McNeilly v. Greenbrier Resort et al

Filing 162

MEMORANDUM OPINION AND ORDER: denying Defendant's 106 MOTION for Summary Judgment. Signed by Judge Irene C. Berger on 4/25/2014. (cc: attys; any unrepresented party) (cds)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA
BECKLEY DIVISION

SCARLETT FAITH MCNEILLY,
Plaintiff,
v.

CIVIL ACTION NO. 5:12-cv-04609

GREENBRIER HOTEL CORPORATION, et al.,
Defendants.

MEMORANDUM OPINION AND ORDER

The Court has reviewed the Defendant Greenbrier Hotel Corporation’s Motion for
Summary Judgment (Document 106), the attached exhibits, the Memorandum of Law in Support of
Greenbrier Hotel Corporation’s Motion for Summary Judgment (Document 107), the Plaintiff’s
Response in Opposition to Motion to Filed For Summary Judgment the Defendants (Resp.)
(Document 154),1 the Memorandum of Law in Support of Plaintiff Scarlett Faith McNeilly, Pro
Se, Opposition to Motion Filed For Summary Judgment the Defendants (Mem. Resp.) (Document
155), the attached exhibits, and the Defendant’s Reply Memorandum in Support of Defendant’s
1 The Plaintiff included a list of thirty-eight (38) exhibits in support of her claims. Several of the listed documents
were attached to Document 155. Many were not attached to either of the Plaintiff’s filings in response to the
Defendant’s motion for summary judgment. Taking into consideration the liberal pleading standards applicable to
pro-se litigants, the Court has considered documents listed in the Plaintiff’s response in opposition that are available
on the docket, including the report from her expert, Fred DelMarva (Document 95); the Plaintiff’s Answers to
Defendants Interrogatory Questions and Request for Production of Documents (Document 118); the affidavit of
Ronnie Napier (Document 118-1); portions of the deposition of Robert Mickey (Document 118-2); portions of the
deposition of Amy Yates (Document 118-3); the Defendant’s Answers and Responses to Plaintiff’s Second Set of
Interrogatory Questions and Requests for Production of Documents (Document 110-1); and the Defendant’s Answers
and Responses to Plaintiff’s First Set of Interrogatories and Second Set of Interrogatories and Requests for
Production of Documents (Document 110-1).

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Motion for Summary Judgment (Document 157) and attached exhibits. For the reasons stated
herein, the Court finds that the Greenbrier’s motion for summary judgment should be denied.

I.

FACTUAL BACKGROUND AND PROCEDURAL HISTORY

The Plaintiff, Scarlett McNeilly, proceeding pro-se, initiated this action on August 22,
2012. (See Complaint, Document 1.) Pursuant to 28 U.S.C. § 636, the matter was referred to
Magistrate Judge R. Clarke VanDervort for total pretrial management and submission of proposed
findings of fact and recommendations for disposition. (Document 3.) Through two opinions
granting motions to dismiss certain claims and certain named defendants, the sole remaining claim
alleges negligence pertaining to premises against the Greenbrier Hotel Corporation. (See PF&R,
Document 34, adopted in Document 39; and PF&R, Document 72, adopted in Document 91.)
This claim arose out of an incident that took place on August 23, 2010. Ms. McNeilly and
a friend, Pat Butler, were guests at the Greenbrier from August 22, 2010, until August 25, 2010.
(June McNeilly Depo., p. 33–40) (Document 106-1.)

Ms. McNeilly states that when she

attempted to shower on the morning of August 23, 2010, she slipped in the bathtub, fell outside the
tub enclosure, and hit her head on the marble bathroom floor. (Mem. Resp. at 4).) Prior to
beginning her shower, she noted that there was no bath mat, either already in the tub or in the
cabinet, nor were there rubber strips lining the tub. (June McNeilly Depo. at 53–59.) She asserts
that she adjusted the water, entered the tub enclosure, stepped forward to adjust the water again,
and her feet flew out from under her. (Id. at 54–56.) She attempted to grab the metal hand bar,
but it was also wet, and the smooth metal was too slippery to grip. (Id.) She spun around inside
the tub, and then fell “out over the tub 5 feet onto marble floor, [and] hit [her] head.” (Id. at 56.)

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The shower curtain was torn down as she fell. (Greenbrier Incident Report) (Document 155-1 at
74–75.) A security officer and nurse employed by the Greenbrier responded to the room and took
Ms. McNeilly to the Greenbrier clinic. (Id.)

Ms. McNeilly was later transported to the

Emergency Room via EMS. (Id.)
Ms. McNeilly stated in her deposition that, upon her return from the emergency room, she
checked the bathtub for residue from cleaning products that may have caused the tub to be
slippery. (June McNeilly Depo. at 107–108.) She observed residue and believes the cleaning
products were not adequately rinsed from the tub. (Id.) The Greenbrier points to the deposition
testimony of Amy Yates, the housekeeping supervisor, who stated that the record of individualized
key card entries shows that she entered the Plaintiff’s room at 3:01 p.m., and again at 3:21 p.m., on
August 22, 2010, to inspect the housekeeper’s work prior to the guests’ arrival. (Yates Depo. at
62–64) (Document 106-4.) She testified that she inspects bathtubs by wiping the surfaces of the
tub and the fixtures with her hands to check for residue. (Id. at 65.) If there was residue, the
room attendant would be required to re-clean the bathtub. (Id.) The Greenbrier was unable to
identify the housekeeper who cleaned the Plaintiff’s room prior to her arrival, so no direct
testimony regarding the process used to clean the bathtub is available. (See Def.’s Interrog. Resp.
6) (Document 110-1.) Ms. McNeilly further referenced the affidavit of former housekeeping
supervisor Ronnie Napier. (Document 118-1.)

Mr. Napier stated that Robert Mickey, the

Director of Housekeeping at all relevant times, began in February 2010 and made changes,
including ending the prior practice of supplying rubber mats in all bathrooms and switching to
cheaper chemicals for cleaning. (Napier Aff.)

Some housekeepers brought in their own

cleaning supplies after the latter change, though doing so was not permitted. (Id.)

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It is undisputed that Ms. McNeilly’s friend and roommate in the hotel, Ms. Butler, had
showered on the evening of August 22, 2010, prior to Ms. McNeilly’s shower and fall the
following morning. (Butler Depo. at 26–28) (Document 106-5.) Ms. Butler states that she used
only soap and did not shampoo her hair. (Id. at 89.) She does not recall anything unusual about
her shower or the bathroom. (Id. at 35–36.)
The parties dispute the sufficiency of the anti-slip material in the bathtub.

The

Greenbrier’s expert examined the bathtub and reports that the bottom surface was textured with
abrasive rectangular inlays extending to about three inches from the drain. (Sapienza Rep. at 9–
10) (Document 106-3.) He conducted testing and concluded that the textured area had a static
coefficient of friction measurement of about three times the level required by industry standards.
(Id.) Ms. McNeilly’s expert, on the other hand, reports that “whatever etching was left on the
bottom of the tub was approximately 6 to 8 inches from the drain.” (DelMarva Rep. at 3)
(Document 95.) Ms. McNeilly claims to have fallen when she stepped forward, presumably close
to the drain, to adjust the water temperature. Mr. Napier stated that the anti-slip materials in some
rooms were “extremely old....The non-slip etchings became smooth as the rest of the tubs over the
years, and ineffective making the tubs really slick again when being cleaned.” (Napier Aff.) He
further stated that the new director of housekeeping hired in early 2010 ended a procedure by
which rooms were temporarily placed out of order for repairs like painting, replacing wallpaper,
and arching the tubs to remove soap scum and residue. (Id.)
Ms. McNeilly attached several accident report forms from prior slip and fall incidents in
bathrooms at the Greenbrier. The Greenbrier’s expert report references deposition testimony
from several Greenbrier employees stating that the Plaintiff’s fall was the first slip and fall in a

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bathtub that they could recall, apparently to refute the Plaintiff’s expert’s opinion that similar falls
were “not only foreseeable, but predictable and more likely than not [had] happened prior to the
plaintiff’s fall.” (Sapienza Rep. at 10.) At least one of the prior incidents involved a guest
slipping in the bathtub; others involved guests slipping on the tile floor after exiting the
bathtub/shower enclosure.

(See, e.g., Nuemayer Accident Report; White Accident Report)

(Document 155-1.)
Finally, Ms. McNeilly’s expert produced a report in which he offers various opinions
regarding the liability of the Greenbrier. The Greenbrier challenges the lack of supporting
findings in the expert report, both in its motion for summary judgment and in a motion in limine.2
The Court has reviewed the expert report carefully during its consideration of the motion for
summary judgment and finds it to be largely speculative and conclusory in nature. Much of the
analysis speaks to hotels in general, rather than the conditions at the Greenbrier. Based on the
Court’s review, the only relevant and admissible evidence that is not either generalized or entirely
speculative is a statement that Mr. DelMarva, Plaintiff’s expert, “observed the tub in the plaintiff’s
room and observed that whatever etching was left on the bottom of the tub was approximately 6 to
8 inches from the drain leaving enough area unprotected and increasing the foreseeability of a slip
and fall.” (DelMarva Rep. at 3.) The Court has considered only expert opinions based on
evidence relevant to this case in deciding this motion for summary judgment.

II.

STANDARD OF REVIEW

The well-established standard in consideration of a motion for summary judgment is that
“[t]he court shall grant summary judgment if the movant shows that there is no genuine dispute as
2 The Court will rule on all motions in limine from the bench prior to trial.

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to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P.
56(a)–(c); see also Hunt v. Cromartie, 526 U.S. 541, 549 (1999); Celotex Corp. v. Catrett, 477
U.S. 317, 322 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986); Hoschar v.
Appalachian Power Co., 739 F.3d 163, 169 (4th Cir. 2014). A “material fact” is a fact that could
affect the outcome of the case. Anderson, 477 U.S. at 248; News & Observer Publ’g Co. v.
Raleigh-Durham Airport Auth., 597 F.3d 570, 576 (4th Cir. 2010). A “genuine issue” concerning
a material fact exists when the evidence is sufficient to allow a reasonable jury to return a verdict in
the nonmoving party’s favor. FDIC v. Cashion, 720 F.3d 169, 180 (4th Cir. 2013); News &
Observer, 597 F.3d at 576.
The moving party bears the burden of showing that there is no genuine issue of material
fact, and that it is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a); Celotex Corp., 477
U.S. at 322–23. When determining whether summary judgment is appropriate, a court must view
all of the factual evidence, and any reasonable inferences to be drawn therefrom, in the light most
favorable to the nonmoving party. Hoschar, 739 F.3d at 169.

However, the non-moving party

must offer some “concrete evidence from which a reasonable juror could return a verdict in his
favor.” Anderson, 477 U.S. at 256. “At the summary judgment stage, the non-moving party
must come forward with more than ‘mere speculation or the building of one inference upon
another’ to resist dismissal of the action.” Perry v. Kappos, No.11-1476, 2012 WL 2130908, at
*3 (4th Cir. June 13, 2012) (unpublished decision) (quoting Beale v. Hardy, 769 F.2d 213, 214 (4th
Cir. 1985)). In considering a motion for summary judgment, the court will not “weigh the
evidence and determine the truth of the matter,” Anderson, 477 U.S. at 249, nor will it make
determinations of credibility. N. Am. Precast, Inc. v. Gen. Cas. Co. of Wis., 2008 WL 906334, *3

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(S.D.W. Va. Mar. 31, 2008) (Copenhaver, J.) (citing Sosebee v. Murphy, 797 F.2d 179, 182 (4th
Cir.1986)). If disputes over a material fact exist that “can be resolved only by a finder of fact
because they may reasonably be resolved in favor of either party,” summary judgment is
inappropriate. Anderson, 477 U.S. at 250. If, however, the nonmoving party “fails to make a
showing sufficient to establish the existence of an element essential to that party’s case,” then
summary judgment should be granted because “a complete failure of proof concerning an essential
element . . . necessarily renders all other facts immaterial.” Celotex, 477 U.S. at 322–23.
Courts are to hold pro se pleadings to a less stringent standard than those drafted by
attorneys. Haines v. Kerner, 404 U.S. 519, 520 (1972); Loe v. Armistead, 582 F.2d 1291, 1295
(4th Cir. 1978). However, even pro se plaintiffs must “set forth facts sufficient to withstand
summary judgment.”

Symeonidis v. Paxton Capital Grp., Inc., 220 F. Supp. 2d 478, 480, n. 4

(D. Md. 2002).
III.

DISCUSSION

The Greenbrier moves for summary judgment, arguing that it “owed no duty to provide
additional safety features for the bathtub.” (Def. Mem. at 7.) While the Greenbrier concedes
that it “may have owed a duty to properly clean the bathtub,” it contends that “there is absolutely
no evidence to show that it breached any such duty.” (Id. at 8.) Ms. McNeilly responds that
there are genuine issues of material fact based on the evidence she has produced (Resp. at 1,
Document 154),3 and that the Greenbrier owed a duty of care to her as a hotel guest. (Mem.
Resp. at 36.) The Greenbrier replies that the Plaintiff failed to meet her burden of producing

3 As noted above, the Plaintiff provided a list of exhibits, but did not actually produce those exhibits. The Court
reviewed, and summarized in the factual background section, supra, those documents that were available from the
docket.

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sufficient evidence to make a prima facie showing of negligence. (Reply at 5.) It argues that Ms.
McNeilly “has merely made a limited number of unsubstantiated and mostly erroneous factual
assertions without any proper citation to affidavits, depositions, or other materials in the record.”
(Id.) Further, the Greenbrier argues, the facts asserted by Ms. McNeilly “do not prove or
sufficiently tend to prove that Plaintiff’s alleged injuries proximately resulted from any negligence
of Defendant.” (Id.)
The basic elements of a negligence claim are duty, breach of that duty, causation, and
damages. “In order to establish a negligence claim in West Virginia, ‘[a] plaintiff must prove by
a preponderance of the evidence that the defendant owed a legal duty to the plaintiff and that by
breaching that duty the defendant proximately caused the injuries of the plaintiff.’” Cline v.
7-Eleven, Inc., 2012 WL 5471761 (N.D.W. Va. Nov. 9, 2012) (citing Neely v. Belk, Inc., 668
S.E.2d 189, 197 (W.Va.2008)). In determining whether a duty exists, “[t]he ultimate test…is
found in the foreseeability that harm may result.” Syl. pt. 3, Hersh v. E-T Enterprises, Ltd. P'ship,
752 S.E.2d 336, 338 (W. Va. 2013) (explaining that the test is whether “the ordinary man in the
defendant’s position, knowing what he knew or should have known, [would] anticipate that harm
of the general nature of that suffered was likely to result”). Businesses and landowners will not be
found liable in negligence unless they “breach their duty of reasonable care under the
circumstances.” Crum v. Equity Inns, Inc., 685 S.E.2d 219, 226 (W.Va. 2009). “[A] plaintiff
must show that a defendant has been guilty of some act or omission in violation of a duty owed to
the plaintiff” to establish a prima facie case of negligence. Id. Further, the Supreme Court of
Appeals of West Virginia noted that:
In determining whether a defendant in a premises liability case met
his or her burden of reasonable care under the circumstances to all
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non-trespassing entrants, the trier of fact must consider (1) the
foreseeability that an injury might occur; (2) the severity of injury;
(3) the time, manner and circumstances under which the injured
party entered the premises; (4) the normal or expected use made of
the premises; and (5) the magnitude of the burden placed upon the
defendant to guard against injury.
Syl. pt. 4, Hersh, 752 S.E.2d at 338 (citing Syl. pt. 6, Mallet v. Pickens, 522 S.E.2d 436 (W. Va.
1999).
As the Greenbrier notes, the Supreme Court of Appeals of West Virginia does not appear to
have considered a factually analogous case raising questions regarding the specific duties owed to
hotel guests with respect to bathroom safety features. (Def. Mem. at 11, n. 3.) Other states have
come to differing conclusions in similar cases.4 In Jones v. Abner, cited by the Greenbrier, the
Kentucky Court of Appeals held that a plaintiff failed to present sufficient evidence of the breach
of a duty when she slipped in a bathtub that had been cleaned the day before, had non-slip strips of
debated size and age, and lacked a safety rail. 335 S.W.3d 471, 473–476 (2011). The court
found that the plaintiff’s allegations regarding cleaning methods and the adequacy of the anti-slip
strips were speculative and unsupported by the evidence. Id. at 475–76. In addition, that court
relied in part on the open and obvious nature of the hazard, of which the plaintiff, who had
previously showered without incident, should have been aware. 5 Id. at 476. In essence, the
Kentucky court required the plaintiff to produce evidence of a specific act or omission that (a)
breached the applicable standard of care and (b) caused the fall.

4 For an exhaustive overview of cases from all United States jurisdictions addressing the liability of hotel operators
for guest injuries sustained in hotel bathrooms, see Thomas R. Trenker, Annotation, Liability of Hotel or Motel
Operator for Injury of Death of Guest or Privy Resulting From Condition in Plumbing or Bathroom of Room or Suite,
93 A.L.R.3d 253 (originally published 1979). The Court has chosen two recent cases with facts analogous to the case
now before the Court to highlight the differing approaches courts have taken.
5 West Virginia recently abolished the open and obvious doctrine, holding that a plaintiff’s failure to exercise
reasonable care in the face of an obvious hazard goes to the fact-finder’s evaluation of comparative negligence. See
Hersh v. E-T Enterprises, Ltd. Partnership, 752 S.E.2d 336, 339 (W. Va. 2013).

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The Supreme Court of North Dakota came to an opposite conclusion in Wotzka v.
Minndakota Ltd. Partnership. 831 N.W.2d 722 (N.D. 2013). In that case, the plaintiff claimed
that a hotel “maintained a dangerous condition on its premises by failing to equip the shower with
a non-skid strip, a bathmat, or a handrail at the shower level” after he slipped and fell out of the
shower. Id. at 724. The parties were in essential agreement that it was foreseeable that a bathtub
could be slippery and dangerous, and that the danger was open and obvious. Id. at 729. The
court concluded summary judgment was inappropriate because “reasoning minds could reach
differing conclusions as to whether Radisson Hotel anticipated the harm and failed to maintain the
premises in a reasonable safe manner.” Id. The North Dakota court, unlike the Kentucky court,
permitted a jury to hear the list of potential precautions the hotel could have but did not take, and
evaluate whether the hotel met the reasonableness standard. This Court finds the approach taken
by the North Dakota court to be more in keeping with the law and precedent regarding negligence
in West Virginia.
A careful review of Ms. McNeilly’s response to the motion for summary judgment, and of
the available documents that she referenced, reveals evidence of several facts that allegedly
contributed to or could have prevented her fall. There was no bathmat supplied in the bathroom;
the slip-resistant surface on the bathtub was worn and ended about six inches from the tub drain;
and the metal grab bar lacked a slip-resistant surface. She makes additional allegations regarding
the cleaning methods and the training and supervision of housekeepers. Ms. McNeilly testified
that she looked in the bathtub after she returned from the emergency room and believes she
observed residue, which she attributes to cleaning chemicals that were not fully rinsed.

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The Greenbrier frames the issue in this case as turning on whether it owed a duty to supply
a bathmat, install rubber strips beyond the industry-compliant anti-slip surface, warn of the
slippery tub/shower, or treat the surface of the bathtub in some manner. However, those specific
proposed changes to the Greenbrier’s bathroom relate to the element of breach, rather than the
element of duty. As a matter of law, the Greenbrier, like all hotels, owes a duty of reasonable care
to its patrons, including the duty to provide reasonably safe premises. Whether the measures
taken by the Greenbrier suffice to meet the reasonable care standard is a question for the jury and
cannot be decided by this Court at this stage. See, e.g., Bradley v. Sugarwood, Inc., 260 S.E.2d
839, 840 (W. Va. 1979) (explaining that questions of negligence are for the jury even if there is no
factual dispute, if different conclusions could be drawn from the facts). Though the Greenbrier’s
expert found the bathtub to be compliant with industry standards, meeting industry standards is not
dispositive of the issue of reasonable care in a negligence suit. Further, though much of Ms.
McNeilly’s evidence related to cleaning methodology is mere speculation,6 viewing the evidence
in the light most favorable to her, a jury could credit her statement that she found residue of
cleaning supplies in the bathtub and find that such residue contributed to her fall. As set forth in
Hersh, the jury, as fact-finder, will be responsible for assessing the factors related to the burden of
reasonable care. The Court finds that Ms. McNeilly has referenced sufficient evidence to create a
genuine issue of material fact with respect to whether the Greenbrier exercised reasonable care.
Whether a hotel operator exercising reasonable care, under the circumstances presented here,
would have taken additional precautions to prevent falls in the bathtub is a matter for the jury’s
determination.
6 For example, Ms. McNeilly’s evidence that some housekeepers used unapproved cleaning products is not relevant
to this case because she has no evidence that such cleaning supplies were used in her room or that the unapproved
cleaning supplies contributed to her fall.

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CONCLUSION
Wherefore, after careful consideration and for the reasons stated herein, the Court does
hereby ORDER that the Defendant Greenbrier Hotel Corporation’s Motion for Summary
Judgment (Document 106) be DENIED.
The Court DIRECTS the Clerk to send a copy of this Order to counsel of record and to any
unrepresented party.
ENTER:

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April 25, 2014