Foster v. Logan's Roadhouse, Inc. et al

Filing 22

MEMORANDUM OPINION AND ORDER that the 17 MOTION to Compel is GRANTED in part and DENIED in part, defendant is ORDERED to produce such discovery within 30 days of the date of this order as more fully set out in order. Signed by Judge C Lynwood Smith, Jr on 4/4/2013. (AHI)

FILED
2013 Apr-04 AM 10:28
U.S. DISTRICT COURT
N.D. OF ALABAMA

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ALABAMA
NORTHEASTERN DIVISION
ALICE FOSTER,
Plaintiff,
v.
LOGAN’S ROADHOUSE, INC.,
et al.,
Defendants.

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Civil Action No. CV-12-S-2417-NE

MEMORANDUM OPINION AND ORDER
Plaintiff, Alice Foster, asserts a claim against defendant, Logan’s Roadhouse,
Inc., for “Negligence/Wantonness by Defendants in Creating or Allowing Dangerous
Condition or Defect and Failure to Properly Train and Hire Management Personnel.”1
Plaintiff’s claim arises out of injuries she allegedly suffered when she slipped on
peanut shells on the floor of one of defendant’s restaurants and fell onto the concrete
floor at the door of the kitchen.2 The case currently is before the court on plaintiff’s
motion to compel more complete discovery responses from defendant.3
Plaintiff served defendant with Interrogatories, Requests for Production, and
Request for Admission on June 4, 2012.4 The Interrogatories at issue in this motion
1

See Complaint, appended to doc. no. 1 (Notice of Removal).

2

See id. ¶¶ 14-21.

3

Doc. no. 17.

4

Doc. no. 15 (Affidavit of Rebekah McKinney), at Exhibit 1.

are set forth below:
15. Identify any complaint, warning, or other notice that
Defendant had received prior to the accident at issue regarding the area
in which Plaintiff was injured or any other dangerous condition or any
similar condition at this location or any other location of Defendant.
For each such complaint, warning, or other notice, state:
(a) The date and time the complaint, warning, or other
notice was received;
(b) Whether the complaint, warning, or other notice was
written or oral, and if oral, the substance of the complaint,
warning, or other notice;
(c) The name, address, and telephone number of the
person issuing such complaint, warning, or other notice;
(d) The name and job title of the person receiving such
complaint, warning, or other notice;
(e)

The nature and location of the danger or defect; and

(f)
Whether any action was taken as a result of the
complaint, warning, or other notice, and if so, a description of that
action and the time the action was taken.
....
19. Has any prior incident similar to that which injured Plaintiff
occurred on Defendant’s business premises at this location or any other
of Defendant’s locations? If so, please state the circumstances
surrounding each such incident.
20. Please describe each prior incident or claimed incident
which occurred on Defendant’s premises here or at other locations
involving the peanut shells and/or peanuts on the floor, slick kitchen
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exits or entrances or other dangerous conditions.
21. Please describe any claims or lawsuits that have heretofore
been brought against this Defendant by reason of an accident or injury
on Defendant’s business premises here or at other locations.5
Defendant objected to each of these interrogatories as “vague, ambiguous, overly
broad, unduly burdensome, not limited in time and scope, and not reasonably
calculated to lead to the discovery of admissible evidence.”6 Defendant also objected
to the disclosure of any sensitive or confidential information related to non-parties.7
Subject to those objections, defendant agreed to produce “a list of slip and falls
occurring at the Huntsville restaurant from 2006 to 2011, with the individual’s first
name, date of the incident, and a description of the incident provided by the
individual.”8
The request for production at issue in plaintiff’s motion to compel is:
6.
Produce documents evidencing or relating to any and all
complaints, notifications in any form whatsoever, and/or lawsuits
(whether settled or tried, pending or concluded), regarding Logan [sic]
Roadhouse, Inc.’s peanut shells and/or peanuts on the floor and/or slick
kitchen entrances or exits that are similar in nature to the incident made
the basis of Plaintiff’s complaint.9
5

Id., Interrogatories ¶¶ 15, 19-21 (emphasis supplied).

6

McKinney Affidavit, Exhibit 4, Responses to Interrogatories ¶¶ 15, 19-21.

7

Id. Defendant also raised the attorney-client privilege and attorney work product
doctrine, but those theories are not at issue in this motion to compel.
8

Id.

9

Id., Requests for Production ¶ 6 (alteration supplied).

3

Defendant objected to that request for production as “overly broad, unduly
burdensome, vague, ambiguous, not limited in time and scope, and is not reasonably
calculated to lead to the discovery of evidence relevant to the claims and defenses in
this litigation.”10 Subject to that objection, defendant agreed to produce copies of
complaints filed by two different individuals “relating to claimed incidents at the
Huntsville restaurant.”11
Plaintiff asserts that defendant should not be permitted to restrict its disclosures
to incidents that occurred at the same location at which she was injured, but should
instead be required to disclose all past incidents of falls related to peanut shells
occurring at any time at any of defendant’s restaurants. According to plaintiff, the
scope of the disclosure should be broadened to all of defendant’s restaurants because
“they are all operated the same, designed the same, have the same menu, the same
themes, the same all-you-can-eat peanuts, and each restaurant encourages its patrons
to throw the shells on the floor.”12 Moreover, plaintiff asserts that such evidence
is calculated to lead to the discovery of admissible evidence that would
show that Defendant was on notice, that it was creating a dangerous
condition on its premises, Defendant was aware of the magnitude of
danger involved, Defendant had the ability to correct the dangerous
condition, Defendant knew that the floors were unsafe for walking, as
10

McKinney Affidavit, Exhibit 4, Responses to Requests for Production ¶ 6.

11

Id.

12

Doc. no. 17 ¶ 15.

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well as to show the standard of care and causation.13
The United States District Court for the Southern District of Georgia recently
articulated a succinct statement of Eleventh Circuit law governing the admission of
evidence of prior similar incidents:
The Eleventh Circuit has instructed that evidence of prior
incidents is admissible “so long as the conditions of the prior incidents
are substantially similar to the occurrence in question and are not too
remote in time.” Wyatt v. Otis Elevator Co., 921 F.2d 1224, 1227 (11th
Cir. 1991). This evidentiary doctrine applies when one party seeks to
admit prior accidents or occurrences involving the opposing party, in
order to show, for example, “notice, magnitude of the danger involved,
the [party’s] ability to correct a known defect, the lack of safety for
intended uses, strength of a product, the standard of care, and
causation.” Jones v. Otis Elevator Co., 861 F.2d 655, 661 (11th Cir.
1988). “[T]he proponent of such evidence must show that “conditions
substantially similar to the occurrence caused the prior accidents.’”
Heath v. Suzuki Motor Corp., 126 F.3d 1391, 1396 n. 12 (11th Cir.
1997) (quoting Hessen v. Jaguar Cars, 915 F.2d 641, 649 (11th Cir.
1990)).
“In order to limit the substantial prejudice that might inure to a
party should these past occurrences or accidents be admitted into
evidence, courts have developed limitations governing the admissibility
of such evidence, including the ‘substantial similarity doctrine.’” Heath,
126 F.3d at 1396. “This doctrine applies to protect parties against the
admission of unfairly prejudicial evidence, evidence which, because it
is not substantially similar to the accident or incident at issue, is apt to
confuse or mislead the jury.” Id.
Jaquillard v. Home Depot, No. CV410-167, 2012 WL 527418, *1-2 (S.D. Ga. Feb.

13

Id.

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16, 2012) (alterations in original). Based on these principles, the district court in
Jaquillard held that a slip and fall plaintiff who was injured by falling on a wet floor
caused by plant watering in a Home Depot outdoor garden center could not introduce
evidence of other slip and falls at other Home Depot stores that were not caused by
plant watering. Id. at *2-*3.14
As discussed above, it is undisputed that plaintiff is entitled to evidence of
prior similar incidents at the same restaurant at which she was injured. The
questions thus become whether, under the substantial similarity doctrine, she is
entitled to evidence of other incidents at other of defendant’s locations, and what
prior incidents should be considered “substantially similar” to her own. Defendant
asserts that plaintiff’s requests reach beyond what is covered by the substantial
similarity doctrine because, read broadly, they could encompass any injury caused by
any hazard on defendant’s property,15 and because they do not contain any time
limitation. The court agrees with defendant on these points. An injury caused by
14

The court notes that the issue in Jaquillard was whether the plaintiff could introduce
evidence of other slip and falls, not whether she could obtain such evidence through discovery.
The plaintiff apparently already had conducted discovery to determine what other incidents
existed, because she knew that there had been 188 prior incidents involving “a fall on a wet floor
in an outside garden center of a Home Depot store in the southeastern United States.”
Jaquillard, 2012 WL 527418, at *2. She also knew which of those incidents were attributable
to plant watering, and which were attributable to other factors such as rainwater. Id.
15

See, e.g., Interrogatory No. 15 (referring to “any other dangerous condition or any
similar condition”); Interrogatory No. 21 (requesting information about lawsuits brought as a
result of “an accident or injury”).

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some other dangerous condition — for example, a wet floor or an improperly
maintained sidewalk — would have no bearing on the issue of whether defendant had
notice that peanut shells on the floor constituted a dangerous condition. Only slip and
falls caused by peanut shells on the floor would be relevant. See Jaquillard, 2012
WL 527418, at *2-3 (allowing evidence of only prior similar incidents which, like the
plaintiff’s incident, involved plant watering). Moreover, Eleventh Circuit law makes
clear that evidence of other prior incidents must not be “too remote in time.” Wyatt,
921 F.2d at 1227. The court will adopt defendant’s suggestion that 2006 to 2011 is
a reasonable time period.16
The remaining issue is whether plaintiff should be allowed to discover
evidence related to peanut shell-related slip and falls at all of defendant’s restaurants,
or only at the Huntsville, Alabama, restaurant where plaintiff was injured. It is true,
as defendant points out, that not all Logan’s restaurants are identical, and that
different restaurants use different flooring material. To account for those differences,
plaintiff’s requests reasonably can be limited to restaurants, like the Huntsville
restaurant where plaintiff was injured, in which the floor is constructed of concrete.
Finally, the court concludes that, while a nationwide scope for the discovery sought

16

Despite its objections to plaintiff’s requests, defendant agreed to produce evidence of
slip and falls at the Huntsville restaurant from 2006 to 2011. See supra, at 3.

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would be too broad, defendant does not operate nationwide. Instead, as of January
27, 2013, defendant operated a total of 254 restaurants in 23 states.17 Discovery will
be allowed in all of defendant’s stores in all locations, as long as the other restrictions
set forth in this opinion are satisfied.
The court is not persuaded by defendant’s argument that “evidence of notice
is irrelevant because notice is presumed where, as here, the defendant allegedly
created the dangerous condition.”18 Defendant is correct that, under Alabama law, if
it created the hazardous condition that caused plaintiff’s injury, plaintiff would not
need to prove that it had notice of that condition. See Dunklin v. Winn-Dixie of
Montgomery, Inc., 595 So.2d 463, 465 (Ala. 1992) (“Where there is substantial
evidence that the defendant’s actions created the hazardous condition, the plaintiff
need offer no further evidence that the defendant had notice of the hazardous
condition.”). However, the court is unaware of any stipulation by defendant that it
did in fact create the hazardous condition that caused plaintiff’s injury. Until that fact
has been established by stipulation or otherwise, plaintiff should be allowed to gather
evidence on the subject of whether defendant had notice.
The court also is unpersuaded that complying with plaintiff’s requests, with the

17

Doc. no. 21, Exhibit 1 (Affidavit of John Gluth) ¶ 3.

18

Doc. no. 21, at 7.

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restrictions discussed in this opinion, would be unduly burdensome for defendant.
See Fed. R. Civ. P. 26(b)(2)(C)(ii) (stating that a court can limit discovery if “the
burden or expense of the proposed discovery outweighs its likely benefit, considering
the needs of the case, the amount in controversy, the parties’ resources, the
importance of the issues at stake in the action, and the importance of the discovery
in resolving the issues”). Defendant offered the affidavit testimony of John Gluth,
its Senior Director of Risk Management, who stated, in pertinent part:
5.
Since 2008, each Logan’s restaurant has maintained a
database of incident forms completed by it guests. The database
includes only incidents reported in 2008 or later. The database does not
specify the exact cause of a reported injury and cannot generate a list of
incidents related to peanut shells.
6.
Guest incident forms prepared prior to 2008 are stored in
hard-copy form in a warehouse in Memphis, Tennessee.
7.
To provide information regarding all incidents related to
peanut shells, Logan’s would have to manually review each accident
description in each guest incident form.19
Defendant undoubtedly will have to spend significant time and effort to obtain the
information requested by plaintiff. Even so, plaintiff should not be prevented from
obtaining necessary discovery simply because defendant has chosen to maintain its
records in a manner that makes searches difficult and time-consuming. Overall, the

19

Gluth Affidavit ¶¶ 5-7.

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importance of the discovery to plaintiff outweighs defendant’s burden in producing
it.
In conclusion, plaintiff’s motion to compel is GRANTED in part and DENIED
in part. Plaintiff will be entitled to discovery of prior similar incidents of slip and
falls caused by peanut shells on the floor at any of defendant’s restaurants in which
the flooring material is concrete from January 1, 2006 to December 31, 2011,
inclusive. Defendant is ORDERED to produce such discovery within thirty (30) days
of the date of this order. The parties may submit a proposed protective order if one
is necessary to protect the privacy of any individuals named in the discovery.
DONE this 4th day of April, 2013.
______________________________
United States District Judge

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