Lent v. Aramark Sports & Entertainment Services LLC et al, No. 3:2009cv05230 - Document 30 (W.D. Wash. 2010)
Court Description: ORDER granting in part and denying in part Defendant S.K. Events' 16 Motion for Summary Judgment. Signed by Magistrate Judge Karen L Strombom.(CMG)
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Lent v. Aramark Sports & Entertainment Services LLC et al Doc. 30 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT TACOMA 9 10 11 HEIDI LENT, an individual, 12 13 14 15 16 Plaintiff, No. C 09-5230 KLS v. ARAMARK SPORTS & ENTERTAINMENT SERVICES LLC, a Washington corporation; and SHARI KELLEY EVENTS, a California general partnership, ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT S.K. EVENTS MOTION FOR SUMMARY JUDGMENT 17 18 Defendants. 19 20 21 22 23 This matter comes before the Court on the Summary Judgment Motion of the Defendant Shari Kelley Events. (Dkt. 16 - 18, 25 and 26). The Plaintiff filed her Response (Dkt. 19 - 24). For the reasons set forth below, the Defendant’s motion is GRANTED in part and DENIED in part. The Court concludes that there remain material issues of fact that can only be resolved by the trier of fact. 24 25 26 27 UNDISPUTED FACTS Shari Kelley Events (S.K. Events) was hired in late 2007 by the Boys & Girls Club of South Puget Sound to plan a fundraising event for September 2008 to be held at the Greater Tacoma Convention and 28 Order Granting in Part and Denying in Part S.K. Events Motion for Summary Judgment Page - 1 Dockets.Justia.com 1 Trade Center (GTCTC). S.K. Events entered into a contract with GTCTC for use of a room which was 2 approximately 22,000 square feet. The contract with GTCTC required S.K. Events to use the services of 3 the defendant Aramark for catering. S.K. Events contracted with Aramark, as required by GTCTC, for 4 the catering and service of all food and beverages. 5 The S.K. Events contract with Aramark contained the following clause: 6 Set-ups and Floor Plans. ARAMARK reserves the right to approve, and make changes to, all floor plans and layouts of all event areas where ARAMARK’s services are to be provided, as deemed necessary in ARAMARK’s sole discretion, to enable the safe and efficient conduct of ARAMARK’s services by ARAMARK’s staff. Without limiting the generality of the foregoing, ARAMARK reserves the right to specify the locations and configuration of all decor, tables, buffet and service stations, aisles, and staging and breakdown areas. 7 8 9 10 Dkt. 17-2, Exhibit B. 11 The S.K. Events contract with GTCTC contained the following: 12 C. EVENT REQUIREMENTS 13 1. Custodial: CITY will maintain all public access areas including lobbies, registration areas, concourses, hallways, restrooms and meeting rooms (except when utilized for exhibit space), at no extra cost to LICENSEE. All janitorial and cleaning service, except as previously described, beginning with the first leased day through the final leased day, shall be the responsibility of the LICENSEE. In the event that no aisle carpeting is used for shows in the exhibition hall, CITY will provide (at no expense) personnel and equipment to properly clean aisles prior to the opening of each show day. Costs to remove debris or trash not associated with the normal course of business shall be borne by the LICENSEE. 14 15 16 17 18 19 20 ARAMARK provided its own bartenders and other waitstaff. S. K. Events neither supervised or isntructed any of the ARAMARK employees with regard to how to perform any of their duties. The Plaintiff attended the fundraiser at the GTCTC on September 20, 2008. This fundraiser had a 21 Cirque du Soleil theme with the bar, operated by ARAMARK, located inside the entrance doors to the 22 room. Prior to her fall, at least three people noticed an accumulation of water on the floor near the bar. 23 This water appeared to be melting ice from the bussing trays. At least two people made the bartenders 24 aware of the water and requested that it be cleaned up. Aimee Hentschell believes that she made just such 25 a request 30 minutes prior to Heidi Lent’s fall. Heidi Lent fell because of the liquid on the floor and was 26 injured as a result of the fall. 27 No one with S. K. Events was ever told about the presence of the liquid on the floor adjacent to 28 Order Granting in Part and Denying in Part S.K. Events Motion for Summary Judgment Page - 2 1 the bar. 2 3 4 ALTERNATIVE REQUEST TO CONTINUE MOTION The Court notes that the Plaintiff made an “alternative” request to continue the Defendant’s 5 Motion under Fed. R. Civ. P. 56(f), which reads as follows: 6 7 8 If a party opposing the motion shows by affidavit that, for specified reasons, it cannot present facts essential to justify its opposition, the court may: (1) deny the motion; (2) order a continuance to enable affidavits to be obtained, depositions to be taken, or other discovery to be undertaken; or (3) issue any other just order. 9 10 The Court notes that the Plaintiff failed to comply with the requirements of this rule. Counsel for 11 Plaintiff did not file an affidavit as required. Rather, this alternative request was contained in the body of 12 the Plaintiff’s Response, which is not a document signed under oath or penalty of perjury. 13 In addition, the request which was included in the Plaintiff’s Response sought additional time to 14 take discovery depositions. The Court filed its Scheduling Order on August 12, 2009. Dkt. 9. Pursuant 15 to the Scheduling Order, discovery was to be completed by February 8, 2010. The Defendant filed its 16 summary judgment motion on January 12, 2010 with a noting date of February 5, 2010. It appears, from 17 the Response, that the parties have agreed to discovery beyond that authorized by the Court’s order. It 18 also appears that the lack of diligence on the part of the Plaintiff and the lack of the necessary affidavit 19 compel DENIAL of this “alternative” request. 20 21 22 SUMMARY JUDGMENT STANDARD Pursuant to Fed. R. Civ. P. 56 ( c), the court may grant summary judgment “if the pleadings, 23 depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show that 24 there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of 25 law.” The moving party is entitled to judgment as a matter of law when the nonmoving party fails to 26 make a sufficient showing on an essential element of a claim on which the nonmoving party has the 27 burden of proof. Celotex Corp., v. Catrett, 477 U.S. 317, 323 (1985). 28 Order Granting in Part and Denying in Part S.K. Events Motion for Summary Judgment Page - 3 1 There is no genuine issue of fact for trial where the record, taken as a whole, could not lead a 2 rational trier of fact to find for the nonmoving party. Matsushita elec. Indus. Co. V. Zenith Radio Corp., 3 475 U.S. 574, 586 (1986) (nonmoving party must present specific, significant probative evidence, not 4 simply “some metaphysical doubt.”). See also Fed. R. Civ. P. 56 (e). Conversely, a genuine dispute over 5 a material fact exists if there is sufficient evidence supporting the claimed factual dispute, requiring a 6 judge or jury to resolve the differing versions of the truth. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 7 253 (1986); T.W. Elec. Service In. V. Pacific Electrical Contractors Association, 809 F.2d 626, 630 (9th 8 cir. 1987). 9 10 11 CLAIMS The Plaintiff asserts a negligence claim against the defendants. She alleges that the defendants had 12 a duty to maintain the event facilities in a reasonably safe condition, which included keeping the floor free 13 from slippery liquids and other substances, that they failed to do so and that they also failed to warn. As a 14 result of this failure, Ms. Lent fell and was injured. She also asserts that vicarious liability “for its 15 employees who were acting within the scope of their employment and in furtherance of their employer’s 16 business.” Dkt. 1, Amended Complaint. 17 18 19 DISCUSSION 1. Vicarious liability. Defendant S.K. Events asserts that it is not vicariously liable for the 20 actions or inactions of employees of ARAMARK. The undersigned agrees. 21 The undisputed facts lead to the conclusion that ARAMARK was an independent contractor, that 22 S.K. Events had no control or authority to control ARAMARK or its employees and in fact S.K. Events 23 asserted no control over ARAMARK or its employees. 24 In this case ARAMARK provided all the food and beverages pursuant to its contract with S.K. 25 Events, used its own employees, and exercised sole control over the manner and means by which its 26 employees provided the food and beverage service. S.K. Events was not involved in the set up of the 27 buffet tables or the bar stations and it provided no equipment, supplies or tools for serving any food or 28 Order Granting in Part and Denying in Part S.K. Events Motion for Summary Judgment Page - 4 1 beverages, other than some plastic “hamburger baskets.” No employees of S.K. Events worked the buffet 2 or bar stations. The provision of liability insurance, as required by the contract with GTCTC, does not 3 affect the analysis of vicarious liablity in this case. 4 As noted in the Defendant’s brief, a principal is not liable for the acts of an independent contractor. 5 DeWater v. State, 130 Wn.2d 128, 137, 921 P.2d 1059 (1996). Pursuant to an analysis of the factors 6 identified in Hollingbery v. Dunn, 68 Wn.2d 75, 80, 411 P.2d 431 (1966), the undersigned concludes that 7 S.K. Events is not vicariously liable for any actions or inactions of the employees of ARAMARK. The 8 Defendant’s motion to dismiss based on this theory is therefore GRANTED. 9 2. S.K. Events duty of care to Plaintiff. The Defendant, S.K. Events, asserts that it owed no 10 duty of care to the plaintiff based on its assertion that ARAMARK had exclusive control of the area in 11 which the plaintiff fell and that S.K. Events was not, therefore, in possession of that area. 12 One argument the Defendant presents in support of this conclusion is that ARAMARK used space 13 within the GTCTC on a regular basis and therefore it was not using space owned or provided by S.K. 14 Events. However, the facts show that ARAMARK used a portion of the space contracted by S.K. Events 15 from GTCTC. If S.K. Events did not enter into the contract, there would be no reason for ARAMARK to 16 be at the GTCTC that evening. 17 S.K. Events also argues that the contractual language with ARAMARK supports the conclusion 18 that S.K. Events did not have control and therefore possession over the area where the Plaintiff fell. 19 While it is true that the contract gave ARAMARK control regarding floor plan and layout, this control as 20 contained in the contract does not clearly remove the possessory interest that S.K. Events had over the 21 entire 22,000 square feet leased from GTCTC. 22 The Court notes, however, that the contractual language is less than clear as to who had or did not 23 have the obligation to maintain the floors in a safe condition. The GTCTC agreed, in the contract, to 24 provide janitorial service but there is no clear definition of that service. On the other hand, S.K. Events 25 had contractual custodial responsibilities including: All janitorial and cleaning service, except as 26 previously described, beginning with the first leased day through the final leased day, shall be the 27 responsibility of the LICENSEE. Finally, the Court notes that there is no reference in the contract with 28 Order Granting in Part and Denying in Part S.K. Events Motion for Summary Judgment Page - 5 1 ARAMARK regarding janitorial, clean-up or custodial responsibilities. 2 In addition, it is clear from the contract that S.K. Events leased the total area of 22,000 square feet 3 and for purposes of this summary judgment motion the court concludes that it was in possession of that 4 area. There is no allegation, however, that there was something inherently dangerous in the room. 5 Rather, the issue that remains for resolution is whether S.K. Events knew or should have known of the 6 condition of the floor around the bar. For these reasons, therefore, the Defendant’s motion to dismiss is 7 DENIED. 8 9 10 SUMMARY S.K. Event’s motion to dismiss (Dkt. 16) is GRANTED ONLY AS IT RELATES TO THE 11 Plaintiff’S claim that S.K. Events is vicariously liable for the actions or inactions of ARAMARK. The 12 balance of the motion is DENIED, for the reasons set forth above, as there remain material issues of fact 13 that require resolution by the trier of fact. 14 DATED this 19th day of February, 2010. 15 A 16 Karen L. Strombom United States Magistrate Judge 17 18 19 20 21 22 23 24 25 26 27 28 Order Granting in Part and Denying in Part S.K. Events Motion for Summary Judgment Page - 6
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