Hoffman v. NTW, LLC
| Decision Date | 16 March 2016 |
| Docket Number | No. 4:14 CV 1558 DDN,4:14 CV 1558 DDN |
| Parties | RICKY JOSEPH HOFFMAN, a/k/a, JOE HOFFMAN Plaintiff, v. NTW, LLC, d/b/a NATIONAL TIRE & BATTERY, Defendant. |
| Court | U.S. District Court — Eastern District of Missouri |
This action is before the court on the motions of defendant NTW, LLC to strike plaintiff's affidavit (Doc. 72) and for summary judgment (Doc. 73). The court heard oral arguments on March 11, 2016.
According to plaintiff's first amended complaint, the following events occurred. On September 1, 2011, plaintiff visited a National Tire and Battery store in St. Charles, Missouri, owned and operated by NTW. NTW is a Delaware corporation and plaintiff is a resident of Missouri. While in the store, plaintiff slipped and fell on a wet floor due to the dangerous condition of the floor and the negligence of defendant's employees. Plaintiff is seeking to recover substantial damages.
Defendant's motion to strike plaintiff's affidavit (Doc. 69-1) under Fed. R. Civ. P. 56(e)(4) directly affects the court's determination of non-disputed facts on the motion for summary judgment. Therefore, it will be addressed first. Defendant argues that plaintiff's summary judgment affidavit is contrary to his previously taken deposition and is submitted in an improper attempt to create disputed material facts where there otherwise would be none. Plaintiff counters that his affidavit merely clarifies and elaborates on his previous deposition, and therefore is permitted.
On a motion for summary judgment, parties must support their factual assertions with evidence from the record, including affidavits or depositions. Fed. R. Civ. P. 56(c)(1)(A). The court must look to whether the affidavit of an already deposed person merely restates, elaborates on, or contradicts the previously taken deposition. Popoalii v. Corr. Med. Servs., 512 F.3d 488, 498 (8th Cir. 2008). If it merely restates or elaborates previously given deposition testimony, the court should consider it. Id. However, if it contradicts a previously given deposition, it will only be admitted "when the prior deposition testimony shows confusion, and the subsequent affidavit helps explain the contradiction." Id. The Eighth Circuit has held that Id. (quoting Camfield Tires, Inc. v. Micheline Tire Corp., 719 F.2d 1361, 1365 (8th Cir. 1983)).
In City of St. Joseph, Missouri v. Southwestern Bell Telephone, 439 F.3d 368, 475 (8th Cir. 2006), the district court struck an affidavit for several contradictions even though the plaintiff argued that he was merely clarifying answers. The court's test was whether each statement in the affidavit could stand side-by-side with the deposition's statements without them being inconsistent with one another. See id. The Eighth Circuit reversed a district court's decision to strike an affidavit when it "sought to merely clarify [the] previously unclear and ambiguous testimony and place it in a context evident from the deposition transcript." Taylor v. Cottrell, Inc., 795 F.3d 813, 818-19 (8th Cir. 2015). In Taylor a doctor used her affidavit to explain the meanings of certain terms used in a contract and in her deposition. Id. The Eighth Circuit held that the doctor did not contradict, but merely elaborated and explained the circumstances under which she would be paid and by whom; these types of explanations and clarifications were permissible. Id. at 819.
In this case, defendant points to three instances where it argues plaintiff materially changed his position between his deposition and his summary judgment affidavit. These instances relate to plaintiff's claim of slipping and falling on the floor of defendant's store's restroom.
The first instance defendant argues plaintiff changed his testimony relates to his location when he first noticed the restroom floor's condition. In his deposition, plaintiff testified in relevant part as follows:
(Doc. 64-1, Pl.'s Dep. 22:13-23:8.)
(Id. 23:21-24:2.)
Furthermore, plaintiff attached a picture indicating where he now asserts the water was. This picture indicates that the water was located in a small area on the floor in front of and under the sink, near the floor drain. (Id.)
Plaintiff's deposition testimony and subsequent affidavit are inconsistent and contradictory. The deposition described the situation inside the restroom as "wet floor everywhere" and "[a]ll over the floor." His affidavit states that only a small location, indicated on the picture—at most four or five tiles in the center of the bathroom. Additionally, plaintiff stated in the deposition he noticed the water as he walked in. He said, "I walked in, as the door was closing I saw the water -- or wet floor everywhere." His affidavit indicates that plaintiff was "three or four steps into the restroom" when he "first observed the water on the floor." Further, plaintiff's affidavit states, "I was already standing in the water when I first realized the wet conditions." These are material changes to plaintiff's deposition testimony. To allow plaintiff to change his deposition testimony months after giving it would effectively limit the summary judgment process by allowing him to create issues of material fact that would not otherwise exist. Popoalii, 512 F.3d at 498. Because they contradict his prior deposition testimony, paragraphs eight through fourteen and exhibit A of the affidavit are stricken and will not be considered for purposes of summary judgment.
Second, defendant argues that the time interval between the last employee left the restroom and plaintiff entered the restroom has been significantly shortened by his affidavit. Plaintiff's deposition states in relevant part:
(Doc. 64-1, Pl.'s Dep. 18:18-19:15.)
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