Hotel Owner Faces Trial for Near Drowning

HONOLULU (CN) - A California travel agency must face a trial to determine whether it is liable for the near drowning of a woman who used a hotel pool despite a sign that alerted guests there was no lifeguard on duty, a federal judge ruled.

Song Meyong Hee is now "incapacitated" and "a vegetable," after sinking in a Royal Lahaina Resort swimming pool and suffering severe hypoxia, according to the complaint filed by Song's husband and children.

The family sued the Maui hotel; its operator, Hawaiian Hotels and Resorts; and that company's owner, Newbury Park, Calif.-based Pleasant Travel Service.

The family says tragedy struck while they were using the hotel pool. Royal Lahaina did not have an on-duty lifeguard, only a sign that said, "Warning: No Lifeguard on Duty," according to the complaint.

If they had been more adequately warned of the risks, and if a lifeguard had been present, Song would most likely have avoided the brain damage from which she now suffers, the family claims.

In September, U.S. District Judge Leslie Kobayashi refused to dismiss negligence claims against Pleasant Travel Service, rejecting claims that the risks inherent in using the hotel pool were "open and obvious," and the owners did not have a duty to provide a lifeguard at the pool or to warn of the absence of a lifeguard in a foreign language.

Kobayashi refused to reconsider that decision in a new decision filed Nov. 30. "Under Hawai'i law, a landowner has a duty to use reasonable care for the safety of all persons reasonably anticipated to be on the premises," she said, quoting the September decision. "Further, Hawai'i courts recognize that a hotel has a 'special relationship' with its guests [...] to protect the latter against unreasonable risk of physical harm."

Court precedent found in 2010 with Robbins v. Marriott Hotel Services establishes that hotels may have to take extra steps to warn guests about "an open and obvious danger."

A landowner may anticipate harm if the guest's "attention may be distracted, so that he will not discover what is obvious, or will forget what he has discovered, or fail to protect himself against it," Kobayashi wrote.

Pleasant Travel Services had claimed that sending this case to trial will result in new law and new swimming pool requirements. The finding will also depend on the "idiosyncrasies of each jury panel for each drowning or near-drowning," according to the motion for reconsideration.

Kobayashi disagreed.

"The court cannot conclude, as a matter of law, that defendant should not have had reason to expect its guests to encounter the danger of drowning without a lifeguard present, even if the danger was known and obvious," she wrote in September. "Thus, whether the Barefoot Bar swimming pool, without lifeguards posted, constitutes an 'unreasonable risk,' or whether defendant was required to take reasonable steps to protect its swimmers against a known danger are questions of fact for the factfinder to determine [...] '[W]hat is reasonable and unreasonable and whether the defendant's conduct was reasonable in the circumstances are for the jury to decide."

Victoria Yi, Heo Hyeob, Heo Eunsuk and Heo Keun Seok are suing for gross negligence. They are represented by James Krueger and Cynthia Wong with Krueger Wong in Wailuku, Maui.

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