Bryndle v. Boulevard Towers, II, LLC

• Decision Date: 16 September 2015
• Docket Number: No. 6:12–CV–06090 EAW.,6:12–CV–06090 EAW.
• Parties: Daniel C. BRYNDLE, Plaintiff, v. BOULEVARD TOWERS, II, LLC, Defendant.
• Court: U.S. District Court — Western District of New York

132 F.Supp.3d 486

Daniel C. BRYNDLE, Plaintiff,

v.BOULEVARD TOWERS, II, LLC, Defendant.

No. 6:12–CV–06090 EAW.

United States District Court, W.D. New York.

Signed Sept. 16, 2015.

Filed Sept. 17, 2015.

Ian M. Jones, Jeffrey B. Novak, Hoganwillig, Getzville, NY, for Plaintiff.

Zachary M. Mattison, Hancock Estabrook, LLP, Syracuse, NY, for Defendant.

DECISION AND ORDER

ELIZABETH A. WOLFORD

, District Judge.

INTRODUCTION

Plaintiff Daniel C. Bryndle ("Plaintiff") commenced this action against defendant Boulevard Towers, II, LLC ("Defendant") seeking damages for injuries Plaintiff allegedly sustained when he slipped and fell on ice located on a parking lot owned by Defendant. Presently before the Court is Defendant's motion for summary judgment (Dkt. 30), Defendant's motion to strike certain exhibits attached to Plaintiff's opposition to the summary judgment motion (Dkt. 48), and Plaintiffs motion for spoliation sanctions (Dkt. 69). Because there are genuine issues of material fact regarding Defendant's alleged negligence, the summary judgment motion is denied. In addition, for the reasons set forth below, Defendant's motion to strike is granted in part and denied in part, and Plaintiff's spoliation motion is denied.

BACKGROUND

Plaintiff resided at Defendant's apartment complex located at 120 Meyer Road, Amherst, New York. (Dkt. 30–1 at ¶ 1; Dkt. 43–1 at ¶ 1). On December 10, 2011, Plaintiff awoke between 8:30 a.m. and 9:00 a.m. (Dkt. 30–1 at ¶ 2; Dkt. 43–1 at ¶ 2). Approximately 20 minutes later, Plaintiff left his second-floor apartment, walked down a stairwell to the first floor, and exited the building to the parking lot. (Dkt. 30–1 at ¶¶ 3–4; Dkt. 43–1 at ¶¶ 3–4). Plaintiff walked along a 35–yard long sidewalk leading to one of Defendant's parking lots. (Dkt. 30–1 at ¶¶ 5, 8; Dkt. 43–1 at ¶¶ 5, 8). Plaintiff described the sidewalk as "fine," reported that he did not have any trouble with his footing, and did not recall observing any snow or ice on the sidewalk. (Dkt. 30–1 at 6–7; Dkt. 43–1 at 6–7). Plaintiff did not recall if it was snowing at the time he left his apartment (Dkt. 30–1 at ¶ 9; Dkt. 43–1 at ¶ 9), but noted that the weather was windy, and the temperature was about 20 degrees (Dkt. 30–1 at ¶ 10; Dkt. 43–1 at ¶ 10).

Defendant's property has four parking lots, and Plaintiff was walking to the "back side" parking lot where his car was parked. (Dkt. 30–1 at ¶ 12; Dkt. 43–1 at ¶ 12). Plaintiff walked another 40 to 50 yards across the back side parking lot to his car. (Dkt. 30–1 at ¶ 11; Dkt. 43–1 at ¶ 11). Plaintiff contends that the parking lot was covered with snow, but there were also spots where blacktop was visible. (Dkt. 30–7 at 14:1–4). Plaintiff did not have any problem with his footing as he began walking across the lot. (Dkt. 30–7 at 13:19–22; 14:9–11).

However, when Plaintiff was about eight feet from his car, he stepped on a "thin sheet" of ice approximately 25 feet in diameter that was hidden underneath the snow, causing Plaintiff to fall. (Dkt. 30–1 at ¶ 15; Dkt. 30–7 at 15:1–16:4; Dkt. 43–1 at ¶ 15). Plaintiff was taken by ambulance to Millard Fillmore Hospital immediately following his fall, where he was diagnosed with a fracture of the ninth rib posteriorly. (Dkt. 30–1 at ¶ 32; Dkt. 43–1 at ¶ 32). Two days later on December 12, 2011, Plaintiff was diagnosed with rib fractures

at four through ten posteriorly. (Dkt. 30–1 at ¶ 33; Dkt. 43–1 at ¶ 33).

Plaintiff had resided in Defendant's apartment complex for four years, and in the specific building where he was living at the time of the accident for two months. (Dkt. 30–1 at ¶ 20; Dkt. 43–1 at ¶ 20). Plaintiff testified that he did not see the ice before he fell (Dkt. 30–1 at ¶ 16; Dkt. 43–1 at ¶ 16), and that he had never seen an ice patch in that area before, nor had he ever heard anyone talking about an ice patch in that location (Dkt. 30–1 at ¶ 17; Dkt. 43–1 at ¶ 17). Plaintiff also testified that he never had any discussions with anyone at Defendant's apartment complex about a patch of ice appearing where he fell, and he was not aware of anyone who could testify to the existence of an icy condition where he fell. (Dkt. 30–1 at ¶¶ 18–19; Dkt. 43–1 at ¶¶ 18–19).

Brandon Layton was the groundskeeper for Defendant on December 10, 2011. (Dkt. 30–1 at ¶ 21; Dkt. 43–1 at ¶ 21). Mr. Layton testified that he started his work that day by plowing Defendant's four parking lots in the "wee hours of the morning" and, as soon as he finished plowing, he began salting those areas. (Dkt. 30–8 at 4:2–4; 45–3 at 13). Mr. Layton testified that he was in the back side parking lot twice before Plaintiff fell, including being in the lot approximately 45 minutes before Plaintiff fell. (Dkt. 30–8 at 5:21–23, 9:15–22). However, the snow removal log completed by Mr. Layton indicates that he started work on the date of the incident at 8:30 a.m., and that document does not reflect that Mr. Layton plowed the parking lot on the date of the incident. (Dkt. 45–1 at 6; see also Dkt. 44–6). Plaintiff did not observe anyone removing snow or ice in the parking lot from the time he awoke around 8:30 a.m. until the time he fell in the parking lot (Dkt. 44–1 at 64:2–7), and according to Plaintiff, the parking lot did not appear to have been plowed or salted when he was walking to his car (Dkt. 44–1 at 42:16–23).

Mr. Layton testified that he did not notice any ice patches in the back side parking lot when he was plowing or salting during the morning of December 10, 2011, and he did not notice any water pooling or ice forming in the parking lot. (Dkt. 30–1 at ¶¶ 25–26; Dkt. 43–1 at ¶¶ 25–26). Mr. Layton further testified that he was not aware of anyone ever discussing precipitation accumulating or ice forming in the parking lot. (Dkt. 30–1 at ¶ 27; Dkt. 43–1 at ¶ 27). Mr. Layton also testified that he was not aware of any other incidents of guests or residents slipping and falling in the back side parking lot. (Dkt. 30–1 at ¶ 28; Dkt. 43–1 at ¶ 28).

Noelle Hofmeyer, the manager for Defendant's Amherst property, testified that she was unaware of anyone ever falling on ice in the back side parking lot, other than Plaintiff. (Dkt. 30–1 at 29–30; Dkt. 43–1 at ¶¶ 29–30).

The parties agree that there are no accident reports, and Defendant is not aware of any incidents on its property where anyone reported ice, falling, or discussed any dangerous condition in the back side parking lot prior to Plaintiff's fall. (Dkt. 30–1 at ¶ 31; Dkt. 43–1 at ¶ 31).

PROCEDURAL HISTORY

Plaintiff filed his complaint on January 27, 2012, in Erie County Supreme Court. (Dkt. 1–1 at 2–5). Defendant filed a timely notice of removal to this Court based on diversity jurisdiction on February 22, 2012. (Dkt. 1). Defendant answered the complaint on January 28, 2012 (Dkt. 2), and the case was referred to the Honorable Marian W. Payson, United States Magistrate Judge (Dkt. 5).

On November 21, 2013, Defendant filed a motion before Judge Payson to preclude Plaintiff's treating physicians from testifying to permanency and causation or, in the alternative, that the Court require Plaintiff to supplement his disclosures to detail his physicians' proposed testimony relating to permanency and causation. (Dkt. 22). Defendant also filed a motion before Judge Payson to preclude Plaintiff's liability expert, John A. Serth, Jr., on the grounds that (1) he was not qualified to provide an expert opinion regarding the construction of the parking lot at issue, and (2) he could not offer opinion evidence concerning the adequacy of Defendant's snow maintenance program as this evidence was not disclosed in his report. (Dkt. 29).

Oral argument on the motions was held on April 25, 2014, and a ruling was issued from the bench. (Dkt. 57 & 58). Judge Payson granted Defendant's motion to limit the testimony of Plaintiff's treating physicians as to permanency and causation on the ground that those opinions were not adequately disclosed, but permitted Plaintiff to supplement his disclosures by April 19, 2014. (Dkt. 58). Judge Payson granted in part and denied in part Defendant's motion to preclude testimony by Mr. Serth, finding that he was qualified to testify to the construction of the parking lot and in general to winter maintenance procedures for paved surfaces. However, Mr. Serth could not offer any opinions with respect to the adequacy of Defendant's snow maintenance program because those opinions were not timely disclosed. (Id. ).

On November 21, 2013, Defendant filed a motion for summary judgment. (Dkt. 30). Plaintiff responded on January 9, 2014. (Dkt. 43, 44, 45). On January 23, 2014, Defendant filed a motion to strike several exhibits from the opposition Declaration of Plaintiffs counsel, Jeffrey B. Novak, Esq., including: (1) photographs attached as Exhibits C, D, and E; (2) the climatological report attached as Exhibit L; and (3) the K.J. Contracting, LLC ("K.J. Contracting") invoices attached as Exhibit H. (Dkt. 48). Defendant also filed a reply to its motion for summary judgment. (Dkt. 49). Plaintiff filed a response to Defendant's motion to strike on February 6, 2014 (Dkt. 53), and Defendant replied on February 20, 2014 (Dkt. 56).

The case was transferred to the undersigned on December 4, 2014. (Dkt. 64). The Court heard oral argument on the motion on January 13, 2015, and reserved decision. (Dkt. 66).

Thereafter, on June 26, 2015, Plaintiff filed a motion for spoliation sanctions, claiming that Defendant's repaving and alterations to the parking lot some three years earlier constituted the culpable destruction of evidence. (Dkt. 69). Defendant filed its response on July 13, 2015 (Dkt. 71), and Plaintiff replied on July 17, 2015 (Dkt. 72). On July 21, Defendant sent a letter to the Court, objecting to portions of Plaintiff's reply. (Dkt. 74). Later that day, Plaintiff sent a letter to the Court, objecting to assertions made by Defendant in its July 21, 2015 letter. (Dkt. 75).

DISCUSSION

I. Jurisdiction

"Federal courts are powerless to adjudicate a...