The opinion of the court was delivered by: Irenas, Senior District Judge
Plaintiffs commenced this personal injury action on May 20, 2004, against Defendants Trump Hotels & Casino Resorts, Inc. ("Trump"), Medical One A.C.E.C., Inc. ("MO"), and Linda A. Erthal ("Erthal").*fn1 Plaintiffs allege that Trump is liable for breaching a duty to provide competent emergency medical service. Plaintiffs also claim that Trump is liable through vicarious liability and apparent authority. The Court has jurisdiction pursuant to 28 U.S.C. § 1332. The law of New Jersey, the forum state, applies on the substantive issues in this case. Marino v. Industrial Crating Co., 358 F.3d 241, 243 n.2 (3d Cir. 2004).
Trump moves for summary judgment and for indemnity. For the reasons set forth below, the Motion for Summary Judgment will be granted, and the Motion for Indemnity will be dismissed as moot.
Trump has contracted with MO since July 22, 2002, for MO to operate a medical station on Trump's premise. The contract between Trump and MO stated that:
MO shall be solely responsible for the operation of the medical station and is acting as an independent contractor hereunder. No relationship of employer and employee is created by this Agreement between MO and [Trump]. [Trump] shall exercise no control or direction over the methods by which MO and the nurses and physicians who contract with MO perform their work and function. No MO employee performing services hereunder shall have any claim under this Agreement or otherwise against [Trump] for salary, or compensation, disability or unemployment insurance benefits or any other employee benefits of any kind. (Trump Ex. A, at p. 6).
The contract term is three years. (Trump Ex. A, at p. 8). As consideration for MO's service, Trump provides a flat fee of $185,000.00 for the first year of the contract. (Id.). This fee would be renegotiated each subsequent year, but would not increase by more than 5%. (Id.). The contract also requires MO to carry insurance, and to indemnify Trump against loss of life, bodily or personal injury. (Id. at pp. 6-7).
The contract requires that a registered nurse licensed by New Jersey Board of Nursing be on-site for a minimum of 16 hours per day, 7 days per week. (Trump Ex. A, at p. 2). In addition, a physician is required to be on-site for a total of 15 hours per week, and on-call 24 hours per day, 7 days per week. (Id.). MO has the sole responsibility for the selection of physicians and nurses to staff the medical station. (Id.).
On or about February 24, 2003, Plaintiff Faud Jarrah ("Faud") was visiting Trump's casino and hotel. At approximately 6:00 P.M., Faud complained of dizziness, difficulty moving his left leg and left arm, slurred speech, and inability to hold his bladder.
Faud requested emergency medical assistance, and was attended to by Erthal and other security personnel. Erthal was an employee of MO; she was not employed by Trump. Erthal performed a medical evaluation on Faud and, after learning that he was diabetic, directed him to sit down and eat. She did not recommend any treatment or arrange for Faud to be transported to a hospital.
After Faud ate, his symptoms continued to worsen. Because of his symptoms, his wife and friend drove him from the Casino to Lehigh Valley Hospital and Health Network in Allentown. In the hospital, Faud discovered that he had actually suffered a brainstem infarction (a type of stroke) with left side hemiparesis. Following this diagnosis, Faud's family and physicians sought information regarding his condition at the casino. The information was furnished by Trump's Risk Management Department.
Plaintiffs claim that Erthal's misdiagnosis prevented and delayed him from receiving proper care. They also claim that Trump is independently and vicariously liable, and liable through apparent authority.
"Under Rule 56(c), summary judgment is proper 'if 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.'" Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986) (quoting Fed. R. Civ. P. 56(c)).
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). "[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 (internal quotation and citation omitted; ellipsis in original).
Plaintiffs claim that Trump is independently liable for the alleged negligence. Under New Jersey law, to establish premises liability, Plaintiffs bear the burden of proving that the premises owner breached the duty of care ...