At a time when the hospitality industry is on high alert, a U.S. court of appeals has held that a resort guest’s drowning was not caused by any breach of duty of care owed by the hotel. In Baum-Holland v. Hilton El Con Management, LLC, the plaintiffs accused a hotel of negligence after a guest died while snorkeling. When presented with a factual dispute regarding the patron’s cause of death and a signed release of liability by the decedent, the court affirmed summary judgment in favor of the hotel. While agreeing with the court’s decision, ABA Section of Litigation leaders advise the hospitality industry to release liability and warn patrons as it reopens amid the COVID-19 pandemic.
Tragedy in Paradise
A doctor and his family were vacationing at a resort in Puerto Rico. While snorkeling near a small uninhabited island east of Puerto Rico, the doctor suddenly stopped swimming and became unresponsive. The doctor’s family members, employees of the resort, and other guests administered CPR, but he was pronounced dead upon arriving at the local hospital.
The doctor’s family sued the resort in the U.S. District Court for the District of Puerto Rico alleging failure to warn of dangerous sea conditions, failure to give timely and appropriate aid, and failure to provide safety gear. On the defendant’s motion for summary judgment, the cause of the doctor’s death was disputed. The plaintiffs claimed that he drowned based on evidence of fluid in his sphenoid sinus and lack of oxygenation. But other evidence suggested that, based on his obesity, untreated hypertension, and atherosclerosis, the doctor suffered a heart attack while snorkeling.
Granting the hotel’s motion for summary judgment, the district court held that the plaintiffs failed to “submit evidence that establishes a duty of care that was breached by [the hotel].” Specifically, the court found that the plaintiffs failed to provide evidence that it was “foreseeable that [the doctor’s] event was bound to occur” or that the doctor would have survived if first aid were provided by [the resort] instead of [an observing, CPR-certified witness].” Highlighting the doctor’s various conditions, the court emphasized his decision to snorkel with knowledge of the risk involved. The court also found that a release of liability signed by the doctor waived the plaintiffs’ claims.
The plaintiffs appealed, challenging both the grant of summary judgment on their negligence claim and the court’s finding that the release signed by the doctor barred their claims.
The U.S. Court of Appeals for the First Circuit affirmed, holding that the district court properly resolved any conflicting evidence regarding the actual cause of the doctor’s death. Reviewing the motion de novo and resolving all reasonable inferences in the nonmovant’s favor, the court held that “[a]ppellants have not met their burden of showing that it is more likely than not that [the resort’s] alleged failure to warn [the doctor] of the ocean conditions caused [the doctor’s] death by drowning.”
The First Circuit found it unnecessary to address the issue of the signed release because it affirmed summary judgment on other grounds.
Resolving Disputes on Summary Judgment
“Typically, in a summary judgment hearing, judges defer factual matters to the jurors,” says John S. Austin, Raleigh-Durham, NC, cochair of the Section of Litigation’s Trial Practice Committee. “However, in this case it appears that the appellate plaintiffs failed to produce sufficient evidence showing that the doctor drowned,” he says.
Further, “plaintiffs did not submit evidence that would permit a reasonable inference that [the doctor] would have survived if first-aid had been administered to him by [the hotel] rather than administered by [the doctor’s] friend, who had lifeguard and CPR trainings,” says Angela Foster, North Brunswick, NJ, cochair of the Section’s Trial Evidence Committee.
Release and Warn
As the COVID-19 pandemic continues, Section leaders suggest the hospitality industry might learn multiple lessons from Baum. In the event of litigation over COVID-19 exposure, businesses in this industry will want to submit adequate proof that the conditions were known and assumed.
For instance, hotels should consider revising their release forms. “Signing a release or assumption of risk requires that the plaintiff must have known that there was a risk of the same sort of injury that the plaintiff actually suffered, and that the plaintiff voluntarily took on that danger in participating in the activity,” advises Foster.
In addition, hotels should provide adequate warnings of the risks involved in certain activities. In the COVID-19 context, this may involve warning hotel patrons of the risk of infection. “The hospitality industry may want to look into releases related to people being in closer contact and violating social distancing. If people want to participate in certain activities, it would be good for the release to warn people about coming within six feet of each other,” comments Austin.
“You can’t have enough signs related to COVID-19. Hospitality industries should certainly invest in signage to address risks unique to the COVID-19 pandemic when it comes to transmission of the virus. Signs are a relatively inexpensive method of communicating known or even unseen risks,” explains Austin.
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- Laura Lorek, “How effective are liability waivers in the age of the novel coronavirus?,” ABA J. (July 2, 2020).
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