Yi et al v. Pleasant Travel Service et al
Filing
83
ORDER DENYING DEFENDANT'S 77 MOTION FOR RECONSIDERATION: "On the basis of the foregoing, Defendant's Motion for Reconsideration of Order Granting in Part and Denying in Part Defendant Pleasant Travel Service, Inc.'s Motion fo r Summary Judgment, Entered on 09/22/11, filed October 6, 2011, is HEREBYDENIED." Signed by District JUDGE LESLIE E. KOBAYASHI on November 30, 2011. (bbb, )CERTIFICATE OF SERVICEParticipants registered to re ceive 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 DENYING DEFENDANT’S MOTION FOR RECONSIDERATION
On September 22, 2011, this Court issued its Order
Granting in Part and Denying in Part Defendant Pleasant Travel
Service, Inc.’s Motion for Summary Judgment (“Order”).
On
October 6, 2011, Defendant Pleasant Travel Service, Inc.
(“Defendant”), filed a motion seeking reconsideration of the
Order (“Motion”).
Plaintiffs Victoria Yi, Next Friend of Song
Myeong Hee, an incapacitated adult, Heo Hyeob, Heo Eunsuk, and
Heo Keun Seok (collectively “Plaintiffs”) filed a memorandum in
opposition on October 13, 2011.
October 27, 2011.
Defendant filed its reply on
The Court finds this matter suitable for
disposition without a hearing 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”).
After careful
consideration of the Motion, supporting and opposing memoranda,
and the relevant legal authority, Defendant’s Motion is HEREBY
DENIED for the reasons set forth below.
BACKGROUND
The parties and the Court are familiar with the factual
and procedural background of this case.
The Court therefore will
only discuss the background that is relevant to the instant
motion.
Plaintiffs allege that on August 8, 2009, Song Myeong
Hee (“Song”), 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.
¶¶ 2-5, 13.]
[Complaint at
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.’”
14.]
[Id. at ¶
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”.
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[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.]
Defendant sought 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 asserted that it
did not have any duty to provide lifeguards at the swimming pool,
that it was not obligated to warn of the absence of lifeguards in
a foreign language, and that any danger presented by the swimming
pool was open and obvious.
[Order at 4-8.]
The Court denied the
request for summary judgment on Plaintiff’s negligence claim,
reasoning 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
3
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))).
. . .
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 fact that the danger is known,
or is obvious, is important in determining
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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 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
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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 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
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the unique facts and circumstances of this case,
the Court finds that this is an issue of fact for
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.
[Order at 29-34 (footnote omitted).]
I.
Motion
Defendant seeks reconsideration of this ruling pursuant
to Local Rule 60.1(c), based on “manifest errors of law and
fact.”
[Mem. in Supp. of Motion at 2.]
Defendant asks the Court
to vacate the Order and grant its motion for summary judgment.
[Id. at 13.]
A.
Duty
Defendant first argues that, whether it owed Plaintiffs
a duty to provide a lifeguard at its swimming pool is a question
of law, but based upon the Court’s Order, “whether this Defendant
was required to provide a lifeguard for the benefit of SONG is
now a question of fact for the jury.”
[Id. at 3.]
Defendant
argues that “[i]t is up to the judge, not the jury, to determine
whether a defendant owes a duty to a particular plaintiff.”
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[Id.
at 5.]
Defendant also argues that requiring the jury to
determine whether Defendant had a duty to post a lifeguard will
create inconsistent rulings and uncertainty in the law.
Defendant asserts that:
The effect of having the jury determine
whether this Defendant had a duty to post a
lifeguard at its swimming pool is that whether
hotels have a duty to post lifeguards will depend
on the idiosyncrasies of each jury panel for each
drowning or near-drowning case, particularly
because the swimming pool at issue is just that—an
ordinary swimming pool. Either the jury’s
decision as to duty will be viewed as new law
requiring hotels to post lifeguards, or, as the
Order suggests, such a determination will be made
on a case-by-case basis.
[Id. at 7.]
Further, Defendant argues that “[u]nder the
reasoning of the Order, every case involving a hotel swimming
pool drowning, or near-drowning, incident will require a jury
trial to determine whether a duty lies.”
B.
[Id. at 8.]
Primary Implied Assumption of Risk
Defendant next argues that the Order does not address
the application of the doctrine of primary implied assumption of
risk raised in its motion for summary judgment.
It acknowledges
that, “[t]he Order does note that, ‘it is possible that, to a
reasonable person, the advantages of swimming unsupervised in the
Barefoot Bar pool would outweigh any apparent risk.’”
(quoting Order at 34).]
[Id. at 11
Defendant notes that, “[t]he
aforementioned quotation embodies the doctrine of primary implied
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assumption of risk, which remains good law in the state of
Hawai‘i.”
[Id.]
According to Defendant,
[b]ased upon the complete absence of any facts
suggesting that SONG did not voluntarily enter the
swimming pool, in the absence of a lifeguard, and
cognizant of the risks entailed by doing so, her
assumption of the risk of entering the swimming
pool under such circumstances, is the very factual
situation in which the doctrine of primary implied
assumption of risk is applicable.
[Id. at 12-13.]
II.
Memorandum in Opposition
Plaintiffs’ memorandum in opposition first argues that
the Motion is procedurally deficient because it is not brought
pursuant to any Federal Rule of Civil Procedure and that
Defendant is not entitled to relief under Rules 59(e) or 60.
[Mem. in Opp. to Motion at 1-3.]
As to the merits of the Motion, Plaintiffs argue that
“the defense refuses to accept is that it is for the jury to
determine if the hotel’s failure to post a guard was conduct
which subjected pool users to an unreasonable risk of harm –
clearly a fact question.”
[Id. at 4.]
Plaintiffs also argue
that there is no basis for revisiting the issue of assumption of
risk.
[Id. at 4-5.]
III. Reply
In reply, Defendant argues that the Motion, brought
pursuant to Local Rule 60.1, is not procedurally deficient, and
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that it could not have raised any of these issues earlier because
they are based upon the Court’s Order.
It contends that the
memorandum in opposition fails to substantively oppose the
Motion.
[Reply at 2-5.]
DISCUSSION
To the extent Plaintiffs argue that the Motion is
procedurally deficient, the Court disagrees, and will consider
the merits of the Motion brought pursuant to Local Rule 60.1.
“[A] successful motion for reconsideration must
accomplish two goals.
First, a motion for reconsideration must
demonstrate reasons why the court should reconsider its prior
decision.
Second, a motion for reconsideration must set forth
facts or law of a strongly convincing nature to induce the court
to reverse its prior decision.”
Donaldson v. Liberty Mut. Ins.
Co., 947 F. Supp. 429, 430 (D. Hawai`i 1996); accord Tom v. GMAC
Mortg., LLC, CIV. NO. 10–00653 SOM/BMK, 2011 WL 2712958, at *1
(D. Hawai`i July 12, 2011) (citations omitted).
This district
court recognizes three grounds for granting reconsideration of an
order: “(1) an intervening change in controlling law; (2) the
availability of new evidence; and (3) the need to correct clear
error or prevent manifest injustice.”
White v. Sabatino, 424 F.
Supp. 2d 1271, 1274 (D. Hawai`i 2006) (citing Mustafa v. Clark
County Sch. Dist., 157 F.3d 1169, 1178–79 (9th Cir. 1998)).
“Mere disagreement with a previous order is an insufficient basis
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for reconsideration.”
Id.
“Whether or not to grant
reconsideration[,]” however, “is committed to the sound
discretion of the court.”
Navajo Nation v. Confederated Tribes &
Bands of the Yakama Indian Nation, 331 F.3d 1041, 1046 (9th Cir.
2003) (citing Kona Enter., Inc. v. Estate of Bishop, 229 F.3d
877, 883 (9th Cir. 2000)).
Defendant first argues that whether it owed Plaintiffs
a duty to provide a lifeguard at its swimming pool is a question
of law that the Court should have decided in ruling on the motion
for summary judgment.
The Court, however, did rule with respect
to the duty owed to hotel guests generally, and with respect to
swimming pools specifically.
The Court explained:
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))).
[Order at 29.]
To the extent Defendant seeks a ruling, as a
matter of law, that it was not required to post a lifeguard at
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its pool under the specific facts and circumstances of this case,
the Court again declines to make such a legal ruling.
The Court
reaffirms its ruling that “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.”
[Order at 34.]
That is,
whether Defendant’s conduct was reasonable under the
circumstances is a question for the jury.
[Id. (“[W]hat is
reasonable and unreasonable and whether the defendant’s conduct
was reasonable in the circumstances are for the jury to decide.”
(quoting Knodle, 69 Haw. at 387, 742 P.2d at 384)).]
Further, to the extent Defendant argues that requiring
the jury to determine whether Defendant should have posted a
lifeguard will create inconsistent rulings and uncertainty in the
law, the Court disagrees, and finds that this is not a basis for
reconsideration of its Order.
Finally, Defendant argues that the Court did not
explicitly rule on the merits of its argument that the doctrine
of primary implied assumption of risk applies here to bar
Plaintiffs’ action.
To the extent the Court did not set forth a
separate finding with respect to Defendant’s assumption of risk
argument, such finding is subsumed within the Court’s ruling that
“Defendant’s Motion is DENIED with respect to liability.”
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[Id.]
The Court, however, takes this opportunity to clarify that
Defendant has not met its burden on summary judgment with respect
to its assumption of risk argument.
That is, viewing the facts
in the light most favorable to the non-moving party, Defendant
has not established that Plaintiffs’ negligence claims are barred
by the doctrine of primary implied assumption of risk.
The Court CONCLUDES that Defendant has not met its
burden of establishing manifest errors of law and fact in the
Order.
Defendant’s sincere disagreement with the Order is an
insufficient basis for reconsideration.
Accordingly, the Court
finds no error in its denial of Defendant’s motion for summary
judgment as to liability.
CONCLUSION
On the basis of the foregoing, Defendant’s Motion for
Reconsideration of Order Granting in Part and Denying in Part
Defendant Pleasant Travel Service, Inc.’s Motion for Summary
Judgment, Entered on 09/22/11, filed October 6, 2011, is HEREBY
DENIED.
IT IS SO ORDERED.
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DATED AT HONOLULU, HAWAII, November 30, 2011.
/S/ Leslie E. Kobayashi
Leslie E. Kobayashi
United States District Judge
VICTORIA YI, ETC., ET AL. V. PLEASANT HAWAIIAN TRAVEL SERVICE,
INC., ET AL; CIVIL NO. 10-00318 LEK-RLP; ORDER DENYING
DEFENDANT’S MOTION FOR RECONSIDERATION
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