Gamino v. Transwestern et al
Filing
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MEMORANDUM AND OPINION entered DENYING 31 MOTION for Summary Judgment .(Signed by Judge Lee H Rosenthal) Parties notified.(leddins, 4)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
RICHARD GAMINO,
Plaintiff,
v.
TRANSWESTERN, et al.,
Defendants.
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CIVIL ACTION NO. H-13-1779
MEMORANDUM OPINION
On December 15, 2011, the plaintiff, Richard Gamino, was allegedly injured when the doors
of a freight elevator maintained by Schindler Elevator Corporation closed prematurely. Gamino was
using the freight elevator to move a cart loaded with packages from the first floor to the basement.
He backed his cart into the freight elevator so that when he reached the basement, he could push
(rather than pull) his cart out. He contends that when he backed into the elevator and crossed the
infrared-sensor at the elevator-door threshold, the door failed to reopen and instead continued
closing and hit the side of his head. A security camera made a video recording that is part of the
record.
In April 2013, Gamino sued Schindler and Transwestern, the property-management
company, in Texas state court, alleging negligence. (Docket Entry No. 1-2, at 3). Gamino nonsuited
Transwestern, which shared Gamino’s Texas citizenship, and Schindler timely removed to federal
court on the basis of diversity jurisdiction. (Docket Entry No. 1). After discovery, including
designating experts and submitting liability reports, Schindler moved for summary judgment,
arguing that there was no evidence that the elevator malfunctioned or that Schindler negligently
maintained it. (Docket Entry No. 31). Gamino responded, and Schindler replied. (Docket Entry
Nos. 33, 34). Based on the motion, the briefs, the pleadings, the record, and the applicable law, the
court denies Schindler’s motion. The reasons are explained below.
I.
The Legal Standard for Summary Judgment
Summary judgment is appropriate if the moving party “shows that there is no genuine dispute
as to any material fact” and that it “is entitled to judgment as a matter of law.” FED. R. CIV. P. 56(a).
“The movant bears the burden of identifying those portions of the record it believes demonstrate the
absence of a genuine[dispute] of material fact.” Lincoln Gen. Ins. Co. v. Reyna, 401 F.3d 347, 349
(5th Cir. 2005) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 322–25 (1986)). If the burden of
proof at trial lies with the nonmoving party, the movant may satisfy its initial burden by “‘showing’
— that is, pointing out to the district court — that there is an absence of evidence to support the
nonmoving party’s case.” Celotex, 477 U.S. at 325. Although the party moving for summary
judgment must demonstrate the absence of a genuine dispute as to any material fact, it does not need
to negate the elements of the nonmovant’s case. Boudreaux v. Swift Transp. Co., 402 F.3d 536, 540
(5th Cir. 2005) (citation omitted). A dispute “is material if its resolution could affect the outcome
of the action.’” DIRECTV, Inc. v. Robson, 420 F.3d 532, 536 (5th Cir. 2005) (quoting Weeks
Marine, Inc. v. Fireman’s Fund Ins. Co., 340 F.3d 233, 235 (5th Cir. 2003)). “If the moving party
fails to meet its initial burden, the motion for summary judgment must be denied, regardless of the
nonmovant’s response.” Quorum Health Res., L.L.C. v. Maverick Cnty. Hosp. Dist., 308 F.3d 451,
471 (5th Cir. 2002) (citing Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994) (en banc)).
When the moving party has met its Rule 56(a) burden, the nonmoving party cannot survive
a summary judgment motion by resting on the mere allegations of its pleadings. “[T]he nonmovant
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must identify specific evidence in the record and articulate the manner in which that evidence
supports that party’s claim.” Johnson v. Deep E. Tex. Reg’l Narcotics Trafficking Task Force, 379
F.3d 293, 301 (5th Cir. 2004) (citation omitted). “This burden is not satisfied with ‘some
metaphysical doubt as to the material facts,’ by ‘conclusory allegations,’ by ‘unsubstantiated
assertions,’ or by ‘only a “scintilla” of evidence.’” Little, 37 F.3d at 1075 (citations omitted). In
deciding a summary judgment motion, the court draws all reasonable inferences in the light most
favorable to the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986).
II.
Analysis
The Texas-law elements of negligence are that: (1) the defendant owed the plaintiff a duty
of care; (2) the defendant breached the duty; and (3) the defendant’s breach proximately caused the
plaintiff injury. IHS Cedars Treatment Ctr. v. Mason, 143 S.W.3d 794, 798 (Tex. 2003). Schindler
argues that Gamino cannot provide “any evidence to support the second element,” that Schindler
breached its duty of care. (Docket Entry No. 31-2). In response, Gamino points to the report of his
designated witness on liability, Sheila Swett, who has spent 30 years in the elevator business, owns
an elevator consulting and engineering firm, and has served as an expert witness in 14 cases
involving alleged elevator malfunctions. (Docket Entry Nos. 33; 33-1; 33-2, at 2-3). Swett
reviewed the video recording and examined the American Society of Mechanical Engineers
(“ASME”) Safety Code for Existing Elevators and Escalators. (Docket Entry No. 31-6). Swett
concluded that the elevator doors exceeded the Code’s maximum average and actual closing speeds,
including the Code’s average and actual closing speed for reopening after beginning to close before
the person entering the elevator is fully inside. (Id.). Swett also concluded that the elevator door’s
reopening device was not adjusted or maintained to function as the Code required. (Id.).
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Schindler does not challenge Swett’s qualifications under Federal Rule of Evidence 702.
Schindler argues that Swett testified in her deposition that on the day she inspected the elevator, it
“closed in a code compliant fashion, and the door re-opening device operated correctly on that day.”
(Docket Entry No. 31-8, at 3-4). Swett inspected the elevator on November 17, 2014, several years
after the incident. Swett testified in her deposition that, based on her review of the video recording
of the incident, the elevator door hit Gamino because its speed and its reopening device did not
comply with the ASME code’s requirements. Swett testified as follows:
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All of your knowledge about the accident comes from watching the video?
Yes.
Okay. Are there any documents you need to satisfy yourself as to an opinion
on this case?
We have maintenance, preventive maintenance documents, a little bit, and,
I mean, that is all I can look at really.
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Can you describe for me what you think happened on this day, the day of the
accident?
Mr. Gamino pulled a load onto the elevator, and the elevator door began
closing and struck him. I believe that he hit the reopening device, and it did
not reopen in the time that’s required to reopen.
You believe he hit that reopen device?
Not hit, like physically, but he crossed the light ray, and it did not reopen in
the time that it was supposed to reopen.
And that’s based on what?
Visual.
So, you believe he broke the -He broke the light ray.
He broke the light ray, and it didn’t reopen in time?
In time, correct.
And that’s based on your viewing the video?
Yes.
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At what point—how far was the door from him when he broke the beam?
It appeared to hit him at about a foot. I think at that point he was in that
beam, certainly in that beam.
What do you mean that he was about a foot?
I mean, the doors closed. It appeared to be approximately a foot, and that’s
when it hit him.
So, you think the doors had closed one foot before he broke the beam?
I think the doors had closed and did not retract when he broke that beam.
How close was the doors to him when he broke the beam?
I would—that would be supposition. I would say about 3 [inches]. He
certainly appeared to have broken the beam, and the doors did not retract in
time.
At what point are the doors supposed to—once a beam is broken, how
long—I think the door has already traveled some just because of their size,
right?
Right.
How far would they travel?
Our code says they’re not supposed to hit people. I mean, that’s its definition
is that they will return before they strike. So, according—I mean, they have
to be set in accordance with whatever size doors you have.
So, you think once he broke the beam, the doors are about 3 [inches] from
him?
Uh-huh.
And you believe that they should retract and the doors should stop
immediately when the beam is broken?
I believe that the doors, when an obstruction is sought, should stop before it
hits anything. That’s what the code says.
And it didn’t?
It doesn’t give you a leeway of it can travel 6 [inches], or it must stop
instantaneously. It merely states that it cannot contact. It is a passive device.
What could have caused this incident?
Like I said, it could be an intermittent problem. It could also be a door
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operator problem. It could be a communication problem.
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Okay. Mr. Donnelly says that the elevator door was being properly
maintained and adjusted. Do you agree with that?
I agree it hit that man on that day, and something happened. I can only go by
what I saw.
That’s all you can say is that door hit him?
Yes. According to our code and our requirements, it should not contact.
But there can be instances when it can contact you even though it’s being
properly maintained?
There’s not supposed to be. Honestly, it is not supposed to be. If you hit the
door or if you walk into an elevator and break the beam and hit the door,
because many older are accustomed to the bumpers, the old reopening
devices, and I see them do it all the time. They contact the door. I did not see
that happening in this case.
So, it’s your opinion that Schindler did not properly maintain the door
reopening device as evidenced by the fact that he was struck by the door?
Correct.
And you believe he broke the beam?
I believe he broke the beam.
So, the door, it’s your opinion that; the door reopening device was not
operating properly due to the adjustment?
Was not adjusted to open as quickly as required.
So, it may not have been adjusted to code?
The code says it can't hit anybody.
Okay. And it’s your opinion that the door reopening device was not properly
maintained?
Yes. It was not functioning in accordance to code. So, it’s their responsibility
to maintain equipment functions within the parameters of code.
Okay. So, I think I’m getting an understanding of your opinions. It’s your
contention that the door reopening device was not functioning within the
code, and it was Schindler’s responsibility?
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A:
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Yes.
And it’s your opinion that Schindler did not properly maintain the door
reopening device to code?
Right, as a system. I mean, the door reopening device talks to the door
operator, which is what makes the speed happen and the reversing happen.
It could be in that system.
And your opinion that Schindler did not properly maintain the door
reopening device to code is based on the videotape?
Yes.
(Docket Entry No. 33, Ex. A, at 19, 21, 23, 27:24-25, 28:1, 29:12-25, 30:1-2, 31:1-6, 41:21-25, 42:1,
44:12-16, 45:14-19, 50:2-22).
Schindler’s acknowledgment that the elevator conformed to the Code when she inspected
it in November 2014 does not contradict her opinion based on viewing the video recording that the
elevator violated the Code when it struck Gamino in December 2011.
Schindler responds by pointing to testimony from its own experts, Ernest Morrison and John
Donnelly, that Gamino did not cross the threshold to activate the infrared sensor and that the
elevator was operating properly. (Docket Entry No. 31-7, 31-9). Donnelly bases his opinion on the
video recording, Morrison’s testing of the doors two weeks after the incident, and the absence of
adjustment or repair to the door system between the incident and Morrison’s tests. (Docket Entry
No. 31-9).
According to Schindler, “[t]he video clip referenced in Donnelly’s Affidavit
demonstrates that Gamino did not cross the running clearance and break the [infrared] beam at the
time the elevator door struck him,” and the Code allows the door-reopening system to “continue to
close during the electrical, mechanical, and inertial reaction time.” (Docket Entry Nos. 31-2, at 7;
34, at 2; see also Docket Entry No. 31-5 (Video at 00:06-09)).
Gamino has submitted competent summary judgment evidence creating genuine fact disputes
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material to determining whether the elevator door malfunctioned by operating in violation of the
Code requirements and whether Schindler was negligent. The disputes include whether Gamino
crossed the “light ray” when he backed into the elevator pulling the cart, whether the elevator-door
reopening mechanism responded too slowly, and, if so, whether Schindler’s negligence caused the
elevator to function in this fashion. Given the conflicting expert opinions and a reasonable jury’s
ability to find support for either in the video recording of the incident, summary judgment is not
appropriate.1 See Martin v. Homesite Grp., Inc., No. 3:06CV536-DPJ-JCS, 2008 WL 4000182, at
*2 (S.D. Miss. 2008) (concluding that “genuine issues of material fact exist which preclude
summary judgment on Plaintiff’s claims for negligence” in part because “the parties present[ed]
conflicting expert testimony as to the cause of the damage to the roof”); Simpson v. Baronne
Veterinary Clinic, Inc., 803 F. Supp. 602, 607 (S.D. Tex. 2011) (denying “the defendant’s summary
judgment motion regarding the plaintiffs’ negligence claim because” the parties presented
“conflicting expert testimony” about “the focal point of this case”); see also Ramirez v. Martinez,
716 F.3d 369, 374 (5th Cir. 2013) (denying summary judgment where “the video [evidence] d[id]
not so blatantly contradict the version of events told by [the plaintiff] that no reasonable jury could
believe his version”).
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Schindler also argues that summary judgment is appropriate because (1) there is no evidence of
“any previous elevator malfunctions” and (2) Schindler complied with the “terms of [its] Maintenance
Agreement, which sets out [its] responsibilities for performing maintenance on the elevator equipment.”
(Docket Entry No. 31-2, at 7, 8). Not so. Regardless of whether the elevator previously malfunctioned or
Schindler complied with its contractual obligations, a reasonable jury could find that Schindler breached its
duty of care to Gamino based on the video footage, Swett’s expert report, and her deposition testimony.
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III.
Conclusion
Schindler’s motion for summary judgment, (Docket Entry No. 31), is denied.
SIGNED on February 20, 2015, at Houston, Texas.
______________________________________
Lee H. Rosenthal
United States District Judge
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