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 ...