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Sherman v. Bally's Hotel & Casino


April 13, 2010


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


Plaintiff, Lillian Sherman, alleged that she suffered injuries as a result of the negligence of defendant, Bally's Park Place, Inc. ("Bally's"),*fn1 in caring for, maintaining, and supervising an assembly area for bus passengers in its facilities. Since instituting this suit, Sherman has passed away. Subsequently, Bally's has moved for summary judgment in this matter.

For the reasons expressed below, Bally's Motion for Summary Judgment is granted.


This Court exercises subject matter jurisdiction over the underlying claim pursuant to 28 U.S.C. § 1332. There is complete diversity between plaintiff and defendant in the underlying action. Plaintiff, Sherman, was a citizen of the Commonwealth of Pennsylvania. Defendant, Bally's, is incorporated in the State of New Jersey with its principal place of business in Atlantic City, New Jersey. In its Notice of Removal, Bally's persuasively represents that the amount in controversy may exceed $75,000.*fn2 Plaintiff does not dispute that assertion.


Sherman alleges that, on or around November 12, 2006, she and other patrons of Bally's facilities were exposed to noxious bus fumes in an assembly area for bus passengers. As a result of the fumes, Sherman avers that she fainted and suffered severe injuries, including a fractured ankle and damage to her nerves and nervous system. According to Sherman, the assembly area was owned, managed, operated, controlled, and/or supervised by Bally's.

In November 2008, Sherman filed a suit in the Court of Common Pleas in Philadelphia County, Pennsylvania. In the complaint, Sherman alleges that the noxious bus fumes and her injuries were caused by Bally's negligence in caring for, maintaining, or supervising its premises or otherwise protecting or warning its visitors. Later that same month, Bally's removed Sherman's suit from state court to the Eastern District Court of Pennsylvania. On or around February 2, 2009, the Eastern District Court, based on a lack of personal jurisdiction and improper venue, granted Bally's Motion to Dismiss and transferred Sherman's case to this Court.

On October 16, 2009, plaintiff's counsel informed Bally's counsel, via letter, that Sherman was recently deceased. Approximately a month later, Bally's moved for summary judgment.

Presently before this Court is Bally's Motion for Summary Judgment.


Bally's argues that plaintiff has not proffered, and cannot proffer, any depositions, affidavits, or other evidence to demonstrate that a genuine issue of material fact exists in this case. In particular, Bally's iterates that Sherman is now deceased and, prior to her death, never provided any admissible statements or testimony in support of her allegations. Further, plaintiff has not furnished any liability expert testimony, which Bally's believes is necessary to prove its alleged negligence. Absent any proofs, Bally's concludes that plaintiff simply cannot sustain her case. Plaintiff's counsel has not responded to or otherwise opposed Bally's Motion for Summary Judgment.

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 nonmoving party's evidence "is to be believed and all justifiable inferences are to be drawn in his favor." Marino v. Indus. 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., 477 U.S. at 323. 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 proper 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 judgment must do more than just rest upon mere allegations, general denials, or vague statements. Saldana v. Kmart Corp., 260 F.3d 228, 232 (3d Cir. 2001).

To satisfy its initial burden that plaintiff cannot prove a prima facie cause of action for negligence, Bally's points to plaintiff's complete lack of evidence. "Although the initial burden is on the summary judgment movant to show the absence of a genuine issue of material fact, 'the burden on the moving party may be discharged by 'showing' --- that is, pointing out to the district court --- that there is an absence of evidence to support the nonmoving party's case' when the nonmoving party bears the ultimate burden of proof." Singletary v. Pa. Dept. of Corr., 266 F.3d 186, 192 n.2 (3d Cir. 2001) (citing Celotex, 477 U.S. at 325); see Celotex, 477 U.S. at 323 (stating that "we find no express or implied requirement in Rule 56 that the moving party support its motion with affidavits or other similar materials negating the opponent's claim"). In this case, Bally's has satisfied that burden.

Beyond plaintiff's complaint and her general averments, there is nothing before the Court to prove the validity or essential elements of Sherman's claims. Plaintiff has presented no evidence of any kind to show that a genuine issue of material fact exists or that she can carry her burden of proof at trial.*fn3 See Shivery v. Adam Stiefel Funeral Home, 2006 N.J. Super. Unpub. LEXIS 1315, at *7 (N.J. App. Div. May 10, 2006) (granting motion for summary judgment against plaintiff where plaintiff's evidence could not bear burden of proof in negligence/premises liability action). Without more, plaintiff's complaint cannot save her case from summary judgment. See Trap Rock Indus., Inc. v. Local 825, Int'l Union of Operating Eng'rs, 982 F.2d 884, 890 (3d Cir. 1992) ("A non-moving party may not rest upon mere allegations, general denials or... vague statements." (citation and internal quotation marks omitted)); Schoch v. First Fidelity Bancorp., 912 F.2d 654, 657 (3d Cir. 1990) (stating that, for nonmoving plaintiff bearing the burden of proof, "unsupported allegations... and pleadings are insufficient to repel summary judgment"); see also Lue-Martin v. The March Group, 2008 U.S. Dist. LEXIS 57588, at *34 (D.V.I. Jul. 30, 2008) (concluding that "plaintiff cannot rely on her unverified amended complaint as evidence to withstand a motion for summary judgment"); Rade v. Transition Software Corp., 1998 U.S. Dist. LEXIS 17279, at *7 (E.D. Pa. Nov. 2, 1998) (dismissing plaintiff's claim because plaintiff "offers no deposition testimony, affidavits, or other properly considered evidence of this claim" and cannot rely exclusively on his complaint).

Upon Bally's highlighting the absence of evidence or a genuine issue of material fact in this case, plaintiff's counsel has not responded or otherwise opposed Bally's Motion for Summary Judgment, further convincing the Court that a potentially meritorious claim cannot be established here.

Tragic as Sherman's death is, Bally's fairly surmises that without some memorialization of her testimony or recollection, plaintiff's case appears thwarted and unable to proceed. Therefore, for the reasons expressed above, the Court grants Bally's Motion for Summary Judgment.


For the foregoing reasons, Bally's Motion for Summary Judgment is granted. An Order consistent with this Opinion shall be entered.


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