Opinion
16-P-158
03-07-2017
Julius J. SIMAS v. STARWOOD HOTELS & RESORTS WORLDWIDE, INC. & another.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The plaintiff's negligence claims arose out of a fall in the shower of his hotel bathroom. After a judge granted summary judgment for the defendants, the plaintiff appealed. We affirm.
Background . The plaintiff checked into the Element Hotel in Lexington in December, 2011. Four days later, he allegedly fell in the shower. In April, 2013, he filed a complaint in Superior Court alleging that the defendants were negligent by allowing "a defective soap/shampoo dispenser to exist" in the shower of his room, "leaking soap into the tub" and causing his fall.
In November, 2014, the defendants moved for summary judgment. In May, 2015, the plaintiff filed a motion to amend the complaint, which the defendants opposed. He also filed a summary judgment opposition, attaching the proposed amended complaint; the defendants moved to strike that attachment. Later that month, a judge denied the motion to amend. After a summary judgment hearing in July, 2015, a second judge allowed the defendants' motion to strike and their motion for summary judgment. After the plaintiff's motion for reconsideration was denied, he appealed.
The plaintiff's notice of appeal lists the denial of his motion for reconsideration, but on appeal he makes no argument regarding that ruling. We thus affirm the denial of the motion.
Discussion . On appeal, the plaintiff contends that the first judge abused her discretion in denying his motion to amend the complaint and that the second judge erred in allowing defendants' motion for summary judgment.
a. Motion to amend complaint . The theory of liability in the plaintiff's April, 2013, complaint was that the defective soap dispenser in the shower leaked soap and caused him to fall. The parties proceeded on this theory for more than two years, until the plaintiff moved to amend his complaint in May, 2015. The proposed amended complaint jettisoned this theory, replacing it with claims that the defendants negligently "designed, constructed and maintained a shower floor which fell below reasonable standards of slip resistance; ... failed to provide a bath mat or similar item to prevent slipping; and failed to install reasonable protection or cross rail or grab bar [that was] reasonable and in compliance with industry standards." The judge denied the motion to amend, concluding that "[a]mending the [c]omplaint to allege a new theory of [l]iability at this stage of the proceedings would unduly prejudice the [d]efendants."
The complaint also included new factual allegations, including that "while exercising," the plaintiff slipped and fell in the shower, banged his head, and blacked out.
"The decision to grant a motion to amend a complaint, while generally ‘freely given when justice so requires', Mass.R.Civ.P. 15(a), 365 Mass. 761 (1974), lies within the broad discretion of a trial judge." Murphy v. I.S.K.Con. of New England, Inc ., 409 Mass. 842, 864, cert. denied, 502 U.S. 865 (1991). "[P]rejudice to the non-moving party is the touchstone for the denial of such motions." Spillane v. Adams , 76 Mass. App. Ct. 378, 390 (2010), quoting from Hamed v. Fadili , 408 Mass. 100, 105 (1990). As the plaintiff's own brief on appeal recognizes, factors that may justify a denial include "the plaintiff's attempting to introduce a totally new theory of liability." Goulet v. Whitin Machine Works, Inc ., 399 Mass. 547, 552 (1987).
The plaintiff moved to amend the complaint more than three years and four months after his accident and more than two years after the filing of his complaint. In the interim, both the plaintiff and the defendants had answered interrogatories, and been deposed, and the defendants had served their motion for summary judgment within the previously-established deadline. The plaintiff then sought and obtained, over the defendants' objection, six months in which to find new counsel, along with a lengthy extension for discovery, and a total of six months in which to oppose summary judgment. At the end of that period, the plaintiff, through new counsel (his third), moved the amend the complaint and filed a summary judgment opposition containing only a single phrase addressing the soap dispenser issue, and otherwise relying entirely on the new theory articulated in his proposed amended complaint.
The motion to amend asserted that "[u]pon review of the discovery and pertinent case law, [counsel] in his professional experience has discovered what a more accurate basis appears for [the plaintiff's] personal injury claim." "Among the good reasons, however, for which a motion to amend may be denied are that no justification for the lateness of the motion is apparent (beyond counsel for the moving party having had a late dawning idea)...." DiVenuti v. Reardon , 37 Mass. App. Ct. 73, 77 (1994).
No other explanation for the delay was apparent here. Although the motion relied on materials assertedly showing that the defendants had reason to know of slippery conditions in their showers prior to the plaintiff's fall, those materials appeared to have been available to the plaintiff for at least a year prior to the motion. The motion also asserted that, before the plaintiff's fall, the defendants had already prepared architectural drawings for alterations to make the bathrooms compliant with the Americans with Disabilities Act (ADA), and then, a few months after the plaintiff's fall, applied for a permit to perform those alterations. But the plaintiff did not state why the drawings and permit application could not have been obtained earlier in the case.
The relevant materials consisted of an anonymous customer review of the hotel, posted on the "TripAdvisor" Internet website in November, 2010, noting a slippery shower floor in a room that (unlike the plaintiff's) had no tub; and a hotel housekeeping manual, produced in discovery in March, 2014, advising employees, to avoid slipping, to place a bathmat on the shower or bathtub floor before cleaning the shower or tub. On appeal, the plaintiff makes no argument based on these materials.
The plaintiff argued that an employee of the defendants had falsely testified at his deposition in March, 2014, that no alterations to the hotel were contemplated (but only alterations to a nearby sister hotel), leaving the plaintiff to learn of the planned alterations by other means. We read the cited deposition testimony differently, to consist of an ambiguously phrased question concerning any alterations at either of the two area hotels owned by the defendants, followed by an answer understandable as indicating, accurately, that the ADA alterations were contemplated at both hotels. Plaintiff's then-counsel did not follow up to clarify the ambiguity she had created.
Moreover, the application did not reference the bathrooms, describing the proposed work as "[l]imited scope alteration and repairs to update existing guestrooms and facilities to meet ADA guidelines." The plaintiff did not attach the drawings to the motion to amend, leaving the judge in the dark as to what alterations, if any, were proposed for the bathrooms—in particular, whether the modifications were to be made for all bathrooms in the hotel, or only some of them, and whether any modifications were planned to shower or bathtub floor surfaces to make them less slippery.
Attached to the motion was deposition testimony of one of the defendant's employees indicating that, at least at the sister hotel, bathroom alterations were contemplated in "just the ADA rooms, not the regular rooms." Plaintiff did not assert that he was staying in an "ADA room" at the time of his fall.
"[U]nexcused delay in seeking to amend is a valid basis for denial of a motion to amend." Minkina v. Frankl , 86 Mass. App. Ct. 282, 294 (2014), quoting from Mathis v. Massachusetts Elec. Co ., 409 Mass. 256, 264-265 (1991). A judge ruling on a motion to amend may also consider that a summary judgment motion is pending. See Minkina , supra at 293. Here, with the delay unexcused, and the defendants' summary judgment motion on the plaintiffs' longstanding theory having already been pending for six months, the judge did not abuse her discretion in denying the motion to amend on the ground that it would unduly prejudice the defendants.
Two months later, on the day of the summary judgment hearing before a second judge, the plaintiff filed a supplemental affidavit attaching his 2013 interrogatory responses indicating that one of his theories of liability was that "the anti-slip surface on the shower floor had become worn." But this evidence that the defendants were on notice of this theory, and thus might not have been significantly prejudiced by allowance of the motion to amend, was never brought to the attention of the first judge, who ruled on that motion. She can hardly be faulted for not considering it. Moreover, later in those same interrogatory responses, the plaintiff identified, as the sole "condition, defect, or foreign substance which allegedly caused [his] incident," "[a] leaking soap dispenser," with no mention of worn anti-slip surfaces or any other cause. The second judge, in ruling on the summary judgment motion, concluded that the interrogatory answers were "insufficient to expand the allegations set out in the [c]omplaint or to raise a dispute of fact preventing the entry of summary judgment."
b. Motion for summary judgment . The plaintiff argues that the second judge should not have ruled on the defendants' motion for summary judgment without granting the plaintiff additional time to conduct discovery pursuant to Mass.R.Civ.P. 56(f), 365 Mass. 824 (1974). But the plaintiff never filed an affidavit pursuant to that rule, a failure that "is fatal." Tetrault v. Mahoney, Hawkes & Goldings , 425 Mass. 456, 458 (1997). Instead, his summary judgment opposition only briefly alluded to that rule, and contained only a passing mention of how additional discovery into the planned ADA alterations might relate to the soap dispenser issue, unsupported by any sworn statement or persuasive explanation, see note 5, supra , of why he had not sought such discovery much earlier. The judge did not abuse his discretion by proceeding to rule on the summary judgment motion without allowing additional time for discovery.
On the merits, the judge correctly granted summary judgment on the ground that that there was no dispute that the defendants lacked knowledge and reason to know, prior to the plaintiff's fall, of any leaking soap dispensers in their showers. See Barry v. Beverly Enterprises-Massachusetts, Inc ., 418 Mass. 590, 593 (1994) ("[A] defendant who had no actual or constructive knowledge of the allegedly hazardous condition so that it could not reasonably remove, or warn the plaintiff of, the danger ... cannot be found to have violated its duty of care"). The plaintiff argues that this was error because the planned ADA alterations raised an issue of material fact about the defendants' knowledge of such a dangerous condition. But, as the judge ruled, the mere fact that ADA alterations were proposed did not demonstrate that the defendants had any knowledge of defects in the existing soap dispensers. And the plaintiff has not cited, nor has our own review uncovered, anything in the materials attached to his summary judgment opposition that gives rise to any inference of the existence of such defects, or even any indication of whether or how the alterations would have affected the soap dispensers.
At the summary judgment hearing, the plaintiff's counsel represented that the drawings showed that "they moved the soap box," but the plaintiff has not included legible copies of such drawings in the record appendix. Moreover, the judge allowed the defendants' motion to strike those materials from the plaintiff's summary judgment opposition, and the plaintiff does not challenge that ruling on appeal.
The plaintiff also argues that, even if the defendants had no notice of any defect (and thus no duty to remedy it), summary judgment was still unwarranted because the defendants had a separate "duty to warn visitors of any unreasonable dangers which the hotel owner is aware of or should have been aware of." Among the several flaws in this argument, it is sufficient to note only one: the plaintiff offered no evidence at the summary judgment stage suggesting that the defendants were, or should have been, aware that conditions in their showers posed any unreasonable danger.
The plaintiff misplaces reliance on Matouk v. Marriott Hotel Servs., Inc ., C.A. No. 11-12294-LTS (D. Mass. Nov. 21, 2013). Nothing in that decision suggests that, as matter of law, all hotel showers pose unreasonable dangers in the form of slippery floors.
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Judgment affirmed.
Order denying motion for reconsideration affirmed.