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Victoria Yi v. Pleasant Travel Service, Inc.

United States District Court, D. Hawai'i

November 28, 2012

Victoria YI, Next Friend of Song Meyong Hee, an Incapacitated adult, Heo Hyeob, Heo Eunsuk, and Heo Keun Seok, Plaintiffs,
PLEASANT TRAVEL SERVICE, INC., Royal Lahaina Resort, Hawaiian Hotels and Resorts, John Does 1-10, Jane Does 1-10, Doe Partnerships 1-10, Doe Corporations 1-10, Roe Non-Profit Corporations 1-10, Roe Governmental Entities 1-10, Defendants.

Cynthia K. Wong, Krueger, James Krueger, Lance A. Hevizy, James Krueger Attorney at Law, Wailuku, HI, Stuart M. Cowan, Kaneohe, HI, for Plaintiffs.

Michael Scott Hult, Randall Y.S. Chung, Matsui Chung & Ikehara, Honolulu, HI, for Defendants.


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

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16, 2012. Plaintiffs' Motion came on for hearing on September 26, 2012. Appearing on behalf of Defendant were Randall Chung, Esq., and Michael Scott Hult, Esq., and appearing on behalf of Plaintiffs was James Krueger, Esq.

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" [1]). The 9/22/11 Order set forth the following allegations from Plaintiffs' Complaint:

Plaintiffs allege that on August 8, 2009, Song, along with her husband, Heo Hyeob, daughter, Heo Eunsuk, and son, Heo Keun Seok, were guests at the Royal Lahaina Resort 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 of the two swimming pools on the 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 caused 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; 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 and 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.]

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.

I. Plaintiffs' Motion

Plaintiffs seek partial summary judgment " on the issues of the liability of the defendant hotel only and its causation of

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the damages" Plaintiffs allegedly suffered. [Mem. in Supp. of Plaintiffs' Motion at 1.]

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" [2]), at 2; Declaration of Shawn DeRosa (" DeRosa Decl." [3]), at 11-12.] They opine that, " [a] lifeguard at the pool, having been adequately trained, and exercising basic due diligence, would have prevented Song from suffering permanent brain damage, having been underwater for a period of some five to ten minutes." [Mem. in Supp. of Plaintiffs' Motion at 8 (citing DeRosa Decl. at 11-12).] According to Plaintiffs, a " passive drowner" like Song is one who does not struggle, and a lifeguard would have known how to respond to and treat such a drowning. [ Id. at 9.]

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').]

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With respect to causation, Plaintiffs argue that a competent lifeguard, exercising due diligence, would have seen Song and brought her to the surface before she would have suffered permanent brain damage. [ Id. at 22.] They cite Haft v. Lone Palm Hotel, 3 Cal.3d 756, 91 Cal.Rptr. 745, 478 P.2d 465 (1970), arguing that " in the absence of proof that defendants' not providing a lifeguard was not a proximate cause of the deaths claimed about, defendants' causation would be established as a matter of ...

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