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Toney v. Boardwalk Regency Corp.

January 13, 2010

DEWEY J. TONEY AND ZENITH TONEY, PLAINTIFFS,
v.
BOARDWALK REGENCY CORPORATION, DOING BUSINESS AS CAESARS ATLANTIC CITY, DEFENDANT.



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

OPINION

Presently before the Court is defendant's motion for summary judgment on plaintiffs' claims concerning a slip and fall accident that occurred on defendant's premise. For the reasons expressed below, defendant's motion will be granted.

BACKGROUND

On August 18, 2006, plaintiff Dewey Toney was walking through defendant Caesars' casino when he slipped and fell. Mr. Toney did not know what caused him to slip and fall, but the casino's "Mishap Report" and video surveillance revealed a red, jelly-like substance in the location of Mr. Toney's fall. The report described the substance as a maraschino cherry that appeared to be "crushed and smeared."

As a result of the fall, Mr. Toney sustained a massive rotator cuff tear, requiring surgical intervention, extensive therapy and rehabilitation on his right shoulder. Mr. Toney alleges that defendant had a duty to maintain its premise in a safe condition, and that defendant failed in this duty by not removing the dangerous condition of which it knew, or should have known. Accordingly, Mr. Toney claims that defendant is liable for his injury, pain and suffering, and other damages, and Mrs. Toney claims that defendant is liable for the loss of her husband's consortium, care and companionship.

Defendant has moved for summary judgment, arguing that plaintiffs have not identified any facts that must be presented to a jury for determination as to whether defendant breached its duties to plaintiffs. Plaintiffs have opposed defendant's motion.

DISCUSSION

A. Jurisdiction

This Court has jurisdiction over this matter pursuant to 28 U.S.C. § 1332 because there is complete diversity of citizenship between the parties and the amount in controversy exceeds $75,000.

B. Summary Judgment Standard

Summary judgment is appropriate where the Court is satisfied that "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, 330 (1986); Fed. R. Civ. P. 56(c).

An issue is "genuine" if it is supported by evidence such that a reasonable jury could return a verdict in the nonmoving party's favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A fact is "material" if, under the governing substantive law, a dispute about the fact might affect the outcome of the suit. Id. In considering a motion for summary judgment, a district court may not make credibility determinations or engage in any weighing of the evidence; instead, the non-moving party's evidence "is to be believed and all justifiable inferences are to be drawn in his favor." Marino v. Industrial Crating Co., 358 F.3d 241, 247 (3d Cir. 2004)(quoting Anderson, 477 U.S. at 255).

Initially, the moving party has the burden of demonstrating the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Once the moving party has met this burden, the nonmoving party must identify, by affidavits or otherwise, specific facts showing that there is a genuine issue for trial. Id. Thus, to withstand a properly supported motion for summary judgment, the nonmoving party must identify specific facts and affirmative evidence that contradict those offered by the moving party. Anderson, 477 U.S. at 256-57. A party opposing summary ...


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