United States District Court, S.D. Georgia, Savannah Division
STAN BAKER UNITED STATES DISTRICT JUDGE
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.
Macy's Fitting Rooms
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.
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.)
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.
The Orr Incident
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 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. (Doc. 92, p. 2.) Ms. Guzman filled out a
brief incident report form. (Id. at pp. 3-4; doc.
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.)
Mr. Rutland, the head of maintenance at the store, reattached
the door later that month,  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.)
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.
Macy's Inspection Procedures and Incident
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.)
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;
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. (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.
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.)
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.
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.
Motion to Exclude (Doc. 84)
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.)
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 ...