Jeon v. 445 Seaside, Inc.

NAM SOON JEON, individually and as Estate administratorof her deceased husband, Jun Sung Kwak, Plaintiff,

v. 445 SEASIDE, INC., and AQUA HOTELSAND RESORTS US/CANADA, Defendants.

CIVIL NO. 11-00015 SOM/BMK

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF HAWAII

DATED: January 31, 2013

ORDER GRANTING MOTION FOR

SUMMARY JUDGMENT WITH RESPECT

TO PUNITIVE DAMAGE CLAIMS

ASSERTED BY PLAINTIFF IN HER

INDIVIDUAL CAPACITY (ECF NO.

345); ORDER DENYING MOTIONS

CONCERNING NEGLIGENCE,

WRONGFUL DEATH, PUNITIVE

DAMAGES, AND PLAINTIFF'S

REMAINING CLAIMS (ECF NOS.

340-46); ORDER DENYING MOTION

BY THE ASSOCIATION OF

APARTMENT OWNERS OF ISLAND

COLONY CONCERNING THE CROSS-

CLAIM FILED BY 445 SEASIDE

(ECF NO. 351)

ORDER GRANTING MOTION FOR SUMMARY JUDGMENT WITH RESPECT TO

PUNITIVE DAMAGE CLAIMS ASSERTED BY PLAINTIFF IN HER INDIVIDUAL

CAPACITY (ECF NO. 345); ORDER DENYING MOTIONS CONCERNING

NEGLIGENCE, WRONGFUL DEATH, PUNITIVE DAMAGES, AND PLAINTIFF'S

REMAINING CLAIMS (ECF NOS. 340-46); ORDER DENYING MOTION BY THE

ASSOCIATION OF APARTMENT OWNERS OF ISLAND COLONY CONCERNING THE

CROSS-CLAIM FILED BY 445 SEASIDE (ECF NO. 351)

I. INTRODUCTION.

On January 7, 2011, "Plaintiffs Jun Sung Kwak decedent, by his estate representative and wife, Nam Soon Jeon, Su-Min Kwak, Min-Seung Kwak, and Nam Soon Jeon" filed suit against Defendants Island Colony Hotel, Island Colony Partners, 445 Seaside, Inc., and Aqua Hotels and Resorts US/Canada. The claims asserted in the original Complaint arose out of Kwak's death by drowning at the Island Colony Hotel.

Defendant 445 Seaside has filed multiple motions for summary judgment.¹ The court grants the motion for summary judgment with respect to the punitive damage claims asserted by Jeon in her individual capacity. See ECF No. 345. However, the court denies the motions concerning negligence, wrongful death, and Jeon's remaining claims, including punitive damage claims asserted on behalf of Kwak's estate. See ECF Nos. 340-46. The court also denies the motion by the Association of Apartment Owners of Island Colony ("AOAO") concerning the cross-claim filed by 445 Seaside, ECF No. 351.

II. PROCEDURAL HISTORY.

On March 21, 2011, the Clerk of Court entered default against Defendant Island Colony Hotel. See ECF No. 27. The Third Amended Complaint filed in this case, however, clarifies that Island Colony Hotel is not, and never has been, a legal entity. See Third Amended Complaint ¶ 9, ECF No. 332. Accordingly, no claim is asserted against Island Colony Hotel in the Third Amended Complaint. See id.

On December 5 and 6, 2011, multiple motions for partial summary judgment were filed by Island Colony Partners and 445Seaside, Inc., regarding the original Complaint. See ECF Nos. 102-118. Joinders were filed regarding these motions by Aqua Hotels and Resorts.

On May 23, 2012, Jeon, individually and in her capacity as the administrator for Kwak's estate, filed an Amended Complaint against Island Colony Partners, 445 Seaside, Inc., and Aqua Hotels and Resorts US/Canada. See ECF No. 279.

On June 6, 2012, Island Colony Partners and 445 Seaside answered the Amended Complaint and filed a cross-claim against the AOAO. See ECF No. 303. They asserted that the AOAO was responsible for maintaining, repairing, and replacing the common elements at the Island Colony Hotel, including the swimming pool. The cross-claim asserts that, if Jeon suffered any injury, that injury was caused by the AOAO's negligence and breaches of its obligations to maintain the common elements. The cross-claim seeks contribution, indemnification, subrogation, and reimbursement for any damages recovered from Island Colony Partners or 445 Seaside. See id.

In preparing to address the motions for summary judgment, which the court was treating as applicable to the Amended Complaint, the court became concerned about whether it had diversity jurisdiction. The court raised the issue with the parties. See ECF Nos. 295-97. On July 3, 2012, Island Colony Partners and 445 Seaside filed a motion to dismiss the case basedon a lack of subject matter jurisdiction. See ECF No. 298. On August 31, 2012, that motion was granted. Plaintiff was given leave to file a Second Amended Compliant that dropped the party destroying diversity, Island Colony Partners. See ECF No. 330. The court terminated the previously filed motions and joinders in those motions and gave the parties leave to reinstate the motions if Jeon amended her pleading. Id.

On September 5, 2012, Jeon filed a document she called her "Third Amended Complaint." See ECF No. 332. The Third Amended Complaint alleges that Defendants were responsible for Kwak's death and asserts four claims: negligent maintenance of pool facility (Count 1); negligent security (Count 2); negligent failure to warn (Count 3); and wrongful death (Count 4). See ECF No. 1 (Jan. 7, 2011).

On September 17, 2012, 445 Seaside reinstated some of its previously filed motions. See ECF Nos. 340-46. Those reinstated motions for partial summary judgment, along with the AOAO's motion to dismiss 445 Seaside's cross-claim, are the subject of the present order. To the extent Aqua Hotels and Resorts previously joined in 445 Seaside's motions, see ECF Nos. 128-29, 130-32, and 136-37, the court deems those joinders to apply to the motions filed by 445 Seaside that are now before this court. Except where the court clearly intends to refer only to 445 Seaside, references in this order to 445 Seaside areintended to apply also to Aqua Hotels and Resorts, which acknowledged at the hearing on these motions that 445 Seaside's arguments applied to Aqua Hotels and Resorts.

III. FACTUAL BACKGROUND.

There are five Defendants that have been involved in this case: (1) Island Colony Hotel, (2) Aqua Hotels and Resorts, (3) 445 Seaside (4) Island Colony Partners, (5) and the AOAO.

Island Colony Hotel appears to be the name of a hotel managed by Aqua Hotels and Resorts. See Defendant Aqua Hotels and Resorts, LLC's Answer ¶ 5, ECF No. 23; Third Amended Complaint ¶ 9-10. Default was entered against Island Colony Hotel on March 21, 2011. See ECF No. 27. However, Island Colony Hotel does not actually exist as a legal entity. See Third Amended Complaint, ECF No. 332.

Island Colony Partners is a limited partnership formed to facilitate the use and/or rental of condominium units at the Island Colony Hotel. See Deposition of William Tanaka, Jr. at 7 (Oct. 25, 2011), ECF No. 115-5, Dec. 6, 2011. Owners who have chosen to be a part of the hotel rental program are deemed limited partners in Island Colony Partners. Id. at 6. To avoid defeating diversity, Jeon does not include in the Third Amended Complaint any claim against Island Colony Partners. See ECF No. 332.

The sole general partner of Island Colony Partners is 445 Seaside. See Deposition of William Tanaka, Jr. at 6 (Oct. 25, 2011), ECF No. 115-5, Dec. 6, 2011.

The AOAO is an organization made up of all owners of the individual condominium units at the Island Colony, including the units participating in the hotel rental program. The AOAO's restated declaration indicates that it is responsible for matters such as:

b. Keeping[ing] all common elements in a strictly clean, orderly and sanitary condition, and observ[ing] and perform[ing] all laws, ordinances, rules and regulations . . . applicable to the common elements or the use thereof.

c. Well and substantially repair[ing], maintain[ing], amend[ing], and keep[ing] all common elements with all necessary reparations and amendments whatsoever in good order and condition except as otherwise provided herein.

See Island Colony Restated Declaration of Condominium Property Regime ¶ 14, ECF No. 103-3. Exhibit B to the declaration notes that the term "common elements" includes the swimming pool. See ECF No. 103-3 ¶ d, PageID No. 649. The declaration is recorded as Bureau of Conveyance Document No. 96-057032 and filed as Land Court Document No. 2304255. See ECF No. 103-3.

The AOAO's restated bylaws indicate that the Board of Directors of the AOAO is responsible for all maintenance, repairs, and replacement of the common elements. See RestatedBylaws of the Association of Apartment Owners of Island Colony, Art. V, § 2, ECF No. 103-4. The bylaws further state that only the Board of Directors of the AOAO may make additions, alterations, repairs, or improvements to the common areas. Id. Art. V, § 3. Article I, section 1 of the bylaws defines "common elements" as "those elements designated in the Declaration." The bylaws were recorded in the Bureau of Conveyances as Document No. 96-057033 and filed with the Land Court as Document No. 2304256. Accordingly, the condominium documents indicate that the swimming pool in issue is exclusively maintained by the AOAO. See Tanaka Depo. at 33-34. With respect to safety at the swimming pool, the AOAO did not distinguish between hotel guests and owner occupants. See Eastman Depo. at 41, ECF No. 109-8.

The AOAO also provided security for the hotel. See Tanaka Depo. at 34.

There is no dispute that Kwak was staying at the Island Colony Hotel. It is undisputed that, on January 13, 2009, Kwak went swimming in the hotel pool. According to a security guard, Kwak may have had a heart attack and drowned in the hotel's pool. See Deposition of Robert Bird (Oct. 26, 2011), ECF No. 160-30, Jan. 13, 2012.

The Island Colony Hotel Fact Sheet indicates that the hotel has 740 rooms, with 175 "managed rooms." See ECF No. 160-3. The fact sheet notes that the hotel's facilities include anOlympic-size swimming pool. Id. There were rules for the swimming pool, but it is unclear who was responsible for drafting, communicating, or enforcing those rules. See Guest Information Book, ECF No. 111-10 at 6 (noting the location of pool, pool hours, and pool rules). There is no dispute that, at all times relevant to this lawsuit, a sign was posted near the pool gate stating, "WARNING NO LIFE GUARD ON DUTY." See ECF No. 160-5. According to 445 Seaside, this sign was intended to prevent trespasses. See Deposition of Patricia...