LOUISVILLE SW HOTEL, LLC AND LTS HOSPITALITY MANAGEMENT, LLC APPELLANTS/CROSS-APPELLEES
CHARLESTINE LINDSEY, INDIVIDUALLY; CHARLESTINE LINDSEY, AS ADMINISTRATRIX OF THE ESTATE OF CHANCE BROOKS, A MINOR AND STEVEN BROOKS, JR. APPELLEES/CROSS-APPELLANTS
AND CROSS-APPEAL FROM JEFFERSON CIRCUIT COURT HONORABLE
ANGELA MCCORMICK BISIG, JUDGE ACTION NO. 14-CI-003303
FOR APPELLANTS/CROSS- APPELLEES: Diane M. Laughlin Megan P.
O'Reilly Louisville, Kentucky
ARGUMENT FOR APPELLANTS/CROSS-APPELLEES: Diane M. Laughlin
FOR APPELLEES/CROSS-APPELLANTS, CHARLESTINE LINDSEY,
INDIVIDUALLY; CHARLESTINE LINDSEY, AS ADMINISTRATRIX OF THE
ESTATE OF CHANCE BROOKS, A MINOR: Garry R. Adams A. Pete Lay
ARGUMENT FOR APPELLEES/CROSS-APPELLANTS, CHARLESTINE LINDSEY,
INDIVIDUALLY; CHARLESTINE LINDSEY, AS ADMINISTRATRIX OF THE
ESTATE OF CHANCE BROOKS, A MINOR: Garry R. Adams Louisville,
FOR APPELLEE/CROSS-APPELLANT STEVEN BROOKS, JR.: No brief
BEFORE: COMBS, LAMBERT AND K. THOMPSON, JUDGES.
THOMPSON, K., JUDGE
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.
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
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
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.
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.
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.
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.
testified that she was aware no lifeguard was on duty. She
instructed Chance to stay in the shallow end of the pool.
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.
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.
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.
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.
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.
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.
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.
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
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.
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
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.
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
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.
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.
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.
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.
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.
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.
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
close of the evidence, the Comfort Inn moved for a directed
verdict on the issue of punitive damages. The trial court
denied the motion.
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 ...