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Sara Mendler v. Aztec Motel Corporation

December 7, 2011

SARA MENDLER, PLAINTIFF,
v.
AZTEC MOTEL CORPORATION, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Hon. Jerome B. Simandle

OPINION

SIMANDLE, District Judge:

I. INTRODUCTION

This matter is before the Court on Defendants Aztec Motel Corporation d/b/a Aztec Motel, Adamo Pipitone and Jeanette Pipitone's Motion to Preclude Plaintiff's Expert [Docket Item 23] and Motion for Summary Judgment [Docket Item 22]. For the reasons discussed below, the Court will grant both motions and Plaintiff's complaint will be dismissed with prejudice.

II. BACKGROUND

The instant action is a personal injury suit arising from Plaintiff Sara Mendler ("Plaintiff") slipping and falling while getting out of the bathtub in her room at the Aztec Motel. The Plaintiff brought the instant action for negligence against Defendants Aztec Motel Corporation d/b/a Aztec Motel, Adamo Pipitone and Jeanette Pipitone (collectively "Defendants")*fn1 .

On or about May 23, 2007, the Plaintiff was staying at the Aztec Motel in Wildwood Crest, New Jersey, as a motel guest, as part of a senior citizens group. (Deposition of Sara Mendler ("Mendler Dep.") at 12:14-14:11)). The Plaintiff's Room had a bathroom with a shower and a towel rack. (Deposition of Adamo Pipitone, Sr. ("Adamo Sr. Dep.") at 125:12-19)). While attempting to step out of the shower, the Plaintiff reached for the towel rack that was mounted on the wall to assist her. (Mendler Dep. at 25:3-13 ). The towel rack then pulled out of the wall and consequently the Plaintiff fell backward and struck her head in the bathtub. (Mendler Dep. at 25:13-26:1).

The Plaintiff has brought the instant action against the Defendants alleging negligence. The Complaint alleges the Defendants knew or should have known of the dangerous or defective condition of the towel rack and the wall upon which it was mounted and the likelihood that this would cause injuries to patrons on the premises. (Comp. ¶ 13). The Plaintiff alleges the Defendants were negligent for several reasons including:

a. Failing to inspect, correct or have corrected, and/or repair or protect the premises from the dangerous condition of the towel rack and the wall upon which it was mounted

b. Allowing latent hidden dangerous condition to exist on defendants' premises

c. Failing to properly and adequately maintain the premises, in particular, the aforesaid towel rack in the bathroom of Room 100 and

d. Failing to warn patrons, business invitees and/or the general public of the dangerous, hazardous and unsafe conditions on the premises. (Comp. ¶ 20).

Discovery is complete and the Defendants have filed the instant motions to preclude Plaintiff's expert and for summary judgment dismissing Plaintiff's complaint. The Court will first address the Defendants' motion to preclude Plaintiff's expert and will then discuss the Defendants' motion for summary judgment.

III. MOTION TO PRECLUDE PLAINTIFF'S EXPERT

A. The Plaintiff's Expert Report

The Plaintiff's expert, Julius Pereira, III, issued a report which opines that the Defendants were negligent by failing to install a grab bar in the bathroom in Room 100 and that it is an industry standard to install grab bars in motel bathrooms. (Def.'s Ex. 1, hereinafter "Pereira Report"). Mr. Pereira supports his opinion by citing to the U.S. Consumer Products Safety Commission and ASTM International Regulation ASTM 446 which requires a horizontal grab bar on the back wall of a bathtub or a vertical grab bar on the service or non-service wall. (Pereira Report at 1-2.) The Plaintiff's expert also cites to the Accident Prevention for Hotels, Motels and Restaurants, a nationally published safety reference specific to the hospitality industry; Safety and Security in Building Design, an internationally published reference for safe building design; and the Human Factors Design Handbook and Handbook of Human Facts and the Older Adult. (Pereira Report at 2-3.) All of these sources recommend the installation of grab bars to assist in entering and exiting the bathtub.

Mr. Pereira's qualifications are not challenged in this motion; he appears to be well qualified under Rule 702, Fed. R. Evid.*fn2

B. Motion to Preclude Mr. Pereira's Testimony

The Defendants jointly filed the instant motion to preclude Plaintiff's expert. The Defendants argue that the Mr. Pereira's expert report is inadmissible because it relies on regulations that were not applicable to the Aztec Motel and were not adopted by the State of New Jersey or in effect at the time of the alleged negligent conduct. In addition, the Defendants argue that Mr. Pereira's expert report does not contain any factual evidence to support that the installation of grab bars in motel bathrooms is a generally-accepted practice or standard in the motel industry. Therefore, the Defendants contend that the Plaintiff's expert report is inadmissible and/or insufficient to raise a genuine issue of material fact and should be excluded.

The Plaintiff opposes the Defendant's motion to preclude her expert. The Plaintiff does not dispute that Regulation ASTM 446 is not enacted in New Jersey and therefore cannot be used to prove negligence per se. However, the Plaintiff contends that this regulation, along with the reports and standards cited by Mr. Pereira in his report, are relevant to show the existence of an industry standard for grab bars in motel bathrooms which can be used to establish negligence. The Plaintiff argues that Mr. Pereira's testimony is relevant to the issues in the case and should not be excluded.

C. Standard of Review

The admissibility of expert witness testimony is governed by Rule 702, Fed. R. Evid., and the Supreme Court's decision in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), and its progeny. Rule 702 provides as follows:

If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise, if (1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case.

Fed. R. Evid. 702. As the Supreme Court explained in Daubert, district court judges perform a "gatekeeping role," 509 U.S. at 596, by assessing whether expert testimony is both relevant and methodologically reliable in order to determine whether it is admissible under Rule 702. Id. at 590-91; see also Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 146-47 (1999) (holding that Daubert extends to ...


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