Dowling v. Cleveland Clinic Foundation

• Decision Date: 03 February 2010
• Docket Number: No. 09-3159.,09-3159.
• Parties: Patricia DOWLING and Curtis Dowling, Plaintiffs-Appellants, v. The CLEVELAND CLINIC FOUNDATION, The Cleveland Clinic, and Cleveland Clinic Health System, Defendants-Appellees.
• Court: U.S. Court of Appeals — Sixth Circuit

593 F.3d 472 Patricia DOWLING and Curtis Dowling, Plaintiffs-Appellants,
v.
The CLEVELAND CLINIC FOUNDATION, The Cleveland Clinic, and Cleveland Clinic Health System, Defendants-Appellees. No. 09-3159. United States Court of Appeals, Sixth Circuit. Argued: November 20, 2009. Decided and Filed: February 3, 2010.

[593 F.3d 473]

ARGUED: Harry D. Rankin, Sutton Rankin Law, PLC, Edgewood, Kentucky, for Appellants. Keith Hansbrough, Bonezzi, Switzer, Murphy, Polito & Hupp Co., L.P.A., Cleveland, Ohio, for Appellees. ON BRIEF: Harry D. Rankin, Sutton Rankin Law, PLC, Edgewood, Kentucky, for Appellants. Bret C. Perry, James E. Stephenson, Bonezzi, Switzer, Murphy, Polito & Hupp Co., L.P.A., Cleveland, Ohio, for Appellees.

Before: MARTIN, BOGGS, and COLE, Circuit Judges.

OPINION

BOYCE F. MARTIN, JR., Circuit Judge.

Patricia Dowling slipped and fell in a puddle of water while walking down a

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hallway adjacent to the cafeteria at the Cleveland Clinic. Appellants Patricia and Curtis Dowling filed an action against appellees the Cleveland Clinic Foundation, the Cleveland Clinic, and Cleveland Clinic Health System (collectively, "the Clinic") in federal court on the basis of diversity jurisdiction. The Dowlings appeal the district court's grant of summary judgment for the Clinic. However, because the Dowlings did not proffer any evidence of how long the water hazard had existed before her fall such that an employee would have constructive notice, as required by Ohio slip-and-fall law, the district court did not err in granting the Clinic's motion for summary judgment. Additionally, the district court did not abuse its discretion in denying the Dowlings' motion for additional discovery because the Dowlings made no discovery requests until after the Clinic had completed its discovery and filed its motion for summary judgment, fifteen months after the Dowlings filed their suit in federal court, and did not complete their discovery during the sixty days offered by the court. For the reasons discussed below, we AFFIRM the judgment of the district court.

I.

On April 27, 2004, the Dowlings arrived at the Clinic around lunchtime to consult with a physician. Mrs. Dowling testified that she slipped and fell in a puddle of water in a hallway between the lobby and the cafeteria. Mrs. Dowling stated that the activity in the hallway was busy and that people were rushing back and forth from the cafeteria carrying "pop and water and stuff." At her deposition, Mrs. Dowling stated that she fell because "[t]there was water in the hallway. It was just a fairly small puddle." During her deposition, Mrs. Dowling testified that she fell in a wide, tiled hallway and that there was nothing concealing her view of the hallway. She further stated that she had no knowledge where the water came from, how long the water had been in the hallway, whether anyone else had fallen in the spill, or whether anyone else was aware of the water in the hallway.

According to the deposition testimony of Katherine MacKenzie, the facility manager employed by Crothall, a health service contractor hired by the Clinic to oversee the Clinic's Environmental Services Department, MacKenzie was not aware of any prior reports of falls in the area in which Mrs. Dowling is alleged to have fallen. Additionally, she testified that the area was subject to constant monitoring by employees dedicated to that area. She acknowledged that the chances of a spill would be greater near the cafeteria around mealtimes because of increased activity and stated that a spill in the area at some point would be "inevitable."

The Dowlings filed a complaint on July 30, 2007 and an amended complaint on August 3, 2007, alleging that Mrs. Dowling suffered serious injuries as a result of the negligence and carelessness of the Cleveland Clinic Foundation, Cleveland Clinic, and Cleveland Clinic Health System.¹ The Dowlings claim that Mrs. Dowling's injuries resulted from the Clinic's negligence

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in allowing water to accumulate and/or remain on the floor of its premises, thereby creating an unreasonably dangerous condition.

After a scheduling conference in October 2007, the Clinic issued interrogatories and requests for production of documents and noticed the depositions of the Dowlings. After the completion of the Clinic's discovery requests in December 2007, the Clinic filed a motion for summary judgment. The Dowlings then responded to the substance of the motion for summary judgment before requesting additional time to file a sur-reply for the purpose of conducting additional discovery, which the district court granted on February 26, 2008, permitting the Dowlings to conduct discovery to respond to the motion for summary judgment until May 1.

The Dowlings' first "discovery request" during this litigation was an email sent in March 2008, three months after the Clinic's summary judgment motion, stating:

Here are the answers to your interrogatories ........ I am going to want to take the deposition of the Maintenance Supervisor and the Property Risk Manager of your client at the time of my client's fall some time in April since the Court has given me until May 1 to supplement my response to your MSJ ........I also want to take the deposition of "Dorothy" who was at the information desk in the area where my client fell when she fell........I also would like copies of any maintenance manuals for the care, upkeep and supervision of your client's premises where my client fell ...... I also would like to know if the area where my client fell was subject to camera surveillance and whether any videotapes of my client's fall either exist now or ever existed.... Please let me know if we can handle these discovery requests informally or if you want a formal set of Interrogatories and Request for Production of Documents and/or Things......Please do not hesitate to contact me if you have any questions and/or want to discuss these or any other matter related to this case..... Thanks for all of your patience and professionalism throughout this case!!!!!!!

Though the Clinic responded that the persons would be identified and dates provided, no information was given. After several email exchanges, a deposition with MacKenzie, the Clinic's risk management manager, was scheduled for the afternoon of June 5. However, on the morning of June 5, having denied the Dowlings' motion for an extension of time to file a sur-reply on June 5, the district court granted the Clinic's motion for summary judgment. The district court found that, while the Clinic failed to prove that the condition causing Mrs. Dowling's fall was open and obvious, the Dowlings presented no evidence that the Clinic created, was aware of, or had constructive knowledge of the hazardous condition.

On June 16, the Dowlings moved to alter, amend and/or vacate the district court's grant of summary judgment because of various difficulties encountered during discovery and the fact that the Dowlings' counsel had relocated his law practice. The Dowlings requested additional time to conduct discovery in light of the circumstances which supposedly prevented their attorney from filing a more thorough response to the Clinic's motion for summary judgment.

On August 7, following a status conference, the district court, having found that the Dowlings did not have adequate time for discovery before it granted the Clinic's motion for summary judgment, granted the Dowlings' motion to alter, amend, and/or vacate the grant of summary judgment. The Dowlings were given sixty

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days to depose MacKenzie before the next status conference on October 8. The Dowlings sent several additional emails to the Clinic requesting a time to schedule the deposition. However, supposedly due to scheduling conflicts, the deposition was delayed until September 30.

On September 30, the Dowlings deposed MacKenzie—who had been identified in response to the Dowlings' request to depose the Clinic's facility manager—pursuant to a Notice of Deposition Duces Tecum dated September 17. However, they contend that it was not until the day of the deposition that it became clear that MacKenzie worked for a third-party subcontractor and not the Clinic itself. Additionally, though the Notice of Deposition Duces Tecum requested that she bring:

1. Any and all written policies and procedures to assure the safe condition of the floors at the Cleveland Clinic from foreign substances that create slip and fall hazards; and

2. Any and all written policies and procedures applicable to when a reported slip and fall incident occurs at the Cleveland Clinic,

neither MacKenzie nor the Clinic's attorneys brought such documents with them to the deposition, though MacKenzie testified that they existed.

A status conference was held on October 8, at which time the district court was informed that the Dowlings had completed the requested deposition and had filed a second motion for extension of time to file a sur-reply to conduct additional discovery. The Clinic opposed the motion and filed a motion for an order reinstating the district court's previous summary judgment ruling. Another status conference was held on...