Hofer et al v. Old Navy Inc. et al

Filing 83

Attachment 10

First MEMORANDUM in Opposition re 62 MOTION for Summary Judgment filed by all plaintiffs. (Attachments: # 1 Deposition of Stephanie Hofer, Volume I# 2 Deposition of Stephanie Hofer, Volume II# 3 Deposition of Stephanie Hofer, Volume III# 4 Deposition of Carrie LaRoche# 5 Travel Itinerary# 6 Exhibit Credit Card Statements# 7 Deposition of Lauren M. Drew# 8 Affidavit of Lauren M. Drew# 9 Affidavit of Carrie LaRoche# 10 Deposition of Denroy Scarlett# 11 Discharge Order# 12 Notice of Disability Award)(Minchoff, India)

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Hofer et al v. Old Navy Inc. et al Doc. 83 Att. 10 Case 4:05-cv-40170-FDS Document 83-11 Filed 03/15/2007 Page 1 of 42 HOFER, ET AL v. THE GAP, INC., ET AL DENROY SCARLETT August 21, 2006 Prepared for you by Bingham Farms | Ann Arbor | Detroit | Flint | Grand Rapids | Jackson | Lansing | Mt. Clemens PHONE: 248.644.8888 FAX: 248.644.1120 www.bienenstock.com Dockets.Justia.com Case 4:05-cv-40170-FDS Document 83-11 Filed 03/15/2007 Page 2 of 42 Page 1 DENROY SCARLETT August 21, 2006 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 The Videotaped Deposition of DENROY SCARLETT, Taken at Turtle Beach Towers, Main Street, Ocho Rios, St. Ann, Jamaica, W.I., Commencing at 11:46 a.m., Monday, August 21, 2006, Before Rebecca J. Callow, CSR-5228, RPR. vs. THE GAP, INC., EXPEDIA, INC., and TURTLE BEACH TOWERS, Defendants. __________________________________ STEPHANIE HOFER and DOUGLAS HOFER, Plaintiffs, Case No. 05-40170 IN THE DISTRICT COURT OF THE UNITED STATES FOR THE DISTRICT OF MASSACHUSETTS Case 4:05-cv-40170-FDS Document 83-11 Filed 03/15/2007 Page 3 of 42 Page 2 DENROY SCARLETT August 21, 2006 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 SCOTT D. FERINGA Sullivan, Ward, Asher & Patton, P.C. 25800 Northwestern Highway Suite 1000 Southfield, Michigan (248) 746-0700 Appearing on behalf of the Gap, Inc. 48037 INDIA L. MINCHOFF Russo & Minchoff 123 Boston Street Boston, Massachusetts (617) 740-7340 Appearing on behalf of the Plaintiffs. 02125 STEPHEN J. KUZMA Stephen Kuzma Law Office 75 Federal Street Suite 17 Boston, Massachusetts (617) 338-3020 Appearing on behalf of the Plaintiffs. 02110 APPEARANCES: Case 4:05-cv-40170-FDS Document 83-11 Filed 03/15/2007 Page 4 of 42 Page 3 DENROY SCARLETT August 21, 2006 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 ALSO PRESENT: Lynsey Williams - Video Technician THOMAS T. REITH Burns & Levinson, L.L.P. 125 Summer Street Boston, Massachusetts (617) 345-3000 Appearing on behalf of Expedia, Inc. 02110 Case 4:05-cv-40170-FDS Document 83-11 Filed 03/15/2007 Page 5 of 42 Page 4 DENROY SCARLETT August 21, 2006 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 VIDEO TECHNICIAN: We are now on the record. Ocho Rios, St. Ann, Jamaica, W.I., Monday, August 21, 2006 11:46 a.m. This is the videotape deposition of Denroy Scarlett being taken on Monday, August 21st, 2006. now 11:46 and 40 seconds a.m. The time is We are located at the This Turtle Beach Towers in Ocho Rios, Jamaica. deposition is being taken on behalf of the defendants in the matter of Stephanie Hofer and Douglas Hofer versus The Gap, Incorporated; Expedia, Incorporated; and Turtle Beach Towers. FDS. This is case number 05-40170 This matter is being held in the United States District Court for the District of Massachusetts. My name is Lynsey Williams, video technician. Will the court reporter swear in the witness and the attorneys briefly identify themselves for the record, please. DENROY SCARLETT, was thereupon called as a witness herein, and after having first been duly sworn to testify to the truth, the whole truth and nothing but the truth, was examined and testified as follows: MR. FERINGA: I'm Scott Feringa. I Case 4:05-cv-40170-FDS Document 83-11 Filed 03/15/2007 Page 6 of 42 Page 5 DENROY SCARLETT August 21, 2006 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 BY MR. FERINGA: Q. A. Q. Can you give me your full name, please? Denroy Scarlett. Mr. Scarlett, we introduced before. Feringa. I represent Gap. My name is Scott A. represent Gap. MR. REITH: Expedia, Inc. MS. MINCHOFF: India Minchoff, for the Thomas Reith. I represent plaintiff, Stephanie Hofer and Douglas Hofer. MR. KUZMA: Stephen Kuzma. Good morning. MR. KUZMA: And note my -- again, the Good morning, sir. My name is I represent Stephanie Hofer. objection -- the continuing objection to the authority granted or not granted for the deposition to go forward today. EXAMINATION I'm going to be asking you some questions today. This is an artificial way of talking, and thus I would ask that before you answer you wait until any one of the lawyers is finished asking the question, then you can answer the question. We'll wait until after you're finished. We do that because our court reporter needs to get everything down accurately that is said, and if we talk over each Case 4:05-cv-40170-FDS Document 83-11 Filed 03/15/2007 Page 7 of 42 Page 6 DENROY SCARLETT August 21, 2006 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. Q. A. Q. A. Q. A. Q. A. Q. A. Q. A. Q. other, it's very difficult. Additionally, sir, while we all understand nods of the head or "um-hmm"s or something like that, we would ask that your responses be all verbal, whatever they are. Okay. It has to be verbal. Okay. Okay. Finally, if you have any -- if you don't understand my question, if I'm unclear or if you're unclear with any of lawyers' questions, please tell them, I'm sure they'd be more than happy to rephrase questions for you. Okay. Okay. No problem. Mr. Scarlett, we are here today at a place Is that fair, sir? called Turtle Beach Towers on Main Street in Ocho Rios Jamaica. Yes, sir. And are you a citizen of Jamaica? Yes, sir, I'm a citizen. How old are you, sir? 24. Are you presently employed at Turtle Beach Towers? Yes, sir, I'm presently employed here. And what is your position at Turtle Beach Towers, sir? Is that correct? Case 4:05-cv-40170-FDS Document 83-11 Filed 03/15/2007 Page 8 of 42 Page 7 DENROY SCARLETT August 21, 2006 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q. A. A. Q. A. Q. A. Q. A. Q. A. Q. A. Q. A. Q. Night auditor/reception. And in March of 2004, were you also so employed? Yes, sir. How long have you been employed at Turtle Beach Towers? It's going forward to five years now. So does that mean that you would have been employed in either 2001, 2002? Yes, sir. And has it always been as the night auditor or receptionist? From ever since I've been here. And on March 18, 2004, do you know whether you were presently working at Turtle Beach Towers? Yes, I was here, sir. How many days a week do you work? Five days per week. And does that rotate Monday through Friday or is it times Tuesday through Sunday? It's from -- it's normally -- it's from Thursday to Monday. Okay. In front of you, or to your left, sir, is a photograph that has been marked as Deposition Exhibit Number 1 for Mrs. Miller. Exhibit Number 1? Will you look at that, Is the reception area at which you Case 4:05-cv-40170-FDS Document 83-11 Filed 03/15/2007 Page 9 of 42 Page 8 DENROY SCARLETT August 21, 2006 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q. A. Q. A. A. Q. A. Q. Q. A. worked in March 18, 2004, located behind the glass doors that is shown on Exhibit Number 1? Yes, sir. there. And would you mind turning that around and showing that to the camera so we can see that? sir. And is there a sign on there that says "Tower Number 4"? Yes, sir. And is this the tower in which -- or in front of which is -- the turtle pond is located? Yes, sir. That's it. Thank you, That's the reception area behind the glass And are there any other turtle ponds on the property of Turtle Beach Towers? Not that I have know of or have ever seen. only one. Okay. Now, in terms of the glass doors that are shown That's the on that picture, are those open or locked at various times during the day? They're not locked with keys, but they're always like shut that way. that way. If a guest comes in and at any time during the day or night, can the guest go through those doors? They're not locked, but they're shut Case 4:05-cv-40170-FDS Document 83-11 Filed 03/15/2007 Page 10 of 42 Page 9 DENROY SCARLETT August 21, 2006 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q. A. A. A. Q. A. Q. Q. A. Q. A. Q. A. A. Q. A. Q. Yes. They would have access to it 24 hours. And is the desk in which you sat behind those glass doors to the left? Yes, sir. That's the desk. And thus if somebody came up and knocked on the doors you would hear them to let them in. Yes. Correct? That would be correct; because I would be there 24 hours for the eight hours working. What was your shift? 11:30 to 7:30. 11:30 p.m. --- p.m. to 7:30 a.m. Now, do you have a memory of a guest, Ms. Stephanie Hofer, having an accident on March 18, 2004, in which she injured her leg? Yes, sir. And you were on duty that evening? Yes. I was the one on duty. I'm the night person. From the desk or from the lobby area, can you actually see the turtle pond? Not from the -- not from behind the desk, but if you're in the lobby area outside, you could see the turtle pond. Where do you normally sit when you're on duty? I'm behind the desk. I couldn't see the turtle pond. Case 4:05-cv-40170-FDS Document 83-11 Filed 03/15/2007 Page 11 of 42 Page 10 DENROY SCARLETT August 21, 2006 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 BY MR. FERINGA: Q. A. Q. Go ahead. Someone screaming for help. And do you remember what that individual said? BY MR. FERINGA: Q. What -- I want to ask you what first drew your attention to something happening on that shift -- on your shift that day? MR. KUZMA: Objection. A. Q. Q. A. A. Q. Is there a way from the desk area to see whether guests are approaching the glass doors? You could see when they're approaching the glass doors. How? When they're on the -- like the landing here stepping up, you could -- if you're looking out, if you're at the desk like, not sitting. couldn't see. If you're sitting, you But if you're like standing and maybe at the desk, you could see when they're coming in. When you're talking about the landing, sir, you're talking about the area in front on top of the stairs, if you'll show the camera. mat is located? Yes, sir. MR. KUZMA: Objection. Is the landing where that Case 4:05-cv-40170-FDS Document 83-11 Filed 03/15/2007 Page 12 of 42 Page 11 DENROY SCARLETT August 21, 2006 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. Q. A. Q. A. Q. A. Q. A. Q. A. I don't remember the exact words, but I think she was saying like, "somebody help me, somebody help me." Something of this sort. And the glass doors were shut? Yes, sir. And so you could hear this lady screaming from the outside through the glass doors? That's right. What did you do response to that, Mr. Scarlett? Well, I went out immediately and I assisted her by getting her out of the pond. Okay. Now, we're talking about "her." Who is it that you assisted? Well, it's a white female. Her -- I think her name was Stephanie, and she was like a thick-built person, you know. All right. So she was in the pond. I want to ask you, if you could go to the photograph and perhaps the -- if I might, sir, with respect to Exhibit Number 1, when you saw Ms. Stephanie, as you've described it, where specifically was she located in the pond? you'll show the members of jury. She was -- her legs was in the pond down here and she was like hanging out of the pond, and her head was out like this. And if Case 4:05-cv-40170-FDS Document 83-11 Filed 03/15/2007 Page 13 of 42 Page 12 DENROY SCARLETT August 21, 2006 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. Q. A. A. Q. A. Q. Q. Which was -- when you say her legs were in the pond, there's a dark section on that photograph. Can you indicate where her legs were inference to that dark section? It was down here. Do you want to use this to point, sir? Like down here. Okay. This section. This area. And when you said she was spread out and her legs -- and her head was in a location, where was her head? She was more like -- she was more resting on the bench here, leaning on the edge of the pond and the bench. So was she in the pond or outside the pond at this point? MR. KUZMA: Objection. She was part -- partly in the pond and partly out. BY MR. FERINGA: Q. A. Q. A. Q. What part of her was out? The upper body. Where was -- where was her buttocks? It was more in the pond. Okay. And in terms of where her legs were facing, where were her legs -- or were her feet facing toward the green shrubbery in the back of the pond where it says "Tower Number 4"? Case 4:05-cv-40170-FDS Document 83-11 Filed 03/15/2007 Page 14 of 42 Page 13 DENROY SCARLETT August 21, 2006 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q. A. A. MR. KUZMA: Objection. They were facing that way. BY MR. FERINGA: Q. A. Q. A. Q. A. Q. A. Q. A. Q. They were facing toward the tower? She was here. Okay. Were her legs and feet still in the pond? Yes, sir. You have to speak -Yes. Yes, sir. I'm sorry. And her buttocks were in the pond? Yes, sir. And her upper back was on the edge of the pond? Yes, sir. When you first got to her, what did she say to you, what did you say to her? Not exact words, but she said she was looking at the turtles. She was looking at the turtles and, you know, she was like crying and all of that, and she was just -- she was like repeating, saying that she was just admiring the turtles, and she thinks she slipped on something, you know. But when I went there, it was like -- she was -- she was actually too close to the edge of the pond. When you said she was too close to the edge of the pond, what do you mean by that, sir? Case 4:05-cv-40170-FDS Document 83-11 Filed 03/15/2007 Page 15 of 42 Page 14 DENROY SCARLETT August 21, 2006 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 BY MR. FERINGA: Q. Let me ask this question. Did she tell you, sir -A. A. A. Q. A. Q. Q. A. She was up on the edge here. edge here to slip in the pond. Okay. Let me show you another exhibit. And this is She had to be up on the an exhibit that has been marked as Exhibit Number 5, and this is a side view. When you say she was close -- she was close to the edge of the pond, what -- you showed that, would you hold that up? When you said she was close to the edge of pond, where was she? She would have to be here. So are you pointing to the section -- is that section close to the bench? Yes. That's the section close to the bench. And did she tell you specifically where All right. she was standing before she fell into the pond? No, she didn't; but, you know -MR. KUZMA: Objection. -- just looking at what happened, she must have been close to the edge of the pond to fall into it. MR. KUZMA: Objection. Move to strike. first of all, did she tell you that she was attempting to look at the turtles? MR. KUZMA: Objection. Case 4:05-cv-40170-FDS Document 83-11 Filed 03/15/2007 Page 16 of 42 Page 15 DENROY SCARLETT August 21, 2006 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. her that. Well, I saw the flip-flop -Q. A. A. A. Yes, sir. BY MR. FERINGA: Q. Okay. What specifically did she tell you? MR. KUZMA: Objection. Asked and answered. You She told me that she was admiring the turtles. know, she was just admiring the turtles. BY MR. FERINGA: Q. Did she how it was that when she was admiring the turtles that she ended up in the pond? She said that she was just admiring the turtles and she slipped -- you know, just slipped in the pond. don't know how, but she just slipped in the pond. Okay. Did she say -- when you asked her how did this I happen, did she say anything about the fact that a flip-flop or her slipper broke which caused her to fall in the pond? MR. KUZMA: Objection, that he even asked BY MR. FERINGA: Q. No. My question was -MR. KUZMA: MR. FERINGA: MR. KUZMA: No, if he could finish the -No. Move to strike. If the witness can finish the answer before interrupting. Case 4:05-cv-40170-FDS Document 83-11 Filed 03/15/2007 Page 17 of 42 Page 16 DENROY SCARLETT August 21, 2006 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. Q. Q. A. Q. A. Q. A. Q. A. Q. A. MR. FERINGA: interrupting -MR. KUZMA: He's in middle of an answer. Mr. Kuzma, you have been I'd like his full answer. MR. FERINGA: BY VIDEO TECHNICIAN: Q. My question specifically is, did she tell you that the -- that she slipped because there was a broken flip-flop? No, sir. All right. Yes, sir. Where did you see the flip-flop? It was there. Okay. Where? Did you see the flip-flop? I'm going to ask my question. In the pond. All right. So show me where you saw the flip-flop. I couldn't remember and tell you exactly where we took the flip-flop, but we took the flip-flop from out of the pond. So when you first saw the flip-flop it was in the pond? Yes, sir. Was -- and was there any flip-flop on the staircase or the landing? Case 4:05-cv-40170-FDS Document 83-11 Filed 03/15/2007 Page 18 of 42 Page 17 DENROY SCARLETT August 21, 2006 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q. A. Q. A. A. Q. A. Q. A. Q. Q. A. Q. A. A. Q. No, sir. All right. And so the flip-flop -- who was the one that took the flip-flop from the pond? Well, I can't remember that. Mr. MacKenzie. All right. And Mr. MacKenzie is who? It was either me or He's ones of the security who was on duty. All right. And we've heard his name before. Did he somehow assist Ms. Hofer to go to -- Stephanie Hofer to go to the hospital? Yes, sir. Was it -- was it a taxi that drove or was it Mr. MacKenzie? Mr. MacKenzie. Okay. In his personal car. All right. So let me go back what you saw and what you did when you first spoke to Ms. Hofer. When you asked her what she -- what happened, you said she was crying. Yes, sir. Was she upset? No, sir. Not from what I see. More crying. She was more in the Correct? crying mode. When you asked her a question, did she respond to you? Case 4:05-cv-40170-FDS Document 83-11 Filed 03/15/2007 Page 19 of 42 Page 18 DENROY SCARLETT August 21, 2006 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. A. Q. A. Q. A. Q. A. Q. A. A. Q. Yes. She did respond. And did you -- did you have any sense of whether she was coherent or incoherent when you talked to her? MR. KUZMA: She was responding. Objection. BY MR. FERINGA: Q. When you say she was responding, what do you mean by that, sir? She was like, you know, replying to me. Okay. And when she was relying to you, did you get the sense that you two were communicating? Yes, sir. Okay. So when you saw her in the pond, and the legs in the pond, did you see whether she was injured or not? Yes. She was injured. And what drew you to the attention that she was injured, sir? There was blood, and her legs were tearing. And so when you saw that, what did you attempt -- what did you do? What did you do next? Well, immediately I couldn't just take her out by myself, so I called for the assistance of the security. bench -And we took her out and put her on the Case 4:05-cv-40170-FDS Document 83-11 Filed 03/15/2007 Page 20 of 42 Page 19 DENROY SCARLETT August 21, 2006 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. Q. A. Q. Q. A. Q. A. A. Q. Q. Can I stop you? The security that you called for assistance, was that Mr. MacKenzie? Yes, sir. Okay. So you can't -- you couldn't lift her out of the pond, you needed some help, and Mr. MacKenzie came after responding to your calls. Yes. Then what did you do, sir? We put her on the bench and we got some towels and so forth and then we -- I called my manager. And we Is that right? tried to get in touch with a doctor, but there was no one there, so we shipped her off. Just put her in a car immediately, me and Mr. MacKenzie, and take her to the hospital. Let me ask you a couple of questions, if I might, to follow up with that, Mr. Scarlett. You said that you called -- after you got Ms. Hofer out of the pond, you put her on the bench. Is that the bench that's shown in Exhibit Number 5? Yes, sir. Okay. towels? Yes. Was -- at this point in time, was there any other individual nearby or close by that identified herself That's the bench. And, sir, then you made -- then you got some Case 4:05-cv-40170-FDS Document 83-11 Filed 03/15/2007 Page 21 of 42 Page 20 DENROY SCARLETT August 21, 2006 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. Q. A. Q. Yes, sir. About how long into your shift did this take place? Maybe about an hour. Okay. Q. A. Q. A. Q. A. A. Q. A. Q. as a friend of Mrs. Hofer? To my memory, not that I remember. Okay. leg? Yes, sir. Then you said that you called your manager. Mrs. Miller? Yes, sir. And what did you tell Mrs. Miller? That there was this guest that had an accident and she fell in the pond. You know, asking her what to do, And not getting through Is that So you got the towels and attempted to wrap the and she said call the doctor. to the doctor, I think we went ahead and -- you know, Mr. MacKenzie had a car there, so she just asked him to assist by taking her to the hospital. Was there a -- was there any point in time at which somebody attempted to contact Mrs. Hofer's roommate? I don't remember a roommate. roommate. So how long was it -- strike that. You get on duty at 11:30? I'm not remembering her Case 4:05-cv-40170-FDS Document 83-11 Filed 03/15/2007 Page 22 of 42 Page 21 DENROY SCARLETT August 21, 2006 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. A. Q. A. Q. A. Q. Q. A. Q. A. Q. A. A. Q. Thereabouts. So -- and then from the time that you first noticed Mrs. Hofer to the time she left in Mr. MacKenzie's car, how long was -- was she there? That's about -- from about 10 to 15 minutes, thereabouts. Okay. So during that 10 to 15 minutes, did Mrs. Hofer say anything more about how this accident occurred? The only thing she said is that she was there admiring the turtles and she fell in the pond and -Okay. I'm sorry, sir. Go ahead. At what point in time did -- was the flip-flop taken out of the pond? I don't have any exact memory of that one. Was it after Mrs. Hofer left? I couldn't tell. Okay. I couldn't tell. Who was it that cleaned up the pond? There's a ground person who cleans up the pond. Okay. But in terms of -- in terms of the flip-flop, it was -- it was in the pond, it was either you or Mr. MacKenzie that would have taken it out, or someone else? MR. KUZMA: Could be someone else. Objection. Case 4:05-cv-40170-FDS Document 83-11 Filed 03/15/2007 Page 23 of 42 Page 22 DENROY SCARLETT August 21, 2006 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. A. Q. A. Q. A. Q. A. Q. Q. A. BY MR. FERINGA: Q. A. Q. Okay. Did you look at the condition of the flip-flop? I'm not remembering. Did you see anything wrong with the flip-flop that came from the pond? Flip-flop, flip-flop. flip-flop. I not remembering about a I wasn't -- that day I wasn't focusing on You know, I was more focusing on the the flip-flop. guest and her damage. Do you know what happened to the flip-flop that you removed from the pond? I don't know of it. Okay. I don't know where it is. After this 10 to 15 minutes where you were with Mrs. Hofer, and after she left for the hospital with Mr. MacKenzie, did you have any further contact with her at all? No, sir. Did you -Only with Mr. MacKenzie. Only with Mr. MacKenzie. Did you have any contact with the -- a lady by the name of Ms. Carrie LaBelle, who was purported to be the roommate with Ms. Hofer? I don't remember any roommate. Case 4:05-cv-40170-FDS Document 83-11 Filed 03/15/2007 Page 24 of 42 Page 23 DENROY SCARLETT August 21, 2006 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. Q. A. Q. Q. A. Q. A. Q. A. Q. After that next morning when Mrs. Miller came in and came on duty, did you have a conversation with Mrs. Miller? Yes. I spoke to Ms. Miller. I had to like, you know, talk to her, because she's my manager, before I go. And did you have any conversations with her about the accident that had occurred the night before with Mrs. Hofer? Yes, sir. All right. And what essentially did you tell her? Basically what I told Ms. Miller is that -- I told her what happened the night before and what did I do after and how everything run. And after Mr. MacKenzie reported that she was okay and everything was all right with her at the hospital and all of that, that was basically my report to Ms. Miller. Okay. Did you fill out anything in writing, Mr. Scarlett? No, sir. After that conversation that you had with Mrs. Miller on the morning of now the 19th of March, did you ever have any further discussions with Mrs. Miller about this incident? No, sir. You and I have spoken. Is that right? Case 4:05-cv-40170-FDS Document 83-11 Filed 03/15/2007 Page 25 of 42 Page 24 DENROY SCARLETT August 21, 2006 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. A. Q. A. Q. A. Q. A. Q. A. Q. A. Q. A. Q. A. Q. A. Q. Yes, sir. All right. Yes. And was that in person or by telephone? By telephone. And do you remember what I asked you? Some stuff. Not everything. Do you remember, did I go over questions that I would purport to ask with you at the deposition? No. Did you agree in that telephone conversation to voluntarily appear to give a deposition in this matter? Yes, sir. And our office and you have communicated by e-mail. Is that right? Yes, sir. And you received a copy of the Notice of Deposition? Yes, sir. Did you and I talk today before the deposition? No. Okay. But not before today. Have you talked with any of the other lawyers, either Ms. Minchoff or Mr. Kuzma or Mr. Reith? No, sir. MR. FERINGA: I don't have any other Only from like maybe a month or so ago, yes. Case 4:05-cv-40170-FDS Document 83-11 Filed 03/15/2007 Page 26 of 42 Page 25 DENROY SCARLETT August 21, 2006 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. Q. A. Q. A. Q. A. Q. No, sir. Have you ever spoken with Attorney Minchoff before? No, sir. Have we ever sent you any e-mails, as far as you know? No, sir. Did you ever take any photographs or know whether anyone has taken any photographs of the accident scene? No, sir. You stated a couple minutes ago that you had a BY MR. KUZMA: Q. A. Q. Good morning, Mr. Scarlett. Good morning. My name it is Stephen Kuzma. I'm here with India questions. Thank you, sir. MR. REITH: I'll just state for the record, At this point, I don't have Thomas Reith for Expedia. any questions. I'll reserve my right to inquire to the extent Mr. Kuzma flushes something out that I have to inquire about. MR. KUZMA: Thank you. EXAMINATION Minchoff, and we represent Stephanie Hofer, the one that got hurt on the day and night in question. Sir, have you ever spoken with me before? Case 4:05-cv-40170-FDS Document 83-11 Filed 03/15/2007 Page 27 of 42 Page 26 DENROY SCARLETT August 21, 2006 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. Q. A. Q. A. A. Q. A. Q. A. Q. Q. A. Q. A. conversation with, Ms. Miller, your supervisor, the day after the accident or the morning of the accident? Yes, sir. What time of day was that? About. That would be like after nine, thereabouts, because Ms. Miller gets in the office like nine o'clock. any time after that. thereabouts. And you testified that you told her everything about what had happened after the accident occurred. Yes, sir. Did you tell her anything about what you were told or what you observed before the accident occurred? No, sir. That was a "no." No. The flip-flop that you saw in the turtle pond, what color was it? No. Do you recall? Right? Right? That would be after nine So I don't recall the color of the flip-flop. Was there one flip-flop in the turtle pond or two? Don't recall how much was there. But you know there was at least one? I'm not sure if it was one or two in the pond, or one was on her feet and the other one was in the pond. I'm not sure. Case 4:05-cv-40170-FDS Document 83-11 Filed 03/15/2007 Page 28 of 42 Page 27 DENROY SCARLETT August 21, 2006 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. Q. A. A. A. Q. A. Q. A. Q. A. Q. Q. All right. Okay, sir. And it is fair to say that you didn't see how this accident happened. Yes, sir there that's fair to say. You did not? No. Okay. Because I was in the office, so I couldn't see. And when you say were in the office, is that an office that's behind the reception desk? Yes, sir. Is it fair to say that you have music piped in into the lobby area? MR. REITH: Objection. I would have music, but it wouldn't be music that I couldn't hear what's going on outside, it would be very low. BY MR. KUZMA: Q. A. Q. Okay. Yeah. After the accident occurred -- I just want to be clear about this, sir. Ms. Hofer? Yes, sir. She was responsive to your questions? Yes, sir. You were able to communicate with And is because it was at night? Case 4:05-cv-40170-FDS Document 83-11 Filed 03/15/2007 Page 29 of 42 Page 28 DENROY SCARLETT August 21, 2006 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. Q. Q. A. A. Q. A. Q. A. Q. A. Q. A. Q. A. Q. Q. It was clear to you that she was badly injured at that time? She was. Is it clear to you that she was badly injured? Yes, sir, she was. And did you see the cut on her leg? Yes, sir, I did. Was it fair to say that it was a deep cut that you saw? It was a really bad cut. Was there blood all over the turtle pond? Yes, sir. There was blood all over the turtle pond. Did it turn the turtle pond water red? It did. It did. It did. When you saw at least one of the flip-flops, was it floating on top of the water? I can't recall remembering seeing a flip-flop, sir. I'm trying to remember if there was a flip-flop in the pond or whatnot. I didn't see a flip-flop afterwards, so I'm trying to remember. Okay. I believe you said -- you already testified that you did see at least one flip-flop in the turtle pond. No. Right? You did say that earlier? I don't remember saying that. You don't remember saying that? Case 4:05-cv-40170-FDS Document 83-11 Filed 03/15/2007 Page 30 of 42 Page 29 DENROY SCARLETT August 21, 2006 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q. A. A. Q. A. Q. A. Q. No, sir. Do you know what happened to Mr. MacKenzie? No, sir. Do you know whether he is alive? No. I don't know if he's alive. Q. A. A. Q. Q. A. What is Mr. MacKenzie's first name? I don't know his first name, because he doesn't work with my company, so -- he's just a security company. They change them pretty often. Okay. And the security company is hired by Turtle Beach Towers? Yes, sir. And was he working at the front gate at the time of the accident or in the lobby? He was -- I think he was a person doing the patrol for the night, so he was the one moving around. Has he seen -- strike that. Have you seen Mr. MacKenzie recently? Is the reason why you used Mr. MacKenzie's vehicle to transport Stephanie Hofer to the hospital because you didn't want to wait for a taxi to take her? Well, it was an emergency, and that was the quickest vehicle I could get access to, so I used Mr. MacKenzie's car. I'm not sure if you were asked this earlier, but do Case 4:05-cv-40170-FDS Document 83-11 Filed 03/15/2007 Page 31 of 42 Page 30 DENROY SCARLETT August 21, 2006 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. A. Q. A. Q. A. Q. A. Q. A. Q. you know what happened to the flip-flops at the scene of the accident? No, sir. But there is a maintenance crew employed by Turtle Beach Towers to clean up the premises? Yes, sir. Is it fair to say that you utilized -- when I say "you," I mean Turtle Beach Towers, used their services to clean out the turtle pond? Yes, sir. How -- and, again, I believe you said it was about 10 or 15 minutes from the time that you saw her in the turtle pond from the time that she was taken away by Mr. MacKenzie? Yes, sir. Did you see Ms. Hofer carrying anything into the car? No, sir. Now, you testified that she also said to you when you arrived at the scene of the accident that she slipped on something. Do you remember testifying to that? Objection. She slipped. Not on MR. REITH: Not slipping on something. something. She slipped when she -- she must -- would have been at the edge of pond to slip. BY MR. KUZMA: Case 4:05-cv-40170-FDS Document 83-11 Filed 03/15/2007 Page 32 of 42 Page 31 DENROY SCARLETT August 21, 2006 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q. A. A. Q. A. Q. A. Q. A. Q. A. Q. A. Q. A. Q. Q. Okay. Now, I'm not going to ask you to guess. Okay? Do you understand that, sir? That's okay. I'm simply asking you did she say that she slipped? Yes, she said that she slipped. So that was her words. Yes, sir. And then you said that you believed that she was too close to the edge? Yes. But you now you didn't see how it happened. No, sir. So that's a guess on your part. Yes. When you spoke with Ms. Miller the next day about what had happened, how long was that conversation? Maybe about 15 minutes. I don't remember. About. Right? Right? Did you say that? Correct? "Yes"? And everything that you said in response to Mr. Feringa's questions about what you said to her in that conversation or what she said you, you've told us the whole conversation -- right? -- as you remember it? Well, I am not remembering the whole conversation that I had with Ms. Miller on that day. All right. But that's as best you can recall as to Case 4:05-cv-40170-FDS Document 83-11 Filed 03/15/2007 Page 33 of 42 Page 32 DENROY SCARLETT August 21, 2006 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q. A. Q. A. Q. A. A. A. Q. A. Q. A. Q. Q. A. what you said to Attorney Feringa? Yeah. We went through what happened the night before and, you know, if she has been stabilized and everything's okay, and all of that. Now, what shift were you working that night into the day? 11:30 p.m. to 7:30 p.m. -- a.m. A.m. Sorry. So you stayed after your tour of duty until Ms. Miller showed up. Yes. Did you ever fill out an accident report? No, sir. Do you know what the accident reporting procedure is at Turtle Beach Towers when a guest gets injured? Well, normally we would make a report, like write it down, and we would normally get in touch with Ms. Miller because she's the person of authority. once report it to she, and she would be the one who takes it from there. Sir, how long have you worked for Turtle Beach Towers? It has been going four to five years. Have you ever made out an accident report? No, sir. Did you make out an accident report in the case? No, sir. So Correct? "Yes"? Case 4:05-cv-40170-FDS Document 83-11 Filed 03/15/2007 Page 34 of 42 Page 33 DENROY SCARLETT August 21, 2006 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 BY MR. KUZMA: A. Q. Q. A. Q. A. Why not? I made a report to Ms. Miller by the phone, but I didn't make a written down. Ms. Miller. And why didn't you? Well, I think reporting it to Ms. Miller by the phone, she would take everything from there. buck stops, so, you know... Mr. Scarlett, Ms. Miller just testified Expedia representatives would inspect the hotel premises. Have you ever seen anyone from Expedia inspecting the hotel premises during the time that you've been an employee here? MR. REITH: Objection. She's where the I made a report to You can answer. I couldn't tell you, because I'm a night person. So if an Expedia persons come in to inspect the property, that would have been in the day. shifts. BY MR. KUZMA: Q. All right. But were you aware that Expedia did that? I work nights only. So I don't work day Whether you saw him here physically or not, where you aware that Expedia inspects the premises -MR. REITH: Objection. Case 4:05-cv-40170-FDS Document 83-11 Filed 03/15/2007 Page 35 of 42 Page 34 DENROY SCARLETT August 21, 2006 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. A. Q. area. Right. Now, that dark area, what is located at that dark area? There is like some -- what do you call it, like some blocks, or -- blocks or concrete slabs, something of the sort, in the pond that the turtle would normally go on and like get sunlight and so forth. A. Q. A. Q. A. Q. Q. A. Q. A. Q. -- when you're not here. I'm not sure of that. I wasn't sure of that. You're not aware of that? No. I'm not. Is it fair to say that Ms. Miller would be in a better position to know that fact than you would be? Yes, sir. Because she -She's the manager. She's the one that's in charge. Yes, sir. If you can, sir, would you look at that photograph that my brother counsel showed you? I think you Right? pointed to what you described to be a dark area as to where you saw Stephanie Hofer. Can you take that photograph and hold it up to the jurors? All right. And you pointed to the dark Right? That's where you saw Stephanie Hofer. Case 4:05-cv-40170-FDS Document 83-11 Filed 03/15/2007 Page 36 of 42 Page 35 DENROY SCARLETT August 21, 2006 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. Q. A. Q. Q. A. Q. A. Q. And part of that area is covered with algae, the water -- that is the part of the blocks that are covered by water? MR. REITH: Not to the top. Objection. BY MR. KUZMA: Q. A. Q. A. Not the top? The top is out -Right. -- because that's where the turtle and go and get sunlight. Yeah; but the part that is underneath the water is covered with algae. I'm not sure. Correct? Because if we cleaned it like almost every day or every other day, they're supposed to clean the algae out. All right. You can put that photograph down. Mr. Scarlett, how many times in the time period that you've worked at Turtle Beach Towers have you walked up and down those stairs? That's maybe about a thousand times or so forth. All right. Or more. All right. Without looking at the photograph, how And -- many steps are there leading from the walkway into the Case 4:05-cv-40170-FDS Document 83-11 Filed 03/15/2007 Page 37 of 42 Page 36 DENROY SCARLETT August 21, 2006 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q. A. Q. A. Q. A. Q. A. Q. Q. A. A. lobby? There is a landing coming from the road down the bottom. And how many steps? And that would be like one, two steps. For the landing where the mat is, that would be just one step up. One step up. lobby? Yes, sir. So how many altogether? One step into the lobby. No? That would be one step And then -- what? -- one step into the up to the landing, and then into the lobby would be the same flat area going into the front desk. Mr. Scarlett, when you are working the night shift, are you the person in charge of the hole hotel at least during the night shift? I'm in charge of the front desk with three other security who patrol the property. And when you arrive to work, are you made aware of how many guests you have on the premises? Yeah. Because -- well, I do -- I'm doing the night auditing, so I know the house count of the guests who is staying in house. All right. Can you tell me percentage-wise how much Case 4:05-cv-40170-FDS Document 83-11 Filed 03/15/2007 Page 38 of 42 Page 37 DENROY SCARLETT August 21, 2006 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. A. Q. Q. A. Q. A. Q. A. Q. A. Q. A. of Turtle Beach Towers was booked with guests that night? Approximately. That cannot be recalled. I cannot recall that, sir. You can't recall? No, sir. Where was the bathroom in the reception area? Where was the bathroom? Yeah. Was there a bathroom in the reception area? It was to your right as you It was to your right. enter in. When you saw the flip-flop that you testified to earlier, did you happen to see whether it was damaged at all? I can't recall seeing the flip-flop damaged or something of the sort. This flip-flop -- I don't I'm not remembering recall seeing the flip-flop. that. Was the first time you became aware that Stephanie Hofer was at the resort at the time that you discovered her after she called for help? Could you rephrase that? Yeah. The first time you became aware that Stephanie Hofer was here, was that when you realized that she was hurt? Yes, sir. Case 4:05-cv-40170-FDS Document 83-11 Filed 03/15/2007 Page 39 of 42 Page 38 DENROY SCARLETT August 21, 2006 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 BY MR. REITH: Q. Mr. Scarlett, I have just two quick questions. I want A. Thank you. You're welcome. MR. FERINGA: No questions. A. A. A. Q. Can you tell me approximately how many people were around the lobby area at the time of the accident? I was the -MR. REITH: Objection. -- only person in the lobby at work, but there were security on duty, and they weren't in the lobby area. They were at their posts and one was patrolling. BY MR. KUZMA: Q. A. Q. A. Q. A. Q. Was there a crowd outside when you arrived -No, sir. -- to see Stephanie Hofer? No, sir. So it's just you and her? Say again? When you saw her in the turtle pond, or at least partially in the turtle pond, it was just you and her? Yes, sir. MR. KUZMA: I have no further questions. EXAMINATION to direct your attention to when you came out upon Case 4:05-cv-40170-FDS Document 83-11 Filed 03/15/2007 Page 40 of 42 Page 39 DENROY SCARLETT August 21, 2006 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 sir. VIDEO TECHNICIAN: deposition. We are concluding this A. A. No, sir. A. Q. A. Q. Mrs. Hofer. Pardon me? I want to direct your attention to the time when you came out of the lobby and saw Ms. Hofer. Okay? Okay? I believe you testified earlier that you and Ms. Hofer spoke when you came out and found her. Correct? Yes, sir. All right. And when you spoke to Ms. Hofer, did she tell you she fell in pond because it was dimly lit? MR. KUZMA: Objection. BY MR. REITH: Q. When you spoke to Ms. Hofer, did she tell you she fell in the pond because there was no railing? No, sir. MR. REITH: MR. FERINGA: MR. KUZMA: I have no further questions. No questions. Okay. We're done. Thank you, The time is 12:29 and 31 seconds p.m. (The deposition was concluded at 12:29 p.m. Signature of the witness was not requested by counsel for the respective parties hereto.) Case 4:05-cv-40170-FDS Document 83-11 Filed 03/15/2007 Page 41 of 42 Page 40 DENROY SCARLETT August 21, 2006 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 My Commission expires: ___________________________ Rebecca J. Callow, CSR-5228 Notary Public, Livingston County, Michigan January 13, 2011 I, Rebecca J. Callow, a Notary Public in and for the above county and state, do hereby certify that the above deposition was taken before me at the time and place hereinbefore set forth; that the witness was by me first duly sworn to testify to the truth, and nothing but the truth; that the foregoing questions asked and answers made by the witness were duly recorded by me stenographically and reduced to computer transcription; that this is a true, full and correct transcript of my stenographic notes so taken; and that I am not related to, nor of counsel to either party nor interested in the event of this cause. COUNTY OF LIVINGSTON STATE OF MICHIGAN CERTIFICATE OF NOTARY ) ) SS ) Case 4:05-cv-40170-FDS Document 83-11 Filed 03/15/2007 Page 42 of 42 Page 41 DENROY SCARLETT August 21, 2006 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Exhibit (Exhibits not offered.) Page INDEX TO EXHIBITS EXAMINATION BY MR. FERINGA:............................... 5 EXAMINATION BY MR. KUZMA:................................ 25 EXAMINATION BY MR. REITH:................................ 38 Witness DENROY SCARLETT Page INDEX TO EXAMINATIONS

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