MEMORANDUM OPINION
TANYA
S. CHUTKAN UNITED STATES DISTRICT JUDGE.
Plaintiff
Emille Grace Mercer Robinson brings this action against
Defendant Panera, LLC, alleging that Panera's negligence
caused her to fall in one of Panera's restaurants.
Defendant
moves, pursuant to Federal Rule of Civil Procedure 56, for
summary judgment. (ECF No. 18.) It has also filed a motion
in limine to exclude Plaintiff's proposed expert
testimony. (ECF No. 19.) Plaintiff moves to file a surreply
to Defendant's summary judgment motion (ECF No. 27) and
to file a surreply to Defendant's motion in
limine (ECF No. 26).
For the
reasons set forth below, the court will DENY Plaintiff's
motions to file a surreply, GRANT Defendant's motion
in limine, and GRANT Defendant's motion for
summary judgment.
I.
BACKGROUND[1]
On
February 11, 2016, there was snow on the ground “[i]n
some places” in Washington, D.C. because it had snowed
earlier in the week. (ECF No. 22-4 (“Robinson
Dep.”) at 9:8-16.) At some point that day, Plaintiff
entered the Panera located at 1750 H Street, NW, Washington,
D.C. (Robinson Dep. at 7:23-8:13.) Although there were mats
on the floor near the entryway due to the icy weather,
Plaintiff does not recall noticing anything about the
condition of the floor mats. (Id. at 10:11-24; ECF
No. 18-1 (“Def.'s 7(h)(1) Statement”) at
¶ 4; ECF No. 22 (“Pl.'s 7(h)(1)
Statement”) at ¶ 4; ECF No. 22-2 (“Mansaray
Dep.”) at 23:13-17.) But she thinks that “if the
mat had been buckled . . . or something like that, ”
she would have noticed. (Robinson Dep. at 19:21-20:12.)
Plaintiff then ordered “a latte and some type of
pastry.” (Id. at 11:2-3.)
Once
Plaintiff received her order, she began to leave Panera with
the latte in one hand and the pastry in the other.
(Id. at 17:9-15.) As she approached the exit, and
while looking straight ahead, Plaintiff felt the edge of her
right boot catch either under the end of the mat or at the
front edge of the mat. (Id. at 17:16-22, 18:12-22,
19:13-20; Def.'s 7(h)(1) Statement at ¶ 4; Pl.'s
7(h)(1) Statement at ¶ 4.) She fell and tore her left
rotator cuff. (Robinson Dep. at 17:22-25, 28:21-29:1.) After
she fell, Plaintiff did not notice anything about the
mat's condition (e.g, , it was neither frayed
nor flipped over). (Id. at 19:21-21:4; Def.'s
7(h)(1) Statement at ¶ 5; Pl.'s 7(h)(1) Statement at
¶ 5.) She does not know why her boot caught the edge of
the mat, but assumes it was because the mat was not tacked
down to the floor. (Robinson Dep. at 20:13-21:18; Def.'s
7(h)(1) Statement at ¶ 6; Pl.'s 7(h)(1) Statement at
¶ 6.)
Defendant
directs the court to several facts in the record relating to
Plaintiff's fall. First, Plaintiff did not notice
anything unusual about the mat either before or after her
fall. (Robinson Dep. at 20:13- 16; Def.'s 7(h)(1)
Statement at ¶ 5; Pl.'s 7(h)(1) Statement at ¶
5.) Second, as she exited the store, Plaintiff never looked
down but continued to look straight ahead. (Robinson Dep. at
19:13-20; Def.'s 7(h)(1) Statement at ¶ 3.) Third,
Plaintiff does not “believe that there was any part of
the mat that wasn't flat to the ground.” (Robinson
Dep. at 19:21-25; Def.'s 7(h)(1) Statement at ¶ 5;
Pl.'s 7(h)(1) Statement at ¶ 5.) Fourth,
Panera's manager examined the mat after Plaintiff's
fall and observed that it laid “perfectly” on the
floor. (ECF No. 18-3 (“Javed Dep.”) at
40:14-41:6; Def.'s 7(h)(1) Statement at ¶ 10;
Pl.'s 7(h)(1) Statement at ¶ 10.) Fifth,
Panera's assistant manager examined the mat after
Plaintiff's fall and observed that it did not “move
or budge or anything” and that the edges of the mat
“were flat on the floor.” (Mansaray Dep. at
41:15-42:2; Def.'s 7(h)(1) Statement at ¶ 11;
Pl.'s 7(h)(1) Statement at ¶ 11.) Sixth, Plaintiff
is not aware of any complaints reported to Panera about the
mat's condition before her fall. (Robinson Dep. at
21:22-25; Def.'s 7(h)(1) Statement at ¶ 8.)
Plaintiff
retained an expert witness, Russell Kendzior, the Founder and
Chairman of the Board of the National Floor Safety Institute
(“NFSI”), and the President of Traction Experts,
Inc. (ECF 22-9 (“Expert's Experience”) at 1.)
Kendzior is a certified NFSI Walkway Auditor, and a member of
the American Society for Testing and Materials
(“ASTM”), (id. at 2), an organization
that maintains design and construction guidelines and minimum
maintenance criteria concerning standard practices for
managing safe walking surfaces, including the use of floor
mats, (ECF 22-10 (“Standards”)).
Kendzior
reviewed (1) the depositions of Plaintiff, the manager, and
the assistant manager; (2) answers to interrogatories; (3)
the responses to Plaintiff's request for production and
documents; (4) the D.C. Fire and EMS Report; (5) the Service
Agreement and Amended Service Agreements between Panera and
Aramark (the company that delivers new mats to Panera every
Thursday);[2] (6) the Panera Employee Safety &
Security Manual; and (7) Panera's surveillance video and
photographs of the restaurant's entrance. (ECF No. 21-7
(“Kendzior Dep.”) at 8:11-9:3.) Kendzior never
spoke to Plaintiff, (id. at 21:11-12), never visited
the Panera on H Street, (id. at 26:8-10), never saw
or tested the mat at issue, (id. at 70:8-14), and
never examined an exemplar of the mat at issue, (id.
at 43:11-14). He also testified that he worked based on
“limited information, photographs . . . and videos that
[did not] actually show the exact point of impact.”
(Id. at 51:6-9.)
Kendzior
concluded that Plaintiff fell for one of two reasons: either
the floor mat was “buckled or rippled or otherwise
elevated above that of the floor level, ” or the
mat's edge was at “the junction point where the
walkway transitioned from a ramp to a level walking surface,
” which “creat[ed] a change in elevation between
the two surfaces.” (ECF 22-6 (“Kendzior
Report”) at 2.)
When
asked for the basis of his first reason, Kendzior replied:
Well, those-those are all possibilities. I-Ms. Robinson said
with certainty that she caught the toe of her boot on the
edge of the mat. I don't know. I wasn't there and I
can't see that in the surveillance video. There was [sic]
no eyewitnesses that can testify to that. So assuming, and
taking her testimony at face value that what she said
happened happened, well, what other possibilities could there
have been, if any? If any. So it's the process of
elimination.
(Kendzior Dep. at 45:15-46:4.) With respect to his conclusion
that the mat might have been rippled or buckled, he
acknowledged that Plaintiff testified that she did not see
any kind of buckling or rippling, and he did not provide
“[a]ny other factual basis” for that portion of
his opinion. (Id. At 46:12-48:18.) And with respect
to his conclusion that the mat might have been
“otherwise elevated above that of the floor level,
” he explained by comparing the
“nose”[3] on carpeted stairs to the mat-covered
junction point (where the ramp met the level surface).
(Id. at 48:19-50:4.) While the carpet and mat are
flat, there is necessarily “a hump” over each
curve. (Id. at 49:7-50:4.)
When
asked for the basis of his second reason, Kendzior clarified
that when referring to the “change in elevation,
” it was not the mat that changed in elevation, but the
floor, going from a ramp to a flat floor. (Id. at
55:14-56:4.)
Kendzior
testified that the height of the mat-one-eighth of an inch
thick-did not violate any standards. (Id. at
42:5-18.) He also stated that there was no standard of which
he was aware recommending that a mat not be placed over a
transition where there is a change in elevation.
(Id. at 74:22-75:9.) According to Kendzior,
“Panera Bread can do whatever they want. They can
do-there's no law against using a floor mat the way they
did.” (Id. at 75:9-11.) However, in
Kendzior's opinion, it was “not reasonable to use a
mat like they did in this particular application without
securing it to the floor, ” and the best solution would
have been to not use any floor mat on the ramp. (Id.
at 86:11-87:4.)
At the
time Kendzior made his report and came to his conclusions, he
had only evaluated the surveillance video from one angle,
directed at the exit; he had not reviewed the surveillance
video from the camera which captured a wider view of the exit
and store. (Id. at 9:12-17, 10:4-18.) He testified
that his review of the second surveillance video did not
alter his opinion, except that the mat was shorter than he
initially believed from reviewing deposition testimony.
(Id. at 10:21-11:19, 30:13-20.)
II.
LEGAL STANDARD
Summary
judgment is appropriate where there is no disputed genuine
issue of material fact, and the movant is entitled to
judgment as a matter of law. Fed.R.Civ.P. 56(a); Celotex
Corp. v. Catrett, 477 U.S. 317, 325 (1986). “A
fact is ‘material' if a dispute over it might
affect the outcome of a suit under governing law; factual
disputes that are ‘irrelevant or unnecessary' do
not affect the summary judgment determination.”
Holcomb v. Powell, 433 F.3d 889, 895 (D.C. Cir.
2006) (quoting Anderson v. Liberty Lobby, 477 U.S.
242, 248 (1986)). There is a genuine issue when there is
“sufficient evidence favoring the nonmoving party for a
jury to return a verdict for that party.”
Anderson, 477 U.S. at 249.
In
determining whether a genuine issue of material fact exists,
the court must view all the facts in the light most favorable
to the nonmoving party. See Matsushita Elec. Indus. Co.
v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). The
non-moving party “may not rest upon the mere
allegations or denials of [her] pleading, but . . . must set
forth specific facts showing that there is a genuine issue
for trial.” Anderson, 476 U.S. at 248 (quoting
First Nat'l Bank of Ariz. v. Cities Serv. Co.,
391 U.S. 253, 288 (1968)).
III.
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