LESLIE E. KOBAYASHI, District Judge.
Before the Court are: (1) Plaintiffs Victoria Yi, Next Friend of Song Myeong Hee, an incapacitated adult, Heo Hyeob, Heo Eunsuk, and Heo Keun Seok's (collectively "Plaintiffs") Motion for Partial Summary Judgment ("Plaintiffs' Motion"), filed on April 19, 2012; and (2) Defendant Pleasant Travel Service, Inc., doing business as Royal Lahaina Resort and Hawaiian Hotels & Resorts' ("Defendant") Motion for Summary Judgment ("Defendant's Motion"), filed on July 11, 2012. Defendant filed its memorandum in opposition to Plaintiffs' Motion on July 20, 2012, and a supplemental declaration on August 20, 2012. Plaintiffs filed their reply on August
Plaintiffs filed their memorandum in opposition to Defendant's Motion on October 5, 2012, and Defendant filed its reply on October 15, 2012. Pursuant to Rule LR7.2(d) of the Local Rules of Practice of the United States District Court for the District of Hawai'i ("Local Rules"), the Court finds Defendant's Motion suitable for disposition without a hearing.
After careful consideration of the motions, supporting and opposing memoranda, and the arguments of counsel, the Court HEREBY DENIES both motions.
This cases arises from the near drowning of Plaintiff Song Myeong Hee ("Song") at Defendant's hotel pool. The Court previously granted in part and denied in part Defendant's motion for summary judgment in a September 22, 2011 Order ("9/22/11 Order"
2011 WL 4443625 at *1 (footnote omitted).
The Court previously denied Defendant's motion for summary judgment as to its liability for negligence. In the current motions, the parties again seek summary judgment as to Defendant's liability for negligence.
Plaintiffs seek partial summary judgment "on the issues of the liability of the defendant hotel only and its causation of
Plaintiffs argue that to "suffer irreversible brain damage such as Mrs. Song suffered, she had to have been underwater for a period of five to ten minutes." [Id. at 8; Plaintiffs' Separate and Concise Statement of Facts ("Pltfs.' SCOF"), 7/11/11 Report of Jerome Modell, M.D. ("Modell Report"
Plaintiffs argue that Defendant owed its hotel guests a duty to not expose them to an unreasonable risk of harm. "The unwarned about, unreasonable risk of harm, to which defendant exposed its pool-using guests, including Song, was the unobservable possibility of not being rescued should the need for such arise, or later resuscitate." [Id. at 11.] They acknowledge that "the possibility of drowning in a pool is a foreseeable occurrence." [Id. at 12.] In lieu of placing a lifeguard at the pool, Defendant posted a sign stating "No Lifeguard on Duty," which Plaintiffs argue "demonstrated defendant's knowledge that its guest could be foreseeably exposed to serious harm at its pool, but it did nothing to preclude that harm from happening." [Id. (emphasis Plaintiffs').]
Plaintiffs cite the Restatement (Second) of Torts § 314, urging that a hotel has a special relationship with its guests and a duty to take reasonable action to protect them against unreasonable risk of harm. [Id. at 13.] Plaintiffs also repeat their earlier arguments relating to landowners' duties with respect to guests swimming at public pools and resort-fronting beaches. [Id. at 15-16 (citing Carreira v. Territory, 40 Haw. 513 (1954); Tarshis v. Lahaina Investment Corp., 480 F.2d 1019 (9th Cir. 1973)).]
Plaintiffs again make the argument that the Defendant hotel's location on the Kaanapali coast is comparable to that of hotels on the Las Vegas "strip," and that such Las Vegas hotels all have guarded pools. [Id. at 14.] They also submit evidence of guarded resort pools on Oahu. [Id.]
They further argue that policy considerations justify the imposition of a duty to post lifeguards at hotel pools. Plaintiffs assert that the public policy behind providing lifeguards at the municipal Lahaina Aquatic Center near the Defendant hotel applies with equal force to the hotel. Plaintiffs state that, "[w]hether the pool is located at a large resort hotel, or a municipal community center, is an irrelevance. The possibility of drowning affects all pool users, hotel or municipal." [Id. at 20.] They further compare this policy to the "policy supporting the initial enactment of strict product liability law". [Id. at 19.] Plaintiffs ask, "who better than the hotel to bear the risk or responsibility for a guest's injury caused by a known defect [dangerous condition] on the hotel's premises, which hazard the hotel had the opportunity to have eliminated?" [Id. (alteration Plaintiffs').]
"Defendant agrees that there are no genuine issues of material fact regarding the issue of duty." [Mem. in Opp. to Plaintiffs' Motion at 1.] It argues, however, that Plaintiffs are not entitled to summary judgment. Rather, Defendant argues that it is entitled to summary judgment on its own motion, and pursuant to Local Rule 56.1(i). It argues that there is no basis for the imposition of any duty of the part of Defendant, and therefore, summary judgment should be entered in its favor. [Id. at 2-4.]
Defendant first notes that Plaintiffs define the unreasonable risk of harm here as "the unobservable possibility of not being rescued should the need for such arise," but that Plaintiffs do not cite any legal authority providing that this is an unreasonable risk of harm. [Id. at 6 (citing Mem. in Supp. of Plaintiffs' Motion at 12).] It agrees that "a hotel has a duty to its guests to take reasonable action to protect them from unreasonable risk of harm." [Id. at 7.] It argues that there is no evidence, however, that a "reasonable person would have believed that there was a lifeguard present at the time of the subject incident." [Id. at 6.]
Defendant argues that Plaintiffs' introduction of evidence regarding lifeguards at Las Vegas and Oahu hotel pools is not relevant to its duty in this specific instance. It does note that, "if one were to look to other hotels in Hawaii with respect to the provision of lifeguards, there is only one private hotel that may post lifeguards — Aulani." [Id. at 8.] Defendant's state that their expert in aquatic design, engineering, and safety, William Rowley, Ph.D., inspected twenty-eight hotel properties on Maui and sixteen hotels on Oahu, and that none of them have lifeguards posted. As to the Las Vegas hotels, those were required to have lifeguards under state law, whereas Hawai'i has no similar requirement. [Id. at 8; 3/21/12 Suppl. Report of William Rowley ("Rowley Report"
Defendant also disputes Plaintiffs' argument that there should be no distinction between municipal pools and hotel pools with respect to the posting of lifeguards. It argues that a more appropriate basis for comparison is to look at comparable hotels within the state. It asserts that, while there are regulations applicable to the pool at issue in this case, none of them require the posting of a lifeguard. [Id. at 9 (citing Rowley Report at 81; Haw. Admin. R. Title 11, Chapter 10 "Public Swimming Pools").]
With respect to Plaintiffs' reliance on Carreira, Defendant asserts that the case is not relevant on its facts because, in that incident, the Territory provided a lifeguard, there were 500 swimmers present in the Natatorium's salt-water ocean swimming pool, and the lifeguard on duty was
Defendant attempts to distinguish the Tarshis case relied upon by Plaintiffs, arguing that the hotel's duty to warn of dangerous ocean conditions turned on the "finding that the surging surf was `unapparent.'" [Id. at 10 (quoting Tarshis v. Lahaina Investment Corp., 480 F.2d 1019 (9th Cir.1973)).] It argues that the reasoning of Tarshis, which was "protection to guests regarding latent conditions, does not apply to this case[,]" where the potential dangers presented by the ocean are not relevant to the danger of drowning in a small artificial swimming pool. [Id.]
With respect to Plaintiffs' invocation of policy considerations, Defendant contends that the state legislature has already considered the issue, therefore, such considerations are not relevant to this incident. It emphasizes that the Department of Health's administrative rules relating to public swimming pools do not require public pools to have lifeguards. In contrast, it notes that a certified lifeguard is required for certain child care centers and school child care facilities. [Id. at 11 (citing Haw. Admin. R. §§ 17-892.1.39, 17-895-40, and 11-896-36).]
Defendant next states that, because it is under no duty to provide a lifeguard, it is not necessary for the Court to reach Plaintiffs' arguments regarding causation. It nevertheless argues that Plaintiffs are not entitled to summary judgment on this basis. Defendant states that Mr. DeRosa, Plaintiffs' expert, is not qualified to render a medical opinion regarding what medical condition would have resulted for Song if a lifeguard had been present; that is, Plaintiffs' argument that a properly trained lifeguard would have spotted Song in time to prevent brain damage is unsupported and speculative. [Id. at 14-15.]
Defendant points to the conclusions of its expert, Dr. Rowley, that its swimming pool was operated in compliance with all applicable state regulations and Maui County law. Dr. Rowley determined that the signage at the pool exceeded applicable requirements, and is used throughout Maui and Oahu. The subject swimming pool has two stepped entries, and the "No Lifeguard On Duty" sign is visible from both, and could be read from anywhere in the swimming pool area. [Id. at 21 (citing Rowley Report at 14, 20-28).]
Defendant emphasizes that it was under no duty to post a lifeguard; there is no statutory or common law basis in this jurisdiction requiring a hotel to post a lifeguard at its swimming pool; and there is no authority holding that the presence of a swimming pool on the premises presents an unreasonable risk of harm to guests. According to Defendant, Plaintiffs are asking the Court to impose a new legal duty to provide lifeguards at hotel swimming pools. [Id. at 20.]
In their reply, Plaintiffs assert that "Defendant owed Song a legal duty that it violated by exposing her to an unreasonable risk of harm, which risk could easily have been avoided by providing a lifeguard at the pool, or closing it." [Plaintiffs' Reply at 3.] They stress that the "magnitude of the foreseeable harm so greatly illustrates why the failure to provide rescue opportunity is so unreasonable." [Id. at 4 (emphasis Plaintiffs').]
Plaintiffs fault Defendant for not providing "an affidavit of appropriate hotel leadership and management about why it never provided a lifeguard, what considerations it gave to consciously not doing so, whether it ever sought a legal opinion that it didn't need to do so, or any other justifying
With respect to state law requiring hotels in Nevada to post lifeguards, Plaintiffs state that "the fact that the Nevada hotels [must] have guards only demonstrates a feasible, proper and sound, protective water safety policy." [Id. at 11 (emphasis Plaintiffs').] They argue that aquatic safety "does not necessarily devolve from statutory regulation." [Id. at 12.] Plaintiffs insist that, although there is no Hawai'i law requiring lifeguards, that does not determine the Court's formulation of the duty a hotel owes to its guests. [Id.]
Defendant moves for summary judgment on the grounds that Plaintiffs cannot meet their burden of proof, and that it did not owe Song any duty with respect to the subject incident. [Mem. in Supp. of Defendant's Motion at 1-2.] Defendant generally repeats the same arguments made in opposition to Plaintiffs' Motion. Defendant insists that whether it owed a duty to provide a lifeguard at its swimming pool is a question of law for the Court to decide, not the jury. [Id. at 7.]
In their memorandum in opposition, Plaintiffs assert that Defendant's Motion is repetitive of its previous motion, which the Court denied in the 9/22/11 Order, and is subject to the "law of the case" doctrine. [Mem. in Opp. to Defendant's Motion at 2-4.]
With respect to Defendant's argument that it owed no duty under the circumstances presented, Plaintiffs assert that: (1) Defendant had a duty to avoid subjecting its guests to an unreasonable risk of harm; (2) drowning is an unreasonable risk of harm; (3) providing a lifeguard would have avoided that unreasonable risk of harm; and (4) Defendant has not provided any information indicating why it never provided a lifeguard. [Id. at 12.]
In its reply, Defendant contends that the bases for its current motion are distinct from its earlier motion, in that the current motion relies on Plaintiffs' failure to meet their burden with respect to the element of duty. [Defendant's Reply at 1-4.] The parties continue to dispute the admissibility of the declarations and reports of their experts, Mr. DeRosa and Dr. Rowley.
This Court previously denied Defendant's motion for summary judgment as to its liability for negligence, in part, as follows:
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.
2011 WL 4443625 at *11-15 (footnotes omitted). The Court is again guided by these general principles of negligence law in Hawai'i.
The Court's previous discussion in the 9/22/2011 Order regarding a hotel's duty toward its guests applies with equal force to the instant motions. The Court again re-asserts its previous holding that whether Defendant had an affirmative obligation to post a lifeguard at the Barefoot Bar Pool, and whether the failure to do so constitutes an unreasonable risk of harm, remain questions of fact on the current record.
To the extent that Plaintiffs insist that a lifeguard was required as a matter of law, the Court finds that Plaintiffs are not entitled to summary judgment. As previously explained, there is no statute, regulation, or case law mandating lifeguards at all hotel pools under Hawai'i law. The Court declines to create such a duty as a matter of law on the current record. Moreover, in jurisdictions where lifeguards are not mandated by statute, it appears that courts do not impose an affirmative duty on innkeepers to provide lifeguards for their guests. The Court notes, however, that none of the cases discussed below involved a hotel pool like the instant case.
For example, under Florida law:
Adika v. Beekman Towers, Inc., 633 So.2d 1170, 1170-71 (Fla.Dist.Ct.App.1994).
In a North Carolina case that involved a private homeowners' association pool, the district court held that the "absence of a specific safety precaution cannot amount to negligence in a pool drowning case under North Carolina law where no regulation required that precaution." Lampkin v. Covington at Providence Homeowners Ass'n, Inc., No. 3:10-cv-271-RJC-DCK, 2011 WL 5509034, at *5 (W.D.N.C. Nov. 10, 2011). Lampkin notes that North Carolina law has specific safety regulations for public swimming pools, but they do not require lifeguards. Id. at *3. It held that the defendant homeowners' association and property management company's "failure to provide lifeguards at their pool cannot amount to negligence where [the North Carolina Department of Environment and Natural Resources'] safety regulations did not require lifeguards and [defendants] posted warnings and provided other safety equipment, as required by the regulations." Id. at *5. Lampkin concluded that, under North Carolina state law, the defendants had no duty "to provide a lifeguard in the first place." Id.
In an older Michigan case, which appeared to address premises liability rather than negligence, the court "indicated that whether the owners of a trailer park had a duty to provide a lifeguard or lifesaving equipment at a small lake on their property should be a question for the jury, and it discussed the concept of negligence." Wheeler v. Cent. Mich. Inns, Inc., 292 Mich.App. 300, 807 N.W.2d 909, 913 (2011) (discussing Kreiner v. Yezdbick, 22 Mich.App. 581, 587, 177 N.W.2d 629 (1970)).
The Court cannot say that Defendant was per se negligent for failing to provide a lifeguard at its pool as a matter of law. Nor can it say that Plaintiffs have not raised triable questions of negligence entitling Defendant to summary judgment. The Court agrees with the decisions discussed above indicating that, whether such an obligation existed under the circumstances presented, and whether it was breached are questions for the jury. To the extent the parties argue that the Court must decide specific issues of the scope Defendant's duty to prevent unreasonable risks of harm on summary judgment, the Court again finds that whether the parties' conduct was reasonable under the circumstances is for the jury to decide. See Knodle, 69 Haw. at 387, 742 P.2d at 384.
The Court HEREBY DENIES both Plaintiffs' Motion and Defendant's Motion and finds that neither party is entitled to summary judgment on the current record. To the extent the Court has not specifically addressed the many procedural arguments made by the parties in their briefing, the motions are DENIED in all other respects.
On the basis of the foregoing, Plaintiff's Motion for Partial Summary Judgment,
IT IS SO ORDERED.
