Opinion
Index No. 513132/2019 MS No. 3
06-25-2024
ANTHONY WILSON as Administrator of the Estate of TREVOR WILSON, deceased, Plaintiff, v. RENAISSANCE WESTCHESTER HOTEL, SUNSTONE RED OAK, LLC., SUNSTONE RED OAK LESSE, INC., MARRIOT INTERNATIONAL, INC., HIGHGATE HOTELS, L.P., AND COMMAND SECURITY CORPORATION, Defendants.
Unpublished Opinion
PRESENT: HON. WAYNE SAITTA, Justice.
DECISION AND ORDER
WAYNE SAITTA, JUDGE.
The following papers read on this motion:
NYSCEF Doc Nos Notice of Motion/Order to Show Cause/ Petition/Affidavits (Affirmations) and Exhibits... 98-128
Cross-motions Affidavits (Affirmations) and Exhibits Answering Affidavit (Affirmation)...133-139
Reply Affidavit (Affirmation)... 142
Supplemental Affidavit (Affirmation)...__
This case involves the drowning of the Plaintiff decedent, TREVOR WILSON, at the Renaissance Westchester Hotel owned by Defendants RENAISSANCE WESTCHESTER HOTEL, SUNSTONE RED OAK, LLC., SUNSTONE RED OAK LESSE, INC., MARRIOT INTERNATIONAL, INC., HIGHGATE HOTELS, L.P. ("the Hotel Defendants"). TREVOR WILSON was a guest at the hotel and entered the indoor pool area with several other guests at around 5 a.m., a time when the pool area was closed.
TREVOR WILSON's autopsy revealed that he was intoxicated at the time of the incident.
The Hotel Defendants move for summary judgement arguing that they breached no duty towards Plaintiff and that Plaintiff was the sole cause of his accident because he chose to swim while intoxicated.
Plaintiff counters that Defendants failed to call the police to remove Plaintiff and the other guests from the pool and failed to comply with their own safety plan for the pool.
The Plaintiff gained access to the pool area though the key card he was given by the Hotel. Although the pool closed at io p.m., the key card still allowed access after that time.
The security guard at the Hotel entered the pool area and told the guests to leave. Approximately a half hour later, the front desk clerk of the Hotel went to the pool area and told the guests to leave and told them if did not leave he would call the police. The front desk clerk does not recall specifically speaking with Plaintiff.
The front desk clerk returned to the front desk but did not call the police nor did he notify the Hotel manager. At approximately 6:53 a.m., the security guard saw someone in the pool who was not moving and notified the front desk clerk.
The front desk clerk went to the pool area with the manager on duty at approximately 6:54 a.m. and EMS was called. EMS arrived at 7:01 a.m. None of the hotel employees nor the security guard performed CPR on Plaintiff. CPR was performed by guests in the pool area.
The autopsy report of Plaintiff states that his cause of death was asphyxia by drowning and the time of death was approximately 6:40 a.m. The report also states that Plaintiff had a blood alcohol level of .23mg/dl.
Plaintiff contends that the Hotel Defendants were negligent in failing to secure the pool so that it was not accessible after its hours of operation and in failing to remove Plaintiff and other guests from the pool area when they had knowledge that alcohol was being consumed.
Plaintiff further contends that the Hotel Defendants were negligent in their failure to supervise and monitor the pool area, to follow the Hotel's pool safety plan, and by failing to provide CPR to TREVOR WILSON, when CPR certified staff is required in the premises.
Defendants argue that the night clerk told the guests to leave the pool area and that the Hotel was not obligated to call the police to remove the Hotel's guests when they did not leave.
A pool owner owes no duty to eject trespassers from a closed pool (Garcia v. City of New York, 205 A.D.2d 49 [2d Dept 1994]). This is so even when they are intoxicated (id.)
Further, a person '"who engages in water sports assumes the reasonably foreseeable risks inherent in the activity' including swimming . . . (Jahier v. Jahier, 50 A.D.3d 966, 967 [2d Dept 2008], quoting Sartoris v. State of New York, 133 A.D.2d 619, 620 [2d Dept 1987]).
The Hotel Defendants had no duty to call the police to eject Plaintiff and their failure to do so was not a proximate cause of Plaintiff accident.
There was no allegation that there was any defect or dangerous condition at the pool, other than that Plaintiff was able to gain access after the pool was closed with his key card. However, the fact that he was swimming after hours was not a proximate cause of his death. As the pool was less than five feet deep a lifeguard was not required to be provided, and one was not provided when the pool was open.
Allowing access to the pool after hours merely furnished the occasion for Plaintiff death but did not put in motion the agency by which his injuries were inflicted (Rivera v. New York, 11 N.Y.2d 856 [1962]; see also Hain v. Jamison, 28 N.Y.3d 524 [2016]).
Generally, it is for the trier of fact to determine the issue of proximate cause (Riccio v. Kid. Fit Inc., 126 A.D.3d 873 [2d Dept 2015]; Kalland v. Hungry Harbor Assoc., LLC, 84 A.D.3d 889 [2d Dept 2011]). However, the issue of proximate cause may be decided as a matter of law where only one conclusion may be drawn from the established facts (Garcia v. City of New York, 205 A.D.2d 49 [2d Dept 1994]; Canals v. Tilcon New York, Inc., 135 A.D.3d 683 [2d Dept 2016]; Riccio v. Kid Fit Inc., 126 A.D.3d 873).
Plaintiff cites several violations of the New York Code of Rules and Regulation issued by the Westchester County Department of Health, specifically:
10 N.Y.C.R.R. 6-1.23(a)(1) and 6-14(6)(1), in falling to supervise the pool "constituting a public health hazard"
10 N.Y.C.R.R. 6-1.23(a)(10)(i) in failing to have qualified CPR certified staff on the premises
10 N.Y.C.R.R. 6-1.4(b)(12) in that the entrance(s) to the pool were not properly working or maintained to require a positive closing or latching mechanism "constituting an imminent public health hazard to the safety of the public" according to the Westchester Department of Health
10 N.Y.C.R.R. 6-1.23(c) in failing to implement and/or update a safety plan
10 N.Y.C.R.R. 6-1.23(b) in failing to have lines attached to its ring buoys
However, these violations were not a proximate cause of Plaintiff accident.
The claim that the Hotel violated the code by failing to supervise the pool is misplaced. The pool was a level IV pool, less than 5 feet in depth, and thus did not require continuous monitoring. The pool did not have a lifeguard during the hours that it was open, nor was it required to have one.
Similarly, the claim that failing to have qualified CPR certified staff on the premises is unfounded. The report of the investigation by the New York State Department of Health found that Rebecca Nuesi, the manager on duty, was CPR certified and was on the premises in her hotel room on the date incident.
Neither the fact that the sign posted at the pool did not indicate that swimming after hours was prohibited, nor the Hotel's failure to distribute the rules governing pool usage to Plaintiff was a cause of his accident.
Further, failure to enforce pool regulations is not alone a proximate cause of a swimmers injury (see Colon v. City of New York, 200 A.D.2d 704 [2d Dept 1994]).
In Colon, the Appellate Division held that failing to reinforce a written "no diving" prohibition was not a proximate cause of the infant plaintiffs injuries (see also Smith v. Stark, 67 N.Y.2d 693 [1986]; Valdez v. City of New York, 148 A.D.2d 697 [2d Dept 1989]; Anello v. Town of Babylon, 143 A.D.2d 714 [2d Dept 1988]).
Lastly, there was no evidence presented that the failure to have lines attached to ring buoys had any causal relation to Plaintiff accident.
WHEREFORE, it is ORDERED that the motion of Defendants RENAISSANCE WESTCHESTER HOTEL, SUNSTONE RED OAK, LLC., SUNSTONE RED OAK LESSE, INC., MARRIOT INTERNATIONAL, INC., HIGHGATE HOTELS, L.P. to dismiss the complaint and all cross claims asserted against them is granted.