Mullaney v. Hilton Hotels Corp.

634 F.Supp.2d 1130

Mark MULLANEY and Lynette Mullaney, Plaintiffs, v. HILTON HOTELS CORPORATION d/b/a/ Hilton Waikoloa Village, a Delaware corporation, and ATTCO, Incorporated, a Hawai'i corporation, Defendants.

Civ. No. 07-00313 ACK-LEK.

United States District Court, D. Hawai`i.

June 25, 2009.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

William H. Lawson, Honolulu, HI, for Plaintiffs.

David A. Gruebner, Jeffrey H.K. Sia, Ayabe Chong Nishimoto Sia & Nakamura, Lynn B.K. Costales, Henderson Gallagher & Kane, Honolulu, HI, for Defendants.

ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFFS' AND DEFENDANTS' MOTIONS FOR PARTIAL SUMMARY JUDGMENT

ALAN C. KAY, Senior District Judge.

PROCEDURAL HISTORY

On June 8, 2007, Plaintiffs, Mark Mullaney ("Mr. Mullaney") and Lynette Mullaney ("Mrs. Mullaney"), husband and wife, filed a complaint ("Complaint") against Defendants, Hilton Hotels Corporation d/b/a Hilton Waikoloa Village ("Hilton" or "Hil.") and ATTCO, Incorporated ("ATTCO" "ATT.").¹ The gist of this action is that, while attending an expo at a hotel, Mr. Mullaney was seriously injured when a large registration booth fell on him. The hotel was owned and operated by Hilton, and the booth was provided and assembled by ATTCO. Plaintiffs advance seven counts in the Complaint, specifically alleging claims of negligence (count I), strict products liability (count II), breach of warranty (count III), failure to take precautions and to warn (count IV), premises liability (count V), gross negligence (count VI), and punitive damages (count VII). Compl. ¶¶ 11-31. In addition, Mrs. Mullaney asserts claims of emotional distress and loss of consortium. Id. ¶ 36.

Presently before the Court are a total of six motions for partial summary judgment that were filed on March 11, 2009. The parties thereafter filed responses and replies pertaining to the motions. Two of the motions were filed by Defendants and the other four were filed by Plaintiffs.

First, Hilton filed a motion for summary judgment as to counts II, III, IV, VI, and VII ("Hil.'s Mot."), along with a memorandum in support ("Hil.'s Mem.") and a separate and concise statement of facts ("SCSF"). Plaintiffs filed a memorandum in opposition to the motion ("Pls.' Opp'n to Hil.'s Mot.") and a separate and concise statement of facts. Hilton filed a reply in support of its motion ("Hil.'s Reply") along with a separate and concise statement of facts.

Second, like Hilton, ATTCO filed a motion for summary judgment as to counts II, III, IV, VI, and VII ("ATT.'s Mot."), accompanied by a memorandum in support ("ATT.'s Mem.") and a separate and concise statement of facts. Plaintiffs filed a memorandum in opposition to the motion ("Pls.' Opp'n to ATT.'s Mot.")² along with a separate and concise statement of facts. ATTCO filed a reply to Plaintiffs' opposition ("ATT.'s Reply") accompanied by a separate and concise statement of facts.³

Third, Plaintiffs filed a motion for summary judgment against ATTCO with respect to counts I, II, and III ("Pls.' ATT. Mot."), as well as a memorandum in support ("Pls.' ATT. Mem.") and a separate and concise statement of facts. ATTCO filed a memorandum in opposition to the motion ("ATT.'s Opp'n to Pls.' ATT. Mot.") and a separate and concise statement of facts. Hilton filed a statement of no position as to the motion. Plaintiffs filed a reply memorandum in support of their motion ("Pls.' ATT. Reply").

Fourth, Plaintiffs filed a motion for summary judgment against Hilton regarding their failure to warn claim ("Pls.' Hil. Mot."), accompanied by a memorandum in support ("Pls.' Hil. Mem."). Plaintiffs thereafter filed a separate and concise statement of facts. Hilton filed an opposition ("Hil.'s Opp'n to Pls.' Hil. Mot.") and a separate and concise statement of facts. ATTCO filed a statement of no position as to the motion. Plaintiffs filed a reply memorandum in support of their motion ("Pls.' Hil. Reply").

Fifth, Plaintiffs filed a motion for summary judgment as to the defenses of assumption of risk, contributory negligence, and comparative negligence ("Pls.' Assum. & Neg. Mot."), along with a memorandum in support ("Pls.' Assum. & Neg. Mem."). Plaintiffs thereafter filed a separate and concise statement of facts. ATTCO filed a statement of no position as to the motion, and Hilton filed a statement of no opposition.

Sixth, Plaintiffs filed a motion to strike the defenses of failure to name an indispensable party, "wrong party," and lack of jurisdiction, as well as the blanket defenses asserted in Defendants' answers regarding all applicable affirmative defenses ("Pls.' Misc. Defense Mot."). Hil.'s Answer ("Ans.") ¶¶ 44, 46, 48-49; ATT.'s Ans. ¶¶ 26-28, 31, 34. Plaintiffs also requested a conclusive determination of certain facts that Defendants have admitted. Plaintiffs' motion was accompanied by a memorandum in support ("Pls.' Misc. Defense Mem."). They subsequently filed a separate and concise statement of facts.⁴ Hilton and ATTCO filed oppositions to the motion (respectively, "Hil.'s Opp'n to Pls.' Misc. Defense Mot." and "ATT.'s Opp'n to Pls.' Misc. Defense Mot.") and separate and concise statements of fact. Plaintiffs filed a reply in support of their motion ("Pls.' Misc. Defense Reply").

On June 22, 2009, the Court held a hearing on the parties' motions.

FACTUAL BACKGROUND⁵

On January 5, 2006, Mr. Mullaney was attending the Hawaii International Dairy Queen ("IDQ") expo at the Hilton Waikoloa Village, which was owned and operated by Hilton and located in the County of Hawai'i on the Big Island. Compl. ¶ 5; Hil.'s Ans. ¶ 4. At approximately 7:00 p.m., he walked to the IDQ expo administration booth ("Booth"), which was located outdoors at the grand staircase landing of the hotel. Compl. ¶ 7; ATT.'s Mot., Ex. B at 6 (Pls.' Resp. to Interrogs.); Dep. of Agnes Mui ("Ms. Mui"), senior events manager at the Hilton Waikoloa Village, at 11, attached as Ex. A to Hil.'s Mot. SCSF; Pls.' Assum. & Neg. Mot. SCSF ¶ 5.

The Booth was provided and assembled by ATTCO pursuant to a contract with IDQ. Compl. ¶ 5; ATT.'s Ans. ¶ 4; Hil.'s Ans. ¶ 4; ATT.'s Mot. SCSF ¶¶ 4, 8; ATT.'s Mot., Ex. D at 13 (ATT.'s Resp. to Interrogs.); Dep. of Ms. Mui 10, 45, attached as Ex. A to Hil.'s SCSF; Hil.'s Mot. SCSF, Ex. C (ATTCO's contract with IDQ). It consisted of five registration counter units, each approximately ninety-seven inches tall, seventy-nine inches wide, and twenty inches deep. Dep. of Daniel Anderson ("Mr. Anderson"), vice-president of sales at ATTCO, at 25-26, attached as Ex. B to Hil.'s Mot. SCSF; Dep. of Kiumars Siah ("Mr. Siah"), ATTCO's proffered expert in engineering, at 20-22, attached as Ex. 1 to Pls.' ATT. Mot.; Pls.' Assum. & Neg. Mot. SCSF ¶ 7. The five registration units were set up in a continuous configuration to form the Booth. Dep. of Mr. Anderson 25-26, attached as Ex. B to Hil.'s Mot. SCSF; Pls.' Assum. & Neg. Mot. SCSF ¶ 7. The Booth weighed approximately 725 pounds. Pls.' ATT. Mot. SCSF at 3.

While at the Booth, Mr. Mullaney picked up his registration materials and spoke with IDQ employees, Debbie Lorenzen ("Ms. Lorenzen") and Michael Ochs ("Mr. Ochs"). Compl. ¶ 7; ATT.'s Mot., Ex. B at 6 (Pls.' Resp. to Interrogs.). The area where the Booth was located was windy, but Mr. Mullaney did not see the Booth moving in any way. Pls.' Assum. & Neg. Mot. SCSF ¶ ¶ 9, 11. As he turned to walk away, a strong gust of wind blew the Booth over, causing it fall on him. Compl. ¶ 7; ATT.'s Mot., Ex. B at 6 (Pls.' Resp. to Interrogs.); ATT.'s Mot. SCSF ¶ 5; ATT.'s Mot., Ex. E at 2-3 (Report of Clyde F. Calhoun ("Mr. Calhoun"), Plaintiffs' proffered expert in engineering); Dep. of Mr. Calhoun 94-95, attached as Ex. F to ATT.'s Mot.; Pls.' Assum. & Neg. Mot. SCSF ¶ 12. Mr. Mullaney consequently sustained injuries. Compl. ¶ 7; Hil.'s Ans. ¶ 4.

LEGAL STANDARD

The purpose of summary judgment is to identify and dispose of factually unsupported claims and defenses. See Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). Summary judgment is therefore appropriate if the "pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). "A fact is `material' when, under the governing substantive law, it could affect the outcome of the case. A `genuine issue' of material fact arises if `the evidence is such that a reasonable jury could return a verdict for the nonmoving party.'" Thrifty Oil Co. v. Bank of Am. Nat'l Trust & Sav. Ass'n, 322 F.3d 1039, 1046 (9th Cir.2003) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)) (citation omitted).⁶ Conversely, where the evidence could not lead a rational trier of fact to find for the nonmoving party, no genuine issue exists for trial. See Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). "Only admissible evidence may be considered in deciding a motion for summary judgment." Miller v. Glenn Miller Prods., Inc., 454 F.3d 975, 988 (9th Cir.2006).

The moving party has the burden of persuading the court as to the absence of a genuine issue of material fact. Celotex, 477 U.S. at 323, 106 S.Ct. 2548; Miller, 454 F.3d at 987. The moving party may do so with affirmative evidence or by "`showing'—that is pointing out to the district court—that there is an absence of evidence to support the nonmoving party's case." Celotex, 477 U.S. at 325, 106 S.Ct. 2548.⁷ Once the moving party satisfies its burden, the nonmoving party cannot simply rest on the pleadings or argue that any disagreement or "metaphysical doubt" about a material issue of fact precludes summary judgment. See id. at 323, 106 S.Ct. 2548; Matsushita Elec., 475 U.S. at 586, 106 S.Ct. 1348; Cal. Arch. Bldg. Prods., Inc. v. Franciscan...