Tripmacher v. Starwood Hotels & Resorts Worldwide, Inc. , 277 F. Supp. 3d 104 ( 2017 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
KARYN TRIPMACHER,
Plaintiff,
Civil Case No. 16-0092 (RJL)
V.
STARWO()D HOTELS & RESORTS
WORLDWIDE, INC.,
Defendant.
,¢._
MEMORANDUM oPINIoN
(seprember 29 ,2017) [Dkt. #17]
Plaintiff tripped and fell at her nephew’s Wedding reception, seriously injuring
herself. She filed a personal injury lawsuit in the Superior Court of the District of
Columbia, alleging that the owner and operator of the reception venue Was liable for
negligently failing to keep the premises in reasonably safe condition. Defendant removed
the action to this Court. In managing this case, l set deadlines for, inter alia, the timely
designation of expert Witnesses. Plaintiff missed her deadline once, then after having been
granted a second chance, missed it again. Presently before the Court is defendant’s Motion
for Summary Judgment [Dkt. #17]. Defendant argues that plaintiffs failure to timely
designate an expert is dispositive because D.C. tort-law requires expert testimony to
establish the standard of care applicable to this case. Upon consideration of the pleadings,
relevant law, and the entire record herein, the Court Will GRANT the Motion and enter
judgment for defendant
BACKGROUND
The happy couple married in August 2015. To mark the joyous occasion, they
invited their family and friends to celebrate at the St. Regis Hotel in Washington, D.C.
Def.’s Statement Mat. Facts 1111 1-2 (“Def.’s SMF”) [Dkt. #17-1]; Pl.’s Statement Mat.
Facts 1111 1-2 (“Pl.’s SMF”) [Dkt. #19]. Among the many guests was plaintiff Karyn
Tripmacher, a retired special-education teacher and the aunt of the groom. Def.’s SMF
11 3; Pl.’s SMF 11 3. Unfortunately, not all went well for Tripmacher that evening. At
approximately ll:()O p.m. she decided to leave the Astor Ballroom. As she did, she
tripped-and fell. Def.’s SMF 11 4; Pl.’s SMF 11 4. According to her deposition, Tripmacher
sustained serious injuries as a result of her fall, including fractures to her finger, ribs, and
vertebrae, as well as other injuries requiring an emergency hip replacement See Pl.’s
Opp’n to Def.’s Mot. Summ. J. (“Opp’n”) [Dkt. #19], Ex. l, Tr. ofKaryn Tripmacher Dep.
43:13_44:5, 51:11-19 (“Triprnacher Dep.”) [Dkt. #19-1].
Not surprisingly, the precise details are in dispute. None of the wedding guests or
hotel staff witnessed Tripmacher’s fall. Def.’s SMF 1111 7-9; Pl.’s SMF 1111 7-9. Tripmacher
believes that she tripped over a temporary wheelchair ramp connecting the Astor Ballroom
to the Astor Terrace. Compl. 11 5 [Dkt. #1-2]. The ramp in question was about five feet
wide and about twenty-six inches long. Gpp’n, Ex. 4, Tr. of Oliver A. Beckford Dep.
15:14-18 (“Beckford Dep.”) [Dkt. #19-1]. The carpenter who built the ramp estimated
that it was four or five inches tall at its highest point and that its twenty-six inch length
gave the ramp an incline of thirty to forty degrees. Id. at 15:19~16:1, 22:19-21 .1 The ramp
was covered in red carpet similar to that covering the ballroom floor. Id. at 20:5_21.
Although the ramp did not have handrails, its edges were marked with yellow tape about
one or two inches wide. Opp’n, Ex. 2, Decl. of John Mircovich (“Mircovich Decl.”) 1111 lO-
ll [Dkt. #19-1]. Photographs in the record show that the ramp was positioned in front of
a set of double doors in a manner that would enable a wheelchair to clear the single stair
between the Astor Ballroom and the Astor Terrace. See Def.’s Mot. Summ. J., Ex. l [Dkt.
#17-4]; Mircovich Decl., Ex. l [Dkt. #19-1, at 18]. Although Tripmacher concedes that
she did not see the ramp when she tripped, Pl.’s SMF 11 6, according to her deposition she
“know[s] for a fact that it was the ramp” that she tripped over because she “can’t imagine
[there] was anything else on the floor.” Tripmacher Dep. 39:2-40:12; see also Mircovich
Decl. 11 15 (“I observed nothing except the ramp that could have caused my aunt to trip or
slip and fall.”).
Tripmacher also testified that the Astor Ballroom was “very crowded” the night of
the wedding reception and that the tables in the ballroom “were so close together” that
movement between them was difficult. Tripmacher Dep. 81 :9-16. In addition, she stated
that the ballroom was dimly lit. Ia’. at 31:6-17. John Mircovich, another guest at the
wedding and the husband of Tripmacher’s niece, submitted a sworn affidavit also attesting
that “[t]he ballroom was dimly lit.” Mircovich Decl. 11 13. The director of banqueting at
l Although the deponent estimated the incline of the ramp at thirty to forty degrees (and the parties
recite that number), the Court observes that a five-inch rise over a twenty-six-inch run entails an angle of
approximately eleven degrees-given that, as the deponent testified, the slope of the ramp was “one solid
angle.” Beckford Dep. 2518-15. Go figure !
the St. Regis Hotel, Hamid Azimi, testified that the lights in the Astor Ballroom were
dimmed to approximately fifty percent of their full brightness during the reception. Def.’s
Reply Supp. Summ. J. [Dkt. #20], Ex. 4, Tr. of Hamid Azimi Dep. 43:18~47:7 (“Azimi
Dep.”) [Dkt. #20-4]. Tripmacher stated, when shown a reference photo, that she believes
the lights were set “darker” than fifty percent Tripmacher Dep. 86:8-18.
On December 22, 2015, Tripmacher filed suit in the Superior Court of the District
of` Columbia, alleging that Starwood Hotels & Resorts Worldwide, lnc. (“Starwood” or
“defendant”), the owner and operator of the St. Regis Hotel, negligently breached its “duty
to exercise reasonable care under the circumstances to keep the premises reasonably safe
for persons lawfully upon the property,” Compl. 11 9, and that, as a result of this breach,
Tripmacher experienced injuries entitling her to $2 million in damages, plus costs and
interests, id. 11 ll. Invoking this Court’s diversity jurisdiction, Starwood promptly removed
the action here. See 28 U.S.C. §§ 1332, 1441; Def`.’s Pet Removal1111 5-6 [Dkt. #l-l].
On March 7, 2016, upon joint motion of the parties, l entered a scheduling order
setting, inter alia, deadlines for expert designations Pursuant to the initial schedule,
Tripmacher’s expert designations were due by June l, 2016, and Starwood’s by July l,
2016. Tripmacher’s deadline came and went without an expert designation Then, on June
23, the parties jointly requested that l modify the scheduling order such that plaintiff’ s
expert designations would be due August l, 2016, and defendant’s by September l, 2016.
Joint Mot. Extend Scheduling Order 2 [Dkt. #l l]. l granted the motion a few days later.
Unfortunately for Tripmacher, she failed to take advantage of this second chance; August
l came and went with no further activity on the docket On September l, Starwood
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designated an orthopedic surgeon as its expert witness. See Def.’s Rule 26(a)(2) Expert
Designation [Dkt. #12]. One week later, Tripmacher moved for leave to late-file an expert
designation, explaining that “due to an internal scheduling error, the deadline to name
expert witnesses of August l, 2016, did not make it onto the actual calendar for the
[p]laintif ,” and that she had not discovered the error until August 29. Pl.’s Mot. Leave to
Late-File Rule 26(a)(2) Expert Designation & Report 11 5 (“Pl.’s Mot. to Late-File”) [Dkt.
#13]. Plaintiff did not explain why it took an additional ten days after the discovery of her
error to seek leave to late-file. ln any event, Starwood timely opposed the motion, and on
October ll, 2016, l denied Tripmacher’s request for leave to late-file.
Starwood filed the instant motion for summary judgment in December 2016.
Briefing on the Motion was completed in January 2017, and I took the Motion under
advisement shortly thereafter.
STANDARD OF REVIEW
Summary judgment is appropriate when the pleadings and the record demonstrate
that “there is no genuine dispute as to any material fact and the movant is entitled to
judgment as a matter of law.” Fed. R. Civ. P. 56(a). “A fact is material if it ‘might affect
the outcome of the suit under the governing law,’ and a dispute about a material fact is
genuine ‘if the evidence is such that a reasonable jury could return a verdict for the
nonmoving party.”’ Steele v. Schafer, 535 F.3d 689, 692 (D.C. Cir. 2008) (quoting
Ana'erson v. Liberly Lobby, Inc., 477 U.S. 242, 248 (1986)). The moving party bears the
initial burden of demonstrating the absence of a genuine dispute of material fact See
Celotex Corp. v. Catrett, 477 U.S. 317, 322~23 (1986). To defeat summary judgment, the
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nonmoving party must “designate specific facts showing there is a genuine issue for trial.”
Ia’. at 324 (quotation marks omitted). In determining whether there is a genuine dispute
about material facts, the court “must view the evidence ‘in the light most favorable to the
nonmoving party and . . . draw all reasonable inferences in favor of the nonmoving party.”’
Grosa’ia'z'er v. Broaa'. Ba'. of Governors, Chairman, 709 F.3d 19, 23-24 (D.C. Cir. 2013)
(quoting Talavera v. Shah, 638 F.3d 303, 308 (D.C. Cir. 2011) (alteration in original).
Moreover, if the non-moving party “fails to make a showing sufficient to establish the
existence of an element essential to that party’s case, and on which that party will bear the
burden of proof at trial,” summary judgment may be granted. Celotex, 477 U.S. at 322.
ANALYSIS
Tripmacher pursues a negligence claim against Starwood. In the District of
Columbia, “[t]he elements of a cause of action for negligence are a duty of care owed by
the defendant to the plaintiff, a breach of that duty by the defendant, and damage to the
interests of the plaintiff, proximately caused by the breach.” Wooa's v. District of
Columbia, 63 A.3d 551, 553 (D.C. 2013) (quoting Taylor v. District ofColumbia, 776 A.2d
1208, 1214 (D.C. 2001)).2 “[T]he applicable standard for determining whether an owner
or occupier of land has exercised the proper level of care to a person lawfully upon his
2 My jurisdiction stems from the diversity of the parties. See Def.’s Pet. Removal 1111 5-6;
28 U.S.C. §§ 1332, 1441. A federal court sitting in diversity must apply the substantive law of the
jurisdiction in which it sits. Erz'e R.R. C0. v. Tompkins, 304 U.S. 64 (1938). My duty, then, “is to
achieve the same outcome [that] would result if the District of Columbia Court of Appeals
considered this case.” Metz v. BAE Sys. Tech. Sols. & Servs. Inc., 774 F.3d 18, 21 (D.C. Cir. 2014).
To fulfill this obligation, I look for guidance to the published opinions of the D.C. Court of
Appeals. See id.
premises is reasonable care under all of the circumstances.” Night & Day Mgmt., LLC v.
Butler, 101 A.3d 1033, 1038 (D.C. 2014) (quoting D.C. Hous. Auth. v. Pinkney, 970 A.2d
854, 866 (D.C. 2009)). D.C. courts often require expert testimony to prove the standard of
care. See Varner v. District of Columbia, 891 A.2d 260, 267_68 (D.C. 2006) (collecting
cases). Where the subject of the alleged breach is “so distinctly related to some science,
profession, or occupation as to be beyond the ken of the average lay juror,” the plaintiff
must produce expert testimony. Nz`ght & Day Mgml., 101 A.3d at 1039 (quoting Vamer,
891 A.2d at 265). However, if the alleged negligence occurred in a context “within the
realm of common knowledge and everyday experience, the plaintiff is not required to
adduce expert testimony.” Id. at 1038_39 (quoting Tolu v. Ayodeji, 945 A.2d 596, 601
(D.C. 2008)).
Starwood contends Tripmacher cannot carry her burden in this case because she
failed to designate an expert witness capable of establishing the applicable standard of care
and who can opine as to whether that standard was breached when the St. Regis Hotel
placed the temporary wheelchair ramp in the Astor Ballroom. Mem. Supp. Def.’s Mot.
Summ. J. 5~9 [Dkt. #17-2]. Tripmacher responds that no expert is required because a lay
jury is capable of assessing the “relative dangerousness” of the ramp based upon their own
experience Gpp’n 7; see also z`a’. at 13 (“Starwood’s negligence consists of creating a
tripping hazard and failing to prevent invitees from falling over it. This is not too
convoluted or recondite for a lay jury to understand.”). She identifies several problems
that she believes to be within the ken of the average lay juror. These include the
specifications of the wheelchair ramp itself, including its color, size, and lack of handrails,
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as well as the number of people and the level of illumination in the Astor Ballroom. See
z`a’. at 7. In addition, Tripmacher argues that as a general matter, expert testimony is not
required where a “plaintiff is injured after losing [her] footing and falling.” Ia’. at 10.
“At first blush, there is arguably some common sense appeal to [Tripmacher’s]
suggestion that the average juror does not require advice from experts” in order to
recognize a potential tripping hazard based upon the types of considerations she identifies.
Varner, 891 A.2d at 266. “But such a judgment based on bare intuition of this sort would
be misguided.” Briggs v. Wash. Metro. Area TransitAuth., 481 F.3d 839, 845 (D.C. Cir.
2007). “The D.C. Court of Appeals has required expert testimony in a number of cases
that, on first blush, appear to be within the realm of common knowledge.” Ia'. (collecting
cases); see also Goa’frey v. Iverson, 559 F.3d 569, 572 (D.C. Cir. 2009) (“Recently . . . the
D.C. Court of Appeals has required expert testimony in a wider variety of cases, even in
those that might initially seem to fall within jurors` common knowledge.” (citation
omitted)). lt has also repeatedly "affirmed trial court rulings that expert testimony is
required to establish the standard of`care in negligence cases” involving, inter alz`a, “issues
of safety.” Varner, 891 A.2d at 267 (collecting cases); accord Nz'ghl & Day Mgmt., 101
A.3d at 1039. lndeed, “the case law indicates that the `common knowledge’ exception to
the expert testimony requirement is recognized only in cases in which everyday experience
makes it clear that jurors could not reasonably disagree over the care required.” Briggs,
481 F.3d at 845. When negligence cases implicate safety issues and the D.C. Court of
Appeals holds expert testimony unnecessary, “the cases tend to arise from facts showing
an obvious hazard.” Wise v. Um'ted States, 145 F. Supp. 3d 53, 61 (D.D.C. 2015)
(collecting cases). This is not such a case.
To begin with, the D.C. Court of Appeals has held that proving the standard of care
applicable to managing large numbers of people in venues open to the public requires
expert testimony. In Hz`ll v. Metropolz'tan Afrz`can Methodist Episcopal Church, 779 A.2d
906, 908~10 (D.C. 2001), for example, a woman was injured when she was caught in a
rush of people on a congested stairway in a newly inaugurated church building The D.C.
Court of Appeals held that although the process of entering and exiting large events was
within the common knowledge and experience of the average lay juror, “that is a far cry
from any experience with the process of planning for the handling of large crowds in such
circumstances, both architecturally and through various crowd control measures.” Ia’. at
910. “Without the expert testimony of one familiar with such considerations,” the court
reasoned, “the jury would be left to sheer speculation as to various types of crowd control,
what level of measures is generally accepted as reasonable in such circumstances, and the
relation of such measures to possible mishaps in the exiting process.” Ia’.
The same logic applies here. Tripmacher argues that lay jurors can assess the degree
of potential danger posed by a temporary wheelchair ramp surrounded by tables in a
crowded ballroom. Opp’n 7. Although many potential jurors are likely familiar with
crowded conditions at wedding receptions, the average layperson has no experience With
designing appropriate measures to handle a large number of people, nor with the placement
of accessibility features in spaces that are open to the public. Without expert testimony,
then, the jury would be left with nothing but “sheer speculation” as to whether the location
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of the temporary wheelchair ramp posed any danger due to the number of people in the
Astor Ballroom during the wedding reception.
Equally plain is the necessity of expert testimony for the jury to evaluate whether
the ramp posed a hazard because the lights in the ballroom were dimmed. See z'd. Our
Circuit has recognized circumstances where D.C. tort-law requires expert testimony to
prove the standard for “adequate” illumination. See Briggs, 481 F .3d at 846 (holding expert
testimony required to prove standard for lighting temporary construction walkway in
Metrorail station). Here, the director of banqueting at the St. Regis Hotel, Hamid Azimi,
testified that the lights in the Astor Ballroom were dimmed to approximately fifty percent
of their full power. Tripmacher believes they were set lower than fifty percent, and proffers
the lay opinion testimony of herself and another wedding guest to suggest that this setting
was too low. Whatever the precise lumen level in the Astor Ballroom that night, it is clear
that no reasonable juror could rely on the lay opinion testimony of Tripmacher and another
guest to establish the standard for adequate ballroom lighting “While lay persons can
certainly distinguish between illumination and complete darkness, there is nothing to
indicate that common knowledge includes a universal standard of ‘adequate’ lighting
within a [hotel ballroom].” Id.; see also Capitol Sprinkler lnspectz'on, Inc. v. Gaest Servs.,
Inc., 630 F.3d 217, 225 (D.C. Cir. 2011) (relying on Briggs to hold expert testimony
required to establish standard for “ready accessibility” of drum drips). As such, expert
testimony is required.
l reach a similar conclusion in regard to Tripmacher’s contention that lay jurors are
equipped to determine whether the specifications of the temporary wheelchair ramp
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rendered it unreasonably dangerous Tripmacher believes the ramp was difficult to see
(and therefore posed a tripping hazard) because it lacked handrails, was relatively small,
and was covered in carpet nearly the same color as the ballroom floor. See Opp’n 7_8.
She also believes, apparently, that the yellow tape on the edges of the ramp failed to provide
adequate visual contrast Upon review of the District’s case law, including the cases cited
by plaintiff, I conclude that the features of the ramp identified by Tripmacher do not create
the kind of obvious hazard the D.C. Court of Appeals has held sufficient to ameliorate the
need for expert testimony in cases involving premises safety. Cf Destefano v. Chz'la’ren ’s
Nat’l Med. Ctr., 121 A.3d 59, 75 (D.C. 2015) (involving “a large, uncovered vent in the
wall of a parking garage” through which a child could fall); Bostz'c v. Henkels & McCoy,
Inc., 748 A.2d 421, 425_26 (D.C. 2000) (involving “a gap of six to seven inches between
boards” covering a large trench into which a pedestrian could fall).3 Moreover, the flaws
Tripmacher identifies are all “distinctly related” to the design and construction of the ramp,
and thus to the engineering or construction professions. Nz'ght & Day Mgmt., 101 A.3d at
1039; see also Wise, 145 F. Supp. 3d 53 at 62~64 (holding expert testimony required to
prove standard of` care for handrail installation and inspection). I therefore conclude that
expert testimony is required to establish the standard of care applicable to the issues
plaintiff identifies
3 ln addition to these cases, Tripmacher also cites T rust v. Washington Sheraton Corp., 252 A.2d 21,
22 (D.C. 1969), which held that no expert testimony was required where a plaintiff lost her footing
descending a step outside of` a hotel bathroom. That case, nearly a half-century old, does not appear to
reflect the modern position of the D.C. Court of Appeals See Godfrey, 559 F.3d at 572 (“Recently . , . the
D.C. Court of Appeals has required expert testimony in a wider variety of cases, even in those that might
initially seem to fall within jurors’ common knowledge.” (citation omitted)). ln any event, the average lay
juror is likely to have less experience traversing temporary wheelchair ramps than descending steps.
ll
Finally, I am not persuaded by Tripmachers’ categorical argument that “expert
testimony is not needed to prove a national standard of care, such as a building code, that
requires particular markings, a particular level of lighting, or a particular type of handrails
or guardrails,” or to prove a "deviation from the standard of care,” in any case where a
“plaintiff is injured after losing [her] footing and falling.” Opp’n 10. To the contrary, the
D.C. Court of Appeals has repeatedly found expert testimony necessary on the facts of
particular cases involving a loss of footing See, e.g., Wllson v. Wash. Metro. Area Transit
Auth., 912 A.2d 1186, 1191 (D.C. 2006) (affirming judgment granted for defendant
notwithstanding the verdict where plaintiff `°presented no expert testimony, or any
testimony for that matter, with respect to the presence of the orange sticky substance on
the steps” (emphasis omitted)); Twyman v. Johnson, 655 A.2d 850, 853 (D.C. 1995)
(affirming directed verdict for defendant where expert’s testimony “had no foundation”
and plaintiff “was the only witness” to her slip). lndeed, Tripmacher herself acknowledged
at an earlier stage of this litigation that expert testimony was “crucial to [her] case at trial”
and that “1t]he exclusion of such testimony would be incurany prejudicial.” Pl.’s Mot. to
Late-File 11 11. Unfortunately for plaintiff, her prior assessment has proved all too true;
under D.C. law she cannot establish the standard of care without expert testimony.
In sum then, because Tripmacher concedes that she designated no expert, and
because her theory of negligence involves issues related to crowding, lighting, and the
specifications to which the temporary wheelchair ramp was designed and constructed, l
will grant summary judgment for Starwood. See Burke v. Air Serv Int’l, Inc., 685 F.3d
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l 102, 1105 (D.C. Cir. 2012) (affirming entry of summary judgment where plaintiff failed
to designate expert required under D.C. tort-law); Hill, 779 A.2d at 910 (same).4
CONCLUSION
F or all of the forgoing reasons, the Court GRANTS defendant’s Motion for
Summary Judgment. An Order accompanies this Memorandum Opinion.
g 1
WZM
RICHARBJ) LEoN
United States District Judge
4 In light of this conclusion, I do not reach Starwood’s argument that there is insufficient evidence
for a reasonable jury to conclude that Tripmacher in fact tripped over the temporary wheelchair ramp.
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