REIL et al v. RUBY TUESDAY INCORPORATED et al, No. 1:2013cv05580 - Document 50 (D.N.J. 2015)
Court Description: OPINION. Signed by Judge Joseph H. Rodriguez on 12/1/2015. (TH, )
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REIL et al v. RUBY TUESDAY INCORPORATED et al Doc. 50 U N ITED STATES D ISTRICT COU RT D ISTRICT OF N EW JERSEY FRANCIS and LOUISA REIL, : : Plaintiffs, v. Hon. J oseph H. Rodriguez Civil Action No. 13-5580 : RUBY TUESDAY INCORPORATED, : Defendant. OPINION : This m atter is before the Court on m otion of Defendant Ruby Tuesday Incorporated for sum m ary judgment pursuant to Federal Rule of Civil Procedure 56 and to preclude the opinions and testim ony of J ohn S. Posusney [Doc. 39]. Plaintiffs have opposed the m otion and cross-m oved for sum m ary judgment [Doc. 41]. Oral argument was heard on October 29, 20 15, and the record of that proceeding is incorporated here. For the reasons set forth below, both m otions will be denied. Backgro u n d On September 3, 20 11, Plaintiffs Francis and Louisa Reil visited Defendant Ruby Tuesday Incorporated’s restaurant in Deptford, New J ersey. (Compl. 1.) After an em ployee of Defendant directed Plaintiffs to their booth, Mr. Reil attem pted to sit on the booth bench but became 1 Dockets.Justia.com “jam m ed” between the seat and the table when the seat shifted position. (Com pl. 1-2; F. Reil Dep., 11.) Plaintiffs allege that Mr. Reil sustained serious back injuries as a result of Defendant’s failure to inspect or m aintain the bench prior to Mr. Reil’s seating. (Compl. 2.) Plaintiffs further allege that Mrs. Reil was deprived of the companionship and services of her husband based on the same negligent inaction of Defendant. (Com pl. 3.) Defendant now m oves for sum m ary judgm ent on the basis that no reasonable factfinder could conclude on this record that Defendant had any notice of the booth’s condition before Mr. Reil attem pted to sit on the bench. (Def. Br., p. 6-7.) Additionally, Defendant argues that Plaintiffs’ expert opinion regarding the incident should be inadm issible in that it lacks reliability and will not assist the jury. (Def. Br., p. 10 .) Plaintiffs have filed a cross-m otion for sum m ary judgment asserting that the doctrine of res ipsa loquitur requires the factfinder to find Defendant liable as a m atter of law. (Pl. Br., p. 9.) Su m m ary Ju d gm e n t Stan d ard A court will grant a m otion for sum m ary judgment if there is no genuine issue of m aterial fact and if, viewing the facts in the light m ost favorable to the non-m oving party, the m oving party is entitled to judgm ent 2 as a m atter of law. Pearson v. Component Tech. Corp., 247 F.3d 471, 482 n.1 (3d Cir. 20 0 1) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986)); accord Fed. R. Civ. P. 56 (c). Thus, this Court will enter sum m ary judgm ent only when “the pleadings, depositions, answers to interrogatories, and adm issions on file, together with the affidavits, if any, show that there is no genuine issue as to any m aterial fact and that the m oving party is entitled to judgm ent as a m atter of law.” Fed. R. Civ. P. 56 (c). An issue is “genuine” if supported by evidence such that a reasonable jury could return a verdict in the nonmoving party’s favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A fact is “material” if, under the governing substantive law, a dispute about the fact m ight affect the outcom e of the suit. Id. In determ ining whether a genuine issue of m aterial fact exists, the court m ust view the facts and all reasonable inferences drawn from those facts in the light m ost favorable to the nonm oving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). Initially, the m oving party has the burden of dem onstrating the absence of a genuine issue of m aterial fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Once the m oving party has m et this burden, the nonm oving party must identify, by affidavits or otherwise, specific facts 3 showing that there is a genuine issue for trial. Id.; Maidenbaum v. Bally’s Park Place, Inc., 870 F. Supp. 1254, 1258 (D.N.J . 1994). Thus, to withstand a properly supported m otion for sum mary judgment, the nonm oving party m ust identify specific facts and affirm ative evidence that contradict those offered by the m oving party. Andersen, 477 U.S. at 256-57. Indeed, the plain language of Rule 56(c) m andates the entry of sum m ary judgment, after adequate tim e for discovery and upon m otion, against a party who fails to m ake a showing sufficient to establish the existence of an elem ent essential to that party’s case, and on which that party will bear the burden of proof at trial. Celotex, 477 U.S. at 322. In deciding the m erits of a party’s m otion for sum m ary judgm ent, the court’s role is not to evaluate the evidence and decide the truth of the m atter, but to determ ine whether there is a genuine issue for trial. Anderson, 477 U.S. at 249. Credibility determ inations are the province of the finder of fact. Big Apple BMW, Inc. v. BMW of N. Am ., Inc., 974 F.2d 1358, 1363 (3d Cir. 1992). An alys is Defendant argues that Plaintiffs lack evidence to establish a prim a facie case on any of their claim s because its employees had no notice -actual or constructive -- of the purportedly dangerous condition presented 4 by the loose booth seat. The record indicates that the Defendant’s dining area contains booths with bench seats that can be lifted up from the base of the booth for the purposes of cleaning the booths and setting pest control traps underneath the booths. (Gallagher Dep., 15:3-8, 21:3-19.) In September 20 11, Steritech, an outside contractor, set up and m aintained all of the pest control traps that were kept underneath Defendant’s booths on a m onthly basis. (Gallagher Dep., 21:22-22:11.) Servers and other employees of Defendant are trained to visually inspect each booth to ensure that the area is suitable for the next customer and to wipe down the booth after every customer leaves Defendant’s prem ises. (Gallagher Dep., 18:17-23.) Servers and hosts are expected to visually inspect the booth seat and table when they escort guests to a booth to ensure it is clean and safe for the guests to sit there. (Gallagher Dep., 30 :23-31:3.) If a server or host notices that the booth seat is not secured when escorting a guest to the booth, then he or she m ust bring the guest to a different table. The server or host is then required to inform Defendant’s managem ent that the booth is not secured so that the problem can be rem edied. (Gallagher Dep., 30 :2-14.) Christina Am erman, a server at Defendant’s restaurant for approximately the past six years, testified that if she saw that a booth seat was not properly secured when she escorted guests there, she would not 5 seat them at that booth. (Am erman Dep., 10 :2-6.) Defendant’s m anager testified that it is “extrem ely rare” that a staff m em ber has to report that a booth seat is loose to Defendant’s m anagem ent. (Gallagher Dep., 30 :1522.) Am erm an also testified that she does not know of any incidents where a custom er com plained that the booth seat where he or she was seated was loose before Mr. Reil’s accident in Septem ber 20 11. (Am erm an Dep., 4:1114.) Mr. Reil testified that before he sat down in the booth, he did not notice that anything was wrong with its seat. (F. Reil Dep., 12:10 -12; 18:1921; 19:21-24: 21:6-8.) Am erman testified that when she went to the booth to greet Mr. Reil, she saw the booth seat m ove slightly, causing Mr. Reil’s shoulders to hit the back of the booth and his buttocks to scoot forward. (Am erm an Dep., 16:3-17:8.) After Mr. Reil attem pted to sit down and the booth seat m oved, Am erm an left to inform Defendant’s manager, Michael S. Gallagher, about the incident. (Am erm an Dep., 9:11-14. See also F. Reil Dep., 11:5-6.) After briefly speaking to Am erm an, Gallagher went to the dining area to speak with Mr. and Mrs. Reil. (Gallagher Dep., 37:21-38:4; 39:11-17. See also Am erm an Dep., 23:20 -24:2, 38:24-39:7.) As he walked over to Mr. and Mrs. Reil, Gallagher noticed that there was a gap between the seat and the back of the booth where Mr. Reil sat, but the seat was not 6 com pletely dislodged or tipped over. (Am erm an Dep., 36:3-7, 39:8-17.) Gallagher introduced him self to Mr. and Mrs. Reil and asked if Mr. Reil was hurt or needed m edical attention; Mr. Reil responded that he did not require medical attention. (Am erm an Dep., 37:5-20 , 38:14-16; F. Reil Dep., 11:13-17, 18:12-18.) Plaintiffs claim that during this conversation, Gallagher stated that the seat m ay have come ajar because children were jumping up and down on that booth seat earlier that day. (F. Reil Dep., 20 :23-21:5.) Gallagher testified that he does not recall m aking any statem ent to Plaintiffs regarding children jum ping on the booth seat. (Gallagher Dep., 38:24-39:7.) Gallagher further testified that he has never seen a booth seat becom e loose as a result of children jum ping on it. (Gallagher Dep., 31:1722.) 1 After their conversation with Gallagher, Mr. and Mrs. Reil ate at a different booth in Defendant’s restaurant. (F. Reil Dep., 21:17-22:1.) To prevail on a claim for negligence under New J ersey law, a plaintiff m ust establish the existence of a duty owed to the plaintiff by the defendant, a breach of that duty, and that the breach was the proximate Plaintiffs’ expert, J ohn S. Posusney, with regard to whether children jum ping on a booth seat could dislodge it, testified: “[A] person jum ping up and down on it, for instance, if it was a child . . . if they’re jum ping up and down they’re exerting a vertical force. That seat, to dislodge it from the fram e you have to have a force in the opposite direction of gravity to dislodge it.” (Posusney Dep., 14:2-11; Posusney Engineering Eval.) 1 7 cause of the plaintiff's injuries. Keith v. Truck Stops Corp. of Am ., 90 9 F.2d 743, 745 (3d Cir. 1990 ). An owner of a building has a non-delegable duty to exercise reasonable care for the safety of tenants and persons using the prem ises at his invitation. Mayer v. Fairlawn J ewish Ctr., 186 A.2d 274, 277– 78 (N.J . 1962). That is, “the comm on law im poses a duty of care on business owners to m aintain a safe prem ises for their business invitees because the law recognizes that an owner is in the best position to prevent harm .” Stelluti v. Casapenn Enterprises, LLC, 1 A.3d 678, 691 (N.J . 20 10 ). “Ordinarily an injured plaintiff asserting a breach of that duty m ust prove, as an elem ent of the cause of action, that the defendant had actual or constructive knowledge of the dangerous condition that caused the accident.” Nisivoccia v. Glass Gardens, Inc., 818 A.2d 314, 316 (N.J . 20 0 3). Constructive knowledge is found if the condition had existed for such a length of tim e that the proprietor should have known of its presence. Bozza v. Vornado, Inc., 42 N.J . 355, 359 (1964). If a plaintiff presents m aterial facts tending to show that a defendant should have been aware of the dangerous condition, sum mary judgment should be denied. Monaco v. Hartz Mountain Corp., 178 N.J . 40 1, 419 (20 0 4). Plaintiffs have presented no evidence of actual or constructive knowledge, but fram e their theory of the case as reflecting Defendant’s 8 failure to ensure that the seat was locked in place after its last m aintenance. “To allow a dangerous condition to exist because of one’s failure to properly reassemble equipment which a patron will be using renders the com mercial property owner liable for injuries sustained by the business invitee who is injured while using the equipm ent in the m anner intended while on the property within the scope of the invitation.” (Pl. Br., p. 4.) Plaintiffs seek to rely upon the testim ony and report of J ohn S. Posusney, which opines that the seat at issue could only be dislodged if it was not locked into place properly by the last person to remove it for m aintenance or pest control. That is, every time the seat is rem oved, it m ust be properly clicked into place; it cannot becom e dislodged by a patron bouncing on the seat or sitting near the edge. Defendant has objected to the use of this opinion. The guiding principles that inform the Court’s judgm ent as to the adm issibility of an expert opinion are found in Federal Rule of Evidence 70 2 and Daubert, 50 9 U.S. 579. Federal Rule of Evidence 70 2 provides: If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determ ine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, m ay testify thereto in the form of an opinion or otherwise, if (1) the testim ony is based upon sufficient facts or data, (2) the testim ony is the product of reliable principles and m ethods, and (3) the witness has applied the principles and methods reliably to the facts of the case. 9 Fed. R. Evid. 70 2. Consistent with that Rule, Daubert established a “trilogy of restrictions” on the adm issibility of expert testim ony relating to scientific knowledge. See Calhoun v. Yam aha Motor Corp., 350 F.3d 316, 321 (3d Cir. 20 0 3). Daubert also applies to expert testim ony relating to “technical or other specialized knowledge.” See Oddi v. Ford Motor Corp., 234 F.3d 136, 146 (3d Cir. 20 0 0 ) (quoting Kum ho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 141 (1999)). This “trilogy” consists of “qualification, reliability and fit.” Id. The Third Circuit liberally construes the qualifications of an expert, noting that “a broad range of knowledge, skills, and training will qualify a witness as an expert . . . .” See Yarchak v. Trek Bicycle Corp., 20 8 F. Supp. 2d 470 , 495 (D.N.J . 20 0 2) (quoting In re Paoli R.R. Yard PCB Litig., 35 F.3d 717, 741 (3d Cir. 1994) (“Paoli II”)) (internal quotations om itted). As such, exclusion of an expert witness is “im proper sim ply because an expert does not have the m ost appropriate degree of training.” Yarchak, 20 8 F. Supp. 2d at 495 (quoting Diaz v. J ohnson Matthey, Inc., 893 F. Supp. 358, 372 (D.N.J . 1995)). Qualification is not at issue in this case. With respect to reliability, the focus is on the “principles and m ethodology, not on the conclusions that they generate.” Daubert, 50 9 U.S. at 595. Four benchm arks help determ ine whether a theory or 10 technique qualifies as “scientific knowledge” such that it will assist the trier of fact. See Daubert, 50 9 U.S. at 593. The Court considers: (1) whether the theory can be or has been tested; (2) whether the theory or technique has been subjected to peer review and/ or publication; (3) the rate of error; and (4) whether the theory or technique has been generally accepted within the putative expert’s respective com m unity. Id. at 593-94. The Third Circuit adds other factors, including: (5) the existence and m aintenance of standards controlling the technique’s operation; (6) the relationship of the technique to m ethods which have been established to be reliable; (7) the qualifications of the expert testifying based on the m ethodology; and (8) the non-judicial uses to which the m ethod has been put. Paoli II, 35 F.3d at 742 n.8. When considering these factors, the Court’s inquiry m ust be a “flexible one.” Id. As for the third prong, Rule 70 2 requires that the “proffered expert testim ony m ust ‘fit’ within the facts of the case.” Yarchak, 20 8 F. Supp. 2d at 496. The fit requirem ent m andates that the testim ony “in fact assist the jury, by providing it with relevant inform ation, necessary for a reasoned decision of the case.” Id. (citing Magistrini v. One Hour Martinizing Dry Cleaning, 180 F. Supp. 2d 584, 595 (D.N.J . 20 0 2)). Thus, even if an expert 11 is qualified and relies on sound m ethodology, he m ust still “apply this expertise to the m atter at hand.” See Calhoun, 350 F.3d at 324. These factors are not exclusive. They “are intended to serve only as ‘useful guideposts, not dispositive hurdles that a party m ust overcom e in order to have expert testim ony adm itted.’” Yarchak, 20 8 F. Supp. 2d at 495 (quoting Heller v. Shaw Industries, Inc., 167 F.3d 146, 152 (3d Cir. 1999)). “If Daubert and its progeny require anything, it is that plaintiffs com e forward with proof of a valid m ethodology based on m ore than just the ipse dixit of the expert.” Furlan v. Schindler Elevator Corp., 864 F. Supp. 2d 291, 298 (E.D. Pa. 20 12) (quoting Pappas v. Sony Elecs., Inc., 136 F. Supp. 2d 413, 426 (W.D. Pa. 20 0 0 )). The Court finds, however, that Defendant’s arguments address the weight or credibility of the expert, not whether his opinions are adm issible under the applicable standards. Posusney adm itted that he took no m easurements, did not do any load testing on the seat, failed to weigh the seat, did not calculate the center of gravity of the seat, did not determ ine how tall Mr. Reil was or how long his legs were, did not have Mr. Reil dem onstrate how the accident happened, failed to test how easily the seat could m ove or flip, and did not do any rotational testing. (Posusney Dep., 7:20 -11:2, 16:13-24, 56:11-15.) He determ ined, however, that he did not need to do so, and he testified at 12 his deposition why the seat m easurements and the specifics of Plaintiff’s body were not necessary to his analysis from a qualitative standpoint. (Posusney Dep., 7:12-8:21; 8:22-10 :12). Rather, Posusney’s report explains the construction of the seat and its fram e. (Report at 3.) He stated, based on his engineering inspection of the seat that the “center of m ass and center of rigidity of the seat was closer to the front of the seat.” (Id.) He found that structurally, the booth’s bench seat was not m echanically fastened to its fram e and could be rem oved from it. (Id. at 5.) Thus, when the bench seat was not properly seated into its fram e, it m ade the seat susceptible to movement relative to its fram e under a live load from a guest attem pting to sit on it or sitting on it. (Id.) He also found that given the fact that the center of m ass and rigidity of the bench seat was away from the backrest and closer to its front side, this increased the risk and probability that the seat could teeter or rotate under a live load, m aking the seat unstable, hazardous and dangerous for a guest to use. (Id.) The defense m ay discredit this opinion, but it will not be barred. Next, Defendant argues that Plaintiffs have not produced evidence from which a reasonable jury could conclude that Defendant’s conduct or om ission caused Plaintiffs’ injury, as there is no proof in the record of negligent m aintenance of the booth or actual or constructive knowledge 13 that the booth was loose. Of course, negligence cannot be presum ed, it m ust be proven. Long v. Landy, 171 A.2d 1, 6 (N.J . 1961). Through Plaintiffs’ cross-m otion, they argue that the doctrine of res ipsa loquitor applies here. Res ipsa loquitur “is a doctrine that perm its, but does not require, the jury to infer negligence, effectively satisfying that element of plaintiff’s proofs . . . .” Khan v. Singh, 975 A.2d 389, 395 (N.J . 20 0 9). It is properly applied in circum stances where “(a) the occurrence itself ordinarily bespeaks negligence; (b) the instrum entality was within the defendant’s exclusive control; and (c) there is no indication in the circum stances that the injury was the result of the plaintiff’s own voluntary act or neglect.” Id. (quoting Bornstein v. Metropolitan Bottling Co., 139 A.2d 40 4, 40 8 (N.J . 1958)). This case appears to satisfy the conditions required. See also Van Staveren v. F.W. Woolworth Co., 10 2 A.2d 59 (N.J . Super. Ct. App. Div. 1954) (Doctrine of res ipsa loquitur was properly applied where patron seated herself on lunch counter stool, seat becam e disengaged from supporting pedestal, and patron fell to the floor.); Greshem v. Stouffer Corp., 241 S.E.2d 451 (Ga. Ct. App. 1978) (where defendant owned and operated restaurant and chair was furnished by restaurant to plaintiff for his use as a business invitee, jury would be authorized to infer negligence through use of res ipsa loquitur doctrine). 14 Even where res ipsa loquitur applies, it is m erely a “perm issible presum ption” that m ay be refuted by other evidence. Bornstein, 139 A.2d at 40 8. A party is not entitled to sum m ary judgment simply by virtue of showing that the res ipsa loquitur doctrine is available or appropriate, but the doctrine m ay enable a plaintiff to m ake out a prim a facie case that will survive sum m ary judgm ent. See J erista v. Murray, 185 N.J . 175, 191, 883 A.2d 350 , 360 (N.J . 20 0 5) (“res ipsa does not shift the burden of proof to the defendant”). As such, Plaintiffs are not entitled to sum m ary judgm ent. Given the record, however, the defense also is not entitled to sum m ary judgm ent. The Court finds at this stage of the litigation that Plaintiffs m ay be entitled to a jury instruction allowing a jury to draw a perm issible inference of negligence from the circum stances surrounding this incident. Co n clu s io n Accordingly, both m otions for summ ary judgment will be denied. An appropriate Order will be entered. Dated: December 1, 20 15 / s/ J oseph H. Rodriguez J OSEPH H. RODRIGUEZ U.S.D.J . 15
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