United States District Court, N.D. New York
DORIS M. MAY, Plaintiff,
RUBY TUESDAY, INC., Defendant.
OFFICE OF JAMES K. EBY, JAMES K. EBY, ESQ., Oswego, New York, Attorneys for Plaintiff.
WARD GREENBERG HELLER, TONY R. SEARS, ESQ. & REIDY LLP, Rochester, New York, Attorneys for Defendant.
MEMORANDUM-DECISION AND ORDER
FREDERICK J. SCULLIN, Jr., District Judge.
Currently before the Court are Defendant's motions to preclude the testimony and opinions of Plaintiff's expert, Daniel J. Manning, and for summary judgment dismissing the complaint in its entirety. See Dkt. No. 17. The Court heard oral argument in support of, and in opposition to, these motions on July 23, 2014, and reserved decision. The following constitutes the Court's written disposition of the pending motions.
Plaintiff originally filed her complaint on January 14, 2013, in New York States Supreme Court, Oswego County. See Dkt. No. 1, Notice of Removal at ¶ 1. Defendant removed the action from state court on the basis that this Court has diversity jurisdiction over this matter pursuant to 28 U.S.C. § 1332(a). See id. at ¶ 8.
In her complaint, Plaintiff alleges that she was injured when she tripped on a concrete wheel stop (curb stop) in the parking lot of a restaurant that Defendant owns and operates in Oswego, New York. On November 4, 2011, Plaintiff and her sister were patrons at Defendant's restaurant. Directly in front of the main entrance/exit doors of the restaurant is located a handicapped parking spot, the western most boundary of which abuts the sidewalk in front of the entrance/exit doors and which is marked by a metal sign and a concrete curb stop. See Dkt. No. 1, Complaint at ¶ 5. When Plaintiff and her sister exited the restaurant, Plaintiff tripped over the concrete curb stop causing her to fall and sustain serious personal injury. See id. at ¶ 6. Plaintiff contends that her injuries were solely the result of Defendant's negligence. See id. at ¶ 7. Finally, Plaintiff asserts that Defendant's negligence
consists of having located a handicapped parking place in direct alignment with the center of the entrance/exit doors thereby creating an obstruction to unencumbered travel by the placement of the concrete curb and metal sign and failing to properly mark the obstruction and failing to properly design and place railings or other visible barriers and otherwise negligently constructing and maintaining the scene.
See id. at ¶ 8.
After the parties had completed discovery, Defendant filed the pending motions, which the Court will address in turn.
A. Admissibility of the testimony and opinions of Plaintiff's expert, Daniel J. Manning
In Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579 (1993), the Supreme Court instructed the district courts that they must act as "a gatekeeper to exclude invalid and unreliable expert testimony.'" DeVito v. Smithkline Beecham Corp., No. Civ. A. 02-CV-0745, 2004 WL 3691343, *2 (N.D.N.Y. Nov. 29, 2004) (quoting Bonton v. City of New York, No. 03 Civ. 2833, 2004 WL 2453603, at *2 (S.D.N.Y. Nov. 3, 2004)). This gatekeeping function applies "whether the proposed expert testimony is based upon scientific knowledge, technical, ' or some other specialized' knowledge." Id. (citing Kumho Tire Co. v. Carmichael, 526 U.S. 137, 141, 119 S.Ct. 1167, 1171 (1999) (citing Fed.R.Evid. 702)). In addition, the court must keep in mind that, "under Rule 403, even relevant evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of issues, or misleading the jury.'" Id. (quoting Fed.R.Evid. 403). As the Supreme Court explained in Daubert, "[e]xpert evidence can be both powerful and quite misleading because of the difficulty in evaluating it. Because of this risk, the judge in weighing possible prejudice against probative force under Rule 403... exercises more control over experts than over lay witnesses.'" Daubert, 509 U.S. at 595 (quotation omitted). Finally, "[t]he proponent of expert evidence must establish admissibility under Rule 104(a) of the Federal Rules of ...