Seymour v. LQ Management, LLC et al

MEMORANDUM in Support of 32 MOTION for Summary Judgment

M.D. Tenn.August 1, 2018

4817-0397-7582 v1 2823531-000047 08/01/2018 IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF TENNESSEE AT NASHVILLE STEPHEN SEYMOUR, ) ) Plaintiff, ) ) v. ) Civil Action No. 3:16-cv-03039 ) LQ MANAGEMENT, LLC AND LQ ) JUDGE CAMPBELL PROPERTIES, LLC, ) Magistrate Judge Newbern ) Defendants. ) MEMORANDUM IN SUPPORT OF LQ MANAGEMENT, LLC AND LQ PROPERTIES, LLC’S MOTION FOR SUMMARY JUDGMENT Defendants LQ Management, LLC and LQ Properties, LLC pursuant to Rule 56 of the Federal Rules of Civil Procedure respectfully submit this Memorandum of Law in Support of their Motion for Summary Judgment. I. INTRODUCTION This lawsuit arises out of an alleged slip and fall at a La Quinta Inn located in Franklin, Tennessee on November 29, 2015. Plaintiff has alleged three causes of action in his complaint, Premises Liability/Negligence; Vicarious Liability; and Negligent Training and Supervision. All three causes of action relate to the alleged presence of water on the floor in the room Plaintiff rented. Plaintiff’s Complaint states that La Quinta created the allegedly unsafe condition, had actual knowledge of the allegedly unsafe condition, and La Quinta had constructive knowledge of the allegedly unsafe condition. Plaintiff likewise complains that his alleged slip and fall caused him serious bodily injury, requiring a major back surgery. At this point, this case has moved through the pleading stage, extensive fact discovery has been completed, and the discovery depositions of the various expert witnesses have been Case 3:16-cv-03039 Document 33 Filed 08/01/18 Page 1 of 17 PageID #: 100 2 4817-0397-7582 v1 2823531-000047 08/01/2018 taken. Despite Plaintiff’s extensive efforts, Plaintiff has not produced any evidence to support his claims that La Quinta caused the alleged water to be present in his room, had actual knowledge of water being present in his room, or was on constructive notice of water being present in his room prior to his November 29, 2015 alleged slip and fall. Similarly, Plaintiff has failed to put forth any expert or medical testimony that his alleged slip and fall led to his June 2016 back surgery or caused him increased pain and suffering. For these reasons, La Quinta is entitled to summary judgment on all three of Plaintiff’s claims. II. FACTUAL BACKGROUND Stephen Seymour, Plaintiff, rented a hotel room at a La Quinta Inn and Suites located at 4207 Franklin Commons Court, Franklin, Tennessee 37067 (“La Quinta”) on November 29, 2015. (Statement of Undisputed Material Facts (“SUMF”), 1). He was originally given room 103. (SUMF, 2). Room 103 was rented to Suzanne Foster, a La Quinta employee, from November 27, 2015 through November 29, 2015 and to other guests from November 30, 2015 through December 11, 2015. (SUMF, 3 & 4). Housekeeping inspected and cleaned room 103 on November 29, 2015, prior to Plaintiff checking in, and noted no maintenance issues with the room. (SUMF, 5). Plaintiff alleges that while in room 103, he slipped and fell as a result of a wet floor. (SUMF, 6). There is nothing in the maintenance records for La Quinta that shows any type of water in room 103 on or around November 29, 2015. (SUMF, 7). After Plaintiff’s alleged fall, and upon his return to the hotel, Stan Carlock, the hotel’s General Manager at the time, came to believe that the water was coming from the sprinkler head as a result of a plumbing issue. (SUMF, 8). If there had in fact been a leak in room 103, the room would have been taken out of order. (SUMF, 9). The room was not taken out of order and was in fact rented the day Plaintiff checked out. (Id.). Case 3:16-cv-03039 Document 33 Filed 08/01/18 Page 2 of 17 PageID #: 101 3 4817-0397-7582 v1 2823531-000047 08/01/2018 Vladamir Lewis, the current General Manager, who started working at the La Quinta in February 2015, has never seen water leak all the way down to the first floor. (SUMF, 10). He had no recollection of any water leaking into room 103 or reviewing any maintenance records that showed a leak in room 103. (SUMF, 11). Scott Christopher, La Quinta’s Maintenance Supervisor, does not believe water would have leaked from the roof, down through rooms 403, 303, and 203, into room 103 on November 29, 2015. (SUMF, 12). Mr. Christopher, who has worked at La Quinta since January 2014, has never seen water leak from the roof down into room 103. (SUMF, 13). The hotel roof had experienced leaks prior to November 29, 2015, including a leak above room 403. (SUMF, 19). Mr. Christopher attempted to repair those leaks on a number of occasions. (SUMF, 18). The hotel’s roof was replaced in June 2016, and the contractor who completed the roof testified that most of the ISO was in good condition. (SUMF, 14). In fact, the insulation on the roof was crushed in the higher traffic areas from excessive walking and maintenance, and the team replacing the roof noted that there were patches that had been completed on the roof, confirming La Quinta's maintenance efforts. (SUMF, 16). There was no evidence to the team completing the roof replacement that anyone had tried to delay the roof replacement other than in the normal course of maintenance. (SUMF, 17). The roofing issue above room 403 was determined to be caused by a drain on the roof that would overflow when there was a substantial rain during a short period of time. (SUMF, 22). That issue was not discovered until Centimark came out to the property to complete a full roof repair, which was after Plaintiff's alleged fall, and thus La Quinta had no knowledge of where water may have been penetrating the roof. (Id.) Case 3:16-cv-03039 Document 33 Filed 08/01/18 Page 3 of 17 PageID #: 102 4 4817-0397-7582 v1 2823531-000047 08/01/2018 The only maintenance records for room 103 in the year 2015 that relate to water include the following: a February 26, 2015 report that the toilet was leaking in room 203 and water was coming into room 103; an August 20, 2015 report that there was mold or mildew on the living room ceiling; and a November 18, 2015 entry noting that the “ceiling [was] stained by the window.” (SUMF, 23). As to the August 20, 2015 report, Mr. Lewis testified that his housekeepers do not know how to properly assess situations, it might not have been mold, and if it was mold, the water causing it could have come from anywhere. (SUMF, 24). In the hotel setting, leaks can come from AC units, from leaking toilets, or from sinks to name a few places. (SUMF, 21). The stain discussed in the November 18, 2015 entry was caused by the AC unit in the room above room 103 leaking. (SUMF, 25). Plaintiff alleges that as a result of his alleged fall he has “sustained severe personal injuries, both temporary and permanent in nature, and will continue to suffer personal injuries in the future, including permanent disability.” (SUMF, 26). Plaintiff first started treating with Bart Wetherington, a chiropractor in Savannah, Georgia, on December 18, 2015. (SUMF, 27). Dr. Wetherington did not review Plaintiff’s previous medical records before starting his treatment, but he did understand that Plaintiff had some preexisting degenerative issues in his low back. (SUMF, 28-29). It was Dr. Wetherington’s testimony that Plaintiff’s past history was non- contributory to his treatment of Plaintiff, meaning that Dr. Wetherington saw nothing in Plaintiff’s history that would preclude him from treating Plaintiff. (SUMF, 30). Dr. Wetherington could not assign a certain percentage of Plaintiff’s pain to Plaintiff’s alleged injuries as compared to the amount of pain that Plaintiff experienced prior to November 29, 2015. (SUMF, 31). This was especially true in light of the fact that Dr. Wetherington had no knowledge of how Plaintiff rated his pain prior to November 30, 2015. (SUMF, 32). Nor could Case 3:16-cv-03039 Document 33 Filed 08/01/18 Page 4 of 17 PageID #: 103 5 4817-0397-7582 v1 2823531-000047 08/01/2018 Dr. Wetherington quantify the change in Plaintiff’s condition from before November 29, 2015 to after November 29, 2015. (SUMF, 34). It was Dr. Wetherington’s testimony that he could not quantify the percentage of the conditions he treated Plaintiff for in December 2015 that preexisted Plaintiff’s November 29, 2015 alleged fall. (SUMF, 35). Several months after leaving Dr. Wetherington’s care, Plaintiff started seeing Dr. Curt Freudenberger, an orthopaedic surgeon in Huntsville, Alabama, on June 8, 2016. (SUMF, 36). Dr. Freudenberger did not review Plaintiff’s previous medical records. (SUMF, 40). Dr. Freudenberger performed a two-level TLIF on Plaintiff in June 2016. (SUMF, 37). It was Dr. Freudenberger’s testimony that “he could not rule out that the fall could have a contribution [to Plaintiff needing to have the procedure performed], but whether or not it is the causal reason, I’m not sure given his history.” (SUMF, 38). It was reasonable that Plaintiff would have needed the surgery at some point, and Dr. Freudenbeger had no evidence to support a statement that the surgery was “brought up” in time due to the alleged slip and fall. (SUMF, 39). Dr. Spengler, Defendants’ expert witness, likewise testified that the trauma Plaintiff alleges he suffered from his slip and fall would have been insufficient to lead to Plaintiff’s back surgery. (SUMF, 43). Plaintiff’s complaints between December 18, 2015 and his surgery in June 2016 can be explained by Plaintiff’s underlying condition in and by itself. (SUMF, 44). It is Dr. Spengler’s opinion that “upon [his] review of all of the records provided, [he] does not believe that Mr. Seymour’s slip and fall in his hotel room had any relationship to the degenerative changes that were noted in his lumbar spine that ultimately resulted in his spinal surgical procedure on June 21, 2016. (SUMF, 45). Case 3:16-cv-03039 Document 33 Filed 08/01/18 Page 5 of 17 PageID #: 104 6 4817-0397-7582 v1 2823531-000047 08/01/2018 III. STANDARD OF REVIEW Summary judgment is appropriate “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.” Fed. R. Civ. P. 56(a). The party bringing the summary judgment motion has the initial burden of informing the Court of the basis for its motion and identifying portions of the record that demonstrate the absence of a genuine dispute over material facts. Rodgers v. Banks, 344 F.3d 587, 595 (6th Cir. 2003). The moving party may satisfy this burden by presenting affirmative evidence that negates an element of a non-moving party’s claim or by demonstrating an absence of evidence to support the non-moving party’s case. Id. A genuine dispute as to any material fact exists if “the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). In resolving summary judgment motions, “facts must be viewed in the light most favorable to the nonmoving party only if there is a ‘genuine’ dispute as to those facts.” Scott v. Harris, 550 U.S. 372, 380 (2007). The party seeking summary judgment has the burden of establishing that there is no genuine dispute as to any material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). After “a properly supported motion for summary judgment is made, the adverse party must set forth specific facts showing that there is a genuine issue for trial.” Anderson, 477 U.S. at 255. A mere scintilla of evidence in support of the nonmoving party’s position is insufficient to survive summary judgment; instead there must be evidence of which the jury could reasonably find for the nonmoving party. Rodgers, 344 F.3d at 595. Case 3:16-cv-03039 Document 33 Filed 08/01/18 Page 6 of 17 PageID #: 105 7 4817-0397-7582 v1 2823531-000047 08/01/2018 III. ARGUMENT A. Defendants Are Entitled to Summary Judgment on Plaintiff’s Claim for Premises Liability/Negligence. In order to succeed on his Premises Liability/Negligence claim, Plaintiff has the burden to prove that: (1) La Quinta owed him a duty of care; (2) La Quinta’s conduct fell below the applicable standard of care that amounts to a breach of that duty; (3) an injury or loss; (4) cause in fact; and (5) proximate, or legal, cause. Tinsley v. Wal-Mart Stores, Inc. 155 Fed. Appx. 196, 197 (6th Cir. 2005). Liability in premises liability cases stems from superior knowledge or the condition and premises. Id. Therefore, a business owner breaches the duty of care to customers when a dangerous condition exists that 1) was caused by the owner, operator, or his agent, or 2) was created by someone other than the owner, operator, or his agent, that the owner had actual or constructive notice that the condition existed prior to the accident. Blair v. West Town Mall, 130 S.W.3d 761, 764 (Tenn. 2004). However, “owners do not have a duty to remove or warn against conditions that pose an unforeseeable risk or those conditions which the owner neither knew about nor could have discovered with reasonable care.” Katz v. Sports Authority of Metropolitan Government of Nashville, No. M2016-01874-COA-R3-CV, 2017 WL 3741346, at *3 (Tenn. Ct. App. Apr. 12, 2017). 1 i. Plaintiff Has Put Forth No Evidence to Support a Finding That La Quinta Breached the Duty of Care Owed to Him. a. La Quinta did not cause the alleged leak in room 103. There is no evidence in the record to support a finding that La Quinta caused the alleged leak into room 103 on November 29, 2015. In fact, the evidence in the record shows that La Quinta had no knowledge of water leaking from the roof and into room 103 prior to Plaintiff’s 1 Copies of unpublished cases are attached. Case 3:16-cv-03039 Document 33 Filed 08/01/18 Page 7 of 17 PageID #: 106 8 4817-0397-7582 v1 2823531-000047 08/01/2018 alleged fall. (SUMF, 7, 9, 10-13). The evidence further shows that La Quinta attempted to repair the roof on a number of occasions. (SUMF, 18). However, the issue with the roof was not identified and reportedly could not have been identified until the roof was completely removed during the replacement in June 2016. (SUMF, 22). Aside from making the baseless allegation in the Complaint, it does not appear Plaintiff actually believes or plans to argue that La Quinta actually caused the water to be present in room 103 prior to Plaintiff’s arrival. As Plaintiff cannot show that La Quinta caused water to enter into room 103, Plaintiff cannot support its allegation that La Quinta caused the allegedly dangerous condition. b. La Quinta did not have actual notice of the alleged leak in room 103. Likewise, there is no evidence in the record that La Quinta had actual notice of water leaking into in room 103 on or before November 29, 2015. See Worsham v. Pilot Oil Corporation, 728 S.W.2d 19, 20 (Tenn. Ct. App. 1987) (affirming directed verdict where there was no evidence that any of the defendant’s employees knew the ice Plaintiff allegedly slipped on was on the floor). There are only three entries in the 2015 maintenance records involving water, and none of them are related to the alleged November 29, 2015 leak. (SUMF, 23). The room was rented the two nights immediately prior to Mr. Seymour’s stay without any record of complaint regarding water in the room. (SUMF, 3). There is no testimony by any witness that states that there was water in the room prior to Mr. Seymour’s accident. Further, the room was cleaned between 9:45-9:53 a.m. on November 29, 2015, and there is no notation that there were any maintenance issues at that time. (SUMF, 5). Finally, Mr. Christopher and Mr. Lewis, both of whom were employed by La Quinta prior to Plaintiff’s stay, testified that they had no knowledge of water ever leaking from the roof into room 103. (SUMF, 10-13). It is Plaintiff’s Case 3:16-cv-03039 Document 33 Filed 08/01/18 Page 8 of 17 PageID #: 107 9 4817-0397-7582 v1 2823531-000047 08/01/2018 burden to produce evidence that shows that La Quinta knew there was water in room 103 prior to renting the room to Plaintiff and Plaintiff has failed to carry his burden. c. La Quinta did not have constructive notice of the alleged leak in room103. A plaintiff may establish constructive notice of a dangerous condition by either “(1) proving that a dangerous condition existed for such a length of time that a reasonable prudent property owner should have been aware of the dangerous condition’s existence or (2) proving that the dangerous condition resulted from a pattern of conduct, a recurring incident, or a general or continuing condition.” Katz, 2017 WL 3741346 at * 3. With regards to the second way of establishing constructive notice, known as the common occurrence theory, the specific location of the recurrent dangerous condition or common occurrence is critical to determining constructive notice of that condition. Tinsely, 155 Fed. Appx. at 198. That is, notice of a general or continuing condition in one area of the premises does not necessarily support a finding of constructive notice as to another area. Bowling v. Wal-Mart Stores, Inc., 223 Fed. Appx. 460, 467-68 (6th Cir. 2007). There is no evidence in the record to support of finding of constructive notice under either approach. 1. There is no evidence in the record that the water was present in room 103 for any particular length of time. If liability is to be predicated on constructive knowledge by the Defendant, the proof must show the dangerous or defective condition existed for such length of time that the defendant knew or in the exercise of ordinary care should have known, of its existence. See Nolley v. Eichel, No. M2006-00879-COA-R3-CV, 2007 WL 980603, at *2 (Tenn. Ct. App. Apr. 2, 2007)(“Where there is a complete absence of proof as to when and how the dangerous condition came about, it would be improper to permit the jury to speculate on these vital Case 3:16-cv-03039 Document 33 Filed 08/01/18 Page 9 of 17 PageID #: 108 10 4817-0397-7582 v1 2823531-000047 08/01/2018 elements.”). It is the Plaintiff’s burden to “submit proof as to how long the allegedly dangerous condition existed prior to the accident.” Id. Plaintiff has submitted no proof regarding the length of time the water was allegedly present in room 103. Therefore, there is no evidence in the record that would support a finding that the water leaking into room 103 had been present for any length of time. In fact, the evidence shows that the room was cleaned around 10:00 am on November 29, 2015, and there were no maintenance issues noted at that time. (SUMF, 5). The room was also occupied, at a minimum, on November 27th and November 28th without any notation of complaints of water at that time. (SUMF, 3). Assuming there was water in room 103 at the time of Plaintiff’s alleged slip and fall, Plaintiff has still failed to establish that La Quinta had constructive knowledge of its presence and he has produced no evidence that the water was present for such a length of time that La Quinta should have known about it. 2. There is no evidence in the record that could support a finding that water leaking in room 103 was a common occurrence. “[I]n order to find constructive notice under the common occurrence theory, the plaintiff must show that the dangerous condition occurred in ‘the same approximate location and in such a frequent manner, that the happening of the condition was foreseeable by the defendants.’” Fowler v. City of Memphis, 514 S.W.3d 732, 740 (Tenn. Ct. App. 2016). The inquiry, when boiled down, is “whether the condition occurs so often that the premises owner is put on constructive notice of its existence.” Katz, 2017 WL 3741346 at *4. One element of the inquiry is “the proximity between where the dangerous condition occurred previously and where the plaintiff suffered his or her injury.” Id. Tennessee courts have interpreted what conduct is sufficient to constitute a common occurrence on several occasions. In Beske v. Opryland USA, Inc., 923 S.W.2d 544, 546 (Tenn. Case 3:16-cv-03039 Document 33 Filed 08/01/18 Page 10 of 17 PageID #: 109 11 4817-0397-7582 v1 2823531-000047 08/01/2018 Ct. App. 1996) the Tennessee Court of Appeals found the daily occurrence of patrons spilling drinks outside a ride’s turnstile was sufficient to place the defendant on constructive notice of the dangerous condition. Id. at 546. In Barrett v. Red Food Stores, Inc., No. 10-A- 019108CV00302, 1992 WL 33891, at *1 (Tenn. Ct. App. Feb. 26, 1992), plaintiff was found to have established that the defendant was on constructive notice of a dangerous condition where water spilled onto the floor every time an ice cream vendor made a delivery. Id. at *5. On the other hand, and more factually similar to the scenario Plaintiff alleges in this matter, in Nolley v. Eichel, the Tennessee Court of Appeals found that where there was no evidence that the allegedly dangerous condition existed on a regular basis, plaintiff had failed to show that the defendants had constructive notice of the allegedly defective condition. Nolley, 2007 WL 980603 at *5. Similarly, in Beard v. SCOA Industr., Inc., No. 88-358-II, 1989 WL 60360, at *1 (Tenn. Ct. App. June 7, 1989), the court stated that “the mere possibility of occasional popcorn spills is not enough to indicate that the defendant’s method of operation created a hazardous condition.” Id. at *5. Finally, in Katz v. Sports Authority of Metropolitan Government of Nashville, the court undertook the limited inquiry of “whether sufficient facts are present in the record to determine whether the dangerous condition in the area where plaintiff fell was part of a pattern of conduct, a recurring incident, or a general or continuing condition indicating the dangerous condition’s existence.” 2017 WL 3741346 at *5. There, plaintiff presented evidence of two wet spills near the area where she fell. Id. The court did not find such evidence sufficient to support a finding that the “wet spills in the area where she fell occurred with such regularity that the dangerous condition was reasonably foreseeable to defendants.” Id. See also Bowling v. Wal-Mart Stores, Inc., 233 Fed. Appx. 460, 469 (6th Cir. May 11, 2007)(Affirming grant of summary judgment where although leaks had occurred in other parts of defendant’s store on Case 3:16-cv-03039 Document 33 Filed 08/01/18 Page 11 of 17 PageID #: 110 12 4817-0397-7582 v1 2823531-000047 08/01/2018 previous occasions, the roof over the particular area in which plaintiff fell had never leaked before); Martin v. Wal-Mart Stores, Inc., 159 Fed. Appx. 626, 629 (6th Cir. Nov. 7, 2005) (“A history of leaks and spills in other departments could not have put Wal-Mart on notice of water accumulating in the health and beauty aids department.”). Here, there is no evidence in the record that indicates that water leaking into room 103 occurred with such frequency or regularity as to make it a common occurrence. Actually, all of the evidence in the record indicates that the Defendants had no knowledge of water ever leaking from the roof into room 103 prior to Plaintiff’s alleged fall. (SUMF, 10-13). The maintenance records from November 29, 2015 do not indicate there was a leak in room 103. (SUMF, 7). If there had been a leak in room 103, it would have been placed out of order, and the room was not placed out of order. (SUMF, 9). In fact, the room was rented to another guest on November 30, 2015-the very day Plaintiff checked out of the hotel. (Id.). Mr. Lewis, the current General Manager of the La Quinta, who began working at the hotel in February 2015, almost a full year prior to Plaintiff's alleged fall, has never seen water leak from the roof all the way down to the first floor. (SUMF, 10-11). Mr. Christopher, La Quinta’s Maintenance Supervisor, who began working at the hotel in January 2014, has never seen water travel from the roof all the way down to room 103. (SUMF, 12-13). As noted by the case law, evidence that the La Quinta’s roof leaked generally is insufficient to put La Quinta on constructive notice that there could be water leaking in room 103. In order for a jury to find that La Quinta had constructive notice of the allegedly dangerous condition, Plaintiff would have to have put forward evidence that there had been leaks in room 103 prior to Plaintiff’s fall. Plaintiff has put forth no such evidence. Therefore, La Quinta is Case 3:16-cv-03039 Document 33 Filed 08/01/18 Page 12 of 17 PageID #: 111 13 4817-0397-7582 v1 2823531-000047 08/01/2018 entitled to summary judgment on the ground that Plaintiff has not proven that La Quinta had actual or constructive notice of the alleged leak in room 103. 2. Plaintiff Has Not Carried His Burden To Prove His Alleged Injuries Were Caused By The Alleged Incident. As a general rule, the causation of a medical condition must be established by testimony from a medical expert. See Thomas v. Aetna Life & Cas. Co., 812 S.W.2d 278, 283 (Tenn. 1991); Miller v. Choo Choo Partners, L.P., 73 S.W.3d 897, 901 (Tenn. Ct. App. 2001). Further, such testimony is not sufficient to establish causation if it is speculative in nature. Miller, 73 S.W.3d at 901. A mere possibility of such causation is not enough. Id. In fact, a doctor’s testimony that a certain thing is possible is no evidence at all. Id. at 902. Plaintiff has not put forth expert testimony that establishes that the alleged incident caused his alleged injuries. Plaintiff’s complaint alleges that he “sustained severe personal injuries, both temporary and permanent in nature, and will continue to suffer personal injuries in the future, including permanent disability.” (SUMF, 26). He specifically requested he be awarded a judgment for compensatory damages in the amount to cover his “medical expenses of at least $226,609.13), future medical expenses, permanent impairment, and pain and suffering.” (SUMF, 47). After November 29, 2015, Plaintiff was treated by Dr. Curt Freudenberger and Dr. Bart Wetherington. (SUMF, 27 & 36). Dr. Freudenberger is an orthopaedic surgeon who ultimately performed a two level TLIF on Plaintiff in June 2016. (SUMF, 36-37). Dr. Freudenberger has not reviewed any of Plaintiff’s Medical records predating the alleged incident. (SUMF, 40). During his deposition, Dr. Freudenberger testified that he did not know if the alleged fall was the causal reason for Plaintiff’s surgery. (SUMF, 38). It was his testimony that “it is reasonable that surgery would have occurred at some point. Could the accident have brought it up a month, two Case 3:16-cv-03039 Document 33 Filed 08/01/18 Page 13 of 17 PageID #: 112 14 4817-0397-7582 v1 2823531-000047 08/01/2018 months, a year, perhaps, but I’d be --but I have nothing to support that statement.” (SUMF, 39). Similarly, Dr. Spengler, Defendants’ expert witness and the only doctor who has reviewed all of Plaintiff’s extensive medical records, has opined that “upon [his] review of all of the records provided, [he does] not believe that Mr. Seymour’s slip and fall in his hotel room had any relationship to the degenerative changes that were noted in his lumbar spine that ultimately resulted in his spinal surgical procedure on June 21, 2016.” (SUMF, 45-46). It was his testimony that the trauma Plaintiff alleges he suffered as a result of his slip and fall would be insufficient to lead to his back surgery, and Plaintiff’s complaints between December 18, 2015 and his surgery in June 2016 could be explained by Plaintiff’s preexisting underlying conditions. (SUMF, 43-44). Bart Wetherington is a chiropractor Plaintiff first began seeing eighteen days after the alleged incident. (SUMF, 27). According to Dr. Wetherington, his opinion that Plaintiff’s past history was non-contributory simply meant that Plaintiff’s past history did not deter Dr. Wetherington from providing Plaintiff with chiropractic treatment. (SUMF, 30). While Dr. Wetherington testified that he felt he could state that the acute injury he believes Mr. Seymour suffered was caused by the alleged slip and fall, he never reviewed any of Plaintiff’s prior medical records or x-rays taken before November 30, 2015. (SUMF, 28). Dr. Wetherington also acknowledged that there is no way to objectively quantify what portion of a patient’s back pain is caused by being overweight; what percentage of the pain Plaintiff complained of was related to the alleged incident versus preexisting conditions; and he was not aware of how Plaintiff rated his pain prior to November 30, 2015. (SUMF, 31-33). He could not quantify the change in Plaintiff’s condition from the state it was in prior to November 29, 2015 to the state it was in after November 29, 2015. (SUMF, 33). Nor could Dr. Wetherington quantify the percentage of Case 3:16-cv-03039 Document 33 Filed 08/01/18 Page 14 of 17 PageID #: 113 15 4817-0397-7582 v1 2823531-000047 08/01/2018 Plaintiff’s condition as it existed in December 2015 that was exacerbated by the alleged slip and fall as compared to the conditions that preexisted the November 29, 2015 alleged slip and fall. (SUMF, 34). As there is no testimony in the record that establishes that Plaintiff’s alleged injuries were caused by his alleged November 29, 2015 slip and fall, La Quinta is also entitled to summary judgment on the ground that Plaintiff has failed to prove causation of his injuries. B. Because Defendants Are Entitled to Summary Judgment on Plaintiff’s Claim of Premises Liability/Negligence, Defendants Are Also Entitled to Summary Judgment on Plaintiff’s Claims of Vicarious Liability and Negligent Supervision and Training. Plaintiff’s claim for vicarious liability rests entirely on the premise that the individuals responsible for inspecting and maintaining room 103 were negligent in completing their duties. (Complt., ¶ 37). Similarly, Plaintiff’s claim for Negligent Supervision and Training alleges that “Defendants were negligent in failing to adopt appropriate policies and procedures to make sure that appropriate inspections and maintenance were performed on the premises and in failing to train its employees concerning safety procedures for inspection and maintaining the premises.” (Id. at ¶ 40). It goes on to state that “Defendants were negligent in its training and supervision of its employees or agents.” (Id. at ¶ 41). However, Plaintiff has put forth no evidence that supports either of these claims. As the record indicates, the room was inspected and cleaned around 10:00 a.m. on November 29, 2015. (SUMF, 5). There was no notation made in the housekeeping records that there was any water or any other maintenance issue in the room at that time. (Id.) In the same way that Plaintiff has failed to show that La Quinta had actual or constructive notice of the water in room 103, Plaintiff has failed to support his claim that the maintenance of room 103 was negligently performed. Further, Plaintiff’s inability to prove causation of his injuries also defeats Case 3:16-cv-03039 Document 33 Filed 08/01/18 Page 15 of 17 PageID #: 114 16 4817-0397-7582 v1 2823531-000047 08/01/2018 his claim for vicarious liability and negligent supervision and training, as without causation, there can be no negligent act for which La Quinta could be responsible under either theory. IV. CONCLUSION There are no material facts in dispute. Plaintiff has not put forth sufficient evidence to carry his burden to show that Defendants breached the duty owed to him. There is no evidence that the Defendants caused the water to be present in room 103, had actual notice that there was water present in room 103, or had constructive notice that there was water in room 103. Plaintiff has also failed to introduce any expert testimony that definitively confirms that alleged injuries and subsequent surgery was caused by his alleged slip and fall on November 29, 2015. Because Plaintiff’s claim for premises liability/negligence fails, so too must his claims for vicarious liability and negligent supervision and training as they rely on the same baseless allegations as Plaintiff’s premises liability claim. Given that Plaintiff has failed to carry his burden of proof, Defendants are entitled to summary judgment on Plaintiff’s claim. Respectfully submitted, /s/ Sarah Murray___________________ Samuel T. Bowman (No. 020657) Sarah Murray (No. 033454) BAKER, DONELSON, BEARMAN, CALDWELL & BERKOWITZ, P.C. Baker Donelson Center 211 Commerce Street, Suite 800 Nashville, Tennessee 37201 (615) 726-5701 sbowman@bakerdonelson.com smurray@bakerdonelson.com Attorneys for LQ Management, LLC and LQ Properties, LLC Case 3:16-cv-03039 Document 33 Filed 08/01/18 Page 16 of 17 PageID #: 115 17 4817-0397-7582 v1 2823531-000047 08/01/2018 CERTIFICATE OF SERVICE The undersigned hereby certifies that a copy of the foregoing has been served by through this Court’s ECF system: William B. Hicky Two American Center 3102 West End Avenue, Suite 400 Nashville, TN 37203 George Lewis PO Box 61509 Savannah, GA 31420 Attorneys for Plaintiff This 1st day of August, 2018. /s/ Sarah Murray Attorney Case 3:16-cv-03039 Document 33 Filed 08/01/18 Page 17 of 17 PageID #: 116