Weaver v. Celebration Station Props., Inc.
| Decision Date | 28 April 2015 |
| Docket Number | CIVIL ACTION NO. H-14-2233 |
| Parties | KERRI WEAVER, et al., Plaintiffs, v. CELEBRATION STATION PROPERTIES, INC., Defendant. |
| Court | U.S. District Court — Southern District of Texas |
This is a personal injury case involving a go-kart accident at an amusement park that caused the plaintiff, Kerri Weaver, to fracture her heel. Weaver sued the amusement park's owner, Celebration Station Properties ("Celebration"), on behalf of herself and her minor daughter, seeking damages for negligence. After discovery, Celebration moved for summary judgment. Weaver responded, Celebration replied, and Weaver filed a surreply, which Celebration moved to strike. Both parties have moved to exclude expert testimony, and Celebration has moved to exclude certain evidence and to designate the other go-kart driver as a responsible third party. (Docket Entry Nos. 26; 27; 28; 29; 30; 31; 32; 33; 34; 35).
Based on a careful review of the pleadings; the motions, response, and reply; the record; and the applicable law, the court grants Celebration's motion for summary judgment, denies its motion to strike Weaver's surreply, and denies the parties' remaining motions as moot. The reasons for these rulings are explained in detail below.
On August 12, 2012, Kerri Weaver visited Celebration's amusement park in Oklahoma City, Oklahoma, with her three children. . Two of her children used the park's go-karts without mishap. (Id.). Weaver took the third child, B.W., on a ride. (Id.). Weaver had frequently driven go-karts. (Id. 23:10-25; 24:1-13). She testified in her deposition that she had no problems with the track layout or the equipment during her first two rides that day. She testified that the track was not more crowded during her ride with B.W. than it had been on her earlier rides that day. (Id. 19:12-23; 27:2-20). Weaver saw signs warning drivers against bumping other go-karts and to keep arms and legs inside the go-karts. (Id. 21:11-22). She testified that a Celebration employee gave the drivers verbal instructions before they began, although it was hard to hear everything said because the pit area was noisy. (Id. 21:23-25; 22:1-11).
During Weaver's ride with B.W., another go-kart driver bumped their go-kart, causing Weaver's heel fracture. (Id. 31:3-25; 38:3-25; 42:1-25). B.W. was not physically hurt but witnessed her mother's injury. Celebration's video-recording system was malfunctioning that day and did not record the accident.
On June 24, 2014, Weaver sued Celebration in Texas state court on behalf of herself and B.W. Weaver alleged that Celebration's negligent failure to inspect the amusement area, adequately warn customers not to bump into other go-karts, train and supervise its employees, and instruct and train go-kart drivers, caused her injury. . She sought damages for her own injury and for her daughter's bystander suffering. Celebration timely removed on the basis of diversity jurisdiction and, after discovery, moved for summary judgment, arguing that it owed Weaver no duty to warn her about the open and obvious risks inherent in go-kart racing and, in anyevent, did not breach that duty. (Docket Entry No. 26).
Weaver responded that Celebration owed her a duty as a business invitee and breached this duty when it failed to guard against other reckless drivers. (Docket Entry No. 27). She cited her own deposition testimony and that of Celebration's corporate representative. She cited, but did not attach, the relevant record evidence with her response. She also stated that she had not had an opportunity to depose the Celebration employees who were working at the go-kart center when the incident ocurred.
Celebration replied, arguing that summary judgment was proper based on both its previous arguments and Weaver's failure to attach the record evidence she cited. (Docket Entry No. 28). Weaver filed a surreply in which she reiterated her response arguments and attached the documents she had failed to submit earlier. (Docket Entry No. 29). Celebration moved to strike Weaver's surreply. (Docket Entry No. 30).1
The parties' arguments and responses are analyzed below.
Summary judgment is appropriate if no genuine dispute of material fact exists and the moving party is entitled to judgment as a matter of law. FED. R. CIV. P. 56(a). "The movant bears the burden of identifying those portions of the record it believes demonstrate the absence of a genuine issue of material fact." Lincoln Gen. Ins. Co. v. Reyna, 401 F.3d 347, 349 (5th Cir. 2005) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 322-25 (1986)).
If the burden of proof at trial lies with the nonmoving party, the movant may satisfy its initialburden by "'showing' - that is, pointing out to the district court - that there is an absence of evidence to support the nonmoving party's case." See Celotex, 477 U.S. at 325. While the party moving for summary judgment must demonstrate the absence of a genuine and material factual dispute, it need not negate the elements of the nonmovant's case. Boudreaux v. Swift Transp. Co., 402 F.3d 536, 540 (5th Cir. 2005) (citation omitted). "'An issue is material if its resolution could affect the outcome of the action.'" DIRECTV, Inc. v. Robson, 420 F.3d 532, 536 (5th Cir. 2005) (quoting Weeks Marine, Inc. v. Fireman's Fund Ins. Co., 340 F.3d 233, 235 (5th Cir. 2003)). "If the moving party fails to meet its initial burden, the motion for summary judgment must be denied, regardless of the nonmovant's response." Quorum Health Res., L.L.C. v. Maverick County Hosp. Dist., 308 F.3d 451, 471 (5th Cir. 2002) (citing Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994) (en banc)).
When the moving party has met its Rule 56(c) burden, the nonmoving party cannot rest on its pleading allegations. "[T]he nonmovant must identify specific evidence in the record and articulate the manner in which that evidence supports that party's claim." Johnson v. Deep E. Tex. Reg'l Narcotics Trafficking Task Force, 379 F.3d 293, 301 (5th Cir. 2004) (citation omitted). "This burden is not satisfied with 'some metaphysical doubt as to the material facts,' by 'conclusory allegations,' by 'unsubstantiated assertions,' or by 'only a 'scintilla' of evidence.'" Little, 37 F.3d at 1075 (internal citations omitted). In deciding a summary judgment motion, the court draws all reasonable inferences in the light most favorable to the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986) (citation omitted).
"'A federal court must follow the choice-of-law rules of the state in which it sits.'" Fina,Inc. v. ARCO, 200 F.3d 266, 269 (5th Cir. 2000) (quoting St. Paul Mercury Ins. Co. v. Lexington Ins. Co., 78 F.3d 202, 205 (5th Cir. 1996)). "For both tort and contract cases, Texas follows the 'most significant relationship test' set out in the Restatement (Second) of Conflict of Laws § 6 and § 145." DTEX, LLC, 508 F.3d at 802 (citing Torrington Co. v. Stutzman, 46 S.W.3d 848 (Tex. 2000); Guiterrez v. Collins, 583 S.W.2d 312, 318 (Tex. 1979)). "Some relevant factors to consider include: (a) the place where the injury occurred; (b) the place where the conduct causing the injury occurred; (c) the domicile, residence, nationality, place of incorporation and place of business of the parties; and (d) the place where the relationship, if any, between the parties is centered." Id. (quotations and alteration omitted); see also RESTATEMENT (SECOND) OF CONFLICT OF LAWS § 145.
The parties agree that Oklahoma has the most significant relationship to this case. Weaver's injury occurred at Celebration's Oklahoma amusement park, where the alleged negligent acts and omissions took place and where most of the evidence and witnesses are located. Oklahoma law governs this dispute.
Celebration asks the court to strike Weaver's surreply because it introduces evidence and argument without giving Celebration, the summary judgment movant, a fair opportunity to respond. "Surreplies, and any other filing that serves the purpose or has the effect of a surreply, are highly disfavored, as they usually are a strategic effort by the nonmovant to have the last word on a matter." Lacher v. West, 147 F. Supp 2d 538, 539 (N.D. Tex. 2001). But Weaver's response cited and discussed the parts of the summary judgment record that she attached to the surreply. Celebration is not prejudiced by the surreply attaching exhibits already cited and discussed in the response.Celebration's motion to strike, (Docket Entry No. 30), is denied.
To recover for negligence under Oklahoma law, a plaintiff must show: (1) a duty of care owed by defendant to plaintiff; (2) defendant's breach of that duty; and (3) injury to plaintiff caused by defendant's breach of that duty. See Berman v. Lab. Corp. of Am., 268 P.3d 68, 72 (Okla. 2011); Lincoln Nat'l Life Ins. Co. v. Cowboy Athletics, Inc., 934 F. Supp. 2d 884, 894 (N.D. Tex. 2012). Celebration argues that it is entitled to judgment as a matter of law on the undisputed summary judgment record because it: (1) owed no duty to warn Weaver of open and obvious dangers; (2) did not breach that or any other duty owed to Weaver or B.W.; and (3) B.W.'s claim for bystander liability fails because she did not suffer physical injury.
"The threshold question in any negligence action is whether the defendant has a duty to the plaintiff." Sholer v. ERC Mgmt. Group, LLC, 256 P.3d 38, 43 (Okla. 2011). "The relevant inquiry for assessing the existence of a duty in negligence cases [is] . . . as follows:
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