The opinion of the court was delivered by: Judge Nora Barry Fischer
This case involves claims related to a slip and fall suffered by Les A. Newton ("Mr. Newton") as well as a loss of consortium claim suffered by Betty Newton, Newton's wife, ("Mrs. Newton")(collectively, "Plaintiffs") against Norfolk Southern Railway Company ("Norfolk"), MCM Ventures Limited, LTD ("MCM") and the Sewickley Country Inn ("Sewickley Inn"). Pending before this Court is Defendants MCM and the Sewickley Inn's Motion of Summary Judgment [DE 27] and Defendant Norfolk's Motion for Summary Judgment [DE 30], which are both ripe for disposition.
Defendant Norfolk employed Plaintiff Mr. Newton as a locomotive engineer from 1971 through the date of his accident, November 9, 2003. (Docket No. 28, Exh. F at 32:19-24) (hereinafter, "Newton Dep."). On November 9, 2003, Norfolk ordered Mr. Newton to travel from Cleveland, Ohio to the Conway Railroad Yards in Beaver County, Pennsylvania. (Newton Dep. at 39:2-8). Mr. Newton arrived at the Conway Railroad Yards at approximately 2:25 a.m. and was thereafter transported by Norfolk to the Sewickley Inn. (Id. at 39:16-17). The Sewickley Inn is owned and operated by Defendant MCM, "a business entity with a principal place of business other than Ohio." (Docket No. 10 at ¶ 1).
At some time before 3:00 a.m. on November 9, 2003, Les Newton entered room 1106 of the Sewickley Inn and he prepared to take a shower. (Newton Dep. at 54:14-20). While showering, he lost his balance and fell on the back of the tub landing on his lower back and side. (Id. at 54:21-55:1). After a short period of time, Mr. Newton was able to get out of the tub and make a call to the front desk that he was in severe pain and in need of medical attention. (Id. at 55:2-24). He alleges that the cause of his fall was an unsafe slippery condition within the tub. (Docket No. 2 at ¶10, 27-29).
On November 3, 2005, the Plaintiffs filed an Amended Complaint*fn1 bringing their action against Defendant Norfolk under the Federal Employers' Liability Act ("FELA"), 45 U.S.C. § 51, et seq., the Federal Safety Appliances Act, 49 U.S.C. § 20301, et seq., and the Federal Locomotive Inspection Act, 49 U.S.C. § 20701, et seq. Additionally, the Amended Complaint alleges common law negligence as well as loss of consortium (as to Plaintiff Mrs. Newton) against Defendants MCM and the Sewickley Inn. The Plaintiffs allege that Mr. Newton's accident was caused by the unsafe condition of the Sewickley Inn, particularly that the shower and bath facilities were in a state of disrepair. (Docket No. 2, at ¶10, 27). On November 15, 2005, Norfolk filed its Answer to the Amended Complaint and a cross-claim against Defendants MCM and the Sewickley Inn for contribution and indemnification in the instance that Defendant Norfolk was found liable to the Plaintiffs. On June 1, 2006, upon motion by Defendants MCM and the Sewickley Inn, the Court stayed this case for six months due to medical procedures that Mr. Newton was undergoing.*fn2 On April 26, 2007, the Sewickley Inn and MCM filed a Motion for Summary Judgment and Brief in Support and on April 30, 2007, Norfolk filed a Motion for Summary Judgment and Brief in Support.*fn3 On May 3, 2007, the Plaintiffs responded to both motions. The following is what is taken to be undisputed by the parties from their briefs.
In responding to Interrogatory Number 17 of the Sewickley Inn regarding the alleged unsafe conditions of the shower and bath facilities, Plaintiffs answered in part that "the shower was unsafe because of the absence of protection devices and substances on the floor to increase friction and diminish slipping." (Docket No. 28, Exh. B at 2). It is admitted by the Plaintiffs that the bathroom tub was examined by Trainmaster J. A. Lavelle on the day of the alleged accident and the tub was found to have a rubber bath mat affixed. (Docket No. 27 at ¶5; Docket No. 28, Exh. D-2 ). Mr. Newton testified at his deposition that the bathtub in room 1106 had strips in the center of the tub that he understood were for traction and that about two inches of the ends of the strips towards the back of the bathtub appeared worn and frayed. (Id.). Mr. Newton admits that he was unable to describe with any specificity what part of the strips, if any were slippery. (Docket No. 27 at ¶ 7; Newton Dep. at 50:7-13). At his deposition, he could not answer with certainty that his foot was on the bath mat when he fell, only that his foot was probably on it. (Newton Dep. at 61:4-13).
Keystone Engineering Consultants, Inc. performed coefficient of friction testing on the bath mat in the place where the accident is alleged to have occurred. The testing analysis determined that the bath mat exhibited a level of resistance exceeding applicable safety standards. Based upon the results of the testing, Keystone was able to opine that the bath mat was not a hazard to persons using reasonable care and that "the slip resistance of the subject bathtub applique was not the cause of Mr. Newton's falling accident." (Docket No. 27 at ¶15; Docket No. 28, Exh. E at 9). The Plaintiffs offer no expert report to contradict the report of the Defendants and only respond that they are unable to confirm the accuracy of the expert's opinion. (Docket No. 27 at ¶17; Docket No. 32 at ¶15-17). In the Plaintiff's Reply in Opposition, they state:
[i]t is admitted that Plaintiff has no expert opinion to support his position in this lawsuit. Plaintiff did retain an engineering expert who inspected the tub in the presence of Mr. Newton, and while the expert agreed with the general knowledge that bath tubs become slippery when they are being used, he was unable to opine that there was any defective, unsafe or substandard condition with the tub or that the tub violated any government or industry standard. (Docket No. 32 at ¶13).
Despite the lack of an expert report in support of their argument, the Plaintiffs point to Mr. Newton's testimony that it was his belief that the tub was in an unsafe slippery condition and the wearing of the strips was the cause of his fall. (Newton Dep. at 60:21-24; Docket No. 32 at ¶17-22). The Plaintiffs admit, however, that Mr. Newton did not notice any slippery substance on the bottom of his feet or on the floor of the tub the night he fell nor could he testify as to where his feet were located at the time of his fall. (Docket No. 27 at ¶11); (Newton Dep. at 60:17-61:13, 63:17-20).
SUMMARY JUDGMENT STANDARD
Summary judgment under Federal Rule of Civil Procedure 56(c) is appropriate "if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c) (2007).*fn4 In deciding a summary judgment motion, the court must "view the evidence . . . through the prism of the substantive evidentiary burden" to determine "whether a jury could reasonably find either that the plaintiff proved his case by the quality and quantity of the evidence required by the governing law or that he did not." Anderson v. Consolidated Rail Corp., 297 F.3d 242,247 (3d Cir. 2002) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 254 (1986)).
When the non-moving party will bear the burden of proof at trial, the moving party's burden can be "discharged by 'showing'-that is, pointing out to the District Court-that there is an absence of evidence to support the non-moving party's case." Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). If the movant has carried this burden, the burden shifts to the non-moving party who cannot rest on the allegations of the pleadings and must "do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574 (1986); Petruzzi's IGA Supermarkets, Inc. v. Darling-Delaware Co., 998 F.2d 1224, 1230 (3d Cir. 1993). Thus, the non-moving party cannot rest on the pleadings, but instead must go beyond the pleadings and present "specific facts showing a genuine issue for trial," Fed.R.Civ.P. 56(e)(2) (2007), and cannot rely on unsupported assertions, conclusory allegations, or mere suspicions in attempting to survive a motion for summary judgment. Williams v. Borough of W. Chester, 891 F.2d 458, 460 (3d Cir. 1989) (citing Celotex, 477 U.S. at 325 (1986)). The non-moving party must respond "by pointing to sufficient cognizable evidence to create material issues of fact concerning every element as to which the non-moving party will bear the burden of proof at trial." Simpson v. Kay Jewelers, Div. of Sterling, Inc., 142 F.3d 639, 643 n.3 (3d Cir. 1998) (quoting Fuentes v. Perskie, 32 F.3d 759, 762 n.1 (3d Cir. 1994)).
"In considering a motion for summary judgment, a district court may not make credibility determinations or engage in any weighing of the evidence; instead, the non-moving party's evidence 'is to be believed and all justifiable inferences are to be drawn in his favor.'" Marino v. Industrial Crating Co., 358 F.3d 241, 247 (3d Cir. 2004) (quoting Anderson, 477 U.S. at 255 (1986)); see also Doe v. County of Centre, PA, 242 F.3d 437, 446 (3d Cir. 2001) (providing that "a court must take the facts in the light most favorable to the nonmoving party, the [plaintiffs], and draw all reasonable inferences in their favor") (citation omitted)).
Accidents happen and that they happen is unfortunate. Misfortune befalls individuals every day but that alone is not justification to shift some or all of any resulting loss to another. The Plaintiffs' case requires proof that the Defendants acted with negligence and that such negligence caused Mr. Newton's fall. The Plaintiffs have not presented sufficient evidence to meet this standard. Accordingly, there are no genuine material issues of fact which remain as to liability and all of the Defendants are entitled to judgment as a matter of law in their favor. The following is the Court's analysis of the Plaintiffs' claims under the Pennsylvania law of negligence and under the FELA.
A. PENNSYLVANIA LAW OF NEGLIGENCE
This Court has jurisdiction over this matter through diversity of citizenship. See 28 U.S.C. § 1332 (2005). A federal court sitting in diversity must apply the substantive law of the state in which it sits, Erie R.R. Co. v. Tompkins, 304 U.S. 64, 78 (1938), including its choice of law rules, Klaxon Co. v. Stentor Elec. Mfg. Co., 313 U.S. 487, 496 (1941). This case as presented by the parties does not appear to contain any dispute that Pennsylvania substantive law applies, and thus the Court declines to engage in a choice of law analysis. Rochez Bros., Inc. v. North American Salt Co., Inc., Civ. A. No. 94-1131, 1994 WL 735932, at *6 n.8 (W.D. Pa. Nov. 2, 1994) (citing Schiavone Construction ...