Pierre v. Hilton Rose Hall Resort & Spa, Hilton Resorts Corp., 14 Civ. 3790 (VMS)

BRUNO PIERRE, Plaintiff, v. HILTON ROSE HALL RESORT & SPA, HILTON RESORTS CORPORATION,ROSE HALL ASSOCIATES, LLCand ROSE HALL OPERATING ASSOCIATES, LLC, Defendants.

14 Civ. 3790 (VMS)¹

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK

September 12, 2016

MEMORANDUM AND ORDER

VERA M. SCANLON, United States Magistrate Judge:

Before the Court is the motion of Defendants Hilton Rose Hall Resort & Spa; Hilton Resorts Corporation; Rose Hall Associates, LLC; and Rose Hall Operating Associates, LLC (collectively, "Defendants") to dismiss Plaintiff Bruno Pierre's ("Plaintiff") Amended Complaint pursuant to Federal Rule of Civil Procedure ("Fed. R. Civ. P.") 56. In this diversity action, Plaintiff seeks damages for personal injuries that he allegedly sustained on August 9, 2013, while vacationing at a hotel in Jamaica that, at the time, was owned and operated by Defendants. See generally Amended Complaint, ECF No. 24-1. For the reasons stated herein, Defendants' motion for summary judgment is granted in part and denied in part.

I. FACTUAL BACKGROUND²

At all relevant times to the within action, Defendants owned and operated the Rose Hall Resort (the "Resort") in Montego Bay, Jamaica. See Defs' 56.1 ¶ 1; Pl's 56.1 ¶ 2. On or about August 9, 2013, Plaintiff was a guest at the Resort while vacationing with his family when he decided to ride the waterslide at the Resort's pool. See Defs' 56.1 ¶ 1; Pl's 56.1 ¶¶ 3-4. There was one Resort staff member stationed at the top of the slide, but there were no staff members positioned at the bottom of the slide or in the pool itself. See Pl's 56.1 ¶¶ 6-7. Plaintiff did not receive any directions or instructions from the staff member stationed at the top of the slide, nor did he observe any warning signs. See Pl's 56.1 ¶ 7. Plaintiff rode the waterslide and was injured when his foot hit the bottom of the pool after he entered the water from the waterslide. See Defs' 56.1 ¶ 5; Pl's 56.1 ¶¶ 3-4. According to Plaintiff, had he seen any warning signs, he "probably" would not have gone down the waterslide. See Pl's 56.1 ¶ 11.

II. RELEVANT PROCEDURAL HISTORY

Plaintiff's Amended Complaint mentions various theories of liability—i.e., the waterslide was in a defective/dangerous condition; the water level was at an unreasonable level; Defendants failed to properly supervise the pool, provide warning signs and/or barrier, or remove a dangerous condition—which are all alleged in the alternative. See Amended Complaint, ECF No. 24-1 ¶ 18.

Plaintiff's Fed. R. Civ. P. 26(a) disclosures, which were served approximately one month after the filing of the Amended Complaint, contain a section entitled, "Theory of Liability." Declaration of Nicholas Kauffman ("Kauffman Decl."), ECF No. 65-2 ¶ 5, Ex. C. This section states as follows:

Defendants were negligent in the design, construction, operation, and supervision of the slide the Plaintiff sustained injuries upon, waterslide [sic], in its main pool area in that the water levels from the slide terminus outward to 6 feet in front of the slide terminus was not at a sufficient depth to prevent the Plaintiff's injuries. Failure to design the slide by the terminus to have a maximum angle of the slide runway at the exit between zero degrees and eleven degrees measured downward from horizontal and the failure of the Defendants to comply with the standards that conform the Consumer Product Safety Act. The Defendants were negligent in failing to maintain the water depth by the slide terminus at the maximum water level in that area, although said depth was still below standards established by the Consumer Product Safety Act[.] [T]he Defendants have failed to properly warn Plaintiff that the drop area for the slide was below standards established for the safety of the swimming pool designs and operation. Therefore, the force obtained from riding the slide was excessive and consequently dangerous for entering the water at depth of less than five (5) feet and as a result[,] injuries may occur to the lower extremities, such as what happened to the Plaintiff.

See id.

After the close of discovery, Defendants sought to preclude the testimony of Plaintiff's proposed liability expert, Matthew Diamond, under Federal Rule of Evidence 702 and Daubert v.Merrell Dow Pharms., Inc., 509 U.S. 579 (1993). See Defendants' Daubert Motion, ECF Nos. 51, 53. Mr. Diamond intended to "opine that the depth of the pool present[ed] a danger to its users." See Plaintiff's Daubert Opposition, ECF No. 52, p. 1.

Following the filing of the fully briefed motion, oral argument was held, during which the Court orally granted Defendants' motion to exclude the testimony of Mr. Diamond, with a written decision to follow. See Transcript of 3/18/2016 Conference ("3/18/2016 Tr."), ECF No. 57, 16:19-21.³ Questioning the procedural posture of the case moving forward, the Court stated the following:

So then the question is[,] how is this case going forward without the expert[?] This is the issue that raises concern for me[,] which is that when there's a case about a design defect[,] which is[,] I believe[,] what the theory that plaintiff is offering here[,] in that the pool wasn't deep enough given the slide.

3/18/2016 Tr., ECF No. 57, p. 21:22 - 22:2. Plaintiff's counsel did not directly respond to the Court's observation that Plaintiff had proceeded only on a theory of defective design via his expert.

Similarly, the Court's subsequent written decision on Defendants' Daubert motion reviewed the expert report, which only discussed a defective design theory:

Based upon Mr. Diamond's report, which asserts that "the water [wa]s too shallow," and Plaintiff's opposition to Defendants' Daubert motion, which asserts that Mr. Diamond would "opine that the depth of the pool present[ed] a danger to its users," Plaintiff now proceeds on the theory that the subject pool and/or waterslide was defectively designed.

See 3/28/2016 Order ("Daubert Decision"), ECF No. 56, p. 7 (internal citations omitted) (alterations in the original).⁴

III. STANDARD OF REVIEW

Summary judgment is proper only when, construing the evidence in the light most favorable to the non-movant, "there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a); see Kwong v. Bloomberg, 723 F.3d 160, 164-65 (2d Cir. 2013); Redd v. N.Y. Div. of Parole, 678 F.3d 166, 174 (2d Cir. 2012). The role of the court is not "to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial." Cioffi v. Averill Park Cent. Sch. Dist. Bd. of Educ., 444 F.3d 158, 162 (2d Cir. 2006) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986)). The "mere existence of a scintilla of evidence" is not enough to defeat summary judgment; "there must be evidence on which the jury could reasonably find for the [non-moving party]." Jeffreys v. City of New York, 426 F.3d 549, 554 (2d Cir. 2005) (internal quotations omitted); see Anderson, 477 U.S. at 252. The court's function is to decide "whether, after resolving all ambiguities and drawing all inferences in favor of the non-moving party, a rational juror could find in favor of that party." Pinto v. Allstate Ins. Co., 221 F.3d 394, 398 (2d Cir. 2000). The moving party bears the initial burden of demonstrating that there is no genuine issue of material fact to be decided with respect to any essential element of the claim. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 n.4 (1986).

IV. DISCUSSION

Neither the Amended Complaint nor Plaintiff's opposition papers is entirely clear but, as explained below, it appears that Plaintiff now seeks to assert two additional theories of liability: a products liability claim based on the failure-to-warn and negligence.⁵

1. Products Liability

"New York law⁶ provides four theories upon which a claim of products liability may be founded: (1) express warranty; (2) implied warranty; (3) negligence; and (4) strict liability." Hilaire v. DeWalt Indus. Tool Co., 54 F. Supp. 3d 223, 252 (E.D.N.Y. 2015) (citing Voss v. Black & Decker Mfg. Co., 450 N.E.2d 204, 207 (1983). Although Plaintiff proceeds on a negligence theory only, see Amended Complaint, ECF No. 24-1 ¶ 18, "[i]n order to make out a prima facie case on any of these four theories, the plaintiff must show that the product at issue was defective, and that the defectively designed product was the actual and proximate cause of the plaintiff's injury." Id. (citing Voss, 450 N.E.2d at 208-09); see 89 N.Y. Jur. 2d Products Liability § 2.

"There are three types of defects recognized under New York law: (1) design defects; (2) manufacturing defects; and (3) defective or inadequate warnings." Voss, 450 N.E.2d at 207; see McCarthy v. Olin Corp., 119 F.3d 148, 154-55 (2d Cir. 1997). Here, Plaintiff asserts a products liability claim based on two possible theories: design defect and failure-to-warn. The Court will address each in turn.

i. Defective Design

Plaintiff does not specifically so state, but his opposition papers suggest, that Plaintiff believes both the waterslide and pool were defectively designed. See Plaintiff's Opposition, ECF No. 65-14, p. 6. "Under New York law, a plaintiff asserting a claim for defective design must show that: (1) the product, as designed, posed a substantial likelihood of harm; (2) it was feasible to design the product in a safer manner; and (3) the defective design was a substantial factor in causing the plaintiff's injury." Valente v. Textron, Inc., 931 F. Supp. 2d 409, 437 (E.D.N.Y. 2013) (quoting Rupolo v. Oshkosh Truck Corp., 749 F. Supp. 2d 31, 42 (E.D.N.Y. 2010)); see Voss, 450 N.E.2d at 208. "The first two prongs are often referred to as the risk-utility balancing test and are used to determine whether a product is defective or 'unreasonably dangerous.'" Sorto-Romero v. Delta Int'l Mach. Corp., 05 Civ. 5172 (SJF) (AKT), 2007 U.S. Dist. LEXIS 71588, at *27 (E.D.N.Y. Sept. 24, 2007) (citi...