Charles Black et al. v. Kerzner International Holdings, Ltd. et al.

Hamilton, Miller & Birthisel attorneys Jerry Hamilton, Carlos Chardon, and Matt O’Brien succeeded in winning summary judgment on a punitive damages claim in favor of their client, Kerzner, the owner and operator of the Atlantis Resort and Water Park in The Bahamas.

The case arose from a collision between Plaintiff Charles Black and his son Chaz Black in the splash pool of the Abyss water slide, a 200-foot body slide at Atlantis owned and operated by Kerzner.  Charles Black claimed that Kerzner’s lifeguard, stationed at the splash pool, caused the collision by prematurely pressing a dispatch button signaling Charles Black to enter the Abyss before Chaz had an opportunity to move out of a “splash zone” where riders splash down.  Charles Black faulted Kerzner for negligent retention of the lifeguard, negligent supervision and training of lifeguards, negligent operation of the Abyss, and failure to adopt policies and procedures that Plaintiff alleged would prevent the Black incident.  Additionally, Charles Black claimed that Kerzner had notice of a dangerous condition at the Abyss based upon three collision incidents that occurred in the tube of the Abyss slide, and that the Black incident was foreseeable.

In its defense of Kerzner, HM&B obtained record evidence that Kerzner operated the Abyss slide safely with over 1 million users since its opening in 2007 without a single incident of a collision in the splash pool.  Moreover, Kerzner’s lifeguard stationed at the Abyss splash pool on the date of the incident testified that he saw Chaz walk into the “safe zone,” causing him to push the dispatch button, when Chaz suddenly and unforeseeably turned around and went back to the slide exit to retrieve his cap.  Based upon the strong safety record at the Abyss, HM&B argued that Kerzner had no notice of any dangerous condition at the Abyss at the time of the Black incident.

Kerzner moved for summary judgment on Charles Black’s punitive damages claims on the grounds that the facts established no basis for punitive damages.  Agreeing with HM&B’s motion, the court held that the evidence did not support punitive damages, even if the bottom lifeguard prematurely dispatched Charles Black into the splash pool before his son Chaz had an opportunity to move.  HM&B established that Charles Black could not meet the elements of Florida’s punitive damages statute, which required a showing by clear and convincing evidence of intentional misconduct or gross negligence by the lifeguard, as well as either gross negligence by Kerzner, or Kerzner’s active and knowing participation in the lifeguard’s conduct.  HM&B’s motion for summary judgment persuaded the court to hold that none of Kerzner’s policies and procedures on lifeguard placement, entering the water, timing of pressing the dispatch button, or alleged prior incidents cited by plaintiffs was a basis for awarding punitive damages.  The case settled shortly after the order granting summary judgment on punitive damages.