foreign Wars Organization. (ECF No. 47 at ¶ 19; ECF No. 58 ¶ 19.)
The Plaintiff initiated this action on March 4, 2020. (ECF No. 1.) The operative complaint asserts the following counts against Carnival: (1) negligent hiring and retention; (2) negligent provisioning or equipping of the medicalfacility; (3) negligence for the acts of the medical staff under respondeat superior and agency principles, ; (4) tortious interference with a dead body; and (5) tort of outrage. (ECF No. 24.) The complaint alleges that the three survivors "lost support and services, funeral expenses, [Sexton's] companionship and protection, mental pain, and suffering, loss of nurture and guidance..." (ECF No. 24 at ¶ 16.) The Court previously dismissed the Plaintiff's claim for the tort of outrage because it was barred by the litigation privilege. (ECF No. 35.)
Summary judgment is proper if following discovery, the pleadings, depositions, answers to interrogatories, affidavits and admissions on file show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Fed. R. Civ. P. 56. "An issue of fact is 'material' if, under the applicable substantive law, it might affect the outcome of the case." Hickson Corp. v. N. Crossarm Co., 357 F.3d 1256, 1259-60 (11th Cir.2004). "An issue of fact is 'genuine' if the record taken as a whole could lead a rational trier of fact to find for the nonmoving party." Id. at 1260. All the evidence and factual inferences reasonably drawn from the evidence must be viewed in the light most favorable to the nonmoving party. Adickes v. S.H. Kress & Co., 398 U.S. 144, 157 (1970); Jackson v. BellSouth Telecomms., 372 F.3d 1250, 1280 (11th Cir. 2004).
Once a party properly makes a summary judgment motion by demonstrating the absence of a genuine issue of material fact, whether or not accompanied by affidavits, the nonmoving party must go beyond the pleadings through the use of affidavits, depositions, answers to interrogatories and admissions on file, and designate specific facts showing that there is a genuine issue for trial. Celotex, 477 U.S. at 323-24. The nonmovant's evidence must be significantly probative to support the claims. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). The Court will not weigh the evidence or make findings of fact. Anderson, 477 U.S. at 249; Morrison v. Amway Corp., 323 F.3d 920, 924 (11th Cir. 2003). Rather, the Court's role is limited to deciding whether there is sufficient evidence upon which a reasonable juror could find for the nonmoving party. Id.
The parties agree that the negligence claims are governed by the Death on the High Seas Act ("DOHSA"), 46 U.S.C. § 761, and that tortious interference claim is governed by common law. Carnival moves for summaryjudgment on three grounds: (1) neither the Plaintiff nor the survivors are dependent on Sexton under DOHSA; (2) the Plaintiff has failed to allege any pecuniary damages suffered by any of the survivors; and (3) the tortious interference claim fails as a matter of law. (ECF No. 46.) In response, the Plaintiff abandons his claim for pecuniary damages on behalf of Burton, and otherwise argues that he and Hardy are Sexton's dependents. (ECF No. 58 at 10-13.) The Court first addresses the negligence claims and then turns to the tortious interference claim.
DOHSA generally governs wrongful death actions occurring at least twelve nautical miles from the United States coastline. Kennedy v. Carnival Corp., 385 F. Supp. 3d 1302, 1314 (S.D. Fla. 2019) (Torres, MJ.), report and recommendation adopted, No. 18-20829-CIV, 2019 WL 2254962 (S.D. Fla. Mar. 21, 2019) (Williams, J.). DOHSA mandates that a personal representative bring the cause of action. The representative can only bring a claim and attempt to recover on behalf of the following individuals: a decedent's spouse, a parent, a child, or a dependent relative. See 46 U.S.C. § 30301.
"Dependency" in DOHSA is defined as "the existence of a legal or voluntarily created status where the contributions are made for the purpose and have the result of maintaining or helping to maintain the dependent of [her] customary standard of living." Martins v. Royal Caribbean Cruises Ltd., 216 F. Supp. 3d 1347, 1368 (S.D. Fla. 2016) (Goodman, J.) "This definition requires that some form of financial dependency exist between decedent and 'dependent relative.'" Id.
Recovery under DOHSA is expressly limited to pecuniary losses. Sanchez v. Loffland Bros. Co., 626 F.2d 1228, 1230 (5th Cir. 1980) (). "The measure of recovery under ... DOHSA is the actual pecuniary benefits that the decedent's beneficiaries could reasonably have expected to receive from the continued life of the decedent." Solomon v. Warren, 540 F.2d 777, 786 (5th Cir.1976). Pecuniary losses include loss of support, loss of services, and loss of nurture and guidance. Tello v. Royal Caribbean Cruises, Ltd., 946 F. Supp. 2d 1340, 1343 (S.D. Fla. 2013) (Lenard, J.)). Moreover, funeral expenses are considered pecuniary damages under DOHSA. Kennedy, 385 F. Supp. 3d at 1318. To sustain recovery for pecuniary loss, the value of loss must be proven and reasonably certain. Id. The parties dispute whether the Plaintiff and Hardy are dependent relatives and whether they have proven pecuniary damages.
The amended complaint alleges that all "survivors suffered lost supportand services, funeral expenses, Decedent's companionship and protection, mental pain and suffering, loss of nurture and guidance, and all other damages as allowable by law." (ECF No. 24 at ¶ 16.) However, it is unclear from the complaint which survivor suffered what harm and why,...
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