The opinion of the court was delivered by: JOSEPH IRENAS, District Judge
Plaintiffs Marie Wasielewski and her husband, Fred Wasielewski,
filed suit against the Sands Hotel and Casino (the "Sands") on
March 9, 2002, in federal court pursuant to 28 U.S.C. § 1332,
diversity jurisdiction. They allege Mrs. Wasielewski fell and
injured herself while they were on premises of the Sands as
business invitees. Mrs. Wasielewski claims that she has suffered
economic damages, along with physical and mental pain, discomfort and inconvenience. Mr. Wasielewski asserts claims of
loss of society, care, comfort and companionship of his wife.
Defendant moved for summary judgement, arguing that there are
no issues of triable fact regarding the Sands' alleged
negligence. It contends that Plaintiffs cannot show that the
Sands, as the possessor of the land, deviated from its duty of
reasonable care, or that if there was a deviation, that such
deviation was the cause of Mrs. Wasielewski's accident. Defendant
further contends that the Sands did not know, and could not have
reasonably known of the existence of any harmful conditions in
the area where Mrs. Wasielewski fell. Plaintiffs have not raised
material issues of fact or law as to potential negligence on the
part of the Sands, and so summary judgement will be granted.
The test for summary judgement is stated in Rule 56 of the
Federal Rules. Summary judgment is appropriate where "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); see also Celotex Corp. v. Catrett,
477 U.S. 317, 322 (1986). In deciding a motion for summary judgment, the court must
construe the facts and inferences in a light most favorable to
the non-moving party. Pollock v. Am. Tel. & Tel. Long Lines,
794 F.2d 860, 864 (3d Cir. 1986). The role of the court is not
"to weigh the evidence and determine the truth of the matter, but
to determine whether there is a genuine issue for trial."
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986).
However, "a party opposing a properly supported motion for
summary judgment may not rest upon the mere allegations or
denials of his pleading, but . . . must set forth specific facts
showing that there is a genuine issue for trial." Id. at 248
On March 9, 2002, Mr. and Mrs. Wasielewski went to the Atlantic
City to gamble. They arrived around 2:00pm and played for a few
hours at the Sands. (M. Wasielewski Dep., at p. 31.) They ate
before they arrived in Atlantic City, and again around 5:00 at a
restaurant in the Sands. (M. Wasielewski Dep., at pp. 31-33.)
They took a break from gambling in the evening and walked on the
boardwalk, where they ate again. (M. Wasielewski Dep., at pp.
34-35.) Mrs. Wasielewski is a diabetic, and takes medication for
her diabetes. (M. Wasielewski Dep., at p. 59.) After gambling for some time, Mrs. Wasielewski depleted her
funds, so she and Mr. Wasielewski went to their car to obtain
additional money. (M. Wasielewski Dep., at pp. 31, 34-35.) They
had parked in a Sands private parking lot, which according to
Mrs. Wasielewski was a street away from the Sands (although she
could not testify exactly where it was in relation to the Sands,
or other landmarks). (M. Wasielewski Dep., at p. 35-40.)
They began walking back towards the Sands sometime before
7:00pm. Mrs. Wasielewski and her husband crossed a street, and
stepped over a curb onto a "sidewalk" on the Sands
property.*fn1 They walked three to four feet, with Mr.
Wasielewski on Mrs. Wasielewski's left side. (M. Wasielewski
Dep., at pp. 44, 52.) Mrs. Wasielewski "suddenly and without
warning felt her feet slip from under her." (Pl. Brief, at p. 1.)
There were other people in the area when she fell, and at least
one person offered to help her stand up. (M. Wasielewski Dep., at
At her deposition, Mrs. Wasielewski could not say whether the sidewalk was made of a concrete or stone material, but did
recall that it appeared "glittery." (M. Wasielewski Dep., at p.
46.) She had walked passed the area in which she fell on her way
to the car, and noticed that there was a push cart food stand in
the vicinity. (M. Wasielewski Dep., at p. 46-47; 50-51.) She
testified that the sidewalk area looked the same each time she
walked through it, to and from the garage.
After she fell, Mrs. Wasielewski commented to her husband that
there may have been something on the ground, perhaps from the
push cart vendor. (M. Wasielewski Dep., at p. 50.) She did not,
however, see anything on the ground that caused her to fall, nor
did she notice anything on her clothes or shoes that could have
caused the fall. (M. Wasielewski Dep., at p. 50.) There is no
mention in her deposition testimony of a puddle or any type of
moisture on the ground in the area where she fell. She also
stated that she had never seen any construction in that area,
damage to the sidewalk, or any holes or breaks in that area. (M.
Wasielewski Dep., at p. 45.) In addition, Mrs. Wasielewski
testified that other people in the area, to her knowledge, did
not point out anything that could have been the cause of the
fall. (M. Wasielewski Dep., at p. 50.) When asked if there were
streak marks on the sidewalk, Mrs. Wasielewski testified that she
did not look for any, as she was focused on her injuries. Mr. Wasielewski's deposition testimony corroborates Mrs.
Wasielewski's description of how she fell: "I remember I was
walking along side of her, we were talking, and I look at her,
and the next thing I look and she wasn't there, just like that.
Quick as a flash of an eye she was gone, and then I heard her
holler. . . . Then there was people come running towards me, and
they were running towards her . . . And she was just moaning and
groaning. I knew she was really hurt." (F. Wasielewski Dep., at
p. 7.) He could not pinpoint anything in the area that might have
caused her fall.
Mrs. Wasielewski and her husband testified that it was
drizzling when they left the Sands to go to the car for
additional money. (M. Wasielewski Dep., at p. 46; F. Wasielewski
Dep., at p. 8.) Mrs. Wasielewski stated that the weather had been
"nice" when she and her husband went for a walk on the boardwalk
earlier in the day, but could not say whether or not it had
rained during the day, as they had been inside most of the day.
At the time of her fall, Mrs. Wasielewski was wearing flat
shoes, the kind that she always wears. (M. Wasielewski Dep., at
p. 46.) She was wearing slacks. (M. Wasielewski Dep., at p. 52.)
After Mrs. Wasielewski was able to stand up, she and her
husband walked back to their car. They tried to exit the parking
lot, but were unable to because they did not have any small bills to pay the rate. They explained to the parking lot attendant what
had happened, and the parking lot attendant advised them that