Matthews v. Whitewater W. Indus., Ltd., CASE NO. 11-24424-CIV-ALTONAGA/Simonton

• Decision Date: 03 December 2012
• Docket Number: CASE NO. 11-24424-CIV-ALTONAGA/Simonton
• Parties: DAVID MATTHEWS, Plaintiff, v. WHITEWATER WEST INDUSTRIES, LTD., et al., Defendants.
• Court: U.S. District Court — Southern District of Florida

DAVID MATTHEWS, Plaintiff,

v.WHITEWATER WEST INDUSTRIES, LTD., et al., Defendants.

CASE NO. 11-24424-CIV-ALTONAGA/Simonton

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA

Date: December 3, 2012

ORDER

THIS CAUSE comes before the Court on Defendant, Whitewater West Industries, Ltd.'s ("Whitewater['s]") Amended Motion for Reconsideration . . . ("Motion for Reconsideration" or "MFR") [ECF No. 111] and Amended Motion for Summary Judgment . . . ("Motion for Summary Judgment" or "MSJ") [ECF No. 110] (collectively, "Motions"), filed October 11, 2012. The Court has carefully considered the parties' written submissions and applicable law.

I. BACKGROUND

Prior to addressing the legal issues raised by Whitewater's Motions, the undersigned summarizes the relevant background and procedural facts.

A. Whitewater's Statements of Material Facts¹

Each of Whitewater's Motions contains a Statement of Material Facts (collectively "Statements" or "SMFs"), each of which is nearly identical to the other.² The facts contained inthe Statements can be divided into two categories: those that are based upon the allegations of the Complaint [ECF No. 1], and those based upon various exhibits attached to the Motions.

i. Allegation-Based Facts

This is an action by a resort guest, David Matthews ("Matthews"), against a waterslide manufacturer, Whitewater, among other defendants, based upon injuries the resort guest suffered while riding a waterslide ("Waterslide") at the Atlantis Resort ("Atlantis") in The Bahamas. (See SMFs ¶ 1). On December 8, 2011 Matthews filed his Complaint against Whitewater.

Matthews suffered his injury on December 11, 2009, while a guest of Atlantis. (See id. ¶ 4 (citing Compl. ¶ 16)). Atlantis operates and supervises the use of the Waterslide on its premises, encouraging guests to use it. (See id. ¶ 12 (citing Compl. ¶ 16)). The Waterslide features two adjacent waterslides that allow guests to race to the bottom. (See id. ¶ 5 (citing Compl. ¶ 18)). Prior to using the Waterslide, an Atlantis employee provided Matthews instructions regarding how to properly use it. (See id. ¶ 6 (citing Compl. ¶ 19)). At the end of the ride, Matthews was injured when his legs hit the bottom of the pool the Waterslide emptied into, thereby causing him to suffer a tibia plateau fracture. (See id. ¶ 7 (quoting Compl. ¶ 19)). Whitewater was responsible for the manufacturing and/or construction and maintenance of the Waterslide. (See id. ¶ 13 (citing Compl. ¶ 14)).

Based on his injuries, Matthews brings tort claims against various defendants, including Whitewater. (See id. ¶ 8). Only those claims against Whitewater — Counts Four and Five of the Complaint for strict products liability — are at issue in the present Motions. Count Four alleges strict liability for defective design, stating that: (1) Whitewater defectively designed the Waterslide in such a way that it was rendered unreasonably dangerous, and the Waterslide didnot perform as safely as an ordinary customer would expect, although it was being used in a reasonably foreseeable manner (see id. ¶ 11 (citing Compl. ¶¶ 53-57)); and (2) the defective design of the Waterslide was the direct and proximate cause of Matthews' injury (see id. ¶ 10 (citing Compl. ¶ 58)). Count Five alleges a failure to warn claim, stating that: (1) Whitewater failed to place sufficient or adequate warnings on the Waterslide, which rendered it unreasonably dangerous in a manner that was not readily apparent (see id. ¶ 11 (citing Compl. ¶¶ 61-66)); and (2) the failure to warn defect was the direct and proximate cause of Matthews' injury (see id. ¶ 1 (citing Compl. ¶ 67)).

ii. Exhibit-Based Facts

Having outlined the foregoing allegations, Whitewater discusses two Releases, attached to each of the Motions, which are signed by Matthews. (See id. ¶¶ 15-17). The Releases are newly-discovered evidence, received by Atlantis in July 2012. (See id. ¶ 18). The first Release is dated December 9, 2009 — prior to the accident and during the same stay during which Matthews was injured — while the second Release is dated December 8, 2010 — approximately one year after the accident and during a subsequent stay at Atlantis by Matthews. (See id. ¶¶ 15-17).

The Releases state:

I agree, on behalf of myself and the members of my traveling party listed below, to assume all risks incidental to participation in the Activities (which risks may include, among other things, muscle injuries and broken bones, drowning, seasickness, sea-creature attack, or death) and, on my own behalf and on behalf of the members of my traveling party and on behalf of my and their heirs, executors and administrators, to release and forever discharge the "Resort Parties" (defined below) of and from all liabilities, claims, actions, damages, costs or expenses, of any nature arising out of or in anyway connected with our participation in the Activities, and further agree to indemnify and hold each of the Resort Parties harmless against any and all such liabilities, claims, actions, damages, costs or expenses, including but not limited to, all attorney's fees and disbursements.

(Releases 1). The Releases define the "Resort Parties" as

Kerzner International Holdings Limited, Kerzner International Limited, Kerzner International Bahamas Limited, Atlantis Holdings (Bahamas) Limited, Ocean Club Holdings Limited, Paradise Island Holdings Limited, Paradise Island Limited, Island Hotel Company Limited, and Paradise Enterprises Limited, Harborside at Atlantis Development Limited and Harborside at Atlantis Management Limited, along with their parent, related and affiliated companies at every tier, and the officers, directors, employees, agents, representatives, successors and assigns of each of the foregoing entities.

(Id.). The Releases contain the following forum selection and choice of law clause:

I agree that any claims I may have against the Resort Parties resulting from any events occurring in The Bahamas shall be governed by and constructed in accordance with the laws of the Commonwealth of The Bahamas, and further, I irrevocably agree to the Supreme Court of The Bahamas as the exclusive venue for any such proceedings whatsoever.

(Id.).

The Statement in support of the Motion for Reconsideration concludes with a discussion of the Releases. (See MFR-SMF ¶ 20). The Statement in support of the Motion for Summary Judgment, however, discusses one additional exhibit that is only attached to that Motion: the Adams Affidavit. (See MSJ-SMF ¶ 22). Adams, an attorney who has been licensed to practice law in The Bahamas since 1994, is a partner of "one of the oldest and most respected law firms" in The Bahamas. (Adams Aff. ¶ 3).

Adams offers two points for the Court's consideration. The first is included in Whitewater's Statement:

Under Bahamian law, Strict Product [sic] Liability is not recognized as a cause of action and, [sic] Defendant [], would not be held liable to the Plaintiff in respect of the claims for damages for Strict Products Liability, pleaded in this action, under Bahamian law.

(MSJ-SMF ¶ 22 (quoting Adams Aff. ¶ 4) (internal quotation marks omitted)). The second point, which is left out of the Statement, clarifies that

[w]hile, [sic] the Strict Products Liability claims pleaded in this action are not recognized causes of action under Bahamian law, the same allegations of fact could be properly advanced in support of a different liability theory in tort that would give rise to a recognized cause of action under Bahamian law.

(Adams Aff. ¶ 5).

B. Previously-Filed Motions

Approximately six weeks after Matthews filed the Complaint, Whitewater filed a Motion to Dismiss for Forum Non Conveniens ("Motion to Dismiss") [ECF No. 33]. In the Motion, Whitewater maintained the Complaint should be dismissed because the accident occurred in The Bahamas; Atlantis was not a party to the lawsuit; Matthews was not a Florida resident; Whitewater was a foreign corporation with its principal place of business in Canada; the liability and damages witnesses resided outside of Florida; and Matthews had added additional defendants who have no relationship to the Waterslide or its maintenance in an effort to create the appearance that Florida was an appropriate forum, when it is not. (See generally Mot. to Dism.). Matthews opposed the Motion, arguing the strong federal interest in affording U.S. citizens the right to choose an American forum for bringing suit, the balance of the private and public interest factors weighed in his favor, and because a dismissal would leave him trying two cases in two different countries inasmuch as the other defendants in the case had not moved to dismiss the suit. (See generally Resp. to Mot. to Dism. [ECF No. 51]). On May 8, 2012, the Court issued an Order [ECF No. 76] denying Whitewater's Motion to Dismiss.

Thereafter, on July 17, 2012, Whitewater filed a Motion for Judgment on the Pleadings ("Motion for Judgment") [ECF No. 97]. Whitewater maintained it was entitled to judgment because Matthews' strict liability claims had to be dismissed under Bahamian and Florida law. Specifically, Whitewater argued that Bahamian law did not recognize a cause of action for strict products liability. Whitewater further maintained it was entitled to judgment under Florida lawbecause "'[p]rinciples of strict products liability do not apply to structural improvements to real property,'" and the Waterslide constitutes a structural improvement to real property. (Id. 4 (quoting Craft v. Wet 'N Wild, Inc., 489 So. 2d 1221, 1222 (Fla. 5th DCA 1986)). Matthews responded that Whitewater had failed to establish that Bahamian law did not recognize a cause of action for strict products liability, and, moreover, the Waterslide was not a structural improvement to real property under Florida law. (See generally Resp. to Mot. for Judg. [ECF No. 105]). Matthews also argued judgment was inappropriate because Whitewater had "failed to show based on the pleadings that no material issues of...