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Kamal-Hashmat v. Loews Miami Beach Hotel Operating Co., Inc.

Florida Court of Appeals, Third District

December 18, 2019

Iman Kamal-Hashmat, etc., Appellant,
v.
Loews Miami Beach Hotel Operating Co., Inc., etc., Appellee.

         Not final until disposition of timely filed motion for rehearing.

          An Appeal from the Circuit Court for Miami-Dade County Lower Tribunal No. 14-27829, Jacqueline Hogan Scola and Antonio Arzola, Judges.

          Podhurst & Orseck and Joel D. Eaton and Ricardo M. Martinez-Cid, for appellant.

          Law Offices of Charles M-P George and Charles M-P George; Boyd, Richards, Parker, Colonnelli and Maria E. Dalmanieras, for appellee.

          Before EMAS, C.J., and SALTER and GORDO, JJ.

          SALTER, J.

         Iman Kamal-Hashmat is the personal representative of the Estate of her late husband, Kamal Hashmat, who drowned in a hotel swimming pool in December 2013.[1] Mr. Hashmat's tragic death and the subsequent wrongful death lawsuit in the Miami-Dade Circuit Court (a) present a question whether or not a private hotel in Florida has a legal duty to hire professional lifeguards to supervise its swimming pool, and (b) the appropriate jury instructions to be given, based on the answer to that question.

         The Parties, Lawsuit, Trial, and Defense Judgment

         The appellant, plaintiff below, will be referred to as "the Estate." The appellee, defendant below, [2] Loews Miami Beach Hotel Operating Co., Inc., will be referred to as "Loews."

         The Estate's wrongful death lawsuit against Loews alleged: Mr. Hashmat was a "paying guest" of Loews; Mr. Hashmat entered and swam in the hotel swimming pool, which was operated, maintained, and controlled by Loews; Mr. Hashmat struggled in the water and then became completely submerged; and "[a]s a result of the negligence and otherwise wrongful conduct of [Loews] . . . and/or the negligence vicariously attributed to [Loews], [Mr. Hashmat] died." Additional allegations described Loews duties to Mr. Hashmat and other guests: "to provide, operate, control, manage, and/or maintain reasonably safe swimming pool(s), pool facilities, and/or pool environment . . . and to protect the guests and invitees, including [Mr. Hashmat] from unreasonable risk of physical harm."

         The Estate's complaint also alleged that Loews "had an additional duty to promulgate proper policies and procedures" for the operation and maintenance of the swimming pool and pool area, including policies and procedures to train and supervise Loews [hotel employees and staff members], another additional duty "to exercise due care in hiring, training, and/or supervising" those hotel employees and staff members, and another additional duty "to warn users of the swimming pool(s)" and pool area "that there would not be a lifeguard on duty and warn about all other dangers associated with the use of [the pool and pool area]."

         After pretrial motions, discovery, and other proceedings, the case was tried in 2018 before a jury. Two pretrial rulings affected the Estate's contention that Loews' obligation to have a professional lifeguard on duty, or not, was a fact issue triable to the jury. First, the trial court granted Loews a partial summary judgment on its motion for a ruling that Loews had no legal obligation to its guests to have professional lifeguards on duty when the pool was open: "While [the Estate] may have multiple grounds as to why Loews may have breached its duty to exercise ordinary and reasonable care, it cannot rely on the lack of a professional lifeguard, alone, as the basis for the breach."

         Second, the trial court granted in part Loews' motion in limine:

[The Estate] is precluded from arguing or presenting testimony that Loews had a duty to provide a lifeguard or that Loews breached a duty or acted unreasonably solely by failing to post a lifeguard. However, reference to the use of the word lifeguard is not precluded at trial. [The Estate] may argue and present testimony that Loews owed a duty of reasonable care to its guests in providing for the supervision and safety of its pool, and that because there was no duty to have ...

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