United States District Court, D. Connecticut
RULING ON CROSS-MOTIONS FOR SUMMARY JUDGMENT
R. UNDERHILL UNITED STATES DISTRICT JUDGE.
personal injury suit, plaintiffs Peter Alpert and Rebeccah
Drill bring claims for negligence and loss of consortium
against defendants Starwood Hotels and Resorts Worldwide and
Sheraton Overseas Management, relating to spinal cord and
other injuries sustained by Alpert while on vacation at the
Sheraton Hacienda del Mar Resort in Cabo St. Lucas, Mexico.
Compl., Doc. No. 1, at 1. Specifically, plaintiffs allege
that defendants: (1) failed to take proper safety precautions
for their beach waterfront; (2) failed to properly monitor
their beach waterfront; (3) failed to provide proper warnings
pertaining to the dangerous waterfront and surf conditions;
(4) failed to properly train their management and employees
in water safety; and (5) failed to adhere to the appropriate
standard of care for water safety for similar waterfront
resorts. Id. at 7-8. The threshold issue is whether
Mexican or Connecticut tort law should apply. I conclude that
Mexican law applies, and that plaintiffs fail to meet the
“direct and immediate consequence” standard for
causation under Mexican law. Accordingly, I grant
defendants' motion for summary judgment.
December 25, 2012, Plaintiff Peter Alpert and his wife,
Plaintiff Rebeccah Drill, were staying at the Sheraton
Hacienda del Mar Resort (“Resort”) located in
Cabo San Lucas, Mexico. Def's Mem. Supp. Mot. Sum. J.,
Doc. No. 73-1, at 1. Alpert and Drill are residents of
Massachusetts, and the Resort is managed by Sheraton Overseas
Management Corporation through its parent company, Defendant
Starwood Hotels. Id. at 1, 4; Mem. in Opp'n
Def's Mot. Sum. J., Doc. No. 84, at 2. The Resort is a
member of a property owners' association called Cabo del
Sol, which is comprised of houses, two golf courses, and two
hotels including the Sheraton Hacienda del Mar. Mem. in
Opp'n Def's Mot. Sum. J., Doc No. 84, at 4.
is no dispute that the waterfront at Hacienda del Mar is
dangerous. Id. Defendants admit in their answer that
“[t]he surf along the coast of Cabo San Lucas is
extremely dangerous” and that the waterfront is
unprotected and prone to dangerous waves and tides.”
Def's Answer, Doc. No. 29, at 5. The brochure that
Defendants allegedly provided to Alpert upon his arrival,
which he denies receiving, states that “seasonal beach
changes can result in waves that break directly on to the
beach . . . [t]hese conditions can be very dangerous because
an inexperienced person who . . . is unaware of the
oncoming wave may be thrust ‘over the falls' head
first directly onto the beach or into the shallow water at
the sand bar . . . [which] can cause one's head or
shoulder to strike the beach or the shallow bottom.”
Mem. in Opp'n Def's Mot. Sum. J., Doc. No. 84, at 14.
has been involved in water-related activities since he was
young. Beth Alpert Dep. Trans., Doc. No. 73-7, at 32-33.
According to Alpert's sister Beth Alpert, Alpert
“has taken part in activities such as swimming, sailing
on lakes, water skiing, and has taught sailing to
others.” Beth Alpert Dep. Trans., Doc. No. 73-7, at
32-34. Alpert has “vacationed with his family at
beachfront resorts in locations such as Puerto Rico, Saint
Kitts, Cabo, Cancun, Cape Cod, Martha's Vineyard, Nevis,
Young Island, and Saint John.” Rebeccah Drill Dep.
Trans., Doc. No. 73-9, at 22-26. According to Alpert's
wife Rebeccah Drill, the family went on a beach vacation once
each year for 15 years prior to Alpert's injury, and they
stayed at the Hacienda del Mar Resort 10-15 years before the
present incident. Id. at 24-25.
December 25, 2012, the date of the subject incident, Alpert
went on a whale-watching excursion with his family. Peter
Alpert Dep. Trans., Doc. No. 73-10, at 22. Alpert then had
lunch with his brother Scott at the Resort, and Scott asked
Alpert to accompany him to the ocean afterwards. Id.
at 24. Scott entered the water first, and was 30 seconds to
one minute ahead of Alpert. Id. at 25. Scott
described the state of the water as “good rough
surf.” Scott Alpert Dep. Trans., Doc. No. 73-8, at 85.
Alpert stated that he was standing in “maybe two feet
of water” when he saw a large wave coming toward him.
Peter Alpert Dep. Trans., Doc No. 73-10, at 25- 26. Alpert
“turned around so that [the wave] wouldn't hit
[him] in the face, ” and was struck in the back.
Id. at 26. He began to tumble around in the surf,
and his head hit the bottom of the sand, temporarily
paralyzing his arms and legs. Id. He floated face
down in the water, unable to move, and feared that he would
drown. Id. Moments later several people grabbed him
and pulled him out of the water onto the sand. Id.
The same wave struck Scott Alpert, but he was not injured
because he “ducked” into the ocean wave, and he
was further out in the ocean than Alpert. Scott Alpert Dep.
Trans., Doc. No. 73-8, at 77-78.
eventually arrived at the scene and transported Alpert by
ambulance to Ameridad Hospital; Alpert was transferred to UC
San Diego trauma center on December 28, 2012. Peter Alpert
Dep. Trans., Doc. No. 73-10, at 43. Alpert returned to
Massachusetts 11 days later, where he was admitted to the
Spaulding Rehabilitation Hospital for rehabilitation and
therapy. Pl's Compl., Doc. No. 1, at 6. He was discharged
from Spaulding after more than three weeks, requires
continued follow up medical care, and will continue to
require such care for the rest of his life. Id.
Alpert's complaint lists his injuries as blunt trauma to
the head, cranial, and cervical spine; severe abrasions to
the forehead; central cord syndrome; multiple herniated
discs; severe stenosis due to edema; temporary loss of all
sensation and movement from the neck down; permanent loss of
fine motor coordination in hands and feet; neurogenic
bladder; loss of sensation in bowel and bladder; and multiple
dental injuries requiring treatment. Id. at 5-6.
Standard of Review
judgment is appropriate when the record demonstrates that
there is no genuine dispute regarding any material fact and
the movant is entitled to judgment as a matter of law.
Fed.R.Civ.P. 56(a); see also Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 256 (1986) (plaintiff must present
affirmative evidence in order to defeat a properly supported
motion for summary judgment).
ruling on a summary judgment motion, the court must construe
the facts in the light most favorable to the non-moving party
and must resolve all ambiguities and draw all reasonable
inferences against the moving party. Anderson, 477
U.S. at 255; Matsushita Elec. Indus. Co. v. Zenith Radio
Corp., 475 U.S. 574, 587 (1986); Adickes v. S.H.
Kress & Co., 398 U.S. 144, 158-59 (1970); see
also Aldrich v. Randolph Cent. Sch. Dist., 963 F.2d.
520, 523 (2d Cir. 1992) (court is required to resolve all
ambiguities and draw all inferences in favor of the
non-moving party). When a motion for summary judgment is
properly supported by documentary and testimonial evidence,
however, the non-moving party may not rest upon the mere
allegations or denials of his pleadings, but must present
sufficient probative evidence to establish a genuine issue of
material fact. Celotex Corp. v. Catrett, 477 U.S.
317, 327 (1986); Colon v. Coughlin, 58 F.3d 865, 872
(2d Cir. 1995).
when reasonable minds could not differ regarding the import
of the evidence is summary judgment proper. Bryant v.
Maffucci, 923 F.2d 979, 982 (2d Cir. 1991); see
also Suburban Propane v. Proctor Gas, Inc., 953
F.2d 780, 788 (2d Cir. 1992). If the non-moving party submits
evidence that is merely colorable, or is not significantly
probative, summary judgment may be granted.
Anderson, 477 U.S. at 249-50.
The mere existence of some alleged factual dispute between
the parties will not defeat an otherwise properly supported
motion for summary judgment; the requirement is that there be
no genuine issue of material fact. As to materiality, the
substantive law will identify which facts are material. Only
disputes over facts that might affect the outcome of the suit
under the governing law will properly preclude the entry of
summary judgment. Factual disputes that are irrelevant or
unnecessary will not be counted.
Id. at 247-48. To present a genuine issue of
material fact, there must be contradictory evidence such that
a reasonable jury could return a verdict for the non-moving
party. Id. at 248.
non-moving party has failed to make a sufficient showing on
an essential element of his case with respect to which he has
the burden of proof at trial, then summary judgment is
appropriate. Celotex, 477 U.S. at 322. In such a
situation, there can be no genuine issue with respect to any
material fact, because a complete failure of proof concerning
an essential element of the non-moving party's case
necessarily renders all other facts immaterial. Id.
at 322-23; Goenaga v. March of Dimes Birth Defects
Found., 51 F.3d 14, 18 (2d Cir. 1995) (movant's
burden satisfied if he can point to an absence of evidence to
support an essential element of non-moving party's
claim). In short, if there is no genuine issue of material
fact, I may grant a motion for summary judgment.
Celotex, 477 U.S. at 323.
Choice of Law Analysis
parties disagree regarding which jurisdiction's law
should be applied. The defendants argue for the application
of Mexican law, essentially following the traditional lex
loci delictus rule, which applies the law of the
jurisdiction in which the tort took place. The plaintiffs
argue that Connecticut law should apply under the more modern
“significant relationship test, ” which calls for
the application of the law of the jurisdiction that has the
most significant relationship to the controversy in
accordance with the principles of the Restatement (Second) of
Conflict of Laws. See O'Connor v. O'Connor,
201 Conn. 632, 636 (1986). Federal courts apply the choice of
law rules of the state in which they sit, and therefore
Connecticut choice of law rules govern the dispute in the
present case. See Booking v. Gen. Stat Mgmt., 254
F.3d 414, 419 (2d Cir. 2001). Connecticut applies the law of
the jurisdiction ...