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Orr v. Macy's Retail Holdings, Inc.

United States District Court, S.D. Georgia, Savannah Division

December 21, 2018




         Plaintiffs Jacquelyn Orr (“Mrs. Orr”) and William Orr (“Mr. Orr”) filed this suit against Defendant Macy's Retail Holdings, Inc. (“Macy's”) arising from injuries sustained by Mrs. Orr while shopping at a Macy's store in Savannah, Georgia. (Doc. 1-1.) Plaintiffs originally filed this suit in the State Court of Chatham County, (id.), and Defendant subsequently removed to this Court, (doc. 1). Plaintiffs filed an Amended Complaint, (doc. 19), and a Second Amended Complaint, (doc. 25). Defendant then filed an Answer. (Doc. 26.) The case is presently before the Court on Defendant's Motion to Exclude or Strike Expert Testimony, (doc. 84), Plaintiffs' Motion to Introduce Evidence of Other Similar Incidents, (doc. 77), Defendant's Motion for Summary Judgment, (doc. 78), and Plaintiffs' Request for Oral Argument, (doc. 110). For the reasons set forth below, the Court GRANTS Defendant's Motion to Exclude Expert Testimony, GRANTS in part and DENIES in part Plaintiffs' Motion to Introduce Evidence, DENIES Defendant's Motion for Summary Judgment, and DENIES Plaintiffs' Request for Oral Argument.

         BACKGROUND [1]

         I. Macy's Fitting Rooms

         The incident in this case took place at the Macy's department store in Oglethorpe Mall, located in Savannah, Georgia, on April 2, 2015. Macy's has fitting rooms available throughout the store for customers to try on the store's merchandise, and the design of these rooms varies from department to department. Two different fitting-room designs are relevant to this case-the “top hinge” and “jamb hinge” designs.

         Mrs. Orr was injured in a jamb hinge fitting room. In this the type of room, doors are attached to a large, multi-stall frame with various component parts. (Doc. 92-12, p. 33; doc. 92-29.) Each pair of stalls has a privacy panel that is approximately two feet wide and sits perpendicular to the wall separating one stall from the next. (Doc. 92-29, p. 2.) Before the fitting-room doors are attached to the frame, they are attached to a metal “support post” by two hinges-one at the top and one at the bottom. Id. The doors are then installed by screwing the metal support post to the privacy panel. (Doc. 92-12, p. 33.)

         The second type of fitting room, the “top hinge” model, features a single, private room with a door that is mounted directly onto a wooden doorframe via hinges with screws. (Id. at pp. 34-35.) There are no support posts and no privacy panels in the top hinge design.

         II. The Orr Incident

         On April 2, 2015, Mrs. Orr visited the women's dress department at Macy's. (Doc. 25, p. 2.) When Mrs. Orr attempted to enter a fitting room stall, the door and the support post to which it was attached[2] fell onto her, striking her arm and shoulder before landing on her foot. (Id.; doc. 82-1, pp. 51-52; doc. 82-2, p. 92.) According to Mrs. Orr, the door came to rest on the ground (and partially on her foot) “long ways standing up.” (Doc. 82-1, p. 52.) No. one other than Mrs. Orr saw the door fall. (Doc. 92-3, p. 4.) Judith Pecone, an employee in the dress department, was the first person to respond. (Id.) At some point, the fallen door was set aside against a wall. (Doc. 82-1, p. 52; doc 92-29.) Ms. Pecone contacted Ms. Donaldson, the women's dress department manager, who then blocked off the fitting room with an “out of order” sign. (Doc. 92-5, p. 34.) Ericka Guzman (“Ms. Guzman”), another Macy's employee, also responded to the incident shortly thereafter and observed the fallen door.[3] (Doc. 92, p. 2.) Ms. Guzman filled out a brief incident report form. (Id. at pp. 3-4; doc. 92-29.)

         Ms. Kearney, the sales department supervisor, was out of the store when Mrs. Orr's incident occurred. (Doc. 92-9, p. 10.) When Ms. Kearney returned, Ms. Guzman led her to the fitting room where she saw the door laying on the floor. The two women did not discuss the incident. (Id. at pp. 11-12, 13.) After receiving Ms. Guzman's incident report, Ms. Kearney spoke with other employees working in departments near the women's fitting room to ensure they knew to check the fitting rooms for disrepair, and also to ensure their familiarity with the reporting procedures should another incident occur. (Id. at pp. 13, 17-18.) She did not recommend any changes to Macy's standard procedures nor did she conduct any additional investigation of her own. (Id. at p. 13.)

         When Mr. Rutland, the head of maintenance at the store, reattached the door later that month, [4] he noted that at least one of the screws connecting the support post and the privacy panel was missing. (Doc. 82-2, p. 91.) However, he did not know what caused the screws to come out and did not make any determination to that effect. (Id. at pp. 94-95.)

         During discovery, Macy's produced evidence regarding two prior incidents involving dressing room doors that had fallen and injured customers within the year prior to Mrs. Orr's incident. These are described in detail in “Discussion” Section II, infra, wherein the Court addresses Plaintiffs' Motion to Introduce Evidence concerning both of these prior incidents.

         III. Macy's Inspection Procedures and Incident Protocol

          Three types of Macy's safety inspections are relevant to this action: (1) monthly preventative maintenance, (2) monthly “Hazard Assessment Safety Inspections, ” and (3) sales associate inspections. (Doc. 78, pp. 4-7.)

         Macy's monthly preventative maintenance was largely performed by Mr. Rutland. (Doc. 92, p. 18.) A computer-based work system generated and assigned his work orders, and an order requiring fitting room inspections was generated monthly. (Id.) The orders contained the start date, a list of specific items to check within the fitting rooms, and a number assigned to each specific task. When Mr. Rutland finished the assignments, the orders reflected the date of completion. (Doc. 92-20.) The standard fitting room order specified that Mr. Rutland should inspect the fitting rooms for “proper operation, ” but the order did not explicitly provide that he was required to check hinges or screws. (Doc. 92, p. 18; doc. 92-12, p. 23.) According to Sandra Wade, Macy's corporate representative, Mr. Rutland was considered a “safety inspector” pursuant to the company's written policy. This meant Mr. Rutland was expected to receive annual documented safety inspection training-training he did not receive. (Doc. 92-10, p. 20; doc. 104-1.)

         In addition to Mr. Rutland's monthly maintenance inspections, Macy's performed monthly “Hazard Assessment Safety Inspections” (“HASI”), which involved employee inspectors using itemized forms to identify potential safety hazards. (Doc. 92, p. 17.) The form has categories encompassing broad sections of the store, but fitting rooms or fitting room doors are not specifically mentioned.[5] (Doc. 104, p. 7; doc. 92-36.) Pursuant to Macy's corporate policy, the store had its own safety committee whose members were tasked with carrying out these inspections. (Doc. 92, p. 17.) No. individual member of the committee was to complete more than six inspections per twelve-month period. (Id.; doc. 92-18.) However, Ms. Wade completed nine of the twelve inspections in the year leading up to Mrs. Orr's accident. (Doc. 92-10, pp. 31-32.)

         Finally, Macy's utilized daily fitting room inspections to ensure cleanliness. (Doc. 104, p. 8.) Sales associates were required to check fitting rooms at least once per hour to clear them of clothing, and the inspections were recorded on a standard form. (Doc. 92-22.) Macy's did not produce the inspection forms from the three days preceding or the day of Mrs. Orr's incident. (Doc. 109, p. 13.)

         V. Overview of Claims

          Plaintiffs present three theories of liability. (Doc. 25.) First, Plaintiffs allege Defendant was negligent in inspecting and maintaining its premises. (Id. at 4.) Had Defendant exercised ordinary and reasonable care in its maintenance as required by Georgia law, Plaintiffs aver Mrs. Orr would not have been injured. (Id.) Second, Plaintiffs request damages for Mr. Orr's alleged loss of consortium caused by the accident. (Id. at 6.) Finally, Plaintiffs request punitive damages under the theory that Defendant knew or should have known of the risk to Mrs. Orr yet failed to act on this knowledge. (Id.) Defendant has moved for summary judgment on all claims. (Doc. 78.)

         Plaintiffs' Motion to Introduce Evidence, (doc. 77), and Defendant's Motion to Exclude or Strike Expert Testimony, (doc. 84), are also before the Court. Plaintiffs seek to introduce evidence of the two previous incidents at Defendant's store to prove that Defendant had knowledge of the hazard, that it failed to abide by its inspection procedures, and that the inspection procedures were not reasonable. (Doc. 77.) Defendant opposes this motion, (doc. 83), and seeks to exclude aspects of Ms. Guzman's deposition testimony to prevent Plaintiffs from relying on her opinions in establishing Defendant's negligence, (doc. 84.) These motions involve evidence relevant to the Court's ruling on summary judgment and will therefore be discussed first.


         I. Motion to Exclude (Doc. 84)

         Defendant Macy's moves for the exclusion of the opinion testimony of Ericka Guzman, a Macy's employee who responded to Mrs. Orr's incident. (Id.) Macy's argues Plaintiffs failed to lay the requisite foundation for her testimony, and seeks to exclude the following testimony offered by Ms. Guzman: (1) the fitting room door fell on Mrs. Orr because a screw or screws came out of the top hinge (as opposed to some other casual event, such as deterioration of the material that the screws were imbedded in); (2) the screw or screws worked themselves out of the hinge over a period of weeks or months; and (3) an inspection of the door prior to the Orr incident would have revealed the problem. (Id. at p. 2; doc. 99, p. 2.)

         The parties agree that Ms. Guzman is a non-expert lay witness and her testimony must come in, if at all, under Federal Rule of Evidence 701. (Doc. 84, p. 2; doc. 99, pp. 3-4.) Pursuant to Rule 701, lay witnesses are permitted to provide opinion testimony only if that opinion is: (a) rationally based on the witness's perception; (b) helpful to clearly understanding the witness's testimony or to determining a fact in issue; and (c) not based on scientific, technical, or other specialized knowledge within the scope of Rule 702. Fed.R.Evid. 701. The language in Rule 701(a) “is the familiar requirement of first-hand knowledge or observation, and the limitation in (b) is phrased in ...

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