                           NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                           JUL 15 2020
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

STEVE PELL; et al.,                             No.    19-16912

                Plaintiffs-Appellants,          D.C. No.
                                                1:17-cv-00529-DKW-KJM
 v.

HMC KEA LANI, LP; CCFH MAUI LLC,                MEMORANDUM*

                Defendants-Appellees.

                  Appeal from the United States District Court
                            for the District of Hawaii
                 Derrick Kahala Watson, District Judge, Presiding

                             Submitted July 10, 2020**
                                Honolulu, Hawaii

Before: OWENS, FRIEDLAND, and R. NELSON, Circuit Judges.

      Plaintiffs-Appellants (“Pell”) brought this diversity action against

Defendants-Appellees (“Defendants”) to recover damages for negligence. Pell

alleges Defendants failed to warn him about unreasonably dangerous conditions

during his stay at Defendants’ Fairmont Kea Lani Resort. Pell alleges that as a


      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
result of this failure, he suffered a paralyzing injury while boogie boarding in the

water fronting the Fairmont Kea Lani Resort. The district court granted summary

judgment to Defendants, primarily because Defendants satisfied their duty to warn

Pell of the hazardous ocean conditions. Because the parties are familiar with the

facts of this case, we do not repeat them here. We have jurisdiction, and we

affirm.

      On appeal, Pell first contends that the district court erred by failing to apply

this Court’s decision in Tarshis v. Lahaina Inv. Corp., 480 F.2d 1019 (9th Cir.

1973). In Tarshis, we reversed the district court’s grant of summary judgment to a

Hawaii hotel on the basis that the hotel had no duty to warn guests about dangerous

ocean conditions that should have been known to a person of ordinary intelligence.

Id. at 1020–21. Notably, the plaintiff-guest alleged that she had not seen the

warning signs posted by the hotel or received verbal warnings about the surf

conditions. Id. at 1020. We held that the question whether a guest of ordinary

intelligence would have known that the surf conditions were hazardous was a

question for the finder of fact. Id. at 1021.

      At the time we issued Tarshis, liability for failure to warn about ocean

conditions was governed solely by common law negligence standards. That is no

longer the case. In 1994 Hawaii enacted a statute, Hawaii Revised Statutes

§ 486K-5.5, which sets forth a hotel’s liability for injuries sustained due to


                                           2
hazardous conditions on a public beach or in the ocean, including injuries sustained

from boogie boarding.1 Section 486K-5.5 imposes liability on a hotel only when it

has failed to warn of such conditions and where the hotel knew, or should have

known, of such conditions and the guest did not know of the hazardous conditions

or those conditions would not have been known to a reasonably prudent guest. In

the present case, the district court held that there was no genuine dispute of

material fact as to whether the Defendants satisfied their duty to warn pursuant to §

486K-5.5 or under Tarshis. We agree.

      Under either § 486K-5.5 or Tarshis, the central question is whether or not


1
      In full, § 486K-5.5 provides:

              In a claim alleging injury or loss on account of a hazardous
          condition on a beach or in the ocean, a hotelkeeper shall be liable to
          a hotel guest for damages for personal injury, death, property
          damage, or other loss resulting from the hotel guest going onto the
          beach or into the ocean for a recreational purpose, including wading,
          swimming, surfing, body surfing, boogie boarding, diving, or
          snorkeling, only when such loss or injury is caused by the
          hotelkeeper’s failure to warn against a hazardous condition on a
          beach or in the ocean, known, or which should have been known to
          a reasonably prudent hotelkeeper, and when the hazardous condition
          is not known to the guest or would not have been known to a
          reasonably prudent guest. A hotelkeeper owes no duty and shall
          have no liability for conditions which were not created by the hotel
          to a person who is not a guest of the hotel for injury or damage
          resulting from any beach or ocean activity.

As used in this section, “beach” means the beach fronting the hotel, and “hotel
guest” means a guest of that particular hotel and other persons occupying the
assigned rooms.

                                          3
Pell knew, or whether a reasonably prudent guest would have known, about the

hazardous ocean conditions that caused his injuries. Assuming all facts in the light

most favorable to Pell, the undisputed facts demonstrated that Pell knew about the

hazardous ocean conditions, including the dangers of boogie boarding in a

dangerous shore break. Specifically, Pell had asked a hotel employee about

renting a boogie board, but was denied because there was a high surf warning in

effect at the time. In addition, the hotel had posted—and Pell saw and read—a red

flag warning of high surf, as well as a warning sign at the beach that warned of

high surf, dangerous shore break, and that “[e]ntering the ocean can be dangerous

at any time.” After observing the surf conditions for himself, Pell borrowed a

boogie board from a beachgoer, and was then injured when he was “thrown” off of

the board by a wave.

      The undisputed facts show Defendants’ satisfied the requirements of both

§ 486K-5.5 and Tarshis. There is no genuine dispute of material fact as to whether

Pell was adequately warned by Defendants of the hazardous ocean conditions.

      Pell’s remaining arguments are equally unpersuasive. The fact that the hotel

was flying a red flag, which warns of high surf conditions, does not prove that this

was the only dangerous surf condition that the hotel warned Pell about. The

warning sign, which Pell read, expressly warned about a variety of ocean hazards,

including the dangerous shore break which ultimately caused Pell’s injury. Pell’s


                                         4
conduct and credibility are both irrelevant, because the key issue is whether

Defendants-Appellees satisfied their duty to warn under either § 486K-5.5 or

Tarshis. We therefore find that the district correctly granted summary judgment to

Defendants-Appellees because the undisputed facts demonstrate that they had

satisfied their duty to warn Pell regarding the dangerous surf conditions. See

Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).

      AFFIRMED.




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