Ashbaugh v. Windsor Capital Group, Inc. et al, No. 1:2010cv04647 - Document 48 (E.D.N.Y. 2012)
Court Description: ORDER granting 34 Motion for Summary Judgment. Defendants' motion for summary judgment is GRANTED as to all of Ashbaugh's claims, and her complaint is dismissed. The Clerk of the Court is directed to close this case. Ordered by Judge I. Leo Glasser on 6/18/2012. (Riley, Paul)
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Ashbaugh v. Windsor Capital Group, Inc. et al Doc. 48 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK ------------------------------------------------------x J ANET ASHBAUGH, MEMORANDUM AND ORDER Plaintiff, 10 Civ. 4647 (ILG) (LB) - against WINDSOR CAPITAL GROUP, INC. and MARRIOT INTERNATIONAL INC., Defendants. ------------------------------------------------------x GLASSER, Senior United States District J udge: On October 8, 20 10 , plaintiff J anet Ashbaugh (“Ashbaugh”), a New York resident, initiated this diversity action against Windsor Capital Group (“Windsor”), a Californiabased hotel m anagem ent com pany, and Marriot International, Inc. (“Marriot”), Windsor’s Maryland-based franchisor, alleging that as a result of defendants’ negligence she received “bed bug bites and rashes on her body” during a stay at one of the hotels Windsor m anages, the Residence Inn by Marriot Atlanta-Midtown (the “Residence Inn” or “hotel”). Com plaint dated Oct. 11, 20 10 ¶ 21 (“Com pl.”) (Dkt. No. 1). Ashbaugh seeks $ 2,0 0 0 ,0 0 0 in dam ages. Currently before the Court is defendants’ m otion for sum m ary judgm ent, seeking dism issal of Ashbaugh’s com plaint in its entirety. For the following reasons, defendants’ m otion for sum m ary judgm ent is hereby GRANTED. I. BACKGROU N D The pertinent facts, either undisputed or, where disputed, viewed in the light m ost favorable to Ashbaugh are as follows. 1 Late in the day on April 16, 20 0 9, Ashbaugh 1 Ashbaugh’s Rule 56.1 Statem ent does not com ply with Local Civil Rule 56.1(d), requiring “each statem ent controverting any statem ent of m aterial fact, [to] be followed by citation to evidence which would be adm issible, set forth as required by Fed. R. Civ. P. 56(c).” Failure to com ply with Local Rule 56.1 perm its a reviewing court to consider Dockets.Justia.com and her husband checked into Room 327 (the “room ”) at the Residence Inn. Defendants’ Local Rule 56.1 Statem ent of Un disputed Material Facts dated Apr. 13, 20 12 (“Defs.’ 56.1”) ¶ 11 (Dkt. No. 36). They noticed nothing wrong with the room ; nor did they find any insects in it. Id. ¶ 13. The following day, after sleeping through the night without incident, they awoke and again noticed no insects in the room . Id. ¶¶ 16-17. After spending the day in Atlanta celebrating the m arriage of her brother which was to take place the next day, Ashbaugh returned to the room around 10 :30 or 11:0 0 p.m . and found the room to be in a “m ade-up state.” Id. ¶¶ 18-19. Shortly thereafter, she went to sleep. Id. ¶ 20 . On the m orning of April 18, 20 0 9, at around 7:0 0 a.m ., Ashbaugh rose, and her husband noticed welts all over her body. Id. ¶¶ 26- 27. Ashbaugh then told her father, who was in the room next door, about the welts, and he and Ashbaugh’s husband inspected the room for insects but did not find any. Id. ¶¶ 31-32. Shortly thereafter, Ashbaugh, her husband, and her father went down to the Residence Inn lobby, and Ashbaugh told Sharonee Parker (“Parker”), the m anager on duty at the tim e, about the situation; she also asked Parker to call an am bulance so she could be taken to a local hospital. Id. ¶ 33. Ashbaugh’s com plaint to Ms. Parker was m em orialized in a Residence Inn Incident Report. See Declaration of Elliot B. Pasik dated May 4, 20 12 (“Pasik Decl.”) Ex. B (Dkt. No. 42). The Incident Report states, am ong other things, that Ashbaugh “requested her room to be check [sic], and also to be the facts at issue undisputed for purposes of the m otion. See Fed. R. Civ. P. 56(e)(2); Local Civil Rule 56.1(c); see also T.Y. v. N.Y. City Dep’t of Educ., 584 F.3d 412, 418 (2d Cir. 20 0 9) (“A nonm oving party’s failure to respond to a Rule 56. 1 statem ent perm its the court to conclude that the facts asserted in the statem ent are uncontested and adm issible.” (citation om itted)). It is unnecessary for the Court to do so, however, as even excusing Ashbaugh’s noncom pliance with Rule 56.1, the Court finds sum m ary judgm ent warranted for the reasons explained below. 2 transferred to another room . Guest states som ething is wrong in the room ; and it needs to be thoroughly inspected.” Id. Ashbaugh and Parker each signed the Incident Report. Id. An am bulance soon arrived, taking Ashbaugh to the nearby Piedm ont Hospital. Defs.’ 56.1 ¶ 34. Once there, Ashbaugh reported to the treating nurses and doctor that she believed she had had an encounter with bed bugs. Id. ¶ 35; Declaration of David Rutherford dated Apr. 13, 20 12 (“Rutherford Decl.”) Ex. H (Dkt. No. 35). After receiving several prescriptions to treat the insect bites on her body, Ashbaugh returned to the Residence Inn. Defs.’ 56.1 ¶ 38. Ashbaugh’s husband once again inspected the room for insects but did not see any. Id. ¶ 39. They then transferred room s and were given a com plem entary night’s stay. Id. ¶ 40 . After transferring the couple to a new room , the hotel called Bug-Off Exterm inators to inspect Room 327 for bedbugs. Id. ¶ 43. Charles Senic, the General Manager of the Residence Inn during the tim e of Ashbaugh’s stay, testified that the Bug Off inspector did not find bed bugs or any other insects in the room . Rutherford Decl. Ex. E. (Senic Dep.), at 45. On April 19, 20 0 9, Ashbaugh and her husband returned to their hom e in New York, and shortly thereafter, Ashbaugh received further m edical treatm ent and was prescribed additional antibiotics. Defs.’ 56.1 ¶ 45; Pasik Decl. Exs. D-E. On October 8, 20 10 , Ashbaugh filed suit in this district asserting claim s for com m on law negligence and negligence per se against Windsor and Marriot. Com pl. ¶¶ 27-30 . Defendants on April 13, 20 12 filed their m otion for sum m ary judgm ent. Defendants’ Mem orandum of Law in Support of Sum m ary J udgm ent dated Apr. 13, 20 12 (“Defs.’ Mem .”) (Dkt. No. 37). Ashbaugh on May 4, 20 12 filed her subm issions in 3 opposition to defendants’ m otion, and defendants on May 11, 20 12 filed their reply. Plaintiff’s Mem orandum of Law in Opposition to Sum m ary J udgm ent dated May 4, 20 12 (“Pl.’s Mem .”) (Dkt. No. 43); Defendants’ Reply Mem orandum of Law dated May 11, 20 12 (Dkt. No. 45). The Court held oral argum ent on May 18, 20 12. Defendants contend sum m ary judgm ent on Ashbaugh’s claim s against Marriot is warranted because Marriot is sim ply a franchisor that had no control over the day-today operations of the Residence Inn. Defs.’ Mem . at 7-8. They also argue sum m ary judgm ent is required on Ashbaugh’s claim s against Windsor because the record contains no evidence that Ashbaugh contracted the bug bites on her body from her room at the Residence Inn or that the room was ever infested with bed bugs or other insects. Defs.’ Mem . at 8-15. Ashbaugh fails to address defendants’ form er contention and, with respect to their latter contention, argues that Ashbaugh’s testim ony and the m edical records from her visits to various physicians are sufficient to raise an issue of fact as to whether she was bitten by bed bugs or other insects during her stay at the Residence Inn. Pl.’s Opp’n at 3-5. The Court turns to these contentions below. II. D ISCU SSION A. Le gal Stan d ard Sum m ary judgm ent is appropriate “if the m ovant shows that there is no genuine dispute as to any m aterial fact and the m ovant is entitled to judgm ent as a m atter of law.” Fed. R. Civ. P. 56(a). “‘An issue of fact is genuine if the evidence is such that a reasonable jury could return a verdict for the nonm oving party. A fact is m aterial if it m ight affect the outcom e of the suit under the governing law.’” Fincher v. Depository Trust & Clearing Corp., 60 4 F.3d 712, 720 (2d Cir. 20 10 ) (quoting Roe v. City of Waterbury, 542 F.3d 31, 35 (2d Cir. 20 0 8)). 4 The m oving party bears the burden of establishing the absence of any genuine dispute as to any m aterial fact. Celotex Corp. v. Catrett, 477 U.S. 317, 322, 10 6 S. Ct. 2548, 91 L. Ed. 2d 265 (1986). When the burden of proof at trial would fall on the nonm oving party, it ordinarily is sufficient for the m ovant to point to a lack of evidence to go to the trier of fact on an essential element of the nonm ovant’s claim . Id. at 322-23. To defeat a m otion for sum m ary judgm ent, the non-m oving party “‘m ust do m ore than sim ply show that there is som e m etaphysical doubt as to the m aterial facts,’” Brown v. Eli Lilly & Co., 654 F.3d 347, 358 (2d Cir. 20 11) (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87, 10 6 S. Ct. 1348, 89 L. Ed. 2d 538 (1986)), and cannot “‘rely on conclusory allegations or unsubstantiated speculation.’” Id. (quoting Fed. Deposit Ins. Corp. v. Great Am . Ins. Co., 60 7 F.3d 288, 292 (2d Cir. 20 10 )). A court deciding a m otion for sum m ary judgm ent m ust “‘construe the facts in the light m ost favorable to the non-m oving party and m ust resolve all am biguities and draw all reasonable inferences against the m ovant.’” Brod v. Om ya, Inc., 653 F.3d 156, 164 (2d Cir. 20 11) (quoting William s v. R.H. Donnelley Corp., 368 F.3d 123, 126 (2d Cir. 20 0 4)). “‘Credibility determ inations, the weighing of the evidence, and the drawing of legitim ate inferences from the facts are jury functions, not those of a judge.’” Kaytor v. Elec. Boat Corp., 60 9 F.3d 537, 545 (2d Cir. 20 10 ) (quoting Reeves v. Sanderson Plum bing Prods., Inc., 530 U.S. 133, 150 , 120 S. Ct. 20 97, 147 L. Ed. 2d 10 5 (20 0 0 )). B. Su m m ary Ju d gm e n t is Gran te d as to th e Claim s Again s t Marrio t Under Georgia law,2 to im pose liability “on a franchisor for the acts of a franchisee, a plaintiff m ust show that the franchisor has obligated itself to pay the 2 The parties agree that Georgia law applies. Defs.’ Mem . at 7; Pl.’s Opp’n at 4. Under New York choice of law rules, where both parties agree as to the applicable law, 5 franchisee’s debts or that the franchisee is not a franchisee in fact but a m ere agent or alter ego of the franchisor.” Sum m it Autom otive Grp., LLC v. Clark, 298 Ga. App. 875, 883 681 S.E.2d 681 (20 0 9) (citations and internal quotations om itted). Relying on this principle, Marriot—Windsor’s franchisor—argues that sum m ary judgm ent on the claim s against it is required because there is no evidence in the record to establish that it som ehow obligated itself to pay the debts of Windsor or that Windsor is in fact its agent or alter ego. Defs.’ Mem . at 7-8. Ashbaugh does not provide any response to this argum ent in her opposition papers, and the Court thus deem s the claim s against Marriot as abandoned. See, e.g., Hyek v. Field Support Servs., Inc., 70 2 F. Supp. 2d 84, 10 2 (E.D.N.Y. 20 10 ) (“Federal courts m ay deem a claim abandoned when a party m oves for sum m ary judgm ent on one ground and the party opposing sum m ary judgm ent fails to address the argum ent in any way.” (collecting cases)); accord ADP Dealer Servs., Inc. v. Planet Autom all, Inc., No. 0 9 Civ. 0 185 (ILG) (RER), 20 12 WL 95211, at *7 (E.D.N.Y. J an. 12, 20 12) (quoting Taylor v. City of New York, 269 F. Supp. 2d 68, 75 (E.D.N.Y. 20 0 3)). Marriot’s m otion for sum m ary judgm ent on Ashbaugh’s claim s against it is therefore granted. C. Su m m ary Ju d gm e n t is Gran te d as to th e Claim s Again s t W in d s o r Ashbaugh alleges causes of action against Windsor for com m on law negligence, and negligence per se prem ised on violations of Georgia Code § 51-3-1 and § 43-21-30 . Com pl. ¶¶ 27-30 . “To prevail on a cause of action for negligence under Georgia law, the plaintiff m ust establish the essential elem ents of duty, breach of duty, proxim ate causation and dam ages.” Gordon v. Starwood Hotels & Resorts Worldwide, Inc., 821 F. that agreem ent is sufficient to establish choice of law. See, e.g., Fed. Ins. Co. v. Am . Hom e Assur. Co., 639 F.3d 557, 566 (2d Cir. 20 11). 6 Supp. 2d 130 8, 1312-13 (N.D. Ga. 20 11) (citing Black v. Georgia S. & Fla. Ry. Co., 20 2 Ga. App. 80 5, 80 6, 415 S.E.2d 70 5 (1992)). As for the duty owed, Windsor owes a duty to its invitees—here, Ashbaugh—to exercise ordinary care in keeping its prem ises safe. Ga. Code § 51-3-1 (West 20 12).3 An owner of real property such as Windsor “is not the insurer of the invitee’s safety, . . . but is bound to exercise ordinary care to protect the invitee from unreasonable risks of harm of which [the proprietor] has superior knowledge.’” Anderson v. Radisson Hotel Corp., 834 F. Supp. 1364, 1370 (S.D. Ga. 1993) (quoting Lau’s Corp., Inc. v. Haskins, 261 Ga. 491, 40 5 S.E.2d 474, 476 (1991)). Georgia law also requires innkeepers such as Windsor to provide its guests with clean bed linens. Ga. Code § 43-21-30 .4 Prim arily at issue here are the elem ents of breach and causation. Defendants contend sum m ary judgm ent is required because there is no evidence in the record— other than Ashbaugh’s unsubstantiated speculation—that shows that Windsor breached any duty owed to plaintiff and caused Ashbaugh’s injuries during her stay at the Residence Inn. Defs.’ Mem . at 9-12. The Court agrees. 3 Section 51-3-1 provides: Where an owner or occupier of land, by express or im plied invitation, induces or leads others to com e upon his prem ises for any lawful purpose, he is liable in dam ages to such persons for injuries caused by his failure to exercise ordinary care in keeping the prem ises and approaches safe. Id. 4 Section 43-21-30 provides: It shall be the duty of every hotel keeper or innkeeper to furnish clean bed linens, unused by any other person since the last laundering thereof, on all beds assigned to the use of any guest or patron of such inn or hotel. Id. Violators of this provision “shall be guilty of a m isdem eanor.” Id. § 43-21-33. 7 There is no evidence in the record to establish that Windsor provided Ashbaugh with an unclean, dangerous, or hazardous hotel room or in any way violated Sections 513-1 or 43-21-33. At no point did Ashbaugh or her husband ever see any insect in their hotel room . Rutherford Decl. Ex. D (Ashbaugh Dep.), at 67-68 (“Q. Did you ever see an insect in the room ? A. No. Q. Did your husband ever tell you he saw an insect in the room ? A. No.”); id. Ex. F. (Ham m ad Dep.), at 25 (“Q. Did you see any bugs in the room ? A. Surely not.”); id. Ex. F. (Ham m ad Dep.), at 70 -71 (“Q. When you went back to grab your bag did you see anything wrong with the room at that point? A. No. Q. Any bugs in the room ? A. No. But J anet I think she say [sic] that som e blanket, she tells m e this caused all our problem s. . . . Q. Did she ever tell you she saw bugs on the blanket? A. No.”). Ashbaugh’s father, who also inspected the room after Ashbaugh discovered the welts on her body, never saw any insects in the room either. Id. Ex. D (Ashbaugh Dep.), at 43-44 (“Q. Did anybody look around the room and see if there was anything going on? A. I think this tim e m y dad said som ething to m y husband, let’s look and see if it could be a bug or anything. Q. Did they, in fact, look around? A. Yes, at this tim e they were looking around and didn’t see anything.”). The sam e is true with respect to the inspector from Bug Off Exterm inators—after being called to exam ine Ashbaugh’s room after the alleged incident, he too did not find any insects in the room . Id. Ex. E. (Senic Dep.), at 45 (“Q. Now, by ‘anything,’ you took it to m ean that Shane did not find any bedbugs, right? A. Did not find any in sects.”). It is sim ilarly undisputed that Ashbaugh’s hotel room was in a clean and sanitary state on the night Ashbaugh alleges bedbugs bit her. Rutherford Decl. Ex. D (Ashbaugh Dep.), at 24 (“Q. Your room was 8 m ade up during the day by the m aid service? A. Yes. Q. When you eventually cam e back to the room , was it in a m ade-up state? A. Yes.”). The record is also devoid of any evidence showing that Windsor had notice or “superior knowledge” of any insects in Ashbaugh’s room or the Residence Inn as a whole. Cf. Livingston v. H.I. Fam ily Suites, Inc., No. 0 5 Civ. 860 (ORL) (KRS), 20 0 6 WL 140 6587, at *6 (M.D. Fla. May 22, 20 0 6) (hotel’s m otion for sum m ary judgm ent on negligence claim denied where there was evidence of its knowledge of infestation of plaintiff’s hotel room 15 days before plaintiff stayed there). In fact, Charles Senic, the General Manager of the Residence Inn from J uly 20 0 6 to J uly 20 11 testified that during his tim e as the General Manager Ashbaugh’s com plaint was the only one he ever received regarding alleged insects in the hotel. Id. Ex. E (Senic Dep.), at 34 (“Q. Had you ever handled any com plaint of insect bites before, starting from 20 0 0 onwards? A. No, sir.”). Ashbaugh argues that her own testim ony, along with the m edical records from her visits to various physicians, are sufficient to create a fact question as to whether she was bitten by bedbugs or other insects during her stay at the Residence. Pl.’s Opp’n at 3. But Ashbaugh’s unsubstantiated testim ony is based on nothing m ore than a speculative belief that she was bitten by bedbugs—not on personal knowledge—and is thus insufficient to create an issue of fact for trial. See, e.g., Myers v. Cnty. of Nassau, 825 F. Supp. 2d 359, 366 (E.D.N.Y. 20 11) (“Evidence considered sufficient to defeat sum m ary judgm ent is generally offered in the form of affidavits or deposition testim ony. Such evidence must be based upon the personal knowledge of the witness, m ust set forth facts adm issible in evidence, and the speaker m ust be shown com petent to testify thereto.” 9 (citing Santos v. Murdock, 243 F.3d 681, 683 (2d Cir. 20 0 1))).5 The m edical records Ashbaugh relies upon do not reflect any m edical opinion as to whether Ashbaugh was, in fact, bitten by bedbugs or any other insect while staying at the Residence Inn; they instead reflect only what Ashbaugh told the nurses and doctors who treated her—that she believed she had bitten by bedbugs at the hotel. See, e.g., Rutherford Decl. Ex. H, at 9 (“PT . . . com plains of red itchy ‘bug bites’ all over body. PT states that she believes she has ‘bed bugs’”); 6 Pasik Decl. Ex. D (“Pt [com plains of] itching and bite m arks s/ o 5 6 To the extent Ashbaugh also relies on the statem ent in her declaration that she “was bitten by m any bed bugs” at the Residence Inn, Pasik Decl. Ex. A, this statem ent too is pure speculation, and the Court therefore will not credit it. See, e.g., Fed. R. Civ. P. 56(c)(4) (“An affidavit or declaration used to support or oppose a m otion m ust be m ade on personal knowledge, . . . .” (em phasis added)). The advice of Ashbaugh’s treating doctor that she should switch hotels or hotel room s does not reflect an opinion that the insect bites occurred at the Residence Inn. See id. Ex. H, at 14 (“Make sure to switch room s or hotels and wash any clothes you have worn since being in that room .”). Ashbaugh also m ischaracterizes the testim ony of her treating doctor, stating that “[a]t the hospital, where she reported that she was bitten up at the hotel, a doctor told her it was insect bites, and notably this doctor said ‘that hotel, I have told them before to take care of that bedbug situation.’” Pl.’s Opp’n at 2. In fact, Ashbaugh testified that her treating doctor said no such thing: Q. I think we were at the stage where this young doctor said to you som ething to the effect of, oh, that hotel, I’ve told them before to take care of that bedbug situation. A. He didn’t say “bedbug.” Q. What did he say? A. He said basically “that situation.” Q. So at this point you hadn’t heard anything about bedbugs? A. No. 10 contract with bed bugs on 4/ 18/ 0 9. . . . Pt reports that on 4-18-0 9 she was staying at the Marriot Hotel in Atlanta Georgia, where she received approxam ately [sic] 66 bed bug bites over her face, both arm s, wrists, buttocks, hips, and legs.”); id. Ex. E (“CC [Chief Com plaint]: Bug bite after staying in hotel in Georgia.”). Moreover, Ashbaugh acknowledged during her deposition that no one, including her doctors, told her she had been bitten by bedbugs. Rutherford Decl. Ex. D (Ashbaugh Dep.), at 71 (“Q. Did anybody ever tell you exactly what it is that bit you? A. No. . . . Q. [D]id any m edical professional at any tim e tell you exactly what type of insect bit you? A. No.”). In sum , none of the m aterials subm itted by Ashbaugh is sufficient to create a disputed issue of m aterial fact precluding sum m ary judgm ent. Further, each of the cases Ashbaugh relies upon in support of her contention that sum m ary judgm ent is inappropriate is easily distinguishable. In Mathias v. Accor Econom y Lodging, Inc., 347 F.3d 672, 675 (7th Cir. 20 0 3), a case upholding punitive dam ages awarded in a bed bug suit, m anagem ent of the defendant hotel had refused to fum igate the hotel, even though its bed bug infestation was of “farcical proportions,” was well-known by the hotel staff, and had been confirm ed by an exterm inator. Id. Indeed, even the plaintiffs’ room was known by the defendant hotel to be infested as it had been classified under the “DO NOT RENT UNTIL TREATED” category, and it had not been treated when the plaintiffs checked in. Id. Sim ilarly, in Grogan v. Gam ber Corp., 858 N.Y.S.2d 519, 525-26 (Sup. Ct. 20 0 8), in which the court denied the defendant hotel’s m otion for sum m ary judgm ent on plaintiffs’ negligence claim , there was substantial Rutherford Decl. Ex. D (Ashbaugh Dep.), at 55. In any event, Ashbaugh’s treating doctor’s statem ents to her—whatever they were—are inadm issible hearsay insufficient to create a disputed issue of m aterial fact. 11 evidence that the plaintiffs were bitten by bedbugs while staying at the hotel: one plaintiff testified, for exam ple, that she was awakened by som ething biting her during the night and that, after turning on the lights in her room , she saw 40 to 50 live bugs, crushed bugs and blood splats on the sheets, and sm ears of blood on her hand. Id. at 521. The record also contained evidence that the hotel had notice of the risk of harm the bedbugs posed to plaintiffs as it contain ed exterm ination reports showing com plaints about bedbugs and the presence of bedbugs in the hotel. Id. at 526. Not so here. No one—including Ashbaugh—ever saw a bed bug or any other insect at the Residence Inn, and prior to Ashbaugh’s com plaint, Senic, the hotel’s General Manager, had never received a com plaint about any kind of insect at the hotel. 7 The other cases Ashbaugh relies upon m erely stand for the unobjectionable proposition that an innkeeper “has a duty to inspect and is liable for such injuries caused by defects as would be disclosed by a reasonable inspection.” Palagano v. Georgian Terrace Hotel Co., 123 Ga. App. 50 2, 50 5, 181 S.E.2d 512 (1971) (citing Hillinghorst v. Heart of Atlanta Motel, 10 4 Ga. App. 731, 735, 122 S.E.2d 751 (1961)); Gary Hotel Courts, Inc. v. Perry, 148 Ga. App. 22, 24, 251 S.E.2d 37 (1978). There is no question that this standard applies to Windsor but here, unlike in the cited cases, there is no evidence in the record to establish that Windsor breached any duty owed to 7 Ashbaugh calls the “Incident Report” that she filed with Parker “intentionally evasive” because it does not m ention the specifics of her com plaint—that she believed she had been bitten by bed bugs or other insects. Pl’s Opp’n at 4. Instead, it states sim ply, “Guest states som ething is wrong in the room ; and it needs to be thoroughly inspected.” Pasik Decl. Ex. B. Even if the Incident Report had contained the specifics of Ashbaugh’s com plaints, it would still be insufficient to create an issue of m aterial fact because, as with Ashbaugh’s m edical reports, the Report would m erely reflect Ashbaugh’s belief that she was bitten by bedbugs, not her knowledge of that fact. 12 plaintiff by providing her an unclean or unsafe room or that her injuries were caused by the hotel. See Gary Hotel Courts, 148 Ga. App. at 23 (only after plaintiff presented evidence that he was injured when he sat in chair lacking webbing in defendant’s hotel room was there a question for jury as to the hotel’s alleged breach of its duty to inspect room ); Palagano, 123 Ga. App. at 50 6 (only after plaintiff presented evidence that the bed of defendant hotel was defective was there a question for jury as to whether hotel could have discovered defect upon inspection). For all of the foregoing reasons, Windsor’s m otion for sum m ary judgm ent is hereby GRANTED, and the claim s against it are dism issed. III. Co n clu s io n Defendants’ m otion for sum m ary judgm ent is GRANTED as to all of Ashbaugh’s claim s, and her com plaint is dism issed. The Clerk of the Court is directed to close this case. SO ORDERED. Dated: Brooklyn, New York J une 18, 20 12 / s/ I. Leo Glasser Senior United States District J udge 13
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