United States District Court, D. Oregon, Portland Division
PANDORA S. PIERCE, Plaintiff,
ATRIUM TRS V, LLC; TUCSON PORTLAND, LLC; and ATRIUM HOSPITALITY, LP, Defendants.
OPINION AND ORDER
Yim You, United States Magistrate Judge
Magistrate Judge: Plaintiff Pandora Pierce
(“Pierce”) alleges a single claim of negligence
against defendants Atrium TRS V, LLC, Tucson Portland, LLC,
and Atrium Hospitality, LP (collectively
“defendants”) for injuries sustained from
tripping over a walkway curb in a hotel atrium on December
31, 2015. This court has diversity jurisdiction over this
case pursuant to 28 U.S.C. § 1332. Defendants have
moved for summary judgment. ECF #16. For the reasons
discussed below, the motion (ECF #16) is GRANTED.
is entitled to summary judgment if the “movant shows
that there is no genuine dispute as to any material fact and
the movant is entitled to judgment as a matter of law.”
FRCP 56(a). The moving party has the burden of establishing
the absence of a genuine dispute of material fact.
Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).
“When judging the evidence at the summary judgment
stage, the district court is not to make credibility
determinations or weigh conflicting evidence, and is required
to draw all inferences in a light most favorable to the
nonmoving party.” Musick v. Burke, 913 F.2d
1390, 1394 (9th Cir. 1990); see also Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 255 (1986) (“The
evidence of the nonmovant is to be believed, and all
justifiable inferences are to be drawn in his favor.”).
Although “[c]redibility determinations, the weighing of
the evidence, and the drawing of legitimate inferences from
the facts are jury functions, not those of a judge . . .
ruling on a motion for summary judgment, ” the
“mere existence of a scintilla of evidence in support
of the plaintiff's position [is] insufficient . . .
.” Id. at 252, 255. “Where the record
taken as a whole could not lead a rational trier of fact to
find for the non-moving party, there is no genuine issue for
trial.” Matsushita Elec. Indus. Co. v. Zenith Radio
Corp., 475 U.S. 574, 587 (1986) (citation and quotation
arrived at the Embassy Suites by Hilton-Portland Airport late
afternoon on December 30, 2015, where she checked into her
hotel room and helped decorate a ballroom in preparation for
the Leisure Hour Junior Golf Program's New Year's Eve
party. Dep. of Pandora Pierce 15 (“Pierce Dep.”),
ECF #17-1. Defendants stipulate that Pierce was a business
invitee. Mot. Summ. J. at 5. Pierce had attended the same
event five other times and helped put it on at least twice.
Pierce Dep. 15-16; Decl. of Pandora Pierce ¶¶ 1-3
(“Pierce Decl.”), ECF #20. Between 400 and 500
guests were expected to attend the event. Pierce Decl. ¶
5. Pierce had been in the atrium probably 10 to 30 times
before, and had never fallen or seen anyone fall. Pierce Dep.
December 31, 2015, Pierce navigated the atrium to eat
breakfast and attend a morning meeting, and then again later
to attend a happy hour. Pierce Dep. at 24-25. That evening,
Pierce helped work the event's registration desk in front
of the ballroom. Id. at 28. She was wearing
2″-3″ pumps. Id. at 27, 45. At 8:00 pm,
the ballroom doors opened and the party began. Id.
at 29. Fifteen-to-thirty minutes later, Pierce headed back to
her room to retrieve something for another guest.
Id. On her way to the elevators, she stopped on a
walkway in the atrium and spoke to a co-worker who was
walking in the opposite direction, toward the ballroom.
Id. at 30, 43. After speaking with the co-worker,
Pierce attempted to step to the side to allow her co-worker
to pass but tripped and fell into the adjacent landscaping,
injuring her shoulder. Id. at 43-45.
tile walkway is cream colored. See Decl. of John Pinzelik
(“Pinzelik Decl.”), Exs. 5, 6, ECF #19-1. Some
segments of the walkway are flush with carpet and open into
seating areas. Id. Other segments are lined with a 4
1/4″ high dark-green tile curb that separates the
walkway from elaborate landscaping of plants, dirt, and
rocks. Id.; Pierce Dep. at 39. Some segments of the
walkway are lined with a guardrail above the curb, to
separate the walkway from waterfalls or a stream running
underneath the walkway. See Pinzelik Decl., Ex. 6. Further,
some segments of the walkway curve to the left or right and
either narrow or expand. Id.
Pierce fell, she was standing next to a segment of the
walkway that narrowed from 78″ to 58″ and curved
to the right, and where there was curbing but no guardrail.
Decl. of Tom Baird (“Baird decl.”), Exs. 6, 10,
ECF #21-1. She did not fall into a water feature, but
into plants, dirt, and rocks that were from 5″ to
7″ inches below the walkway. Pierce Dep. at 41-46;
Decl. of Stephen Brown (“Brown Decl.”), Exs. 2-4,
ECF ##24-2-24-4 (depicting the landscaping as 9″ to
11″ below the 4 1/4″ curb).
questioned about the incident, Pierce claimed the walkway was
crowded but could not recall if she bumped into anyone.
Pierce Dep. at 45-46. She also admits there were no issues
with the lighting. Id. at 41.
contend they are entitled to summary judgment because the
walkway, curb, and landscaping that Pierce tripped over and
fell into did not pose an unreasonable risk of harm as a
matter of law. Considering all the circumstances of
Pierce's fall, no reasonable jury could find the premises
posed an unreasonable risk of harm.
Admissibility of Expert Opinion Testimony
court must ensure all expert testimony is relevant and
reliable. Kumho Tire Co., Ltd. v. Carmichael, 526
U.S. 137, 148-52 (1999) (discussing the special obligation
imposed by FRE 702 on the trial court); Daubert v.
Merrell Dow Pharm., Inc., 509 U.S. 579, 589-91 (1993).
FRE 702 requires that “expert testimony relate to
scientific, technical, or other specialized knowledge, which
does not include unsupported speculation and subjective
beliefs.” Guidroz-Brault v. Mo. Pac. R.R. Co.,
254 F.3d 825, 829 (9th Cir. 2001). The expert's opinion
must also be “based on sufficient facts or data,
” be “the product of reliable principles and
methods, ” and show that the “expert has reliably
applied the principles and methods to the facts of the
case.” FRE 702(b)-(d). “An expert's bald
assurance of validity is not enough. Daubert v. Merrell
Dow Pharm., Inc., 43 F.3d 1311, 1316 (9th Cir. 1995).
Pierce relies on the expert opinion testimony of Tom Baird
(“Baird”). Baird is a Safety
Investigator/Consultant with over 45 years of experience
dealing with construction-safety issues. Baird Decl. 1, 26.
He has investigated and consulted in over 1, 440 injuries
since 1994. Id. His 37-page curriculum vitae
chronicles his education, training, and experience.
Id. at 26-62.
inspected the site and surrounding area where Pierce tripped
and fell, taking pictures and measurements. Id. at
3. He also reviewed the complaint, defendants' answer,
Pierce's deposition transcript, and defendants'
motion for summary judgment. Id. at 2. Baird does
not say whether he spoke to Pierce.
testimony includes four opinions. Id. at 3.
Defendants object to the admissibility of all four opinions,
arguing that they are conclusory and lack an adequate factual
basis. Reply at 2-6. This court agrees. In each opinion,
Baird merely integrates legal conclusions into the
complaint's allegations. Whether the opinions are
“the product of reliable principles and methods,
” and whether he “has reliably applied the
principles and methods to the facts of the case” is
unknown because he has not identified any principles or
methods at all in violation of FRE 702 (b)-(d).
Daubert, 43 F.3d at 1316 (“Rather, the party
presenting the expert must show that the expert's
findings are based on sound science, and this will require
some objective, independent validation of the expert's
in a subsequent section of Baird's testimony entitled
“Basis of Opinions, ” Baird offers additional
speculations and legal conclusions not based on any data or
methods and principles. Without referencing any accepted
industry standards or even the applicable building code for
the placement of handrails and guardrails, Baird repeatedly
speculates that “[a]ll of the walkways adjacent to the
water feature should have guardrails for the safety of the
hotel guests.” Baird Decl. at 4; Id. (“A
guardrail should have been placed at the location and that
would have prevented this incident”). At one point, he
evens says: “It is simple hazard analysis. A guardrail
should have been placed at the location of the incident.
Placing a guardrail there would have eliminated the
unreasonably hazardous and dangerous condition.”
Id. However, Baird fails to do an analysis, or-if he
has performed one-show the court what he did and what he
relied on to reach his conclusion.
without referencing the testimony of any fact witness, Baird
Upon reaching the bridged walkway [sic] the walkway narrows
to only 58″. Ms. Pierce's perception upon stepping
aside to let Ms. George pass would be that the walkway would
be the same width as it was until that point in the walkway,
that being 78″ wide. ...