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Butts v. Weisz

February 25, 2010


The opinion of the court was delivered by: Conti, District Judge.



This case was filed by Levone Butts ("Levone Butts" or "plaintiff"), individually and as executrix of the estate of her deceased husband, Glen Ray Butts ("Glen Butts" or "plaintiff‟s husband," and together with plaintiff, the "Butts"), against Lloyd Weisz ("Lloyd Weisz") and Georgia Weisz ("Georgia Weisz," and together with Lloyd Weisz, "defendants"). The court has subject-matter jurisdiction over this diversity action pursuant to 28 U.S.C. § 1332. The action arises out of an accident that resulted in the death of Glen Butts. Pending before the court are the parties‟ cross-motions for summary judgment concerning whether defendants are liable for Glen Butts‟ death because of their negligence. Plaintiff moved for partial summary judgment on March 23, 2009 (Doc. No. 23), but that motion was denied by the court without considering its merits (Doc. No. 35); plaintiff filed a renewed motion for partial summary judgment on July 12, 2009 (Doc. Nos. 43, 46). Defendants moved for summary judgment on July 10, 2009 (Doc. No. 39). After considering the joint statement of facts and the other submissions of the parties, viewing all disputed facts in favor of the opposing party, and drawing all reasonable inferences in favor of the opposing party, plaintiff‟s motion for partial summary judgment will be denied, and defendant‟s motion for summary judgment will be granted.


Levone Butts and her husband, Glen Butts, came to know Lloyd Weisz and Georgia Weisz when the two couples lived in California. (Pl.‟s Statement of Undisputed Material Facts Combined with Defs.‟ Resps. Thereto (Doc. No. 59) ("Pl.‟s CSMF") ¶ 5.) Defendants moved to a home located at 164 Miller Farms Road, Edinburg, Pennsylvania; plaintiff and her husband maintained their residence in California. (Defs.‟ Combined Concise Statement of Material Facts (Doc. No. 58) ("Defs.‟ CSMF") ¶ 2; Pl.‟s CSMF ¶ 2.)

On August 21, 2006, plaintiff and her husband were guests at the home of Lloyd Weisz and Georgia Weisz. (Defs.‟ CSMF ¶ 3.) Plaintiff and her husband arrived at the Pittsburgh International Airport at 5:45 p.m. that evening. (Defs.‟ CSMF ¶ 5.) Defendants picked up plaintiff and her husband and drove them forty-five miles to their home. (Defs.‟ CSMF ¶ 5.) Plaintiff and her husband had not visited defendants‟ home in Pennsylvania prior to August 21, 2006. (Pl.‟s CSMF ¶ 8.) Glenn Butts was eighty-four years old on that date. (Pl.‟s CSMF ¶ 15.)

Defendants‟ home is described as a "ranch-style" house. The back door of the house opened into a landing area. A person entering through the back door could proceed straight down a stairwell to the basement, or could turn left and proceed up a single eight-inch stair into the kitchen. There was no door between the landing and basement stairwell. (Defs.‟ CSMF ¶ 4.) There was a "pocket door" between the landing and the kitchen, but defendants were not aware of this door at the time of the accident. (Pl.‟s CSMF ¶ 29.) There was an overhead lighting fixture at the top of the basement steps. (Pl.‟s CSMF ¶ 27.) The light switch for this lighting fixture was not at the top of the basement stairwell, but rather was located outside the landing area above the entryway. (Pl.‟s Exs. in Supp. of Renewed Mot. for Partial Summ. J. (Doc. No. 48) ("Pl.‟s Ex."), Ex. J at 34-35; Pl.‟s Ex. K at 58-61.)

After arriving at defendants‟ home from the airport, the couples entered the home through the back door; there was ample light in the landing area at the time they entered. (Defs.‟ CSMF ¶ 6.) Plaintiff‟s husband and Lloyd Weisz took the Butts‟ luggage to a guestroom located in the house. (Defs.‟ App‟x (Doc. No. 42), Ex A at 25.). Defendants gave the Butts a tour of the home. (Defs.‟ CSMF ¶ 8.) The tour was brief, however, because plaintiff and her husband were hungry and wanted to eat dinner. (Defs.‟ App‟x, Ex. A at 26-27.) Defendants took the Butts out to dinner. In exiting the house the couples passed though the back door, and returned through the same door. (Defs.‟ CSMF ¶ 9.) Georgia Weisz intentionally turned off the light in the landing area after returning. (Pl.‟s Ex. C. at 10.)

After dinner, plaintiff and Georgia Weisz sat in the living room of the home, while plaintiff‟s husband and Lloyd Weisz went into the den area of the home. (Defs.‟ CSMF ¶ 10.) Plaintiff‟s husband entered the living room and stated he was going to "use the little boys‟ room." (Defs.‟ App‟x,, Ex. A at 34-36.) He walked through the home‟s dining room into the kitchen. (Id.) Plaintiff asserts that the most direct way to the bathroom from her husband‟s location was through the foyer (Pl.‟s CSMF ¶ 20), although the path he took also leads to the bathroom. Georgia Weisz saw plaintiff‟s husband enter the kitchen, and was confused why he went that way. Georgia Weisz, however, did not tell him that the other direction was the direct route. (Pl.‟s Ex. G at 22-23.) Plaintiff‟s husband did not ask for directions to the bathroom and did not ask that any lights be turned on. (Defs.‟ CSMF ¶ 12.) Although plaintiff believed her husband was going in the wrong direction, any concern she had was assuaged by Georgia Weisz‟s failure to redirect him. (Defs.‟ CSMF ¶ 13; Defs.‟ App‟x, Ex. A at 36.)

Defendants and plaintiff heard a crash from the landing area. They walked to the basement stairwell and found plaintiff‟s husband unresponsive at the bottom of the steps. (Defs.‟ CSMF ¶ 14.) No one saw plaintiff‟s husband fall. (Defs.‟ CSMF ¶ 15.) Plaintiff attempted to revive her husband, but was unsuccessful. (Pl.‟s CSMF ¶ 44.) Plaintiff‟s husband was taken to Jameson Memorial Hospital, arriving at 10:08 p.m. (Defs.‟ CSMF ¶ 16.) Glen Butts was pronounced dead of blunt head trauma. (Pl.‟s CSMF ¶ 46.)

At all times when plaintiff‟s husband passed through the landing area it was amply lit, with the exception of when he fell. The lighting was provided either by natural light or by defendants triggering the light switch. (Defs.‟ CSMF ¶ 9.) The lighting fixture at the top of the basement stairwell was turned off at the time of the accident. (Pl.‟s CSMF ¶ 27.)

Plaintiff retained an architect expert witness, Robert T. Stevens, Jr., R.A. ("Stevens"). Defendants filed a motion to challenge portions of Stevens‟ testimony (Doc. No. 26). After hearing argument on May 12, 2009 and June 11, 2009, and taking into the consideration briefs and supplemental briefs, the court on the record ruled that Stevens‟ testimony would be limited to offering an opinion regarding a normal person‟s gait, the dangerousness of a single step, and the possible injuries that could result from that danger:

THE COURT: This is all going to the summary judgment phase of this matter. The question is, at this stage, what can this expert testify to? The consequences of how his testimony would be limited may be a matter that the Court would have to probe and resolve on a motion for summary judgment. But at this stage, . . . the nature of the step, the configuration of the step, the nature of the lighting, how a person would normally walk, . . . those are matters that would be appropriate for Mr. Stevens to opine as to.

He is not going to be able to opine, however, about the reaching for the light switch, because that's just too speculative. We have no idea if the decedent reached for the switch or didn't reach for the switch. So that would be a matter of pure speculation. Whether what is left in terms of the opinion, whether it's sufficient for proving causation under these circumstances, I would have to resolve at a motion for summary judgment. . . . . [DEFENDANTS‟ COUNSEL]: So I understand, Your Honor, at this point your ruling is that Mr. Stevens would be allowed to testify, would be allowed to testify as to the dangerous condition at the top of the stairs, and to his initial -- to his first scenario, that it's possible that Mr. Butts missed the step, and then, fell to his left? THE COURT: Depending on the walking; how someone would walk on that kind of step, and that if someone did fall, they could fall, and going down the steps would be something, too, that could have happened.

But the problem you're going to have, quite frankly, is if there's an equally plausible situation here, I'm not sure that that's sufficient to get past a motion for summary ...

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