KENNETH S. McHARGH, Magistrate Judge.
This is a slip and fall negligence case. Plaintiff Valencia Kern ("Plaintiff" or "Kern") fell and was allegedly injury while dining at a restaurant operated by Defendant P.F. Chang's China Bistro, Inc. ("Defendant" or "P.F. Chang's"). Defendant filed its Motion for Summary Judgment on November 4, 2013. (Doc. No. 17). Plaintiff filed a Response to Defendant's motion on January 28, 2014. (Doc. No. 25). Defendant filed a Reply to Plaintiff's Response on February 4, 2014. (Doc. No. 27).
For the reasons set forth below, Defendant's Motion for Summary Judgment is GRANTED.
On March 19, 2011, Kern dined at Defendant's restaurant in Beachwood, Ohio. (Doc. Nos. 1-2, 17). Plaintiff had visited the restaurant on at least ten occasions in the past. (Deposition of Valencia Kern ("Kern Depo.") at 37:10-22). On this particular Saturday evening, Kern dined with four other adult guests, including her son, Demetrius Kern, and his friend, Omar Mitchell. (Id. at 28-29). Plaintiff was wearing boots with a two inch heel. (Id. at 43:19-23). The restaurant was crowded that night, with nearly all tables occupied at some point while Plaintiff was present. (Id. at 57:20-22).
At the end of the party's dinner, all five patrons, including Plaintiff, stood up. Plaintiff proceeded to follow Mitchell out of the restaurant, while the remaining members of the party finished a conversation at the table. (Id. at 49:16-20). Plaintiff took approximately 20 steps down an aisle between tables before she fell. (Id. at 49:21-25). Plaintiff stated that her right foot started to slide on a slippery substance, ultimately causing her to fall onto her right hip. (Id. at 52:24, 53:2-3, 54:25, 55:1-12). At the time of her fall, Kern was walking on a wood floor that was part of the dining area. (Id. at 50:4-5). There were rows of tables to Plaintiff's right and left. (Id. at 51:17-25). The area was reasonably lit. (Id. at 52:6-8).
Plaintiff stated that a "liquid" on the floor caused her foot to slip. (Id. at 57:23-25). Kern did not identify the liquid more specifically or the liquid's origin, though she speculated that the substance came from some type of food, given the oily nature of the food served by the restaurant. (Id. at 58:1-7). Plaintiff indicated that she did not know how long the liquid was on the floor. (Id. at 58:8-19). She noted that at some point, there were patrons seated at a table near the site of her fall and speculated that the liquid was on the floor when those patrons left the table. (Id.).
Soon after the accident, the manager on duty approached Kern and instructed her not to move from where she lay on the floor while an ambulance was called. (Id. at 56:6-9). Plaintiff was treated for approximately 30 minutes at the emergency room before being discharged. (Id. at 68:8-12).
Plaintiff filed the present iteration of this suit against Defendant in the Cuyahoga County Court of Common Pleas on May 21, 2013. (Doc. No. 1-1). The state court's docket indicates that the suit was a "re-filed case." (Id.). Defendant alleges Plaintiff first filed this suit in the Cuyahoga County Court of Common Pleas on July 7, 2011. Defendant also maintains that during the first suit, discovery was conducted and Plaintiff was deposed on September 14, 2012. A copy of this deposition is attached to Defendant's pending Motion for Summary Judgment. (Doc. No. 17-1). Defendant recounts that during the prior suit, it moved for summary judgment, after which Plaintiff voluntarily dismissed her claims.
Following the dismissal, Plaintiff refiled her suit in state court on May 21, 2013, as previously indicated herein. On July 11, 2013, Defendant removed the suit to this Court. (Doc. No. 1). Plaintiff alleges that Defendant was negligent in (1) failing to inspect, monitor, or test for dangerous conditions in the restaurant; (2) failing to warn Plaintiff of the condition in the restaurant when Defendant had notice; and (3) failing to properly or timely take steps to abate the dangerous condition. (Doc. No. 1-2).
On September 5, 2013, the district judge set forth case management deadlines. (Doc. No. 13). These included an October 28, 2013 deadline for the completion of discovery needed to support or defend dispositive motions, a November 4, 2013 deadline for filing dispositive motions, and a November 18, 2013 deadline for filing oppositions to dispositive motions. (Id.). The parties subsequently consented to the jurisdiction of the undersigned magistrate judge. (Doc. No. 15). A telephone status conference was held on October 28, 2013, during which the parties agreed to a continuance of only the final pretrial and trial dates, which were to be re-set after the filing of dispositive motions.
On November 4, 2013, Defendant timely filed its Motion for Summary Judgment. (Doc. No. 17). Plaintiff failed to file an opposition by November 18, 2013, the deadline set forth in the case management schedule. On December 18, 2013, Plaintiff filed an Amended Motion for an Extension of Time to respond to the summary judgment motion and included within the motion a request for additional time to conduct discovery. (Doc. No. 18). Defendant opposed the request for an extension. (Doc. No. 19). The Court granted Plaintiff the opportunity to reply to Defendant's Opposition. (Doc. No. 21). On December 31, 2013, Plaintiff filed her Reply and also filed a Notice of a Discovery Dispute. (Doc. No. 23).
A hearing was held to address Plaintiff's Amended Motion for Extension and the discovery dispute on January 13, 2014. On January 14, 2014, the Court ruled that Plaintiff failed to show good cause to warrant additional dispositive motion discovery, and denied Plaintiff's request. (Doc. No. 24). The Court, however, permitted Plaintiff to file an opposition to the motion for summary judgment. (Id.). Additionally, the Court reserved the right to rule on the discovery dispute and any extension of time regarding discovery until after ruling on dispositive motions. (Id.).
Although Plaintiff filed a Response to the Motion for Summary Judgment, her brief does not substantively oppose summary judgment. (Doc. No. 25). Instead, she requests that the Court reconsider its decision to preclude further dispositive motion discovery. (Id.).
Though titled "Response to Motion for Summary Judgment," Plaintiff's opposition sets forth no substantive arguments as to why the Court should deny Defendant's motion. To the contrary, Kern expressly indicates that she is unable to oppose the motion for summary judgment without further discovery. She requests that the Court reconsider its January 14, 2014 ruling in which it found Plaintiff failed to show good cause as to why dispositive motion discovery should be re-opened. Plaintiff's Response is, in essence, a motion for reconsideration and should have been filed as such. Kern did not follow proper procedure in making her request for reconsideration. Yet, even if she had done so properly, the undersigned concludes that her arguments do not warrant a different outcome.
District courts possess the inherent power to reconsider their interlocutory orders at any time before the entry of judgment.
In the present case, the portion of Plaintiff's brief that requests reconsideration amounts to little more than a recycling of her earlier offerings. Plaintiff argues that there is a strong possibility that she would be able to secure the testimony of P.F. Chang's employee Peter Pexa, the manager allegedly on duty the night of her fall. Plaintiff includes with her Response an affidavit from counsel and an email from her son, Demetrius Kern, in support of the notion that she likely will be able to secure Pexa's testimony. However, Kern makes no effort to show why such evidence was not previously available.
Moreover, Plaintiff's argument regarding Pexa lacks merit. On September 4, 2013, Plaintiff disclosed Pexa as a witness in her initial disclosures. (Doc. No. 26-1).
Additionally, a hearing was held in January 2014 to address Plaintiff's request for an extension of time and further discovery. Plaintiff failed to provide good cause or establish that the failure to act was the result of excusable neglect to justify additional dispositive motion discovery.
At the present juncture, Plaintiff does not point to an argument that was overlooked, provide evidence that could not have previously been submitted, or assert clear error or injustice. Accordingly, to the extent that Plaintiff's Response requests that the Court reconsider its prior ruling, her request is denied.
Summary judgment is proper where "there is no genuine dispute as to any material fact" and the moving party "is entitled to judgment as a matter of law."
If the moving party has met its burden, the nonmoving party "may not rest upon its mere allegations or denials of the adverse party's pleadings, but rather must set forth specific facts showing that there is a genuine issue for trial."
When reviewing summary judgment motions, a court must view the evidence, and the reasonable inferences that can be drawn from such, in a light most favorable to the nonmoving party.
A fairly unusual situation presents itself where the nonmoving party does not respond to the motion for summary judgment. While the Court generally is free to sustain unopposed motions, this empowerment does not extend to motions for summary judgment.
However, this does not mean that "where the nonmoving party fails to respond to the motion for summary judgment, the trial court [must] search the entire record to establish that it is bereft of a genuine issue of material fact."
As previously recounted herein, Kern's Response does not assert any substantive arguments opposing summary judgment. Accordingly, the undersigned will treat Defendant's motion as unopposed.
Ohio law applies to this case. To establish a claim for negligence, a plaintiff must show: (1) a duty on the part of the defendant to protect the plaintiff from injury; (2) a breach of that duty; and (3) an injury proximately resulting from the breach.
Under Ohio law, Plaintiff was a business invitee for the purposes of identifying the duty Defendant owed to her. (Defendant's Brief at 8). "Business invitees are persons who come upon the premises of another, by invitation, express or implied, for some purpose which is beneficial to the owner."
Business owners owe business invitees a duty of ordinary care to maintain the premises in a reasonably safe condition so that customers are not unnecessarily and unreasonably exposed to danger.
To recover damages in a slip and fall accident as a business invitee, a plaintiff must establish one of the following:
P.F. Chang's argues that it is entitled to summary judgment because there is no evidence to identify or explain the reason for Kern's fall. Defendant notes that during her deposition, Plaintiff said she fell on "something," and ultimately stated that she slipped because of a liquid on the floor. According to Defendant, such averments by Plaintiff demonstrate a lack sufficient knowledge as to the cause of her fall in order to create liability on its part.
Even assuming Plaintiff's assertion that she slipped on a liquid is sufficiently specific, Defendant maintains there exists no evidence that: (1) its employees were responsible for the substance being on the floor; (2) that it had knowledge that a substance was on the floor and it failed to warn; or (3) that the substance had existed for a sufficient length of time to reasonably justify inferring a breach of ordinary care in failing to warn or remove it.
To recover in a slip and fall case, a plaintiff must meet one of the three theories of recovery set forth above—that is, responsibility, actual knowledge, or constructive knowledge. As will be further explained herein, Defendant has shown that no genuine issue of fact exists as to any of these theories. Accordingly, the Court need not address whether evidence creates a question as to the specific cause of Plaintiff's fall.
Under the first theory of liability, a plaintiff may recover when she establishes that the defendant, through its officers or employees, was responsible for the hazard's existence. Defendant asserts that the evidence does not establish such responsibility. As Defendant notes, Plaintiff admitted in her deposition that she did not know how the substance she purports caused her fall came to be on the floor. (Kern Dep. at 58:5-7).
With regard to whether P.F. Chang's had actual knowledge, Defendant also asserts that Plaintiff has no information showing that any employee knew the liquid substance was located on the floor prior to her accident. In her deposition, Plaintiff does not attest that Defendant, or any of its officers or employees, were aware of the substance before she fell, nor is there additional evidence speaking to the issue. (Kern Dep. at 58).
As to constructive knowledge, Ohio courts have held that evidence of how long the hazard existed is required to establish a duty to exercise ordinary care.
For the foregoing reasons, the undersigned DENIES Plaintiff's request to reconsider and GRANTS Defendant's Motion for Summary Judgment.
IT IS SO ORDERED.
