Mr. Ward, a resident of Georgia, filed the action on November 24, 2003 in a South District of Florida Miami Division court, almost a year after he was involved in an accident on Paradise Island.
Attorneys for Kerzner International Hotels Limited have failed in their bid to convince a United States court to dismiss a lawsuit filed by a luxury travel agent who claimed that he was seriously injured while he was a guest at the company’s One&Only Ocean Club on Paradise Island.
Kendall Ward claimed that negligence caused him to be injured while he was taking a twilight pleasure ride on a bicycle on the island a few years ago.
U.S. district judge Adalberto Jordan rejected Kerzner’s motion to dismiss the suit which claimed that the case should have been filed in The Bahamas.
Mr. Ward, a resident of Georgia, filed the action on November 24, 2003 in a South District of Florida Miami Division court, almost a year after he was involved in an accident on Paradise Island.
He used one of the bicycles provided by the Ocean Club’s sports facility on the evening of November 11,2002, but the bicycle did not have lights nor was he given a helmet, according to court documents.
“Upon his return to the Ocean Club after dark, he hit some unpainted speed bumps in the unlighted driveway, was thrown over the handlebars and was seriously injured,” it noted.
Kerzner International reportedly invited Mr. Ward to be a complimentary guest at the Ocean Club so that he could evaluate the property and potentially refer travelers to the resort.
In his ruling, Judge Jordan relied on several factors including the availability of an alternative and adequate forum for the case to be heard, the appropriate defence to be given to the plaintiff’s choice of jurisdictions and the private and public interest factors.
He ruled that the private interest factors do not favour dismissal and cited the fact that one eyewitness to the accident is a resident of Orlando, Florida, which is also where relevant documentation are.
Mr. Ward and his attorneys argued that the case being transferred to The Bahamas would not facilitate his access to his employment records and his medical records from treating physicians in Georgia. It was pointed out that Kerzner defendants also have filed affidavits and conduct business in Florida.
The judge took note that Kerzner has identified several potential witnesses in The Bahamas including security officers who either witnessed or investigated the alleged incident and prepared incident reports, the nurse who examined Mr. Ward, hotel managers, physicians who tended to him and the engineer who is responsible for the area in question.
“While the number of private interest factors may appear to weigh more heavily in favour of The Bahamas, those factors are insufficient to thoroughly convince me that material injustice is manifest so as to oust Mr. Ward from this country’s courts,” the judge’s ruling stated.
“The defendants have identified only one eyewitness to the accident residing in The Bahamas, security officer Wanlee Russell. In addition, the majority of witnesses who reside in The Bahamas are the defendants’ own agents and employees, who are under the defendants’ control and will appear voluntarily,” it added.
The judge also pointed out that although The Bahamas has an undeniable stake in the just and efficient resolution of lawsuits involving accidents in its jurisdiction, it interest is somewhat lessened where the sole plaintiff is an American citizen.
Kerzner’s attorneys argued that Mr. Ward’s complaint should have been dismissed for improper venue based on a forum selection clause contained in the guest registration agreement. But he countered that there were actually two forum selection clauses on the one page registration agreement and objected that the operative clause is not enforceable because it was unsigned.
There have been a number of incidents, within the past few years, where guests in the Bahamas have suffered injuries, or even death, due to the lack of regulations governing recreational activities, particularily watersports.
Source: The Bahama Journal
