United States District Court, D. New Jersey
May 10, 2005.
MARIE AND FRED WASIELEWSKI, Plaintiffs,
SANDS HOTEL AND CASINO, Defendant.
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
they needed to speak with a representative from the Sands. (M.
Wasielewski Dep., at pp. 38-39.)
The parking lot attendant then walked the Plaintiffs back to
the Sands; they walked passed the location where Mrs. Wasielewski
fell. It was not raining at that time and Mrs. Wasielewski
testified that she did not see anything in the area that could
have caused her fall.
The Plaintiffs were brought into a room at the Sands where an
EMT, who has since been identified as Stephen Smith ("Smith"),
was stationed. Smith prepared an incident report, which included
taking Mrs. Wasielewski's medical history and hearing her version
of what had happened. (Smith Dep., at p. 23.) The report
indicated that Mrs. Wasielewski was a diabetic, who took
medication for her condition, and that she wore bifocals. (Smith
Dep., at p. 27.) Mrs. Wasielewski recalled telling Smith that she
thought the sidewalk was slippery. (M. Wasielewski Dep., at p.
Smith, along with his assistant, led Plaintiffs outside and
they identified the area where Mrs. Wasielewski fell. (Smith
Dep., at p. 18.) Mrs. Wasielewski testified that she did not see
anyone cleaning the area. (M. Wasielewski Dep., at p. 60.) In
addition, she testified that the area had been "misty," but did not look wet when she returned with Smith. (M. Wasielewski Dep.,
at p. 61.) Smith and his assistant took pictures of the area,
including the spot where Mrs. Wasielewski said that she had
fallen. (Smith Dep., at pp. 32, 40.) Smith noted that there was
lighting from an overhang above the entrance doors. (Smith Dep.,
at pp. 32-33.)
Smith testified that upon examining the area, he did not see
any condition that would warrant calling the plant operations
department or another official at the Sands. (Smith Dep., at p.
26.) Mrs. Wasielewski recalled at her deposition that Smith
"kicked" the sidewalk at the point where she indicated that she
fell, and commented that it did not feel slippery. (M.
Wasielewski Dep., at p. 59.) It was Smith's understanding that if
he observed debris, water or other problem with the floor, or any
area of the Sands, he was to contact a supervisor. (Smith Dep.,
at p. 26.)
Under New Jersey law, commercial landowners are responsible for
maintaining the sidewalks abutting their property in reasonably
good condition. Stewart v. 104 Wallace Street, Inc.,
87 N.J. 146 (1981). Commercial landowners must also exercise reasonable
care for an invitee's safety. Under its duty to invitees, the
commercial landowner must correct or warn of any known defects or defects that through the exercise of reasonable
care, it should have known. See Hopkins v. Fox & Lazo Realtors,
132 N.J. 426 (1993). An owner owes a higher degree of care to a
business invitee than to licensees or trespassers, "because that
person has been invited on the premises for purposes of the owner
that often are commercial or business related." Id. at 433. The
owner is obligated, with regard to a business invitee or guest,
"to guard against any dangerous conditions on his or her property
that the owner either knows about or should have discovered."
Id. at 434. This duty includes the duty to conduct reasonable
inspections to discover latent dangerous conditions. Id.
Plaintiffs carry the burden of proof at trial to show that the
Sands owed a duty to the Plaintiffs, that the Sands breached that
duty, and that the breach was the proximate cause of the damages
incurred. Anderson v. Sammy Redd & Assoc., 282 N.J. Super. 50
The parties appear to be in agreement that the Sands owed
Plaintiffs, who were lawfully on the premises as business guests,
a duty of care. The issues raised in this summary judgement
motion go to whether there was a breach of that duty, and whether
the alleged breach was the proximate cause of Plaintiffs'
injuries. Plaintiffs have not raised any triable issues. Mere allegations
that a defect existed will not defeat a properly pleaded summary
judgement motion. Plaintiffs have offered no testimony that there
was any substance in the area that would cause the sidewalk to be
slick or slippery. Mrs. Wasielewski's comment that it was "misty"
is insufficient to show that the ground was wet, or that the
moisture created a defect or dangerous condition. Even accepting
Plaintiffs' assertion that the air was misty, there is no
testimony suggesting that Mrs. Wasielewski's clothes became damp
after falling on the ground or any indication that water on the
ground could have caused her fall.
Mrs. Wasielewski further testified that she did not notice
anything on her shoes or clothes that would make the ground slick
on contact. Even when Plaintiffs returned to the site and
conducted further investigation, there were no signs of streak
marks, grease stains, uneven pavement or the like.
Smith's deposition testimony demonstrates that he too found no
defects or dangerous conditions to report to the operations
department. There is evidence that multiple people were in the
area and there were no reports of a defect. Thus, Plaintiffs have
not shown that there was anything in the area that could remotely
constitute a defect. Furthermore, Plaintiffs have not provided the Court with any
evidence that would suggest the sidewalk area was composed of a
material that was inherently dangerous. Mrs. Wasielewski
testified that the ground appeared "glittery," which does not
equate to slippery. There is no evidence that other people
stumbled or fell in that area. The fact that Mrs. Wasielewski
fell one time, after walking through the same area at least three
times that day, is not evidence that the sidewalk material is one
that is inherently slippery or even one that tends to become
slippery in misty conditions.
Ultimately, Plaintiffs have not provided the Court with an
explanation as to why Mrs. Wasielewski fell. Plaintiffs have only
provided their self-serving testimony that she fell and mere
speculation as to what caused her fall, i.e. the misty weather,
or something from the nearby food cart. We cannot conclude based
on the result, a fall, that the cause was a defect in the
Even if Plaintiffs could raise a material issue of fact as to
the cause of her fall, she would still need to show some type of
breach of duty on the part of the casino. The Plaintiffs have not
put forth any evidence that would even imply that the Sands
failed to conduct reasonable inspections to discover latent
dangerous conditions. Indeed, they have not suggested what the
Sands failed to do in maintaining its premises, nor have they suggested a course of action that could have prevented Mrs.
For the reasons set forth above, the Court will grant
Defendant's motion for summary judgement. The Court will issue an