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Collier v. Borgata Hotel Casino & SPA

August 31, 2009

JOHN COLLIER, III, PLAINTIFF-APPELLANT,
v.
BORGATA HOTEL CASINO & SPA, D/B/A THE BORGATA, DEFENDANT-RESPONDENT, AND CLEAN & POLISH, INC., DEFENDANT.



On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Docket No. L-9111-06.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted: May 20, 2009

Before Judges Cuff and C.L. Miniman.

Plaintiff John Collier, III, appeals from a judgment dismissing his complaint against defendant Borgata Hotel Casino & Spa, doing business as The Borgata, based on a jury verdict of no cause for action on the issue of negligence.*fn1 Plaintiff asserts that the trial court erred in admitting evidence during trial that he failed to file income tax returns subsequent to his slip and fall on the property of defendant. Because any error in admitting the evidence did not result in a miscarriage of justice, we affirm.

In light of the jury's verdict, our summary of the facts is confined to the allegations and evidence relevant to the issue of liability. Plaintiff patronized defendant's hotel and casino on September 17, 2004, arriving sometime around midnight. After having breakfast, plaintiff proceeded to a revolving-door casino exit at about 7:45 a.m. to ascertain whether the weather was good, in which case he would then go to work on his construction job. The door had a sweep to keep out inclement weather.

Plaintiff identified himself in a surveillance recording played at trial that showed him entering a revolving door and immediately falling. He did not see anything on the floor, any signs, or any washers. The weather was clear. The tile floor was shiny and glowing. He remembered his right foot jamming the door in front of him and his left leg was pinned below him when he fell. A male Borgota security officer asked if he required assistance. Plaintiff remembered feeling water on the floor around him; his hand and buttocks were soaked. The security officer said, "There's water in there," and left to get housekeepers to place warning signs. Security guards helped plaintiff out of the door and asked him if he needed help.

The onsite medical staff was unavailable, and the security guards asked plaintiff if they should call an ambulance. Plaintiff requested some time to make the decision. While waiting, plaintiff overheard a security guard talking into a radio. The guard said, "The cleaners was [sic] out here a short while ago, and water had drifted underneath the door." Plaintiff did not see cleaning people or equipment but he also testified he saw a cleaning truck outside after his fall.

Plaintiff conceded at trial he did not have an expert to opine that there was any defect in the flooring, the door, or the door sweep or that the floor was unusually slippery or slick. He admitted he had no problem walking across the lobby floor until he stepped within the revolving door. He admitted from the surveillance videotape that it did not look as though two people who came through the revolving door had any difficulty doing so. On questioning from the jury, plaintiff testified that the floor inside the revolving door was marble.

Gloria Martinez, a security supervisor employed by defendant, was called by plaintiff at trial. She testified part of her duties include overseeing customer safety. If a security officer sees water or a substance on a floor, they are required to stand by the area until the proper department comes and cleans it up.

Borgota also employs one rover for each of four zones in the casino and lobby and secondary rovers for assigned areas in each zone. The rovers walk their zones and the secondary rovers walk their assigned areas to oversee the safety of the casino. The lobby itself falls into two zones and, thus, has two rovers and two secondary rovers responsible for its safety. Martinez could not testify to the frequency of their rounds. Additionally, if the personnel operating the surveillance cameras observe anything presenting a safety hazard, they call security to address the issue.

Martinez, as supervisor for hotel security, was also responsible for the lobby. Specialist Lam prepared an incident report about this accident at 7:45 a.m. The report indicated that she responded to the accident with a wheelchair, although Martinez had no recollection of it. Lam reported plaintiff's version of the accident, including his statement that he fell on a puddle of water. Lam inspected the scene, which he reported "was clear, marble was damp." No other witnesses testified respecting liability.

The evidence relating to plaintiff's failure to file income tax returns arose in the following manner. Plaintiff had been deposed on June 6, 2007. At that time, plaintiff was asked whether he had lost any income as a result of his injuries and responded he had suffered a substantial loss over more than a year. Defendant immediately requested plaintiff's income tax returns for the tax years 2002 through 2006. Plaintiff responded that he had not filed returns for the three most recent years because he had misplaced most of his papers, but was in the process of doing so. Plaintiff later abandoned his lost-income claim and did not produce any income tax returns for the requested years.

Despite having abandoned that claim, on direct examination at trial, plaintiff's attorney examined him about the effect his injuries had on his ...


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