Pell et al v. Fairmont Hotels & Resorts, Inc.

Filing 145

ORDER (1) GRANTING MOTION FOR SUMMARY JUDGMENT, AND (2) DENYING AS MOOT VARIOUS PRE-TRIAL MOTIONS re 97 , 127 , 129 , 134 - Signed by JUDGE DERRICK K. WATSON on 8/27/2019. Plaintiffs are ORDERED TO SHOW CAUSE w hy the Doe and Roe defendants in the amended complaint should not be dismissed for failure to serve and/or prosecute. Plaintiffs shall respond to the order to show cause forthwith and no later than seven (7) days after entry of this Order. The Court will postpone the entry of final judgment in this case pending receipt of Plaintiffs' response to the order to show cause. (emt, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAI‘I

STEVE PELL, et al.,
Plaintiffs,
vs.

Case No. 17-cv-00529-DKW-KJM
ORDER (1) GRANTING MOTION
FOR SUMMARY JUDGMENT, AND
(2) DENYING AS MOOT VARIOUS
PRE-TRIAL MOTIONS

HMC KEA LANI, LP,
CCFH MAUI LLC, et al.,
Defendants.

INTRODUCTION
Pell seeks to hold Defendants HMC Kea Lani, LP and CCFH Maui LLC
(collectively, the Kea Lani Defendants) liable for a serious injury that he suffered
in October 2015 while boogie boarding in the ocean fronting the Kea Lani
Defendants’ hotel in Wailea, Maui, Hawaii. The Kea Lani Defendants move for
summary judgment, principally asserting the satisfaction of their duty to warn Pell
of hazardous ocean conditions, pursuant to Hawai‘i Revised Statutes Section
486K-5.5 (Section 486K-5.5). The Court agrees that the undisputed facts show
exactly that.

Specifically, the record shows that Pell asked to rent a boogie

board from the hotel, the Kea Lani Defendants’ employees refused to rent a board
to him due to a “red flag” warning, and Pell was injured after he nonetheless

obtained and used a boogie board from a member of the public. In addition, Pell
admits that he saw the red flag flying at the time he attempted to rent a boogie
board from the hotel, knew what the red flag meant, saw a sign at the entrance to
the beach fronting the hotel that warned of the precise ocean condition that he
claims injured him, and personally observed the ocean, including these conditions,
before entering. Because these facts demonstrate, as a matter of law, that the Kea
Lani Defendants satisfied their duty to warn, the Court GRANTS the motion for
summary judgment.
BACKGROUND
I.

Factual Background
On October 17, 2015, Pell and his family checked-in to the Fairmont Kea

Lani Resort (“the Hotel”) in Wailea, Maui, Hawaii. Depo. of Gary Sutton at
11:19-12:4, Dkt. No. 98-20.
On October 22, 2015, the Hotel’s staff posted a red flag at the entrance to the
beach fronting the Hotel by 11:04 a.m. Depo. of Fadisiota Faafiti at 23:11-24:3,
Dkt. No. 98-4. A security officer at the Hotel, Kekealani Ishizaka, was on duty
that day and observed ocean conditions to be dangerous when the red flag was
posted. Depo. of Kekealani Ishizaka at 6:22-7:4, 25:6-21, Dkt. No. 98-14.

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At approximately 1:30 p.m., Pell’s daughter asked her father to take her
boogie boarding. Kea Lani Defendants’ Concise Statement of Facts (CSF) at
¶ 16, Dkt. No. 98; Plaintiffs’ Concise Statement of Facts (CSF) at ¶ 16, Dkt. No.
105. Pell would not have gone into the ocean if his daughter had not asked him to
take her boogie boarding. Depo. of Steve Pell at 33:18-20, 133:22-134:2, Dkt.
No. 98-19. Pell then asked a Hotel employee if he could rent boogie boards for
himself and his daughter. 10/22/2015 Guest Injury Report at 2, Dkt. No. 98-16;
Pell Depo. at 60:2-4. Pell’s rental request was denied. Pell Depo. at 60:5-6, 20.
After asking why, Pell was told by the employee that boogie board rentals were not
permitted due to the red flag being posted for high surf. Id. at 58:1-5, 60:22-61:2.
The employee sought assistance from Ishizaka because Pell did not agree with the
Hotel’s rental decision. Ishizaka Depo. at 23:7-12. Pell asked Ishizaka how
other people on the beach had boogie boards, and Ishizaka told him that those
individuals must have brought their own boards. Guest Injury Report at 2. Pell
and his daughter left Ishizaka without any boogie boards. Id.
While walking to the beach, Pell saw the red flag flying at the entrance to
the beach fronting the Hotel. Pell Depo. at 61:8-12. Pell knew that the red flag
signified a high surf warning because the Hotel’s sign adjacent to the beach (“the
Sign”) stated so. Decl. of Steve Pell at ¶ 6, Dkt. No. 105-1. The Sign, from the

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top, stated “Please Observe Beach Conditions”, “No Lifeguard on Duty”, and
“Warning[.]” Faafiti Depo. at 36:10-21; Exh. 12 to Pell Depo. at 4-5, Dkt. No.
98-15. Below the rectangular red box that contained the word, “Warning,” eight
images or pictograms of ocean and/or beach conditions were depicted, including
“High Surf” and “Dangerous Shorebreak[.]” Id. at 5. The image for
“Dangerous Shorebreak” stated: “Waves break in shallow water. Serious injuries
could occur even in small surf.” Depo. of Allen Cabe at 122:14-17. Below the
eight images, appeared two flag-shaped rectangles, one in red and one in yellow.
Exh. 12 to Pell Depo. at 5. Next to the red rectangle, the Sign stated: “Red Flag
Posted”, “High Surf”, and “Warning[.]” Id. Below the two flag-shaped
rectangles, the Sign read as follows: “Entering the ocean can be dangerous at any
time. Any of the above conditions may be present at any time.” Id. All of the
messages set forth above appear on the Sign in capitalized letters of various sizes
and, except for the words under each image, in various graduations of bold type
face. See id.
Upon reaching the beach, Pell observed the ocean for approximately 10-15
minutes. Pell Depo. at 68:18-25. Pell observed waves of one to two feet
breaking directly in front of him along the shoreline. Id. at 80:11-24. Just
before going into the ocean, Pell asked another beachgoer if he could borrow that

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person’s boogie boards. Id. at 69:17-21. Pell borrowed boogie boards from the
beachgoer. Kea Lani Defendants’ CSF at ¶ 19; Plaintiffs’ CSF at ¶ 19. After
entering the ocean, Pell rode two waves on a boogie board without incident. Pell
Depo. at 84:22-24. The first two waves were about one to two feet high,
consistent with those he had observed before entering. Id. at 86:16-21. Pell
used his borrowed boogie board to ride a third wave and was injured in that
process after being “thrown” by the wave into the ocean bottom. Id. at 87:4-7,
88:5-9.1
II.

Procedural Background
This case began on October 20, 2017 with the filing of the original

complaint. Dkt. No. 1. On June 4, 2018, Plaintiffs Steve Pell, Dionna Pell,
Shannon Bailey, Emma Pell, Stevi Pell, J.P., and L.P. (collectively, Plaintiffs) filed
the operative amended complaint against the Kea Lani Defendants and numerous
Doe and Roe individuals and entities. Dkt. No. 14. Therein, Plaintiffs assert a
single cause of action for negligence in failing to warn about an unreasonably
dangerous condition in the ocean fronting the Hotel.

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Pell could not recall whether the height of the third wave was the same as the first two. Pell
Depo. at 87:17-21.
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On June 5, 2019, the Kea Lani Defendants moved for summary judgment on
the failure to warn claim. Dkt. No. 97. The Kea Lani Defendants assert that (1)
they are not liable pursuant to HRS Section 486K-5.5 because (a) they discharged
their duty to warn about the dangerousness of the ocean, (b) Pell saw and
understood the meaning of the red flag, and (c) Pell understood the hazardous
conditions presented by the ocean, (2) Pell assumed the risk that he could be
injured by the dangers inherent in boogie boarding, and (3) they exercised
reasonable care in providing multiple warnings to guests about the hazards posed
by the ocean.
On June 14, 2019, Plaintiffs filed an opposition to the motion for summary
judgment. Dkt. No. 104. Plaintiffs argue that the Kea Lani Defendants are not
entitled to summary judgment because they warned about an ocean condition–high
surf–that did not exist and failed to provide an adequate warning of a different
ocean condition–dangerous shorebreak–that was responsible for Pell’s injury.
Plaintiffs assert that the Sign failed to advise about the particular risk of harm
associated with any ocean condition, how to avoid any condition, or which
condition among the eight pictograms represented on the Sign existed on a
particular day. Plaintiffs emphasize Tarshis v. Lahaina Inv. Corp., 480 F.2d 1019

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(9th Cir. 1973), for the proposition that a jury should be allowed to determine
whether the Kea Lani Defendants satisfied their duty to warn.
After the Kea Lani Defendants filed a reply, Dkt. No. 132, this Court held an
August 20, 2019 hearing on the motion for summary judgment, Dkt. No. 142.
This Order now follows.
STANDARD OF REVIEW
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.” The
moving party is entitled to judgment as a matter of law when the non-moving party
fails to make a sufficient showing on an essential element of a claim in the case on
which the non-moving party has the burden of proof. Celotex Corp. v. Catrett,
477 U.S. 317, 323 (1986). In assessing a motion for summary judgment, all facts
are construed in the light most favorable to the non-moving party. Genzler v.
Longanbach, 410 F.3d 630, 636 (9th Cir. 2005).
DISCUSSION
The Court begins and ends its analysis with the duty to warn. Because the
Court finds that there are no genuine disputes of material fact that the Kea Lani
Defendants warned Pell of ocean conditions that may occur in the ocean fronting

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the Hotel, including the dangerous shorebreak that Pell specifically alleges injured
him, the Kea Lani Defendants are entitled to summary judgment on the sole claim
of negligence as a matter of law.2
HRS Section 486K-5.5 is the operative statute governing a Hotel’s duty to
warn in the circumstances presented here. Specifically, Section 486K-5.5
governs the liability of hotels in Hawai‘i for injuries suffered by the hotel’s guests
on account of a hazardous condition on the beach or in the ocean fronting the
hotel–precisely what undisputedly occurred here. Section 486K5.5 provides as
follows:
In a claim alleging injury or loss on account of a hazardous condition
on a beach or in the ocean, a hotelkeeper shall be liable to a hotel
guest for damages for personal injury, death, property damage, or
other loss resulting from the hotel guest going onto the beach or into
the ocean for a recreational purpose, including…boogie boarding…,
only when such loss or injury is caused by the hotelkeeper’s failure to
warn against a hazardous condition on a beach or in the ocean, known,
or which should have been known to a reasonably prudent
hotelkeeper, and when the hazardous condition is not known to the
guest or would not have been known to a reasonably prudent guest.3
Thus, for a hotel to be liable under Hawaii law under the circumstances presented
here, a plaintiff must show the following occurred: (1) a guest (2) suffered an

2

The Court, thus, need not address the other arguments raised by the Kea Lani Defendants, such
as whether Pell assumed the risks inherent in boogie boarding.
3
Section 486K-5.5 also provides that “beach” means the beach fronting the hotel.
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injury (3) that was caused (4) by a hotel’s (5) failure to warn (6) about a hazardous
condition (7) on a beach or in the ocean (8) that is known or should have been
known by a reasonably prudent hotel and (9) not known or would not have been
known by a reasonably prudent guest.
It is undisputed that some of these elements occurred. Pell was a guest of a
hotel, he suffered a serious injury, and the injury took place in the ocean.
Importantly, however, although Plaintiffs dispute whether the Hotel provided a
warning about a hazardous condition, the facts show that there is no such dispute.
Specifically, the facts show that the Hotel warned guests, including Pell, about
eight hazardous conditions, including the hazardous condition upon which Pell
relies–dangerous shorebreak. In addition, when Pell attempted to rent a boogie
board–the activity during which Pell was subsequently injured–from the Hotel, two
different Hotel employees told him that the Hotel would not rent him one and why.
Put another way, the Hotel did not fail to warn Pell about dangerous shorebreak or,
even, boogie boarding. Instead, the Hotel, by way of the Sign and its employees’
verbal warnings, warned Pell about the very condition and activity that allegedly
caused his injury. Notably, the Sign, which Pell admits to have seen, included a
pictogram for “Dangerous Shorebreak” with the following verbiage: “Waves break
in shallow water. Serious injuries could occur even in small surf.” In addition,

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the Sign warned that dangerous shorebreak, like all the conditions identified on the
Sign, “may be present at any time” and “[e]ntering the ocean can be dangerous at
any time.”
In an attempt to deflect from these clear, undisputed facts, Plaintiffs make a
number of arguments, none of which achieve their purpose. First, Plaintiffs make
a series of assertions about what the Sign did not do. Plaintiffs assert that the
Sign did not mention which condition(s) “existed on any given day” or, as Pell put
it in his declaration, the Sign did not advise him about any “ongoing” condition(s).
See Pell Decl. at ¶ 10. Plaintiffs further assert that the Sign did not advise about
the “particular risk of harm” created by any condition and did not advise about
“how to avoid” any of the listed conditions. The problem with all of these
purported deficiencies with the Sign is that not one of them is required by Section
486K-5.5. Section 486K-5.5 does not require a hotel to warn guests about
whether an ocean condition exists at the very moment a guest observes or enters
the ocean.4 Ocean conditions are ever-changing and expecting a hotel to adjust its
warning signs as quickly cannot possibly be the duty that Section 486K-5.5
imposes. Nor does Section 486K-5.5 require a hotel to warn guests about the

4

The Court notes, however, that, in refusing to rent Pell a boogie board, the Hotel effectively
provided him with a warning about boogie boarding in the moments leading up to his injury.
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“particular risk of harm” of an ocean condition. To the extent it does, Pell never
offers why warning that “serious injury” could occur even in the presence of small
surf does not carry that burden. And finally, Section 486K-5.5 does not require a
hotel to warn a guest about how best to avoid an ocean condition. Instead,
Section 486K-5.5 requires a hotel to warn its guests “against a hazardous condition
on a beach or in the ocean”–something which the Hotel did when it warned Pell
about dangerous shorebreak and seven other conditions that may exist at any time
on the beach or in the ocean.5
Second, Plaintiffs argue that, in posting a red flag, the Hotel warned about
high surf, a condition that “did not exist.” At oral argument, Plaintiffs’ counsel
added that, in seeing the red flag, it was “human nature” for Pell to ignore the other
non-high surf conditions warned about on the Sign. As for the principal assertion
that the Hotel warned about a condition that did not exist, Plaintiffs again mis-read
Section 486K-5.5. The statutory provision does not require a hotel to warn about
whether an ocean or beach condition is present at an exact moment in time.

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If Section 486K-5.5 did require the things Plaintiffs argue were missing from the Sign, the
statute would need to read quite differently, perhaps something like: “…only when such loss or
injury is caused by the hotelkeeper’s failure to warn against (1) a hazardous condition then
occurring on a beach or in the ocean, known, or which should have been known to a reasonably
prudent hotelkeeper, and when the hazardous condition is not known to the guest or would not
have been known to a reasonably prudent guest, (2) the particular harm(s) that may be caused by
such a condition, and (3) how to avoid such a condition.
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There is a very good reason for this: conditions, such as high surf, are often not
amenable to such exact warnings. As the Sign itself stated, this is because ocean
conditions “may be present at any time.” Section 486K-5.5 also does not require
a hotel to provide warnings of conditions that a guest agrees exist or a guest
observes before entering the ocean. If it were otherwise, there would be no point
in Section 486K-5.5 requiring a condition to be unknown to a guest or a reasonably
prudent one.6 And finally, Pell offers no support for the curious assertion that he
could simply ignore the shorebreak and other warnings provided by the Hotel
because the Hotel repeatedly warned about high surf. Indeed, the mere assertion
borders on the non-sensical.7
Third, Plaintiffs rely on Tarshis for the proposition that the Kea Lani
Defendants’ liability must go to a jury for resolution. As an initial matter, the
Court notes that Tarshis was decided in 1973–more than 20 years before Section

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Along a similar vein, Plaintiffs appear to suggest that high surf “did not exist” because the
waves Pell saw in the ocean did not match the waves depicted in the relevant pictogram.
Putting aside that the pictogram is not to scale, again, Pell’s agreement or lack thereof with the
Hotel’s declaration of high surf is completely irrelevant to whether the Kea Lani Defendants
warned him of a hazardous condition.
7
Counsel’s assertion at oral argument that “human nature” compelled (and excused) Pell’s
actions is, of course, preposterous. Apart from there being no evidence in the record as to the
“nature” of humans in this regard, the Sign at issue in this case specifically stated that any of the
ocean conditions could be present at any time and did not state that, in the event of a warning
about one condition, the other conditions could be ignored. Why Pell, given these facts, thinks
he was permitted, or that it was reasonable, to do otherwise, is not evident.
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486K-5.5 became the law in Hawai‘i. See Senate Bill No. 2663 § 4 (making
Section 486K-5.5 effective as of its approval, which occurred on June 7, 1994).
As such, the Tarshis court did not evaluate the facts present there using what is
now the present state of the tort law in Hawai‘i.8 Moreover, while there are some
similarities, the material factual and legal issues in Tarshis are different than those
here and command a different result.
In Tarshis, a guest was injured after being thrown from the ocean onto a
beach fronting the guest’s hotel. 480 F.2d at 1020. On the day of the accident,
red flags and signs were positioned along the hotel’s beach frontage, with the signs
warning about dangerous surf conditions and asking guests to use the hotel’s
swimming pools. While the injured guest saw the red flags, she alleged that she
did not see the signs warning of dangerous surf conditions, did not receive verbal
warnings concerning the same, and observed “slight waves.” The district court
granted summary judgment in favor of the hotel, finding that the hotel was under
no duty to warn the guest about dangerous conditions in the ocean because the
dangers inherent in swimming in the ocean should have been known to a person of
ordinary intelligence. Id. The Ninth Circuit reversed, concluding that, based on

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See Rygg v. Cty. of Maui, 98 F. Supp. 2d 1129, 1135 n.3 (D. Haw. 1999) (stating that, “the
holding in Tarshis appears to have been legislatively overridden by [Section 486K-5.5]”).
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the evidence presented, the guest was entitled to present to a jury her theory that
the condition of the surf represented an unapparent danger of which the hotel failed
to adequately warn. Id. at 1021. In doing so, the Ninth Circuit stated that
“[w]hether or not the ocean fronting [the hotel’s] property would have appeared
dangerous to an ordinarily intelligent person is a question of fact inappropriate for
summary adjudication.” Id.
Tarshis is inapposite for three separate and alternative reasons. First, the
knowledge imputed to a person of ordinary intelligence (or, as Section 486K-5.5
casts it, a reasonably prudent person) is only relevant if a hotel fails to warn about
a hazardous condition. As the Court’s foregoing discussion explains, in this case,
the Hotel did not fail to warn Pell about hazardous conditions in the ocean,
including the dangerous shorebreak condition he specifically identifies as
responsible for his injuries. Second, even if Tarshis could be construed as more
generally applicable in the sense of when the evidence may entitle a party to
present his theory to a jury, Tarshis is factually different from this case. Notably,
unlike in Tarshis, here, (1) Pell acknowledges that he saw the Sign, which included
its eight pictograms and other explicit warnings, and (2) it is undisputed that Pell
was verbally warned that he could not rent a boogie board from the Hotel. Third,
and alternatively, even if the Hotel’s warnings to Pell in this case could be

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considered deficient in some manner, the facts here show that Pell knew about the
dangerous shorebreak before entering the ocean. In other words, the Court need
not imagine what a person of ordinary intelligence would have known when Pell
entered the ocean because Pell himself knew of the precise dangers of which he
now complains. See Haw. Rev. Stat. § 486K-5.5 (providing that a hotel may be
liable for a failure to warn when, inter alia, “the hazardous condition is not known
to the guest or would not have been known to a reasonably prudent guest.”)
(emphasis added). In particular, the undisputed facts here show that Pell
personally observed the ocean for 10-15 minutes before entering, he personally
observed waves of 1-2 feet during this time, he personally observed those waves
breaking directly in front of him on the beach, and there is no evidence that
conditions were any different when he entered the ocean and commenced boogie
boarding. In this light, Pell was more than aware that, if he rode one to two feet
waves on a boogie board, those waves would break dangerously on the beach (a
risk that the Hotel’s Sign, once again, specifically identified). In short, legally
and factually, Tarshis does not control.
For these reasons, because Plaintiffs have failed to show any genuine dispute
of material fact on an essential element of their sole negligence claim in this case,
and the undisputed facts demonstrate that the Hotel has fulfilled its statutory duty

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to warn, the Court finds that the Kea Lani Defendants are entitled to summary
judgment.
CONCLUSION
In this case, it should not be forgotten that Plaintiffs seek to recover for a
serious injury Pell suffered due to dangerous shorebreak while boogie boarding in
our ocean waters. Plaintiffs seek such a recovery even though the only named
defendants in this action warned Pell about hazardous ocean conditions, including
dangerous shorebreak, Pell saw and read the sign containing the foregoing
warnings, and the Kea Lani Defendants expressly refused to rent Pell a boogie
board, the very activity in which he was engaged at the time of his injury. While
it is, of course, unfortunate what took place in the ocean after Pell was able to
borrow a boogie board from another beachgoer, pursuant to Section 486K-5.5, the
Kea Lani Defendants are not liable for what transpired in light of the evidence
presented in this case. As a result, the Motion for Summary Judgment, Dkt. No.
97, is GRANTED.
In light of the foregoing ruling, the presently pending pre-trial motions, to
wit, the Kea Lani Defendants’ Motion to Exclude Certain Opinions and Testimony
of Dr. Steven Businger, Dkt. No. 127, Motion to Bifurcate Trial, Dkt. No. 129, and

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Motion to Preclude Plaintiffs’ Claims for Economic Damages and to Limit
Plaintiffs’ Experts’ Testimonies, Dkt. No. 134, are DENIED AS MOOT.
Finally, the Court notes that, while the Kea Lani Defendants have moved for
and been granted summary judgment, the amended complaint lists numerous other
defendants, but only identifies them in the form of Doe or Roe. Although the
amended complaint was filed more than a year ago, it does not appear that the Doe
and Roe defendants have been identified or served in this case. Additionally,
based upon the Court’s review, the docket does not reflect any status regarding
these defendants. As a result, Plaintiffs are ORDERED TO SHOW CAUSE why
the Doe and Roe defendants in the amended complaint should not be dismissed for
failure to serve and/or prosecute. Plaintiffs shall respond to the order to show
cause forthwith and no later than seven (7) days after entry of this Order.
The Court will postpone the entry of final judgment in this case pending
receipt of Plaintiffs’ response to the order to show cause.
IT IS SO ORDERED.
DATED: August 27, 2019 at Honolulu, Hawai‘i.

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