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Hitchcock v. Steak N Shake, Inc.

United States District Court, W.D. Texas, San Antonio Division

November 2, 2017

TAMMY HITCHCOCK and ERIC HITCHCOCK Plaintiffs,
v.
STEAK N SHAKE, INC. Defendant.

          ORDER

          XAVIER RODRIGUEZ, UNITED STATES DISTRICT JUDGE

         On this date, the Court considered Defendant Steak N Shake's Motion for Summary Judgment (dock t no. 39), Plaintiff's Motion for Leave to File Second Amended Complaint (docket no. 40), Plaintiff's Motion for Extension of Time to File Response/Reply to Motion for Summary Judgment (docket no. 41), and Plaintiff's Motion to Continue Defendant's Motion for Summary Judgment (docket no. 48), and the various responses and replies thereto.

         This is a slip and fall case.[1] Plaintiffs' First Amended Original Complaint, filed December 20, 2016, is the live pleading.[2] It alleges that Plaintiff Tammy Hitchcock went to Steak N Shake (“SNS”) to eat dinner with her husband and son on August 21, 2015, and while there she “was seriously injured as a result of a dangerous condition that existed on the floor within the establishment.” First Am. Compl. ¶¶ 12-13. Specifically, it alleges that “[t]he linoleum flooring was wet with a cleaning solvent that was so slick that Plaintiff fell while crossing the floor” and she sustained “significant injuries to her ankle, knee, shoulder and abdomen.” Id. ¶ 13. Plaintiff Tammy Hitchcock brings a premises liability claim against SNS, and her husband Eric brings bystander and loss of consortium claims.

         The parties have been slow to complete discovery and, shortly before SNS moved for summary judgment based on the allegations that Plaintiff slipped in a cleaning solvent, Plaintiffs learned that a customer had reported a spill in the general area where Plaintiff fell. The day after SNS filed its motion for summary judgment, Plaintiffs filed a motion seeking to amend their Complaint to reflect that Tammy Hitchcock slipped in a puddle of spilled water, rather than in a cleaning solvent, as was initially believed and pled by Plaintiffs. Plaintiffs assert that they did not learn of the spill until August 2017, when they deposed an SNS employee, in part because Defendant had been evasive in discovery. Plaintiffs also seek to continue consideration of the motion for summary judgment until further discovery is completed, but have also responded subject to that motion.

         Background

         Plaintiffs filed this action in state court on August 11, 2016, and Defendant removed it on September 16, 2016. Plaintiffs' state court petition alleged that Plaintiff Tammy Hitchcock slipped because the floor was wet with a cleaning solvent. The Court issued a Scheduling Order on October 21, 2016, setting a deadline for filing motions to amend pleadings on December 20, 2016. On December 20, 2016, Plaintiffs filed their First Amended Original Complaint, which continued to allege that Plaintiff Tammy Hitchcock slipped on cleaning solvent.

         On December 21, 2016, Defendant provided its objections and answers to Plaintiffs' First Set of Interrogatories, Requests for Production, and Requests for Admission. Docket no. 23-2. Interrogatory No. 15 asked Defendant to “identify and describe the source of the condition and/or substance that caused Plaintiff's slip and fall that is the basis of this suit.” Defendant objected to the interrogatory as “speculative and harassing in nature” and on the basis that it “assumes facts that are in dispute” and “expressly denied by this Defendant thereby making any answer to this Interrogatory misleading.” Interrogatory No. 19 asked Defendant to “identify any and all cleaning products, liquids, solvents, and/or other substances applied to the floor of the premises in question on the day of the incident” and “when each substance was applied, ” as well as where and by whom. Defendant objected to the interrogatory as unreasonably speculative and harassing in nature, unduly burdensome, overly broad, vague, and ambiguous, multifarious, and calling for irrelevant information. Requests for Production 2, 5 and 6 sought, among other things, video of the Plaintiff's fall, the incident, and the premises, and Defendant filed various boilerplate objections. Request for Admission No. 13 asked Defendant to admit “that Defendant applied a cleaning solvent to the floor of the store on the day of the incident prior to the incident taking place, ” which Defendant denied.

         On March 15, the Court granted the parties' motion to extend the discovery deadline from April 17 to September 1, 2017. Docket no. 22 and text order dated March 15, 2017.

         On March 28, Plaintiffs filed a motion to compel discovery, which was referred to the Magistrate Judge. Plaintiffs asserted that Defendant had produced only a guest incident report, a transcription of an audio recording of an interview of Plaintiff Tammy Hitchcock, three surveillance videos of the interior of the store in the moments leading up to the fall, the fall, and moments after, and a copy of an insurance policy. The video depicted an employee mopping in the area where Tammy Hitchcock fell moments before she fell there. Plaintiffs sought all video footage of the premises from the day of the incident from the time employees first arrived to store closing. The parties reached an agreement concerning the Interrogatory responses, Requests for Admission, and all but certain Requests for Production. Docket no. 26. On May 25, the Magistrate Judge found Defendant's objections to the Requests for Production be impermissibly general and conclusory, noted that surveillance video footage of the premises from the day of the incident from the time employees first arrived to its closing was highly relevant, and granted the motion. The Magistrate Judge also overruled Defendant's objections to requests seeking documents reflecting the name of the employee(s) responsible for maintaining the front entrance on the date of the incident. Docket no. 30.

         On June 30, Plaintiffs' counsel emailed Defendant's counsel to discuss a date for final receipt of all items ordered by the Magistrate Judge, seeking dates for the deposition of the employee who was mopping at or near the time of the fall, her supervisor, and an SNS corporate representative, including on the topic of “the ‘water-less cleaning system' used by Defendant's employee(s) on the day of the incident.” Docket no. 41-1.

         Defendant asserts that it produced a 12-hour video to Plaintiffs' counsel containing footage from twelve different cameras on July 5. Docket no. 44 ¶ 3. Defendant contends that this video “captured the reporting of [a] spill and its clean up.” Id.

         On July 17, Plaintiffs' counsel again emailed Defendant's counsel about obtaining a date to depose “the employee mopping immediately prior to Mrs. Hitchcock's fall.” He also asked for dates to depose the corporate representative on several topics, including “the ‘water-less cleaning system' used by Defendant's employee(s) on the date of the incident.” Docket no. 41-1.

         On July 26, Plaintiffs' counsel emailed Defendant's counsel that he “managed to get the video you provided to work” but noted it was “roughly two hours, which does not comply with the Court's order on Plaintiff's Motion to Compel.” He asked for “all footage of the premises from the day of the incident.” Docket no. 46-1. He also again asked for deposition dates “for the mopping employee.” Id. On July 31, Defendant's counsel advised Plaintiffs' counsel that it was the only video footage SNS had for the incident. Id.

         On August 23, the Court granted Defendant's agreed motion to extend the discovery deadline from September 1 to November 1, 2017. Docket no. 35 and August 23, 2017 text order.

         Throughout August, the parties worked to reach agreement on the topics to be discussed at the 30(b)(6) depositions. Docket no. 46-1. On August 26, counsel discussed deposing corporate representatives. Plaintiffs' counsel again requested information concerning which corporate representatives would be deposed on certain previously agreed topics, including “the ‘water-less' cleaning system' used by Defendant's employee(s) on the day of the incident” and “Defendant's policies and procedures related to the use of the ‘water-less cleaning system' used by Defendant's employee(s) on the date of the incident.” Docket no. 46-1 (Ex. B).

         On August 29, Plaintiff deposed Defendant's employee Karah Toepher, the employee who had been mopping immediately prior to Plaintiff's fall. She testified that a customer (“the man in black”) reported to her and to Jordan, the employee working the grill, that there was something on the floor in front of the counter, that the spill was “like the size of a baseball” and “like a little four inches in diameter space maybe, ” that in her opinion it was clear and most likely water, and that she assumed it was water. She testified that she retrieved a dry mop, used it to clean the area, “made sure the floor was clean and completely dry, ” and then placed a “wet floor” sign on the area because she had been trained to do so. During the deposition, Plaintiffs' counsel did not ask about a water-less cleaning system, and appeared to be aware that a customer had reported a spill.

         On September 6, Plaintiffs' counsel asked Defendant's counsel to provide dates for the deposition of SNS Inc.'s representatives in San Antonio and Florida. On September 11, Defendant's counsel asked Plaintiffs' counsel if he had dates and times in mind to depose the corporate representatives.

         On September 15, the parties deposed Eric Hitchcock and agreed to postpone Tammy Hitchcock's scheduled deposition because she was not feeling well.

         On September 19, 2017, the scheduling order deadline for filing dispositive motions, Defendant moved for summary judgment based on the allegations in Plaintiff's First Amended Complaint, asserting that Plaintiff could not establish that a condition of the premises created an unreasonable risk of harm. Defendant noted that Plaintiff had not retained an expert “to offer an opinion about Defendant's restaurant premises' floor's safety much less was an inspection of Defendant's restaurant premises' floor ever performed to formulate an opinion as to unreasonable dangerousness of the area of the floor at Defendant's restaurant premises where Plaintiff fell.” Motion at 3. Defendant contends that Plaintiff cannot establish Defendant's failure to exercise ordinary care and causation because the incident involved commercial flooring, a commercial solvent, and the use of a commercial dry mop, and thus required expert testimony to establish the standard of care and its violation along with causation. Defendant further moved for summary judgment on Eric's claims. The parties then attempted to mediate, but were not successful.

         On September 20, Plaintiffs filed an opposed Motion for Leave to File Second Amended Complaint. Docket no. 40. Plaintiffs assert that, prior to deposing Defendant's employee Karah Toepher on August 29, they believed that Ms. Toepher was applying a cleaning solvent to the area in front of the food counter in the moments before the fall, but at the deposition Ms. Toepher testified that a customer reported a spill on the ground, and that it was clear liquid, most likely water. Plaintiffs state that they received the deposition transcript on September 19, and were seeking leave to amend their complaint to reflect this newly discovered information. Plaintiffs contend that Defendant would not be prejudiced because “this information was known by Defendant and its employees from the inception of this case” and “Plaintiffs did not discover this information earlier due to the evasiveness of Defendant's responses to written discovery.” Docket no. 40 at 2.

         On September 21, Plaintiffs' counsel emailed Defendant's counsel with proposed dates for the depositions of Defendant's corporate representatives. The parties continued to discuss possible dates on September 22, with Defendant's counsel noting that he needed to finish Tammy Hitchcock's deposition before the corporate representative depositions.

         On September 22, Plaintiffs filed a Motion for Extension of Time to respond to the Motion for Summary Judgment until after depositions of Defendant's corporate representatives and experts, stating that the discovery deadline had been extended by Defendant's agreed motion until November 1 and that the depositions were necessary to respond to the motion. Plaintiffs further asserted that they needed Eric's deposition transcript to respond to the motion for summary judgment.

         On September 27, SNS filed its response in opposition to the motion to amend the complaint, therein noting that (1) the Scheduling Order deadline for amending pleadings was December 20, 2016, (2) Toepher had been identified as a person with relevant information in November 2016, and (3) during discovery and before Toepher's August 29 deposition, Defendant produced a 12-hour video containing footage from twelve different cameras to Plaintiff's counsel on July 5, and this video captured the reporting of the spill and its clean up. Docket no. 44. Defendant therefore contends ...


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