Bailey v. U.S.

• Decision Date: 10 October 2003
• Docket Number: Civil No. 01-00558 SOM/KSC.
• Citation: 289 F.Supp.2d 1197
• Court: Hawaii Supreme Court
• Parties: Bobbie Rae BAILEY and Melana Bailey, Individually and as the Personal Representatives of the Heirs of the Estates of David Bailey, Sr., and David Bailey, Jr., and as Successors in Interest to the Estates of David Bailey, Sr., and David Bailey, Jr., Deceased; Dan Stout and Myrtle Stout, Individually and as the Personal Representatives of the Heirs of the Estate of Dana Stout Bailey and Successors in Interest to the Estate of Dana Stout Bailey, deceased, Plaintiffs, v. UNITED STATES of America; Federal Aviation Administration; Big Island Air, Inc., dba Big Island Air; G. Tom Beard; Activity Information Center, Inc., dba Activity World; Unidentified Global Positioning System Manufacturer (Doe One); Piper "The New Piper"; Dennis O'Leary; The Estate of Dennis O'Leary; Administrator of the Estate of Dennis O'Leary; Paniolo Greens Limited Partnership; Shell Development Corporation-Greens, Hi Corp.; Perry J. Snyderman; Sheldon H. Ginsberg; Hazel Time LP, a Delaware Limited Partnership; HLS Tyme 2 Shore, A Delaware Limited Partnership; SOSV, LLC, a Delaware Limited Liability Company; Shell Vacations, LLC, an Arizona Limited Liability Company; SVC-Hawaii LP, a Hawaii Limited Partnership; Shell Development Corporation-Greens, a Hawaii Corporation; SDC-Kona, LLC, a Delaware Limited Liability Company; Unidentified Maintenance Company (Doe Two); and Does Three Through One Hundred, Defendants.

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289 F.Supp.2d 1197

Bobbie Rae BAILEY and Melana Bailey, Individually and as the Personal Representatives of the Heirs of the Estates of David Bailey, Sr., and David Bailey, Jr., and as Successors in Interest to the Estates of David Bailey, Sr., and David Bailey, Jr., Deceased; Dan Stout and Myrtle Stout, Individually and as the Personal Representatives of the Heirs of the Estate of Dana Stout Bailey and Successors in Interest to the Estate of Dana Stout Bailey, deceased, Plaintiffs, v. UNITED STATES of America; Federal Aviation Administration; Big Island Air, Inc., dba Big Island Air; G. Tom Beard; Activity Information Center, Inc., dba Activity World; Unidentified Global Positioning System Manufacturer (Doe One); Piper "The New Piper"; Dennis O'Leary; The Estate of

Dennis O'Leary; Administrator of the Estate of Dennis O'Leary; Paniolo Greens Limited Partnership; Shell Development Corporation-Greens, Hi Corp.; Perry J. Snyderman; Sheldon H. Ginsberg; Hazel Time LP, a Delaware Limited Partnership; HLS Tyme 2 Shore, A Delaware Limited Partnership; SOSV, LLC, a Delaware Limited Liability Company; Shell Vacations, LLC, an Arizona Limited Liability Company; SVC-Hawaii LP, a Hawaii Limited Partnership; Shell Development Corporation-Greens, a Hawaii Corporation; SDC-Kona, LLC, a Delaware Limited Liability Company; Unidentified Maintenance Company (Doe Two); and Does Three Through One Hundred, Defendants.

Civil No. 01-00558 SOM/KSC.

United States District Court, D. Hawai'i.

October 10, 2003.

Niall Yamane, O'Reilly, Collins & Danko, San Mateo, CA, for Plaintiffs.

Jill Dahlmann Rosa, (argued on behalf of Defendant the United States of America), Barry Benson, (appeared, but did not argue), U.S. Department of Justice, Civil Division Torts Branch, Washington, DC, E. Mason Martin, (argued on behalf of the Shell Defendants), Elton John Bain, (appeared, but did not argue), Kessner Duca Umebayashi Bain & Matsunaga and Keith K. Hiraoka, (appeared, but did not argue), Roeca Louie & Hiraoka, Honolulu, HI, for Defendants.

ORDER GRANTING THE SHELL DEFENDANTS' MOTIONS FOR SUMMARY JUDGMENT

MOLLWAY, District Judge.

I. INTRODUCTION.

This cases arises out of the crash of a plane operated by Big Island Air, Inc., on September 25, 1999. David Bailey, Sr., David Bailey, Jr., and Dana Stout Bailey were passengers killed in that crash. They had obtained discounted Big Island Air ticket vouchers in exchange for attending a time-share presentation and purchasing a time-share. The motions now before this court concern claims against the time-share company and the related entity that provided the vouchers.

Plaintiffs are the surviving family members and personal representatives of the Baileys killed in the crash. Although Plaintiffs filed this lawsuit on August 21, 2001, their original Complaint did not name the companies (Defendants Shell Development Corporation-Greens, Paniolo Greens Limited Partnership, SVC-Hawaii, L.P., and Shell Holdings, Inc. (collectively, "Shell Defendants")) connected with the time-share presentation and the selling of discounted Big Island Air ticket vouchers to the Baileys.¹ Those entities were first named in Plaintiffs' First Amended Complaint filed December 5, 2002.

At the hearing on the present motions, Plaintiffs clarified their claims against the Shell Defendants. Plaintiffs limited those claims to a negligent misrepresentation claim and a negligence claim based on Sugimoto v. Exportadora De Sal, 19 F.3d 1309 (9th Cir.1994), a plane crash case in which a company was held liable based on negligence under California law. Id. at 1311-12.

The Shell Defendants move for summary judgment on the grounds that Plaintiffs' claims against them were untimely filed and that, even if timely, they are unsupportable. This court agrees. Plaintiffs filed their claims against the Shell Defendants more than two years after the crash. Because those claims do not relate back to the date the original Complaint was filed, they are barred by the statute of limitation. Even if the claims are not time-barred, they fail because (1) there is no evidence that the Shell Defendants negligently misrepresented the safety record of Big Island Air, (2) the Shell Defendants owed no duty to the Baileys, and (3) the waiver of liability language in the Big Island Air ticket vouchers is enforceable. Accordingly, summary judgment is granted in favor of the Shell Defendants on all claims against them.

II. STANDARD OF REVIEW.

Summary judgment shall be granted when

the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.

Fed.R.Civ.P. 56(c); see also Addisu v. Fred Meyer, Inc., 198 F.3d 1130, 1134 (9th Cir.2000). One of the principal purposes of summary judgment is to identify and dispose of factually unsupported claims and defenses. Celotex Corp. v. Catrett, 477 U.S. 317, 323-24, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986).

Summary judgment must be granted against a party that fails to demonstrate facts to establish what will be an essential element at trial. See id. at 323, 106 S.Ct. 2548. A moving party without the ultimate burden of persuasion at trial — usually, but not always, the defendant — has both the initial burden of production and the ultimate burden of persuasion on a motion for summary judgment. Nissan Fire & Marine Ins. Co. v. Fritz Cos., 210 F.3d 1099, 1102 (9th Cir.2000).

The burden initially lies with the moving party to identify for the court "those portions of the materials on file that it believes demonstrate the absence of any genuine issue of material fact." T.W. Elec. Serv., Inc. v. Pacific Elec. Contractors Ass'n, 809 F.2d 626, 630 (9th Cir.1987) (citing Celotex Corp., 477 U.S. at 323, 106 S.Ct. 2548). "When the moving party has carried its burden under Rule 56(c), its opponent must do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986) (footnote omitted). The nonmoving party may not rely on the mere allegations in the pleadings and instead must set forth "specific facts showing that there is a genuine issue for trial." T.W. Elec. Serv., 809 F.2d at 630 (quotation omitted). At least some "`significant probative evidence tending to support the complaint'" must be produced. Id. (quoting First Nat'l Bank v. Cities Serv. Co., 391 U.S. 253, 290, 88 S.Ct. 1575, 20 L.Ed.2d 569 (1968)); Addisu, 198 F.3d at 1134 ("A scintilla of evidence or evidence that is merely colorable or not significantly probative does not present a genuine issue of material fact."). "[I]f the factual context makes the nonmoving party's claim implausible, that party must come forward with more persuasive evidence than would otherwise be necessary to show that there is a genuine issue for trial." Cal. Arch'l Bldg. Prods., Inc. v. Franciscan Ceramics, Inc., 818 F.2d 1466, 1468 (9th Cir.1987) (citing Matsushita Elec. Indus. Co., 475 U.S. at 587, 106 S.Ct. 1348); accord Addisu, 198 F.3d at 1134 ("There must be enough doubt for a `reasonable trier of fact' to find for plaintiffs in order to defeat the summary judgment motion.").

However, when "direct evidence" produced by the moving party conflicts with "direct evidence" produced by the party opposing summary judgment, "the judge must assume the truth of the evidence set forth by the nonmoving party with respect to that fact." T.W. Elec. Serv., 809 F.2d at 631. All evidence and inferences must be construed in the light most favorable to the nonmoving party. Id. Inferences may be drawn from underlying facts not in dispute, as well as from disputed facts that the judge is required to resolve in favor of the nonmoving party. Id.

III. BACKGROUND INFORMATION.

The Shell Defendants are related companies first named as parties to this action in the First Amended Complaint filed on December 5, 2002, more than two years after the fatal plane crash.

It is undisputed that September 25, 1999, is the date that Big Island Air Flight 58 crashed on the slopes of Mauna Loa, Hawaii, killing the pilot and all nine passengers aboard.²

In September 1999, the Baileys, all California residents, vacationed in Hawaii. See Declaration of Bobbie Rae Bailey (undated, but filed Sept. 25, 2003) ¶ 1, 7; Deposition of Bobbie Rae Bailey (Sept. 19, 2003)³ at 6. David Bailey, Sr., David Bailey, Jr., and Dana Stout Bailey were among those killed in the crash. Bobbie Rae Bailey did not go on the plane tour.

The Baileys' vacation included a visit to an activity desk in the Keahou Beach Hotel, which was doing business as the King Kamehameha Kona Beach Hotel. Bailey Decl. ¶ 2. Bobbie Rae Bailey believed that the person at this desk was associated with an activity provider called Activity World. This person told the Baileys that they could get discounted tour tickets by attending a sales presentation about time-share condominiums in Paniolo Greens, on the Big Island of Hawaii. Bailey Decl. ¶ 2.

After attending the time-share presentation and purchasing a time-share, the Baileys were directed to an unmarked activity desk, where they purchased Big Island Air ticket vouchers.⁴ Bailey Decl. ¶ 3. Bobbie Rae Bailey says that she did not know who was conducting the time-share presentation at the time she attended it. See Bailey Decl. ¶¶ 5 and 8. At the hearing, however, counsel for Bobbie Rae Bailey admitted that the paperwork Bobbie Rae Bailey filled out to purchase the time-share showed that Paniolo Greens Limited Partnership was the company selling or marketing the time-shares.

The Baileys got their ticket vouchers from Big Island Adventures. Bobbie Rae Bailey says that the identity of Big Island Adventures was not disclosed to the Baileys during the time-share presentation, see Bailey Decl. ¶ 5, but the...