Yi et al v. Pleasant Travel Service et al
Filing
73
ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT PLEASANT TRAVEL SERVICE, INC.'S 52 MOTION FOR SUMMARY JUDGMENT: "On the basis of the foregoing, Defendant Pleasant Travel Service, Inc.'s Motion for Summary Judgment, filed May 18, 2011, is HEREBY GRANTED IN PART as to punitive damages and DENIED IN PART in all other respects. IT IS SO ORDERED.". Signed by District JUDGE LESLIE E. KOBAYASHI on September 22, 2011. (bbb, )CERTIFICATE OF SERVI CEParticipants 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 were served by first class mail on the date of this docket entry
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
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Plaintiffs,
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vs.
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PLEASANT TRAVEL SERVICE,
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INC., ROYAL LAHAINA RESORT,
HAWAIIAN HOTELS AND RESORTS, )
JOHN DOES 1-10, JANE DOES 1- )
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10, DOE PARTNERSHIPS 1-10,
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DOE CORPORATIONS 1-10, ROE
NON-PROFIT CORPORATIONS 1-10, )
ROE GOVERNMENTAL ENTITIES 1- )
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10,
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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 GRANTING IN PART AND DENYING IN PART DEFENDANT
PLEASANT TRAVEL SERVICE, INC.’S MOTION FOR SUMMARY JUDGMENT
Before the Court is Defendant Pleasant Travel Service,
Inc., doing business as Royal Lahaina Resort and Hawaiian Hotels
& Resorts’ (“Defendant”), Motion for Summary Judgment (“Motion”),
filed on May 18, 2011.
Plaintiffs Victoria Yi, Next Friend of
Song Myeong Hee, an incapacitated adult, Heo Hyeob, Heo Eunsuk,
and Heo Keun Seok (collectively “Plaintiffs”) filed their
memorandum in opposition on August 26, and Defendant filed its
reply on September 2, 2011.
September 16, 2011.
This matter came on for hearing on
Appearing on behalf of Defendant was Randall
Chung, Esq., and appearing on behalf of Plaintiffs was
James Krueger, Esq.
After careful consideration of the Motion,
supporting and opposing memoranda, and the arguments of counsel,
Defendant’s Motion is HEREBY GRANTED IN PART AND DENIED IN PART
for the reasons set forth below.
The Motion is GRANTED as to
Defendant’s argument that Plaintiffs are not entitled to punitive
damages, and is DENIED in all other respects.
BACKGROUND
Plaintiffs filed a Complaint in State Circuit Court of
the Second Circuit against Defendant Pleasant Travel Service,
Inc., Royal Lahaina Resort, and Hawaiian Hotels & Resorts.1
Defendant removed the action to this Court on June 3, 2010.
Plaintiffs allege that on August 8, 2009, Song Myeong
Hee (“Song”2), along with her husband, Heo Hyeob, daughter,
Heo Eunsuk, and son, Heo Keun Seok, were guests at the Royal
Lahaina Resort (“hotel”) operated by Defendant, located in
1
On November 9, 2010, the parties entered a stipulation for
dismissal with prejudice as to Royal Lahaina Resort and Hawaiian
Hotels & Resorts because Royal Lahaina Resort and Hawaiian Hotels
& Resorts are trade names without the capacity to be sued in
themselves as defendants under Fed. R. Civ. P. 17. Pleasant
Travel Service, Inc. is the only remaining Defendant. [Dkt. no.
33.]
2
The pleadings refer to Song Myeong Hee with various names.
Defendant’s Motion refers to her as “Song,” Plaintiffs’
memorandum in opposition refers to her as “Mrs. Hee,” Plaintiffs’
expert report prepared by Peter Rossi, M.D., refers to her as
“Mrs. Song,” [Mem. in Opp., Rossi Decl., Exh. A3]. To avoid
confusion, the Court will refer to her as “Song.”
2
Kaanapali, Maui, Hawai‘i.
[Complaint at ¶¶ 2-5, 13.]
residents and citizens of Seoul, Korea.
All are
[Id. at ¶ 2.]
Plaintiffs allege that, on or about August 8, 2009, Song was in
one of the two swimming pools on the hotel 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 cased 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; instead, 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, reduction of
life expectancy, and past and future medical treatment;
(2) damages for loss of marital and parental support, love,
3
consortium and friendship, and for serious mental distress on
behalf of Song’s husband, daughter, and son; and (3) punitive
damages.
I.
[Id. at ¶¶ 21, 25, 27-29.]
Defendant’s Motion
Defendant seeks summary judgment on all claims on the
grounds that there are no genuine issues of material fact and it
was not negligent as a matter of law.
Defendant argues that
Plaintiffs cannot prove the essential elements of their
negligence case by establishing a duty owed by it to Song with
respect to the accident.
[Mem. in Supp. of Motion at 2.]
Defendant asserts that whether it owed a duty to Plaintiffs is a
question of law that can be determined on summary judgment.
[Id.
at 8 (citing Ruf v. Honolulu Police Dep’t, 89 Hawai‘i 315, 972
P.2d 1081 (1999)).]
A.
No Duty to Plaintiffs
Defendant first argues that it owed no duty to
Plaintiffs because any danger presented by the swimming pool was
known, open, and obvious.
Defendant asserts that, under Hawai‘i
law, it is not under a general duty to warn of known or obvious
dangers which are not extreme, and which a reasonable person,
exercising ordinary attention, perception and intelligence, can
be expected to avoid, absent circumstances which excuse oversight
of the danger or prevent its avoidance.
[Id. at 9.]
Defendant
then discusses Wagatsuma v. Patch, 10 Hawai‘i App. 547, 569, 879
4
P.2d 572, 595 (1994), which addressed whether the defendant owed
a duty to plaintiff to warn of the dangers inherent in an aboveground swimming pool.
Defendant claims that Wagatsuma
recognized, under strict product liability principals, that the
obviousness of the danger of an above-ground swimming pool to
young children made it unreasonable to require the manufacturer
to furnish labels with its pools warning of that danger, for
purposes of a failure to warn claim; rather, a product
manufacturer’s duty to warn only extends to known dangers that
users would not ordinarily discover.
[Id. at 11.]
Defendant maintains that the danger of drowning in a
swimming pool, or other body of water, is an open and obvious
danger, at least to adult guests.
Irrespective of any language
barrier and the absence of a lifeguard, Defendant argues that any
dangers with regard to the swimming pool were open and obvious,
and, therefore, there was no duty to warn of such dangers.
[Id.
at 12.]
Next, Defendant asserts that it did not have any duty
to provide lifeguards at the swimming pool.
There are no
statutes, rules, or other regulations requiring private hotels in
the state to post a lifeguard at swimming pools, nor is there a
legal duty for a hotel to provide lifeguards for its pools.
Defendant cites Carreira v. Territory, 40 Haw. 513 (1954), for
its holding that the Territory of Hawai‘i, as operator of the
5
public saltwater swimming pool at the Natatorium was not the
insurer of swimmers using the pool, and was not negligent with
regard to the drowning of a twelve-year-old boy.
In that case,
the Territory provided a lifeguard, but he was off-duty eating
lunch at the time of the drowning.
Defendant claims the case
demonstrates that there is no presumption of negligence based
solely on the lack of a lifeguard.
[Id. at 14-15.]
Defendant
also relies upon Kaczmarczyk v. City & County of Honolulu, 65
Haw. 612, 656 P.2d 89 (1982), which held that a municipality that
voluntarily assumes the provision of lifeguard services has a
duty to perform such services with reasonable care.
[Id. at 16.]
According to Defendant, Carreira and Kaczmarczyk are factually
distinguishable from the instant case because those defendants
were governmental entities with public swimming areas, and, in
both, the defendants voluntarily undertook to provide lifeguards
at the Natatorium and public beach park.
Here, Defendant did not
assume any duty to provide qualified lifeguards.
[Id. at 17.]
Defendant claims that other jurisdictions have
generally held that, in the absence of a statute, regulation, or
ordinance requiring private hotel owners to post a lifeguard at a
private pool, a private hotel owner does not owe guests a duty to
post a lifeguard at a private hotel swimming pool.
[Id. (citing
Frost v. Newport Motel, Inc., 516 So.2d 16 (Fla. Dist. Ct. App.
(1987)); Baker v. Eckelkamp, 760 S.W.2d 178 (Mo. Ct. App.
6
1998)).]
Another court held that, even where a regulation
required a “qualified attendant” to be present at the swimming
pool, there was no duty on the part of the swimming pool owner to
provide a lifeguard.
[Id. (citing Hemispheres Condominium Ass’n,
Inc. v. Corbin, 357 So.2d 1074 (Fla. Dist. Ct. App. 3d 1978)).]
Defendant claims that neither the state nor the County of Maui
requires lifeguards at private hotel swimming pools, and,
therefore, Defendant owed no duty to Plaintiffs to provide
lifeguards at the pool where Song nearly drowned.
[Id. at 18.]
Defendant also argues that it was not obligated to warn
of the absence of lifeguards in a foreign language.
According to
Defendant, there is no legal requirement that a premises owner
provide warning signs in a foreign language for the benefit of
foreign tourists.
Defendant relies on In Re Hyun Bok Chung, 43
B.R. 368 (Bankr. D. Hawai‘i 1984), which rejected debtors’
argument that they were not bound by a security agreement they
signed because they could not understand English.
In Re Hyun Bok
Chung found that the debtors had the opportunity to have the
security agreement read and explained by their daughter, who was
fluent in English, and that their failure to do so was negligence
on their part.
Here, Defendant claims that Song’s daughter,
Eunsuk (“Ally”), understood, spoke, and taught English, and could
have instructed her regarding the meaning of the “NO LIFEGUARD ON
DUTY” sign.
Even if Song, who did receive basic English language
7
training from 1998 to 2001, could not understand the English
writing on the sign, the sign still provided adequate warning
that there was no lifeguard on duty.
The sign included the
universal symbol for “NO LIFEGUARD ON DUTY,” a pictograph of a
person standing with arms to the side, hands resting on hips,
with a circle and strike-through surrounding the person.
Defendant asserts that there is no allegation that Song suffered
from any incapacity that would have prevented her from realizing
that there was no lifeguard on duty, or that she was led to
believe that there was a lifeguard on duty.
B.
[Id. at 19-21.]
No Punitive Damages
Defendant seeks summary judgment on Plaintiffs’
punitive damages claim on the grounds that the claim was not
properly plead and there is no basis to support such a claim
against Defendant here.
First, Defendant asserts that the Complaint does not
allege specific conduct that is willful, wanton, or reckless.
Defendant argues that the Complaint does not give fair notice of
any claim for punitive damages, and does not put Defendant on
notice of the conduct which is the basis for punitive damages.
Rather, the allegations, if true, amount to negligence.
Defendant claims that under Ross v. Stouffer Hotel, Co., 76
Hawai‘i 454, 879 P.2d 1037 (1994), Plaintiffs cannot maintain a
claim for punitive damages where the Complaint does not include
8
allegations of a tort that would justify punitives.
[Id. at 21-
23.]
Next, Defendant claims that, viewing the facts of the
case in the light most favorable to Plaintiffs, the alleged
negligence does not support a claim for punitive damages.
The
purpose of punitive damages is to punish or deter, and they
require deliberate, outrageous conduct on the part of a
defendant.
[Id. at 23 (citing Masaki v. General Motors, Corp. 71
Haw. 1, 780 P.2d 556 (1989)).]
Defendant also argues that
Plaintiffs cannot prove that they are entitled to punitive
damages by the requisite clear and convincing evidence standard.
[Id. at 27-28.]
In sum, Defendant argues that the allegations of the
Complaint that Defendant did not adequately warn that there was
no lifeguard on duty, and did not provide a lifeguard, constitute
at worst mere inadvertence, mistake, or an error of judgment.
There is no direct evidence of the culpable state of mind
required by Masaki, and Plaintiffs’ claim for punitive damages is
insufficient as a matter of law.
II.
[Id. at 29.]
Plaintiffs’ Memorandum in Opposition
In their memorandum in opposition, Plaintiffs assert
that Song nearly died in Defendant’s pool, and it “might have
been better had she inasmuch as she has been diagnosed as
suffering from ‘PVS’, persistent vegetative state,” and remains
9
comatose and unresponsive in a Seoul hospital.
1.]
[Mem. in Opp. at
In order to suffer brain damage due to hypoxia, Song would
have to have been under water for five to ten minutes.
Exh. B, 7/11/11 Report of Jerome Modell, M.D.]
[Id.,
Plaintiffs assert
that, had there been a lifeguard at the pool, Song would not have
remained under water for such a long period of time, and would
not have been rendered permanently comatose.
[Id., Declaration
of Shawn DeRosa (“DeRosa Decl.”), at ¶ 31.3]
Plaintiffs argue that Defendant did owe Song a legal
duty that it violated by exposing her to an unreasonable risk of
harm, which could have easily been avoided by providing a
lifeguard at the pool.
“The unwarned about, unreasonable risk of
harm, to which defendant exposed its pool-using guests, including
[Song], absent anything else . . . , was apparently the
unobservable possibility of not being rescued should the need for
such arise.”
[Id. at 2.]
Plaintiffs assert that the sign posted
near the pool warning that there was no lifeguard on duty had no
legal efficacy as a warning, but that the sign demonstrates
Defendant’s knowledge that its guests were foreseeably exposed to
serious harm at its pool, but did nothing to preclude such
incidents, and that such conscious disregard of guest safety is a
basis for jury consideration of punitive damages.
3
[Id.]
The DeRosa Declaration is attached to Plaintiff’s
memorandum in opposition as Exhibit D.
10
A.
Factual Issues
Plaintiffs attach the depositions of two of Defendant’s
employees: Rhapsody Lunes4 and Kleyn Villa.5
hotel’s security manager in August 2009.
Lunes was the
He explained that the
beachfront hotel’s main building had nine stories, with
additional two-story cottages, with six rooms each.
One of the
two pools fronted the main building’s outdoor restaurant.
About
fifty feet away was the second pool where the incident occurred,
known as the Barefoot Bar pool, which was about eight feet deep.
Both pools are rectangular, and in August 2009, neither pool had
a lifeguard.
The Barefoot Bar pool had steps and handles at one
end to enter the pool.
[Id. at 3-4 (citing 6/10/11 Lunes
Deposition, at 14-35, 44-42).]
In contrast to the “NO LIFEGUARD ON DUTY” sign posted
at the Barefoot Bar pool, Defendant maintained another sign on
the pool deck at the entrance to a path leading to the beach.
This beach path sign specified five different ocean hazards, and
Plaintiffs contend that this was a proper warning signed compared
to the “NO LIFEGUARD ON DUTY” sign.
[Id. at 4 (citing 6/10/11
Lunes Deposition, at 45, 61).]
4
The entire Lunes Deposition is attached to the memorandum
in opposition as Exhibit M.
5
The entire Villa Deposition is attached to the memorandum
in opposition as Exhibit N.
11
B.
Duty of Landowners in Hawai‘i
Plaintiffs assert that an occupier of land has a duty
to use reasonable care for the safety of all persons reasonably
anticipated to be upon the premises, regardless of the legal
status of the individual.
[Id. at 4 (citing Pickard v. City &
Cnty. of Honolulu, 51 Haw. 134, 135, 452 P.2d 445, 446 (1969)).]
Further, a landowner will be liable for the injuries sustained by
a person whose presence on the property was anticipated if there
is a condition upon the land posing an unreasonable risk of harm,
of which the possessor knows or should have known, and about
which the possessor fails to take reasonable steps to eliminate
or adequately warn against.
[Id. (citing Corbet v. Ass’n of Apt.
Owners of Wailua Bayview Apts., 70 Haw. 415, 772 P.2d 693 (1989);
Gump v. Walmart Stores, Inc., 93 Haw. 428, 440, 5 P.3d 418, 430
(Ct. App. 1999)).]
Plaintiffs argue that summary judgment is not the
appropriate vehicle to decide this matter because when an
unreasonably dangerous condition is obvious, whether the risk of
a dangerous condition should have been objectively known to a
plaintiff, as an ordinarily intelligent person, is a factual
determination.
[Id. at 5 (citing Kaczmarczyk v. City & Cnty. of
Honolulu, 65 Haw. 612, 616, 656 P.2d 89, 92 (1982)).]
With respect to hotels, Plaintiffs argue they have a
duty to their guests to take reasonable action to protect guests
12
against unreasonable risk of harm, and that hotels have a
“special relationship” with their guests.
[Id. at 6 (citing
Knodle v. Waikiki Gateway Hotel, Inc., 69 Haw. 376 (1987)).]
Plaintiffs argue that the strip of hotels on the Kaanapali coast
where the Royal Lahaina Resort is located is a unique
geographical community of resort facilities.
According to
Plaintiffs, Las Vegas has a similar “strip” of quality resort
hotels catering to tourists from around the world.
Plaintiffs
offer the report of Las Vegas private detective Hal de Becker,
III, who indicates that most hotels are on Las Vegas Boulevard,
similar to how the Kaanapali hotels run parallel to the ocean.6
Each of the hotels visited by Mr. de Becker had a lifeguard on
duty during the pools’ open hours.
[Id. at 7 (citing 7/12/11
Investigative Report of Hal de Becker, III, at 2).]
Plaintiffs
also submit photographs taken at two Honolulu hotels, the Hilton
Hawaiian Village and Hale Koa, and a Reno, Nevada resort hotel,
indicating that each of these hotels had lifeguards on duty at
the time the photographs were taken.
[Id. at 7; Declaration of
Steven Lane, Exh. H (Honolulu hotel photographs); Declaration of
Peter Cahill, Exh. V (Reno, Nevada hotel photographs).]
Plaintiffs also distinguish the authorities relied upon
by Defendant as factually inapplicable, because they involved
6
The Investigative Report of Hal de Becker is attached to
the memorandum in opposition as Exhibit G.
13
either private home backyard pools, trespassers, minors
disregarding parents’ instructions, or states having regulations
pertaining to lifeguards, which Hawai‘i does not.
According to
Plaintiffs, none of the cases cited by Defendant involves resort
hotels, or a defendant in a special relationship with a guest,
and, therefore, as matter of law, summary judgment cannot be
granted.
C.
[Id. at 8-9.]
Discussion of Lifeguards
Plaintiffs claim that in Tarshis v. Lahaina Investment
Corp., 480 F.2d 1019 (9th Cir. 1973), the Ninth Circuit held that
a hotel had a duty to advise its guests of potentially dangerous
ocean surge conditions offshore of its property, but the case did
not mention the defense of “open and obvious condition.”
Plaintiffs also cite Haw. Rev. Stat. § 486K-5.5, relating to a
hotelkeeper’s limited liability for certain beach and oceangoing
activities, and § 486K-5.5, regarding a hotelkeeper’s limited
liability for provision of certain recreational equipment, as not
including language regarding open or obvious conditions.
[Id. at
9.]
Plaintiffs argue that sound policy considerations
justify the existence of a duty of a hotel to its patrons to
provide lifeguards at pools to protect them from potential
unreasonable risk of harm of serious injury due to the absence of
opportunity for rescue.
This sound policy is corroborated by the
14
protection from aquatic harm provided to the public by lifeguards
at the municipal pool across the highway from the Royal Lahaina
Resort at the Lahaina Aquatic Center County Pool.
Plaintiffs
argue that, whether aquatic harm is generated by the ocean or by
a hotel pool, no basis exists for denying a hotel pool user the
same protection afforded against serious injury or death from the
ocean.
D.
[Id. at 10.]
Causation
Plaintiff asserts that a trained lifeguard, exercising
due diligence, under either the Red Cross twenty second rule, or
the YMCA ten second rule, would have seen Song and brought her to
the surface before she would have suffered permanent brain
damage.
[Id. at 11 (citing DeRosa Decl., at ¶¶ 25-31).]
According to Plaintiffs, the failure of the hotel to provide a
lifeguard at the pool was a legal cause of Song’s persistent
vegetative state.
E.
[Id. at 12.]
Existing Sign Was Inadequate
Plaintiffs next argue that the “NO LIFEGUARD ON DUTY”
sign at the hotel end of the pool was not a “warning,” but merely
a notice of the absence of a lifeguard.
Plaintiffs’ expert
Shawn DeRosa opined that the sign was located in a position where
persons entering the pool at the only designated entry and exit
steps, at the pool end opposite the Barefoot Bar, would not
likely have seen the sign.
Moreover, the sign text was
15
inadequate to constitute a warning insofar as it did not signify
the level of seriousness of the danger, the description of the
danger, the risk of harm or consequences thereof, or any
avoidance instructions.
[Id. at 13 (citing DeRosa Decl., at
¶¶ 33-34).]
Plaintiffs contend that, where serious injury can
occur, the preferred resolution is to fix the hazard, rather than
merely warn against it.
[Id. at 13.]
If Defendant knew its pool
was an open and obvious hazard, “its failure to warn what it was,
was inappropriate in the absence of proof it could not control
the hazard . . . by hiring a lifeguard, a far cheaper expedient
than the risk it ran by not doing so, and the probable millions
of dollars payment of plaintiffs’ claim will likely engender.”
[Id. at 14.]
Plaintiffs also argue that the sign cannot serve as a
shield to liability because there is no evidence that Song saw
the sign, or that it was located in a place where it would be
expected that guests entering the Barefoot Bar pool would see it.
Plaintiffs maintain that signs should be located in three
positions so they can be seen prior to entering the water: at the
entrance, in the locker rooms, or at poolside.
[Id. at 14-15
(citing Exh. T (Aquatics International, Vol. 23, No. 6, at 23
(June 2011)).]
16
F.
Open and Obvious Condition Does Not Apply
Plaintiffs argue that Defendant’s reliance on an open
and obvious condition defense does not bar liability here,
because the concept has nothing to do with legal duty.
15-16.]
[Id. at
Plaintiffs cite Robbin v. Marriott Hotel Services, Inc.,
in which Judge Kurren ruled, “as a matter of law, that stepping
onto the infinity ledge to enter the pool is a known and obvious
danger.”
CV. No. 08-00061 BMK, 2010 WL 3260185, at *4 (D.
Hawai‘i Aug. 18, 2010).
The judge denied summary judgment,
finding that a landowner may be liable for the physical harm
caused to his invitee by a known and obvious danger if the
landowner should anticipate the harm, and concluded that a
genuine issue of material fact existed as to whether the
defendant should have anticipated the harm to the plaintiff,
adequately warned the plaintiff, or took other reasonable steps
to protect her against the known and obvious danger.
[Id.]
Plaintiffs argue that this holding supports their position that
the duty of a defendant is not abrogated by the existence of an
alleged open and obvious condition, but relates to comparative
fault.
[Mem. in Opp. at 17.]
Plaintiffs further argue that whether a hazard is an
open and obvious danger is a jury question, and that breach of
duty is a factual issue usually decided by the jury, so summary
judgment is not appropriate here.
17
[Id. at 17-18.]
G.
Punitive Damages
Plaintiffs argue that they properly pled their claim
for punitive damages, and that Defendant should have conducted
discovery to better understand the factual bases underlying the
claim.
Further, because punitive damages are justified based
upon a defendant’s conduct, the issue should go to the jury to
determine issues relating to conduct.
[Id. at 23.]
“Proof
justifying factfinder review of conduct justifying punitive
damages results from defendant’s knowing removal of its guests’
opportunity for rescue in its pools. . . .
It consciously
disregarded plaintiff’s (sic) rights to be rescued knowing that,
by failing to provide guards, death or harm could be suffered by
its guests.”
[Id. at 24.]
III. Defendant’s Reply
Defendant maintains that the only issue before the
Court is whether it had a duty to provide a lifeguard at the
subject pool; Plaintiffs’ discussion of injuries, causation, and
damages are not relevant to the instant Motion.
A.
[Id.]
Duty
To the extent Plaintiffs argue that the issue of
whether a danger is open and obvious is an issue for the finder
of fact, Defendant distinguishes Kaczmarczyk v. City & County, 65
Haw. 612, 616, 656 P.2d 89, 92 (1982), and Tarshis v. Lahaina
Investment Corp., 480 F.2d 1019 (9th Cir. 1973), as cases dealing
18
with conditions of the ocean, and whether dangerous ocean
conditions are “open and obvious” to a person of ordinary
intelligence.
Defendant maintains that Wagatsuma v. Patch, 10
Haw. App. 547, 569, 879 P.2d 572, 585 (1994), is more on point.
In that case, the Hawai‘i Intermediate Court of Appeals noted
that the question of duty is entirely a question of law, and went
on to hold that the obviousness of the danger of an above-ground
swimming pool to young children obviated any duty on the part of
a pool manufacturer to furnish warnings along with their swimming
pools.
[Id. at 5.]
Defendant argues that Hawai‘i appellate courts have
implicitly rejected Plaintiffs’ argument that whether any risk
posed by a condition on the premises is open and obvious is
irrelevant to whether the premises owner has a legal duty.
Rather, they articulate and apply, in premises liability actions,
the known or obvious doctrine after the enactment of the
comparative negligence statute in 1969.
[Id. at 5-6 (citing
Harris v. State, 1 Haw. App. 554, 557, 623 P.2d 446, 448 (1981)
(the duty of an occupier of premises does not require the
elimination of known or obvious hazards which are not extreme and
which a person would reasonably be expected to avoid); Kole v.
AMP AC, Inc., 69 Haw. 530, 532, 750 P.2d 929,930 (1988) (occupier
of land has duty to warn persons coming on to land of known
dangers not known by, nor obvious to, such persons)).]
19
Further,
Defendant claims the comparative negligence statute only comes
into play if a defendant has been found to have been negligent,
and that it cannot be found to have been negligent when it was
under no duty toward Plaintiffs.
[Id. at 6.]
Defendant notes that Plaintiffs discuss Knodle v.
Waikiki Gateway Hotel, Inc. in the context of the Restatement
(Second) of Torts § 314A (1965) “special relationship” between a
hotel and its guests.
Defendant argues that in Knodle, the court
stated that such a special relationship gives rise to a duty on
the part of the hotel to protect guests from unreasonable risks
arising out of a condition on the land.
Plaintiffs have cited no
Hawai‘i cases finding that a hotel swimming pool, without
lifeguards posted, constitutes an “unreasonable risk.”
Further,
Plaintiffs’ discussion regarding the Lahaina Aquatic Center
County Pool, a municipal pool, having lifeguards, is inapplicable
to the instant Motion.
Defendant claims that Plaintiffs have
cited no Hawai‘i legal authority requiring it to post lifeguards
at its swimming pool.
[Id. at 7.]
Defendant next argues that Plaintiffs have not come
forward with any evidence to show that there was an “unobservable
possibility” of not being rescued from the swimming pool.
subject pool is not a large swimming pool.
The
Further, there are
signs at the swimming pool advising guests that there is no
lifeguard on duty.
A quick survey of the pool, even aside from
20
the “NO LIFEGUARD ON DUTY” sign, confirms what is apparent to any
visitor to the swimming pool – that there were no lifeguards
present.
[Id. at 11.]
Defendant also counters Plaintiffs’ arguments regarding
policy considerations as a reason for requiring hotels to provide
lifeguards at swimming pools.
It claims that seeking to
bootstrap court decisions requiring hotels to protect guests from
ocean conditions is not relevant to the instant Motion.
The
reasons for court decisions imposing a duty of care upon
hotels regarding guests’ use of the ocean do not apply to
swimming pools.
[Id.]
It also criticizes Plaintiffs’ use of photographs of
hotel pools in Nevada.
The exhibits regarding swimming pools in
other jurisdictions are not only irrelevant to the consideration
of whether this Defendant had a legal duty under Hawai‘i law to
post lifeguards, but are also inadmissible.
Plaintiffs do not
cite any Hawai‘i authority that requires hotels in the State of
Hawai‘i to post lifeguards, and, instead, argue that, because
swimming pools in other jurisdictions have lifeguards, so too
should Hawai‘i hotels.
B.
[Id. at 12.]
Foreseeability Is Not Relevant
Next, Defendant argues that the mere foreseeability of
an injury does not create a duty to prevent such an injury, and
the mere possibility of injury is likewise insufficient to create
21
a duty on behalf of Defendant.
According to Defendant,
Plaintiffs assert that the possibility of drowning in a swimming
pool is a foreseeable occurrence, and that, by providing a “NO
LIFEGUARD ON DUTY” sign, Defendant had knowledge that its guests
could foreseeably be exposed to serious harm at its pool, and
that, because it is foreseeable that a guest could drown in a
swimming pool, hotels should be required to post lifeguards.
Again, Defendant contends that Plaintiffs have cited no authority
for the proposition that it was under a duty to post a lifeguard
at its swimming pools.
C.
[Id. at 12-13.]
Discussion of Sign
Defendant argues it was not under a duty to warn Song
of the danger of drowning as part of its warning that there was
no lifeguard on duty because such information has been found to
be known by people encountering a swimming pool.
It argues that
the requirements for a warning sign espoused by Plaintiffs (i.e.,
1. description of danger; 2. description of risk of harm
generated by it; and 3. description of how to avoid it) were not
required here.
Further, neither Defendant, nor any swimming pool
owner, can “fix” the danger of drowning in a body of water.
[Id.
at 13-14.]
D.
Punitive Damages
Defendant claims it is entitled to summary judgment on
punitive damages because Plaintiffs have not alleged or come
22
forward with evidence of “willful, wanton, malicious or
intentional conduct” on behalf of Defendant toward Song, as
required to maintain a claim for punitive damages.
[Id. at 16
(citing Dairy Road Partners v. Island Insurance Co., 92 Hawai‘i
398, 992 P.2d 93 (2000); Masaki v. General Motors Corp., 71
Hawai‘i 1, 780 P.2d 566 (1989)).]
Defendant argues that, if
conduct or omission with respect to the subject incident is
worthy of the imposition of punitive damages because there was no
lifeguard provided here, the vast majority of hotels in the State
of Hawai‘i, who do not employ lifeguards, have also acted in a
manner so as to subject them to punitive damages.
[Id. at 15.]
STANDARD
Pursuant to Federal Rule of Civil Procedure 56(a), a
party is entitled to summary judgment “if the movant shows that
there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.”
Summary judgment must be granted against a
party that fails to demonstrate facts to establish
what will be an essential element at trial. See
Celotex [Corp. v. Catrett], 477 U.S. [317,] 323
[(1986)]. A moving party has both the initial
burden of production and the ultimate burden of
persuasion on a motion for summary judgment.
Nissan Fire & Marine Ins. Co. v. Fritz Cos., 210
F.3d 1099, 1102 (9th Cir. 2000). The burden
initially falls on the moving party to identify
for the court “those portions of the materials on
file that it believes demonstrate the absence of
any genuine issue of material fact.” T.W. Elec.
Serv., Inc. v. Pac. Elec. Contractors Ass’n, 809
F.2d 626, 630 (9th Cir. 1987) (citing Celotex
Corp., 477 U.S. at 323). “A fact is material if it
23
could affect the outcome of the suit under the
governing substantive law.” Miller [v. Glenn
Miller Prods., Inc.], 454 F.3d [975,] 987 [(9th
Cir. 2006)].
When the moving party fails to carry its
initial burden of production, “the nonmoving party
has no obligation to produce anything.” In such a
case, the nonmoving party may defeat the motion
for summary judgment without producing anything.
Nissan Fire, 210 F.3d at 1102-03. On the other
hand, when the moving party meets its initial
burden on a summary judgment motion, the “burden
then shifts to the nonmoving party to establish,
beyond the pleadings, that there is a genuine
issue for trial.” Miller, 454 F.3d at 987. This
means that the nonmoving party “must do more than
simply show that there is some metaphysical doubt
as to the material facts.” Matsushita Elec.
Indus. Co. v. Zenith Radio Corp., 475 U.S. 574,
586 (1986) (footnote omitted). The nonmoving
party may not rely on the mere allegations in the
pleadings and instead “must set forth specific
facts showing that there is a genuine issue for
trial.” Porter v. Cal. Dep’t of Corr., 419 F.3d
885, 891 (9th Cir. 2005) (quoting Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 256 (1986)).
“A genuine dispute arises if the evidence is such
that a reasonable jury could return a verdict for
the nonmoving party.” California v. Campbell, 319
F.3d 1161, 1166 (9th Cir. 2003); Addisu v. Fred
Meyer, Inc., 198 F.3d 1130, 1134 (9th Cir. 2000)
(“There must be enough doubt for a ‘reasonable
trier of fact’ to find for plaintiffs in order to
defeat the summary judgment motion.”).
On a summary judgment motion, “the nonmoving
party’s evidence is to be believed, and all
justifiable inferences are to be drawn in that
party’s favor.” Miller, 454 F.3d at 988
(quotations and brackets omitted).
Rodriguez v. Gen. Dynamics Armament & Technical Prods., Inc., 696
F. Supp. 2d 1163, 1176 (D. Hawai`i 2010) (some citations
omitted).
24
DISCUSSION
I.
Liability
As part of their negligence claim, Plaintiffs must
establish:
1. A duty or obligation, recognized by the
law, requiring the defendant to conform to a
certain standard of conduct, for the protection of
others against unreasonable risks;
2. A failure on the defendant’s part to
conform to the standard required: a breach of the
duty;
3. A reasonably close causal connection
between the conduct and the resulting injury and;
4. Actual loss or damage resulting to the
interests of another.
Tseu ex rel. Hobbs v. Jeyte, 88 Hawai‘i 85, 91, 962 P.2d 344, 350
(1998) (citations and brackets omitted); Kaho‘ohanohano v. Dep’t
of Human Servs., 117 Hawai‘i 262, 285, 178 P.3d 538, 561 (2008)
(citing Tseu).
Defendant seeks summary judgment on the grounds
that it owned no duty to Plaintiffs here.
The Hawai‘i Supreme Court has explained the duty
element of a negligence claim as follows:
“[I]t is fundamental that a negligence action
lies only where there is a duty owed by the
defendant to the plaintiff.” Bidar v. Amfac,
Inc., 66 Haw. 547, 551-52, 669 P.2d 154, 159
(1983) (citations omitted).
The existence of a duty owed by the
defendant to the plaintiff, that is, whether
. . . such a relation exists between the
parties that the community will impose a
legal obligation upon one for the benefit of
25
the other-or, more simply, whether the
interest of the plaintiff which has suffered
invasion was entitled legal protection at the
hands of the defendant, is entirely a
question of law.
Knodle v. Waikiki Gateway Hotel, Inc., 69 Haw.
376, 385, 742 P.2d 377, 383 (1987) (internal
quotation marks and citations omitted) (ellipsis
in original). Regarding the imposition of a duty
of care, this court has stated that, generally,
[i]n considering whether to impose a
duty of reasonable care on a defendant, we
recognize that duty is not sacrosanct in
itself, but only an expression of the sum
total of those considerations of policy which
lead the law to say that the particular
plaintiff is entitled to protection. Legal
duties are not discoverable facts of nature,
but merely conclusory expressions that, in
cases of a particular type, liability should
be imposed for damage done. In determining
whether or not a duty is owed, we must weigh
the considerations of policy which favor the
[plaintiff’s] recovery against those which
favor limiting the [defendant’s] liability.
The question of whether one owes a duty to
another must be decided on a case-by-case
basis.
Blair [v. Ing], 95 Hawai‘i [247,] at 259-260, 21
P.3d [452,] 464-65 [(2001)] (citations omitted)
(format altered). In addition to the
aforementioned principles, this court has also
regarded several factors in determining whether to
impose a duty:
[W]hether a special relationship exists,
the foreseeability of harm to the injured
party, the degree of certainty that the
injured party suffered injury, the closeness
of the connection between the defendants’
conduct and the injury suffered, the moral
blame attached to the defendants, the policy
of preventing harm, the extent of the burden
to the defendants and consequences to the
community of imposing a duty to exercise care
26
with resulting liability for breach, and the
availability, cost, and prevalence of
insurance for the risk involved.
Id. at 260, 21 P.3d at 465 (ellipsis and citation
omitted) (format altered).
Regardless of the source of a particular
duty, [however,] a defendant’s liability for
failing to adhere to the requisite standard
of care is limited by the pr[o]position that
the defendant’s obligation to refrain from
particular conduct [or, as the circumstances
may warrant, to take whatever affirmative
steps are reasonable to protect another] is
owed only to those who are foreseeably
endangered by the conduct and only with
respect to those risks or hazards whose
likelihood made the conduct [or omission]
unreasonably dangerous. Thus, if it is not
reasonably foreseeable that the particular
plaintiff will be injured if the expected
harm in fact occurs, the defendant does not
owe that plaintiff a duty reasonably to
prevent the expected harm.
Doe Parents No. 1 v. State Dep’t of Educ., 100
Hawai‘i 34, 72, 58 P.3d 545, 583 (2002) (internal
quotation marks and citations omitted) (first set
of brackets and bold emphases added); see also
Janssen v. Am. Hawai‘i Cruises, Inc., 69 Haw. 31,
34, 731 P.2d 163, 166 (1987) (stating that “a
defendant owes a duty of care only to those who
are foreseeably endangered by the conduct and only
with respect to those risks or hazards whose
likelihood made the conduct unreasonably
dangerous”) (internal quotation marks and
citations omitted); Hulsman v. Hemmeter Dev.
Corp., 65 Haw. 58, 68, 647 P.2d 713, 720 (1982)
(same).
The test of foreseeability “is whether there
is some probability of harm sufficiently serious
that a reasonable and prudent person would take
precautions to avoid it.” Knodle, 69 Haw. at 388,
742 P.2d at 385 (internal quotation marks,
brackets, and citations omitted). “It does not
27
mean foreseeability of any harm whatsoever, and it
is not sufficient that injury is merely possible.”
Henderson v. Prof’l Coatings Corp., 72 Haw. 387,
396, 819 P.2d 84, 90 (1991) (quoting 65 C.J.S.
Negligence § 5(5) (1966)) (internal quotation
marks omitted); see also Lee v. Corregedore, 83
Hawai‘i 154, 167, 925 P.2d 324, 337 (1996)
(“[T]here are clear judicial days on which a court
can foresee forever and thus determine liability
but none on which that foresight alone provides a
socially and judicially acceptable limit on
recovery of damages for that injury.” (Internal
quotation marks and citation omitted.)).
“[T]he concept of ‘duty[,]’ [however,]
involves more than mere foreseeability of harm.”
Taylor-Rice v. State, 91 Hawai‘i 60, 71-72, 979
P.2d 1086, 1097-98 (1999).
[A] court’s task-in determining “duty”-is not
to decide [merely] whether a particular
plaintiff’s injury was reasonably foreseeable
in light of a particular defendant’s conduct,
but rather to evaluate more generally whether
the category of negligent conduct at issue is
sufficiently likely to result in the kind of
harm experienced that liability may
appropriately be imposed on the negligent
party.
Id. at 72, 979 P.2d at 1098 (citing Thing v. La
Chusa, 48 Cal.3d 644, 257 Cal. Rptr. 865, 771 P.2d
814, 819 n.3. (1989)) (internal quotation marks
and citation omitted).
Pulawa v. GTE Hawaiian Tel, 112 Hawai‘i 3, 11-13, 143 P.3d 1205,
1213-15 (2006) (alterations and emphasis in Pulawa).
The existence of a duty is entirely a
question of law. A court considers several
factors in determining whether to impose a duty:
whether a special relationship exists, the
foreseeability of harm to the injured party,
the degree of certainty that the injured
party suffered injury, the closeness of the
connection between the defendants’ conduct
28
and the injury suffered, the moral blame
attached to the defendants, the policy of
preventing harm, the extent of the burden to
the defendants and 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.
Blair v. Ing, 95 Hawai‘i 247, 260, 21 P.3d 452,
465 (2001) (citation and periods omitted).
Hawaii Motorsports Inv., Inc. v. Clayton Group Servs., Inc., CIV.
No. 09-00304 SOM/BMK, 2010 WL 3398553, at *5 (D. Hawai‘i Aug. 27,
2010) (some citations omitted).
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))).
Here, the parties dispute whether the hazard of not
29
having a lifeguard present is an open and obvious danger, and
whether that issue affects the determination of a duty or relates
to comparative fault.
Defendant argues that it had no duty to
Plaintiffs because any danger presented by the swimming pool was
known, open, and obvious.
Plaintiffs argue that whether the
danger was open and obvious is considered with respect to
comparative fault principals, and the issue is not relevant to
whether Defendant owed it a particular duty.
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).7
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 should anticipate
7
In Friedrich, the Hawai‘i Supreme Court held that a
property owner does not have a duty to eliminate or provide a
warning about a known or obvious hazard which a claimant would
reasonably be expected to avoid. In that case, a pedestrian
suffered serious injuries as a result of slipping and falling off
a state-owned pier. Friedrich v. Dep’t of Transp., 60 Haw. 32,
34, 586 P.2d 1037, 1039 (1978). Friedrich has been superseded in
part by statute in circumstances where “the State or a County
operates a public beach park and there are extremely dangerous
ocean condition adjacent to the public beach park. See Bhakta v.
County of Maui, 109 Hawai‘i 198, 215, 124 P.3d 943, 960 (2005);
Hawaii Revised Statutes § 663–1.56 (2009 Supp.). Otherwise,
however, Friedrich remains good law.” Crivello v. Cnty. of
Hawai‘i, No. 29502, 2011 WL 39082, at *7 (Hawai‘i Ct. App. Jan.
6, 2011).
30
the harm despite such knowledge or obviousness.”
Restatement
(Second) of Torts § 343A(1).
In Robbins v. Marriott Hotel Services, Inc., CV. No.
08-00061 BMK, 2010 WL 3260185 (D. Hawai‘i Aug. 18, 2010), this
district court considered the applicability of § 343A to a
defendant hotel owner’s argument that it did not owe its guest a
duty to warn of known and obvious dangers, where the guest
stepped onto an infinity ledge in order to enter a swimming pool.
The court explained the duty set forth in § 343A as follows:
Thus, “[r]easonable care on the part of the
possessor . . . does not ordinarily require
precautions, or even warning, against dangers
which are known to the visitor, or so obvious to
[her] that [she] may be expected to discover
them.” Id. § 343A cmt. e. The term “obvious”
means that “both the condition and the risk are
apparent to and would be recognized by a
reasonable [person], in the position of the
visitor, exercising ordinary perception,
intelligence, and judgment.” Id. § 343A cmt. b.
2010 WL 3260185, at *3.
The Robbins court concluded “as a matter
of law, that stepping onto the infinity ledge to enter the pool
is a known and obvious danger.”
Id. at *4.
Nevertheless, the
court noted that,
a landowner may be liable for the physical harm
caused to his invitee by a known and obvious
danger if the landowner should anticipate the
harm. Restatement (Second) of Torts § 343A(1).
Harm may be anticipated where the landowner “has
reason to expect that the invitee will proceed to
encounter the known or obvious danger because to a
reasonable [person] in [her] position the
advantages of doing so would outweigh the apparent
risk.” Id. § 343A cmt. f. In such a case, “the
31
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.” Id. “It is not, however,
conclusive in determining the duty of the
[landowner], or whether he has acted reasonably
under the circumstances.” Id.
Id.
Viewing the evidence in the light most favorable to the
plaintiff, the Robbins court concluded that a genuine issue of
material fact existed as to whether the defendant should have
anticipated the harm to the plaintiff.
Id.
This Court agrees
with the reasoning and analysis in Robbins.
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
32
in some circumstances does not relieve Defendant of all liability
here.
As recognized by the court in Robbins, 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.
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
33
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 the
jury.8
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
8
Defendant did not cite and the Court did not locate any
authority imposing a common law duty upon a premises owner to
provide lifeguards at a swimming pool. See, e.g., Page v. Choice
Hotels Int’l, Inc., No. 2:04-CV-13, 2005 WL 1106893, at *3-4
(W.D. Mich. Apr. 18, 2005) (finding under Michigan law that hotel
did not have a duty to protect decedent from the danger of
swimming in an unsupervised pool, where the danger of swimming
alone in an unsupervised pool is open and obvious, and locating
no common law duty upon premises owner to supervise swimming
pool). In the absence of clear authority requiring a hotel to
provide lifeguards at its pools, this Court, sitting in
diversity, will refrain from either imposing that particular duty
or declaring that a hotel has no such duty here.
34
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.
II.
Punitive Damages
Defendant also seeks summary judgment on Plaintiffs’
claims for punitive damages, and argues that, viewing the facts
of the case in the light most favorable to Plaintiffs, the
alleged negligence does not support a claim for punitive damages.
The Court agrees.
The purpose of punitive damages is to punish or deter,
and they require deliberate, outrageous conduct on the part of a
defendant.
“Punitive or exemplary damages are generally defined
as those damages assessed in addition to compensatory damages for
the purpose of punishing the defendant for aggravated or
outrageous misconduct and to deter the defendant and others from
similar conduct in the future.”
Masaki v. Gen. Motors Corp., 71
Haw. 1, 6, 780 P.2d 566, 570 (1989).
“In determining whether an
award of punitive damages is appropriate, the inquiry focuses
primarily upon the defendant’s mental state, and to a lesser
35
degree, the nature of his conduct.”
Id. at 7, 780 P.2d at 570.
Viewing the facts in the light most favorable to
Plaintiffs, the evidence does not establish aggravated or
outrageous conduct, or that Defendant acted with the requisite
culpability to support punitive damages.
Plaintiffs have not
alleged or come forward with evidence of willful, wanton,
malicious or intentional conduct on behalf of Defendant toward
Plaintiffs, as required to maintain a claim for punitive damages.
“‘Punitive damages are not awarded for mere
inadvertence, mistake, or errors of judgment.’”
Ass’n of
Apartment Owners v. Venture 15, Inc., 115 Hawai‘i 232, 297, 167
P.3d 225, 290 (2007) (quoting Masaki, 71 Haw. at 7, 780 P.2d at
571) (emphasis omitted).
Rather, the Hawai‘i Supreme Court has
explained:
[i]n order to recover punitive damages, “the
plaintiff must prove by clear and convincing
evidence that the defendant has acted
wantonly or oppressively or with such malice
as implies a spirit of mischief or criminal
indifference to civil obligations, or where
there has been some wilful misconduct or that
entire want of care which would raise the
presumption of a conscious indifference to
consequences.”
Id. (quoting Masaki, 71 Haw. at 16–17, 780 P.2d at 575) (some
brackets omitted).
Plaintiffs have not done so here.
Under the facts presented, Plaintiffs’ negligence claim
cannot support an award of punitive damages. Plaintiffs have not
met their burden in opposing summary judgment to come forward
36
with specific facts supporting their claim for punitive damages
and to show that there is a genuine issue for trial.
Accordingly, Defendant’s Motion is GRANTED with respect to
punitive damages.
CONCLUSION
On the basis of the foregoing, Defendant Pleasant
Travel Service, Inc.’s Motion for Summary Judgment, filed May 18,
2011, is HEREBY GRANTED IN PART as to punitive damages and DENIED
IN PART in all other respects.
IT IS SO ORDERED.
DATED AT HONOLULU, HAWAII, September 22, 2011.
/S/ Leslie E. Kobayashi
Leslie E. Kobayashi
United States District Judge
VICTORIA YI, ETC., ET AL. V. PLEASANT TRAVEL SERVICE, INC., ET
AL; CIVIL NO. 10-00318 LEK-RLP; ORDER GRANTING IN PART AND
DENYING IN PART DEFENDANT PLEASANT TRAVEL SERVICE, INC.’S MOTION
FOR SUMMARY JUDGMENT
37
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