Wake v. National Railroad Passenger Corp.
Filing
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MEMORANDUM OPINION. Signed by Judge Paul W. Grimm on 09/26/2013. (bas, Deputy Clerk)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
Southern Division
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NOREEN WAKE,
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Plaintiff,
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v.
Civil Case No.: PWG-12-1510
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NATIONAL RAILROAD PASSENGER,
CORPORATION d/b/a AMTRAK,
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Defendant.
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MEMORANDUM OPINION
This Memorandum Opinion addresses Defendant National Railroad Passenger
Corporation d/b/a Amtrak’s Motion for Summary Judgment (“Def.’s Summ. J. Mot.”) and
supporting Memorandum (“Def.’s Summ. J. Mem.”), ECF No. 27; and Plaintiff Noreen Wake’s
Response (“Pl.’s Summ. J. Opp’n”), ECF No. 30. A hearing is unnecessary in this case. See
Loc. R. 105.6. For the reasons stated herein, Defendant’s Motion for Summary Judgment shall
be DENIED without prejudice, subject to reconsideration if and when Defendant files a reply
and renewal of its Motion that specifically address the issues discussed below.
I.
BACKGROUND
In reviewing the evidence related to a motion for summary judgment, the Court considers
the facts in the light most favorable to the nonmovant. Ricci v. DeStefano, 557 U.S. 557, 586
(2009).
Plaintiff is seventy-seven years old with an extensive medical history that includes
numerous surgeries, heart attacks, and other serious health complications. See Pl.’s Resps. to
Def.’s First Set of Interrogs. (“Pl.’s First Interrog. Resps.”) ¶ 1, Def.’s Summ. J. Mot. Ex. 1, ECF
No. 27-2; Pl.’s Med. Recs. 1–2, Def.’s Summ. J. Mot. Ex. 2, ECF No. 27-3. On or about May
23, 2009, Defendant’s train made an emergency stop after striking a deer. Wake Aff. ¶¶ 2–4,
Pl.’s Summ. J. Opp’n Ex. 1, ECF No. 30-1. Defendant instructed the passengers to exit the train,
requiring Plaintiff to step from the train directly to the ground three feet below. Pl.’s First
Interrog Resps. ¶ 8. Plaintiff alleges that she fell as a result of Defendant’s negligence, including
Defendant’s failure to provide a step stool to assist her in alighting from the train. See id. ¶ 10.
II.
STANDARD OF REVIEW
Summary judgment is proper when the moving party demonstrates, through “particular
parts of materials in the record, including depositions, documents, electronically stored
information, affidavits or declarations, stipulations . . . , admissions, interrogatory answers, or
other materials,” that “there is no genuine dispute as to any material fact and the movant is
entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a), (c)(1)(A); see Baldwin v. City of
Greensboro, 714 F.3d 828, 833 (4th Cir. 2013).
If the party seeking summary judgment
demonstrates that there is no evidence to support the nonmoving party’s case, the burden shifts to
the nonmoving party to identify evidence that shows that a genuine dispute exists as to material
facts. See Celotex v. Catrett, 477 U.S. 317, 322–23 (1986). The existence of only a “scintilla of
evidence” is not enough to defeat a motion for summary judgment. Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 251 (1986) (citations omitted). Instead, the evidentiary materials submitted
must show facts from which the finder of fact reasonably could find for the party opposing
summary judgment. Id. at 252.
To be entitled to consideration on summary judgment, the evidence supporting the facts
set forth by the parties must be such as could be admissible in evidence. See Fed. R. Civ. P.
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56(c); Mitchell v. Data Gen. Corp., 12 F.3d 1310, 1315-16 (4th Cir. 1993) (“The summary
judgment inquiry thus scrutinizes the plaintiff’s case to determine whether the plaintiff has
proffered sufficient proof, in the form of admissible evidence, that could carry the burden of
proof of his claim at trial.”). However, under Fed. R. Civ. P. 56(c)(2), as amended in 2010, facts
in support of or opposition to a motion for summary judgment need not be in admissible form;
the requirement is that the party identify facts that could be put in admissible form. See Niagara
Transformer Corp. v. Baldwin Techs., Inc., No. DKC-11-3415, 2013 WL 2919705, at *1 n.1 (D.
Md. June 12, 2013) (“Importantly, ‘the objection [now] contemplated by the amended Rule is
not that the material “has not” been submitted in admissible form, but that it “cannot” be.’”
(quoting Ridgell v. Astrue, No. DKC-10-3280, 2012 WL 707008, at *9 (D. Md. March 2,
2012))). The Court considers evidence related to a motion for summary judgment in the light
most favorable to the non-moving party, drawing reasonable inferences in its favor. Ricci v.
DeStefano, 557 U.S. 557, 586 (2009); see George & Co., LLC v. Imagination Entm’t Ltd., 575
F.3d 383, 392 (4th Cir. 2009).
III.
DISCUSSION
To prove negligence under Maryland Law, see Erie R.R. v. Tompkins, 304 U.S. 64, 78
(1938), “a plaintiff must prove the existence of four elements: [1] a duty owed to him . . . , [2] a
breach of that duty, [3] a legally cognizable causal relationship between the breach of the duty
and the harm suffered, and [4] damages,” Jacques v. First Nat’l Bank, 515 A.2d 756, 758 (Md.
1986). Defendant seeks summary judgment on the ground that Plaintiff has not presented
sufficient evidence of the applicable standard of care—that is, the nature of Defendant’s duty—
or that Defendant’s negligence was the cause-in-fact of Plaintiff’s injuries.
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A. Standard of Care
Defendant argues that Plaintiff has failed to show the applicable standard of care because
Plaintiff has not presented an expert to opine on the applicable standard of care and because
Defendant cannot be held to the heightened duty of a common carrier under the circumstances
alleged by Plaintiff. Neither of these arguments is meritorious.
Irrespective of whether Plaintiff alleges that Defendant’s duty arose from internal
procedures or a general duty to exercise reasonable care, this is not a case in which Defendant
was negligent in providing specialized, professional services such that an expert would be
necessary to demonstrate the proper standard of care. See Def.’s Summ. J. Mem. 12. But cf.
Schultz v. Bank of Am., N.A., 990 A.2d 1078, 1086 (Md. 2010) (“Where the plaintiff alleges
negligence by a professional, expert testimony is generally necessary to establish the requisite
standard of care owed by a professional.” (emphasis added)). Defendant points to Jones v. Nat’l
R.R. Passenger Corp., 942 A.2d 1103, 1108 (D.C. 2008).
However, Jones did not hold
otherwise. In Jones, the District of Columbia court distinguished the case at bar from the typical
case because an expert was needed to evaluate, inter alia, Plaintiff’s physical capacity to perform
certain tasks.
Id.
In contrast, the determination of when a step off of a train would be
unreasonably perilous without the aid of a step stool is the sort of question “which ‘jurors, as
ordinary [citizens], would be aware of, as a matter of general knowledge.’” Osunde v. Lewis,
281 F.R.D. 250, 261 (D. Md. 2012) (quoting Babylon v. Scruton, 138 A.2d 375, 379 (Md.
1958)).
Finally, Defendant’s assertion that, because its train failed and forced the passengers to
debark and walk to another train, it was momentarily relieved from its heightened obligations as
a common carrier, borders on the absurd. A common carrier “owes its passengers a duty to
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deliver them to their destination as expeditiously as possible, consistent with safety.” Wash.
Metro. Area Transit Auth. v. Seymour, 874 A.2d 973, 977 (Md. 2005) (quoting Todd v. Mass
Transit Admin., 816 A.2d 930, 934 (Md. 2003) (emphasis added)); cf. Hall v. Wash. Metro. Area
Transit Auth., 679 F. Supp. 2d 629, 633 (D. Md. 2010) (“A common carrier’s heightened duty
begins when a passenger, having paid or with the intent to pay a fare, enters a station, platform,
or other premises to wait to board the vehicle.” (citations omitted)). Defendant asks the Court to
hold that, having failed in its obligation to deliver Plaintiff expeditiously to her destination,
Defendant should be held to a less stringent standard when requiring Plaintiff to alight from a
train onto the ground than would apply if the train had arrived at its intended station. There is no
possible justification for Defendant’s position.
Although Plaintiff can survive summary judgment, however, her reliance on the doctrine
of res ipsa loquitur is unfounded and cannot relieve her of the need to present evidence of
Defendant’s negligence at trial. See Pl.’s Summ. J. Opp’n 9–10. Res ipsa loquitur allows for an
inference of negligence only in the narrow circumstance in which a party can show:
1. A casualty of a sort which usually does not occur in the absence of
negligence.
2. Caused by an instrumentality within the defendant’s exclusive control.
3. Under circumstances indicating that the casualty did not result from the act or
omission of plaintiff.
Dover Elevator Co. v. Swann, 638 A.2d 762, 765 (Md. 1994) (internal quotation marks omitted)
(citations omitted). Here, Plaintiff easily could have fallen in the absence of Defendant’s—or
anyone’s—negligence, and the ground she was climbing down onto was, though likely in
Defendant’s right-of-way, out in the open and not under the exclusive control of Defendant.
“This is not simply a case of a barrel falling from the defendant’s window onto some hapless
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pedestrian’s head. As a result, the application of res ipsa loquitur [is] not appropriate.” Id. at
774.
Plaintiff has stated, inter alia, that she was asked to climb down from a train car three
feet above the ground, that Defendant had a duty to provide a step stool, and that Defendant did
not provide a step stool. See Wake Aff. ¶¶ 5–14; Pl.’s First Interrog. Resps. ¶¶ 3, 4, 8. These
factual contentions are sufficient to present a genuine dispute of material fact as to whether the
Defendant had, and breached, some duty owed to Plaintiff.
B. Causation
Defendant makes a much stronger case with respect to its position that Plaintiff cannot
establish a prima facie case for negligence because, in light of her many health problems,
“Plaintiff cannot prove medical causation without medical testimony.” Def.’s Summ. J. Mot. 1.
Although Plaintiff has not contested Defendant’s view of the facts, she has raised several
procedural objections to the manner in which those facts were presented. See Pl.’s Summ. J.
Opp’n 5–7. Because Defendant has not exercised its right to reply to Plaintiff’s Opposition, I
cannot determine what facts are established or legitimately contested with respect to causation,
and therefore cannot grant summary judgment on the record before me.
First, Defendant relies heavily on Plaintiff’s medical records for her medical history and
the injuries she reported following her fall. See Def.’s Summ. J. Mem. 2–3, 8–9; Def.’s Summ.
J. Mot. Exs. 2–3. Plaintiff has objected that “[t]he materials submitted by Defendants cannot be
included because the Court cannot assume that they are authentic.” Pl.’s Summ. J. Opp’n 5.
Even though the 2010 amendments to Fed. R. Civ. P. 56 relaxed the standard for evidence
presented on summary judgment, Defendant has declined to oppose this objection and Defendant
has not demonstrated that its exhibits can be authenticated.
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Second, Defendant relies on facts purportedly admitted under Fed. R. Civ. P. 36(a)(3)
because Plaintiff never responded to Defendant’s requests for admission. Def.’s Summ. J. Mem.
13–15. In response, Plaintiff claims that Defendant “clearly did not proffer [the requests for
admission] to plaintiff.” Pl.’s Summ. J. Opp’n 5. Although the certificate of service attached to
the requests for admissions, Def.’s First Set of Req.s for Admission 5, Def.’s Summ. J. Mot Ex.
4, creates a presumption that the requests were served, see United States v. Wright, 238 F. 3d
418, 2000 WL 1846349, at *3 (4th Cir. Dec. 18, 2000), Plaintiff has rebutted this presumption by
claiming that service was never effected, see Pl.’s Summ. J. Opp’n 5. Defendant has not
responded.
Particularly in light of the fact that Plaintiff also claims to have served
interrogatories that Defendant apparently never received, see Def.’s Summ. J. Mem. 13 n.4, there
is simply not enough information in the record to find that Plaintiff should be sanctioned under
Fed. R. Civ. P. 36(a)(3).
Finally, the crux of Defendant’s argument is that Plaintiff cannot demonstrate causationin-fact without an expert witness, Def.’s Summ. J. Mem. 6–10, which Plaintiff, based on her
repeated failure after ample opportunity and warnings from this Court, has been barred from
calling, see Amend. Mem. Op., ECF No. 31. However, Plaintiff now claims that she has
“disclosed these [hybrid] witnesses to the defendant and the defendant has deposed the plaintiff’s
hybrid witnesses.” Pl.’s Summ. J. Opp’n 6. If Defendant has already deposed Plaintiff’s expert,
Plaintiff’s earlier lapses may have been made harmless. See Fed. R. Civ. P. 37(c)(1); S. States
Rack & Fixture, Inc. v. Sherwin–Williams Co., 318 F.3d 592, 596 (4th Cir. 2003). Because
Defendant did not reply to Plaintiff’s assertion that Plaintiff’s expert has been deposed, I must
accept the representation that such a deposition took place, which would prompt me to revisit the
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prohibition of Plaintiff’s expert testimony. Accordingly, I cannot find that Plaintiff would be
unable to show that her injuries were caused by her fall from Defendant’s train.
Plaintiff is able to defeat summary judgment by the narrowest of margins based on three
conclusory arguments to which Defendant has declined to respond:
1) Plaintiff’s unanswered objections to Defendant’s documentary evidence;
2) Her unopposed claim that she never received requests for admission; and
3) Her unopposed claim that Defendant has now deposed Plaintiff’s purported expert(s).
Accordingly, Defendant’s Motion for Summary Judgment must be denied.
However, I am considering these issues based on incomplete briefing of this motion
because Defendant has not filed a reply. It is possible that, once fully briefed, it will be shown
there is no genuine dispute of material fact. Accordingly, Defendant is granted an additional
fourteen days to file a reply in further support of its Motion for Summary Judgment and to renew
its Motion.
IV.
CONCLUSION
For the reasons stated above, Defendant’s Motion for Summary Judgment shall be
DENIED. Defendant is granted an extension of time within which to file a reply in further
support of Defendant’s Motion for Summary Judgment together with a renewal of that Motion.
A separate order shall issue.
Dated: September 26, 2013
/S/
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Paul W. Grimm
United States District Judge
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