United States District Court, W.D. Missouri, Central Division
NANETTE K. LAUGHREY United States District Judge.
the Court is Defendants' Motion to Exclude Expert
Testimony [Doc. 47] and Defendants' Motion for Summary
Judgment [Doc. 45]. For the following reasons,
Defendants' Motion to Exclude Expert Testimony is granted
in part and denied in part and Defendants' Motion for
Summary Judgment is denied.
30, 2012, Plaintiff Amy Fontaine travelled to Defendants'
Tan-Tar-A Resort in Osage Beach, Missouri, for a work
conference. [Doc. 51, pp. 1-2]. The Resort did not provide a
sidewalk, so guests walked on the driveway. Id.
After checking in, Ms. Fontaine walked along the driveway
looking to find her room. Id. at 4. Ms. Fontaine was
“pulling luggage with her purse/work bag and laptop on
top of it and carrying her conference materials in her left
arm.” Id. Around 8:00 p.m., Ms. Fontaine
fell while walking on the driveway trying to locate her room.
Id. In the area where Ms. Fontaine fell, there was a
depression in the roadway approximately one-inch deep by one
foot wide by one and one half foot in diameter. [Doc. 46, p.
3]. Ms. Fontaine suffered injuries to her ankle, knee, and
shoulder subsequently requiring eight surgeries. [Doc. 51, p.
1]. Tan-Tar-A employees later stated in depositions that
another company, APAC, had been contracted to make repairs to
the area in which Ms. Fontaine fell, but only
“seal-coated” the area; no repairs were done to
fill in the missing asphalt. [Doc. 46, p. 7].
Fontaine and her husband filed suit against Tan-Tar-A Resort
and its parent companies, alleging negligent premises
liability. Defendants now move to exclude the testimony of
Plaintiffs' expert and move for summary judgment.
Defendants' Motion to Exclude Expert Testimony
have designated Arthur Chew as a liability expert. Mr. Chew
is a civil engineer and currently serves as the city engineer
in Ocean City, New Jersey. [Doc. 50-1, p. 3]. Defendants move
to exclude Mr. Chew's testimony under Fed.R.Evid. 702 and
Daubert v. Merrell Dow Pharmaceuticals,
Inc., 509 U.S. 579 (1993), arguing the testimony is
not reliable and otherwise improper. [Doc. 48, p. 2]. If
allowed, Mr. Chew will testify that:
(1) Tan-Tar-A's driveway where Amy Fontaine fell was not
reasonably safe because of the missing asphalt and was in
violation of applicable codes and standards because it
created an unreasonable risk of tripping and falling,
(2) the driveway was substandard and in need of repairs,
(3) because the injury was suffered at approximately 8:00
p.m., lighting and shadows on the black seal coated surface
made the depression nearly impossible to see,
(4) because Amy Fontaine was pulling her luggage and
conference materials, the pothole depression area was not
within her lower peripheral vision, and
(5) poor subsurface draining caused the initial loss of
asphalt which ...