IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF TENNESSEE, AT KNOXVILLE. Plaintiffs, Civ. No: 3:15-cv-556. v. Judge Reeves/Guyton

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1 IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF TENNESSEE, AT KNOXVILLE PHYLLIS G. BARNES, and WALTER R. BARNES, Plaintiffs, Civ. No: 3:15-cv-556 v. Judge Reeves/Guyton GREG MALINAK, DEBBIE MALINAK, JURY DEMAND OLDE GATLINBURG PLACE CONDOMINIUM OWNERS, ASSOCIATION INC., and SIDNEY JAMES MOTOR LODGE, INC. d/b/a OLDE GATLINBURG RENTALS. Defendants. FINAL PRETRIAL ORDER Come the parties, by and through counsel and in accordance with the Court s Scheduling Order, submit an Agreed Pretrial Order as follows: 1. Jurisdiction Jurisdiction is based on diversity of citizenship pursuant to 28 U.S.C Jurisdiction of the Court is not disputed. 2. All pleadings are amended to conform to the Pretrial Order. 3. Summary of Plaintiffs Theory Plaintiffs theories as to liability are as follows: a. The floor was excessively slippery which, when taken in combination with the towel (regardless of the whether the towel was proper to be used itself or not) caused the Plaintiff to fall. 1 of 8 Case 3:15-cv PLR-HBG Document 100 Filed 07/28/17 Page 1 of 8 PageID #: 1318

2 b. The Defendants knew the floor to be slippery or they would have had no need to supply a bath towel (or bath mat as they refer to it as), and therefore, because they knew the floor was slippery, they had a duty to supply a towel/mat that when used in conjunction with the floor, for a person to step onto after exiting the bath/shower, would not slip on the floor and would not cause such a person to fall. c. The bath towel that was provided to the Plaintiffs for use as a bath mat in the bathroom was improper. Bath towels are not bath mats and should not be used as such. The bath towel when placed on the slippery linoleum tile floor caused the fall because as soon as Plaintiff Barnes stepped on the towel, it began to slide along the floor, causing her fall and injuries. d. The Defendants should have provided a grab bar on the wall so that Plaintiff could have used it to break her fall. The absence of a grab bar when taken in conjunction with the slippery floor and improper bath towel (not mat) caused the Plaintiff s fall and resulting injuries. e. It would have been much less dangerous to Plaintiff had the Defendants not supplied the bath towel and simply supplied nothing as it was the towel sliding along the slippery floor when stepped on and not any water on the bottom of Plaintiff s feet that caused the fall. f. All of the foregoing theories constitute negligence on the part of the Defendants. h. The management Defendant is liable because it created the dangerous condition about the property and/or the dangerous condition existed long enough that 2 of 8 Case 3:15-cv PLR-HBG Document 100 Filed 07/28/17 Page 2 of 8 PageID #: 1319

3 the Defendant knew or should have known of its existence and rectified it but failed to do so. In addition, the Defendant management company owed Plaintiffs a duty to provide a bathroom free of dangerous conditions. i. The owner Defendants are liable because they hired the management company and therefore the management company s negligence is imputed to them. In the alternative, they are liable because their agent created the dangerous condition about the property and/or the dangerous condition existed long enough that the owner Defendants knew or should have known of its existence and rectified it but failed to do so. In additions, the owner Defendants owed Plaintiffs a duty to provide a bathroom free of dangerous conditions. j. All of Plaintiff s medical bills and injuries were caused by Defendants negligence. k. Plaintiff Walter Barnes loss of consortium was caused by Defendants negligence. i. Any industry standard or common practice that may exist does not relieve the Defendants of liability if the bathroom they provided caused a dangerous condition to exist in the bathroom which caused the Plaintiffs injuries and damages. 4. Summary of Defendants Theories a. Greg Malinak and Debbie Malinak s Theory Defendants Greg Malinak and Debbie Malinak ( the Malinaks ) deny that they committed any negligent act or omission that caused or contributed to Plaintiff Phyllis Barnes accident and Plaintiffs alleged injuries or damages. A cotton terry cloth bathmat 3 of 8 Case 3:15-cv PLR-HBG Document 100 Filed 07/28/17 Page 3 of 8 PageID #: 1320

4 is the hospitality industry standard, and the bath mat in the rental condominium did not create a dangerous condition that would have established any duty owed by the Malinaks or would have required any warning to Plaintiffs. The same vinyl floor has been in the condominium for the entire 11-year period that the Malinaks have owned the condominium. It is a standard vinyl floor commonly found in bathrooms and was not slick. The Malinaks had neither actual nor constructive notice of any dangerous condition. A cotton bathmat has been supplied and used by rental guests on the same vinyl flooring in the same bathroom for the entire 11-year period that the Malinaks have owned and rented the condominium. In those 11 years, no accidents or similar incidents have been reported. The sole and proximate cause of the accident and any damages claimed by the Plaintiffs was Plaintiff Phyllis Barnes own negligence. Finally, the Malinaks object to the Plaintiffs late assertion that a grab bar should have been provided. The Malinaks have filed Motion in Limine No. 1 to Exclude Evidence on Plaintiffs New Theories of Negligence. See [Doc. 95]. Thus, the Malinaks object to Plaintiffs late assertion of the grab bar theory being included in the Final Pretrial Order and wish to preserve any and all objections to the Plaintiffs grab bar theory. However, if the issue is raised at trial, the Malinaks theory is that a grab bar was not required by any applicable law or code. b. Sidney James Motor Lodge, Inc. s Theory Sidney James denies that it committed any negligent act or omission that caused or contributed to Plaintiff Phyllis Barnes accident and alleged injuries. Sidney James s 4 of 8 Case 3:15-cv PLR-HBG Document 100 Filed 07/28/17 Page 4 of 8 PageID #: 1321

5 provision of a cotton terry cloth bathmat, the overwhelming standard of the hospitality industry, complied with the standard of care and did not create a dangerous condition. To the extent that Plaintiffs pursue the theory of liability that the floor cleaner used by Sidney James created a dangerous condition, Sidney James s will show that the floor cleaner, if any, that was used prior to the subject fall was a disinfectant specifically marketed for use on bathroom floors. Sidney James had neither actual nor constructive notice of any dangerous condition. No falls had been reported in any of the bathrooms of any of the unit during the entirety of Sidney James s role as rental manager at this location. To the extent that Plaintiffs may claim that Phyllis Barnes slipped because the bathroom surfaces became slippery during or after her shower, Sidney James was under no duty to remove such condition or warn the Plaintiffs of such condition because the fact that bathroom surfaces may become slippery following a shower is readily apparent and common knowledge. The sole and proximate cause of the accident and any damages claimed by the Plaintiffs was Plaintiff Phyllis Barnes own negligence. Finally, for the reasons stated in its first motion in limine [ECF Doc. 93], Sidney James objects to Plaintiffs inclusion in this pretrial order of the late-disclosed theory that Defendants were negligent for failure to provide a grab bar in the shower, and further preserves any and all objections to Plaintiffs proceeding upon this theory at trial. To the extent that Plaintiff is making the late-timed assertion that a grab bar should have been provided, a grab bar was not required, and provision of grab bars, generally, are outside of the scope of Sidney James duties as a rental manager. 5 of 8 Case 3:15-cv PLR-HBG Document 100 Filed 07/28/17 Page 5 of 8 PageID #: 1322

6 5. Issues to be submitted to the jury. a. Disputed Facts, if any. b. Liability. c. Comparative Fault. d. Damages. 5. Issues to be submitted to the Court. Defendants motions for summary judgment and motions to exclude the testimony of Plaintiffs expert Russell Kendzior are currently pending before the Court. Defendants will timely file Motions in Limine regarding certain evidentiary issues such as potential hearsay testimony, the necessity and reasonableness of medical charges, and the potential assertion by the Plaintiffs of new claims not asserted in the Complaint that will require rulings by the Court. 6. Stipulations of Facts. The Malinaks owned the rental condominium in question. Sidney James managed the rental condominium in question on behalf of the Malinaks. Plaintiffs checked into the rental condominium on April 9, Among other linens and towels, Plaintiffs were provided with a cotton terry cloth bathmat. 7. Novel or unusual questions of law or evidence? None. 8. Estimated length of trial (in working days)? 3 days. 9. Possibility of settlement? 6 of 8 Case 3:15-cv PLR-HBG Document 100 Filed 07/28/17 Page 6 of 8 PageID #: 1323

7 Defendants submit that they would participate in any mediation that is either scheduled voluntarily amongst the parties or if Court ordered, but they are pessimistic about the chances of resolving the case by mediation or any possibility of settlement before trial. 10. Miscellaneous matters that may contribute to the just, speedy and inexpensive determination of this case. None. APPROVED FOR ENTRY: UNITED STATES DISTRICT JUDGE 7 of 8 Case 3:15-cv PLR-HBG Document 100 Filed 07/28/17 Page 7 of 8 PageID #: 1324

8 APPROVED AS TO FORM & SUBSTANCE /s/ Darren V. Berg w/permission, Christopher Field Darren V. Berg, BPR # Butler, Vines & Babb, PLLC 2701 Kingston Pike Knoxville, TN / Attorney for Plaintiffs /s/ Joshua M. Ball w/permission, Christopher Field Joshua M. Ball, BPR # Hodges, Doughty & Carson 617 W. Main St. Knoxville, TN / Attorney for Defendants Malinak /s/ Christopher Field Gregory Brown, BPR # Christopher Field, BPR # Lowe, Yeager & Brown 900 S. Gay St., Ste Knoxville, TN / Attorney for Defendant Sidney James Motor Lodge, Inc. d/b/a Olde Gatlinburg Rentals 8 of 8 Case 3:15-cv PLR-HBG Document 100 Filed 07/28/17 Page 8 of 8 PageID #: 1325