The opinion of the court was delivered by: Matthew F. Kennelly United States District Judge
MEMORANDUM OPINION AND ORDER
MATTHEW F. KENNELLY, District Judge
Marjorie Friedman Scherr has sued Marriott International, Inc. (Marriott International), Courtyard Management Corporation (Courtyard Management), Courtyard II Associates, L.P. (Courtyard II), Marriott International Design and Construction Services, Inc. (MIDCS), and Tri-South Construction, Inc. (Tri-South), claiming they negligently caused personal injuries she suffered while staying as a guest at a Marriott Courtyard hotel in Overland Park, Kansas.*fn1 Scherr now moves for partial summary judgment and reconsideration of the Court's prior order denying leave to file a fourth amended complaint. The defendants move for summary judgment. For the reasons below, the Court denies the motions.
The Court takes the following facts from the allegations in Scherr's third amended complaint. On March 17, 2006, Scherr, who at the time was seventy-six years old, checked into the Marriott Courtyard hotel in Overland Park, Kansas while on a family trip to the area. Because she was able to walk only with a walker, she reserved a room at the hotel set aside for disabled guests. On March 19, 2006 at approximately 1:00 a.m., Scherr attempted to leave the bathroom in her room while using her walker. She exited the bathroom through a spring-hinged door. As she rolled her walker and tried to exit, the door closed quickly, striking her and causing her to fall to the floor. As a result of the fall, she broke her right wrist and was required to go to the hospital, where she underwent surgery. The impact also injured her right hip, "causing her to lose what little mobility she [had] left." 3rd Am. Compl. ¶ 14.
Scherr filed this suit in Illinois state court on March 17, 2008, initially naming Marriott International as the only defendant. Marriott International removed the case to this Court based on diversity of citizenship. Scherr learned on June 15, 2008 (via another motion in this case) that Courtyard Management was the entity that managed the hotel. In late January 2009, Scherr learned that the door appeared to have been installed as part of an overall "reinvention" of the hotel and that the general contractor was Tri-South Construction. On February 17, 2009, she filed an amended complaint, naming Courtyard Management and Tri-South as additional defendants.
Scherr later learned of the involvement of other entities in the design or installation of the door. On June 10, 2009, she filed a second amended complaint, adding Daly and Duranotic Door, Inc. as defendants. Scherr filed her third amended complaint on July 24, 2009, adding MIDCS, Courtyard II, and Duranotic Door Installation as defendants. On July 26, 2010, Scherr moved for leave to file a fourth amended complaint, in which she proposed to add a claim under the Americans with Disabilities Act (ADA). The Court denied the motion [docket no. 303].
Scherr alleges that Marriott International owns the hotel; Courtyard Management and Courtyard II, both wholly owned Marriott International subsidiaries, operate it; MIDCS helped plan the renovation project that included installation of the door in question; Tri-South served as general contractor for the project; and Daly prepared the designs and plans for the disability-accessible rooms.
Scherr asserts negligence claims against all the defendants. Among other things, she alleges that the spring-hinged bathroom door was unsafe in that its automatic closing device was set to close too quickly and with too much force and that the defendants failed to exercise reasonable care in designing, installing, calibrating, inspecting, and servicing the door.
A. Summary Judgment Standard
Summary judgment is proper when "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c). On a motion for summary judgment, the Court draws all reasonable inferences in favor of the non-moving party. Fed. R. Civ. P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). "On cross-motions for summary judgment, the court evaluates each party's motion separately and on its own merits, resolving factual uncertainties and drawing all reasonable inferences against the party whose motion is under consideration." Patrick Schaumburg Autos., Inc. v. Hanover Ins. Co., 452 F. Supp. 2d 857, 866 (N.D. Ill. 2006) (citations omitted). The Court's "function is not to weigh the evidence but merely to determine if there is a genuine issue for trial." Bennett v. Roberts, 295 F.3d 687, 694 (7th Cir. 2002). "Summary judgment is not appropriate 'if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.'" Payne v. Pauley, 337 F.3d 767, 770 (7th Cir. 2003) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986)).
As a preliminary matter, the parties disagree over whether the Court should apply Illinois or Kansas substantive law. A district court sitting in diversity applies the choice of law rules of the state in which it sits. Malone v. Corrs. Corp. of Am., 553 F.3d 540, 543 (7th Cir. 2009).Illinois courts apply a "most significant contacts" test to resolve conflicts of law. Miller v. Long-Airdox Co., 914 F.2d 976, 978 (7th Cir. 1990). If the conflict involves tort law, Illinois courts apply the substantive law of the state with "the most significant relationship to the occurrence and the parties." Jones v. State Farm Mut. Auto. Ins. Co., 289 Ill. App. 3d 903, 917, 682 N.E.2d 238, 248 (1997). This standard requires consideration of the place where the injury occurred, the place where the conduct causing the injury occurred, the domicile or residence of the parties, and the place where the parties' relationship is centered. Id.
Illinois law "presumes that the law of the state where the injury occurred will govern unless another state has a more significant relationship to the occurrence or to the parties involved." Miller, 914 F.2d at 978 (citation and internal quotation marks omitted). The presumption is particularly "difficult to overcome where the conduct causing the injury occurred in the same state where the injury occurred." Id. (citing Restatement (Second) of Conflicts of Laws § 145 cmt. e at 420); see also id. (recognizing that "the two most important contacts are the place where the injury occurred and the place where the conduct causing the injury occurred").
In Spinozzi v. ITT Sheraton Corp., 174 F.3d 842 (7th Cir. 1999), the Seventh Circuit applied Illinois conflict of law principles to hold that Mexican substantive law governed the tort claim of a plaintiff injured at a Mexican hotel. Id. at 844-45. The plaintiff objected, noting that he resided in Illinois; he had responded to a promotion for the hotel in Illinois; he had reserved the hotel in Illinois; and the defendants maintained their principal places of business outside of Mexico. The court concluded that Mexico had the most significant relationship to the incident and parties, reasoning that "in the absence of unusual circumstances, the highest scorer on the 'most significant relationship' test is -- the place where the tort occurred." Id. at 844 (citations omitted).
The governing factors point to application of Kansas substantive law in this case. Both the injury and the alleged cause of the injury -- installation and maintenance of the spring hinge -- occurred in Kansas, raising a presumption that Kansas law applies.
Scherr counters that she resides in Illinois; reserved the hotel room while in Illinois; owns insurance in Illinois; and received medical treatment in Illinois. These contacts, however, do not constitute the "unusual circumstances" required to overcome the presumption. See Spinozzi, 174 F.3d at 844-45. Likewise, the location of the defendants' principal place of business outside of Kansas does not overcome the presumption. See id.
Moreover, Scherr has forfeited any claim that any other state's substantive law applies. "The failure to develop an argument constitutes a waiver." Weinstein v. Schwartz, 422 F.3d 476, 477 n.1 (7th Cir. 2005) (citing Kramer v. Banc of Am. Sec., LLC, 355 F.3d 961, 964 n.1 (7th Cir. 2004)); Econ. Folding Box Corp. v. Anchor Frozen Foods Corp., 515 F.3d 718, 721 (7th Cir. 2008) (noting that it is not the duty of the courts to construct parties' legal arguments for them). Scherr's response brief does not address the defendants' argument that Kansas law applies. Her sole discussion of the issue appears in her own motion for partial summary judgment, in which she argues briefly that the Court need not address choice of law issues.
C. Scherr's Motion for Partial Summary Judgment
To prevail on a negligence claim under Kansas law, Scherr must prove "the existence of a duty, breach of that duty, injury, and a causal connection between the duty breached and injury suffered." South v. McCarter, 280 Kan. 85, 94, 119 P.3d 1, 8 (2005). Scherr seeks partial summary judgment on the grounds that: (1) the bathroom door in her hotel room failed to comply with ADA regulations as a matter of law; (2) Marriott International, Courtyard Management, Courtyard II, and MIDCS owed her a non-delegable duty of care as innkeepers; and (3) she was not contributorily negligent.*fn2
In response, the defendants assert a number of substantive and procedural arguments.
The Court begins with Scherr's contention that the spring hinge on her hotel bathroom door failed to comply as a matter of law with the Americans with Disabilities Act Accessibility Guidelines (ADAAGs), 28 C.F.R. § Part 36, Appendix A.
Scherr relies on section 9 of the ADAAGs, which sets forth requirements for accessible transient lodging and mandates that "[d]oors and doorways designed to allow passage into and within all sleeping rooms, suites or other covered units shall comply with § 4.13." ADAAG § 9.2.2(3). Subsection 4.13, in turn, provides in relevant part:
4.13.10 Door Closers. If the door has a closer, then the sweep period of the closer shall be adjusted so that from an open position of 70 degrees, the door will take at least 3 seconds to move to a point 3 in (75 mm) from the latch, measured to the leading edge of the door.
ADAAG § 4.13.10 (emphasis added). The appendix to the ADAAGs further states:
A4.13.10 Door Closers. Closers with delayed action features give a person more time to maneuver through doorways. They are particularly useful on frequently used interior doors such as entrances toilet rooms.
ADAAG § A4.13.10. The ADAAGs do not expressly define the term "door closers" to include ...