38 | Fall 2021 | BAEC Bulletin WESTERN DISTRICT CASE NOTES Continued from Page 37
alternative theory to support design defect and manufacturing defect claims and, therefore, was duplicative of those claims and should be dismissed as a stand-alone claim. The Court also ruled that, because the elements of negligence claims based on design defect, manufacturing defect and failure to warn theories are the same as those under strict liability, dismissal of the negligence claim was not warranted for the same reasons that the motion to dismiss the design defect and failure to warn claims was denied. Takings and Equal Protection Claims In Drake, et al. v. Village of Lima, et al. , 20-cv-6112-EAW (Mar. 30, 2021), plaintiffs sued a village and its Department of Public Works for damages caused when a nearby sewer line became clogged and the backup caused damage to the residence and contents. In addition to state tort claims, plaintiffs asserted federal takings and equal protection claims. The Court first held that plaintiffs’ takings claim was not plausibly alleged and must be dismissed, because a takings plaintiff bears the burden to prove that a government action, rather than inaction or failure to act, caused the injury. Thus, for instance, a theory that the government failed to maintain or modify a government-constructed project may state a tort claim, but it does not state a takings claim. Here, because plaintiffs’ claim was premised on defendants’ alleged negligence in maintaining and operating the sewer line, this was “precisely the type of government inaction that has been found insufficient to support a takings claim.” The Court also ruled that the equal protection claim was not plausibly alleged, because the complaint only contained conclusory allegations that other unspecified portions of the municipality sewer system had been better maintained, operated and designed in some unspecified way, but failed to offer any more specific allegations concerning the purportedly better maintained sections of the sewer system and the properties connected there. Given the early stage of the proceedings, that the remaining causes of action involved “quintessential areas of state law,” and that the action had originated in State Court, the Court declined to exercise supplemental jurisdiction and remanded the remaining State law claims. Negligence In Alger v. Von Maur, Inc. , 19-cv-6698-FPG (May 17, 2021), plaintiff sued defendant alleging she was injured after slipping and falling on a wet floor that defendant allegedly caused, created or permitted to exist at its retail store. Defendant moved for summary judgment, arguing that no evidence had been adduced during discovery to support a finding that defendant created the hazard or had actual or constructive notice of the allegedly dangerous condition. The Court granted the motion, noting first that, unlike New York’s summary judgment standard - - in which the moving party is required to put forth affirmative evidence in support of its motion - - the federal standard requires defendant to show only that an absence of evidence in the record prevents the nonmoving party from prevailing at trial. The Court then held that plaintiff failed to raise a triable issue of fact concerning whether the defendant caused or had actual knowledge of the allegedly wet floor, because there was no evidence in the record that an employee created the hazard, that an employee observed the wet floor prior to the incident, nor that any customer had complained about the condition prior to the fall. The Court also held that there was insufficient proof to raise a question of material fact concerning defendant’s constructive notice of the condition prior to the incident, because there was no evidence that the condition was visible and apparent prior to the incident. Without evidence that the condition was visible and apparent before the incident, the Court also ruled that a jury could not determine that there was sufficient time for defendant’s employees to have discovered and remedied the condition. Motion in Limine In Horne, et al. v. Medical Marijuana, Inc., et al. , 15-cv-701-JWF (April 29, 2021), defendants filed various motions in limine on the eve of trial. The Court advised that, “although the Federal Rules of Evidence do not explicitly authorize in limine rulings,” the practice has developed pursuant to the Court’s inherent authority to manage the course of trials. Such rulings though are viewed as a “preliminary opinion given to allow the parties to formulate their trial strategy and allow the court to manage the trial in the most efficient way possible.” But, the Court is not bound by an in limine ruling and has the discretion to change its determination when facts are developed that warrant that change “or even if nothing unexpected happens at trial.” Once such motion in limine sought to exclude the results of the urine test on grounds of hearsay, authentication, and failure to disclose an expert under Rule 26. The issue posted the question whether a business record that contains an opinion must satisfy both Rule 702 governing expert opinions and Rule 803(6) governing business records. Plaintiffs argued the test results were admissible as a record of a regularly conducted activity and their admissibility was not subject to the additional requirements of Rule 702. Siding with what it regarded as the “majority view,” the Court held that an opinion properly admitted under Rule 803(6) does not also need to satisfy the requirements of Rule 702, especially when those opinions were obtained and processed in the regular course of business, the laboratory had not reason to falsify the test results, the testing was not requested for purposes of this or any other litigation, and the results were relied on and trusted by the recipient, even when that recipient is one of the litigants.
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