final until disposition of timely filed motion for rehearing.
Appeal from the Circuit Court for Miami-Dade County Lower
Tribunal No. 14-27829, Jacqueline Hogan Scola and Antonio
Podhurst & Orseck and Joel D. Eaton and Ricardo M.
Martinez-Cid, for appellant.
Offices of Charles M-P George and Charles M-P George; Boyd,
Richards, Parker, Colonnelli and Maria E. Dalmanieras, for
EMAS, C.J., and SALTER and GORDO, JJ.
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. 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.
Parties, Lawsuit, Trial, and Defense Judgment
appellant, plaintiff below, will be referred to as "the
Estate." The appellee, defendant below,  Loews Miami Beach
Hotel Operating Co., Inc., will be referred to as
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."
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]."
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."
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 ...