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Kiely v. Atlantic City Showboat

January 20, 2010

MARSHA KIELY, PLAINTIFF,
v.
ATLANTIC CITY SHOWBOAT, INC., D/B/A SHOWBOAT CASINO, DEFENDANT.



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

HONORABLE JEROME B. SIMANDLE

OPINION

I. INTRODUCTION

This personal injury negligence case is before the Court on Defendant's motion for summary judgment [Docket Item 17]. For the reasons discussed below, the Court will deny Defendant's motion.

II. BACKGROUND

Plaintiff, Marsha Kiely, a resident of Pennsylvania, brought this negligence action against Atlantic City Showboat, Inc., in the Court of Common Pleas for Philadelphia County, Pennsylvania. [Docket Item 1.] Defendant, doing business as Showboat Casino, is a New Jersey corporation with a principle place of business in New Jersey. [Id.] Defendant removed the case to the federal court for the Eastern District of Pennsylvania on the basis of diversity jurisdiction. [Id.] The case was subsequently transferred to this Court upon stipulation of the parties. [Docket Item 6.]

Ms. Kiely alleges that while she was gambling at the Showboat Casino on May 3, 2006, she slipped on a wet bathroom floor and was seriously injured. (Compl. ¶¶ 1-12.) Defendant moves for summary judgment, arguing that Plaintiff has failed to adduce evidence of Defendant's actual or constructive knowledge of the slippery floor.

Plaintiff testifies that there was a casino employee in the corner of the bathroom by a utility closet at the time Plaintiff entered, (Pl.'s Dep. 28:6-11, Dec. 2, 2008), that the employee was in close proximity to where Plaintiff fell, (Id. at 31:6-8), and that the puddle of liquid upon which Plaintiff slipped was between the door and the stalls and was large enough to have wet the seat of her pants as a result of her fall. (Id. at 27:8- 11.)*fn1 Plaintiff argues that a reasonable fact-finder could conclude that the Defendant had actual or constructive notice of the condition. Plaintiff also maintains that she is not required to prove actual or constructive knowledge of the condition under the circumstances of the case because of the "mode-of-operation" exception.

Defendant argues that the presence of an employee in the bathroom is not sufficient evidence of actual or constructive knowledge of the condition in the absence of testimony that Plaintiff saw the employee notice the wet floor and without evidence of the duration of the spill. Defendant also provides evidence that it maintained a regular schedule of bathroom maintenance, including frequent inspection. (Clayton Dep. 30:1--20, Feb. 23, 2009.)

The Court must first decide whether Plaintiff is required to prove that Defendant had knowledge (actual or constructive) of the slippery floor. If so, the Court will then decide whether a reasonable fact-finder could infer from the presence of an employee in the bathroom and the extent of wetness of Plaintiff's pants that Defendant had actual or constructive knowledge of the wet bathroom floor with a sufficient amount of time to take reasonable precautions.

III. DISCUSSION

A. Standard of Review

Summary judgment is appropriate when the materials of record "show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c). In deciding whether there is a disputed issue of material fact, the court must view the evidence in favor of the non-moving party by extending any reasonable favorable inference to that party; in other words, "the nonmoving party's evidence 'is to be believed, and all justifiable inferences are to be drawn in [that party's] favor.'" Hunt v. Cromartie, 526 U.S. 541, 552 (1999) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986)). The threshold inquiry is whether there are "any genuine factual issues that properly can be resolved only by a finder of ...


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