Milberger v. Kbhl, LLC

• Decision Date: 22 February 2007
• Docket Number: Civ. No. 05-00297 ACK/KSC.
• Citation: 486 F.Supp.2d 1156
• Court: U.S. District Court — District of Hawaii
• Parties: Kenneth MILBERGER, and Heather Olsen, Plaintiffs, v. KBHL, LLC dba Kaanapali Beach Hotel; C & Sea Ocean Sports; County of Maui; John/Jane Does, Doe Companies, Doe Partnerships, Doe Corporations and/or Other Doe Entities 1-250, Defendants.

486 F.Supp.2d 1156

Kenneth MILBERGER, and Heather Olsen, Plaintiffs, v. KBHL, LLC dba Kaanapali Beach Hotel; C & Sea Ocean Sports; County of Maui; John/Jane Does, Doe Companies, Doe Partnerships, Doe Corporations and/or Other Doe Entities 1-250, Defendants.

Civ. No. 05-00297 ACK/KSC.

United States District Court, D. Hawai`i.

February 22, 2007.

Anthony L. Ranken, Michelle L. Drewyer, Ranken & Drewyer, Wailuku, HI, for Plaintiffs.

David M. Louie, James Shin, Roeca Louie & Hiraoka, David Y. Suzuki, Howard F. McPheeters, Burke McPheeters Bordner & Estes Pacific Guardian CTR Mauka TWR, Honolulu, HI, Brian T. Moto, Moana Monique Lutey, Department of the Corporation Counsel, Wailuku, HI, for Defendants.

ORDER GRANTING DEFENDANTS' PARTIAL MOTION FOR SUMMARY JUDGMENT AND DISMISSING PLAINTIFF OLSEN'S CLAIM FOR GROSS NEGLIGENCE

KAY, Senior District Judge.

PROCEDURAL BACKGROUND

On April 28, 2005, Kenneth Milberger and Heather Olsen¹ ("Plaintiffs") filed a Complaint in this Court against KBHL, LLC, dba Kaanapali Beach Hotel; C & Sea Ocean Sports;² Kaanapali Beach Resort Association, Inc.; the County of Maui; and John/Jane Doe Entities(hereinafter collectively referred to as "Defendants"). Plaintiffs' Complaint alleged:

(I) KBHL, LLC, dba Kaanapali Beach Hotel, and C & Sea Ocean Sports negligently invited Plaintiffs to enter the waters fronting the Kaanapali Beach Hotel and negligently failed to warn Plaintiffs about dangers of entering, the water, causing Plaintiff Milberger to be injured by a wave;

(II) Kaanapali Beach Resort Association, Inc., negligently invited and enticed Plaintiffs to the beachfront and failed to provide safety precautions for invitees causing Plaintiff Milberger's injuries;

(III) County of Maui negligently invited and enticed Plaintiffs to beachfront without providing for safety of invitees causing Plaintiff Milberger's injuries;

(IV) Defendants were grossly negligent;

(V) Defendants' negligence caused Plaintiff Olsen to lose the consortium of her fiancé, Plaintiff Milberger;

(VI) Defendants negligently inflicted emotional distress upon Plaintiff Olsen.

On October 28, 2005, all parties stipulated to dismiss with prejudice Defendant Kaanapali Beach Resort Association.

On November 29, 2006, a stipulation was submitted to dismiss all claims against the County of Maui with prejudice. The stipulation, however, did not contain the signatures of all the parties as required by Fed.R.Civ.P. 41(a)(1). As of today no Order has been issued to dismiss the County of Maui.

On November 14, 2006, Defendants KBHL, LLC, dba Kaanapali Beach Hotel, and C & Sea Ocean Sports, Inc., filed a Motion for Partial Summary Judgment ("Motion") to dismiss Plaintiff Olsen's claims for loss of consortium (Count V) negligent infliction of emotional distress (Count VI), and gross negligence (Count IV). At the same time, Defendants filed a Concise Statement of Facts in Support of their Motion ("Def. CSF").

On January 4, 2007, Plaintiffs filed a Memorandum in Opposition to Defendants' Motion for Partial Summary Judgment ("Opposition") and a Separate Concise Statement of Facts in Support of their Opposition ("Pl. CSF").

On January 11, 2007, Defendant C & Sea Ocean Sports, Inc., filed a Reply Memorandum in support of the Defendants' Motion for Partial Summary Judgment ("C & Sea Reply"). On the same day, Defendant KBHL, LLC, dba Kaanapali Beach Hotel, also filed a Reply Memorandum in Support of the Defendants' Motion for Partial Summary Judgment ("KBHL Reply").

A hearing was held on January 22, 2007, on Defendants' Motion for Partial Summary Judgment.

FACTUAL BACKGROUND³

On May 2, 2003, Plaintiffs Kenneth Milberger and Heather Olsen, residents of Las Vegas, Nevada, were vacationing in Maui and were guests at the Kaanapali Beach Hotel ("KBH"). See Def. CSF Exh. "A" at ¶¶ 1, 8. Plaintiffs utilized vouchers provided by KBH to rent snorkels, masks, and fins at C & Sea Ocean Sports. Id. at ¶ 10. There was a high surf advisory in effect for the waters fronting KBH, of which Plaintiffs claim they were unaware and never warned. Id. at ¶ 11. After he entered the water, Plaintiff Milberger was struck by a large wave and sustained injuries. Id. at ¶ 13. Plaintiff Olsen was present when Milberger was struck and personally witnessed the incident. Id. at ¶ 35, Pl. CSF Exh. "2" at p. 79. Plaintiff Olsen asserts that she suffered mental and emotional injury. See Pl. CSF Exh. "2" at p. 82.

According to Plaintiffs' deposition testimony, Plaintiffs Milberger and Olsen met and began dating in early 2002. Pl. CSF Exh. "1" at p. 49. They became engaged to be married on February 12, 2003, but never scheduled a wedding date. See Def. CSF Exh. "C" at p. 52. Plaintiffs had been engaged for less than three months when the accident occurred on May 2, 2003. See Def. CSF Exh. "B" at p. 35. Plaintiffs lived together from about March or April of 2003 until August of 2005. See Pl. CSF Exh. "2" pp. 260, 328. Prior to moving in together in early 2003, Plaintiffs opened a shared bank account. Id. at p. 53. While living together, they shared household expenses including a mortgage and childcare expenses for Milberger's daughter, Mia. Id. at p. 329. Before the incident, Milberger and Olsen had an active and fulfilling sexual relationship. After the incident, they were not able to have sex for a period of time. Id. at p. 347. Olsen asserts that after the accident, she assumed all of the household responsibilities and cared for Milberger. Id. at pp. 330-32. Olsen also says there were changes to Milberger's personality after the accident and that he became moody, cranky, and verbally abusive towards Olsen. Id. at pp. 346, 350. Following the incident, Olsen saw and was treated by a Dr. Gary Deshazo for depression and claimed that taking care of Milberger was affecting her well being. See Pl. CSF Exh. "3" at p. 3. Olsen moved out to Oregon in August of 2005. See Pl. CSF Exh. "2" at p. 260. According to Milberger she broke off the engagement to Milberger in April of 2006; although Olsen said that she is unsure of the status of her relationship to Milberger. Def. CSF Exh. "C" at p. 56, Pl. CSF Exh. "2" at p. 114. Milberger and Olsen still communicate occasionally via the telephone. See Def. CSF Exh. "C" at p. 56, Pl. CSF Exh. "2" at p. 114.

STANDARD

I. Motion for Summary Judgment

The purpose of summary judgment is to identify and dispose of factually unsupported claims and defenses. See Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). Summary judgment is therefore appropriate 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).

"A fact is `material' when, under the governing substantive law, it could affect the outcome of the case. A `genuine issue' of material fact arises if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.'" Thrifty Oil Co. v. Bank of Am. Nat'l Trust & Say. Ass'n, 322 F.3d 1039, 1046 (9th Cir.2003) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)) (internal citation omitted).⁴ Conversely, where the evidence could not lead a rational trier of fact to find for the nonmoving party, no genuine issue exists for trial. See Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986) (citing First Nat'l Bank v. Cities Serv. Co., 391 U.S. 253, 289, 88 S.Ct. 1575, 20 L.Ed.2d 569 (1968)).

The moving party has the burden of persuading the court as to the absence of a genuine issue of material fact. Celotex, 477 U.S. at 323, 106 S.Ct. 2548; Miller v. Glenn Miller Productions, 454 F.3d 975, 987 (9th Cir.2006). The moving party may do so with affirmative evidence or by "`showing' — that is pointing out to the district court — that there is an absence of evidence to support the nonmoving party's case." Celotex, 477 U.S. at 325, 106 S.Ct. 2548.⁵

Once the moving party satisfies its burden, the nonmoving party cannot simply rest on the pleadings or argue that any disagreement or "metaphysical doubt" about a material issue of fact precludes summary judgment. See Celotex, 477 U.S. at 323, 106 S.Ct. 2548; Matsushita Elec., 475 U.S. at 586, 106 S.Ct. 1348; Cal. Arch. Bldg. Prods., Inc. v. Franciscan Ceramics, Inc., 818 F.2d 1466, 1468 (9th Cir.1987).⁶ The nonmoving party must instead set forth "significant probative evidence" in support of its position. T.W. Elec. Serv. v. Pacific Elec. Contractors Ass'n, 809 F.2d 626, 630 (9th Cir.1987). Summary judgment will thus be granted against a party who fails to demonstrate facts sufficient to establish an element essential to his case when that party will ultimately bear the burden of proof at trial. See Celotex, 477 U.S. at 322, 106 S.Ct. 2548.

When evaluating a motion for summary judgment, the court must construe all evidence and reasonable inferences drawn therefrom in the light most favorable to the nonmoving party. See T.W. Elec. Serv., 809 F.2d at 630-31.⁷ Accordingly, if "reasonable minds could differ as to the import of the evidence," summary judgment will be denied. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250-51, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).

II. Choice of Law

Federal courts sitting in diversity apply state substantive law and federal procedural law. Hanna v. Plumer, 380 U.S. 460, 465, 85 S.Ct. 1136, 14 L.Ed.2d 8 (1965); Erie v. Tompkins, 304 U.S. 64, 78, 58 S.Ct. 817, 82 L.Ed. 1188 (1938). When interpreting state law, a federal court is bound by the decisions of a state's highest court. Arizona Electric Power Cooperative, Inc. v. Berkeley, 59 F.3d 988, 991 (9th Cir.1995). "In the absence of such a decision, a federal court must predict how the highest state court would decide the...