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Yager v. Starwood Hotels & Resorts Worldwide, Inc.

United States District Court, Third Circuit

June 3, 2013



BARCLAY SURRICK, District Judge.

Presently before the Court are Defendant Starwood Hotels & Resorts Worldwide, Inc.'s Motion to Dismiss Plaintiffs' Complaint Pursuant to F.R.C.P 12(b)(3) (ECF No. 4), and Defendant Sheraton Nassau Beach Resort's Motion to Dismiss Plaintiffs' Complaint Pursuant to F.R.C.P 12(b)(3) (ECF No. 13). For the following reasons, Defendants' Motions will be denied.


On July 26, 2012, Plaintiffs Paige Peabody Yager and her husband, Jeffrey Yager, commenced this action in the Philadelphia Court of Common Pleas against Defendants Starwood Hotels and Resorts Worldwide, Inc. ("Starwood"), Sheraton Nassau Beach Resort ("Sheraton"), and Baha Mar Properties, Ltd. ("Baha Mar"). (Compl., Notice of Removal, Ex. A, ECF No. 1.)[1] Plaintiffs are citizens of Pennsylvania and reside in Bala Cynwyd, Pennsylvania. (Am. Compl. ¶ 1, ECF No. 11.) Starwood, a hospitality ownership and management organization, is incorporated in Maryland, with its current corporate office located in White Plains, New York. ( Id. at ¶¶ 2, 7.) Starwood has a registered corporate agent in Harrisburg, Pennsylvania. ( Id. at ¶ 2.) Sheraton, a Bahamian Resort hotel, is incorporated in the Bahamas with its principal place of business in Nassau, Bahamas. ( Id. at ¶ 3.) Baha Mar owns and operates resorts in the Bahamas, is incorporated in the Bahamas, and has its principal place of business in Nassau, Bahamas. ( Id. at ¶¶ 4, 9.) According to Plaintiffs, Baha Mar owns the Sheraton, and both entities have a management agreement with Starwood, whereby Starwood operates and manages the Sheraton. ( Id. at ¶¶ 10, 11.) Plaintiffs brought this negligence action against Defendants based on injuries sustained by Mrs. Yager while she was a guest at the Sheraton. ( Id. at ¶¶ 15-17.) On April 4, 2011, Mrs. Yager was sitting on the hotel's beach in a lounge chair when a several hundred pound inflatable waterslide, positioned near her chair, blew over, and crashed on top of her. ( Id. at ¶¶ 16, 17.)[2] As a result of the incident, Mrs. Yager suffered severe personal injuries. (Am. Compl. ¶ 17.)

On August 21, 2012, Starwood removed the action to this Court. (Notice of Removal.) On August 28, 2012, Starwood filed the instant Motion to Dismiss Pursuant to Federal Rule of Civil Procedure 12(b)(3). (Starwood's Mot., ECF No. 4.) Defendant Sheraton also filed a Motion to Dismiss Pursuant to Federal Rule of Civil Procedure 12(b)(3) on November 26, 2012. (Sheraton's Mot., ECF No. 13.)[3], [4]

On September 11, 2012, Plaintiffs filed a Response in Opposition to Starwood's Motion to Dismiss. (Pls.' Resp. to Starwood, ECF No. 5.) On October 19, 2012, Plaintiffs filed a Supplemental Brief Opposing Defendant Starwood's Motion to Dismiss. (ECF No. 9.) They also filed a response to Sheraton's Motion to Dismiss on December 7, 2012. (Pls.' Resp. to Sheraton, ECF No. 15.) On January 18, 2013, argument was held on Defendants' Motions. (Jan. 18, 2013 Hr'g Tr., ECF No. 21.)


Plaintiffs argue that Mrs. Yager's injuries resulted from the negligence of Defendants and their agents, servants, workmen, and/or employees. (Am. Compl. ¶ 22.) Plaintiffs assert that Defendants negligent behavior includes:

(a) failing to provide and maintain safe premises for business invitees and hotel guests, such as plaintiff; (b) failing to provide properly trained, experienced and supervised employees, servants, agents, workmen and/or independent contractors to adequately monitor, inspect and maintain the premises in a safe manner for the beneficial use and enjoyment of same by business invitees such as the plaintiff; (c) permitting the Sheraton Nassau Beach Resort to become and remain in a dangerous and unsafe condition due to the placement of a large, heavy Aquamarine Water Slide, which was not properly tethered, secured, positioned and/or monitored such that it could fall on a business invitee causing serious personal injuries; (d) failing to properly tether, secure, position and monitor the large, heavy Aquamarine Water Slide; (e) failing to adequately and properly inspect, monitor, tether, secure and/or position the large, heavy Aquamarine Water Slide so as not to create an unreasonable risk of harm to persons such as plaintiff; (f) failing to erect barriers or other adequate warnings with regard to the dangerous and defective condition existing by virtue of the unsecured large, heavy Aquamarine Water Slide which was positioned in the immediate vicinity of the chaise lounge chairs and defendants' hotel patrons; and (g) failing to properly instruct, direct and supervise its agents, servants, workmen, employees and/or independent contractors to ensure that appropriate measures and warnings were provided to protect guests and patrons from an unreasonable risk of harm caused by an untethered and unsecured large, heavy Aquamarine Water Slide positioned in close proximity to defendants' guests and patrons.

( Id. at ¶ 22(a)-(g).)

Both Starwood and Sheraton argue that Plaintiffs' Amended Complaint must be dismissed on the basis of forum non conveniens. In support of their Motions, Defendants attached the affidavit of Nicolas Lazarus, a Senior Loss Adjuster for Axis International Inc., who went to the Bahamas and investigated the events surrounding the accident. (Lazarus Aff., Starwood's Mot. Ex. G; Sheraton's Mot. Ex. H.)[5]

Lazarus states that in November 2011, he traveled to Nassau to investigate the incident that gave rise to the claim, and that as part of the investigation he met with several individuals who had knowledge of the incident. (Lazarus Aff. ¶ 3.) As part of his investigation he was provided with incident reports prepared by Athena Carroll and Stephanie Foster, both of whom were Aqua Marine employees at the time of the accident. ( Id. at ¶ 5.) Lazarus met with Carroll and Foster during the course of his investigation. ( Id. at ¶ 6.) In his affidavit, Lazarus reports that both Carroll and Foster assisted in erecting the waterslide prior to the incident, and were "eyewitnesses" to the events at issue. ( Id. at ¶¶ 7-8.) He further reports that Foster provided assistance to Mrs. Yager after the accident. ( Id. at ¶ 8.) Lazarus interviewed Taj Bastian, another Aqua Marine employee, who erected the waterslide and responded to Mrs. Yager after the incident occurred. ( Id. at ¶ 9.) Lazarus interviewed Jacob Davis, a Sheraton security employee who also responded to the scene of the incident. ( Id. at ¶ 10.) Finally, Lazarus reports that Mrs. Yager received initial medical treatment at a Doctors Hospital in the Bahamas, and underwent diagnostic testing at Fourth Terrace Diagnostic Centre Imaging at Grosvenor. ( Id. at ¶ 11.)

In further support of its Motion, Starwood provides the affidavits of Rothia Ferguson (Ferguson Aff., Sheraton's Mot. Ex. I) and Taj Bastian (Bastian Aff., Sheraton's Mot. Ex. J.) Ferguson is the Business Development Manager for Aqua Marine, and states that Athena Carroll was nearby the waterslide that landed on Mrs. Yager, and that Carroll attended to her following the accident. (Ferguson Aff. ¶¶ 1-3.) Ferguson does not state that Carroll was an eyewitness to the accident. Ferguson states that Carroll is no longer employed by Aqua Marine. ( Id. at ¶ 4.) In Bastian's affidavit, he states that he is still employed with Aqua Marine, and that he attended to Mrs. Yager following the waterslide collapse. (Bastian Aff. ¶ 1, 3.) Again, he does not state that he was a witness to the accident itself. He states that if he were required to travel to the United States for trial, it would be a substantial personal and professional burden. ( Id. at ¶ 5.)

In response, Plaintiffs identify several witnesses who will testify on their behalf who are located in the United States. First, Plaintiffs identify Carl Udell, an eyewitness to the incident, who helped to extricate Mrs. Yager from beneath the waterslide, and took photographs of the accident scene immediately following the incident. (Lavner Aff. ¶ 5, Pls.' Resp. Ex. 3.) Udell is a resident of Ohio, and states that he is willing to provide testimony in Philadelphia, but that it would be a substantial hardship if he were required to testify in the Bahamas. ( Id. ) Plaintiffs also identify several medical professionals who have provided medical treatment to Mrs. Yager following the incident. ( Id. at ¶ 4.) These medical providers are all based in and around the Philadelphia area. ( Id. ) Finally, Plaintiffs state that approximately twenty-five witnesses will provide testimony regarding Mrs. Yager's condition immediately prior to the accident ...

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