Lee v. CHOICE HOTELS INTERNATIONAL, INC.

• Citation: 992 A.2d 1236
• Decision Date: 13 April 2010
• Docket Number: No. 376,2009.,376
• Parties: CHAN YOUNG LEE, a minor, by his parents and guardians ad litem, BO HYUN LEE and WAN KI KIM, BO HYUN LEE, individually, WAN KI KIM, individually, and YOUNG MIN LEE, a minor, by his parents and guardians ad litem BO HYUN LEE and WAN KI KIM, Plaintiffs Below-Appellants, v. CHOICE HOTELS INTERNATIONAL, INC., a Delaware Corporation, d/b/a QUALITY INNS AND RESORTS, Defendant Below-Appellee.
• Court: United States State Supreme Court of Delaware

992 A.2d 1236

CHAN YOUNG LEE, a minor, by his parents and guardians ad litem, BO HYUN LEE and WAN KI KIM, BO HYUN LEE, individually, WAN KI KIM, individually, and YOUNG MIN LEE, a minor, by his parents and guardians ad litem BO HYUN LEE and WAN KI KIM, Plaintiffs Below-Appellants,
v.
CHOICE HOTELS INTERNATIONAL, INC., a Delaware Corporation, d/b/a QUALITY INNS AND RESORTS, Defendant Below-Appellee.

No. 376, 2009.

Supreme Court of Delaware.

Submitted: January 20, 2010.

Decided: April 13, 2010.

Revised: April 30, 2010.

Before HOLLAND, BERGER and RIDGELY, Justices.

ORDER

HENRY DuPONT RIDGELY, Justice.

This 13th day of April 2010, upon consideration of the briefs of the parties and their contentions at oral argument, it appears to the Court that:

(1) On May 6, 2001, Chan Young Lee ("Lee"), age 7, suffered catastrophic, permanent brain damage after he nearly drowned in a swimming pool at the Quality Resort Waterfront City in Bata, Indonesia. ("Quality Resort"). This litigation commenced when Plaintiffs Lee and his family (the "Lees") filed a complaint in the Superior Court on October 30, 2002. Nearly seven years later, the Superior Court granted summary judgment for Defendant Choice Hotels International, Inc. ("Choice"), after disqualifying the Lees' expert. Specifically, the trial court ruled that the Lees' expert could not testify on the standard of care for the design and operation of a swimming pool in Indonesia, denied substitution of another expert, and then granted summary judgment on the ground that the Lees could not prove negligence without an expert. Before this Court is the Lees' appeal of these decisions.

(2) The Lees raise three arguments. First, they contend the Superior Court erred in granting summary judgment because the Lees offered sufficient evidence of violations of Indonesian law to establish negligence per se. Second, they contend the Superior Court erred in excluding the expert testimony of Thomas Ebro concerning the relevant standard of care in Indonesia. Third, they contend the Superior Court erred in not permitting them to name a substitute expert on the applicable standard of care in Indonesia. We find merit to the Lees' first and second arguments. As a result, the Lees' third argument is moot. Accordingly, we reverse and remand for further proceedings consistent with this Order.

(3) Choice is a worldwide hotel franchisor with thousands of hotels and resorts in forty-two countries under the Quality, Comfort Inn, Comfort Suites, Clarion, Sleep Inn, Rodeway Inn, Econo Lodge and Mainstay Suites brand names. From its U.S. headquarters, Choice selects, trains, supervises, supports and promotes franchisees worldwide, including the Quality Resort. Choice plays a central role in the design and inspection of its franchised hotels; the Quality Resort may not perform material construction or alterations or improvements except in accordance with Choice's Rules and Regulations and written approval.

(4) On May 6, 2001, the Lees arrived at the Quality Resort and went to the pool in the afternoon. The pool was roughly shaped like the letter "U," with three deep water areas located at the bottom of the U and below the two endpoints. Seven-year-old Lee went into what appeared to be the shallow end of the pool. Soon after, he was found submerged and was rescued by a resort guest. Lee was submerged for long enough to cause catastrophic and permanent brain damage.

(5) The Lees make the following allegations regarding the pool. There were no lifelines or separators between the shallow and deep areas to indicate a change in depth; rather a lifeline was placed over the deep water area where Lee nearly drowned. The slope of the pool between the shallow and deep areas was steep, and there were no depth markings or indicators signaling the change in depth. No lifeguard was posted, nor were there signs warning that no lifeguard was on duty. The Lees contend the slope of the pool floor, the absence of depth markings and separators, and the lack of lifeguards violated Indonesian law concerning pool safety.

(6) The Quality Resort had two main entrances to the pool grounds. Signs were posted at each of these entrances explaining, in English and Indonesian, that there were no lifeguards on duty and that children under 12 years old must be accompanied by an adult. Lee's parents, Bo Hyun and Wan Ki, can both read English. According to Choice, Budi Santoso, the tour guide who met the Lee party in Indonesia, specifically advised both Bo Hyun and Wan Ki to watch their children in the pool area as there were no lifeguards on duty at the resort.

(7) After the Lees filed their complaint in the Superior Court, Choice moved for summary judgment. In response to Choice's motion for summary judgment, the Lees submitted the affidavit of Mr. Thomas C. Ebro, a purported aquatics safety expert, to establish the applicable standard of care under Indonesian law.¹ Mr. Ebro's affidavit alleged that the Quality Resort pool presented an unreasonable risk of danger to children because of:

(i) inadequate depth markings; (ii) the lack of conspicuous bottom stripes or demarcations; (iii) the placement of a lifeline over deep water; (iv) the lack of a taut emergency lifeline serving as a visual barrier and supportive hand hold; (v) the lack of a lifeguard; (vi) the lack of barriers between the kiddie pools and the large adult pools; (vii) the lack of a warning that there was no lifeguard on duty and to swim at your own risk; and (viii) the operation of a bar in the pool that diverted the attention of the only hotel employee present at the pool from pool safety.

Mr. Ebro based his opinion on his "review of the pleadings, depositions, photographs and other information and facts surrounding the case, as well as his knowledge and experience."

(8) Choice moved to strike Mr. Embro's testimony on swimming pool design and operation. The Superior Court granted Choice's motion "for several reasons, including the court's determination that the methodology employed and the opinions provided as a result, were unreliable." The Lees filed a motion for reconsideration and/or reargument which was denied.

(9) Four days after filing their motion for reconsideration and/or reargument, the Lees filed a motion seeking leave to designate a substitute liability expert. While that motion was pending, the Lees notified defense counsel that they intended to substitute H. Hendri Jonsi, S.P.T., an Indonesian engineer, in place of Mr. Ebro, as an expert witness on swimming pool design and construction. In support of their motion to designate a substitute liability expert, the Lees offered the declarations of Andrew I. Sriro, Esquire² addressing the applicability of an Indonesian regulation — Regulation of the Minister of Health of the Republic of Indonesia No. 61 Concerning Health Requirement of Swimming Pool and Public Bath ("Regulation 61") — in determining the relevant standard of care in Indonesia.

(10) The Superior Court found that Mr. Jonsi held bachelor and doctorate degrees in civil engineering and building construction from Indonesian universities, and had been employed in the design and construction of between five and six hundred swimming pools in Indonesia. The Superior Court then denied the...