Yi et al v. Pleasant Travel Service et al
Filing
145
ORDER (1) DENYING PLAINTIFF'S MOTION FOR PARTIAL SUMMARY JUDGMENT 100 , AND (2) DENYING DEFENDANT PLEASANT TRAVEL SERVICE, INC.'S MOTION FOR SUMMARY JUDGMENT 118 . Signed by JUDGE LESLIE E. KOBAYASHI on 11/28/2012. (afc) CERTIFICATE OF SERVICEParticipants registered to receive electronic notifications received this document electronically at the e-mail address listed on the Notice of Electronic Filing (NEF). Participants not registered to receive electronic notifications will be served by first class mail on November 29, 2012.
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
)
)
)
)
)
)
)
Plaintiffs,
)
)
vs.
)
)
PLEASANT TRAVEL SERVICE,
)
INC., ROYAL LAHAINA RESORT,
HAWAIIAN HOTELS AND RESORTS, )
JOHN DOES 1-10, JANE DOES 1- )
)
10, DOE PARTNERSHIPS 1-10,
)
DOE CORPORATIONS 1-10, ROE
NON-PROFIT CORPORATIONS 1-10, )
ROE GOVERNMENTAL ENTITIES 1- )
)
10,
)
)
Defendants.
_____________________________
VICTORIA YI, Next Friend of
SONG MEYONG HEE, an
Incapacitated adult, HEO
HYEOB, HEO EUNSUK, and HEO
KEUN SEOK,
CIVIL NO. 10-00318 LEK-RLP
ORDER (1) DENYING PLAINTIFF’S MOTION FOR
PARTIAL SUMMARY JUDGMENT, AND (2) DENYING DEFENDANT
PLEASANT TRAVEL SERVICE, INC.’S MOTION FOR SUMMARY JUDGMENT
Before the Court are: (1) Plaintiffs Victoria Yi, Next
Friend of Song Myeong Hee, an incapacitated adult, Heo Hyeob,
Heo Eunsuk, and Heo Keun Seok’s (collectively “Plaintiffs”)
Motion for Partial Summary Judgment (“Plaintiffs’ Motion”), filed
on April 19, 2012; and (2) Defendant Pleasant Travel Service,
Inc., doing business as Royal Lahaina Resort and Hawaiian Hotels
& Resorts’ (“Defendant”) Motion for Summary Judgment
(“Defendant’s Motion”), filed on July 11, 2012.
Defendant filed
its memorandum in opposition to Plaintiffs’ Motion on July 20,
2012, and a supplemental declaration on August 20, 2012.
Plaintiffs filed their reply on August 16, 2012.
Motion came on for hearing on September 26, 2012.
Plaintiffs’
Appearing on
behalf of Defendant were Randall Chung, Esq., and Michael Scott
Hult, Esq., and appearing on behalf of Plaintiffs was
James Krueger, Esq.
Plaintiffs filed their memorandum in opposition to
Defendant’s Motion on October 5, 2012, and Defendant filed its
reply on October 15, 2012.
Pursuant to Rule LR7.2(d) of the
Local Rules of Practice of the United States District Court for
the District of Hawai`i (“Local Rules”), the Court finds
Defendant’s Motion suitable for disposition without a hearing.
After careful consideration of the motions, supporting
and opposing memoranda, and the arguments of counsel, the Court
HEREBY DENIES both motions.
BACKGROUND
This cases arises from the near drowning of Plaintiff
Song Myeong Hee (“Song”) at Defendant’s hotel pool.
The Court
previously granted in part and denied in part Defendant’s motion
for summary judgment in a September 22, 2011 Order (“9/22/11
Order”1).
The 9/22/11 Order set forth the following allegations
from Plaintiffs’ Complaint:
1
The 9/22/11 Order is available at 2011 WL 4443625.
2
Plaintiffs allege that on August 8, 2009,
Song, along with her husband, Heo Hyeob, daughter,
Heo Eunsuk, and son, Heo Keun Seok, were guests at
the Royal Lahaina Resort operated by Defendant,
located in Kaanapali, Maui, Hawai‘i. [Complaint
at ¶¶ 2-5, 13.] All are residents and citizens of
Seoul, Korea. [Id. at ¶ 2.] Plaintiffs allege
that, on or about August 8, 2009, Song was in of
the two swimming pools on the property where she
“sank below the surface of water in the pool for a
period of time after which she was brought to the
surface having suffered a hypoxic event which
caused her to suffer brain damage which rendered
her, in the parlance, a ‘vegetable.’” [Id. at
¶ 14.]
Plaintiffs allege that there was no lifeguard
on duty at the pool at the time of the accident;
there was a sign posted near the pool that said
“WARNING NO LIFEGUARD ON DUTY”. [Id. at ¶¶ 12,
17.] According to Plaintiffs, the “text of the
aforesaid sign failed to adequately warn guests of
defendants, and/or any of them, including
plaintiffs, of the hazard, risk and foreseeable
harm as could result from the failure of
defendants, and/or any of them, to provide a
lifeguard at the pool.” [Id.] Plaintiffs claim
that if Defendant had provided a lifeguard at the
pool on August 8, 2009, Song likely would not have
suffered brain damage. [Id. at ¶ 19.]
Plaintiffs allege that Defendant was
negligent, and seek the following: (1) damages for
Song’s severe brain damage, limitation of
activity, loss of enjoyment of life and reduction
of life expectancy, and past and future medical
treatment; (2) damages for loss of marital and
parental support, love, consortium and friendship,
and for serious mental distress on behalf of
Song’s husband, daughter, and son; and (3)
punitive damages. [Id. at ¶¶ 21, 25, 27-29.]
2011 WL 4443625 at *1 (footnote omitted).
The Court previously denied Defendant’s motion for
summary judgment as to its liability for negligence.
3
In the
current motions, the parties again seek summary judgment as to
Defendant’s liability for negligence.
I.
Plaintiffs’ Motion
Plaintiffs seek partial summary judgment “on the issues
of the liability of the defendant hotel only and its causation of
the damages” Plaintiffs allegedly suffered.
[Mem. in Supp. of
Plaintiffs’ Motion at 1.]
Plaintiffs argue that to “suffer irreversible brain
damage such as Mrs. Song suffered, she had to have been
underwater for a period of five to ten minutes.”
[Id. at 8;
Plaintiffs’ Separate and Concise Statement of Facts (“Pltfs.’
SCOF”), 7/11/11 Report of Jerome Modell, M.D. (“Modell Report”2),
at 2; Declaration of Shawn DeRosa (“DeRosa Decl.”3), at 11-12.]
They opine that, “[a] lifeguard at the pool, having been
adequately trained, and exercising basic due diligence, would
have prevented Song from suffering permanent brain damage, having
been underwater for a period of some five to ten minutes.”
[Mem.
in Supp. of Plaintiffs’ Motion at 8 (citing DeRosa Decl. at 1112).]
According to Plaintiffs, a “passive drowner” like Song is
one who does not struggle, and a lifeguard would have known how
2
The Model Report is attached as Exhibit B to Plaintiffs’
memorandum in opposition to Defendant’s previous motion for
summary judgment. [Dkt. no. 64-9.]
3
The DeRosa Declaration is attached as Exhibit D to
Plaintiffs’ memorandum in opposition to Defendant’s previous
motion for summary judgment. [Dkt. no. 64-11.]
4
to respond to and treat such a drowning.
[Id. at 9.]
Plaintiffs argue that Defendant owed its hotel guests a
duty to not expose them to an unreasonable risk of harm.
“The
unwarned about, unreasonable risk of harm, to which defendant
exposed its pool-using guests, including Song, was the
unobservable possibility of not being rescued should the need for
such arise, or later resuscitate.”
[Id. at 11.]
They
acknowledge that “the possibility of drowning in a pool is a
foreseeable occurrence.”
[Id. at 12.]
In lieu of placing a
lifeguard at the pool, Defendant posted a sign stating “No
Lifeguard on Duty,” which Plaintiffs argue “demonstrated
defendant’s knowledge that its guest could be foreseeably exposed
to serious harm at its pool, but it did nothing to preclude that
harm from happening.”
[Id. (emphasis Plaintiffs’).]
Plaintiffs cite the Restatement (Second) of Torts
§ 314, urging that a hotel has a special relationship with its
guests and a duty to take reasonable action to protect them
against unreasonable risk of harm.
[Id. at 13.]
Plaintiffs also
repeat their earlier arguments relating to landowners’ duties
with respect to guests swimming at public pools and resortfronting beaches.
[Id. at 15-16 (citing Carreira v. Territory,
40 Haw. 513 (1954); Tarshis v. Lahaina Investment Corp., 480 F.2d
1019 (9th Cir. 1973)).]
5
Plaintiffs again make the argument that the Defendant
hotel’s location on the Kaanapali coast is comparable to that of
hotels on the Las Vegas “strip,” and that such Las Vegas hotels
all have guarded pools.
[Id. at 14.]
of guarded resort pools on Oahu.
They also submit evidence
[Id.]
They further argue that policy considerations justify
the imposition of a duty to post lifeguards at hotel pools.
Plaintiffs assert that the public policy behind providing
lifeguards at the municipal Lahaina Aquatic Center near the
Defendant hotel applies with equal force to the hotel.
Plaintiffs state that, “[w]hether the pool is located at a large
resort hotel, or a municipal community center, is an irrelevance.
The possibility of drowning affects all pool users, hotel or
municipal.”
[Id. at 20.]
They further compare this policy to
the “policy supporting the initial enactment of strict product
liability law”.
[Id. at 19.]
Plaintiffs ask, “who better than
the hotel to bear the risk or responsibility for a guest’s injury
caused by a known defect [dangerous condition] on the hotel’s
premises, which hazard the hotel had the opportunity to have
eliminated?”
[Id. (alteration Plaintiffs’).]
With respect to causation, Plaintiffs argue that a
competent lifeguard, exercising due diligence, would have seen
Song and brought her to the surface before she would have
suffered permanent brain damage.
[Id. at 22.]
6
They cite Haft v.
Lone Palm Hotel, 478 P.2d 465 (Cal. 1970), arguing that “in the
absence of proof that defendants’ not providing a lifeguard was
not a proximate cause of the deaths claimed about, defendants’
causation would be established as a matter of law.”
[Id.]
They
contend that it is appropriate to shift the causation burden to
Defendant to absolve itself.
A.
[Id. at 23-24.]
Defendant’s Opposition
“Defendant agrees that there are no genuine issues of
material fact regarding the issue of duty.”
Plaintiffs’ Motion at 1.]
[Mem. in Opp. to
It argues, however, that Plaintiffs
are not entitled to summary judgment.
Rather, Defendant argues
that it is entitled to summary judgment on its own motion, and
pursuant to Local Rule 56.1(i).
It argues that there is no basis
for the imposition of any duty of the part of Defendant, and
therefore, summary judgment should be entered in its favor.
[Id.
at 2-4.]
Defendant first notes that Plaintiffs define the
unreasonable risk of harm here as “the unobservable possibility
of not being rescued should the need for such arise,” but that
Plaintiffs do not cite any legal authority providing that this is
an unreasonable risk of harm.
Plaintiffs’ Motion at 12).]
[Id. at 6 (citing Mem. in Supp. of
It agrees that “a hotel has a duty
to its guests to take reasonable action to protect them from
unreasonable risk of harm.”
[Id. at 7.]
7
It argues that there is
no evidence, however, that a “reasonable person would have
believed that there was a lifeguard present at the time of the
subject incident.”
[Id. at 6.]
Defendant argues that Plaintiffs’ introduction of
evidence regarding lifeguards at Las Vegas and Oahu hotel pools
is not relevant to its duty in this specific instance.
It does
note that, “if one were to look to other hotels in Hawaii with
respect to the provision of lifeguards, there is only one private
hotel that may post lifeguards – Aulani.”
[Id. at 8.]
Defendant’s state that their expert in aquatic design,
engineering, and safety, William Rowley, Ph.D., inspected twentyeight hotel properties on Maui and sixteen hotels on Oahu, and
that none of them have lifeguards posted.
As to the Las Vegas
hotels, those were required to have lifeguards under state law,
whereas Hawai‘i has no similar requirement.
[Id. at 8; 3/21/12
Suppl. Report of William Rowley (“Rowley Report”4), at 5, 9-11.]
Defendant also disputes Plaintiffs’ argument that there
should be no distinction between municipal pools and hotel pools
with respect to the posting of lifeguards.
It argues that a more
appropriate basis for comparison is to look at comparable hotels
within the state.
It asserts that, while there are regulations
applicable to the pool at issue in this case, none of them
4
The Rowley Report is attached as Exhibit A to the
Declaration of Michael S. Hult (“Hult Decl.”). [Dkt. no. 125-2.]
8
require the posting of a lifeguard.
[Id. at 9 (citing Rowley
Report at 81; Haw. Admin. R. Title 11, Chapter 10 “Public
Swimming Pools”).]
With respect to Plaintiffs’ reliance on Carreira,
Defendant asserts that the case is not relevant on its facts
because, in that incident, the Territory provided a lifeguard,
there were 500 swimmers present in the Natatorium’s salt-water
ocean swimming pool, and the lifeguard on duty was eating lunch
at the time of the drowning.
In Carreira, “the Territory, by
posting a lifeguard, assumed a duty that this Defendant did not.”
[Id. at 9.]
Defendant attempts to distinguish the Tarshis case
relied upon by Plaintiffs, arguing that the hotel’s duty to warn
of dangerous ocean conditions turned on the “finding that the
surging surf was ‘unapparent.’”
[Id. at 10 (quoting Tarshis v.
Lahaina Investment Corp., 480 F.2d 1019 (9th Cir. 1973)).]
It
argues that the reasoning of Tarshis, which was “protection to
guests regarding latent conditions, does not apply to this
case[,]” where the potential dangers presented by the ocean are
not relevant to the danger of drowning in a small artificial
swimming pool.
[Id.]
With respect to Plaintiffs’ invocation of policy
considerations, Defendant contends that the state legislature has
already considered the issue, therefore, such considerations are
9
not relevant to this incident.
It emphasizes that the Department
of Health’s administrative rules relating to public swimming
pools do not require public pools to have lifeguards.
In
contrast, it notes that a certified lifeguard is required for
certain child care centers and school child care facilities.
[Id. at 11 (citing Haw. Admin. R. §§ 17-892.1.39, 17-895-40, and
11-896-36).]
Defendant next states that, because it is under no duty
to provide a lifeguard, it is not necessary for the Court to
reach Plaintiffs’ arguments regarding causation.
It nevertheless
argues that Plaintiffs are not entitled to summary judgment on
this basis.
Defendant states that Mr. DeRosa, Plaintiffs’
expert, is not qualified to render a medical opinion regarding
what medical condition would have resulted for Song if a
lifeguard had been present; that is, Plaintiffs’ argument that a
properly trained lifeguard would have spotted Song in time to
prevent brain damage is unsupported and speculative.
[Id. at 14-
15.]
Defendant points to the conclusions of its expert,
Dr. Rowley, that its swimming pool was operated in compliance
with all applicable state regulations and Maui County law.
Dr. Rowley determined that the signage at the pool exceeded
applicable requirements, and is used throughout Maui and Oahu.
The subject swimming pool has two stepped entries, and the “No
10
Lifeguard On Duty” sign is visible from both, and could be read
from anywhere in the swimming pool area.
[Id. at 21 (citing
Rowley Report at 14, 20-28).]
Defendant emphasizes that it was under no duty to post
a lifeguard; there is no statutory or common law basis in this
jurisdiction requiring a hotel to post a lifeguard at its
swimming pool; and there is no authority holding that the
presence of a swimming pool on the premises presents an
unreasonable risk of harm to guests.
According to Defendant,
Plaintiffs are asking the Court to impose a new legal duty to
provide lifeguards at hotel swimming pools.
B.
[Id. at 20.]
Plaintiffs’ Reply
In their reply, Plaintiffs assert that “Defendant owed
Song a legal duty that it violated by exposing her to an
unreasonable risk of harm, which risk could easily have been
avoided by providing a lifeguard at the pool, or closing it.”
[Plaintiffs’ Reply at 3.]
They stress that the “magnitude of the
foreseeable harm so greatly illustrates why the failure to
provide rescue opportunity is so unreasonable.”
[Id. at 4
(emphasis Plaintiffs’).]
Plaintiffs fault Defendant for not providing “an
affidavit of appropriate hotel leadership and management about
why it never provided a lifeguard, what considerations it gave to
consciously not doing so, whether it ever sought a legal opinion
11
that it didn’t need to do so, or any other justifying information
respecting the no lifeguard situation[.]”
[Id. at 5.]
With respect to state law requiring hotels in Nevada to
post lifeguards, Plaintiffs state that “the fact that the Nevada
hotels [must] have guards only demonstrates a feasible, proper
and sound, protective water safety policy.”
Plaintiffs’).]
[Id. at 11 (emphasis
They argue that aquatic safety “does not
necessarily devolve from statutory regulation.”
[Id. at 12.]
Plaintiffs insist that, although there is no Hawai‘i law
requiring lifeguards, that does not determine the Court’s
formulation of the duty a hotel owes to its guests.
II.
[Id.]
Defendant’s Motion
Defendant moves for summary judgment on the grounds
that Plaintiffs cannot meet their burden of proof, and that it
did not owe Song any duty with respect to the subject incident.
[Mem. in Supp. of Defendant’s Motion at 1-2.]
Defendant
generally repeats the same arguments made in opposition to
Plaintiffs’ Motion.
Defendant insists that whether it owed a
duty to provide a lifeguard at its swimming pool is a question of
law for the Court to decide, not the jury.
A.
[Id. at 7.]
Plaintiffs’ Memorandum in Opposition
In their memorandum in opposition, Plaintiffs assert
that Defendant’s Motion is repetitive of its previous motion,
which the Court denied in the 9/22/11 Order, and is subject to
12
the “law of the case” doctrine.
[Mem. in Opp. to Defendant’s
Motion at 2-4.]
With respect to Defendant’s argument that it owed no
duty under the circumstances presented, Plaintiffs assert that:
(1) Defendant had a duty to avoid subjecting its guests to an
unreasonable risk of harm; (2) drowning is an unreasonable risk
of harm; (3) providing a lifeguard would have avoided that
unreasonable risk of harm; and (4) Defendant has not provided any
information indicating why it never provided a lifeguard.
[Id.
at 12.]
B.
Defendant’s Reply
In its reply, Defendant contends that the bases for its
current motion are distinct from its earlier motion, in that the
current motion relies on Plaintiffs’ failure to meet their burden
with respect to the element of duty.
[Defendant’s Reply at 1-4.]
The parties continue to dispute the admissibility of the
declarations and reports of their experts, Mr. DeRosa and
Dr. Rowley.5
[Id. at 4-6.]
5
Plaintiffs argue that the Rowley Report constitutes
inadmissible hearsay because it is not sworn to, as an affidavit
or declaration. They object to its admission pursuant to Fed. R.
Civ. P. 56(c)(2). In response to Plaintiffs’ objection,
Defendant filed a motion to supplement its memorandum in
opposition with an additional Declaration of William N. Rowley,
Ph.D., P.E. (“Rowley Declaration”), attesting to the matters set
forth in his reports submitted by Defendant in this matter.
[Dkt. nos. 133-1 and 133-2.]
The Court granted the motion to
supplement on August 30, 2012. [Dkt. no. 133-3.] The Court has
(continued...)
13
DISCUSSION
I.
9/22/11 Order
This Court previously denied Defendant’s motion for
summary judgment as to its liability for negligence, in part, as
follows:
It is well-established that Defendant, as
landowner, owes Plaintiffs a general duty of
reasonable care. Under Hawai‘i law, a landowner
has a duty to use reasonable care for the safety
of all persons reasonably anticipated to be on the
premises. Kahan v. United States, 73 F. Supp. 2d
1172, 1178 (D. Hawai‘i 1999) (citing Gibo v. City
& Cnty. of Honolulu, 51 Haw. 299, 301, 459 P.2d
198 (1969)). Further, Hawai‘i courts recognize
that a hotel has a “special relationship” with its
guests, adopting § 314A of the Restatement
(Second) of Torts. See, e.g., Knodle v. Waikiki
Gateway Hotel, Inc., 69 Haw. 376, 386, 742 P.2d
377, 384 (1987) (“When the relation is a special
one of innkeeper and guest, the former is under a
duty to take reasonable action to protect the
latter against unreasonable risk of physical
harm.” (citing Restatement (Second) of Torts
§ 314A (1965))).
. . . .
Hawai‘i courts have looked to the Restatement
(Second) of Torts § 343A with regard to the duty
of care landowners owe to invitees with respect to
known and obvious dangers. See, e.g., Friedrich
v. Dep’t of Transp., 60 Haw. 32, 36-37, 586 P.2d
1037, 1040 (1978). It states, in pertinent part,
“[a] possessor of land is not liable to his
invitees for physical harm caused to them by any
activity or condition on the land whose danger is
known or obvious to them, unless the possessor
5
(...continued)
reviewed and will consider the matters set forth in both the
Rowley Report and the DeRosa Declaration for purposes of ruling
on the instant motions.
14
should anticipate the harm despite such knowledge
or obviousness.” Restatement (Second) of Torts §
343A(1).
. . . .
Courts generally have held that, under
varying circumstances, a swimming pool constitutes
an open and obvious danger. See, e.g., Page v.
Choice Hotels Int’l, Inc., No. 2:04-CV-13, 2005 WL
1106893, at *3 (W.D. Mich. Apr. 18, 2005) (“In
this case, the danger of swimming along in an
unsupervised pool is open and obvious as a matter
of law, to a reasonably prudent person.”); Estate
of Valesquez v. Cunningham, 738 N.E.2d 876, 880-81
(Ohio Ct. App. 2000) (recognizing a swimming pool
to be an open and obvious danger); Torf v.
Commonwealth Edison, 644 N.E.2d 467 (Ill. Ct. App.
1994) (same); accord Wagatsuma v. Patch, 10 Haw.
App. 547, 570, 879 P.2d 572, 585 (1994) (holding
in products liability case that “[s]ince it is
obvious to all that swimming pools are dangerous
to young children, we take judicial notice of that
fact.”).
That a swimming pool may be an open and
obvious danger in some circumstances does not
relieve Defendant of all liability here. As
recognized . . . , comment f. to § 343A provides
that the landowner’s duty of care is not
necessarily nullified by an open and obvious
danger:
There are, however, cases in which the
possessor of land can and should
anticipate that the dangerous condition
will cause physical harm to the invitee
notwithstanding its known or obvious
danger. In such cases the possessor is
not relieved of the duty of reasonable
care which he owes to the invitee for
his protection. This duty may require
him to warn the invitee, or to take
other reasonable steps to protect him,
against the known or obvious condition
or activity, if the possessor has reason
to expect that the invitee will
nevertheless suffer physical harm.
15
Such reason to expect harm to the
visitor from known or obvious dangers
may arise, for example, where the
possessor has reason to expect that the
invitee’s attention may be distracted,
so that he will not discover what is
obvious, or will forget what he has
discovered, or fail to protect himself
against it. Such reason may also arise
where the possessor has reason to expect
that the invitee will proceed to
encounter the known or obvious danger
because to a reasonable man in his
position the advantages of doing so
would outweigh the apparent risk. In
such cases the fact that the danger is
known, or is obvious, is important in
determining whether the invitee is to be
charged with contributory negligence, or
assumption of risk. It is not, however,
conclusive in determining the duty of
the possessor, or whether he has acted
reasonably under the circumstances.
Restatement (Second) of Torts § 343A cmt. f
(emphasis added) (internal citation omitted).
Given the foregoing, it is possible that, to
a reasonable person, the advantages of swimming
unsupervised in the Barefoot Bar pool would
outweigh any apparent risk. Thus, the Court
cannot conclude, as a matter of law, that
Defendant should not have had reason to expect its
guests to encounter the danger of drowning without
a lifeguard present, even if the danger was known
and obvious. Thus, whether the Barefoot Bar
swimming pool, without lifeguards posted,
constitutes an “unreasonable risk,” or whether
Defendant was required to take reasonable steps to
protect its swimmers against a known danger are
questions of fact for the factfinder to determine.
Further, to the extent Defendant seeks a
ruling as a matter of law that its general duty of
care did not require it to post a lifeguard under
the unique facts and circumstances of this case,
the Court finds that this is an issue of fact for
16
the jury. As Hawai‘i appellate courts have
explained, “‘[i]ssues of negligence are ordinarily
not susceptible of summary adjudication’ by the
court.” Bidar v. Amfac, Inc., 66 Haw. 547, 553,
669 P.2d 154, 159 (1983) (quoting Pickering v.
State, 57 Haw. 405, 407, 557 P.2d 125, 127
(1976)). “Whether the defendant had a duty to
take reasonable action to protect the plaintiff
from unreasonable risk of harm is, of course, a
question for the judge. But what is reasonable
and unreasonable and whether the defendant’s
conduct was reasonable in the circumstances are
for the jury to decide.” Knodle, 69 Haw. at 387,
742 P.2d at 384. Accordingly, Defendant’s Motion
is DENIED with respect to liability.
2011 WL 4443625 at *11-15 (footnotes omitted).
The Court is
again guided by these general principles of negligence law in
Hawai‘i.
II.
Duty of Hotel to Guest
The Court’s previous discussion in the 9/22/2011 Order
regarding a hotel’s duty toward its guests applies with equal
force to the instant motions.
The Court again re-asserts its
previous holding that whether Defendant had an affirmative
obligation to post a lifeguard at the Barefoot Bar Pool, and
whether the failure to do so constitutes an unreasonable risk of
harm, remain questions of fact on the current record.
To the extent that Plaintiffs insist that a lifeguard
was required as a matter of law, the Court finds that Plaintiffs
are not entitled to summary judgment.
As previously explained,
there is no statute, regulation, or case law mandating lifeguards
at all hotel pools under Hawai‘i law.
17
The Court declines to
create such a duty as a matter of law on the current record.
Moreover, in jurisdictions where lifeguards are not mandated by
statute, it appears that courts do not impose an affirmative duty
on innkeepers to provide lifeguards for their guests.
The Court
notes, however, that none of the cases discussed below involved a
hotel pool like the instant case.
For example, under Florida law:
An innkeeper in Florida has no duty to post a
lifeguard on a public beach. In fact, this court
has held that a hotel has no duty even to post a
lifeguard at its own swimming pool. Frost v.
Newport Motel, Inc., 516 So.2d 16 (Fla. 3d DCA
1987), rev. denied, 525 So.2d 878 (Fla. 1988); see
also Hemispheres Condominium Ass’n v. Corbin, 357
So.2d 1074 (Fla. 3d DCA) (condominium association
under no duty to its members to provide a
professional lifeguard at the association’s pool),
cert. denied, 364 So.2d 883 (Fla. 1978). The
Restatement (Second) of Torts § 314A (1965)
recognizes that an innkeeper has a special
relationship with his guests which gives rise to a
duty to protect them against unreasonable risk of
physical harm. Florida courts have similarly
held. See, e.g., Orlando Executive Park, Inc. v.
Robbins, 433 So.2d 491 (Fla. 1983) (innkeeper owes
the duty of reasonable care for the safety of his
guests); Fennema v. Howard Johnson Co., 559 So.2d
1231 (Fla. 3d DCA 1990) (same).
Adika v. Beekman Towers, Inc., 633 So.2d 1170, 1170-71 (Fla.
Dist. Ct. App. 1994).
In a North Carolina case that involved a private
homeowners’ association pool, the district court held that the
“absence of a specific safety precaution cannot amount to
negligence in a pool drowning case under North Carolina law where
18
no regulation required that precaution.”
Lampkin v. Covington at
Providence Homeowners Ass’n, Inc., No. 3:10-cv-271-RJC-DCK, 2011
WL 5509034, at *5 (W.D.N.C. Nov. 10, 2011).
Lampkin notes that
North Carolina law has specific safety regulations for public
swimming pools, but they do not require lifeguards.
Id. at *3.
It held that the defendant homeowners’ association and property
management company’s “failure to provide lifeguards at their pool
cannot amount to negligence where [the North Carolina Department
of Environment and Natural Resources’] safety regulations did not
require lifeguards and [defendants] posted warnings and provided
other safety equipment, as required by the regulations.”
*5.
Id. at
Lampkin concluded that, under North Carolina state law, the
defendants had no duty “to provide a lifeguard in the first
place.”
Id.
In an older Michigan case, which appeared to address
premises liability rather than negligence, the court “indicated
that whether the owners of a trailer park had a duty to provide a
lifeguard or lifesaving equipment at a small lake on their
property should be a question for the jury, and it discussed the
concept of negligence.”
Wheeler v. Cent. Mich. Inns, Inc., 807
N.W.2d 909, 913 (Mich. Ct. App. 2011) (discussing Kreiner v.
Yezdbick, 22 Mich. App. 581, 587, 177 N.W.2d 629 (1970)).
The Court cannot say that Defendant was per se
negligent for failing to provide a lifeguard at its pool as a
19
matter of law.
Nor can it say that Plaintiffs have not raised
triable questions of negligence entitling Defendant to summary
judgment.
The Court agrees with the decisions discussed above
indicating that, whether such an obligation existed under the
circumstances presented, and whether it was breached are
questions for the jury.
To the extent the parties argue that the
Court must decide specific issues of the scope Defendant’s duty
to prevent unreasonable risks of harm on summary judgment, the
Court again finds that whether the parties’ conduct was
reasonable under the circumstances is for the jury to decide.
See Knodle, 69 Haw. at 387, 742 P.2d at 384.
The Court HEREBY DENIES both Plaintiffs’ Motion and
Defendant’s Motion and finds that neither party is entitled to
summary judgment on the current record.
To the extent the Court
has not specifically addressed the many procedural arguments made
by the parties in their briefing, the motions are DENIED in all
other respects.
CONCLUSION
On the basis of the foregoing, Plaintiff’s Motion for
Partial Summary Judgment, filed April 19, 2012, and Defendant’s
Motion for Summary Judgment, filed on July 11, 2012, are HEREBY
DENIED.
IT IS SO ORDERED.
20
DATED AT HONOLULU, HAWAII, November 28, 2012.
/S/ Leslie E. Kobayashi
Leslie E. Kobayashi
United States District Judge
VICTORIA YI, ET AL. V. PLEASANT TRAVEL SERVICE, INC., ET AL.;
CIVIL NO. 10-00318 LEK-RLP; ORDER (1) DENYING PLAINTIFF’S MOTION
FOR PARTIAL SUMMARY JUDGMENT, AND (2) DENYING DEFENDANT
PLEASANT TRAVEL SERVICE, INC.’S MOTION FOR SUMMARY JUDGMENT
21
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?