Sudre v. Port Seattle

• Decision Date: 02 December 2016
• Docket Number: CASE NO. C15-0928JLR
• Court: U.S. District Court — Western District of Washington
• Parties: EVELYNE SUZANNE SUDRE, et al., Plaintiff, v. THE PORT OF SEATTLE, et al., Defendant.

EVELYNE SUZANNE SUDRE, et al., Plaintiff, v. THE PORT OF SEATTLE, et al., Defendant.

CASE NO. C15-0928JLR

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT SEATTLE

December 2, 2016

ORDER

I. INTRODUCTION

Before the court are five motions: (1) Defendants The Port of Seattle ("the Port") and ABM Industries's ("ABM") (collectively, "Defendants") motion for summary judgment (MSJ (Dkt. # 31)); (2) Defendants' motion for relief from the court's case scheduling order and for leave to amend their answers (MTA (Dkt. # 46)); (3) Defendants' motion to exclude the testimony of Plaintiffs Evelyne Suzanne Sudre and Michel Sudre's (collectively, "Plaintiffs") expert witness William Martin (Pls.' MTE (Dkt. # 33)); (4) Plaintiffs' motion to exclude portions of the testimony of Defendants' expert witness Alan Black (Defs.' MTE (Dkt. # 35)); and (5) Plaintiffs' motion for sanctions against Defendants for spoliation of evidence (MFS (Dkt. # 36)). The court has considered the motions, the parties' responses, the parties' replies, the relevant portions of the record, and the applicable law. Being fully advised,¹ the court DENIES Defendants' motion for summary judgment; GRANTS Defendants' motion for relief from the court's case scheduling order and for leave to amend their answers subject to further instruction as set forth below; GRANTS in part and DENIES in part Defendants' motion to exclude the testimony of William Martin; GRANTS Plaintiffs' motion to exclude portions of the testimony of Alan Black; and DENIES Plaintiffs' motion for sanctions for spoliation of evidence.

II. BACKGROUND

A. The Complaint

This case arises from Ms. Sudre's alleged slip and fall at SeaTac International Airport ("STIA") on September 22, 2014. (See Compl. (Dkt. # 1) ¶ 3.1.) The Port operates STIA (id. ¶ 1.3; see also Port Answer (Dkt. # 12) ¶ 1.3), and ABM is a contractor for the Port and provides janitorial services at STIA (Compl. ¶ 1.4; see also ABM Answer (Dkt. # 11) ¶ 1.4; MSJ at 2.) Ms. Sudre was traveling with her husband, Michel Sudre, and her sister on their way back to France from a vacation in the UnitedStates. (Compl. ¶ 3.1.) Ms. Sudre alleges that as she headed "for the departure gate for her flight to Paris, France, she slipped and fell on the wet and slippery floor of the departure lounge." (Id. ¶ 3.2.) She alleges that "[t]he floor was wet and in a dangerous state" (id. ¶ 3.3), and contends that at the time of her fall, "the floor was being cleaned by employees of defendant ABM" and "[w]holly inadequate warnings were given as to the dangerous condition of the floor" (id. ¶ 3.4). As a result of the fall, Ms. Sudre "suffered a serious fracture to the neck of her right femur" and "was hospitalized upon returning to France" where she "underwent surgery." (Id. ¶ 3.5.) Ms. Sudre alleges that she "has been permanently damaged" by the fall. (Id.) Ms. Sudre asserts that she was not contributorily negligent because she "exercised all due care at all times." (Id. ¶ 3.7.) Ms. Sudre further alleges that Defendants "were on notice, both actual and constructive, of the dangerous condition but did nothing to remedy it." (Id. ¶ 3.8.)

Ms. Sudre brings one claim of negligence against Defendants for her fall. (Id. ¶¶ 4.1-4.4.) Ms. Sudre claims damages for her injuries, as well as for "emotional upset, distress and hurt, financial and medical expenses, and . . . a loss of earnings." (Id. ¶ 4.2.) Ms. Sudre alleges that "the accident has severely impacted her ability to walk and practice sport." (Id. ¶ 4.3.) Mr. Sudre asserts loss of consortium due to Ms. Sudre's injury. (Id. ¶ 4.5.)

B. The Events Surrounding Ms. Sudre's Fall

On their motion for summary judgment, Defendants contend that the evidence in this case establishes three possible locations where Ms. Sudre fell based on Ms. Sudre's testimony, Mr. Sudre's testimony, and STIA and ABM employees' testimony, andtherefore three possible versions of events. (See MSJ at 2 (illustrating three possible locations of Ms. Sudre's fall).) In response, Plaintiffs point to additional facts surrounding Ms. Sudre's fall.² (See MSJ Resp. (Dkt. # 67) at 5-8.)

1. Ms. Sudre's Version of Events

Under Ms. Sudre's version of events, Ms. Sudre stepped onto a moving walkway at STIA's Concourse A and saw a yellow cone when she came to the end of the walkway. (Northcraft Decl. ISO MSJ (Dkt. # 32) ¶ 1, pp. 3-23 ("E. Sudre Dep.") at 7:14-20, 8:2-6.) Ms. Sudre testified that the yellow cone was about one meter tall, to the right of the moving walkway, and about 10 meters from the end of the walkway. (Id. at 8:7-13, 9:1-13.) Ms. Sudre then testified that she exited the moving walkway, walked about 10 meters and then began to walk around the cone on the right side. (Id. at 10:18-11:19.) She testified that she walked about 10 meters past the cone and that once it was about five or six meters behind her, she slipped and fell. (Id. at 13:12-14:19.) Ms. Sudre estimates that she fell about 10 meters from the cone. (Id. at 13:14-20.)

Ms. Sudre further testified that she did not see any water or moisture on the floor when she fell, but that a maintenance worker wiped off Ms. Sudre's shoes. (Id. at 13:5-11, 21:14-19, 15:15-17, 16:13-23.) Ms. Sudre believed the soles of her shoes must have been wet because the maintenance worker wiped them off, but she did not see for herself whether the soles were wet. (Id. at 17:5-9, 21:20-24, 22:13-17.) Ms. Sudre saw the paper that the maintenance worker used to wipe her soles (id. at 16:24-18:9), andstated that "the paper towel was wet" (id. at 18:12-16; see also Capp Decl. in. Opp. to MSJ (Dkt. # 69) ¶ 3 (citing E. Sudre. Dep. at 34:16-18 ("I did see that the paper that he had in his hand was humid, so when he wiped my shoes there was something."), 141:16-17 ("[T]he man who came to wipe my shoes, I could see that the towel in his hand got wet.")).)

2. Mr. Sudre's Version of Events

Mr. Sudre testified that Ms. Sudre exited the moving walkway, walked about three to four meters to the right of the cone, and fell. (Northcraft Decl. ISO MSJ ¶ 2, pp. 24-45 ("M. Sudre Dep.") at 30:13-21.) He testified that when she fell, Ms. Sudre was even with the cone or slightly ahead of it. (Id. at 44:25-45:4.) He also testified that when Ms. Sudre fell, he noticed moisture on the floor. (Id. at 32:15-20, 33:12-19, 37:23-38:15, 38:20-39:3.) Mr. Sudre further testified that the moisture "was comparable to when moisture has just been cleaned up with either a mop or rag." (Id. at 34:23-35:3.) Mr. Sudre stated that he did not "see any puddles, any spills, or any droplets." (MSJ at 5 (citing M. Sudre Dep. at 35:9-13).) Mr. Sudre also testified that someone wiped off the soles of Ms. Sudre's shoes and that he did not see the soles of her shoes. (M. Sudre Dep. at 40:19-41:3, 42:20-23.)

Mr. Sudre also testified that he observed that the wet area where Ms. Sudre fell was approximately one meter by one meter. (MSJ Resp. at 5; M. Sudre Dep. at 31:19-23, 32:17-19 (The area was "wet around my wife, around her shoes."); M. Sudre. Decl. (Dkt. # 38) ¶¶ 11-12.) Mr. Sudre also stated that the janitorial employee who wiped Ms.

//Sudre's shoes after her fall said "sorry, sorry, sorry" as he did so. (MSJ Resp. at 5, 11, 12; M. Sudre Dep. at 37:5-11; Sudre Decl. ¶¶ 14-15.)

3. Defendants' Version of Events

At the time of Ms. Sudre's fall, ABM's janitorial employee Hector Aguilar patrolled and cleaned the concourse areas as part of his duties. (Northcraft Decl. ISO MSJ ¶ 4, pp.62-70 ("Aguilar Dep.") at 66.) Shortly before Ms. Sudre's fall, Mr. Aguilar had found a spill in Concourse A, which he testified looked like a mocha or chocolate coffee. (Id. at 68.) Mr. Aguilar testified that the spill was small (id.), and that "[h]e cleaned it up the same way he normally cleaned spills" (MSJ at 6 (citing Aguilar Dep. at 68)). Mr. Aguilar put his cart by the spill, mopped the liquid, placed a sign over the spill, and waited by the sign for the area to dry. (Aguilar Dep. at 68-69.) Mr. Aguilar testified that he recalled seeing Ms. Sudre while she was on the moving walkway, but did not notice her again until after her fall. (Id. at 69.) He further testified that he thought Ms. Sudre kicked the wet floor sign when she fell because the sign moved from where he had placed it and he had to put it back in place after her fall. (Id.)

After Mr. Aguilar had cleaned the spill but before Ms. Sudre fell, Port of Seattle employee Patrick Lisk was speaking with Mr. Aguilar at the site of the spill Mr. Aguilar had cleaned. (Aguilar Dep. at 69; Northcraft Decl. ISO MSJ ¶ 3, pp. 46-61 ("Lisk Dep.") at 48:4-49:5.) Mr. Lisk testified that he saw Mr. Aguilar standing with his cart, but did not know that Mr. Aguilar had just cleaned up a spill and did not see the wet floor sign because the cart obscured it. (Lisk Dep. at 49:20-22, 48:21-49:5, 49:12-19, 50:12-22.) Mr. Lisk states that he noticed Ms. Sudre on the moving walkway, but did not see heragain until after she fell. (Id. at 55:22-56:13, 57:25-58:3.) Mr. Lisk testified that Ms. Sudre landed within three to four feet of him when she fell. (Id. at 51:15-21.) Mr. Lisk further testified that he did not see how Mr. Aguilar responded to Ms. Sudre's fall and did not see whether the wet floor sign was kicked across the floor. (Id. at 54:11-20, 60:22-61:10.)

III. ANALYSIS

A. Evidentiary Challenges

As an initial matter, the parties argue that the court should strike several pieces of evidence in support of their respective motions. Specifically, Plaintiffs argue that (1) Defendants' counsel's declarations in support of their motions are not made on personal knowledge; (2) the deposition excerpts Defendants submitted have not been properly authenticated; and (3) Mr. Aguilar lacked personal knowledge for his deposition corrections and made corrections that constitute sham testimony.³ (MSJ Resp. at 2-3; MFS Reply (Dkt. # 65) at 5; Defs.' MTE Resp. (Dkt. # 60) at 2.) For their part, Defendants argue that the court should strike (1...