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Olivarius v. Tharaldson Property Management

March 10, 2010


The opinion of the court was delivered by: Magistrate Judge Morton Denlow


Plaintiffs, Ann Olivarius ("Olivarius") and John Francis McAllister ("McAllister") (collectively "Plaintiffs"), brought a four-count complaint against Defendant Tharaldson Property Management, Inc., d/b/a Fairfield Inn by Marriott Champaign ("Tharaldson" or "Defendant") and Marriott International, Inc.,*fn1 to recover from injuries suffered after Olivarius cut her foot in a hotel room managed and operated by Tharaldson. Plaintiffs moved for leave to amend their complaint to add a claim for spoliation of evidence against Tharaldson, which was denied in open court on February 18, 2010. Dkt. 67. This opinion provides a more complete explanation for the Court's ruling denying the spoliation claim.

Defendant has also filed a motion for summary judgment contending it is not liable for Plaintiffs' injuries because it lacked notice of the allegedly dangerous condition in the hotel room and because Olivarius did not identify the object that caused her injury. Because the material facts of whether Defendant had notice, and whether Olivarius' injuries were caused by an object sufficiently described are genuinely in dispute, Defendant's motion for summary judgment is denied.


The following facts are taken in the light most favorable to Plaintiffs, as required when considering a summary judgment motion. Anderson v. Liberty Lobby, 477 U.S. 242, 255 (1986). On January 20, 2006, Olivarius rented Room 116 at the Fairfield Inn in Champaign, Illinois. PR ¶¶ 1, 4.*fn2 Shortly after checking into the room, Olivarius walked barefoot toward the bathroom and stepped on an object underneath the carpet right in front of the bathroom door. Dx. B at 53. Olivarius felt a searing pain and her foot began to bleed. Dx. B at 53, 60. Olivarius looked at the area where she stepped and saw a hand-sized lump under the carpet. Dx. B at 56-57, 59. Olivarius noticed the carpet looked as if it had pulled away from the runner about one centimeter, and exposed the cement underneath. Dx. B 57-59. She also noticed the carpet felt wet where she stepped. Dx. B at 59.

Olivarius did not inspect the cut while it was bleeding, but washed it off in the bathroom. PR ¶ 8; Dx. B at 64-66. Olivarius called the front desk, reported the incident, and asked for a first aid kit. Dx. B at 67-68. After waiting, Olivarius called again and was told there was no kit available. Dx. B at 68-69. Olivarius checked out on January 21, 2006, and told the receptionist and a hotel manager of the injury she sustained on the object near the bathroom. Dx. B at 71, 73.

Defendant's General Manager Timothy Izard ("Izard") testified in a deposition that if there was a problem with the carpet in Room 116 prior to Plaintiff's check-in, the staff should have discovered it, and failure to discover a problem would mean that Tharaldson's cleaning and maintenance procedures "broke down." Dx. C at 63-64. Tharaldson's maintenance policy required rooms to be cleaned the day a guest departs, before the next guest checks in. PR ¶¶ 16-22; Dx. at C 13-14, 46-48, 63. Room 116 was occupied the night before Olivarius checked in. Px. 3 ¶ 1. Additionally, Izard testified the maintenance crew checked every room after housekeeping had been through to ensure the room was clean. Dx. C at 19-20. These procedures were apparently implemented entirely during the day shift, as second-shift employee Chris Wheeler testified that he was frequently the only employee on duty and that he never checked a room to see if it was clean before letting it to a guest. Dep. Wheeler at 14-17.

Huberta Rose ("Rose"), a housekeeper for Tharaldson, testified she remembers learning that a woman stepped on something in Room 116 and bringing it to the attention of a fellow employee; however, she did not remember when this incident occurred. Px. 5 at 6-7, 14-16. Rose did recall that it was a male guest who reported the incident to her. Id. at 25, 30. Olivarius testified that she stayed at the hotel alone and has not presented evidence that she informed other hotel guests of her injury. Dx. B at 41-42.

Additionally, Plaintiffs present the deposition testimony of Alma Bellafiore, the breakfast services coordinator, who remembers the rooms on the first floor flooding. Px. 5 at 22. Brittanie Hollingsworth, a front desk employee who worked the day shift, said people had complained of wet carpeting in rooms multiple times. Px. 1 at 9, 39.

As a result of the cut on her foot, Olivarius subsequently developed an infection and cellulitis in her lower left leg, necessitating emergency care and hospitalization. Olivarius alleges she suffers permanent damage to her leg. Following the incident, Olivarius claims she sent four letters to Defendant to make it aware of the incident and her resulting injuries. PR ¶¶ 14. Those letters were dated March 16, 2006, May 15, 2006, September 15, 2006, and January 20, 2007. PR Ex. A. In the January 20 letter, Olivarius wrote she would contact legal counsel if she received no response from Tharaldson about the steps it was taking to prevent similar injuries to other guests. Id. at 7. Tharaldson denies receiving any of these letters.

On January 22, 2008, Plaintiffs filed a complaint advancing negligence and loss of consortium claims. The case is before this Court on diversity jurisdiction. 28 U.S.C. § 1332(a)(2). The parties have consented to this Court's jurisdiction pursuant to 28 U.S.C. § 636(c)(1). Plaintiffs allege that Tharaldson failed to warn Olivarius of a dangerous condition of which Tharaldson had actual or constructive notice. Plaintiffs also allege that Tharaldson:

1) failed to properly maintain and/or clean Room 116; 2) failed to respond to a request for medical assistance; and 3) failed to implement and/or enforce maintenance policies. As a result, Olivarius claims the injury caused by the dangerous condition led to an infection and cellulitis in her lower left leg. McAllister, Olivarius' husband, alleges loss of consortium.

During discovery, Plaintiffs sought relevant documents from Tharaldson, including daily cleaning reports, deep cleaning logs, employee names and contact information, employee schedules, and complaint reports. However, Izard testified that it was Tharaldson's practice to destroy daily cleaning logs monthly and to destroy deep cleaning logs, service logs, and complaint logs yearly. Tharaldson further responds that it provided all known contact information about the former housekeeping employees to Plaintiffs' counsel. Tharaldson also asserts that it has no record of Olivarius' injury complaint or the four letters she allegedly sent. Defendant claims it was first notified of the incident when Plaintiffs filed the present action on January 22, 2008.


Plaintiffs allege in their proposed amended complaint that Tharaldson knowingly destroyed or made unavailable evidence necessary for Plaintiffs to prove Tharaldson's negligence after Tharaldson knew of the alleged injury. Specifically, Plaintiffs allege that:

1) Tharaldson destroyed documents related to Plaintiffs' claims after Olivarius' injury but before the litigation began, including daily cleaning reports, deep cleaning logs, service logs, complaint logs, and employee work shift information; and 2) the housekeeping staff contact information was insufficient for Plaintiffs to track them all down, because most of the social security numbers in the employee records were invalid.

Generally, courts grant leave to amend "freely . . . when justice so requires." Fed. R. Civ. P. 15(a)(2). However, amendment is appropriately denied if it would be futile. Winters v. Fru-Con Inc., 498 F.3d 734, 740 (7th Cir. 2007). Amendment is futile if the complaint, as amended, would fail to state a claim upon which relief could be granted. General Elec. Capital Corp. v. Lease Resolution Corp., 128 F.3d 1074, 1085 (7th Cir. 1997). Thus, the Court must determine if Plaintiffs can state a claim for spoliation. As Plaintiffs' claims arise under Illinois law, the Court looks to Illinois substantive law ...

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