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Alpert v. Starwood Hotels

United States District Court, D. Connecticut

October 29, 2018




         In this 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.

         I. Background

         On 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.

         There 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.

         Alpert 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.

         On 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.

         Paramedics 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.

         II. Standard of Review

         Summary 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).

         When 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).

         Only 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.

         If the 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.

         III. Discussion

         A. Choice of Law Analysis

         The 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 ...

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