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May v. Atlantic City Hilton

November 9, 2000


The opinion of the court was delivered by: Brotman, District Judge




Presently before the court are the motions of all defendants for summary judgment. For the reasons stated below, the motion of defendants Atlantic City Hilton and GNOC Corp. will be granted, and defendant City of Atlantic City's motion will be denied.


This case arises out of a fall sustained by the plaintiff, Lucy May, as she attempted to cross a street outside the Atlantic City Hilton on October 14, 1997. May, a resident of Woodside, New York, had arrived in Atlantic City on a bus tour and alighted about 10:30 a.m. at the Hilton casino hotel's transportation center. When she arrived, the escalator to the casino was not operating, and a crowd had formed at the elevator. Acting on the advice of a Hilton employee, May decided to cross Pacific Avenue on foot and access the hotel through one of its main entrances. She walked to the corner of Boston and Pacific avenues and waited for the light to turn green in her favor. When the light turned green, she stepped off the curb area with her right foot into the street gutter area, lost her balance, and fell. She suffered a fractured shoulder and also complains of pain in her back, neck and jaw.

May was unable to specify the cause of the accident or the exact location of her feet when she fell. In her deposition testimony, she could state only that:

What I remember is putting my foot down and I was down, that the curb-like when I went to put the other foot, there was no curb. In other words, it's slanted, I guess. . . . My foot came down, the next thing I know I'm in the street, in the gutter. (Wieliczko Certif. Ex. D at 46-48.)

Nevertheless, plaintiff's expert, consulting engineer George Widas, concluded that her fall was caused by a built-up, handicap-access ramp. The ramp, which was designed and built by Atlantic City in the early 1980s, occupies the gutter area and extends from the top of the curb down to street level for the entire 10-foot radius of the corner. The face of the ramp slopes down to the street, and the ramp's endpoints slope down to the gutter. Widas determined that "the excessive slopes of the subject curb ramp created the hazard for misstepping, . . . and the unsafe and dangerous condition for injury." (Altieri Certif. Ex. D at 27.) At the time of May's fall, the weather was clear and she was wearing rubber-soled shoes without heels.

On February 16, 1999, plaintiff filed suit against Atlantic City Hilton, its corporate parent, GNOC Corp., and the City of Atlantic City, alleging that the handicap ramp constituted a dangerous condition over which the defendants exercised control. Plaintiff claims damages for medical expenses, work missed between the date of the accident and March 9, 1998, and a loss of range of motion that has limited her life activities. On June 9, 2000, both Hilton and Atlantic City moved for summary judgment. In compliance with Local Rule 7.1 Appendix N, opposing briefs, certifications and statements of material facts were submitted the same day. Accordingly, defendants' motions are ripe for consideration.


The standard for granting a motion for summary judgment is a stringent one, but it is not insurmountable. Fed. R. Civ. P. 56 provides that summary judgment may be granted only when materials of record "show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Serbin v. Bora Corp., 96 F.3d 66, 69 n.2 (3d Cir. 1996). In deciding whether there is a disputed issue of material fact, the court must grant all reasonable inferences from the evidence to the non-moving party. The threshold inquiry is whether there are "any genuine factual issues that properly can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 106 S. Ct. 2505, 2511, 91 L. Ed. 2d 202 (1986).

Supreme Court decisions mandate that a summary judgment motion must be granted unless the party opposing the motion "provides evidence `such that a reasonable jury could return a verdict for the nonmoving party.'" Lawrence v. National Westminster Bank New Jersey, 98 F.3d 61, 65 (3d Cir. 1996) (quoting Anderson, 477 U.S. at 248, 106 S. Ct. at 2510). Once the moving party has carried its burden of establishing the absence of a genuine issue of material fact, "its opponent must do more than simply show that there is some metaphysical doubt as to material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S. Ct. 1348, 1356, 89 L. Ed. 2d 538 (1986). The non-moving party must "make a showing sufficient to establish the existence of [every] element essential to that party's case, and on which that party will bear the burden of proof at trial." Serbin, 96 F.3d at 69 n.2 (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S. Ct. 2548, 2552, 91 L. Ed. 2d 265 (1986)); see also Quiroga v. Hasbro, Inc., 934 F.2d 497, 500 (3d Cir. 1991) (declaring that non-movant may not "rest upon mere allegations, general denials, or . . . vague statements"). Thus, if the non-movant's evidence is merely "colorable" or is "not significantly probative," the court may grant summary judgment. Anderson, 477 U.S. at 249-50, 106 S. Ct. at 2511.


A. Proximate Cause

Both defendants argue that plaintiff has not made the requisite showing that the handicap ramp proximately caused her accident. Since plaintiff cannot pinpoint the location or source of her fall, they argue, her expert's conclusion as to the cause of her fall amounts to ...

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