United States District Court, D. Oregon, Portland Division
OPINION AND ORDER
JOHN V. ACOSTA, Magistrate Judge.
Mabel DuPuis ("DuPuis") brings this negligence action against Marriott Corporation ("Marriott") alleging DuPuis sustained injuries as a direct result of Marriott's breach of its duty to protect patrons from the unreasonable risks posed by the revolving door in the front entry of its downtown waterfront hotel ("Hotel") in Portland, Oregon. DuPuis alleges Marriott acted with negligence and gross negligence and argues the doctrine of res ipsa loquitur applies to the Hotel's revolving door.
Currently before the court is Marriott's Motion for Summary Judgment Pursuant to FED. R. Civ. P. 56 on all claims and DuPuis's Motion for Sanctions Re: Spoliation against Marriott for its alleged spoliation of evidence. Oral argument was heard on these motions. Following oral argument, Marriott filed a Motion for Leave seeking to file a supplemental exhibit in support of its summary judgment motion. Because triable issues of fact exist as to whether Marriott breached its duty to DuPuis and whether Marriott's alleged breach caused DuPuis injuries, Marriott's motion for summary judgment is denied. Because Marriott did not spoil probative evidence, DuPuis's motion for sanctions is denied. Additionally, Marriott's request for leave to file a supplemental exhibit is denied as untimely.
Preliminary Evidentiary Matters
I. Unauthenticated Depositions
The evidence presented in support of, or in opposition to, a motion for summary judgment must be based on personal knowledge, properly authenticated, and admissible under the Federal Rules of Evidence. FED. R. CIV. P. 56. To satisfy the requirement of authentication, a condition precedent to admissibility, the proponent must produce "evidence sufficient to support a finding that the item is what the proponent claims it is." FED. R. EVID. 901(a). Evidence that is not properly authenticated will not be considered by the court when reviewing a motion for summary judgment. Orr v. Bank of America, 285 F.3d 764, 773 (9th Cir. 2002).
As to depositions, the Ninth Circuit stated in Orr :
A deposition or an extract therefrom is authenticated in a motion for summary judgment when it identifies the names of the deponent and the action and includes the reporter's certification that the deposition is a true record of the testimony of the deponent. See FED. R. EVID. 901(b); FED. R. Civ. P. 56(e) & 30(f)(1). Ordinarily, this would have to be accomplished by attaching the cover page of the deposition and the reporter's certification to every deposition extract submitted. It is insufficient for a party to submit, without more, an affidavit from her counsel identifying the names of the deponent, the reporter, and the action and stating that the deposition is a true and correct copy.' Such an affidavit lacks foundation even if the affiant-counsel were present at the deposition.
Orr, 285 F.3d at 774 (footnote and case citations omitted). Here, DuPuis submitted transcript pages from the depositions of Gail Cheatham, Mary Luckeroth, Billy Moore, Martin Gaona, and herself without the reporters' certifications. Marriott independently offered properly authenticated copies of the Cheatham, Moore, Gaona, and Dupuis depositions. The court views Marriott's authentication of the parties' mutual offerings as sufficient evidence these documents are what the parties purport them to be. Accordingly, the transcript pages proffered by DuPuis of the Cheatham, Moore, Gaona, and Dupuis depositions are authenticated and admitted. Only DuPuis, however, offered the Luckeroth deposition. Accordingly, the excerpts of Luckeroth's deposition are not properly authenticated. Nonetheless, even if the court were to consider Luckeroth's testimony, its contents would not alter the court's conclusion.
In ruling on a motion for summary judgment, the court will consider the admissibility of the proffered evidence's contents. Fraser v. Goodale, 342 F.3d 1032, 1036 (9th Cir. 2003) ("At the summary judgment stage, we do not focus on the admissibility of the evidence's form. We instead focus on the admissibility of its contents."). It will not focus on the admissibility of the evidence's form. Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986) ("We do not mean that the nonmoving party must produce evidence in a form that would be admissible at trial in order to avoid summary judgment.").
Although both parties rely on Quality Door Service ("QDS") work order #43171, Marriott raises concerns that the document contains hearsay within hearsay: a QDS employee's transcription of a Marriott employee's statements. At trial, however, the work order's contents could be properly admitted into evidence in a number of ways. The work order itself likely falls into the business records exception to the rule against hearsay. FED. R. EVID. 803(6). Marriott's telephonic communications with QDS may be admissible as an opposing party's statement under FED. R. EVID. 801(d)(2)(D). In addition, relevant witnesses may be available to testify to their personal knowledge of the work order's contents under FED. R. EVID. 602. Accordingly, the court will consider the document's contents in ruling on the motions currently before it.
On May 27, 2011, DuPuis and her daughter, Gail Cheatham ("Cheatham"), filed into the Hotel's front entry revolving door. (Anthony Broadman Decl. ("Broadman Decl.") Ex. A, Aug. 15, 2013.) Cheatham walked in front of DuPuis within the same door segment. (Gail Cheatham Dep. ("Cheatham Dep.") 56:2-56:16, 54:12-54:15, March 27, 2013.) Shortly after entering the door, DuPuis fell. (Broadman Decl. Ex. A).
DuPuis has limited memory of the event. (Broadman Decl. Ex. A.) She does not recall what caused her to fall, whether she made physical contact with the revolving door prior to falling, in what manner she fell, or where she felt pain after falling. (Mabel DuPuis Dep. ("DuPuis Dep.") 75:23-75:25, 69:20-69:23, 76:15-76:24, March 27, 2013.) Cheatham did not see her mother fall but she heard her scream and the thud of her head on the cement floor. (Cheatham Dep. 54:3-55:3.) In a witness statement, Cheatham told the Hotel the door was rotating "way too fast" and knocked DuPuis down. (Broadman Decl. Ex. A.) No other witnesses came forward with observations of the accident. (Broadman Decl. Ex. A.)
Still in the revolving door herself, Cheatham turned around to find her mother lying on the floor with her torso positioned on the outside pavement and her bottom half still within the door's partition. (Cheatham Dep. 55:4-55:19, 57:11-57:12.) According to Cheatham, the door continued to turn, pushing DuPuis's body. (Cheatham Dep. 57:20-57:24.) Cheatham maneuvered around their luggage and straddled her mother, using her body to block the incoming door pane. (Cheatham Dep. 55:9-55:12.) The pane struck Cheatham and stopped. (Cheatham Dep. 58:12-58:19.)
Marriott maintains it is "physically impossible" for the events to have transpired as Cheatham describes. (Alan Black Decl. ("Black Decl.") ¶ 15(d), July 18, 2013.) The door has multiple safety sensors: overhead infrared sensors mounted on the top of each door wing designed to stop the door if they detect a stationary object; pressure sensors on the base of each door wing designed to stop the door if they come into contact with someone's foot or bag; and two stationary pressure sensors on the inbound edges of the door frame designed to halt the door if something becomes wedged between the frame and the door wings. (Martin Gaona Dep. ("Gaona Dep.") 28:7-28:25; April 1, 2013; William Moore Decl. ("Moore Decl.") ¶ 6, July 23, 2013.) If the door struck DuPuis as alleged, the foot-level pressure sensor should have halted the door's rotation. As DuPuis lay on the floor, the overhead sensor might have identified her presence and stopped the door. If the door pushed DuPuis into the door frame, the side pressure sensors should have shut off the motor. Furthermore, the sensors are electronically integrated so if any single sensor malfunctioned, the door should have stopped. (Billy Moore Dep. ("Moore Dep.") 31:6-31:8, Aug. 23, 2013; Gaona Dep. 69:3-69:17; Moore Decl. ¶ 7; Dean Peddicord Dep. ("Peddicord Dep.") 30:5-30-15, Feb. 27, 2013.)
Marriott employs QDS, the door's installer, for maintenance and repair work. (Moore Dep. 29:11-29:29.) Industry standards recommend operators inspect revolving doors at least annually. (Gaona Dep. 19:16-19:23, 68:16-68:23.) However, neither Marriott nor QDS performs routine inspections of the door's safety features. (Moore Dep. 48:5-48:25; Gaona Dep. 19:24-20:18.) Marriott employee, Billy Moore ("Moore"), occasionally informally tests the door's sensors and automatic features as he walks through it in the normal course of business. (Moore Dep. 48:10-48:16.) QDS briefly inspects the door on service calls. (Gaona Dep. 17:2-17:24.) Neither Marriott nor QDS assess the door's rate of rotation ...