The opinion of the court was delivered by: Leslie E. Kobayashi United States District Judge
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. Defendant filed its reply on October 27, 2011. 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.
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. [Complaint at ¶¶ 2-5, 13.] 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.]
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 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 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 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 ...