Pierce v. Atrium TRS V, LLC

• Decision Date: 13 June 2018
• Docket Number: Case No. 3:17-cv-00862-YY
• Parties: PANDORA S. PIERCE, Plaintiff, v. ATRIUM TRS V, LLC; TUCSON PORTLAND, LLC; and ATRIUM HOSPITALITY, LP, Defendants.
• Court: U.S. District Court — District of Oregon

PANDORA S. PIERCE, Plaintiff, v. ATRIUM TRS V, LLC; TUCSON PORTLAND, LLC; and ATRIUM HOSPITALITY, LP, Defendants.

Case No. 3:17-cv-00862-YY

UNITED STATES DISTRICT COURT DISTRICT OF OREGON PORTLAND DIVISION

June 13, 2018

OPINION AND ORDER

YOU, Magistrate Judge:

Plaintiff Pandora Pierce ("Pierce") alleges a single claim of negligence against defendants Atrium TRS V, LLC, Tucson Portland, LLC, and Atrium Hospitality, LP (collectively "defendants") for injuries sustained from tripping over a walkway curb in a hotel atrium on December 31, 2015. This court has diversity jurisdiction over this case pursuant to 28 USC § 1332.¹ Defendants have moved for summary judgment. ECF #16. For the reasons discussed below, the motion (ECF #16) is GRANTED.

STANDARDS

A party is entitled to 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." FRCP56(a). The moving party has the burden of establishing the absence of a genuine dispute of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). "When judging the evidence at the summary judgment stage, the district court is not to make credibility determinations or weigh conflicting evidence, and is required to draw all inferences in a light most favorable to the nonmoving party." Musick v. Burke, 913 F.2d 1390, 1394 (9th Cir. 1990); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986) ("The evidence of the nonmovant is to be believed, and all justifiable inferences are to be drawn in his favor."). Although "[c]redibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of a judge . . . ruling on a motion for summary judgment," the "mere existence of a scintilla of evidence in support of the plaintiff's position [is] insufficient . . . ." Id. at 252, 255. "Where the record taken as a whole could not lead a rational trier of fact to find for the non-moving party, there is no genuine issue for trial." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (citation and quotation marks omitted).

BACKGROUND

Pierce arrived at the Embassy Suites by Hilton-Portland Airport late afternoon on December 30, 2015, where she checked into her hotel room and helped decorate a ballroom in preparation for the Leisure Hour Junior Golf Program's New Year's Eve party. Dep. of Pandora Pierce 15 ("Pierce Dep."), ECF #17-1. Defendants stipulate that Pierce was a business invitee. Mot. Summ. J. at 5. Pierce had attended the same event five other times and helped put it on at least twice. Pierce Dep. 15-16; Decl. of Pandora Pierce ¶¶ 1-3 ("Pierce Decl."), ECF #20. Between 400 and 500 guests were expected to attend the event. Pierce Decl. ¶ 5. Pierce had been in the atrium probably 10 to 30 times before, and had never fallen or seen anyone fall. Pierce Dep. at 23.

On December 31, 2015, Pierce navigated the atrium to eat breakfast and attend a morning meeting, and then again later to attend a happy hour. Pierce Dep. at 24-25. That evening, Pierce helped work the event's registration desk in front of the ballroom. Id. at 28. She was wearing 2"-3" pumps. Id. at 27, 45. At 8:00 pm, the ballroom doors opened and the party began. Id. at 29. Fifteen-to-thirty minutes later, Pierce headed back to her room to retrieve something for another guest. Id. On her way to the elevators, she stopped on a walkway in the atrium and spoke to a co-worker who was walking in the opposite direction, toward the ballroom. Id. at 30, 43. After speaking with the co-worker, Pierce attempted to step to the side to allow her co-worker to pass but tripped and fell into the adjacent landscaping, injuring her shoulder. Id. at 43-45.

The tile walkway is cream colored. See Decl. of John Pinzelik ("Pinzelik Decl."), Exs. 5, 6, ECF #19-1. Some segments of the walkway are flush with carpet and open into seating areas. Id. Other segments are lined with a 4 1/4" high dark-green tile curb that separates the walkway from elaborate landscaping of plants, dirt, and rocks. Id.; Pierce Dep. at 39. Some segments of the walkway are lined with a guardrail above the curb, to separate the walkway from waterfalls or a stream running underneath the walkway. See Pinzelik Decl., Ex. 6. Further, some segments of the walkway curve to the left or right and either narrow or expand. Id.

When Pierce fell, she was standing next to a segment of the walkway that narrowed from 78" to 58" and curved to the right, and where there was curbing but no guardrail. Decl. of Tom Baird ("Baird decl."), Exs. 6, 10, ECF #21-1.² She did not fall into a water feature, but into plants, dirt, and rocks that were from 5" to 7" inches below the walkway. Pierce Dep. at 41-46;Decl. of Stephen Brown ("Brown Decl."), Exs. 2-4, ECF ##24-2-24-4 (depicting the landscaping as 9" to 11" below the 4 1/4" curb).

When questioned about the incident, Pierce claimed the walkway was crowded but could not recall if she bumped into anyone. Pierce Dep. at 45-46. She also admits there were no issues with the lighting. Id. at 41.

DISCUSSION

Defendants contend they are entitled to summary judgment because the walkway, curb, and landscaping that Pierce tripped over and fell into did not pose an unreasonable risk of harm as a matter of law. Considering all the circumstances of Pierce's fall, no reasonable jury could find the premises posed an unreasonable risk of harm.

I. Admissibility of Expert Opinion Testimony

The court must ensure all expert testimony is relevant and reliable. Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 148-52 (1999) (discussing the special obligation imposed by FRE 702 on the trial court); Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 589-91 (1993). FRE 702 requires that "expert testimony relate to scientific, technical, or other specialized knowledge, which does not include unsupported speculation and subjective beliefs." Guidroz-Brault v. Mo. Pac. R.R. Co., 254 F.3d 825, 829 (9th Cir. 2001). The expert's opinion must also be "based on sufficient facts or data," be "the product of reliable principles and methods," and show that the "expert has reliably applied the principles and methods to the facts of the case." FRE 702(b)-(d). "An expert's bald assurance of validity is not enough. Daubert v. Merrell Dow Pharm., Inc., 43 F.3d 1311, 1316 (9th Cir. 1995).

Here, Pierce relies on the expert opinion testimony of Tom Baird ("Baird"). Baird is a Safety Investigator/Consultant³ with over 45 years of experience dealing with construction-safety issues. Baird Decl. 1, 26. He has investigated and consulted in over 1,440 injuries since 1994. Id. His 37-page curriculum vitae chronicles his education, training, and experience. Id. at 26-62.

Baird inspected the site and surrounding area where Pierce tripped and fell, taking pictures and measurements. Id. at 3. He also reviewed the complaint, defendants' answer, Pierce's deposition transcript, and defendants' motion for summary judgment. Id. at 2. Baird does not say whether he spoke to Pierce.

Baird's testimony includes four opinions. Id. at 3. Defendants object to the admissibility of all four opinions, arguing that they are conclusory and lack an adequate factual basis. Reply at 2-6. This court agrees. In each opinion, Baird merely integrates legal conclusions into the complaint's allegations.⁴ Whether the opinions are "the product of reliable principles andmethods," and whether he "has reliably applied the principles and methods to the facts of the case" is unknown because he has not identified any principles or methods at all in violation of FRE 702 (b)-(d). Daubert, 43 F.3d at 1316 ("Rather, the party presenting the expert must show that the expert's findings are based on sound science, and this will require some objective, independent validation of the expert's methodology.").

Indeed, in a subsequent section of Baird's testimony entitled "Basis of Opinions," Baird offers additional speculations and legal conclusions not based on any data or methods and principles. Without referencing any accepted industry standards or even the applicable building code for the placement of handrails and guardrails, Baird repeatedly speculates that "[a]ll of the walkways adjacent to the water feature should have guardrails for the safety of the hotel guests." Baird Decl. at 4; id. ("A guardrail should have been placed at the location and that would have prevented this incident"). At one point, he evens says: "It is simple hazard analysis. A guardrail should have been placed at the location of the incident. Placing a guardrail there would have eliminated the unreasonably hazardous and dangerous condition." Id. However, Baird fails to do an analysis, or—if he has performed one—show the court what he did and what he relied on to reach his conclusion.⁵

Then, without referencing the testimony of any fact witness, Baird speculates:

Upon reaching the bridged walkway [sic] the walkway narrows to only 58". Ms. Pierce's perception upon stepping aside to let Ms. George pass would be that the walkway would be the same width as it was until that point in the walkway, that being 78" wide. Instead, the walkway narrows for no apparent reason or purpose.

It is reasonable to presume that the walkway would be the same width. It should be the same width for safety. Not having it the same width may confuse guests and cause them to step off the walkway and fall into the adjacent water feature that includes water, foliage, dirt, and rocks.

The narrow, bridged walkway had a low profile 4" curb on the side. The curb is a trip hazard when the walkway is crowded with people as was the case at the time of the incident. It is foreseeable that a person would step aside to let people by at that location. It is foreseeable that if they did so they might trip over the low profile curb. It is foreseeable that without the presence of a guardrail at that location they would

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