McNeilly v. Greenbrier Hotel Corp.

• Decision Date: 25 April 2014
• Docket Number: Civil Action No. 5:12–cv–04609.
• Citation: 16 F.Supp.3d 733
• Court: U.S. District Court — Southern District of West Virginia
• Parties: Scarlett Faith McNEILLY, Plaintiff, v. GREENBRIER HOTEL CORPORATION, et al., Defendants.

16 F.Supp.3d 733

Scarlett Faith McNEILLY, Plaintiff

v.GREENBRIER HOTEL CORPORATION, et al., Defendants.

Civil Action No. 5:12–cv–04609.

United States District Court, S.D. West Virginia.

Signed April 25, 2014.

Scarlett Faith McNeilly, Cortland, OH, pro se.

Kurt E. Entsminger, Phillip D. Estep, Christopher Michael Jones, Flaherty Sensabaugh & Bonasso, Charleston, WV, for Defendants.

MEMORANDUM OPINION AND ORDER

IRENE C. BERGER, District Judge.

The Court has reviewed the Defendant Greenbrier Hotel Corporation's Motion for Summary Judgment (Document 106), the attached exhibits, the Memorandum of Law in Support of Greenbrier Hotel Corporation's Motion for Summary Judgment (Document 107), the Plaintiff's Response in Opposition to Motion to Filed For Summary Judgment the Defendants (Resp.) (Document 154),¹ the Memorandum of Law in Support of Plaintiff Scarlett Faith McNeilly, Pro Se, Opposition to Motion Filed For Summary Judgment the Defendants (Mem. Resp.) (Document 155), the attached exhibits, and the Defendant's Reply Memorandum in Support of Defendant's Motion for Summary Judgment (Document 157) and attached exhibits. For the reasons stated herein, the Court finds that the Greenbrier's motion for summary judgment should be denied.

I. FACTUAL BACKGROUND AND PROCEDURAL HISTORY

The Plaintiff, Scarlett McNeilly, proceeding pro-se, initiated this action on August 22, 2012. (See Complaint, Document 1.) Pursuant to 28 U.S.C. § 636, the matter was referred to Magistrate Judge R. Clarke VanDervort for total pretrial management and submission of proposed findings of fact and recommendations for disposition. (Document 3.) Through two opinions granting motions to dismiss certain claims and certain named defendants, the sole remaining claim alleges negligence pertaining to premises against the Greenbrier Hotel Corporation. (See PF & R, Document 34, adopted in Document 39; and PF & R, Document 72, adopted in Document 91.)

This claim arose out of an incident that took place on August 23, 2010. Ms. McNeilly and a friend, Pat Butler, were guests at the Greenbrier from August 22, 2010, until August 25, 2010. (June McNeilly Depo., p. 33–40) (Document 106–1.) Ms. McNeilly states that when she attempted to shower on the morning of August 23, 2010, she slipped in the bathtub, fell outside the tub enclosure, and hit her head on the marble bathroom floor. (Mem. Resp. at 4). Prior to beginning her shower, she noted that there was no bath mat, either already in the tub or in the cabinet, nor were there rubber strips lining the tub. (June McNeilly Depo. at 53–59.) She asserts that she adjusted the water, entered the tub enclosure, stepped forward to adjust the water again, and her feet flew out from under her. (Id. at 54–56.) She attempted to grab the metal hand bar, but it was also wet, and the smooth metal was too slippery to grip. (Id. ) She spun around inside the tub, and then fell “out over the tub 5 feet onto marble floor, [and] hit [her] head.” (Id. at 56.) The shower curtain was torn down as she fell. (Greenbrier Incident Report) (Document 155–1 at 74–75.) A security officer and nurse employed by the Greenbrier responded to the room and took Ms. McNeilly to the Greenbrier clinic. (Id. ) Ms. McNeilly was later transported to the Emergency Room via EMS. (Id. )

Ms. McNeilly stated in her deposition that, upon her return from the emergency room, she checked the bathtub for residue from cleaning products that may have caused the tub to be slippery. (June McNeilly Depo. at 107–108.) She observed residue and believes the cleaning products were not adequately rinsed from the tub. (Id. ) The Greenbrier points to the deposition testimony of Amy Yates, the housekeeping supervisor, who stated that the record of individualized key card entries shows that she entered the Plaintiff's room at 3:01 p.m., and again at 3:21 p.m., on August 22, 2010, to inspect the housekeeper's work prior to the guests' arrival. (Yates Depo. at 62–64) (Document 106–4.) She testified that she inspects bathtubs by wiping the surfaces of the tub and the fixtures with her hands to check for residue. (Id. at 65.) If there was residue, the room attendant would be required to re-clean the bathtub. (Id. ) The Greenbrier was unable to identify the housekeeper who cleaned the Plaintiff's room prior to her arrival, so no direct testimony regarding the process used to clean the bathtub is available. (See Def.'s Interrog. Resp. 6) (Document 110–1.) Ms. McNeilly further referenced the affidavit of former housekeeping supervisor Ronnie Napier. (Document 118–1.) Mr. Napier stated that Robert Mickey, the Director of Housekeeping at all relevant times, began in February 2010 and made changes, including ending the prior practice of supplying rubber mats in all bathrooms and switching to cheaper chemicals for cleaning. (Napier Aff.) Some housekeepers brought in their own cleaning supplies after the latter change, though doing so was not permitted. (Id. )

It is undisputed that Ms. McNeilly's friend and roommate in the hotel, Ms. Butler, had showered on the evening of August 22, 2010, prior to Ms. McNeilly's shower and fall the following morning. (Butler Depo. at 26–28) (Document 106–5.) Ms. Butler states that she used only soap and did not shampoo her hair. (Id. at 89.) She does not recall anything unusual about her shower or the bathroom. (Id. at 35–36.)

The parties dispute the sufficiency of the anti-slip material in the bathtub. The Greenbrier's expert examined the bathtub and reports that the bottom surface was textured with abrasive rectangular inlays extending to about three inches from the drain. (Sapienza Rep. at 9–10) (Document 106–3.) He conducted testing and concluded that the textured area had a static coefficient of friction measurement of about three times the level required by industry standards. (Id. ) Ms. McNeilly's expert, on the other hand, reports that “whatever etching was left on the bottom of the tub was approximately 6 to 8 inches from the drain.” (DelMarva Rep. at 3) (Document 95.) Ms. McNeilly claims to have fallen when she stepped forward, presumably close to the drain, to adjust the water temperature. Mr. Napier stated that the anti-slip materials in some rooms were “extremely old.... The non-slip etchings became smooth as the rest of the tubs over the years, and ineffective making the tubs really slick again when being cleaned.” (Napier Aff.) He further stated that the new director of housekeeping hired in early 2010 ended a procedure by which rooms were temporarily placed out of order for repairs like painting, replacing wallpaper, and arching the tubs to remove soap scum and residue. (Id. )

Ms. McNeilly attached several accident report forms from prior slip and fall incidents in bathrooms at the Greenbrier. The Greenbrier's expert report references deposition testimony from several Greenbrier employees stating that the Plaintiff's fall was the first slip and fall in a bathtub that they could recall, apparently to refute the Plaintiff's expert's opinion that similar falls were “not only foreseeable, but predictable and more likely than not [had] happened prior to the plaintiff's fall.” (Sapienza Rep. at 10.) At least one of the prior incidents involved a guest slipping in the bathtub; others involved guests slipping on the tile floor after exiting the bathtub/shower enclosure. (See, e.g., Nuemayer Accident Report; White Accident Report) (Document 155–1.)

Finally, Ms. McNeilly's expert produced a report in which he offers various opinions regarding the liability of the Greenbrier. The Greenbrier challenges the lack of supporting findings in the expert report, both in its motion for summary judgment and in a motion in limine.² The Court has reviewed the expert report carefully during its consideration of the motion for summary judgment and finds it to be largely speculative and conclusory in nature. Much of the analysis speaks to hotels in general, rather than the conditions at the Greenbrier. Based on the Court's review, the only relevant and admissible evidence that is not either generalized or entirely speculative is a statement that Mr. DelMarva, Plaintiff's expert, “observed the tub in the plaintiff's room and observed that whatever etching was left on the bottom of the tub was approximately 6 to 8 inches from the drain leaving enough area unprotected and increasing the foreseeability of a slip and fall.” (DelMarva Rep. at 3.) The Court has considered only expert opinions based on evidence relevant to this case in deciding this motion for summary judgment.

II. STANDARD OF REVIEW

The well-established standard in consideration of a motion for summary judgment is that “[t]he court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a) -(c) ; see also Hunt v. Cromartie, 526 U.S. 541, 549, 119 S.Ct. 1545, 143 L.Ed.2d 731 (1999) ; Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) ; Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) ; Hoschar v. Appalachian Power Co., 739 F.3d 163, 169 (4th Cir.2014). A “material fact” is a fact that could affect the outcome of the case. Anderson, 477 U.S. at 248, 106 S.Ct. 2505 ; News & Observer Publ'g Co. v. Raleigh–Durham Airport Auth., 597 F.3d 570, 576 (4th Cir.2010). A “genuine issue” concerning a material fact exists when the evidence is sufficient to allow a reasonable jury to return a verdict in the nonmoving party's favor. FDIC v. Cashion, 720 F.3d 169, 180 (4th Cir.2013) ; News & Observer, 597 F.3d at 576.

The moving party bears the burden of showing that there is no genuine issue of material fact, and that it is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a) ; Celotex Corp., 477 U.S. at 322–23, 106 S.Ct. 2548. When determining whether summary judgment is appropriate, a court must view all of the factual evidence, and...