United States District Court, D. Hawaii
ORDER (1) GRANTING MOTION FOR SUMMARY JUDGMENT, AND
(2) DENYING AS MOOT VARIOUS PRE-TRIAL MOTIONS
DERRICK K. WATSON UNITED STATES DISTRICT JUDGE.
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
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.
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.
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.
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.
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.
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.
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.
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 ...