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Louisville SW Hotel, LLC v. Lindsey

Court of Appeals of Kentucky

May 17, 2019



          BRIEFS FOR APPELLANTS/CROSS- APPELLEES: Diane M. Laughlin Megan P. O'Reilly Louisville, Kentucky

          ORAL ARGUMENT FOR APPELLANTS/CROSS-APPELLEES: Diane M. Laughlin Louisville, Kentucky






          THOMPSON, K., JUDGE

         Charlestine Lindsey, individually as the natural mother and guardian of Chance Brooks; Charlestine Lindsey, as the Administratrix of the Estate of Chance Brooks, a minor; and Steven Brooks, Jr., individually as the natural father of Chance Brooks (collectively "the Estate") filed this action against Louisville SW Hotel, and LTS Hospitality Management, LLC for the wrongful death of Chance and for loss of consortium after Chance drowned in the pool at the Comfort Inn located on Dixie Highway in Louisville, Kentucky. Louisville SW Hotel is the owner of the Comfort Inn and LTS Hospitality Management manages and operates the hotel. For convenience, we refer to those entities as the "Comfort Inn." Following the entry of a judgment after a jury verdict, Comfort Inn appealed and the Estate cross-appealed.

         Comfort Inn presents the following issues: (1) whether the trial court improperly admitted evidence of the Louisville Metro Health Department's inspection reports generated over a two-year period noting violations of pool maintenance by the Comfort Inn; (2) whether the Estate was improperly permitted to seek recovery of the full amount of Chance's medical bills when a reduced amount paid by Medicaid satisfied the amount owed; (3) whether evidence of the Comfort Inn's revenue and expenses in the two months preceding Chance's drowning was improperly introduced; (4) whether the jury was improperly instructed as to the duty owed to Charlestine and Chance; (5) whether there was clear and convincing evidence to support a punitive damages award; and (6) whether the trial court should have further reduced the punitive damages award.[1]

         On cross-appeal, the Estate presents the following issues: (1) whether the trial court erred in not granting its motion for a new trial based on the jury's award of zero damages for Chance's power to labor and earn money, zero damages for Chance's physical pain and suffering, and zero damages loss of consortium to Charlestine and Steven; and (2) whether the trial court erred in reducing the punitive damages awarded.

         We conclude the jury's award of zero damages for Chance's power to labor and earn money, zero damages for Chance's pain and suffering and zero damages for loss of consortium requires a new trial on those issues. After retrial, the trial court is instructed to reconsider the remitter of punitive damages based on the ratio of compensatory damages to the $3 million in punitive damages awarded. As to all other issues presented, we affirm.

         On March 15, 2014, Charlestine, Chance and four other children arrived at the Comfort Inn to celebrate the birthday of Moses Lindsey's child. Moses, who was a registered guest at the hotel, also took five children with her to the hotel. The ten children brought to the hotel by the two women ranged in age from six months to twelve years.

         Moses testified that when she arrived at the hotel, the only noncustodial staff on duty was the front desk clerk, Luke Hansen. She testified the lobby was busy with other guests checking in and attending other parties. When Moses checked in, most of the hotel's eighty-five rooms were booked.

         Moses checked in with the five children she brought but was never advised by Hansen that there was any group party policy regarding the use of the pool. A short time later, Charlestine arrived through the hotel's front door with the five children she brought to the party. She and the children walked past Hansen who did not comment on the group's size breaking any hotel policy regarding the number of party guests. After calling Moses from the lobby, the two groups met and Charlestine and Moses assisted the children in getting dressed to swim and departed to the pool.

         Charlestine testified that she was aware no lifeguard was on duty. She instructed Chance to stay in the shallow end of the pool.

         At some point, Moses returned to her room with the six-month-old baby leaving Charlestine at the pool with the other nine children. Charlestine was in the hot tub with three of the younger children while the other six children, including Chance, were in the pool.

         While Charlestine was in the hot tub, Chance got out of the pool at the shallow end, walked to the deeper end, and entered the pool. The water was over his head at 4.8" inches deep. A surveillance video shows Chance immediately go into distress upon entering the deeper end of the pool and after a minute, go under water and not resurface. Charlestine did not see Chance get out of the shallow end of the pool, did not see him enter the deeper end of the pool, or see him in distress.

         Soon after Chance submerged, Charlestine began to gather the children to join Moses for dinner. She testified she looked into the pool but, because of the cloudy pool water, did not see Chance's body at the bottom. She then went to Moses's hotel room. Upon realizing Chance was not in the room, Charlestine returned to the pool and circled the pool looking directly into the water while standing poolside. Charlestine testified that the cloudy water prevented her from seeing Chance's body.

         Charlestine testified she realized Chance was submerged in the pool only after Chance's brother felt Chance's body underwater and alerted her. Charlestine entered the pool, went underwater with her eyes open, and searched for her missing son. Charlestine testified that despite she was only feet away from Chance's body, she was unable to see him because of the water's cloudiness.

         Approximately eleven minutes after going under water, Chance was pulled from the pool unconscious. He was taken to the hospital where he remained on life support until his death on March 28, 2014. This action was filed on June 20, 2014.

         At trial, the Estate maintained that the Comfort Inn was grossly negligent in permitting the pool to be overcrowded, maintaining the pool in such a condition that its cloudiness prevented Chance's body from earlier discovery and resuscitation, and having inadequate staff on duty on the date Chance drowned.

         The Estate introduced eight reports generated by the Louisville Metro Health Department noting violations committed by the Comfort Inn for not performing chemical testing or logging those tests as required by the Health Department in the two years prior to Chance's drowning. The reports advised the Comfort Inn that the items marked as violations are considered violations of Kentucky Revised Statutes (KRS) 211.180 and 902 Kentucky Administrative Regulations (KAR) 10:120 and must be corrected within ten days or further action would be taken. Seven of those violations occurred between April 2010 and March 2012. In March 2012, the Health Department conducted an administrative conference with the Comfort Inn to address issues relating to pool chemical logging and testing. The last Health Department report regarding chemical testing and logging occurred on May 24, 2013, just ten months prior to this incident.

         Tim Wilder, the Louisville Metro Health Department's Environmental Health Supervisor, testified logging and testing pool chemicals multiple times per day is highly important to pool safety. According to his testimony, testing and logging the pool water chemicals assist the pool operator to adapt for higher bather loads as more people in the pool require additional chemicals to keep the pool water safe and the water clear. He testified the lack of testing and logging by the Comfort Inn was particularly troublesome because the hotel used a tiny video monitor to track bather load. The Comfort Inn's pool safety expert as well as the Estate's testified that in regard to pool safety, regulatory code compliance is the bare minimum standard of care.

         John Lott, the owner of LTS Hospitality Management, LLC, and Hansen testified that the Health Department warnings and directions to the hotel regarding pool maintenance were not communicated up or down the chain of supervision. Lott testified that although he was to be notified of problems with pool inspections, he was only notified of any problem when the Comfort Inn's general manager, Randy Murdock, notified him that the Health Department called in Murdock for an administrative conference in March 2012.

         The Comfort Inn's log showed during the week Chance drowned, its staff tested and logged pool chemicals each day two times (except on the day of the drowning it was done only once because the pool was closed after Chance drowned). That testing was not in compliance with the Health Department's testing requirements pursuant to 902 KAR 10:120.

         Murdock testified that when he went into the pool area on the evening of the drowning, he noticed the water was cloudy. Health Department investigator, Ann Wethington, testified that when she inspected the pool water two days after the drowning, the main drain was barely visible because of the cloudy water. Wethington confirmed that Louisville Metro Health Department policy was that the main drain of a pool be clearly visible.

         The jury viewed the surveillance video recording of the pool on the date of Chance's drowning. Although the quality was not optimal, the jury could see Chance enter the pool and struggle to stay afloat. The jury could also see children swim next to Chance's body in what appeared to be cloudy water unaware he was underwater and his loved ones searching for him unable to see Chance at the bottom of the pool. It also showed that at one time, more than five bathers were in the pool.

         The Comfort Inn was responsible for enforcing the Health Department's 2-5 rule, which allows no less than two bathers, and no more than five bathers in the pool at one time without the presence of a qualified pool attendant or life guard. The rule was posted in the pool area. Swimmers and pool operators are subject to a $100 fine for violation of the rule.

         To enforce that rule at the Comfort Inn, the front desk clerk monitored the number of bathers in the pool from a small monitor located at the hotel's front desk displaying sixteen different security footage channels. Only one of those channels displayed the pool in an area approximately five inches wide. Hansen testified he did not know how many bathers were in the pool when Chance went underwater.

         Dr. Jerome H. Modell, a Florida physician specializing in anesthesiology and intensive-care medicine, testified on the Estate's behalf as a drowning expert. In 1971, he authored a book titled "The Pathophysiology and Treatment of Drowning and Near-Drowning" and has treated more than 100 near-drowning adult victims in his clinical practice. Dr. Modell also relied on an article written by Dr. Lowson who was shipwrecked in the early 1900's and almost drowned. In his article, Dr. Lowson described what occurred to him physically when submerged.

         Dr. Modell testified that a drowning victim suffers "great pain" in the chest which increases with each effort of expiration and inspiration. However, he did not offer any testimony regarding studies or accounts of a five-year-old child submerged underwater or the time it takes for that child to lose consciousness. He did testify that if Chance's body was earlier discovered, he would have had a strong chance for resuscitation and survival.

         Sara Ford testified as a vocational economics expert on behalf of the Estate. She testified that based on familial data and vocational economic statistical analysis, Chance's lifetime earning capacity was between $1, 890, 874 with a high school diploma and $3, 770, 805, with a bachelor's degree. The Comfort Inn offered no evidence as to Chance's employment or earnings prospects.

         The trial court denied the Comfort Inn's motion in limine to exclude testimony or evidence that the Estate incurred past medical expenses over $24, 284.15, the amount paid by Medicaid. The remaining medical expenses billed, $181, 395.10, was written off by Medicaid. The trial court denied the motion and permitted the Estate to admit a summary of Chance's medical expenses and to seek the full $205, 579.25 from the jury.

         The Comfort Inn also filed a motion in limine to prohibit and exclude any evidence or testimony regarding its financial records. The trial court denied the motion. At trial, the Estate was permitted to introduce financial records of the Comfort Inn from two months before Chance drowned. Lott testified that it was procedure for him to consider growth trends when staffing the hotel and that the hotel experienced a growth trend for 40% from the months of January to February 2014. Lott confirmed that there was increased convention traffic in March 2014. Evidence was also introduced that Murdock received a bonus for the year preceding the drowning based on the hotel's increased revenues.

         At the close of the evidence, the Comfort Inn moved for a directed verdict on the issue of punitive damages. The trial court denied the motion.

         The Comfort Inn requested the jury be instructed that the Comfort Inn owed Chance and Charlestine the duty of care owed by a property owner to a trespasser. The trial court rejected that instruction and instead gave an instruction ...

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