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Pell v. HMC Kea Lani, LP

United States District Court, D. Hawaii

August 27, 2019

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




         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.


         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.

         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 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 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.

         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 ...

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