Louisville SW Hotel, LLC v. Lindsey
Opinion by Judge K. Thompson; Judges Combs and Lambert concurred.

This action was filed after a minor drowned in a hotel swimming pool. The child’s Estate alleged that the pool was overcrowded and so abysmally cloudy that the child’s body could not be seen in time to be resuscitated. A jury apportioned 65% fault to the child’s mother and 35% to the hotel. It awarded $205,579.25 in medical expenses and $6,191 in funeral expenses. The jury awarded zero damages for the child’s power to labor and earn money, for his physical pain and suffering, and for loss of consortium, but it awarded $3 million in punitive damages against the hotel. The Court of Appeals affirmed as to the hotel’s appeal but reversed and remanded as to the cross-appeal filed by the Estate and the child’s parents. Of note, the Court held that the circuit court did not err when it permitted the Estate to introduce health department reports concluding that the hotel had previously violated pool water testing and logging procedures where the Estate alleged that the same misconduct occurred on the date of the drowning. The Court noted that the reports were relevant to the hotel’s knowledge of the need for, and importance of, testing the pool water and keeping required logs. Any issue as to the remoteness of the reports went to the weight to be given to them by the jury. The Court also held that financial records of the hotel from the few months prior to the drowning were admissible to show a need for increased staffing. The Court further concluded that the circuit court did not err in refusing to instruct the jury that the child was a trespasser when he drowned. Although neither he nor his mother was a registered guest when he drowned, he was the guest of a registered guest and it could be reasonably anticipated by the hotel that the child would use the pool. As to damages, the Court held that: (1) there was sufficient evidence to support an award of punitive damages; (2) the award of zero damages for loss of power to labor and earn wages required a new trial because there was an inference that the child would have had some power to earn money; (3) the award of zero damages for the child’s pain and suffering also required a new trial because there was expert testimony that drowning victims suffer physical pain, as well as evidence that the child was conscious while struggling to stay afloat; and (4) a new trial was required on the issue of the parents’ loss of consortium claim. The Court held that once a parent-child relationship is established, there is an inference that the relationship has intrinsic value and some amount of damages must be awarded. A. 2017-CA-000856 05/17/2019 2019 WL 2147355 

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