Mehner v. Panera, LLC

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MARK A. MEHNER, Plaintiff, v. PANERA, LLC, JOHN DOE, and JANE DOE, Defendants.

No. 8:22CV168

United States District Court, D. Nebraska

May 2, 2024

MEMORANDUM AND ORDER

This matter is before the Court on defendant Panera, LLC's (“Panera”) Motion for Summary Judgment (Filing No. 103). See Fed.R.Civ.P. 56(a); NECivR 7.1 and 56.1. Panera seeks dismissal of all of plaintiff Mark A Mehner's (“Mehner”) remaining claims. Mehner asserts the motion should be denied.^[1]

Panera properly filed and supported a Rule 56.1 Statement of Material Facts (Filing No. 104) (“PSMF”) in support of its motion for summary judgment. Mehner did not properly respond to the PSMF as required by Rule 56.1(b). Contrary to Mehner's argument in his surreply, Rule 56.1(b) is not a “permissive provision.” Therefore, the PSMF are deemed undisputed for purposes of this motion.^[2] For the reasons stated below, Panera's motion is granted.

I. BACKGROUND

A. Facts

On April 11, 2017, Mehner went to a Panera's restaurant in Omaha, Nebraska (the “Western Springs” location) for lunch with his wife and daughter. Western Springs is owned and operated by Panera, a limited liability company organized under the laws of the State of Delaware. The chairs in the Western Springs dining room were manufactured by FDS, a New York corporation.

Mehner had been a regular customer at this location and had never had any issues with chairs. Mehner ordered lunch at the counter and after ordering, sat down in a chair. At that time, he noticed no problems with the chair when he pulled it out or when he first sat on it. After sitting on the chair for some time, it collapsed and Mehner fell to the floor. Mehner claims he sustained injuries as a result of that fall.

After tending to Mehner, Panera employees took photos of the broken chair, which clearly showed that the back of the chair had split off from the front seat portion. Those photos were provided in discovery. The actual broken chair was to be retained but was mistakenly disposed of by a Panera staff member.

At all times relevant to this claim, the general manager at Western Springs was Mike McDonald (“McDonald”). McDonald has been employed by Panera in various positions for over twenty years. Panera employees' training includes workplace safety and one-on-one training with the designated training manager about the job. As part of that protocol, McDonald received training relating to the inspection of furniture. McDonald explained the furniture-inspection regime is part of his shift routine. He indicated that every halfhour or so he would walk around the entire restaurant and dining room to visually make sure that everything was clean and structurally sound.

In addition, the operational policies of Panera stress safety and include employees detecting hazardous conditions and reporting them to management. Panera's specific operational policy requires employees to follow a path around the dining room viewing tables and chairs every thirty minutes in order to enable an employee to observe and fix any problems.

Panera also conducts Operational Excellence Assessments/Audits (“OEAs”). Those are generally conducted by a Panera District Manager. An OEA involves inspection of booths, chairs and tables to determine if everything is in good repair. An OEA took place at Western Springs just twenty-five days before this chair collapse when Panera's district manager visited for an entire day and “inspected everything.” A full written OEA report for the March 17, 2017, visit was that “booths, chairs and tables [were] safe and [in] good repair.”

There is no evidence that Panera (or Mehner) had notice of any problems with the chair that collapsed or, for that matter, any chair in the Western Springs dining room in 2017.^[3]

B. Procedural History

In this diversity case, 28 U.S.C. § 1332(a)(1), Mehner seeks damages for physical injuries he allegedly received when the chair he was sitting on inexplicably “failed, collapsed and broke.” Mehner originally sued both Panera FDS, as well as two “Doe” defendants on April 9, 2021, in Nebraska state court (Filing No. 1-1). The matter was removed to this Court pursuant to 28 U.S.C. §§ 1441(b) and 1446 (Filing No. 1). The Complaint included negligence and “spoliation” claims against Panera and strict liability and negligent-design claims against FDS.^[4]

On July 19, 2022, the Court entered a final progression order (Filing No. 16) setting an expert-disclosure deadline of November 18, 2022. Mehner belatedly identified some health care providers as potential experts, but he failed to name a single expert regarding the chair failure or negligent design.

FDS filed a motion for summary judgment on the strict-liability and negligent-design claims. Based largely on the absence of any expert testimony to support Mehner's claims against the manufacturer, that motion for summary judgment was granted on March 3, 2023 (Filing No. 39). This case has proceeded^[5] against Panera and the Doe defendants. Despite ample time and opportunity, Mehner has made no effort to identify the Does. The Court will therefore dismiss these unidentified parties. See Perez v. Does 1-10, 931 F.3d 641, 646 (8th Cir. 2019) (finding that the district court did not err in dismissing unnamed parties, because “[i]t is generally impermissible to name fictitious parties as defendants in federal court”).

The docket in this case is littered with Mehner's late filings and largely unsuccessful discovery motions. The magistrate judge patiently and painstakingly dealt with those issues as they arose. (Filing Nos. 75, 76, 77, 79, 81, 82, 83, 84, 85, 93, 94, 132, 133, 134, 137, 145, 148, 149, 152). Most of the discovery disputes had to do with Mehner's belief that certain evidence should exist, and in a form to Mehner's liking.

Those disparities culminated in Mehner's motion seeking a spoliation finding against Panera (Filing No. 132). Mehner asserted Panera intentionally discarded or destroyed evidence, including a handwritten report of the incident (the digital version of the report was provided), the actual broken chair, and a possible video recording of the incident (none was found). The magistrate judge held a lengthy evidentiary hearing on the spoliation issue and found “Mehner has failed to prove Panera intentionally destroyed evidence to hide the truth. And he has failed to slow any prejudice arising from the destruction of the chair, the handwritten incident report, or any surveillance recording (assuming any such recording ever existed.)” (Filing No. 152, at 4). The Court overruled Mehner's objections to those findings (Filing No. 157).

Mehner's simplistic approach throughout this matter has been that the chair broke- so there must be liability. The lack of expert testimony and other probative evidence was fatal to the previously dismissed claims against FDS and similarly dooms the negligence claims now before the Court.

II. DISCUSSION

A. Standard of Review

In ruling on a motion for summary judgment, this Court views the facts in the light most favorable to the nonmoving party, however, “that is true ‘only if there is a “genuine” dispute as to those facts.'” Intel Corp. Inv. Pol'y Comm. v. Sulyma, 589 U.S.,, 140 S.Ct. 768, 779 (2020) (quoting Scott v. Harris, 550 U.S. 372, 380 (2007)). “[T]he mere existence of some alleged factual dispute between the parties will not defeat . . . summary judgment;” rather, there must be no genuine dispute of material fact for summary judgment to be proper. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986); accord Torgerson v. City of Rochester, 643 F.3d 1031, 1052 (8th Cir. 2011) (en banc).

To be a material fact, the fact has to be one which “may ‘affect the outcome of the suit.'” Partridge v. City of Benton, 70 F.4th 489, 491 (8th Cir. 2023) (quoting Erickson v. Nationstar Mortg., LLC, 31 F.4th 1044, 1048 (8th Cir. 2022)). “A dispute over a fact is ‘genuine' only if ‘the evidence is such that a reasonable jury could return a verdict for the nonmoving party.'” Pitman Farms, 48 F.4th at 875 (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)).

“The movant ‘bears the initial responsibility of informing the district court of the basis for its motion,' and must identify ‘those portions of [the record] . . . which it believes demonstrate the absence of a genuine issue of material fact.'” Torgerson, 643 F.3d at 1042 (alterations in original) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)). It can meet “its burden in either of two ways: it can produce evidence negating an essential element of the nonmoving party's case, or it can show that the nonmoving party does not have enough evidence of an essential element of its claim to carry its ultimate burden of persuasion at trial.” Bedford v. Doe, 880 F.3d 993, 996 (8th Cir. 2018); see also Washington v. City of St. Louis, 84 F.4th 770, 773 (8th Cir. 2023).

If it does that, the party opposing summary judgment “may not rest upon mere allegation or denials of his pleading, but must set forth specific facts showing that there is a genuine issue for trial.” Beaulieu v. Stockwell, 46 F.4th 871, 875 (8th Cir. 2022) (quoting Anderson 477 U.S. at 256); see also Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986) (requiring more than “some metaphysical doubt as to the material facts”). An inference is reasonable only if it “can be drawn from the evidence without resort to speculation.” Turner v. XTO Energy, Inc., 989 F.3d 625, 627 (8th Cir. 2021) (quoting Sprenger v. Fed. Home Loan Bank of Des Moines, 253 F.3d 1106, 1110 (8th Cir. 2001)). “A complete failure by the non-moving party ‘to make a showing sufficient to establish the existence of an element essential to that party's case...