Morrison v. Yum! Brands, Inc.
| Decision Date | 16 October 2014 |
| Docket Number | Civil No. 13–11834–FDS. |
| Citation | 53 F.Supp.3d 437 |
| Parties | Thomas MORRISON, Plaintiff, v. YUM! BRANDS, INC., Defendant. |
| Court | U.S. District Court — District of Massachusetts |
Andrew C. Jones, Tempus Fugit Law LLC, Boston, MA, for Plaintiff.
Lawrence R. Holland, Alan J. Kowalczyk, Tucker and Associates, LLC, Warwick, RI, for Defendant.
MEMORANDUM AND ORDER ON DEFENDANT'S MOTIONS FOR SUMMARY JUDGMENT AND TO STRIKE
This is an action in negligence arising out of a slip-and-fall incident. Jurisdiction is based on diversity of citizenship.
On May 21, 2010, plaintiff Thomas Morrison slipped and fell on a puddle of clear liquid in a KFC restaurant in Norwell, Massachusetts, operated by KFC U.S. Properties, Inc.1 Morrison now brings suit, alleging that his slip and fall was caused by defendant's negligence.
On July 25, 2014, defendant moved for summary judgment on plaintiff's claim, contending that it did not breach its duty of care toward Morrison. After the deadline for opposing the motion for summary judgment, and after the Court heard arguments on the pending motion, plaintiff filed a Rule 56(d) affidavit requesting the Court stay the ruling on the motion for summary judgment until plaintiff takes additional discovery. On October 6, 2014, defendant moved to strike the affidavit.
For the following reasons, the motion to strike the affidavit and the motion for summary judgment will be granted.
The following facts are undisputed unless noted otherwise.
Thomas Morrison is a resident of Rockland, Massachusetts. (Compl. ¶ 1). The complaint alleges that Yum! Brands is a Kentucky corporation with a principal place of business in Louisville, Kentucky. (Compl. ¶ 2).2
On May 21, 2010, Morrison visited a KFC restaurant in Norwell, Massachusetts, with his fiancée. (Compl. ¶ 4; Morrison Dep. 31:10–11). After ordering food, Morrison went to the restroom. (Morrison Dep. 31:11–12). When walking to the urinal, he slipped, fell backwards, and hit his head on the sink behind him before landing on his elbow on the bathroom floor. (Id. 31:12–18). He was looking straight ahead at the urinal when he slipped, and did not see the liquid on the floor before he fell. (Id. 33:12–24). He described the puddle as a clear liquid that appeared to be water encompassing an area of approximately three feet by eight inches. (Id. 33:13; 34:18–20). Water covered the entire right side of his pants and shirt after the fall. (Id. 33:15–17). He did not know how long the water had been there, but he speculated that it may have come from a plumbing leak. (Id. 35:2; 80:12–13). After the accident, the restaurant manager informed Morrison that the restroom had recently been cleaned in accordance with the restaurant's regular cleaning schedule. (Id. 39:5–6). According to Morrison, the manager “did not say anything about” whether he had been aware that the liquid was on the floor. (Id. 80:12–14).
Morrison alleges that as a result of his fall he suffered permanent loss of function and mobility and incurred expenses for hospital and medical treatment. (Compl. ¶ 7). He contends that his injuries have permanently impaired his ability to work and earn income and have caused restrictions in his activities. (Id. ).
On May 10, 2013, Morrison filed the complaint in this case in the Plymouth Superior Court. The complaint alleges one claim for negligence. On August 1, 2013, defendant removed the case to this Court. The scheduling conference was held on September 27, 2013, during which the Court set a deadline of March 28, 2014, for completion of fact discovery. The Court twice extended the discovery period at the request of the parties, ultimately setting a deadline of June 2, 2014. Morrison was represented by counsel from the filing of the complaint until December 30, 2013; he then proceeded pro se until July 25, 2014, when new counsel entered an appearance.
On July 25, 2014, defendant moved for summary judgment. Plaintiff opposed the motion on August 29, 2014, and this Court heard oral arguments on the motion on September 17, 2014. On September 30, 2014, plaintiff filed a Rule 56(d) affidavit requesting that the Court stay ruling on the motion for summary judgment until he completes additional discovery. Defendant filed a motion to strike the Rule 56(d) affidavit on October 6, 2014.
Under Fed.R.Civ.P. 56(d), if a party opposing a motion for summary judgment “shows by affidavit or declaration that, for specified reasons, it cannot present facts essential to justify its opposition, the court may: (1) defer considering the motion or deny it; (2) allow time to obtain affidavits or declarations or to take discovery; or (3) issue any other appropriate order.” When a party seeks additional discovery pursuant to Rule 56(d), that party must (1) present the motion in a timely manner; “(2) show good cause for the failure to discover the necessary facts sooner; (3) set forth a plausible basis for believing that the necessary facts probably exist and can be learned in a reasonable time; and (4) establish that the sought facts, if found, will ‘influence the outcome of the pending motion for summary judgment.’ ” Adorno v. Crowley Towing & Transp. Co., 443 F.3d 122, 127 (1st Cir.2006) (quoting Resolution Trust Corp. v. North Bridge Assocs., Inc., 22 F.3d 1198, 1203 (1st Cir.1994) ).
In order for a Rule 56(d) affidavit to be timely, it must be filed within a reasonable time following the filing of the motion for summary judgment. Resolution Trust Corp., 22 F.3d at 1204. Although a party does not necessarily need to file a Rule 56(d) affidavit at the time he responds to the summary judgment motion, the party must file the affidavit at some time before the court passes on the motion. Nieves–Romero v. United States, 715 F.3d 375, 381 (1st Cir.2013) (). However, if the affidavit is filed after a hearing on the motion for summary judgment, it is untimely. See Resolution Trust Corp., 22 F.3d at 1204 n. 8 ().
Here, plaintiff filed his Rule 56(d) affidavit before the Court ruled on the merits of the motion for summary judgment, but more than two months after the motion for summary judgment was filed and nearly two weeks after the Court held a hearing on the pending motion. Prior to the motion for summary judgment, plaintiff had more than eight months in which to conduct discovery. He did not undertake any discovery during that time. The Court granted two extensions to the original discovery deadline. The fact that plaintiff chose to proceed pro se during a significant portion of the discovery period does not entirely excuse his failure to attempt discovery efforts. Furthermore, upon obtaining new counsel, plaintiff did not immediately seek to reopen discovery. And, as noted, plaintiff did not file a Rule 56(d) affidavit in response to the motion for summary judgment or at the time he filed his opposition to the motion.
Under the circumstances, the affidavit is untimely. The Court will therefore grant defendant's motion to strike plaintiff's Rule 56(d) affidavit.
The role of summary judgment is to “pierce the pleadings and to assess the proof in order to see whether there is a genuine need for trial.” Mesnick v. General Elec. Co., 950 F.2d 816, 822 (1st Cir.1991) (internal quotation marks omitted). Summary judgment is appropriate when the pleadings, the discovery and disclosure materials on file, and any affidavits show 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). “Essentially, Rule 56 [ ] mandates the entry of summary judgment ‘against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial.’ ” Coll v. PB Diagnostic Sys., 50 F.3d 1115, 1121 (1st Cir.1995) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) ). In making that determination, the court must view “the record in the light most favorable to the nonmovant, drawing reasonable inferences in his favor.” Noonan v. Staples, Inc., 556 F.3d 20, 25 (1st Cir.2009). When “a properly supported motion for summary judgment is made, the adverse party ‘must set forth specific facts showing that there is a genuine issue for trial.’ ” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) (quoting Fed.R.Civ.P. 56(e) ). The non-moving party may not simply “rest upon mere allegation or denials of his pleading,” but instead must “present affirmative evidence.” Id. at 256–57, 106 S.Ct. 2505.
The one-count complaint alleges that defendant was negligent. “Negligence is the failure to exercise that degree of care which a reasonable person would exercise in the circumstances.” Guzman v. Pring–Wilson, 81 Mass.App.Ct. 430, 432, 963 N.E.2d 1196 (2012) (quoting Morgan v. Lalumiere, 22 Mass.App.Ct. 262, 267, 493 N.E.2d 206 (1986) ). “To prevail on a negligence claim, a plaintiff must prove that the defendant owed the plaintiff a duty of reasonable care, that the defendant breached this duty, that damage resulted, and that there was a causal relation between the breach of the duty and the damage.” Cracchiolo v. Eastern Fisheries, Inc., 740 F.3d 64, 69 (1st Cir.2014) (quoting Jupin v. Kask, 447 Mass. 141, 146, 849 N.E.2d 829 (2006) ); see also Lev v. Beverly Enterprises–Massachusetts, Inc., 457 Mass. 234, 239–240...
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