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Victoria Yi, Next Friend of Song Meyong Hee, An v. Pleasant Travel Service

September 22, 2011


The opinion of the court was delivered by: Leslie E. Kobayashi United States District Judge


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. This matter came on for hearing on September 16, 2011. 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.


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.*fn1

Defendant removed the action to this Court on June 3, 2010.

Plaintiffs allege that on August 8, 2009, Song Myeong Hee ("Song"*fn2 ), 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 Kaanapali, Maui, Hawai'i. [Complaint at ¶¶ 2-5, 13.] All are residents and citizens of Seoul, Korea. [Id. at ¶ 2.] Plaintiffs allege that, on or about August 8, 2009, Song was in 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, consortium and friendship, and for serious mental distress on behalf of Song's husband, daughter, and son; and (3) punitive damages. [Id. at ¶¶ 21, 25, 27-29.]

I. 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 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 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. 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 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. [Id. at 19-21.]

B. 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 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. [Id. at 29.]

II. 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 comatose and unresponsive in a Seoul hospital. [Mem. in Opp. at 1.] In order to suffer brain damage due to hypoxia, Song would have to have been under water for five to ten minutes. [Id., Exh. B, 7/11/11 Report of Jerome Modell, M.D.] 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.*fn3 ]

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. [Id.]

A. Factual Issues

Plaintiffs attach the depositions of two of Defendant's employees: Rhapsody Lunes*fn4 and Kleyn Villa.*fn5 Lunes was the hotel's security manager in August 2009. 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).]

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 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.*fn6

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 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. [Id. at 8-9.]

C. 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 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 ...

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