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Fontaine v. Columbia Properties Ozarks, Ltd.

United States District Court, W.D. Missouri, Central Division

November 3, 2016

AMY FONTAINE and TODD FONTAINE, Plaintiffs,
v.
COLUMBIA PROPERTIES OZARKS, LTD.,, Defendants.

          ORDER

          NANETTE K. LAUGHREY United States District Judge.

         Before 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.

         I. Background

         On May 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.[1], 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].

         Ms. 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.

         II. Discussion

         A. Defendants' Motion to Exclude Expert Testimony

         Plaintiffs 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 ...

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