Opinion
CIVIL ACTION FILE NO. 1:19-cv-2743-TCB
2021-08-05
Ansuya Dhruvkumar PANDYA, individually, and Jagriti A. Vyas, as administrator of the estate of Dhruvkumar K. Pandya, Plaintiffs, v. MARRIOTT HOTEL SERVICES, INC., Defendant.
Lanier John Edwards, Joseph, Aleem & Slowik, LLC, Tarek Abdel-Aleem, Yussuf Abdel-Aleem, The Aleem Law Firm, Stella Adhisurya, Atlanta, GA, Edward Molinary, The Molinary Law Firm, Lebanon, GA, for Plaintiff Ansuya Dhruvkumar Pandya. Lanier John Edwards, Joseph, Aleem & Slowik, LLC, Tarek Abdel-Aleem, The Aleem Law Firm, Stella Adhisurya, Atlanta, GA, Edward Molinary, The Molinary Law Firm, Lebanon, GA, for Plaintiff Jaqriti A. Vyas. Cameron A. Mobley, Jeffery Randolph Saxby, Hall Booth Smith, P.C., Atlanta, GA, for Defendant.
Lanier John Edwards, Joseph, Aleem & Slowik, LLC, Tarek Abdel-Aleem, Yussuf Abdel-Aleem, The Aleem Law Firm, Stella Adhisurya, Atlanta, GA, Edward Molinary, The Molinary Law Firm, Lebanon, GA, for Plaintiff Ansuya Dhruvkumar Pandya.
Lanier John Edwards, Joseph, Aleem & Slowik, LLC, Tarek Abdel-Aleem, The Aleem Law Firm, Stella Adhisurya, Atlanta, GA, Edward Molinary, The Molinary Law Firm, Lebanon, GA, for Plaintiff Jaqriti A. Vyas.
Cameron A. Mobley, Jeffery Randolph Saxby, Hall Booth Smith, P.C., Atlanta, GA, for Defendant.
ORDER
Timothy C. Batten, Sr., Chief United States District Judge
This case comes before the Court on Plaintiffs' renewed motion [112] for spoliation of evidence sanctions and motion [122] to strike Defendant Marriott Hotel Services, Inc.'s rebuttal expert.
Also before the Court are Marriott's motion [109] for summary judgment, motion [103] in limine to preclude reference to the decedent's alleged wrongful death, motion [104] in limine to preclude reference to overwritten video footage, and motions [105, 106] to strike Plaintiffs' witnesses Vin Patel and Harish Pattni.
I. Background
This premises liability action arises out of a fall that occurred in the lobby of the Atlanta Marriott Alpharetta Hotel.
On the evening of December 9, 2018, Dhruvkumar K. Pandya attended a wedding reception at the Marriott hotel with his wife, Plaintiff Ansuya Pandya; daughter, Dr. Arati Pandya; and son, Dr. Rajiv Pandya.
Because it was raining "pretty heavily" that evening, Rajiv Pandya dropped off Mr. Pandya and Arati Pandya under the covered front entrance of the hotel. [109-2] at 13:11. According to Arati, the ground was slippery from the rain when the family got out of the car.
Upon exiting the car, Arati had her father sit down on the seat of his rollator walker, as was their habit when the distance was great or the weather was poor. Below are photos of the rollator walker:
The approach to the lobby entrance is covered by a fifty-to sixty-foot-long porte cochere. Mr. Pandya was sitting on the walker facing his daughter as she rolled him backwards under the porte cochere towards the hotel door.
At the threshold of the hotel lobby, as Mr. Pandya passed through the swinging doors of the accessible entrance, the walker slipped and tipped over. Mr. Pandya fell backwards out of it and hit the back of his head and his upper back on the lobby floor.
Arati Pandya testifies that no Marriott employee was around when the fall occurred. Carlos Cruz, the front desk guest expert on the evening of December 9, did not observe Mr. Pandya's fall but came from behind the lobby desk to investigate the crowd that had gathered. He saw members of the crowd tending to Mr. Pandya, and someone informed him that Mr. Pandya had fallen. Cruz asked whether Mr. Pandya needed medical attention but was told by a woman he believed to be one of Mr. Pandya's family members that she was a doctor and not to worry.
After her father's fall, Arati Pandya noticed usual amounts of water on the hotel lobby floor just past the threshold. Rajiv Pandya testifies that the floors of the doorway and lobby were slippery.
Cruz, on the other hand, testifies that he did not see any water accumulated on the floor in the area near the front door. He further testifies that hotel staff routinely clean up water any time they notice it, pay attention to the presence of water on floors when it is raining, and use towels to dry up any spills or water.
When he returned from parking the car, Rajiv Pandya examined his father's medical condition and decided not to take him to the emergency room. Instead, the family helped Mr. Pandya into a wheelchair, and they continued to the wedding reception.
At some point during the evening, Mr. Pandya called another daughter, Plaintiff Jagriti Vyas, and told her that he had fallen hard and was in terrible pain. He also informed her that the floor was wet and slippery. Subsequent MRI scans revealed an acute fracture of Mr. Pandya's T-4 vertebra.
On May 20, 2019, Plaintiffs Ansuya Pandya and Jagriti Vyas filed this action in the Superior Court of Fulton County alleging negligence, wrongful death, and loss of consortium. The complaint contends that Marriott was negligent in failing to keep the hotel entrance dry or otherwise keep the premises reasonably safe. Marriott timely removed the case to this Court.
On January 5, 2021, the Court granted Marriott's motion for partial summary judgment as to Plaintiffs' wrongful death claim and its corresponding claim for damages. Marriott now moves for summary judgment as to all remaining claims.
II. Legal Standard
Summary judgment is appropriate when "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. 56(a). There is a "genuine" dispute as to a material fact if "the evidence is such that a reasonable jury could return a verdict for the nonmoving party." FindWhat Inv. Grp. v. FindWhat.com , 658 F.3d 1282, 1307 (11th Cir. 2011) (quoting Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) ). In making this determination, "a court may not weigh conflicting evidence or make credibility determinations of its own." Id. Instead, the court must "view all of the evidence in the light most favorable to the nonmoving party and draw all reasonable inferences in that party's favor." Id.
"The moving party bears the initial burden of demonstrating the absence of a genuine dispute of material fact." Id. (citing Celotex Corp. v. Catrett , 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) ). If the nonmoving party would have the burden of proof at trial, there are two ways for the moving party to satisfy this initial burden. United States v. Four Parcels of Real Prop. , 941 F.2d 1428, 1437–38 (11th Cir. 1991). The first is to produce "affirmative evidence demonstrating that the nonmoving party will be unable to prove its case at trial." Id. at 1438 (citing Celotex Corp. , 477 U.S. at 331, 106 S.Ct. 2548 ). The second is to show that "there is an absence of evidence to support the nonmoving party's case." Id. (quoting Celotex Corp. , 477 U.S. at 324, 106 S.Ct. 2548 ).
If the moving party satisfies its burden by either method, the burden shifts to the nonmoving party to show that a genuine issue remains for trial. Id. At this point, the nonmoving party must " ‘go beyond the pleadings,’ and by its own affidavits, or by ‘depositions, answers to interrogatories, and admissions on file,’ designate specific facts showing that there is a genuine issue for trial." Jeffery v. Sarasota White Sox, Inc. , 64 F.3d 590, 593–94 (11th Cir. 1995) (quoting Celotex Corp. , 477 U.S. at 324, 106 S.Ct. 2548 ).
III. Discussion
The Court will first consider Plaintiffs' motion for sanctions and motion to strike Marriott's rebuttal expert before turning to Marriott's motion for summary judgment.
A. Plaintiffs' Renewed Motion for Spoliation Sanctions
Plaintiffs once again raise the issue of overwritten video footage from the date of the December 9, 2018 incident.
Marriott's incident report, dated December 11, 2018, mentions that cameras were reviewed to determine which employee assisted Mr. Pandya after his fall. Based on the report, Plaintiffs requested the video from Marriott, but Marriott responded that it does not have any video.
On September 25, 2020, Plaintiffs' counsel contacted the Court seeking spoliation of evidence sanctions against Marriott for knowingly and purposely deleting video surveillance footage of the fall. Plaintiffs requested a sanction of default or an adverse-inference jury instruction.
In response, Marriott explained that the security footage from the night in question was automatically overwritten after thirty days in the ordinary course of business. It was not downloaded or preserved because there was no pre-suit demand or request for preservation of evidence, and the lawsuit was not commenced until over five months after the incident. Marriott further argued that there is no evidence of what the video may have captured of the fall, how the video could have differed from the testimony of Plaintiffs' eyewitnesses, or intentional destruction of evidence.
Marriott also provided the company's written policy regarding digital video recorder storage, which confirms that the Alpharetta Marriott's system was set up with a thirty-day storage timeframe. Based on the foregoing, the Court denied the request for sanctions.
Once again, Plaintiffs ask the Court for a sanction of default or an adverse-inference jury instruction based on the overwritten video footage. They insist that Marriott was on notice of potential litigation and should have preserved the video because on December 14, 2018, a claims adjuster for the hotel interviewed Arati Pandya regarding the incident, and Marriott initially claimed that the interview transcript was entitled to work product protection because it was created in anticipation of litigation.
Marriott has since produced the interview transcript.
"Spoliation is the destruction or significant alteration of evidence, or the failure to preserve property for another's use as evidence in pending or reasonably foreseeable litigation." In re Delta/AirTran Baggage Fee Antitrust Litig. , 770 F. Supp. 2d 1299, 1305 (N.D. Ga. 2011) (quoting Graff v. Baja Marine Corp. , 310 F. App'x 298, 301 (11th Cir. 2009) ).
"[F]ederal law governs the imposition of spoliation sanctions." Tesoriero v. Carnival Corp. , 965 F.3d 1170, 1184 (11th Cir. 2020) (quoting Flury v. Daimler Chrysler Corp. , 427 F.3d 939, 944 (11th Cir. 2005) ). However, courts in this district borrow a multi-factor test from Georgia spoliation law to determine whether spoliation sanctions are warranted. Flury , 427 F.3d at 944–45. The relevant factors include (1) prejudice to the non-spoiling party as a result of the destruction of evidence; (2) whether the prejudice can be cured; (3) the practical importance of the evidence; (4) whether the spoiling party acted in good or bad faith; and (5) the potential for abuse if sanctions are not imposed. Id. at 945 ; see also Tesoriero , 965 F.3d at 1184 (quoting ML Healthcare Servs., LLC v. Publix Super Mkts., Inc. , 881 F.3d 1293, 1307 (11th Cir. 2018) ).
Further, Rule 37 of the Federal Rules of Civil Procedure addresses the spoliation of electronically stored information. See FED. R. CIV. P. 37(e). Rule 37(e) provides,
If electronically stored information that should have been preserved in the anticipation or conduct of litigation is lost because a party failed to take reasonable steps to preserve it, and it cannot be restored or replaced through additional discovery, the court:
(1) upon finding prejudice to another party from loss of the information, may order measures no greater than necessary to cure the prejudice; or
(2) only upon finding that the party acted with the intent to deprive another party of the information's use in the litigation may:
(A) presume that the lost information was unfavorable to the party;
(B) instruct the jury that it may or must presume the information was unfavorable to the party; or
(C) dismiss the action or enter a default judgment.
Plaintiffs bear the burden of proof of the issue of spoliation and its legal elements. In re Delta/AirTran , 770 F. Supp. 2d at 1308 (citing Eli Lilly & Co. v. Air Express Int'l USA, Inc. , 615 F.3d 1305, 1318 (11th Cir. 2010) ).
The Eleventh Circuit has not yet determined whether the multi-factor Flury test is still applicable when a party seeks sanctions based on the spoliation of electronically stored evidence. ML Healthcare Servs., LLC , 881 F.3d at 1308. However, Plaintiffs' motion for sanctions fails under either test because they have not shown evidence of bad faith on the part of Marriott.
Under the Flury test, "[s]poliation sanctions—and in particular adverse inferences—cannot be imposed for negligently losing or destroying evidence." Tesoriero , 965 F.3d at 1184. Instead, "an adverse inference is drawn from a party's failure to preserve evidence only when the absence of that evidence is predicated on bad faith." Id. (quoting Bashir v. Amtrak , 119 F.3d 929, 931 (11th Cir. 1997) ).
To find bad faith, the Court is not required to find malice. Flury , 427 F.3d at 946. However, it must find more than mere negligence, "which is insufficient to support spoliation sanctions under the law of this circuit." In re Delta/AirTran , 770 F. Supp. 2d at 1313 (citations omitted). Bad faith "generally means destruction for the purpose of hiding adverse evidence." Tesoriero , 965 F.3d at 1184 (quoting Guzman v. Jones , 804 F.3d 707, 713 (5th Cir. 2015) ); see also Mann v. Taser Int'l, Inc. , 588 F.3d 1291, 1310 (11th Cir. 2009).
Likewise, to obtain an adverse inference instruction or a default judgment sanction under Rule 37(e), the court must find "that the spoliating party ‘acted with the intent to deprive another party of the information's use in the litigation.’ " ML Healthcare Servs., LLC , 881 F.3d at 1308 (quoting FED. R. CIV. P. 37(e)(2) ).
Here, there is no evidence of bad faith. First, "there is no indication that [Marriott] destroyed the evidence in a manner inconsistent with its normal video-retention policies" or purposely lost or destroyed the video. See ML Healthcare Servs., LLC , 881 F.3d at 1308 ; see also Tesoriero , 965 F.3d at 1185. Plaintiffs did not file a pre-suit demand or request that the video be preserved prior to its routine erasure. And Plaintiffs have not shown that Marriott acted with the "intent to deprive" them of the use of the video. FED. R. CIV. P. 37(e)(2).
The claims adjuster's interview of Arati Pandya and Marriott's after-the-fact classification of the interview as work product do not change this finding.
Plaintiffs have also failed to carry their burden of showing that the video would have resolved a crucial issue in the case. Both parties have stipulated that Mr. Pandya's rollator slipped and tipped over, causing him to fall. Moreover, as the Court will find, Plaintiff's claims fail as a matter of law for reasons independent of what any video evidence might show.
Accordingly, the Court will deny Plaintiffs' renewed motion for spoliation sanctions.
B. Plaintiffs' Motion to Strike Marriott's Rebuttal Expert
Per the Court's scheduling orders, Marriott had until December 15, 2020 to complete expert discovery and December 30 to complete rebuttal expert discovery. See [73, 86]. On December 21, Marriott disclosed its rebuttal expert witness Michael Dickinson, who submitted his expert report on December 24. Plaintiffs have moved to strike Dickinson, arguing that his disclosure was untimely because he is not a rebuttal expert but rather an initial expert.
Plaintiffs previously sought to exclude Dickinson on the basis that his disclosure violated the deadline for rebuttal expert discovery in Rule 26(a)(2)(D)(ii) of the Federal Rules of Civil Procedure. The Court denied the request. In this first request to strike Dickinson, Plaintiffs did not argue that his report was not proper rebuttal evidence.
Marriott responds that it retained Dickinson to rebut the testimony of Plaintiffs' registered architect, Peter Combs.
When Plaintiffs disclosed Combs as an expert, they indicated that his testimony would concern "the architectural design and defects of Defendant's hotel lobby area, car port area, and all other relevant matters which contributed to the decedent's slip and fall." [69] at 11. In his expert report, produced November 10, Combs found that the height of the door threshold and doorstop violate the Americans with Disability's Act's ("ADA") standard for a maximum allowable threshold height. He concluded that "with these two elevation changes eliminated[,] Mr. Pandya's walker would not have encountered a code violating elevation change and Mr. Pandya would not have been dumped from his seat and sustained injuries." [126-2] at 10.
Combs's deposition testimony is largely consistent with his expert report. He testifies based on his experience and knowledge as an architect that it seems highly probable that the door threshold caused Mr. Pandya's rollator to tip over. However, he admits that he did not conduct tests with a rollator to determine whether the threshold's noncompliance could have or did cause the fall, explaining that it would be outside his architectural expertise.
Following Comb's deposition, Marriott retained Dickinson, a professional engineer, to test Combs's expert opinion that Mr. Pandya's rollator would not have tipped over but for the non-compliant threshold and doorstop. When Marriott disclosed Dickinson, it indicated that he "may proffer rebuttal testimony and opinions regarding the likelihood of the rollator tipping/slipping/falling upon contacting the subject doorway threshold and/or a threshold that complied with the codes, rules and/or regulations relied upon and referenced by Plaintiffs' expert Peter Combs." [95-1] at 1.
Dickinson conducted a test in which he pulled a weighted rollator walker over a pair of ADA-compliant thresholds and observed it tip over each time. In his expert report, he concluded in part that (1) Mr. Pandya's fall "more-likely-than-not would still have occurred, even if the hotel doorway threshold was in full compliance with the ADA geometric criteria"; and (2) Mr. Pandya's fall "occurred as a result of the improper use of the rollator." [122-2] at 13.
Dickinson also concluded that because Combs "neither performed analyses nor performed testing of rollators passing over ADA compliant thresholds, he does not have the necessary basis to support his opinion that, had the subject threshold been fully ADA complaint, the accident would not have occurred." Id.
Plaintiffs contend that Dickinson's test goes beyond the scope of Combs's expert report and therefore cannot constitute proper rebuttal evidence. Marriott responds that Dickinson's test rebuts Combs's theory as to the cause of Mr. Pandya's fall, a new theory of liability not previously disclosed by Plaintiffs. Plaintiffs offer no reply.
Rule 26(a)(2)(D)(ii) permits a party to file a rebuttal expert report "if the evidence is intended solely to contradict or rebut evidence on the same subject matter identified by another party." "Courts are empowered to exercise their discretion and judgment in determining if a rebuttal expert report addresses the same subject matter ...." ITT Corp. v. Xylem Grp., LLC , No. 1:11-cv-3669-WSD, 2012 WL 12871632, at *3 (N.D. Ga. Oct. 15, 2012) (internal citations omitted); see also United States ex rel. Raven v. Ga. Cancer Specialists I, PC , No. 1:11-cv-994-CAP, 2018 WL 11220441, at *5 (N.D. Ga. July 3, 2018).
Courts may disallow the use of a rebuttal report to introduce evidence that is more properly a part of the party's case in chief. ITT Corp. , 2012 WL 12871632, at *4 (citations omitted). However, "the fact that testimony would have been more proper for the case-in-chief does not preclude the testimony if it is proper both in the case-in-chief and in rebuttal." Id. (quoting Donell v. Fid. Nat'l Title Agency of Nev. , No. 2:07-cv-00001-KJD-PAL, 2012 WL 170990, at *3–5 (D. Nev. Jan. 20, 2012) ).
Despite employing different methodology, Dickinson's test and his conclusions derived therefrom are of the same subject matter as Combs's expert report, and they challenge Combs's opinions and conclusions. See United States ex rel. Raven , 2018 WL 11220441, at *5 (finding that the rebuttal expert was, in fact, a rebuttal expert because he offered a different methodology to contradict the opposing expert's conclusions). Further, Dickinson reviewed Combs's report and deposition in preparing his report. Exercising its discretion and judgment, the Court finds that Dickinson's report is proper rebuttal evidence.
For the first eighteen months of this litigation, Plaintiffs' theory of liability was that Marriott negligently allowed water to accumulate at the hotel's entrance, which caused Mr. Pandya's rollator walker to slip. The complaint avers that "the walker wheels slipped on water trailing from the outside to the inside of the hotel entrance and the walker fell backwards." [1-1] at 5. Plaintiffs reasserted this theory of the case in their fifth amended disclosures (filed December 31, 2020) and again in their proposed pretrial order (filed February 4, 2021). Until Combs's November 10 expert report, nothing in Plaintiffs' discovery or prior filings had indicated that a defect in the doorway threshold caused Mr. Pandya's fall.
Thus, the Court does not agree that Marriott ought to have conducted Dickinson's tests during its case in chief. Even if that were not the case, however, the Court finds that Dickinson's opinions are also proper for rebuttal. See ITT Corp. , 2012 WL 12871632, at *5. Thus, Marriott's disclosure of Dickinson was timely, and the motion to strike will be denied.
C. Marriott's Motion for Summary Judgment
Under Georgia law,
Where an owner or occupier of land, by express or implied invitation, induces or leads others to come upon his premises for any lawful purpose, he is liable in damages to such persons for injuries caused by his failure to exercise ordinary care in keeping the premises and approaches safe.
O.C.G.A. § 51-3-1. Therefore, an invitee who is injured on an owner's premises may recover under a theory of premises liability if he can show that his injury was caused by the owner's breach of that duty, i.e., if the owner's negligence in failing to maintain a safe premises is shown to have caused the injury.
However, proof of a fall or injury—without more—does not give rise to premises liability. See River Place at Port Royal Condo. Ass'n v. Sapp , 358 Ga.App. 632, 856 S.E.2d 28, 32 (2021) (quoting Williams v. Johnson , 344 Ga.App. 311, 809 S.E.2d 839, 841–42 (2018) ); All Am. Quality Foods, Inc. v. Smith , 340 Ga.App. 393, 797 S.E.2d 259, 261 (2017) (quoting Ingles Mkts., Inc. v. Carroll , 329 Ga.App. 365, 765 S.E.2d 45, 47 (2014) ).
Instead, "to recover on a premises liability claim, a plaintiff must show (1) that the defendant had actual or constructive knowledge of the hazard; and (2) that the plaintiff lacked knowledge of the hazard despite the exercise of ordinary care due to actions or conditions within the control of the owner/occupier." D'Elia v. Phillips Edison & Co. , 354 Ga.App. 696, 839 S.E.2d 721, 723 (2020) (quoting Cherokee Main St., LLC v. Ragan , 345 Ga.App. 405, 813 S.E.2d 397, 407 (2018) ). "The true basis of a proprietor's liability for personal injury to an invitee is the proprietor's superior knowledge of a condition that may expose the invitees to an unreasonable risk of harm." Sunlink Health Sys., Inc. v. Pettigrew , 286 Ga.App. 339, 649 S.E.2d 532, 534 (2007) (quoting Emory Univ. v. Smith , 260 Ga.App. 900, 581 S.E.2d 405, 406 (2003) ).
At the summary judgment stage, the plaintiff has the burden of producing evidence that the defendant had actual or constructive knowledge of the hazard. Am. Multi-Cinema, Inc. v. Brown , 285 Ga. 442, 679 S.E.2d 25, 28 (2009) (citing Robinson v. Kroger Co. , 268 Ga. 735, 493 S.E.2d 403, 413–14 (1997) ). As to the second prong, "the plaintiff's evidentiary proof ... is not shouldered until the defendant establishes negligence on the part of the plaintiff." Walmart Stores E. L.P. v. Benson , 343 Ga.App. 74, 806 S.E.2d 25, 28 (2017) (quoting Robinson v. Powell , 347 N.C. 270, 493 S.E.2d 747, 748 (1997) ). If the defendant succeeds, the burden shifts back to the plaintiff to produce evidence creating a genuine dispute of fact as to his negligence or tending to show that his negligence was due to acts or conditions within the defendant's control. Am. Multi-Cinema, Inc. , 679 S.E.2d at 28 (citing Robinson , 493 S.E.2d at 414 ). Marriott argues that it is entitled to summary judgment because Plaintiffs have not presented sufficient evidence that (1) Marriott had superior knowledge of any hazards; or (2) Marriott's alleged breach caused Mr. Pandya's injuries. Marriott also contends that Mr. Pandya did not exercise ordinary care for his own safety.
1. Whether Marriott Had Superior Knowledge
If Marriott had no actual or constructive knowledge of a hazardous condition, it is entitled to summary judgment. Drew v. Istar Fin., Inc. , 291 Ga.App. 323, 661 S.E.2d 686, 689 (2008) (citing Robinson , 268 Ga. at 747, 493 S.E.2d at 406–07 ).
Plaintiffs do not contend that Marriott had actual knowledge of the wet conditions. The analysis will therefore focus on whether Marriott had constructive knowledge of the alleged hazard.
Under Georgia law, a plaintiff may demonstrate a proprietor's constructive knowledge of a hazard by showing "evidence that the hazardous condition lasted so long that it would have been discovered and removed if the proprietor had exercised reasonable care in inspecting the premises." River Place , 856 S.E.2d at 33 (quoting All Am. Quality Foods, Inc. , 797 S.E.2d at 262 ).
A plaintiff may also demonstrate a proprietor's constructive knowledge by providing "evidence that an employee of the defendant was in the immediate vicinity of the hazardous condition and could have easily seen and corrected the hazard." River Place , 856 S.E.2d at 33 (quoting All Am. Quality Foods, Inc. , 797 S.E.2d at 262 ). But Plaintiffs do not argue for constructive knowledge on this basis; it is Arati Pandya's testimony that no one from the Marriott was around at the time of the fall.
Georgia courts have made it clear that rainwater is not considered a hazard or dangerous condition absent any unreasonable accumulation. See., e.g., Gibson v. Consol. Credit Corp. , 110 Ga.App. 170, 138 S.E.2d 77, 82 (1964) ; Emory Univ. , 581 S.E.2d at 406 ("Under Georgia law, a slippery condition caused solely by rainwater is not a hazard because it presents no unreasonable risk of harm." (citation omitted)). "The risk of harm imposed by some accumulation of water on the floor of business premises during rainy days is not unusual or unreasonable in itself, but is one to which all who go out on a rainy day may be exposed and which all may expect or anticipate." Walker v. Sears Roebuck & Co. , 278 Ga.App. 677, 629 S.E.2d 561, 564 (2006) (quoting Cook v. Arrington , 183 Ga.App. 384, 358 S.E.2d 869, 871 (1987) ); see also Dickerson v. Guest Servs. Co. of Va. , 282 Ga. 771, 653 S.E.2d 699, 701 (2007).
Thus, "[s]tore proprietors are not liable to patrons who slip and fall on floors made wet by rain conditions unless there has been an unusual accumulation of water and the proprietor has failed to follow reasonable inspection and cleaning procedures." Walker , 629 S.E.2d at 564 (emphasis added) (citations omitted).
Here, Plaintiffs have not shown a disputed issue of fact as to whether there was an unusual accumulation of water. Although Arati Pandya testifies that there was an unusual amount of water inside the lobby—i.e., "more than [she] would expect in a ... hotel" even in rainy weather, [109-2] at 20:1—a proprietor "cannot prevent some water and mud being brought into an entranceway on a rainy day." Gibson , 138 S.E.2d at 81. Arati testifies that she knew that it was raining and that the ground outside was wet and slippery. She also testifies that she is aware that people can track water into a lobby entrance on rainy days and that she did not notice water until after her father's fall. Plaintiffs have pointed to no evidence that the water was anything other than rainwater.
Rajiv Pandya testifies that the lobby was "slippery," but he cannot say whether there was any pool of water. [120-5] at 21:16–18. And Mr. Pandya's wife had just traversed the area without incident. See, e.g., Diaz v. Metro. Atlanta Rapid Transit Auth. , 341 Ga.App. 1, 798 S.E.2d 731, 732–33 (2017) (holding that the defendant was entitled to summary judgment where "[t]he facts support the conclusion that [the plaintiff] slipped and fell in rainwater ... in a location where she should have reasonably expected to find rainwater present"; the plaintiff "produced no evidence that the accumulation of rainwater in that area was unusual, abnormal, or unexpected given the location of the walkway and the weather conditions"; and "[t]he record showed that no slip and fall of any kind had occurred in [that area] prior to [the plaintiff's] slip and fall").
Neither Arati nor Rajiv Pandya can describe the amount of water present, and when Cruz inspected the floor he did not see any water. See Walker , 629 S.E.2d at 564–65 ; Womack-Sang v. Publix Super Mkts., Inc. , 1:12-cv-4189-ODE, 2013 WL 12067480, at *5 (N.D. Ga. Nov. 1, 2013) ("Georgia courts have consistently granted summary judgment to the defendant where the plaintiff was unable to describe the amount of water on the floor and the defendant's employees who inspected the area following the fall did not see any wet spots." (citations omitted)), aff'd , 556 F. App'x 912 (11th Cir. 2014) (per curiam); Drew , 661 S.E.2d at 689–90 (finding that the plaintiff failed to present evidence that a hazardous condition existed where she did not provide sufficient evidence that the puddle of rainwater in which she slipped was unusual for a rainy day).
Moreover, "[t]he fundamental basis for an owner or occupier's liability is that party's superior knowledge of the hazard encountered by the plaintiff." D'Elia , 839 S.E.2d at 723 (quoting Cherokee Main St., LLC , 345 Ga.App. at 407, 813 S.E.2d 397 ). "In other words, a plaintiff is not entitled to recovery if the undisputed evidence demonstrates that the plaintiff's knowledge of the hazard was equal to or greater than that of the defendant." Id. (quoting Cherokee Main St., LLC , 345 Ga.App. at 407, 813 S.E.2d 397 ). Marriott argues that Plaintiffs have failed to demonstrate that Mr. Pandya did not have equal knowledge. Plaintiffs offer no response.
"[P]laintiffs in ‘rainy day’ slip and fall cases ‘are charged with equal knowledge that water is apt to be found in any area frequented by people coming in from the rain outside.’ " Emory Univ. , 581 S.E.2d at 406 n.5 (quoting Mansell v. Starr Enters./Texaco, Inc. , 256 Ga.App. 257, 568 S.E.2d 145, 147 (2002) ). There is nothing to suggest that Mr. Pandya did not have the same capacity as his children to observe the heavy rain and wet conditions. Thus, Mr. Pandya is charged with equal knowledge that water was likely to be present at the lobby entrance as people moved in and out of the hotel. See also Sunlink Health Sys., Inc. , 649 S.E.2d at 534. Plaintiffs have not shown a genuine issue of material fact as to whether Marriott had knowledge of any hazard other than the rainwater of which Mr. Pandya had equal knowledge. Thus, Marriott is entitled to summary judgment as to Plaintiffs' slip-and-fall theory of recovery.
Plaintiffs rely on Dumas v. Tripps of North Carolina, Inc. , 229 Ga.App. 814, 495 S.E.2d 129 (1997), for the proposition that "the mere fact of natural accumulation does not relieve the owner of his duties to inspect." [120-9] at 8. But Plaintiffs misrepresent the court's finding in Dumas , which involved naturally occurring ice : "the accumulation of naturally occurring ice does not negate an owner's duty to exercise ordinary care in inspecting the premises in every circumstance." Dumas , 495 S.E.2d at 131. Dumas is further distinguishable because there, the court found that summary judgment was not appropriate because the plaintiff did not have knowledge of the weather conditions equal to that of the property owners. Id. ("[T]here had been no storms or precipitation and Dumas had no reason to suspect ice in the parking lot."). Here, Mr. Pandya is charged with equal knowledge of the rainy conditions.
As to Plaintiffs trip -and-fall theory, Marriott contends that Plaintiffs have not provided evidence of its superior knowledge because they have not shown that the allegedly noncompliant threshold existed on December 9, 2018 or that the hazard was not open and obvious. Plaintiffs respond that Marriott is charged with actual or constructive knowledge of the threshold's defect because it is a static condition in violation of accessibility codes.
Though Combs conducted his site inspection on November 6, 2020—nearly two years after the incident—and could not testify as to the height of the threshold at the time of Mr. Pandya's fall, evidence that the threshold failed to comply with ADA standards "constitutes some evidence from which the jury could find that the [threshold] constituted a hazardous condition." Davis v. GBR Props., Inc. , 233 Ga.App. 550, 504 S.E.2d 204, 206 (1998) (citing Dupree v. Keller Indus., Inc. , 199 Ga.App. 138, 404 S.E.2d 291, 295 (1992) ).
However, even if the threshold were a hazardous condition and Marriott had constructive knowledge of it, Plaintiffs cannot recover if it is shown that the hazard was open and obvious. D'Elia , 839 S.E.2d at 724 (quoting McLemore v. Genuine Parts Co. , 313 Ga.App. 641, 722 S.E.2d 366, 369 (2012) ); see also James v. Sirmans , 299 Ga.App. 262, 683 S.E.2d 354, 355 (2009) ("[A]n invitee ‘is not entitled to an absolutely smooth or level way of travel. It is common knowledge that small cracks, holes and uneven spots often develop in pavement; and it has been held that where there is nothing to obstruct or interfere with one's ability to see such a static defect, the owner or occupier of the premises is justified in assuming that a visitor will see it and realize the risk involved.’ " (citation omitted)).
The relevant question is whether Mr. Pandya's view of the alleged hazard was obstructed at the time he approached and was about to traverse it. D'Elia , 839 S.E.2d at 724 (quoting McLemore , 722 S.E.2d at 369 ). As will be discussed, Mr. Pandya's ability to see the threshold was obstructed (as was his daughter's). Thus, summary judgment is appropriate.
Marriott also disputes Plaintiffs' ability to assert this entirely new theory of liability at the eleventh hour, insisting that the time for amending the complaint is past. Although Plaintiffs have consistently alleged that water caused Mr. Pandya's walker to slip, both the complaint and their initial disclosures reference negligence per se as a theory of liability. See [1] ¶ 24; [100] at 2. Thus, the Court will not find that the trip-and-fall theory fails for this reason.
2. Causation
Marriott also argues that it is entitled to summary judgment because Plaintiffs have failed to provide sufficient evidence that its failure to keep its premises safe caused Mr. Pandya's injuries.
Causation is always an essential element in slip or trip and fall cases. Where the plaintiff does not know of a cause or cannot prove the cause, there can be no recovery because an essential element of negligence cannot be proven. A mere possibility of causation is not enough and when the matter remains one of pure speculation or conjecture and the
probabilities are at best evenly balanced it is appropriate for the court to grant summary judgment to the defendant.
Imperial Invs. Doraville, Inc. v. Childers , 303 Ga.App. 490, 693 S.E.2d 834, 836 (2010) (quoting Pennington v. WJL, Inc. , 263 Ga.App. 758, 589 S.E.2d 259, 261–62 (2003) ).
To establish causation, the plaintiff must introduce evidence that reasonably supports the conclusion that it is more likely than not that the defendant's conduct caused the result. Shadburn v. Whitlow , 262 Va. 597, 553 S.E.2d 765, 767 (2000) (quoting Avery v. Cleveland Ave. Motel, Inc. , 239 Ga.App. 644, 521 S.E.2d 668, 669 (1999) ). A plaintiff is not required to know what caused her fall; "she need only establish a causal connection between the condition and the injury, and this causal connection may be established from surrounding circumstances." Evans v. Mathis Funeral Home, Inc. , 996 F.2d 266, 269 (11th Cir. 1993) (citing Bramblett v. Hansel-Scales, Inc. , 200 Ga.App. 722, 409 S.E.2d 280, 281 (1991) ).
However, speculation as to what may have caused a fall is not sufficient to create a genuine issue of material fact to withstand summary judgment. Shadburn v. Whitlow , 243 Ga.App. 555, 533 S.E.2d 765, 767 (2000) (quoting Avery , 521 S.E.2d at 669 ). Rather, Plaintiffs "must produce evidence ‘of what foreign substance, condition, or hazard caused [Mr. Pandya] to slip and fall.’ " Glynn-Brunswick Mem'l Hosp. Auth. v. Benton , 303 Ga.App. 305, 693 S.E.2d 566, 568–69 (2010) (quoting Mansell , 568 S.E.2d at 146 ).
Throughout this litigation, Plaintiffs have maintained that as Mr. Pandya entered the hotel, the rollator walker wheels slipped on water. The witnesses in this case testify to the ground being wet after Mr. Pandya's fall, which Plaintiffs point to as evidence of the cause. Relying on their expert Combs, Plaintiffs now assert that the water "and/or" the threshold caused Mr. Pandya's fall. [120-9] at 12. Contrary to the theory that the walker wheels slipped on water, Combs theorizes that the threshold or doorstop "could have caused" a walker wheel to "abruptly stop." [126-2] at 10.
In asserting two different theories as to which alleged hazard (or combination thereof) caused the fall, Plaintiffs only speculate as to causation. See, e.g., Canaan Land Props., Inc. v. Herrington , 330 Ga.App. 17, 766 S.E.2d 493, 495–96 (2014) (reversing denial of summary judgment where the plaintiff admitted uncertainty as to what caused his fall); Shinn v. AMF Bowling Ctr., Inc. , No. 1:07-cv-235-WSD, 2008 WL 687324, at *4 (N.D. Ga. Mar. 11, 2008) (granting summary judgment where the plaintiff could not identify the hazard that caused him to fall). Based on the lack of evidence to establish causation, Marriott is entitled to summary judgment.
3. Mr. Pandya's Ordinary Care
Finally, Marriott contends that summary judgment is appropriate because Mr. Pandya failed to exercise ordinary care for his safety.
A " ‘plaintiff must exercise ordinary care for [his] own safety, and must by the same degree of care avoid the effect of the defendant's negligence after it becomes apparent to [him] or in the exercise of ordinary care [he] should have learned of it.’ " Brennan v. Freight Room, Inc. , 226 Ga.App. 531, 487 S.E.2d 109, 111 (1997) (quoting Alterman Foods, Inc. v. Ligon , 246 Ga. 620, 272 S.E.2d 327, 330 (1980) ). The plaintiff is required to make " ‘use of all [his] senses in a reasonable measure amounting to ordinary care in discovering and avoiding those things that might cause hurt to [him].’ " Id. (quoting Alterman Foods, Inc. , 272 S.E.2d at 330 ).
Though a plaintiff "need not be continuously scanning or checking the floor to make sure there are no hazards present," Dumas v. Big Lots Stores, Inc. , No. 1:16-cv-3313-WMR, 2019 WL 2713059, at *3 (N.D. Ga. Apr. 3, 2019) (citing Robinson , 493 S.E.2d at 410 ), courts may grant summary judgment where the evidence "plainly, palpably, and indisputably lead[s] to the conclusion that the invitee's placement of [his] foot on a site [he] had not previously inspected visually is an act which is a ‘want of such prudence as the ordinarily careful person would use in a like situation.’ " Robinson , 493 S.E.2d at 410–11 (quoting Wynne v. S. Bell Tel. & Tel. Co. , 159 Ga. 623, 126 S.E. 388, 391 (1925) ).
At the time of his fall, Mr. Pandya was using his rollator walker for seated transportation despite two different warnings on the walker cautioning against such use. Further, despite what Plaintiffs would have the Court believe, this is not a case where "[Mr. Pandya] was looking straight ahead at the time of the fall, as any ordinary prudent person would." Big Lots Stores, Inc. , 2019 WL 2713059, at *3. Instead, he was traveling backwards without looking—on uneven ground on a rainy evening—and was at least partially obstructing the view of his daughter as she pushed him. See, e.g., Becton v. Tire King of N. Columbus, Inc. , 246 Ga.App. 57, 539 S.E.2d 551, 553 (2000) (finding that the plaintiff failed to exercise the ordinary care when she walked "blindly backward"); LeCroy v. Bragg , 319 Ga.App. 884, 739 S.E.2d 1, 3–4 (2013) (finding that summary judgment was appropriate where the plaintiff was walking backward without looking where she was going when she tripped on a hazard).
That Mr. Pandya routinely used his walker in this fashion due to his health conditions does not render the behavior prudent in this case. And the record does not support Plaintiffs' contention that his use was necessary here.
It is indisputable that Mr. Pandya failed to exercise the prudence of an ordinarily careful person. Thus, Marriott is entitled to summary judgment on Plaintiffs' premises liability claim on this alternative basis.
Plaintiffs' loss of consortium, compensatory damages, and punitive damages claims are derivative of their substantive premises liability claim. Accordingly, summary judgment on these derivative claims is also appropriate.
D. Marriott's Motions in Limine and Motions to Strike
Having found that summary judgment is appropriate, the Court need not consider Marriott's motions in limine or its motions to strike Plaintiffs' witnesses Vin Patel and Harish Pattni. Thus, the motions will be denied as moot.
IV. Conclusion
For the foregoing reasons, Plaintiffs' motion [112] for spoliation sanctions and its motion [122] to strike Marriott's rebuttal expert are denied. Marriott's motion [109] for summary judgment is granted.
Marriott's motions [103, 104] in limine and motions [105, 106] to strike are denied as moot.
IT IS SO ORDERED this 5th day of August, 2021.