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Mercer Robinson v. Panera, LLC

United States District Court, District of Columbia

October 16, 2019

PANERA, LLC, Defendant.



         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.)


         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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