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Roth v. Marina Associates

August 11, 2009

ROBERT ROTH, PLAINTIFF,
v.
MARINA ASSOCIATES, DEFENDANT.



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

[re Docket Item 22]

OPINION

HONORABLE JEROME B. SIMANDLE

This matter is before the Court upon the motion of Defendant Marina Associates for summary judgment [Docket Item 22] on Plaintiff Robert Roth's negligence claim. Defendant does business as Harrah's Atlantic City, Inc. ("Harrah's"). The claim arises as a result of a slip and fall which allegedly occurred on Harrah's premises, and which Plaintiff attributes to Defendant's negligence. For the reasons explained below, the Court will deny Defendant's motion.

I. BACKGROUND

A. Facts

1. Plaintiffs' Allegations

This case arises out of a slip and fall that occurred on Defendant's premises in Atlantic City, New Jersey. (Compl. ¶ 5.) According to the Complaint, on June 5, 2005,*fn1 Plaintiff was walking from the hotel and casino exit toward the parking garage, when he stepped into a "hazardous trap like condition," fell, and sustained severe and permanent injuries. (Id.) As a result of the fall, Plaintiff claims that he will be unable to perform normal activities and has incurred medical expenses. (Id. at ¶ 10.) Plaintiff alleges that Defendant's employees had actual and constructive notice of the dangerous condition and that their negligence was the sole cause of the incident. (Id. at ¶¶ 6-8.)

2. Plaintiff's Deposition Testimony

Plaintiff recounted the events that gave rise to this lawsuit at his deposition. According to Plaintiff, he checked out of Harrah's at approximately 10:30 or 11:00 in the morning. (Roth Dep. at 52, 57.) Although Plaintiff testified that it was a sunny day, he also stated that the area where the accident occurred has poor lighting, even on bright days. (Id. at 91.) Plaintiff was not wearing his eyeglasses, but testified that he only needed them for reading at the time. (Id. at 113.)

Carrying a duffel bag and a plastic supermarket bag, Plaintiff attempted to walk from the main entrance at the valet parking area of the casino to the self-park garage. (Id. at 57-59.) Plaintiff said that one minute after leaving the building, he turned left to walk along a route he had taken many times before. (Id. at 61, 64.) The route consisted of navigating a "very narrow passage" past a "gigantic flower pot on the left." (Id. at 61.) Plaintiff estimated that approximately four to five feet across the walkway was a square of dirt or mulch with a tree growing in the center. (Id. at 74, 85.) The sidewalk snaked to the street, where Plaintiff planned to make a sharp left into the crosswalk, followed by a sharp right toward the self-park garage.*fn2 (Id. at 61.)

According to Plaintiff, he tripped during the walk, his right foot falling into the mulched planter "as if I had been hooked by a bear trap." (Id. at 63.) Plaintiff's foot got caught in the corner of the square filled with dirt and mulch. (Id. at 92-93.) Plaintiff testified that when he subsequently fell, half of his body landed in the dirt. (Id. at 86.) Falling flat on his back, Plaintiff's foot went under him, and his right shoe came off of his foot and flew into the air. (Id. at 74, 86.) According to Plaintiff, his foot landed in a deep area that covered the entire height of his shoe. (Id. at 93.) Plaintiff testified that while he was on the ground, a valet named Brian asked if he needed help, and several other employees from Harrah's also arrived at the scene. (Id. at 87, 109.) Plaintiff testified that he declined the invitation to visit the nurse, and instead sat on the ground for approximately twenty minutes before Brian helped him up. (Id. at 110-11.) According to Plaintiff, he then walked without assistance to his car, where he sat for an hour, cleaning the wound with alcohol before driving away. (Id. at 111.)

3. Other Evidence a. Incident Report

According to Defendant's report of the incident, Robert Roth was injured on the sidewalk at the valet site at 12:30 P.M. on May 8, 2005. (Wasilauskas Cert. Ex. B at 1.) It appears that Albert Barrett prepared the report and Greg Reichenbach was the shift manager at the time of the incident. (Id.) The report indicates that Plaintiff stepped onto an area covered with mulch, lost his balance, and fell. (Id.) The report documents that Plaintiff suffered an injury but refused treatment. (Id.)

Additionally, the report specifies that an employee checked and took photographs of the scene. (Id.) On the report, next to the indication about photographs, the ...


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