Dupuis v. Marriott Corporation
Filing
53
OPINION and ORDER - Based upon the foregoing, Marriott's Motion for Summary Judgment 18 is GRANTED, in part, and DENIED, in part; DuPuis's Motion for Sanctions Re: Spoliation 32 is DENIED; and Marriott's Motion for Leave 45 is DENIE D. IT IS FURTHER ORDERED that within 30 days of the date of this Opinion and Order, counsel for DuPuis will notify the court whether the Estate of Mabel DuPuis will proceed with this litigation. IT IS SO ORDERED. DATED this 15th day of January, 2014, by United States Magistrate Judge John V. Acosta. (peg)
UNITED STATES DISTRICT COURT
DISTRICT OF OREGON
PORTLAND DIVISION
Case No.: 3:12-cv-00580-AC
MABEL DUPUIS, an individual,
OPINION AND ORDER
Plaintiff,
v.
MARRIOTT CORPORATION,
a Delaware corporation,
Defendant.
ACOSTA, Magistrate Judge:
Introduction
Mabel DuPuis ("DuPuis") brings this negligence action against Marriott Corporation
("Marriott") alleging DuPuis sustained injuries as a direct result of Marriott's breach of its duty to
protect patrons from the unreasonable risks posed by the revolving door in the front entty of its
downtown waterfront hotel ("Hotel") in Portland, Oregon. DuPuis alleges Marriott acted with
1 - OPINION AND ORDER
negligence and gross negligence and argues the doctrine of res ipsa loquitur applies to the Hotel's
revolving door.
Currently before the court is Marriott's Motion for Summmy Judgment Pursuant to FED. R.
C!V. P. 56 on all claims and DuPuis's Motion for Sanctions Re: Spoliation against Maniott for its
alleged spoliation of evidence. Oral argument was heard on these motions. Following oral
argument, Marriott filed a Motion for Leave seeking to file a supplemental exhibit in support of its
summary judgment motion. Because triable issues offact exist as to whether Maniott breached its
duty to DuPuis and whether Marriott's alleged breach caused DuPuis injuries, Marriott's motion for
summaty judgment is denied.' Because MmTiott did not spoil probative evidence, DuPuis's motion
for sanctions is denied. Additionally, Marriott's request for leave to file a supplemental exhibit is
denied as untimely.
Preliminmy Evidentimy 1Hatters
I.
Unauthenticated Depositions
The evidence presented in support of, or in opposition to, a motion for summmy judgment
must be based on personal knowledge, properly authenticated, and admissible under the Federal
Rules of Evidence. FED. R. C!V. P. 56. To satisfy the requirement of authentication, a condition
precedent to admissibility, the proponent must produce "evidence sufficient to support a finding that
the item is what the proponent claims it is." FED. R. Evm. 901(a). Evidence that is not properly
authenticated will not be considered by the court when reviewing a motion for summmy judgment.
Orr v. Bank ofAmerica, 285 F.3d 764, 773 (9th Cir. 2002).
'The parties have consented to jurisdiction by a United States Magistrate Judge in accordance
with 28 U.S. C.§ 636(c)(i).
2 - OPINION AND ORDER
As to depositions, the Ninth Circuit stated in Orr:
A deposition or an extract therefrom is authenticated in a motion for summary
judgment when it identifies the names of the deponent and the action and includes
the repmter's ce1tification that the deposition is a true record of the testimony of the
deponent. See FED. R. EVID. 901(b); FED. R. CIV. P. 56(e) & 30(f)(1). Ordinarily,
this would have to be accomplished by attaching the cover page of the deposition and
the reporter's cettification to every deposition extract submitted. It is insufficient for
a pmty to submit, without more, an affidavit from her counsel identifYing the names
of the deponent, the reporter, and the action and stating that the deposition is a 'tme
and correct copy.' Such an affidavit lacks foundation even if the affiant-counsel were
present at the deposition.
Orr, 285 F.3d at 774 (footnote and case citations omitted). Here, DuPuis submitted transcript pages
from the depositions of Gail Cheatham, Mmy Luckeroth, Billy Moore, Martin Gaona, and herself
without the repmters' ce1tifications. Marriott independently offered properly authenticated copies
of the Cheatham, Moore, Gaona, and Dupuis depositions. The court views Marriott's authentication
of the parties' mutual offerings as sufficient evidence these documents are what the pmties purpmi
them to be. Accordingly, the transcript pages proffered by DuPuis of the Cheatham, Moore, Gaona,
a11d Dupuis depositions are authenticated and admitted.
Luckeroth deposition.
Only DuPuis, however, offered the
Accordingly, the excerpts of Luckeroth's deposition are not properly
authenticated. Nonetheless, even if the court were to consider Luckeroth's testimony, its contents
would not alter the court's conclusion.
II.
Hearsay
In ruling on a motion for summmy judgment, the comt will consider the admissibility of the
proffered evidence's contents. Fraser v. Goodale, 342 F.3d 1032, 1036 (9th Cir. 2003) ("At the
summmy judgment stage, we do not focus on the admissibility of the evidence's form. We instead
focus on the admissibility of its contents."). It will not focus on the admissibility of the evidence's
form. Celotex Cmp. v. Catrett, 477 U.S. 317,324 (1986) ("We do not mean that the nonmoving
3 - OPINION AND ORDER
patiy must produce evidence in a form that would be admissible at trial in order to avoid summaty
judgment.").
Although both patties rely on Quality Door Service ("QDS") work order #43171, Maniott
raises concerns that the document contains hearsay within hearsay: a QDS employee's transcription
of a Maniott employee's statements. At trial, however, the work order's contents could be properly
admitted into evidence in a number of ways. The work order itself likely falls into the business
records exception to the rule against heat·say. FED. R. Evm. 803(6). Maniott's telephonic
communications with QDS may be admissible as an opposingpatiy's statement under FED. R. EVID.
801 (d)(2)(D). In addition, relevant witnesses may be available to testify to their personal knowledge
of the work order's contents under FED. R. Evm. 602. Accordingly, the court will consider the
document's contents in ruling on the motions cunently before it.
Factual Background
On May 27, 2011, DuPuis and her daughter, Gail Cheatham ("Cheatham"), filed into the
Hotel's front entry revolving door. (Anthony Broadman Dec!. ("Broadman Dec!.") Ex. A, Aug. 15,
2013.) Cheatham walked in front of DuPuis within the same door segment. (Gail Cheatham Dep.
("Cheatham Dep.") 56:2-56:16, 54:12-54:15, March 27, 2013.) Shmtly after entering the door,
DuPuis fell. (Broadman Dec!. Ex. A).
DuPuis has limited memoty of the event. (Broadman Dec!. Ex. A.) She does not recall what
caused her to fall, whether she made physical contact with the revolving door prior to falling, in
what manner she fell, or where she felt pain after falling. (Mabel DuPuis Dep. ("DuPuis Dep.")
75:23-75:25,69:20-69:23,7 6:15-76:24, March 27, 2013.) Cheatham did not see her mother fall but
she heard her scream and the thud of her head on the cement floor. (Cheatham Dep. 54:3-55:3.) In
a witness statement, Cheatham told the Hotel the door was rotating "way too fast" and knocked
4 - OPINION AND ORDER
DuPuis down. (Broadman Dec!. Ex. A.) No other witnesses came forward with observations of the
accident. (Broadman Dec!. Ex. A.)
Still in the revolving door herself, Cheatham tumed around to find her mother lying on the
floor with her torso positioned on the outside pavement and her bottom half still within the door's
partition. (Cheatham Dep. 55:4-55:19, 57:11-57:12.) According to Cheatham, the door continued
to turn, pushing DuPuis's body. (CheathamDep. 57:20-57:24.) Cheatham maneuvered around their
luggage and straddled her mother, using her body to block the incoming door pane. (Cheatham Dep.
55:9-55: 12.) The pane struck Cheatham and stopped. (Cheatham Dep. 58:12-58:19.)
Marriott maintains it is "physically impossible" for the events to have transpired as
Cheatham describes. (Alan Black Dec!. ("Black Decl.")
~
15(d), July 18, 2013.) The door has
multiple safety sensors: overhead infrared sensors mounted on the top of each door wing designed
to stop the door if they detect a stationary object; pressure sensors on the base of each door wing
designed to stop the door if they come into contact with someone's foot or bag; and two stationary
pressure sensors on the inbound edges of the door frame designed to halt the door if something
becomes wedged between the frame and the door wings. (Matiin Gaona Dep. ("Gaona Dep.") 28:728:25; April!, 2013; William Moore Dec!. ("Moore Dec!.")~ 6, July 23, 2013.) If the door stmck
DuPuis as alleged, the foot-level pressure sensor should have halted the door's rotation. As DuPuis
lay on the floor, the overhead sensor might have identified her presence and stopped the door. If
the door pushed DuPuis into the door frame, the side pressure sensors should have shut off the
motor. FUlihermore, the sensors are electronically integrated so if any single sensor malfunctioned,
the door should have stopped. (Billy Moore Dep. ("Moore Dep.") 31:6-31:8, Aug. 23, 2013; Gaona
Dep. 69:3-69: 17; Moore Dec!.~ 7; Dean Peddicord Dep. ("Peddicord Dep.") 30:5-30-15, Feb. 27,
2013.)
5 - OPINION AND ORDER
Maniott employs QDS, the door's installer, for maintenance and repair work. (Moore Dep.
29:11-29:29.) Industry standards recommend operators inspect revolving doors at least annually.
(Gaona Dep. 19:16-19:23, 68:16-68:23.) However, neither Maniott nor QDS perf01ms routine
inspections of the door's safety features. (Moore Dep. 48:5-48:25; Gaona Dep. 19:24-20:18.)
Marriott employee, Billy Moore ("Moore"), occasionally inf01mally tests the door's sensors and
automatic features as he walks through it in the normal course of business. (Moore Dep. 48:1048:16.) QDS briefly inspects the door on service calls. (Gaona Dep. 17:2-17:24.) Neither Maniott
nor QDS assess the door's rate of rotation during these inf01mal inspections. (Moore Dep. 24:124:25.) Moore testified the door has an appropriate speed: "It doesn't hurry you. That's for sure."
(Moore Dep. 34:10-34:23.)
Host Hotels and Resorts ("Host") owns the Hotel. (Moore Dec!.~ 4.) Marriott is the tenant
responsible for the Hotel's management. (Moore Decl.
~
3.) In 2011, at Marriott's request, Host
initiated a remodeling project of the Hotel lobby. (Moore Dec!. ~~5-6.) It had no plans to alter the
Hotel's revolving door. (Moore Dec!.~ 7.) However, a subcontractor of Host's general contractor
damaged the door's wiring while attempting to drive a scissor lift tlu·ough it, thus necessitating
repair work. (Moore Decl. ~ 10; Moore Dep. 14:21-15:20; Gaona Dep. 67:21 :-68:15.) As a result,
the door often stopped unexpectedly. (Dan Case Dec!. ("Case Decl.")
~
5, Aug. 23, 2013.)
Marriott hired QDS to repair the door. (Marc Hull Dec!. ("Hull Dec!.") Ex. P, July 25, 2013.) In
the process, QDS replaced some of the sensors but maintained its overall configuration and design.
(Case Decl. ~ 6.)
On August 7, 2012, Marriott called QDS and requested a technician be dispatched to
evaluate the door. QDS transcribed the reason for the call on work order #43171: "[o]utside
inspection of revolving door scheduled for 1:00 pm regarding pending law suit. Bonnie is
6 - OPINION AND ORDER
requesting that the door be adjusted prior to inspection (door not stopping)." (Hull Dec!. Ex. M.)
The dispatched technician noted the door's superscan and pressure sensors were operating correctly
upon his arrival. (Hull Dec!. Ex. M.) He proceeded to adjust the superscan sensors and"[ensure]
all safety sensors were working correctly." (Hull Dec!. Ex. M.)
Legal Standards
I.
Motion for Sanctions Pursuant to the Comi's Inherent Authority
Coutis are vested with inherent powers to facilitate the "orderly administration of justice."
Anheuser-Busch, Inc. v. Natural Beverage Distributors, 69 F.3d 337,348 (9th Cir. 1995). "These
powers are governed not by rule or statute but by the control necessarily vested in courts to manage
their own affairs so as to achieve the orderly and expeditious disposition of cases." Chambers v.
NASCO, Inc., 501 U.S. 32, 43 (1991) (quoting Link v. Wabash R.R. Co., 370 U.S. 626, 630-31
(1962)) (internal quotation marks omitted).
One such inherent power is the authority to levy sanctions for the spoliation of relevant
evidence. See Glover v. BIC Corp., 6 F.3d 1318, 1329 (9th Cir. 1993)("A federal trial comi has the
inherent discretionmy power to make appropriate evidentiary rulings in response to the desiruction
or spoliation of relevant evidence."). Spoliation sanctions are wananted only where the spoiling
party had some notice the evidence was potentially relevant to a pending or reasonably foreseeable
lawsuit. See United States v. $40,955.00 in US. Currency, 554 F. 3d 752, 758 (9th Cir. 2009)
("[S]anctions may issue only when a patiy had some notice that the evidence was potentially
relevant.").
II.
Motion for Summary Judgment
Summaty judgment is appropriate if"the movant shows 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.
7 - OPINION AND ORDER
56(a) (2013). Summaty judgment is not proper if material factual issues exist for trial. Warren v.
City of Carlsbad, 58 F.3d 439, 441 (9th Cir. 1995).
The moving party has the burden of establishing the absence of a genuine dispute of material
fact. Celotex, 477 U.S. at 323. If the moving party shows the absence of a genuine issue ofmateria1
fact, the nonmoving party must go beyond the pleadings to identify facts that show a genuine issue
for trial. !d. at 324. A nonmoving party cannot defeat summaty judgment by relying on the
allegations in the complaint, or with unsupported conjecture or conclusory statements. Hernandez
v. Spacelabs l'vfed., Inc., 343 F.3d 1107, 1112 (9th Cir. 2003). Thus, summaty judgment should be
entered against "a party who fails to make a showing sufficient to establish the existence of an
element essential to that party's case, and on which that party will bear the burden of proof at trial."
Celotex, 477 U.S. at 322.
The comt must view the evidence in the light most favorable to the nonmoving party. Szajer
v. City ofLos Angeles, 632 F.3d 607,610 (9th Cir. 2011). All reasonable doubt as to the existence
of a genuine dispute of material fact should be resolved against the moving party. Hector v. Wiens,
533 F.2d 429, 432 (9th Cir. 1976). Where different ultimate inferences may be drawn, summary
judgment is inappropriate. Sankovich v. Life Ins. Co. ofNorth America, 638 F.2d 136, 140 (9th Cir.
1981).
Discussion
Dupuis's motion for sanctions potentially affects the court's summary judgment
determination because, if granted, the sanctions motion could result in imposition of adverse
inferences that in turn alter the factual landscape upon which summary judgment will be determined.
United States v. Kitsap Physicians Serv., 314 F.3d 995, 1001 (9th Cir. 2002) ("To detetmine if the
district comt erred in dismissing [plaintiffs] action on summaty judgment, we must first resolve
8 - OPINION AND ORDER
whether [plaintiff] posits a successful spoliation argument. Showing evidence of spoliation of the
claim documents by the defendants would allow [plaintiff] to argue to the jmy adverse inferences
of fraud that might be sufficient to defeat summmy judgment."). Accordingly, the court must
resolve DuPuis's motion for sanctions before it can rule on Maniott's summary judgment motion.
!d.
I.
Spoliation
Patties to current or anticipated lawsuits have the obligation to preserve all evidence they
know or reasonably should know is relevant to litigation. See Kitsap Physicians Serv., 314 F.3d at
1001 (defendant did not violate duty to preserve relevant evidence when it destroyed documents in
accordance with record retention schedule before receiving any reasonable notice suit might be
filed). DuPuis alleges that Marriott breached this duty when it hired QDS to inspect and adjust its
revolving door in August 2012, months after DuPuis filed her lawsuit and before either side's
experts could examine the door. In suppmt of this accusation, DuPuis cites to QDS work order
#43171, dated August 7, 2012, which states: "[o]utside inspection of revolving door scheduled for
1:00 pm regarding pending law suit. Bonnie is requesting that the door be adjusted prior to
inspection (door not stopping)."
Sanctions motions, especially those predicated on the intentional destruction of evidence,
are a serious business. Such motions directly call into question a party or patty's counsel's honesty
and integrity. They should not be lightly contemplated and when filed should be supported by
strong evidence and candid briefing.
Here, DuPuis's briefing in support of its motion for sanctions based on spoliation misled the
court in two separate respects. First, DuPuis misrepresented legal authority in her Opening Brief
when she asse1ted "this is not Man'iott's first venture into the realm of evidence spoliation." (Pl.'s
9 - OPINION AND ORDER
Mem. Sanctions 11, n.35.) To support that charge she citedlvfi/bourn v. Marriott, 67 F.3d 307 (9th
Cir. 1995), a case that did not involve Marriott Corporation at all, but instead had as defendants
Everett and Jacqueline Marriott, owners of a laundty. DuPuis's use of Milbourn as evidence that
Marriott has been engaged in a pattern and practice of spoiling evidence is at best evidence that
DuPuis's attorneys failed to read the case beyond its caption- an inexcusable practice when offering
case authority to a court- and at worst an intentional effo1i to mislead the court about Marriott's
purported litigation tactics. '"The comi relies on the lawyers before it to state clearly, candidly, and
accurately the record as it in fact exists."' In re Girardi, 611 F.3d 1027, 1037 (9th Cir. 2010)
(quoting In re Boucher, 837 F.2d 869, 871 (9th Cir. 1988)). DuPuis's attorneys failed that duty on
this point.
The comi notes that Marriott put DuPuis on notice of her error in its response to her motion,
but DuPuis's attorneys failed to respond directly and promptly to this disclosure. In its response
brief Marriott clearly pointed out that "the 'Marriott' in [Milbourn] has no connection whatsoever
to Marriott International" (Def.'s Resp. 11-12.) However, DuPuis's attorneys sent no letter to the
court apologizing for the misleading citation and did not directly address it at the beginning of
DuPuis's Reply Brief. Instead, DuPuis's attorneys relegated their error to a footnote on page two
of the Reply Brief without apology or explanation, and then sought to distract from their error by
citing other cases purporting to evidence Marriott's previous spoliation conduct. There is no
rea~onable
excuse for taking this approach to rectifYing such an egregious error.
Second and more troubling is DuPuis's out-of-context presentation of work order #43171.
DuPuis asks the court to enter a default judgment against Marriott alleging that Marriott deliberately
tried to destroy evidence unfavorable to it by hiring QDS to repair the revolving door's sensors after
DuPuis filed her lawsuit. DuPuis claims that just hours before a scheduled litigation inspection on
10- OPINION AND ORDER
August 7, 2012, Marriott called QDS to come to the hotel to fix the door's sensors, which allegedly
were not functioning properly.
In her motion, DuPuis failed to disclose to the court that eight months earlier, in December
2011, a construction contractor damaged the revolving door and its sensors while attempting to drive
a scissor lift tln·ough the door, which damage resulted in the replacement of at least some of the
door's sensors. 2 Failing to disclose the December 2011 damage to and replacement of the door's
sensors suggested the sensors' August 2012 condition was unchanged from their May 2011
condition. But in fact the sensors' condition had been significantly changed in the intervening
period by the December 2011 scissors lift incident. This deprived the sensors of the evidentimy
value DuPuis claims they would have had for the August 20 12litigation inspection had Marriott not
tampered with them hours before the inspection was to occur. DuPuis's omission thus created the
false impression that key evidence had been destroyed to DuPuis's irreparable prejudice, a
misimpression not corrected until Marriott disclosed all the facts in its Response Brief.
In her Reply BriefDuPuis asserts the incredible proposition that the December 2011 scissor
lift incident is irrelevant to whether spoliation sanctions should be imposed against Marriott.
Spoliation sanctions in part turn on the prejudice done to the aggrieved party's case by the accused
party's destruction of unfavorable evidence. See, e.g., Kearney v. Foley & Lardner, LLP, 590 F.3d
638, 649 (9th Cir. 2009) ("Spoliation of evidence is the 'destruction or significant alteration of
evidence, or the failure to preserve property for another's use as evidence, in pending or future
litigation."') (citation omitted); l'vfillenkamp v. Davisco Foods Intern., Inc., 562 F.3d 971,981 (9th
'Again, it was Marriott who disclosed these facts to the comi in its Response Brief. (Def.'s
Resp. 4-6.) DuPuis concedes the door's damage and subsequent repair from the December 2011
scissor lift incident did not constitute spoliation.
11 - OPINION AND ORDER
Cir. 2009) (spoliation sanctions include allowing the jmy to draw the negative inference that the
destroyed evidence was likely damaging to the accused party's case). DuPuis's liability case against
Marriott rests entirely on the premise that the revolving door's sensors were not functioning properly
when she entered the door on May 27, 2011, as her retained expert concluded in his report after
watching a video of the revolving door taken minutes after DuPuis's accident. (Hull Dec!. Ex. B
at 6 ("It is our opinion on a more probable than not basis the cause of the accident was a lack of
sensor inspection and maintenance that resulted in sensors not perf01ming as specified.").) DuPuis's
expert's opinion completely undermines DuPuis's relevancy argument by identifYing as key the
sensors' condition at the time of DuPuis's accident and thus underscoring the critical significance
of the damage to and replacement of those sensors in December 2011.
Although DuPuis's lack of candor in presenting her sanctions motion to the court is enough
to warrant its denial, her motion fares no better on its merits. To prevail on her motion DuPuis must
demonstrate that Maniott's alleged spoliation prejudiced one of her claims. Nelson v. Original
Smith & Wesson Business Entities, 449 Fed. Appx. 581, 584-85 (9th Cir. 2011). This she cannot
do for at least two reasons. First, DuPuis has failed to show that Marriott's alleged conduct in
August 2012, changed the sensors' condition from their May 2011 state and prevents her from
proving her case - a burden she cannot meet because the sensors were damaged and replaced in
December 2011. Second, DuPuis has produced evidence of the door's improper functioning:
DuPuis's daughter testified that she saw the door failing to stop revolving after DuPuis fell inside
the door, and DuPuis's expett opined that the sensors did not properly work because, based on his
review of a near-contemporaneous video and DuPuis's daughter's testimony, the door rotated faster
than industry standards and failed to stop when obstructed.
12 - OPINION AND ORDER
Nor has DuPuis presented sufficient evidence of Marriott's wilful destruction of evidence.
Culpability is a prerequisite to imposing sanctions against a party for spoliation. Smith v. United
Parcel Service, Inc., 433 Fed. Appx. 623, 627 (9th Cir. 2011). DuPuis's evidence of Marriott's
culpability consists exclusively of work order #43171, a one-page document prepared by QDS. The
work order reads: "Outside inspection of revolving door scheduled for I :00 pm regarding pending
law suit. Bonnie is requesting that the door be adjusted prior to the inspection (door not stopping)."
(Joseph R. Sexton DecI. ("Sexton DecI.") Ex A, Sep. 3, 2013 .) Marriott presents substantial witness
testimony and documents to dispute the work order's implication Marriott intended to alter the door,
including the testimony ofQDS employee Martin Gaona who said he found the door to be working
properly and made no changes to its sensors. (Second Marc Hull Dec!. ("Hull Sanctions Dec!.")
Ex Hat 38-39, Sep. 10, 2013.) DuPuis claims Marriott deliberately and knowingly tried to destroy
evidence it knew to be relevant to DuPuis's claims, a conclusion that requires the comt here to find
that Man·iott engaged in dishonest and fraudulent conduct intended to subvett the civil justice
process. DuPuis cannot cany this serious burden by producing a document which contains a third
party's memorialization of its interpretation of Marriott's purported request.
Without the
substantiating testimony of the QDS employee who created work order #43171, testimony from a
Maniott employee from which culpability can firmly infe11'ed, or some other evidence
demonstrating that Maniott deliberately attempted to destroy relevant evidence, DuPuis falls well
sh01t of meeting her burden of proof.
A spoliation instruction "must make sense in the context of the evidence[.]" US. v. Laurent,
607 F.3d 895, 903 (1st Cir. 2010). In the context ofthe evidence here, DuPuis has not demonstrated
that either a default judgment or an adverse inference instruction would make sense. Accordingly,
DuPuis's motion for sanctions is denied.
13- OPINION AND ORDER
II.
Summmy Judgment
A.
Negligence
Oregon law governs DuPuis's negligence claims. Maricopa County ofState ofArizona v.
Mabeny, 555 F.2d 207, 210 (9th Cir. 1977) ("It is hornbook law that a federal court in a diversity
case must follow the substantive law of the state where the incident occurred."). Under Oregon law,
where parties to a suit invoke a particular status defining the parties' relationship, traditional
negligence law applies. See Fazzo/ari v. Portland School Dist. No. JJ, 303 Or. 1, 17 (1987)
("[U]nless the parties invoke a status, a relationship, or a particular standard of conduct that creates,
defines, or limits the defendant's duty, the issue of liability for harm actually resulting from
defendant's conduct properly depends on whether that conduct unreasonably created a foreseeable
risk to a protected interest of the kind of hmm that befell the plaintiff."); see also Waldner v.
Stephens, 345 Or. 526, 535 n.9 (2008) ("In Fazzolari v. Portland School District No. JJ, ... this
court introduced a general 'foreseeability' f01mula to replace traditional concepts of duty, breach,
and causation, as those concepts were used in negligence cases, when determining whether a case
required resolution of facts by a jury."). The plaintiff must show: (1) defendant owed plaintiff a
duty; (2) defendant breached that duty; (3) defendant's breach was the cause-in-fact of plaintiffs
hmm; and (4) plaintiff suffered some legally cognizable damage. Brennen v. City ofEugene, 285
Or. 401, 405 (1979).
Here, the parties do not dispute that, as the occupier of the Hotel, Marriott had a duty to
exercise reasonable care to ensure its premises were safe for invitees, such as DuPuis. Rich v. Tile-
Knot Pine }vfill, 245 Or. 185, 191-92 (1966) (stating occupier of business premises has the
affirmative duty to protect invitees from premise dangers of which the occupier reasonably should
14- OPINION AND ORDER
know and defining invitees as those who enter premises on business that concerns the occupier at
the occupier's express or implied invitation). Thus, Marriott concedes the first element, duty. Nor
is there any argument as to the fourth element, damage. The undisputed facts show DuPuis
sustained physical injuries while entering the Hotel. Physical harm is a "cognizable injury for
purposes of stating a negligence claim." Paul v. Providence Health System-Oregon, 237 Or. App.
584, 590 (201 0) (explaining plaintiff could have satisfied the damages element of negligence by
alleging she suffered some physical effect from exposure to defendant's products). Rather, Maniott
moves for summary judgment against DuPuis on the second and third elements of negligence,
arguing there is no genuine issue of material fact to suggest Marriott breached its duty owed to
DuPuis or that Maniott was the cause in fact of DuPuis's injuries.
1. Breach
Maniott had the undisputed duty "to act as a reasonable person would, or would not, act in
the same or similar circumstances to discover conditions of the premises 'that create an
umeasonable risk of harm to [an] invitee'" and to either "eliminate such conditions or to warn any
foreseeable invitee of the risk so as to enable the invitee to avoid the harm." .Maas v. Willer, 203
Or. App. 124, 129 (2005) (quoting Woolston v. Wells, 297 Or. 548,557-58 (1984)). DuPuis claims
Marriott breached this duty by maintaining a revolving door that spun rapidly, incessantly, and
unsafely. In support of this contention, DuPuis cites to Cheatham's observation that the door was
revolving at a dangerous rate and Cheatham's testimony the door continued to spin after DuPuis fell,
pushing her body along the floor. In response, Marriott maintains the door was spinning at a
reasonable rate and argues it is physically impossible for the events to have transpired as Cheatham
describes them. Specifically, if the door made contact with DuPuis as she lay on the floor, its safety
15- OPINION AND ORDER
sensors should have halted its spin. If any of those sensors malfunctioned, the door should have
stopped.
The patties dispute whether the door posed an umeasonable risk to invitees and, accordingly,
whether Marriott took appropriate measures to address it. These are questions of fact best left to a
jmy. Donaca v. Cuny Cnty., 303 Or. 30, 38-39 (1987) (whether a risk was foreseeable and whether
the defendant's conduct was reasonable are "empirical questions" that should only be decided by
the comt in "extreme case[s]"). Summmy judgment on the issue of breach is not appropriate.
2. Causation
The viability ofDuPuis' s negligence claim tums on the causal connection between Maniott' s
alleged breach and DuPuis's fall. Under Oregon negligence law, in order to prove causation, a
plaintiff must show it is reasonably probable that "but-for" defendant's negligence, plaintiff would
not have been injured. See Joshi v. Providence Health System, 198 Or. App. 535, 538-39 (2005),
ajj'd, 342 Or. 152 (2006) ('"Cause-in-fact' also has a well-defined legal meaning: it generally
requires evidence of a reasonable probability that, but for the defendant's negligence, the plaintiff
would not have been harmed."). Where "two causes concur to bring about a hatmful result, and
either one of them, operating alone, probably would have brought about the hatm," Oregon courts
apply a "substantial factor" standard instead of the "but-for" test. Id. at 540. In such cumulative
circumstances, a plaintiff can establish causation by showing a factor substantially contributed to
her injuries even if, operating alone, the factor would not have resulted in the harm. Id. at 542.
Regardless of which standard is to be applied, "[a] mere possibility of such causation is not
enough; and when the matter remains one of pure speculation or conjecture, or the probabilities are
at best evenly balanced, it becomes the duty of the court to direct a verdict for the defendant."'
16- OPINION AND ORDER
Griffin v. K.E.lvfcKay's 1vfkt. ofCoos Bay, Inc., 125 Or. App. 448,452 (1993). "It is not necessaty
to establish negligence by direct and positive evidence, but there must be facts from which a
reasonable inference of negligence may be drawn." Simpson v. Hillman, 163 Or. 357, 363 (1940).
For instance, in Simpson, the Oregon Supreme Comt found; that in the absence of evidence showing
whether a child unexpectedly darted in front of defendan t's car, ran into the side of defendan t's car,
or walked out plainly in front of the car giving defendant sufficient time to avoid hitting her; it was
no more reasonable to assume defendan t's alleged failure to lookout for pedestrians caused the
child's injuries as it was to assume the child would have been injured regardless. Id In Feazle-Hurt
v. Target, No. 3:12-cv-00997-AC, 2013 WL 5797601, at *5 (D. Or. Oct. 28, 2013), this court
granted summmy judgmen t on plaintiffs Oregon premises liability claim because, without any
evidence establishing how the merchandise tag plaintiff allegedly slipped on came to be on the floor;
it was just as likely Target caused the tag to be on the floor as it was the tag was there through no
fault of Target.
Here, it is a close question whether DuPuis presents evidence sufficient to support an
inference that it is more probable than not that Marriott' s door caused her fall. There is no evidence
the door struck DuPuis or otherwise made her lose her balance. DuPuis does not remember the
incident and there were no eyewitnesses. However, in Whalen v. American Medical Response
Northwest, Inc., 256 Or. App. 278, 289 (2013), the Oregon Comt of Appeals explicitly rejected the
contention that a "plaintif fs inability to recall having been injured is a per se bar to prevailing on
an associated tott claim." A plaintiff s testimony is not the only viable source of proof defendant
committed a tort against her. Id. In Whalen, the court found an expert's affidavit' expressing
'In Whalen, plaintiff filed the expett affidavit in accordance with OR. R. CIV. P. 47(E), which
requires vety limited disclosure, whereas FED. R. CIV. P. 56 governs this federal suit and
17 - OPINION AND ORDER
willingness to testifY that a traumatic event in an ambulance with defendant likely triggered
plaintiffs amnesia paired with evidence of defendant's offensive behavior after the ambulance ride,
plaintiffs nightmares about defendant, and plaintiffs obsessive feeling of uncleanliness were
sufficient to preclude summary judgment on plaintiffs battery claim. Id. at 288, 292.
DuPuis presents a similar combination of circumstantial evidence and expert opinion.
Cheatham testified the door was moving too quickly and its sensors failed to detect and protect her
mother. DuPuis's expert opines it is reasonable to conclude the sensors were not functional at the
time of DuPuis's accident as the door continued to rotate after she had fallen to the floor.
(Declaration of Mark Lawless ("Lawless Decl.") Ex. B"). Moreover, unlike the circumstances in
Feazle-Hurt, where it was equally likely a customer was at fault for the tag on the floor, Maniott
was solely responsible for the proper functioning of the door.
Given the fact she fell while
navigating this allegedly unsafe door, DuPuis argues a reasonable jmy could infer the door was
causally linked to her fall.
Oregon courts have found similar showings sufficient to establish a genuine question of fact
under both the "but-for" and "substantial factor" standards. In O'Donnell by Clarke v. Floan, 82
Or. App. 656 (1986), a tenant brought suit against her landlord alleging she fell in its negligentlymaintained stairwell. No eyewitnesses saw her fall but someone saw her tumble through the
do01way at the bottom of the stairs. Id. at 659-60. At the trial, the tenant could not recall the
accident, but she told doctors at the time of injmy that she had fallen off the last step. Id. at 659.
In regards to the question of causation, the Oregon Comi of Appeals held evidence showing plaintiff
requires the parties' expe1i affidavits or declarations to "[be] made on personal knowledge, set
out facts that would be admissible in evidence, and show that the affiant or declarant is
competent to testifY on the matters stated."
18- OPINION AND ORDER
tripped or slipped on the last step provided "the needed connection between the allegation of
negligence and the injury" such that a reasonable jmy could find the stairs' "unreasonably dangerous
condition caused plaintiff to fall." Id at 660. Similarly, in Wells v. Home Purchasing C01p., a
Subsidimy ofLutz Serv. C01p., 84 Or. App. 103, 105 (1987), plaintiff fell on defendant's unlit porch.
Plaintiff did not know why she fell. Id at 106. The Oregon Comt of Appeals found evidence
establishing plaintiff could not see the porch's condition was sufficient to present a question of fact
whether "the absence of lighting was a substantial factor in causing plaintiff to fall" and,
accordingly, held the trial court erred by granting defendant's motion for judgment notwithstanding
the verdict. Id. at 107.
Plaintiffs in 0 'Donnell by Clarke and Wells presented evidence that (1) they fell on the
defendant's at-issue propetty and (2) defendant's property posed umeasonable safety risks. Oregon
comts deemed these offerings sufficient to present a reasonable question of fact on causation.
DuPuis makes an equivalent showing here. She has established she fell in Marriott's door and
presented evidence the door was unsafe.
While DuPuis's proffered causal evidence is not
overwhelming, in line with 0 'Donnell by Clarke, Wells, and Whalen, her evidence is sufficient for
ajmy to find it slightly more probable than not that the door was causally linked to DuPuis's fall.
Viewing these facts in the light most favorable to DuPuis, the non-moving party, summmy judgment
is not appropriate.
B.
Gross Negligence
Where a person acts with (1) "conscious indifference" to or (2) "reckless disregard" of, the
rights of others, his liability is elevated from ordinary negligence to gross negligence. State v.
Hodgdon, 244 Or. 219, 223 (1966) ("So in gross negligence, we find not simply an inadvertent
breach of duty or imprudent conduct (as in ordinary negligence), but the violation of the duty to
19- OPINION AND ORDER
others is so flagrant as to evidence an indifference to or reckless disregard of the rights of others.").
It follows that, in order to establish gross liability, DuPuis must show Marriot had something to
disregard or act indifferent toward. DuPuis failed to present evidence showing Maniott was aware
of, or should have been aware of, the door's dangers prior to her accident. No reasonable jmy could
find Marriott disregarded, or was indifferent to, the door's condition in the absence of evidence that
Maniott was on notice the door posed a hazard. Accordingly, summmy judgment is appropriate on
DuPuis's gross negligence claim.
C.
Res Ipsa Loquitur
In her Third Claim for Relief, DuPuis alleges Marriott is liable for her fall and injuries
pursuant to the doctrine of res ipso loquitur. (Compl.~ 28.) Maniott moves for summaty judgment
against this claim on the ground DuPuis "is obligated to prove that her alleged injmy was probably
caused by some negligent conduct on the part ofManiott for the doctrine to apply." (Def.'s Mem.
Summ. J. 15.) The doctrine of res ipsa loquitur is a "rule of circumstantial evidence that permits
a jmy to infer both negligence and causation if the hann that occurs is of a kind that ... more
probably than not would not have occurred in the absence of negligence on the part of the
defendant." Hammer v. Fred Meyer Stores, Inc., 242 Or. App. 185, 190 (2011) (quoting McKee
Electric Co. v. Carson Oil Co., 301 Or. 339, 353 (1986)) (intemal quotation marks omitted). In
order to proceed at trial with these inferences, a plaintiff must show: (1) an injury, (2) caused by
an incident of the type which normally "does not occur in the absence of negligence," and (3)
defendant was "more probably than not" responsible for the negligence that caused the injury.
Hammer, 242 Or. App. at 190-91.
The Oregon Supreme court has explained "res ipsa loquitur is simply a rule relating to a
particular kind of circumstantial evidence ... [and] permits the drawing of an inference which rests
20 - OPINION AND ORDER
upon no specific causative circumstance in the case" Powell v. Moore, 228 Or. 255, 257 (1961).
In Powell, plaintiff fell when defendant's loading ramp slid away from its truck. To determine
whether the doctrine applied to plaintiffs claim, the Oregon Supreme Court asked whether, in the
ordinaty use of a ramp, the ramp would dislodge without some negligent care or conduct. !d. at 266
("We think that in the 'ordinary instance' a ramp used under the circumstances which attended the
use of this ramp on this occasion, would not slip and fall unless someone was negligent.").
In this case, however, the jury will not be asked to draw an inference of Ma11'iott's
negligence from the fact of an occurrence- a malfunctioning door. See Powell, 228 .Or. at 269 ("We
believe that it is proper for the comt to instruct the jmy with respect to the permissibility of drawing
the inference of defendant's negligence from the facts of the occurrence in appropriate cases."). Nor
will the jmy be asked to adduce whether it was Marriott, as opposed to some other party, who was
responsible for the malfunctioning door. See Watzig v. Tobin, 292 Or. 645, 648-52 (1982) (res ipsa
loquitur applied because the jmy could have concluded the cow would not have been on the
highway absent the owner's negligence). Rather, in this case, there is a two-step inqui!y for the jmy:
first, whether it is more probable than not the revolving door was malfunctioning and, secondly,
whether that malfunctioning door caused DuPuis to fall. As to the first inquiry, there is no question
the revolving door was under the exclusive control ofMa11'iott and, Marriott was solely responsible
to maintain the door in a safe condition. As to the second inquiry, the cause of DuPuis's fall, the
court declines to replace DuPuis's burden of proof with an instruction to the jmy that it may infer
DuPuis's fall was caused by the door simply because the door was malfunctioning. Certainly the
event of falling can, and often does, ordinarily occur in the absence of negligence. It is DuPuis's
burden to show Marriott failed to maintain its premises properly, and that such a failure was the
21 -OPINION AND ORDER
cause of her fall. 4 Thus, the doctrine of res ipsa loquitur is not available to DuPuis under the
circumstances here. Accordingly, Marriott's request for summary judgment against DuPuis's Third
Claim for Relief (Res Ipsa Loquitur) is granted.
Conclusion
Based upon the foregoing, Marriott's Motion for Summary Judgment Pursuant to FED. R.
CIV. P. 56 (doc. #18) is GRANTED, in pmi, and DENIED, in pmi; DuPuis's Motion for Sanctions
Re: Spoliation (doc. #32) is DENIED; and Marriott's Motion for Leave (doc. #45) is DENIED. IT
IS FURTHER ORDERED that within 30 days of the date of this Opinion and Order, counsel for
5
DuPuis will notify the court whether the Estate of Mabel DuPuis will proceed with this litigation.
IT IS SO ORDERED
r;A
Dated this/ 'day of Janumy 2014.
'
Jdhn V. Acosta
United,!)lates Magistrate Judge
'If the jury should determine the door was malfunctioning but it was not the cause of DuPuis's
fall, she may nevertheless present evidence of harm (injuries) caused by the malfunctioning door
after she fell.
'The comi was recently notified of Mabel DuPuis's death during the pendency of this litigation.
22 - OPINION AND ORDER
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