Skokan et al v. Royal Caribbean Cruises, Ltd.

Filing 96

ORDER denying 73 Motion for Summary Judgment. Signed by Judge Cecilia M. Altonaga on 10/16/2018. See attached document for full details. (ps1)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
CASE NO. 17-24337-CIV-ALTONAGA/Goodman
TODD SKOKAN and
LISA SKOKAN,
Plaintiffs,
v.
ROYAL CARIBBEAN CRUISES, LTD.,
Defendant.
____________________________________/
ORDER
THIS CAUSE came before the Court on Defendant, Royal Caribbean Cruises, Ltd.’s
Motion for Summary Judgment [ECF No. 73], filed September 17, 2018. On October 2, 2018,
Plaintiffs, Todd Skokan and Lisa Skokan, filed a Memorandum of Law Opposing Defendant’s
Motion for Summary Judgment [ECF No. 84] (the “Response”), to which Defendant filed a
Reply [ECF No. 88] on October 5, 2018. The Court has carefully considered the parties’
submissions, their exhibits, the record, and applicable law. For the reasons that follow, the
Motion is denied.
I.

BACKGROUND

This is a maritime wrongful death action. On December 17, 2016, Nathan Skokan joined
his parents, the Plaintiffs Todd and Lisa Skokan, and his two brothers, Zachary and Samuel
Skokan, for a five-day cruise onboard the Independence of the Seas, a vessel owned and operated
by Defendant. (See Defendant’s Statement of Material Facts (the “Def.’s SOF”) ¶ 1; Pls.’ Resp.
to Def.’s SOF ¶ 1). On the last night of the cruise, Nathan, while intoxicated, made his way to
the ship’s exterior 12th floor deck with multiple passengers he had met on the cruise. (See SOF

CASE NO. 17-24337-CIV-ALTONAGA/Goodman
¶¶ 7, 10–12; Pls.’ Resp. to Def.’s SOF ¶¶ 7, 10–12). One of those passengers jokingly suggested
they should jump overboard, pointing to the hand rail. (See SOF ¶ 15; see also Pls.’ Resp. to
Def.’s SOF ¶ 15). In turn, Nathan pretended to throw himself up on the handrail, but when he
went to sit on the hand rail, he fell off the side. (See id.). According to Plaintiffs, Nathan
accidentally fell off the vessel after losing his balance on the hand rail. (See Pls.’ Resp. to Def.’s
SOF ¶¶ 15, 19–21). One of the passengers testified that Nathan, seemingly intoxicated, lost his
balance, slipped, and accidentally flipped over the ship’s railing. (See id. ¶ 21).
Based on the events that transpired before and after Nathan’s fall and death, Plaintiffs
filed an Amended Complaint [ECF No. 29] (the “FAC”) against Defendant on March 3, 2018.
The Amended Complaint states three claims for relief: (1) wrongful death under the Death of the
High Seas Act (Count I) (see id. ¶¶ 28–35); (2) intentional infliction of emotional distress
(Count II) (see id. ¶¶ 36–42); and (3) false imprisonment (Count III) (see id. ¶¶ 43–48).
Defendant seeks summary judgment on all counts. (See generally Mot.).
II.

LEGAL STANDARDS

A. Summary Judgment Standard
Summary judgment is rendered if the pleadings, the discovery and disclosure materials
on file, and any affidavits show there is no genuine issue as to any material fact and the movant
is entitled to judgment as a matter of law. See Fed. R. Civ. P. 56(a), (c). An issue of fact is
“material” if it might affect the outcome of the case under the governing law. See Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). It is “genuine” if the evidence could lead a
reasonable jury to find for the non-moving party. See id.; see also Matsushita Elec. Indus. Co. v.
Zenith Radio Corp., 475 U.S. 574, 587 (1986).
At summary judgment, the moving party has the burden of proving the absence of a
genuine issue of material fact, and all factual inferences are drawn in favor of the non-moving
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party. See Allen v. Tyson Foods Inc., 121 F.3d 642, 646 (11th Cir. 1997). Courts must consider
the entire record and not just the evidence singled out by the parties. See Clinkscales v. Chevron
U.S.A., Inc., 831 F.2d 1565, 1570 (11th Cir. 1987). The non-moving party’s presentation of a
“mere existence of a scintilla of evidence” in support of its position is insufficient to overcome
summary judgment. Anderson, 477 U.S. at 252.
If there are any factual issues, summary judgment must be denied and the case proceeds
to trial. See Whelan v. Royal Caribbean Cruises Ltd., No. 1:12-CV-22481, 2013 WL 5583970,
at *2 (S.D. Fla. Aug. 14, 2013) (citing Envtl. Def. Fund v. Marsh, 651 F.2d 983, 991 (5th Cir.
1981)). Even when the parties “agree on the basic facts, but disagree about the inferences that
should be drawn from these facts[,]” summary judgment “may be inappropriate.” Id. (alteration
added; citation omitted). “If reasonable minds might differ on the inferences arising from
undisputed facts, then . . . [c]ourt[s] should deny summary judgment.” Id. (alterations added;
citations omitted). Additionally, courts cannot weigh conflicting evidence. See Skop v. City of
Atlanta, Ga., 485 F.3d 1130, 1140 (11th Cir. 2007) (quoting Carlin Commc’n, Inc. v. S. Bell Tel.
& Tel. Co., 802 F.2d 1352, 1356 (11th Cir. 1986)).
B. General Maritime Law
“General maritime law governs tort actions between a cruise line and its passengers.”
Taiariol v. MSC Crociere, S.A., No. 0:15-CV-61131, 2016 WL 1428942, at *3 (S.D. Fla. Apr.
12, 2016) (citing Keefe v. Bah. Cruise Line, Inc., 867 F.2d 1318, 1320 (11th Cir. 1989)). Federal
maritime law applies when: (1) the alleged tort occurred on navigable waters; (2) the incident has
the potential to disrupt maritime commerce; and (3) the general activity giving rise to the
incident has a substantial relationship to traditional maritime activity. See Frasca v. NCL (Bah.),

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Ltd., 654 F. App’x 949, 951 (11th Cir. 2016) (citing Doe v. Celebrity Cruises, Inc., 394 F.3d 891,
900 (11th Cir. 2004)).
III.

ANALYSIS

A. Count I — Negligence
Plaintiffs’ negligence claim is based on two categories of Defendant’s conduct: (1)
serving Nathan substantial amounts of alcohol in the hours before his death; and (2) inadequately
attempting to rescue Nathan once he fell overboard. (See FAC ¶¶ 28–35). Defendant asserts it is
entitled to summary judgment on both theories of negligence (see Mot. 15), each of which the
Court addresses in turn.
i.

Negligence in Serving Alcohol

First, Defendant moves for summary judgment on Plaintiffs’ negligence claim predicated
on Defendant’s serving Nathan substantial amounts of alcohol in the hours before his death.
(See id. 16–18). “[A] cause of action for over service of alcohol sounds in negligence.” Doe v.
NCL (Bah.) Ltd., No. 11-22230-Civ, 2012 WL 5512347, at *6 (S.D. Fla. Nov. 14, 2012) (citation
omitted). “Under maritime law, the owner of a ship in navigable waters owes passengers a ‘duty
of reasonable care’ under the circumstances.” Sorrels v. NCL (Bah.) Ltd., 796 F.3d 1275, 1279
(11th Cir. 2015) (citations omitted). To prevail in a maritime negligence claim, a plaintiff must
show: “(1) the defendant had a duty to protect the plaintiff from a particular injury; (2) the
defendant breached that duty; (3) the breach actually and proximately caused the plaintiff’s
injury; and (4) the plaintiff suffered actual harm.” Chaparro v. Carnival Corp., 693 F.3d 1333,
1336 (11th Cir. 2012) (citations omitted).
In its Motion, Defendant solely addresses the element of proximate causation, insisting
Nathan’s “intentional[] and conscious[]” decision to jump over the railing was the sole proximate

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cause of his death, and that his alcohol intake was not closely linked to his death.
(Mot. 18 (alterations added)). The Court disagrees.
Plaintiffs supply the Court with ample evidence disputing Defendant’s characterization of
Nathan’s death as intentional. (See Resp. 23–26). Plaintiffs point to multiple facts in the record
showing (1) eyewitnesses observed Nathan intoxicated hours before his death, including
Defendant’s employee who observed Nathan intoxicated 20 minutes before Nathan fell
overboard (see Plaintiffs’ Statement of Facts (the “Pls.’ SOF”) ¶¶ 69–71); (2) eyewitnesses
observed Nathan lost his balance and accidentally went overboard (see Def.’s SOF ¶ 15; Pls.’
Resp. to Def.’s SOF ¶¶ 19–22), due to alcohol intoxication (see Pls.’ SOF ¶¶ 72, 74); (3) in the
12 hours preceding Nathan’s fall, Defendant served Nathan at least 30 ounces of alcohol,
including six full-sized martinis at the martini making class earlier in the day and at least seven
vodkas, two vodkas mixed with Red Bull, and one cognac (see id. ¶¶ 66, 68); and (4) expert
testimony that at the time Nathan went overboard, his level of intoxication had “presented an
extreme risk of harm,” supported by Nathan’s blood-alcohol content of at least .256 gm/dl,
which can cause disorientation vertigo, muscular incoordination, and significantly impaired
judgment (id. ¶ 73).
In light of the multiple eyewitness accounts, the expert report, and records showing
Nathan was intoxicated leading to his accidental death, the Court rejects Defendant’s assertion
the Court must conclude as a matter of law that Nathan “simply chose to go over the railing.”
(Mot. 18). The record is replete with disputes of fact on the element of proximate causation. See
Doe v. NCL (Bah.) Ltd., No. 11-22230-Civ, 2012 WL 5512314, at *4 (S.D. Fla. Nov. 14, 2012)
(denying summary judgment where plaintiff was overserved alcohol on vessel and was observed
by crewmembers to be intoxicated because those facts presented “issues [of] material fact[] [that]

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remain[ed] unresolved” and thus “judgment as a matter of law [wa]s not warranted on the issue
of the alleged over service of alcohol by [d]efendant.” (alterations added)). Defendant’s motion
for summary judgment as to Plaintiffs’ first theory of negligence is therefore denied.
ii.

Negligence in Search and Rescue Efforts

Defendant also moves for summary judgment on Plaintiffs’ negligence claim predicated
on Defendant’s efforts to rescue Nathan once he fell overboard. (See Mot. 18–19). A shipowner
is required to act with reasonable care under the circumstances to rescue persons that go
overboard. See Broberg v. Carnival Corp., 303 F. Supp. 3d 1313, 1317 (S.D. Fla. 2017).
Specifically, a cruise line has a “duty to exercise reasonable care to furnish such aid and
assistance as ordinarily prudent persons would render under similar circumstances.” Franza v.
Royal Caribbean Cruises, Ltd., 772 F.3d 1225, 1246 (11th Cir. 2014) (quoting Barbetta v. S/S
Bermuda Star, 848 F.2d 1364, 1371 (5th Cir. 1988)). One way to determine what is reasonable
under the circumstances is to present evidence of industry practice or guidelines, including
evidence of a custom within a particular industry group or organization. See Holderbaum v.
Carnival Corp., 87 F. Supp. 3d 1345, 1353 (S.D. Fla. 2015) (citations omitted).
Defendant asserts its search and rescue efforts, albeit unsuccessful, were reasonable as a
matter of law because its employees (1) immediately began searching for Nathan when informed
Nathan had gone overboard; (2) searched for Nathan until the Coast Guard arrived and took over
the search; and (3) used search lights, and not life boats –– the only optimal rescue strategy given
that using life boats in the pitch black waters would have been unrealistic. (See Mot. 19). Again,
the Court disagrees.
Plaintiffs point to multiple facts in the record that support a finding that Defendant’s
search and rescue efforts were unreasonable. (See Resp. 26–27). Even though eyewitnesses

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immediately notified cruise personnel that Nathan had fallen overboard from the 12th floor deck
(see Def.’s SOF ¶ 24; Pls.’ Resp. to Def.’s SOF ¶ 24), Defendant (1) did not lower the rescue
boats until two hours after being notified (see Pls.’ Resp. to Def.’s SOF ¶ 26; see also Pls.’ SOF
¶ 93); (2) did not have its Rescue Team 2 ready for over an hour and a half after Rescue Team 1
was ready (see Pls.’ SOF ¶ 99); and (3) placed its crew members approximately 100 feet above
the water during the night, without additional use of search and rescue techniques (see id. ¶ 100).
These facts, along with Plaintiffs’ expert opinion on the reasonable standard of care exercised in
the industry (see id. ¶¶ 98–99), all present a genuine question of fact for a jury to decide ––
whether Defendant was negligent in its search and rescue efforts. See Varner v. Celebration
Cruise Operator, Inc., No. 0:15-CIV-60867-WPD, 2016 WL 7508258, at *6 (S.D. Fla. Sept. 30,
2016) (denying summary judgment where plaintiffs “put forth record evidence to support their
allegations of [n]egligent [r]escue [e]fforts” including “the time it took for the crew to respond
once they were made aware that [the decedent] had gone overboard” reasoning those facts “are
material because they could affect the outcome of the case.” (alterations added; citation to record
omitted)). The Court thus denies summary judgment on Count I.
B. Count II — Intentional Infliction of Emotional Distress
Defendant also moves for summary judgment on Plaintiffs’ claim of intentional infliction
of emotional distress. (See Mot. 10–13). Plaintiffs’ intentional infliction of emotional distress
claim is based on Defendant’s announcement that Nathan “intentionally” fell overboard, which
caused Plaintiffs immense grief that their son may have committed suicide –– which according to
Plaintiffs, Defendant and its employees knew at the time to be patently false. (FAC ¶¶ 36–42).
The Court applies Florida law to determine whether the allegations concerning Plaintiffs’
intentional infliction of emotional distress claim are sufficient. See Garcia v. Carnival Corp.,

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838 F. Supp. 2d 1334, 1339 (S.D. Fla. 2012) (applying Florida law to the intentional infliction of
emotional distress claim of a cruise ship passenger).

“To prove intentional infliction of

emotional distress under Florida law, the plaintiff must prove: (1) deliberate or reckless infliction
of mental suffering; (2) by outrageous conduct; (3) which conduct must have caused the
suffering; and (4) the suffering must have been severe.” Hart v. United States, 894 F.2d 1539,
1548 (11th Cir. 1990) (citations omitted).
Defendant asks the Court to find as a matter of law that its announcements that Nathan
“intentionally” went overboard were not outrageous.

(Mot. 10).

Specifically, Defendant

contends there is no evidence to support Plaintiffs’ claim where Nathan intentionally ran and
leaned over the railing and where Defendant had to inform guests why the vessel was late into
port. (See id. 13). Defendant insists this is not a case with a defendant deciding to “play a cruel
joke” on the Plaintiffs without cause. (Id.).
Even though Defendant insists its facts are “undisputed” (id.), Plaintiffs point to evidence
which they claim presents triable issues of fact for a jury to decide. (See Resp. 13–19). Most
notably, about seven hours after Nathan fell overboard and seven hours after being informed by
multiple eyewitnesses that Nathan’s fall was an accident, Defendant made three public
announcements, for thousands of passengers including Plaintiffs to hear, that a person on board
“was witnessed intentionally going overboard from deck 12.” (Def.’s SOF ¶ 52; Pls.’ SOF ¶ 82;
see also Independence of the Seas December 22, 2016 Public Announcement [ECF No. 73-9]).
Defendant also issued a statement to the press stating Nathan had intentionally gone overboard.
(See Def.’s SOF ¶ 55; Pls.’ Resp. to Def.’s SOF ¶ 55; see also Third Amended Responses to
Plaintiffs’ Requests for Production of Documents [ECF No. 73-10] 1–2).

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Although a close call, the Court again agrees with Plaintiffs. As Plaintiffs note (see Resp.
14–15), this is not an ordinary situation, but one where the allegations “involve improper
statements regarding the cause of a loved one’s death . . . .” Markham v. Carnival Corp., No.
12-23270-CV, 2012 WL 12866787, at *3 (S.D. Fla. Dec. 3, 2012) (alteration added). “[I]n this
unique area, behavior which in other circumstances might be merely insulting, frivolous, or
careless becomes indecent, outrageous and intolerable.”

Id. (internal quotation marks and

citation omitted).
Defendant correctly points out that the undersigned’s Markham decision was on a motion
to dismiss, and not a motion for summary judgment. (See Reply 2). Defendant is mistaken,
however, in asserting the Court must therefore find, as a matter of law, that (1) this is “not a
situation where [Defendant] outright lied about [d]ecedent’s death to either hide its own
misconduct,” and that (2) [i]ntentionally going overboard was probably the most sanitary way to
describe this incident for the passengers onboard,” because Defendant “never used the words
“suicide” or that Nathan “killed himself.” (Reply 4–5 (alterations added)). Those are factual
assertions for the jury, not the Court, to assess.
Indeed, Plaintiffs’ claim that by repeatedly announcing Nathan “intentionally” went
overboard, Defendant falsified the true cause of Nathan’s death and publicly disclosed Nathan
had committed suicide is supported by evidence showing Defendant was informed by
eyewitnesses that Nathan’s death was an accident. (See Pls.’ SOF ¶¶ 76–80). Plaintiffs construe
these facts as a cover up (see Resp. 16) and provide evidence showing Plaintiffs were
emotionally distressed as they understood the announcement to mean Nathan had committed
suicide. (See id. ¶¶ 86–88; see also Pls.’ Resp. to Def.’s SOF ¶ 56). To even attempt to resolve
this dispute of fact would intrude on the province of the jury. See Anderson, 477 U.S. at 255

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(“Credibility determinations, the weighing of evidence, and the drawing of legitimate inferences
from the facts are jury functions, not those of a judge . . . .” (alteration added)). This, the Court
will not do. Accordingly, summary judgment on Count II is denied.
C. Count III — False Imprisonment
Finally, Defendant moves for summary judgment on Plaintiffs’ false imprisonment claim.
(See Mot. 13–15). Plaintiffs allege that during Defendant’s search and rescue efforts, Defendant
confined them in a cabin against their will. (See FAC ¶¶ 43–48).
To establish false imprisonment, a plaintiff must prove: “(a) an act intending to confine
another within fixed boundaries; (b) the act directly or indirectly results in such a confinement;
and (c) the confined person is conscious of or harmed by the confinement.” Barnes v. Carnival
Corp., No. 06-20784-CIV, 2006 WL 8433555, at *4 (S.D. Fla. Dec. 22, 2006) (citation omitted).
False imprisonment is “the unlawful restraint of a person against his will, the gist of which action
is the unlawful detention of the plaintiff and the deprivation of his liberty.” Johnson v. Barnes &
Noble Booksellers, Inc., 437 F.3d 1112, 1116 (11th Cir. 2006) (internal quotation marks and
citation omitted).

The plaintiff must “establish imprisonment contrary to his will and the

unlawfulness of the detention.” Id. (internal quotation marks and citation omitted; other citations
omitted)).
Defendant contends the Skokans were never confined to their cabin and even if they
were, Defendant had the contractual authority to confine them based on the passenger ticket
contract. (See Mot. 13). Defendant asserts it is “undisputed” Defendant never told Plaintiffs
they had to remain in their cabin, that none of the Skokans asked to leave, and that Defendant
provided them a crewmember outside their door for assistance.

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(Id. 14).

According to

CASE NO. 17-24337-CIV-ALTONAGA/Goodman
Defendant, Plaintiffs are misconstruing “hospitality for confinement” and the Court should find
as such as a matter of law. (Id.). The Court disagrees.
There remain genuine disputes of material fact as to whether Plaintiffs were confined
against their will. (See Resp. 20–22). Defendant’s head of security directed a security guard to
escort Plaintiffs to their cabin and told Plaintiffs to “stay there” even though Plaintiffs refused
the security escort. (Pls.’ Resp. to Def.’s SOF ¶¶ 31–32). Once Defendants confined the Skokan
family, a “big,” “tall,” and “intimidating” guard was posted immediately outside the cabin’s
door. (Id. ¶ 38). Lisa, Todd, and Sam Skokan all testified the guard did not allow them to leave
the cabin. (See id. ¶ 37).
For example, when Lisa Skokan tried to leave the cabin, the security guard approached
her, put both of his hands out, stepped toward her, and prevented her from leaving the cabin.
(See id. ¶ 39). Plaintiffs remained in the cabin with the security guard outside the door until all
of the other passengers disembarked the ship. (See id. ¶ 60). Given the record evidence, only
some of which the Court outlines above, Plaintiffs’ false imprisonment claim clearly presents
triable issues of fact for a jury to decide. See Spears v. Albertson’s, Inc., 848 So. 2d 1176, 1178
(Fla. 1st DCA 2003) (where plaintiff testified she asked to leave but defendant prevented her
from doing so by blocking the door, “disputed issues of material fact remain[ed] as to whether
[plaintiff] was, in fact, held against her will, thus precluding summary judgment.” (alterations
added)).
Defendant’s alternative argument the confinement was permissible based on the terms of
Plaintiffs’ contract with Defendant (see Mot. 15) is unavailing. As Plaintiffs note (see Resp. 22–
23), the contract only authorized Defendant to confine passengers when a passenger is “believed
to present a possible danger, security risk or be detrimental to himself or the health, welfare,

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comfort or enjoyment of others, or is in violation of any provision of this Agreement.” (Def.’s
SOF ¶ 3; Pls.’ Resp. to Def.’s SOF ¶ 3; see also Independence of the Seas Guest Ticket Booklet
[ECF No. 73-2] 16–17). While Defendant insists the ticket contract gave it the authority to
confine Plaintiffs based on Defendant’s “sole opinion” (Reply 8 (quoting Guest Ticket Booklet
16)), Defendant does not state how even in its opinion any such circumstance or threat existed.
(See generally Mot; Reply). The passenger ticket contract thus did not vest Defendant with
authority to confine Plaintiffs against their will. Summary judgment as to Count III is denied.
IV.

CONCLUSION

For the foregoing reasons, it is
ORDERED AND ADJUDGED that Defendant’s Motion for Summary Judgment
[ECF No. 73] is DENIED.
DONE AND ORDERED in Miami, Florida, this 16th day of October, 2018.

_________________________________
CECILIA M. ALTONAGA
UNITED STATES DISTRICT JUDGE
cc:

counsel of record

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