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ELLIOTT v. CLUB MED SALES

March 19, 2004.

PHYLLIS ELLIOTT, Plaintiff, -against- CLUB MED SALES, INC., COMPLEJOS TURISTICOS DE HUATULCO, S.A., AND OPERADORA DE ALDEAS VACACIONALES, S.A., DE C.V. Defendants


The opinion of the court was delivered by: DEBORAH BATTS, District Judge

MEMORANDUM & ORDER

Phyllis Elliott ("Plaintiff") brings this personal injury diversity action against Defendants Club Med Sales, Inc. ("Club Med"), Complejos Turisticos de Huatulco, S.A. ("Owner"), and Operadora de Aldeas Vacacionales, S.A., de C.V. ("Operator")*fn1 (collectively, "Defendants"), alleging common law negligence. Defendants now move for Summary Judgment pursuant to Federal Rule of Civil Procedure 56. For the reasons stated below. Defendants' Motion for Summary Judgment is DENIED.

I. BACKGROUND

  The present action arose from injuries that Plaintiff suffered on March 31, 1998, during a snorkeling excursion she Page 2 took part in while vacationing with her two daughters at the Club Med resort village in Huatulco, Mexico. (Defendants' Local Civil Rule 56.1 Statement ["Defs.' 56.1 Stmt"] ¶ 1; Plaintiff's Response to Defendant's Statement of Undisputed Facts Pursuant to Local Civil Rule 56.1 ["Pl.'s 56.1 Stmt."] at I).*fn2 Defendant Operadora de Aldeas Vacacionales, S.A. de C.V. was the operator of the resort when Plaintiff's accident occurred. (Defs.' 56.1 Stmt. ¶ 4; Pl.'s 56.1 Stmt. at 1). Defendant Complejos Turisticos de Huatulco, S.A. was the resort owner when Plaintiff's accident occurred. (Defs.' 56.1 Stmt. ¶ 5; Pl.'s 56. 1 Stmt. at 1).

  Plaintiff had gone snorkeling before this 1998 vacation. (Defs.' 56.1 Stmt. ¶ 6; Pl.'s 56.1 Stmt. at 1). She had snorkeled in Cozumel in the early 1970's and had also gone for `a couple' of sessions in Vieques, Puerto Rico. in 1995 or 1996, though she had always walked into the water from the beach and had never previously snorkeled off of a boat. (Defs.' 56.1 Stmt. ¶ 6; Pl.'s 56.1 Stmt. at 1; Deposition of Phyllis Elliot Terkeltaub, September 8, 2000 ["Elliott Dep."] at 13). In addition, in her prior snorkeling sessions, Plaintiff "had never worn a life jacket or flotation device," as she had never been Page 3 in water that was over her head. (Defs.' 56.1 Stmt. ¶ 6; Pl.'s 56.1 Stmt. at 1).

  Plaintiff had also gone boating from time to time over the years. Defs.' 56.1 Stmt. ¶ 7; Pl.'s 56.1 Stmt. at 1. As she recounted during her deposition, "sailing was 1977, sailboat on a lake, throughout the years of the '80's, motorboat, occasional sailboat, Fire Island ferry, everywhere and anywhere." (Elliott Dep. at 28; Defs.' 56.1 Stmt. ¶ 7; Pl.'s 56.1 Stmt. at 1).

  Plaintiff arrived at the Club Med resort in Huatulco. with her two daughters on March 30, 1998. (Defs.' 56.1 Stmt. ¶ 8; Pl.'s 56.1 Stmt. at 1). They decided the next morning to join a group snorkeling trip that departed from the resort. (Defs.' 56.1 Stmt. ¶ 9; Pl.'s 56.1 Stmt. at 1). The weather that day was "[p]erfect, gorgeous," with little wind and calm waters. (Elliott Dep. at 80; Defs.' 56.1 Stmt. ¶ 10; Pl.'s 56.1 Stmt. at 1). At about 10:20 a.m. Plaintiff and her daughters asked to go on the snorkeling trip and were issued snorkeling tubes and flippers" at the "little shop . . . beach side." (Defs.' 56.1 Stmt. ¶ 11; Pl.'s 56.1 Stmt. at 1; Elliott Dep. at 18).

  Plaintiff was aware when she signed up for the trip that she would be snorkeling off of a boat, and not walking into the water from the beach. (Defs.' 56.1 Stmt. ¶ 12; Pl.'s 56.1 Stmt. Page 4 at 1; Elliot Dep. at 20). Though written signs were posted at the little shop describing the trip, Plaintiff concedes that she did not read them. (Defs.' 56.1 Stint. ¶ 13; Pl.'s 56.1 Stmt. at 1; Elliot Dep. at 21-22).

  The group reached the snorkeling site aboard the "Coyote," an approximately 30-foot sailboat with a center cabin and a rope railing surrounding its perimeter. (Defs.' 56.1 Stmt. ¶ 14, 15; Pl.'s 56.1 Stmt. at 1). At the snorkeling site, Christian Frenette, the village staff person leading the snorkeling trip, warned the guests to stay together, to stay away from rocks, and not to stay in the water too long. (Defs.' 56.1 Stmt. ¶¶ 1, 15; Pl.'s 56.1 Stmt. at 1). He instructed the entire group, including Plaintiff, on how to enter the water from a ladder on the right side of the boat, (Elliot Dep. at 43-44); however, Plaintiff did not hear him instruct the group on entering the water by jumping off the side of the boat. (Id. at 44-45). Plaintiff's daughters went snorkeling, but Plaintiff initially decided to remain behind. (Defs.' 56.1 Stmt. ¶ 16; Pl.'s 56.1 Stmt. at 1).

  At about 11:30 a.m., Plaintiff decided to go snorkeling as well. (Defs.' 56.1 Stmt. ¶ 17; Pl.'s 56.1 Stmt. at 1). Plaintiff was not nervous about swimming or snorkeling in this Page 5 area. (Defs.' 56.1 Stmt. ¶ 18; Pl.'s 56.1 Stmt. at 1; Elliot Dep. at 58). Plaintiff alleges that, because she does not swim, she had to borrow a life vest from another guest before approaching Frenette about entering the water. (Elliott Dep. at 14-15, 55).

  Plaintiff told Frenette that she wished to enter the water via the ladder, but Frenette told Plaintiff that snorkelers returning to the boat were using the ladder to get back on board and that Plaintiff should instead enter the water by jumping off the side of the boat. See Defs.' 56.1 Stmt. ¶ 19, 20; Pl.'s 56.1 Stmt. at 1. Up to that point. Plaintiff had only witnessed the other snorkeling guests enter the water — at Frenette's direction — by way of the ladder. (Pl.'s 56.1 Stmt. at 1; Elliott Dep. at 51). Aside from telling her to enter the water by jumping, Frenette did not give Plaintiff any further instructions on how to do so. (Elliot Dep. at 61).

  Though Plaintiff asserts that she was "more comfortable using the ladder" (Elliot Dep. at 58), she also admits that she "felt comfortable enough" to jump into the water from the deck of the boat. (Defs.' 56.1 Stmt. ¶ 22; Pl.'s 56.1 Stmt. at 2; Elliott Dep. at 58). Plaintiff testified in her deposition that the distance from the deck of the boat to the water surface was Page 6 "three to four feet." (Defs.' 56.1 Stmt. ¶ 23; Pl.'s. 56.1 Stmt. at 2; Elliott Dep. at 79).

  Plaintiff's decision to participate in snorkeling and to jump into the water from the deck were voluntary. (Defs.' 56.1 Stmt. ¶ 24; Pl's 56.1 Stmt. at 1). Plaintiff concedes she was never forced by anyone to enter the water. (Defs.' 56.1 Stmt. ¶ 27; Pl.'s 56.1 Stmt. at 2).

  Plaintiff approached the perimeter of the boat, wearing her mask, along with the vest, and either carrying or wearing her flippers, and held onto the rope railing with her right hand. (Defs.' 56.1 Stmt. ¶ 28; Pl.'s 56.1 Stmt. at 1). Plaintiff knew from common sense that she would have to let go of the railing to enter the water. (Defs.' 56.1 Stmt. ¶ 29; Pl.'s 56.1 Stmt. at 1). Plaintiff let go of the rail and then "literally stepped off" the edge of the boat. (Elliot Dep. at 62, 72; Defs.' 56.1 Stmt. ¶ 30; Pl.'s 56.1 Stmt. at 1). Plaintiff "hit something on the boat going in, jumping in the water," though she could not identify what part of the boat she hit. (Elliott Dep. at 81 Defs.' ...


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