United States District Court, D. Connecticut
ORDER ON MOTION FOR RECONSIDERATION
R. UNDERHILL, UNITED STATES DISTRICT JUDGE
personal injury suit, plaintiffs Peter Alpert and Rebeccah
Drill brought claims for negligence and loss of consortium
against defendants Starwood Hotels and Resorts Worldwide,
Inc. 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
alleged 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 was whether Mexican or Connecticut
tort law should apply. I concluded that Mexican law applied,
and that plaintiffs failed to meet the “direct and
immediate consequence” standard for causation under
Mexican law. Accordingly, I granted defendants' motion
for summary judgment.
Standard of Review
standard for granting motions for reconsideration is strict;
motions for reconsideration “will generally be denied
unless the moving party can point to controlling decisions or
data that the court overlooked-matters, in other words, that
might reasonably be expected to alter the conclusion reached
by the court.” Shrader v. CSX Transp., Inc.,
70 F.3d 255, 257 (2d Cir. 1995). Motions for reconsideration
will not be granted where the party merely seeks to
relitigate an issue that has already been decided.
Id. The three major grounds for granting a motion
for reconsideration in the Second Circuit are: (1) an
intervening change of controlling law, (2) the availability
of new evidence, or (3) the need to correct a clear error or
prevent manifest injustice. Virgin Atlantic Airways, Ltd.
v. Nat'l Mediation Bd., 956 F.2d 1245, 1255 (2d Cir.
1992) (citing 18 Charles A. Wright, Arthur R. Miller &
Edward H. Cooper, Federal Practice & Procedure
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.
filed the complaint in this case on December 15, 2014. Compl,
Doc. No. 1. On March 30, 2018, defendants filed a motion for
summary judgment. Doc. No. 73. On June 4, 2019, plaintiffs
filed a cross-motion for partial summary judgment. Doc. No.
82. I held a hearing on August 30, 2018, taking the
parties' motions under advisement. Doc. No. 100. On
October 29, 2018, I issued a written ruling, granting
defendants' motion for summary judgment and denying
plaintiffs' partial motion for summary judgment. Doc. No.
103. Judgment entered on October 31, 2018. Doc. No. 105.
After seeking multiple extensions, plaintiffs filed a motion
for reconsideration of the judgment and order on the motion
for summary judgment on January 2, 2019. Doc. No. 109.
Defendants responded on January 23, 2019. Doc. No. 111.
argue that my summary judgment ruling “failed to
properly take into account the interests of the
plaintiff's domicile, Massachusetts.”
Plaintiffs' Memorandum in Support of their Motion for
Reconsideration of the Court's Ruling on Summary
Judgment, Doc. No. 110, at 21. They further argue that I
“erroneously treated defendant Starwood as if it were a
Mexican domiciliary.” Id.
argue that I “should deny Plaintiffs' Motion for
Reconsideration because I correctly applied the Choice of Law
analysis for the jurisdiction within which this matter is
pending and the Plaintiffs failed to meet the strict standard
required for reconsideration.” Defendants' Response