United States District Court, W.D. Texas, San Antonio Division
RODRIGUEZ, UNITED STATES DISTRICT JUDGE
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.
a slip and fall case. Plaintiffs' First Amended Original
Complaint, filed December 20, 2016, is the live
pleading. 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.
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.
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
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
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.
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.
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.
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.
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.
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.
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.
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).
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.
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
September 15, the parties deposed Eric Hitchcock and agreed
to postpone Tammy Hitchcock's scheduled deposition
because she was not feeling well.
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.
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.
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
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
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 ...