Fever v. The Westin, St. Louis et al

Filing 57

MEMORANDUM OPINION..defendant's motion for summary judgment (#47) is granted and judgment is entered in favor of defendant HEI ST. Louis, LLC with each party to bear her or its own costs. Defendants motion to strike plaintiff's expert disclosure and to exclude the testimony of plaintiffs expert (#42) is denied as moot. Signed by District Judge Stephen N. Limbaugh, Jr on 11/8/13. (MRS)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
SOUTHEASTERN DIVISION
LESLIE FEVER,
Plaintiff,
v.
THE WESTIN, ST. LOUIS, et al.,
Defendants.

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Case No. 4:12CV9 SNLJ

MEMORANDUM
Plaintiff filed a premises liability action in state court that was removed to this Court
based on diversity jurisdiction. This matter is before the Court on defendant’s motion to strike
plaintiff’s expert disclosure and to exclude the testimony of plaintiff’s expert (#42) and
defendant’s motion for summary judgment (#47). All responsive pleadings have been filed and
this matter is ripe for disposition.
I.

Background
This is a slip and fall case that plaintiff originally filed in the Circuit Court of the City of

St. Louis County on November 15, 2011 against defendants The Westin St. Louis,1 Starwood
Hotel and Resorts Worldwide, Inc.,2 HEI St. Louis, LLC (HEI), and John Doe Corporation.
Defendant HEI filed its notice of removal in this Court, with the consent of all defendants, based
on diversity jurisdiction under 28 U.S.C. § 1332.
Plaintiff’s complaint alleges that she slipped and fell on a dance floor at a wedding
reception at The Westin hotel, located in St. Louis City, Missouri, on February 21, 2009. She
1

The Westin St. Louis is not a legal entity but instead, is a fictitious name registration in the
State of Missouri.
2

Starwood Hotel and Resorts Worldwide, Inc. was voluntarily dismissed without prejudice by
plaintiff on October 7, 2013.

contends that the dance floor was “slick, slippery, unreasonable, and dangerous.” The complaint
alleges that defendants failed to use ordinary care to remove the dangerous condition, failed to
properly warn her of the dangerous condition, failed to properly maintain the dance floor, failed
to operate the premises so as to provide reasonable and adequate protection to guests, and failed
to take reasonable steps to prevent plaintiff’s accident and her injuries. Plaintiff alleges she
sustained physical injury and economic and noneconomic damages as a result of the fall.
Defendant filed a motion to strike plaintiff’s expert disclosure and to exclude the
testimony of plaintiff’s expert witness because plaintiff had failed to produce her expert for
deposition in accordance with the CMO. At the time defendant’s motion was filed, all discovery
was to be complete pursuant to the CMO. Thereafter, defendant HEI filed its motion for
summary judgment, within the deadline set in the CMO. The motion included thirty-five
statements of fact in separately numbered paragraphs with supporting documents. Plaintiff’s
response did not specifically controvert the thirty-five statements of fact. In her response to the
motion, plaintiff offered her deposition testimony, an MRI report, and a letter from her expert.
Plaintiff opposes the motions and requests additional time to produce her expert for deposition.
II.

Legal Standard
Pursuant to Federal Rule of Civil Procedure 56(a), a district court may grant a motion for

summary judgment if all of the information before the court demonstrates that “there is no
genuine issue as to any material fact and the moving party is entitled to judgment as a matter of
law.” Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). The burden is on the moving party.
City of Mt. Pleasant, Iowa v. Associated Elec. Co-op. Inc., 838 F.2d 268, 273 (8th Cir.1988).
After the moving party discharges this burden, the nonmoving party must do more than show
that there is some doubt as to the facts. Matsushita Elec. Industrial Co. v. Zenith Radio Corp.,

475 U.S. 574, 586 (1986). Instead, the nonmoving party bears the burden of setting forth
affirmative evidence and specific facts by affidavit and other evidence showing that there is a
genuine dispute of a material fact. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986);
Celotex, 477 U.S. at 324. “A dispute about a material fact is ‘genuine’ only ‘if the evidence is
such that a reasonable jury could return a verdict for the nonmoving party.’” Herring v. Canada
Life Assur. Co., 207 F.3d 1026, 1030 (8th Cir. 2000) (quoting Anderson, 477 U.S. at 248). A
party resisting summary judgment has the burden to designate the specific facts that create a
triable controversy. See Crossley v. Georgia–Pacific Corp., 355 F.3d 1112, 1114 (8th Cir. 2004).
Self-serving, conclusory statements without support are not sufficient to defeat summary
judgment. Armour and Co., Inc. v. Inver Grove Heights, 2 F.3d 276, 279 (8th Cir. 1993).
In ruling on a motion for summary judgment, the court must review the facts in a light
most favorable to the party opposing the motion and give that party the benefit of any inferences
that logically can be drawn from those facts. Matsushita, 475 U.S. at 587; Woods v.
DaimlerChrysler Corp., 409 F.3d 984, 990 (8th Cir. 2005). The court is required to resolve all
conflicts of evidence in favor of the nonmoving party. Robert Johnson Grain Co. v. Chemical
Interchange Co., 541 F.2d 207, 210 (8th Cir. 1976).
The movant’s statement of facts are deemed admitted if not specifically controverted by
the party opposing the motion. Local Rule 4.01 (E) provides:
A memorandum in support of a motion for summary judgment shall have attached a
statement of uncontroverted material facts, set forth in a separately numbered paragraph
for each fact, indicating whether each fact is established by the record, and if so, the
appropriate citations. Every memorandum in opposition shall include a statement of
material facts as to which the party contends a genuine issue exists. Those matters in
dispute shall be set forth with specific references to portions of the record, where
available, upon which the opposing party relies. The opposing party also shall note for all
disputed facts the paragraph number from movant’s listing of facts. All matters set forth
in the statement of the movant shall be deemed admitted for purposes of summary
judgment unless specifically controverted by the opposing party.

(emphasis added). Even where all of movant’s statements of fact are deemed admitted, the Court
must look at the entire record to determine whether summary judgment is warranted. “The
Eighth Circuit has determined that when a plaintiff fails to respond adequately to a motion for
summary judgment, a district court should not treat such a non-response as sufficient to dispose
of the motion.” Lowry v. Powerscreen USB, Inc., 72 F.Supp.2d 1061, 1064 (E.D. Mo. 1999)
(citing Canada v. Union Electric Co., 135 F.3d 1211, 1213 (8th Cir. 1997). “Courts should
proceed to examine those portions of the record properly before them and decide for themselves
whether the motion is well taken.” Id. “In so ruling, even on an unopposed motion for summary
judgment, the court should review the facts in a light most favorable to the party who would be
opposing the motion.” Id.
With these principles in mind, the Court turns to the discussion.
III.

Discussion
A.

Motion for Summary Judgment

Plaintiff’s claim is for personal injuries allegedly resulting from a fall while she was a
guest at a wedding reception held at The Westin hotel. The parties agree that plaintiff was an
invitee for purposes of premises liability law under Missouri law. “The general duty owed to an
invitee by the owner of the premises is the exercise of reasonable and ordinary care in making
the premises safe.” Rycraw v. White Castle Systems, Inc., 28 S.W.3d 495, 499 (Mo.App. E.D.
2000). An injured invitee must prove: 1) a dangerous condition existed on defendant’s property,
2) defendant knew, or by using ordinary care should have known, of the condition, 3) defendant
failed to use ordinary care in removing or warning of the danger, and 4) invitee sustained injuries
as a result of the dangerous condition. Id.; Roberson v. AFC Enterprises, Inc., 602 F.3d 931, 934
(8th Cir. 2010).

Because plaintiff failed to specifically controvert defendant’s statement of facts, those
facts are deemed admitted for purposes of summary judgment. O’Connell v. Accurate Plumbing,
LLC, 4:04CV1368 FRB, 2005 WL 2176926, at *2 (E.D. Mo. Sept. 8, 2005) (citing Northwest
Bank & Trust Co. v. First Ill. Nat’l Bank, 354 F.3d 721, 724-25 (8th Cir. 2003); Harris v.
Interstate Brands Corp., 348 F.3d 761, 762-63 (8th Cir. 2003)). The facts that are deemed
admitted include the following:3 There was no liquid material on the dance floor that caused
plaintiff to fall. Plaintiff was wearing two and a half to three inch heels when she fell and
consumed two glasses of wine on the night she fell. Plaintiff did not notify any hotel employee of
her fall and she did not seek immediate medical attention after her fall. Plaintiff did not see
anyone fall on the dance floor before she fell.
The dance floor has never required repair, has never been waxed, and is cleaned with
warm water before and after each use. Defendant HEI did not receive any complaints that its
dance floor was too slippery on February 21, 2009 and, in fact, has never received a complaint
that its dance floor was too slippery. Defendant HEI did not receive any notice of any incident
involving its dance floor on February 21, 2009 or at any other time. Defendant HEI has never
received notice of any incident involving one of its hotel guests slipping and falling on the dance
floor. On November 19, 2009, defendant HEI’s expert witness, William ElDorado performed
testing on the subject dance floor and found that the dance floor is a slip resistant surface under
dry conditions and that the slip index on the floor surface exceed the slip resistance guideline
threshold as defined by the American National Standards Institute.
This Court has reviewed the materials offered by plaintiff in opposition to the motion,
including plaintiff’s deposition testimony in its entirety, to determine whether there is a genuine
3

The facts listed are supported by appropriate citations to the record as required by Local Rule
4.01(E).

issue of material fact and whether plaintiff has produced sufficient evidence in opposition to the
motion to support her premises liability claim. Reviewing the facts in a light most favorable to
the plaintiff and giving the plaintiff the benefit of any inferences that logically can be drawn
from those facts, the Court finds that plaintiff has failed to produce sufficient evidence that
would allow a reasonable jury to find that the defendant knew, or by using ordinary care should
have known, that the dance floor was so slippery that it constituted a dangerous condition.
The only evidence provided by plaintiff, and that can be found in the record before the
Court, is plaintiff’s own vague testimony that she slipped and fell on the dance floor because it
was “slippery.” She admitted there was no substance on the dance floor that caused her fall.
Although plaintiff testified that she saw three others fall on the dance floor, those falls occurred
after her fall, and there was no testimony regarding the circumstances of those falls or what
caused those falls other than plaintiff’s sheer speculation. There is no evidence of any falls prior
to plaintiff’s fall or that defendant HEI had any prior complaints about the dance floor being
“slippery.” Plaintiff has not offered any evidence, and the Court was unable to find any evidence
in the record, to show that defendant HEI had an opportunity to observe or know about any
alleged dangerous condition before plaintiff fell.
The Court does not address defendant HEI’s arguments that plaintiff cannot produce
sufficient evidence that the dance floor constituted a dangerous condition or that plaintiff cannot
establish that the fall caused her injuries. Because the Court finds that plaintiff has not produced
any evidence that defendant knew or should have known of the alleged dangerous condition, any
discussion as to whether plaintiff has sufficient evidence to prove the other elements of a
premises liability claim is not necessary.

B.

Motion to Strike

Defendant moves, pursuant to Federal Rules of Civil Procedure 26 and 37, that the Court
sanction plaintiff and strike her expert, Dr. David Robson, because plaintiff failed to produce the
expert for deposition as required by the CMO. Because this Court is granting defendant’s motion
for summary judgment, the motion to strike plaintiff’s expert is denied as moot.
IV.

CONCLUSION
Because plaintiff failed to present sufficient evidence that would allow a reasonable jury

to find the defendant knew, or by using ordinary care should have known, that the dance floor
was slippery and constituted a dangerous condition, she cannot prove one of the necessary
elements of her premises liability claim. Accordingly, defendant’s motion for summary judgment
(#47) is granted and judgment is entered in favor of defendant HEI ST. Louis, LLC with each
party to bear her or its own costs. Defendant’s motion to strike plaintiff’s expert disclosure and
to exclude the testimony of plaintiff’s expert (#42) is denied as moot.
Dated this 8th day of November, 2013.

STEPHEN N. LIMBAUGH, JR.
UNITED STATES DISTRICT JUDGE