HELEN GILLMOR, District Judge.
Plaintiff Glenda Berg, a disabled person, has filed a complaint against Bed Bath & Beyond, Inc. and Stanley Access Technologies, LLC. Plaintiff claims she was injured by automatic sliding doors, which were manufactured by Stanley Access Technologies, LLC and installed at Bed Bath & Beyond, Inc.
Defendant Bed Bath & Beyond, Inc. seeks summary judgment.
Defendant Bed Bath & Beyond's Motion for Summary Judgment (ECF No. 93) is
On September 15, 2015, Plaintiff Glenda Berg filed a Complaint. (ECF No. 1).
On August 15, 2016, Plaintiff filed a FIRST AMENDED COMPLAINT. (ECF No. 59).
On August 25, 2016, Defendant Bed Bath & Beyond, Inc. filed DEFENDANT BED BATH & BEYOND, INC.'S ANSWER TO FIRST AMENDED COMPLAINT FILED AUGUST 15, 2016; DEMAND FOR JURY TRIAL; FIRST AMENDED CROSS-CLAIM AGAINST DEFENDANTS STANLEY BLACK & DECKER, INC. AND STANLEY ACCESS TECHNOLOGIES, LLC. (ECF No. 60).
On August 26, 2016, Defendant Stanley Access Technologies, LLC, filed DEFENDANT STANLEY ACCESS TECHNOLOGIES LLC'S ANSWER TO FIRST AMENDED COMPLAINT, FILED ON AUGUST 15,2016; DEFENDANT STANLEY ACCESS TECHNOLOGIES LLC'S CROSS-CLAIM AGAINST DEFENDANT BED BATH & BEYOND, INC. (ECF No. 65).
On December 21, 2016, Defendant Bed Bath & Beyond, Inc. filed DEFENDANT BED BATH & BEYOND, INC.'S MOTION FOR SUMMARY JUDGMENT (ECF No. 93) and DEFENDANT BED BATH & BEYOND, INC.'S CONCISE STATEMENT OF MATERIAL FACTS IN SUPPORT OF ITS MOTION FOR SUMMARY JUDGMENT. (ECF No. 96).
On December 27, 2016, the parties filed a STIPULATION FOR DISMISSAL WITH PREJUDICE OF PLAINTIFF'S CLAIMS AGAINST DEFENDANT STANLEY BLACK & DECKER, INC., CROSS-CLAIM OF DEFENDANT BED BATH & BEYOND, INC. AGAINST DEFENDANT STANLEY BLACK & DECKER, INC. AND DEFENDANT STANLEY BLACK & DECKER, INC.'S CROSS-CLAIM AGAINST DEFENDANT BED BATH & BEYOND, INC. (ECF No. 99).
On January 10, 2017, Defendant Stanley Access Technologies, LLC, filed DEFENDANT STANLEY ACCESS TECHNOLOGIES LLC'S MEMORANDUM IN OPPOSITION TO DEFENDANT BED BATH BEYOND, INC.'S MOTION FOR SUMMARY JUDGMENT (ECF No. 105) and DEFENDANT STANLEY ACCESS TECHNOLOGIES LLC'S CONCISE STATEMENT OF MATERIAL FACTS IN SUPPORT OF ITS MEMORANDUM IN OPPOSITION TO DEFENDANT BED BATH & BEYOND, INC.'S MOTION FOR SUMMARY JUDGMENT. (ECF No. 104).
On January 11, 2017, the Court issued a Minute Order striking Plaintiff's memorandum in opposition and concise statement of facts for failing to comply with District of Hawaii Local Rules. (ECF No. 106).
On January 23, 2017, Plaintiff filed PLAINTIFF'S MEMORANDUM IN OPPOSITION TO DEFENDANT BED, BATH & BEYOND, INC.'S MOTION FOR SUMMARY JUDGMENT. (ECF No. 114).
On January 23, 2017, Plaintiff also filed an AFFIDAVIT OF GLENDA BERG. (ECF No. 116).
On January 24, 2017, Plaintiff filed PLAINTIFF'S SEPARATE AND CONCISE STATEMENT OF FACTS IN OPPOSITION TO DEFENDANT BED BATH & BEYOND, INC.'S MOTION FOR SUMMARY JUDGMENT. (ECF No. 121).
On February 6, 2017, Defendant Bed Bath & Beyond filed DEFENDANT BED BATH & BEYOND, INC.'S REPLY MEMORANDUM IN SUPPORT OF ITS MOTION FOR SUMMARY JUDGMENT. (ECF No. 127).
On February 23, 2017, a hearing was held on Defendant Bed Bath & Beyond, Inc.'s Motion for Summary Judgment. (ECF No. 133).
Plaintiff Glenda Berg is a disabled woman who resides in Santa Monica, California. (Deposition of Glenda Berg ("Berg Depo.") at p. 5, ECF No. 94-6). Defendant Bed Bath & Beyond, Inc. is a retail chain incorporated in the State of New York and registered to do business in the State of Hawaii. (First Amended Complaint at ¶ 7, ECF No. 59). Defendant Stanley Access Technologies, LLC ("Stanley") is a Delaware limited liability corporation registered to do business in the State of Hawaii. (
Plaintiff uses crutches to ambulate. She visited Bed Bath and Beyond at the Pearlridge store location on September 21, 2013. The store is equipped with automatic sliding doors, which were manufactured by Stanley.
As Plaintiff was leaving Bed Bath & Beyond, the automatic doors shut before she could make it through. Plaintiff fell to the ground. The parties do not dispute that Plaintiff was injured.
Timothy Muleady, manager of Bed Bath & Beyond, was notified of the incident.
The incident was captured on Bed Bath & Beyond's surveillance camera. (Deposition of Timothy Muleady ("Muleady Depo."), at p. 30, ECF No. 118-3). Muleady stated that he attempted to save the recording, but he was unable to for an unknown reason. (
At some time after the incident, the sensors on the door were replaced and are not available for inspection. (Report of Professional Engineer David J. Sitter ("Sitter Report"), at p. 4, ECF No. 105-6).
The parties dispute the manner in which Plaintiff was injured. Plaintiff has provided two different accounts as to how she was struck by the doors. In her deposition, Berg stated that the door hit her left side first. (Berg Depo., at pp. 58-59, ECF No. 105-3). In a response to Bed Bath & Beyond's request to for documents, Plaintiff provided a chart and an explanation stating, "As I was exiting the doorway, I noticed the doors were closing and I could not jump out of the way. One door hit my right side first, then the other door hit my left." (Plaintiff's Response to Bed, Bath & Beyond's 1st Request for Documents, at p. 5, ECF No. 105-4).
Defendant Bed Bath & Beyond's store manager Timothy Muleady provided a third account of what happened based on what he saw on the missing surveillance recording: "I viewed Ms. Berg exiting the store, and the doors closed on her crutches." (Muleady Depo., at pp. 33-35, ECF No. 105-2).
The parties dispute the adequacy of the safety equipment that was installed on the doors.
Plaintiff claims the sensors on the doors were inadequate, out of date, and too few. (Report of Warren F. Davis, Ph.D. ("Davis Report"), at pp. 6-14, ECF No. 94-1).
Defendant Stanley asserts that the sensors that were installed at the time of the incident were safe if they had been adjusted properly. Stanley also claims the lack of holding beams did not render the entry at Bed Bath & Beyond unsafe. (Sitter Report, at p. 4, ECF No. 105-6). Defendant Bed Bath & Beyond disagrees with Stanley's conclusions. (Report of Paul Sheriff ("Sheriff Report"), at pp. 1-2, ECF No. 119-1).
Plaintiff and Defendant Stanley dispute whether warning labels on the door are mandatory. (Sitter Report, at p. 5, ECF No. 105-6; Davis Report, at p. 10, ECF No. 94-1).
Plaintiff asserts that prior to the incident, the doors and sensors were not maintained properly. (Davis Report, at p. 17, ECF No. 94-1). Plaintiff claims that Defendants failed to meet industry standards that require annual safety checks by a certified inspector. (
Defendant Stanley points out that Bed Bath & Beyond lacks records of preventative maintenance for the doors. Stanley criticizes Bed Bath & Beyond's choice of an "on demand" service plan to fix problems as they arose rather than providing regular maintenance and review of the doors. (
The parties dispute the adequacy of Bed Bath & Beyond's daily safety checks of the doors.
Plaintiff claims that industry standards require a more in-depth daily safety check rather than "only so-called `walk tests.'" (Davis Report, at p. 13, ECF No. 94-1).
Defendant Stanley claims Bed Bath & Beyond failed to perform appropriate daily safety checks of the door. (Sitter Report, at p. 6, ECF. No. 105-6).
Summary judgment is appropriate when there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c). To defeat summary judgment there must be sufficient evidence that a reasonable jury could return a verdict for the nonmoving party.
The moving party has the initial burden of "identifying for the court the portions of the materials on file that it believes demonstrate the absence of any genuine issue of material fact."
If the moving party meets its burden, then the opposing party may not defeat a motion for summary judgment in the absence of probative evidence tending to support its legal theory.
The court views the facts in the light most favorable to the non-moving party.
Defendant Bed Bath & Beyond seeks summary judgment on all three causes of action stated in Plaintiff's First Amended Complaint.
To prevail on a negligence claim, Plaintiff must prove:
1. a duty, or obligation, recognized by the law, requiring a defendant to conform to a certain standard of conduct;
2. a failure on a defendant's part to conform to the standard required (a breach of the duty);
3. a reasonably close causal connection between the conduct and the resulting injury; and,
4. actual loss or damage.
An occupier of land has a duty to use reasonable care for the safety of all persons reasonably anticipated to be on the premises, regardless of the status of the individual as invitee, licensee, or trespasser.
A claim of negligence is generally not susceptible to summary judgment unless the facts are "undisputed or lend themselves to only one reasonable interpretation or conclusion."
Plaintiff argues that the doctrine of res ipsa loquitur is applicable here. Defendant Bed Bath & Beyond contends that the doctrine does not apply.
State of Hawaii courts have held that three conditions must be present for res ipsa loquitur to apply:
The first element is met "if, in the abstract, the event at issue is one that gives rise to the reasonable probability that in the ordinary course of events the incident would not have occurred without negligence."
The comments in the Restatement (Second) of Torts explain how to determine if an event meets this standard: "In the usual case the basis of past experience from which this conclusion may be drawn is common to the community, and is a matter of general knowledge, which the court recognizes on much the same basis as when it takes judicial notice of facts which everyone knows." Restatement (Second) of Torts § 328D cmt. d (Am. Law Inst. 1965).
It is common knowledge that automatic sliding glass doors, in the ordinary course, do not close on those passing through.
The second element of res ipsa loquitur requires that the injury "be caused by an agency or instrumentality within the exclusive control of the defendant."
Defendant Bed Bath & Beyond disputes the applicability of res ipsa loquitur, claiming that Berg has not ruled out other causes attributable to third parties. (Bed Bath & Beyond's Reply at pp. 5-6, ECF No. 127). Whether Plaintiff has shown that Bed Bath & Beyond, and not a third party, was responsible for the reasonable probable causes of the accident is a question of fact.
The Court cannot make factual determinations on a motion for summary judgment.
The final element of res ipsa loquitur requires that the injury must not be due to any voluntary action or contribution on the part of the plaintiff.
When viewing the pleadings in the light most favorable to Plaintiff, Defendant Bed Bath & Beyond has failed to show that res ipsa loquitur cannot apply here.
Title III of the Americans with Disabilities Act ("ADA"), 42. U.S.C. §12181 et seq., prohibits places of public accommodation from discriminating against individuals on account of a disability.
For Plaintiff to establish ADA Title III standing, she must show that she "has suffered an injury-in-fact, that the injury is traceable to the Store's actions, and that the injury can be redressed by a favorable decision."
Since injunctive relief is the only available remedy to an ADA plaintiff, she "must demonstrate a `real and immediate threat of repeated injury' in the future."
A plaintiff can establish standing to sue under the ADA in two ways. A plaintiff can establish standing to sue for injunctive relief either by demonstrating deterrence, or by demonstrating injury-in-fact coupled with an intent to return to a noncompliant facility.
In her deposition, Berg stated that she did not have any plans to return to Hawaii and that she did not have any intention to return to the Pearlridge Bed Bath & Beyond. (Berg Depo. at pp. 133, 166, ECF No. 94-4). Plaintiff then sought to clarify her deposition testimony in an affidavit attached to her opposition. She claims that at the time of her filing the lawsuit, she was reluctant to return to Bed Bath & Beyond in Hawaii because she did not want to experience discrimination again. (Plaintiff's Opposition at p. 8, ECF No. 114). In her affidavit Plaintiff stated that although she has not made arrangements, she intends to return to Hawaii for the trial. (Affidavit of Glenda Berg at p. 3, ECF No. 116).
In cases establishing standing based on deterrence, courts have taken into consideration the distance and frequency of travel near the public accommodation. In
In the present case before the Court, Plaintiff lives over 2500 miles, across the Pacific Ocean, from the store. She has only visited the island of Oahu once. Unlike the plaintiffs in
The second way an ADA plaintiff may obtain standing under Article III is by showing an injury-in-fact coupled with an intent to return.
District Courts in the Ninth Circuit have typically looked at four factors to determine the intent to return: (1) the proximity of the place of public accommodation to plaintiff's residence, (2) plaintiff's past patronage of defendant's business, (3) the definitiveness of plaintiff's plans to return, and (4) the plaintiff's frequency of travel near defendant's location area.
"As the distance between the plaintiff's residence and the public accommodation increases, the likelihood of future harm decreases."
In
Here, Plaintiff lives in Santa Monica California, over 2500 miles away from Defendant's place of business. The distance is considerable and weighs against Plaintiff's claim that she will return.
A plaintiff's history of patronage of a store or chain may evidence the possibility of future injury.
In
Here, Berg has only visited the Pealridge location of Bed Bath & Beyond once. She has only visited the island of Oahu once. In her affidavit, Plaintiff states, "I am a frequent shopper at Bed Bath & Beyond," without providing any further detail. (Berg Affidavit at p. 4, ECF No. 116). Her statement does not provide a context as to how often Plaintiff shops at Bed Bath & Beyond. Berg is similar to the plaintiff in
Generally, an ADA plaintiff must have a plan that is more concrete than a "some day" intention.
In
Plaintiff stated, "even though I have not made arrangements, I intend to return to Hawaii for the trial." (Berg Affidavit at p. 3, ECF No. 116). Plaintiff indicates that she will return to the store prior to the trial to see how the doors are operating, and to help her prepare to testify at trial. (
Courts look to whether a plaintiff is often in the vicinity of the public accommodation.
In
Here, Plaintiff Berg has only visited the State of Hawaii twice, and the island of Oahu once. Just as the plaintiff in
Three of the four factors to be considered weigh against finding standing for Plaintiff. Based on the totality of the circumstances, Plaintiff lacks standing to pursue an ADA claim.
Defendant Bed Bath & Beyond's Motion for Summary Judgment on Plaintiff's claim under the Americans with Disabilities Act is
Hawaii law prohibits practices that deny, or attempt to deny a person the full and equal enjoyment of public accommodations based on disability. Haw. Rev. Stat. § 489-3. The Legislature stated that the purpose of H.R.S. chapter 489 is to protect people from discrimination in public accommodations. H.R.S. § 489-1(a). The law is to be construed liberally to further its purposes. H.R.S. § 489-1(b).
There have been very few judicial opinions interpreting H.R.S. 489-3 in the context of disability discrimination.
The Supreme Court of Hawaii, when interpreting Hawaii discrimination laws, has looked for guidance to analogous federal laws by federal courts.
Hawaii law, H.R.S. chapter 489, differs from the ADA in the remedies available for a plaintiff. Hawaii law allows for plaintiffs to sue for damages.
When viewing the facts in the light most favorable to the Plaintiff, a claim pursuant to H.R.S. chapter 489 may lie.
Bed Bath & Beyond's Motion for Summary Judgment is
In its Memorandum in Opposition, Stanley raises the issue of Bed Bath & Beyond's failure to preserve the video recording as required by Federal Rule of Civil Procedure 37(e). The Court declines to decide on the issue of spoliation of evidence and what measures may be necessary to cure any prejudice that may have arisen from the loss of evidence at this time. Such a determination is premature.
Defendant Bed Bath & Beyond, Inc.'s Motion for Summary Judgment (ECF No. 93) is
Defendant Bed Bath & Beyond, Inc.'s Motion to for Summary Judgment (ECF No. 93) is
Defendant Bed Bath & Beyond, Inc.'s Motion to for Summary Judgment (ECF No. 93) is
IT IS SO ORDERED.