Ahuja v. Cumberland Mall, LLC

• Court: U.S. District Court — Northern District of Georgia
• Writing for the Court: JULIE E. CARNES
• Citation: Ahuja v. Cumberland Mall, LLC, 821 F.Supp.2d 1317 (N.D. Ga. 2011)
• Decision Date: 26 September 2011
• Docket Number: Civil Action No. 1:10–CV–1038–JEC.
• Parties: Ginny AHUJA, Plaintiff, v. CUMBERLAND MALL, LLC, Millard Mall Services, Inc., John Doe, and XYZ Corp., Defendant.

821 F.Supp.2d 1317

Ginny AHUJA, Plaintiff,

v.CUMBERLAND MALL, LLC, Millard Mall Services, Inc., John Doe, and XYZ Corp., Defendant.

Civil Action No. 1:10–CV–1038–JEC.

United States District Court,N.D. Georgia,Atlanta Division.

Sept. 26, 2011.

Evan Howell, Michael William Johnson, Howell & Johnson, LLC, Atlanta, GA, for Plaintiff.

Lisa R. Richardson, Stevan Anthony Miller, Jeffrey A. Burmeister, Drew Eckl & Farnham, Heather Horan Miller, Carlock Copeland & Stair, LLP, Atlanta, GA, for Defendant.

ORDER AND OPINION

JULIE E. CARNES, Chief Judge.

This case is before the Court on defendant Millard's Motion for Summary Judgment [30], defendant Cumberland's Motion for Summary Judgment [31], defendant Millard's Motion to Exclude the Testimony of Ruston Hunt [52], and defendant Cumberland's Motion to Join in the Motion to Exclude [56]. The Court has reviewed the record and the arguments of the parties and, for the reasons set out below, concludes that Millard's Motion for Summary Judgment [30] should be GRANTED in part and DENIED in part, Cumberland's Motion for Summary Judgment [31] should be GRANTED in part and DENIED in part, Millard's Motion to Exclude [52] should be GRANTED in part and DENIED in part, and Cumberland's Motion to Join in the Motion to Exclude [56] should be GRANTED as unopposed.

BACKGROUND

This is a premises liability case arising out of plaintiff's slip and fall at Cumberland Mall in September 2009. Defendant Cumberland Mall, LLC (“Cumberland”) is the owner of the premises where the fall occurred. (Compl. at ¶ 5, attached to Notice of Removal [1].) At the time of plaintiff's fall, defendant Millard Mall Services, Inc. (“Millard”) was responsible for janitorial and cleaning services on the premises. ( Id. at ¶ 6.) Plaintiff sued both defendants in Gwinnett County State Court to recover for injuries sustained in her fall. ( Id. at ¶¶ 1–2.) With Cumberland's approval, defendant Millard removed the case to this Court pursuant to 28 U.S.C. § 1332. (Notice of Removal [1] at ¶ 8.)

The relevant facts underlying plaintiff's fall are as follows. It was drizzling at the time of plaintiff's accident, but not raining heavily. (Pl.'s Dep. [36] at 36–38.) Plaintiff entered the mall through a covered side entrance adjacent to a covered parking deck. ( Id. at 33–34, 38.) Immediately inside the doors where plaintiff entered the mall, there was a large carpet. ( See Video [34], attached to Johnson Aff. [32] at Ex. A.) A freestanding sign was located at the edge of the carpet, directly in front of the doors. ( Id. and Expert Report of RM Hunt (“Hunt Report”) [57] at 1–2, 8.) A wet-floor cone was placed just inside and to the right of the doors, up against the wall. ( Id.)

Based on a surveillance video that was taken at the time of the fall, plaintiff walked through the doors and slightly altered her course to avoid hitting the freestanding sign. ( Id.) As she entered the mall, the wet-floor cone was located on the floor to plaintiff's right. ( Id.) It is hard to tell from the video whether plaintiff noticed the wet-floor cone, but at her deposition plaintiff testified that she did not remember seeing either the cone or the sign prior to her accident.¹ (Pl.'s Dep. [36] at 51–52, 77, 133.) After stepping to the side of the sign and off of the carpet, plaintiff almost immediately slipped and fell. ( Id.)

After her fall, plaintiff noticed a wet substance on her hands and clothes. ( Id. at 61–63.) Plaintiff cannot remember where the substance came from, or the amount of the substance that was on the floor at the time of her accident. ( Id.) Apparently, plaintiff's recall of this detail was impaired by the fact that she was in excruciating pain after the fall, having shattered her elbow. ( Id.) Defendants suggest that the substance was water, which plaintiff tracked into the store herself and which caused her fall. (Def. Millard's Br. in Supp. of Mot. for Summ. J. [30] at 14 and Def. Cumberland's Reply [53] at 6.)

Chris Bailey, a third party bystander who was walking behind plaintiff at the time of the accident, witnessed her fall. (Bailey Aff. [37].) Bailey states that he did not see the wet-floor cone as he walked into the mall, although he noticed water on the floor. ( Id. at ¶¶ 3–5.) In fact, Bailey says that he only saw the cone as he was waiting for help to arrive for plaintiff. ( Id. at ¶ 6.) Bailey explains that the reason he did not notice the cone as he entered the mall is that it was placed against the wall to the right of the doors. ( Id. at ¶ 7.)

There is evidence that both the cone and the sign were misplaced at the time of plaintiff's accident. (Video [34] and Galvez Dep. [36] at 30–32, 37–39.) Per Millard's training, the sign should have been farther away from the entrance, and the cone should have been on the tile, just beyond the carpet. (Galvez Dep. [36] at 30–32, 37–39.) Moreover, a Millard staff member should have walked outside the door to ensure that the cone was visible to someone coming into the mall. ( Id. at 32.) Immediately after plaintiff's accident, the Millard porter who was responsible for that area of the mall cleaned the carpet at the entryway and moved the cone to its proper location. ( Id. and Video [34].)

Plaintiff contends that she sustained medical expenses and lost wages in excess of $100,000 as a result of her fall. (Compl. [1] at ¶¶ 11–12.) In her complaint, plaintiff seeks to recover those expenses, in addition to damages for pain and suffering, punitive damages, and attorney's fees. ( Id. at 8–9.) In support of her right to recovery, plaintiff asserts claims against defendants for negligence and premises liability. ( Id. at ¶¶ 21–23.)

Following discovery, defendants filed motions for summary judgment on plaintiff's claims. (Def. Millard's Mot. for Summ. J. [30] and Def. Cumberland's Mot. for Summ. J. [31].) Both of those motions are presently before the Court. Also before the Court is defendant Millard's motion to exclude the testimony of plaintiff's expert Ruston Hunt, which defendant Cumberland has moved to join. (Def. Millard's Mot. to Exclude Expert Testimony [52] and Def. Cumberland's Mot. to Join [56].)

DISCUSSION

I. Motion to Exclude Expert Testimony

In support of her claims, plaintiff relies on the report of human factors expert Ruston Hunt. (Hunt Report [57].) Hunt's report includes the following three opinions:

1. An unreasonably dangerous situation existed at the entrance of Cumberland Mall on September 20, 2009.

2. The mall management could and should have acted to eliminate the hazard, or at least mitigate the hazard by warning patrons of its existence.

3. Plaintiff's own conduct and behavior did not contribute in any way to her fall.

( Id. at 11.) Millard moves to exclude these opinions under Rule 702 of the Federal Rules of Evidence.² (Def. Millard's Mot. to Exclude [52].) Defendant Cumberland seeks to join Millard's motion to exclude [56]. As there is no opposition to Cumberland's motion to join [56], it is GRANTED as unopposed.

Plaintiff agrees with Millard's assessment of Ruston's three opinions cited above. (Pl.'s Resp. to Mot. to Exclude [57] at 2–3.) In her response to the motion to exclude, plaintiff concedes that these opinions are beyond the scope of Hunt's expertise. ( Id. at 2–3.) Accordingly, the Court GRANTS Millard's motion to exclude [57] as to these specific opinions.

However, plaintiff still intends to rely on Hunt's more focused opinion that she was unable to perceive the water hazard or the wet-floor cone due to the placement of the freestanding sign. ( Id. at 4.) Hunt notes that the cone was not directly in plaintiff's path as she entered the mall, and that plaintiff had to adjust her direction of travel to avoid the freestanding sign. ( Id.) From these facts, Hunt concludes that plaintiff fixated on the sign and was unable to see the wet-floor cone or water on the floor. ( Id.) According to plaintiff, Hunt is qualified to render this opinion, which is both reliable and relevant to the issues in the case. (Pl.'s Resp. to Mot. to Exclude [57] at 4.)

A. Applicable Standard

Rule 702 of the Federal Rules of Evidence provides that:

If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise.

Fed.R.Evid. 702. Pursuant to Rule 702, expert testimony is admissible when (1) the expert is qualified to testify competently, (2) the expert's methodology is reliable, and (3) the expert's testimony will assist the trier of fact to understand the evidence or to determine a fact at issue in the case. Allison v. McGhan Med. Corp., 184 F.3d 1300, 1309 (11th Cir.1999). See also Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 588, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993).

The Daubert Court emphasized the district court's “gatekeeping” role to ensure that scientific testimony is relevant and reliable before it is admitted as evidence. Daubert, 509 U.S. at 589–90, 113 S.Ct. 2786. See also Hudgens v. Bell Helicopters/Textron, 328 F.3d 1329, 1342 (11th Cir.2003) (noting the “emphasis the Supreme Court has placed upon the district court's ‘gatekeeping’ role in the determination of whether expert evidence should be admitted”). Daubert applies “not only to testimony based on ‘scientific’ knowledge, but also to testimony based on ‘technical’ and ‘other specialized’ knowledge.” Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 141, 119 S.Ct. 1167, 143 L.Ed.2d 238 (1999). Its overarching goal is to ensure that an expert “employs in the courtroom the same level of intellectual rigor that characterizes the practice of an expert in the relevant field.” Id. at 152, 119 S.Ct. 1167.

Under Rule 702, the proponent of expert testimony has the burden of showing that the testimony complies with Daubert. Cook ex rel. Estate of Tessier v....