Sean W. Martin and Chancey R. Miller in the Chattanooga (TN) office obtained summary judgment on behalf of a retail client in the US District Court for the Eastern District of Tennessee after five years of hard-fought litigation spanning both state and federal courts.
In October 2018, the plaintiff fell in defendant’s furniture store. Unsure what caused her fall, she asked her husband, “What did I trip over?” as she was lying on the floor. Although the plaintiff’s husband had his back to his wife and did not see the fall, he speculated his wife tripped over an electrical outlet embedded in the floor several feet away from his wife’s position on the floor. He photographed the electrical outlet and showed it to his wife. From this point forward, the plaintiff and her husband assumed she tripped and fell over the electrical outlet.
The plaintiff and her husband filed suit against the furniture store in October 2019 in Hamilton County Circuit Court, claiming the store was negligent by having the electrical outlet in the floor of its warehouse-style building with few interior walls. They sought $500,000.00 in damages. The case proceeded through discovery.
The parties litigated an interesting evidentiary issue involving a one-party consent telephonic recording of an electrician who had performed work in the store after the plaintiff’s fall. The plaintiffs sought to use the recording as evidence without taking the electrician’s deposition. This was not permitted in state court. The plaintiffs were given more time to obtain the electrician’s deposition but did not do so.
The store moved for summary judgment. The motion was initially denied in state court, then granted in part, and finally the state court judge unexpectedly called the parties a few weeks before trial and announced he was having second thoughts on summary judgment. The court requested additional briefing on the motion. The plaintiffs voluntarily dismissed their case the same day as the court’s unexpected call.
In December 2021, the plaintiffs filed suit in the US District Court for the Eastern District of Tennessee. The store immediately moved to dismiss the plaintiffs’ new complaint on grounds of forum shopping. The plaintiffs argued they were not forum shopping but needed federal subpoena power to obtain the deposition of the electrician who had moved out of state.
In September 2022, with no decision on the motion to dismiss, the store filed a motion for summary judgment based on the discovery taken in the state court litigation. The store argued (1) the plaintiffs could only speculate as to the cause of the fall, (2) the electrical outlet the plaintiffs alleged caused the fall was not an unreasonably dangerous condition and (3) the store is not vicariously liable for the work of independent professionals who designed and constructed the building, including the location and installation of the electrical outlets.
The court denied the motion to dismiss soon after the store filed the motion for summary judgment. However, the plaintiffs failed to respond to the motion for summary judgment. The court stayed the case and ordered the parties to mediate with no response on file to the motion for summary judgment. The case did not resolve in mediation. The plaintiffs’ last offer was $475,000.00.
The court lifted the stay months later and gave the plaintiffs a second chance to respond to the motion for summary judgment. Unsurprisingly, the plaintiffs’ response included (1) the secret recording of the electrician and (2) the “expert” opinion of an architect. These had been excluded in the state court litigation. In its reply, the defendant objected to the consideration of the recording and expert opinion. The defendant also filed a Daubert motion to exclude the plaintiffs’ expert. Once again, the plaintiffs received additional time to depose the electrician. They did not. The court then stayed the case a second time and referred the Daubert motion to the magistrate judge for decision.
The following year, the magistrate judge granted the Daubert motion and excluded the plaintiffs’ expert from consideration as nothing more than a credentialed opinion on liability. The court lifted the stay, and on September 30, 2024, granted the motion for summary judgment in a 34-page memorandum opinion. The court found the electrical outlet was not an unreasonably dangerous condition such that the store had a duty to warn of or remove it because (1) the local government had issued a certificate of occupancy finding no issues with the outlet, (2) the plaintiffs admitted to the obviousness of the outlet and (3) there had been no falls caused by the outlet in 11 years of business prior to this incident.
Great results!
