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Malone v. Marriott International


October 29, 2010


The opinion of the court was delivered by: VIRGINIA A. Phillips United States District Judge

ORDER GRANTING MOTION FOR SUMMARY JUDGMENT [Motion filed on September 20, 2010]

On September 20, 2010, Defendants Marriott International, Inc. and Marriott Hotel Services, Inc. (collectively, "Defendants") filed a Motion for Summary Judgment ("Motion") against Plaintiff Kathryn Malone ("Mrs. Malone") and Plaintiff Edward Malone ("Mr. Malone," collectively, "Plaintiffs"). Plaintiffs filed their Opposition to the Motion for Summary Judgment ("Opposition") on September 27, 2010. The Court has considered all papers filed in support of, and opposition to, the Motion and for the reasons set forth below, the Court GRANTS the Motion.


A. Plaintiffs' Failure to Respond Adequately to Defendants' Statement of Uncontroverted Facts

Defendants filed a Statement of Uncontroverted Facts ("Defendants' SUF") along with the Motion. (Doc. No. 26.) Under Local Rule 56-3(b), when determining a motion for summary judgment, the Court will "assume that the material facts as claimed and adequately supported by the moving party are admitted to exist without controversy except to the extent that such material facts are . . . controverted by declaration or other written evidence filed in opposition to the motion."

Local Rule 56-2 sets out the requirements for Plaintiffs opposing a Defendant's statement of facts, stating that they must submit a response to each of the Defendant's factual statements, and cite admissible evidence disputing them. Plaintiffs submitted a Response in Opposition to Defendants' Statement of Uncontroverted Facts ("Plaintiffs' SUF") along with their Opposition. (Doc. No. 31.) Plaintiffs did not, however, adequately support their statements in opposition with evidence. Instead, Plaintiffs made a few unsubstantiated or immaterial assertions and repeated them throughout their SUF. As a result, the material facts as claimed by Defendants may be admitted to exist without controversy and adopted by the Court outright.*fn1

Therefore, the matters set forth in Defendants' SUF are deemed to exist without controversy, and the statement is hereby adopted by the Court.

B. Uncontroverted Facts

On November 3, 2007, Plaintiffs went golfing on the Valley golf course at Defendants' JW Marriott Resort and Spa located in Palm Desert, California ("Palm Desert Marriott"). (Defs.' SUF ¶ 1; Compl. ¶ 9.) After putting their golf balls into the course's fifth hole, Plaintiffs walked back to their golf cart, which was parked on a nearby path. (Defs.' SUF ¶¶ 2-3; Compl. ¶ 9.) The route back to the golf cart required Plaintiffs to walk over the rough, an area of the golf course where the grass is kept longer than it is on the putting green. (Defs.' SUF ¶ 4; Compl. ¶ 9.) While walking on an area of the rough that slopes downhill, Mrs. Malone stepped in a depression, or hole, in the grass and fell, injuring herself. (Defs.' SUF ¶ 4; Compl. ¶ 9.)

Mr. Malone had been walking ahead of his wife at the time of her fall. Neither of them saw the hole before Mrs. Malone fell into it, as it was concealed by the grass growing in and around it. (Defs.' SUF ¶¶ 5-6; Compl. ¶ 9) Shortly after his wife's accident, Mr. Malone went to look for the depression and located it by stepping around the area with his feet for two or three minutes. (Defs.' SUF ¶ 11.)

Defendants' groundskeepers maintain the grass on the rough in the area where Mrs. Malone fell at a height of 11/4 inches by mowing the area four times per week. (Defs.' SUF ¶ 34.) Between September 24, 2007, and October 27, 2007, the Valley golf course was closed while all of the grass was cut short, de-thatched (where the matted layer of dead or dry grass material is removed both by machine and by hand), and reseeded. (Defs.' SUF ¶¶ 28-32.) During this process, while the grass on the course was shorter than usual and holes or divots in the grass were more visible, an employee walked around the course and filled in all holes or depressions he could see. (Id.)

The Valley golf course covers 92.12 acres of land, of which the fifth hole covers 4.46 acres. (Defs.' SUF ¶¶ 19-20.) Defendants' groundskeepers perform daily upkeep on every hole of the Valley golf course, doing such tasks as mowing grass, raking sand traps, and handling turf irrigation. (Defs.' SUF ¶ 25.) In the week leading up to Mrs. Malone's fall, the area around the fifth hole was maintained by the groundskeepers on a daily basis. (Defs.' SUF ¶¶ 25, 33, 36.)

Defendants do not have any employee at the Palm Desert Marriott whose sole job is to look for dangerous conditions on the course. (Pls.'s SUF ¶ 26.) Instead, all of Defendants' groundskeepers are responsible for looking for holes, depressions, or divots on the golf course when they are performing their daily maintenance work, and they are responsible for immediately fixing or reporting any holes they find. (Defs.' SUF ¶ 26.)


A motion for summary judgment shall be granted when there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986). The moving party must show that "under the governing law, there can be but one reasonable conclusion as to the verdict." Anderson, 477 U.S. at 250.

Generally, the burden is on the moving party to demonstrate that it is entitled to summary judgment.

Margolis v. Ryan, 140 F.3d 850, 852 (9th Cir. 1998); Retail Clerks Union Local 648 v. Hub Pharmacy, Inc., 707 F.2d 1030, 1033 (9th Cir. 1983). The moving party bears the initial burden of identifying the elements of the claim or defense and evidence that it believes demonstrates the absence of an issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).

Where the non-moving party has the burden at trial, however, the moving party need not produce evidence negating or disproving every essential element of the non-moving party's case. Id. at 325. Instead, the moving party's burden is met by pointing out that there is an absence of evidence supporting the non-moving party's case. Id.

The burden then shifts to the non-moving party to show that there is a genuine issue of material fact that must be resolved at trial. Fed. R. Civ. P. 56(e); Celotex, 477 U.S. at 324; Anderson, 477 U.S. at 256. The non-moving party must make an affirmative showing on all matters placed in issue by the motion as to which it has the burden of proof at trial. Celotex, 477 U.S. at 322; Anderson, 477 U.S. at 252; see also William W. Schwarzer, A. Wallace Tashima & James M. Wagstaffe, Federal Civil Procedure Before Trial § 14:144 (2010). A defendant has the burden of proof at trial with respect to any affirmative defense. Payan v. Aramark Mgmt. Servs. Ltd. P'ship, 495 F.3d 1119, 1122 (9th Cir. 2007).

A genuine issue of material fact will exist "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson, 477 U.S. at 248. In ruling on a motion for summary judgment, the Court construes the evidence in the light most favorable to the non-moving party. Barlow v. Ground, 943 F.2d 1132, 1135 (9th Cir. 1991); T.W. Elec. Serv. Inc. v. Pac. Elec. Contractors Ass'n, 809 F.2d 626, 630-31 (9th Cir. 1987).


Defendants seek summary judgment in their favor on Plaintiffs' three claims for: (1) premises liability under a theory of negligence; (2) negligent infliction of emotional distress; and (3) loss of consortium. (Compl. at 1.) Defendants satisfied their initial burden of demonstrating they are entitled to summary judgment on the negligence claim because of their lack of actual or constructive notice of the depression in the grass. Plaintiffs have failed to demonstrate the existence of a genuine issue of material fact on the notice issue, which encompasses the question of whether or not Defendants had reasonable inspection policies. Given these facts, Plaintiffs' negligence claim fails. Without the underlying negligence claim, Plaintiffs' second and third claims for negligent infliction of emotional distress and loss of consortium also fail. Therefore, Defendants are entitled to summary judgment in their favor on all claims in Plaintiffs' Complaint.

A. Plaintiffs Fail to Demonstrate a Genuine Issue of Material Fact Exists as to the Premises Liability Negligence Claim

Defendants assert that summary judgment is appropriate as to Plaintiffs' first claim for relief, arguing that: (1) this is a primary assumption of risk case and therefore Defendants owed no duty of care to Plaintiffs; and (2) even if Defendants did owe a duty to Plaintiffs, Defendants are not liable here because they had no actual or constructive notice of the depression into which Mrs. Malone fell. (Mot. at 2.) Defendants' first argument lacks merit as it misstates the law regarding assumption of risk; their second basis for summary judgment on this claim is supported by the uncontroverted facts, however.

Plaintiffs argue that Defendants were negligent in maintaining their premises. In order to establish her negligence claim, Mrs. Malone must show: (1) a legal duty to use due care; (2) a breach of that duty; and (3) the breach as the proximate or legal cause of the resulting injury. See, e.g., Jackson v. Ryder Truck Rental, Inc., 16 Cal. App. 4th 1830, 1837 (1993) (citing 6 Witkin, Summary of Cal. Law, Torts § 732 (9th ed. 1988)).

1. Defendants Owed a Duty of Care to Plaintiffs to Provide a "Reasonably Safe Golf Course"

California premises liability law follows a twotiered structure which defines the duties between parties based on their relationship and the activity at issue. Knight v. Jewett, 3 Cal. 4th 296, 314-15 (1992) (clarifying California law on the issue of assumption of risk in light of the recent adoption of comparative fault principles).

In the first category of case, called primary assumption of risk, a defendant owes no duty of care to a plaintiff because the plaintiff is considered to have voluntarily assumed the relevant risks when he or she chose to do certain activities. Id. In a secondary assumption of risk case, a defendant "does owe a duty of care to the plaintiff," although the risk assumed by the plaintiff is still taken into account. Id. The issue turns on "whether the defendant had a legal duty to avoid such conduct or to protect the plaintiff against a particular risk of harm." Id. at 316-17.

Under California law, golf course operators fall under the secondary assumption of risk rubric.*fn2 Morgan v. Fuji Country USA, Inc., 34 Cal. App. 4th 127, 134 (1995) (citing Knight, 3 Cal. 4th at 316-17). Following this standard, a golf course operator owes a duty of care to a golfer "to provide a reasonably safe golf course," a duty which "requires the golf course owner to minimize the risks without altering the nature of the sport." Id. Thus, Defendants' argument that they owed no duty of care to Plaintiffs fails.

2. Defendants Did Not Breach their Duty of Care Towards Plaintiffs Because Defendants Acted Reasonably

The next issue is whether Defendants breached their duty of maintaining a "reasonably safe golf course." In this inquiry, it is relevant whether Defendants did know or should have known about the depression in the grass. In order "to impose liability for injuries suffered by an invitee due to a defective condition of the premises, the owner or occupier must have either actual or constructive knowledge of the dangerous condition or have been able by the exercise of ordinary care to discover the condition." Ortega v. Kmart Corp., 26 Cal. 4th 1200, 1206 (2001) (internal citations omitted) (holding that the evidence supported a finding that defendant store had failed to inspect the premises within a reasonable period of time).

Plaintiffs claim that Defendants created the hole that Mrs. Malone fell into, and thus Defendants had actual notice of it. (Opp. at 16.) Neither party knows what caused the hole or depression to develop, although both sides agree that it may have been caused by a gopher tunnel in the area*fn3 . The issue of actual notice, however, concerns whether or not Defendants actually knew of the depression on the golf course before Mrs. Malone fell. None of the evidence in the record supports Plaintiffs' contention that they did.

Plaintiffs next claim that Defendants do not have "reasonable inspection policies" because Defendants do not have "a single employee with any specific training or specific job duties to look for dangerous conditions or dangerous holes on the golf course." (Pls.'s SUF ¶ 26.) Plaintiffs cite no legal authority to support this definition of reasonableness as it relates to Defendants' duty. Additionally, Plaintiffs do not contest the fact that Defendants had a team of groundskeepers who continually monitored the eighteen-hole golf course, all of whom were responsible for discovering and fixing any holes or depressions they found on the course. (Defs.' SUF ¶ 26.)

Furthermore, it is uncontested that the hole was not visible when Mrs. Malone fell in it because the grass in the hole had grown to a height even with the surrounding grass. Mr. Malone was unable to find the hole for two or three minutes even when he knew of its location. (Defs.' SUF ¶ 11.) Thus, in order to discover the hole into which Mrs. Malone fell, Defendants' groundskeepers would have been required to inspect every inch of the ninety-two acre golf course on hand or foot every day. Such a requirement would go beyond what can reasonably be expected of a landowner, even one who anticipates visitors on its land.

Plaintiffs also assert that evidence of Defendants' negligence comes from the fact that they were "in violation of Marriott's own rodent policy." (Opp'n at 8, 19.) The policy in issue, which consist of two lines in one of Defendants' manuals, states that "[n]o rodent burrows shall be in play areas" and "[a]nnual control programs shall be in place and in use with records properly kept." (Id.) Plaintiffs' argument that Defendants violated their own policy fails both on the facts and the law.

First, the statement that there should be no rodent burrows in play areas is clearly a directive that Defendants' groundskeepers sought to enforce. The Palm Desert Marriott's Director of Grounds Albert Perez stated in his deposition that if a rodent was found on the grounds, the issue was immediately addressed at daily meetings of the entire grounds crew. (Perez Dep. at 249.) He also stated that he took courses dealing with rodent control and would report back on those courses with his staff. (Id.) In light of this behavior, the lack of documentation of an annual rodent control program is not the clear evidence of negligence that Plaintiffs suggest.

Second, as a matter of law, the rodent policy in question does not present "a specific indication of the employer's reconciliation of the conflict between maximum efficiency in operations and maximum safety to the public." Dillenbeck v. City of Los Angeles, 69 Cal. 2d 472, 479 (1968) (holding that safety rules defining appropriate speed limits for police vehicles could be admitted as evidence of due care). Defendants' policy does not identify a precise standard of care that Defendants breached, but instead identifies a generalized area of concern that Defendants attend to on an ongoing basis.

The issue of whether Defendants acted reasonably is a question of law for the Court. See, e.g., Scott v. Harris, 550 U.S. 372, 381 n.8 (2007) ("At the summary judgment stage, however, once we have determined the relevant set of facts and drawn all inferences in favor of the nonmoving party to the extent supportable by the record . . . the reasonableness of [defendant's actions] . . . is a pure question of law.") The Court finds that Defendants acted reasonably to fulfill their duty to provide a reasonably safe golf course to their patrons. To allow Plaintiffs to recover from Defendants in these circumstances would place too great a burden on facility owners of all types. Defendants' motion for summary judgment on the issue of negligence is thus granted.

B. Plaintiffs Fail to Demonstrate a Genuine Issue of Material Fact Exists as to the Negligent Infliction of Emotional Distress Claim

Under California law, recovery on a negligent infliction of emotional distress claim is available if "the emotional distress arises out of the defendant's breach of some other legal duty and the emotional distress is proximately caused by that breach of duty." Potter v. Firestone Tire & Rubber Co., 6 Cal. 4th 965, 985 (1993). Without an underlying breach of duty by Defendants, there can be no recovery for any emotional distress Mr. Malone may have suffered. Id. Thus, summary judgment for Defendants on this claim is appropriate.

C. Plaintiffs Fail to Demonstrate a Genuine Issue of Material Fact Exists as to the Loss of Consortium Claim

A claim for loss of consortium under California law has four elements: (1) a valid and lawful marriage between the plaintiff and the person injured at the time of the injury; (2) a tortious injury to the plaintiff's spouse; (3) loss of consortium suffered by the plaintiff; and (4) the loss was proximately caused by the defendant's act. Hahn v. Mirda, 147 Cal. App. 4th, 740, 746 (2007) (internal citation omitted). As Defendants are not liable for the underlying tort to Mrs. Malone, Mr. Malone may not recover on his loss of consortium claim. Thus, summary judgment for Defendants on this claim is appropriate.

D. Plaintiffs' Expert Declaration Does Not Create a Genuine Issue of Material Fact

Plaintiffs also submitted, as part of their Opposition, an expert declaration from Brad P. Avrit on issues of safety and the reasonableness of Defendants' behavior ("Avrit Declaration"). (Opp'n Ex. E.) "Assertions in expert affidavits do not automatically create a genuine issue of material fact." Rebel Oil Co., Inc. v. Atlantic Richfield Co., 51 F.3d 1421, 1440 (9th Cir. 1995). Instead, the inference to be drawn from expert affidavits must be "sufficient to support a favorable jury verdict." Id. (citing Anderson, 477 U.S. at 248-50). The Court does not find that the conclusions in Mr. Avrit's declaration create any issues of material fact that would bar summary judgment. Mr. Avrit's declaration looks at the same facts the Court did but comes to a different conclusions, finding that Defendants lacked reasonable inspection procedures and should have found the depression on the Valley golf course*fn4 . (Avrit Decl. ¶ 10.) Mr. Avrit's declaration thus fails to raise a genuine issue of material fact.

E. Plaintiffs' Request for Additional Time is Improper

On the penultimate page of their Opposition, Plaintiffs request additional time to complete further depositions before the Court rules on the Motion. (Opp'n at 24; Rudorfer Decl. ¶ 11.) Plaintiffs' request fails to show that "for specified reasons [Plaintiffs] cannot present facts essential to justify its opposition" as required by Federal Rule of Civil Procedure 56(f). Plaintiffs have indicated neither why they have been unable to take certain additional depositions nor how these new depositions would provide any essential information to support their case. The request for additional time is therefore denied.

F. Plaintiffs' Claim of Defendants' Spoliation of Evidence is Without Merit and Improper

Finally, Plaintiffs assert that Defendants "destroyed all the evidence" after Mrs. Malone's fall and are "trying to use that to [their] benefit," all of which "creates an inference adverse to" Defendants. (Opp'n at 24.) In the same paragraph, Plaintiffs note that Defendants took eight photographs of the depression before they filled in the hole so no one else was hurt by it. (Id.)

In support of their spoliation argument, Plaintiffs argue that, under Byrnie v. Town of Cromwell, Bd. of Educ., 243 F.3d 93 (2nd Cir. 2001), the destruction of evidence by a defendant may allow a plaintiff to survive summary judgment. (Opp'n at 24.) The fact of Byrnie are dissimilar from the instant case and do not help Plaintiffs. In Brynie, the plaintiff filed an action for against the defendant for its failure to hire him as a teacher, arguing disparate treatment on the basis of his age and gender. Brynie, 243 F.3d at 98. In the course of discovery, it came out that the defendant had affirmatively destroyed almost all of the documents created at the time the hiring decision was made. Id. at 109-10. The defendant was required under federal regulation to retain such documents for at least two years, and should have retained the documents as soon as it knew that Brynie was concerned with the outcome and would be pursuing litigation, something he made clear to defendants soon after the process was complete. Id. at 109.

The willful destruction of documents anticipated to be necessary to litigation, the scenario in Brynie and most spoliation cases, is very different from the circumstances of the present case, where Defendants fixed a dangerous condition on their golf course which had been brought to their attention. Defendants' behavior here comes closer to being a subsequent remedial measure, behavior which is specified as a statutory evidentiary exclusion in order to encourage it. See Fed. R. Evid. 407; see also Fed. R. Evid. 407 advisory committee notes (1972) ("The other, and more impressive, ground for exclusion rests on a social policy of encouraging people to take, or at least not discouraging them from taking, steps in furtherance of added safety").

The size and location of the hole which Mrs. Malone fell into are not material facts at issue in this case, so Defendants did not destroy any critical disputed evidence. Plaintiffs' accusation is thus a baseless attack on Defendants for their efforts to mitigate the problem on the golf course and prevent any future harm to their patrons. This argument thus has no bearing on the Court's judgment.


For the foregoing reasons, the Court GRANTS the Motion.


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