The opinion of the court was delivered by: Hon. Jerome B. Simandle
SIMANDLE, District Judge:
This matter is before the Court on Defendant Staten Island Yacht's motion for summary judgment [Docket Item 49]. Plaintiff Annabelle Ross, who slipped and fell on cleaning fluid, has sued Defendant for negligence. Defendant contends that it is not responsible for the acts of its independent contractor. For the reasons discussed below involving Defendant's control of the independent contractor, Defendant's motion for summary judgment will be denied.
The Atlantic City Convention Center is managed and operated by an entity known as SMG. In January 2007, SMG held the Atlantic City Power Boat Show. Defendant Staten Island Yacht was an exhibitor at the Boat Show and had two booths at the event where it displayed its boats. (Greco Dep. 16:1-2.) On January 30, 2007, Michael Greco, Staten Island Yacht's customer service manager, was in the Center, preparing the boats for the Show. Staten Island Yacht had hired Scotty's Auto Spa to clean the boats as part of its preparations, and Greco oversaw the work of Scotty's employees. (Greco Dep. 17:6-22.)
Plaintiff Annabelle Ross is a part-time employee at the Center. In preparation for the Boat Show, Plaintiff was laying carpet in the Center. After laying carpet between some display booths in one area of the Center, she and her crew proceeded to the next aisle, which was adjacent to the booth maintained by Defendant. Since forklifts and other vehicles were coming down that aisle, it had not been carpeted yet. While walking along the aisle Plaintiff slipped and fell, injuring herself. (Ross Dep. 58:20-60:7.)
Yvonne Washington, a co-employee working with Plaintiff, saw the wet spot that Plaintiff slipped on. (Washington Aff. ¶ 3.) Ms. Washington avers that she knew that the liquid was cleaning fluid, not water, since she got some of it on her hand and it was slippery. (Id. ¶ 7.)*fn1 Ms. Washington also witnessed a few men in Defendant's booth cleaning one of the boats by spraying it with cleaning fluid. (Id.) Ms. Washington noted that she saw the fluid getting all over the floor and spilling into the aisle next to Defendant's boat. (Id.) There is no evidence that Greco or the employees of Scotty's took any precautions to prevent a spill of cleaning fluids from flowing to the adjacent aisle. And if Greco or the employees of Scotty's were aware of a spill, none of them provided SMG with notice that a spill took place.*fn2
Plaintiff sued Defendant, as well as several other parties, in New Jersey state court for injuries that she suffered as a result of the fall. Defendants removed the case to this Court.
There are two possible theories of duty in this negligence case: a duty based on having created the dangerous condition and a duty based on the location of that condition. Defendant's motion initially focused on the second possible duty, but Plaintiff's opposition makes clear that Plaintiff is proceeding under the first theory. Plaintiff's counsel writes, "Plaintiff does not base her claim upon a 'premises liability' theory alleging a general duty to maintain the common aisle, but rather upon the negligent manner in which the defendant carried out its voluntarily assumed task of cleaning the boats, thereby causing injury to the Plaintiff." (Pl.'s Opp. Br. 5.)
The Court must therefore assess whether there is evidence that Defendant's contractor, Scotty's Auto Spa, created the hazard, and determine whether Defendant Staten Island Yacht had an obligation to prevent the negligence of its contractor.
A. Summary Judgment Standard
Summary judgment is appropriate "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). A fact is "material" only if it might affect the outcome of the suit under the applicable rule of law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). Summary judgment will not be denied based on mere allegations or denials in the pleadings; instead, some evidence must be produced to support a material fact. Fed. R. Civ. P. 56(c)(1)(A); United States v. Premises Known as 717 S. Woodward Street, Allentown, Pa., 2 F.3d 529, 533 (3d Cir. 1993). However, the court will view any evidence in favor of the nonmoving party and extend any reasonable favorable inferences to be drawn from that evidence to that party. Hunt v. Cromartie, 526 U.S. 541, 552 (1999). Where the nonmoving party bears the burden of persuasion at trial, the moving ...