The opinion of the court was delivered by: Wigenton, District Judge.
Before the Court are Defendant Statewide Realty Company d/b/a Hilton Newark Airport and Hilton Hotels Corp.'s (collectively "Statewide") Motion for Summary Judgment ("Motion") and Defendant Titan Property Management's ("Titan") Cross Motion for Summary Judgment ("Cross Motion") pursuant to Fed. R. Civ. P. 56(c). This Court has jurisdiction over this matter pursuant to 28 U.S.C. § 1332. Venue is proper in this District pursuant to 28 U.S.C. § 1391(a). These motions are decided without oral argument pursuant to Fed. R. Civ. P. 78. For the reasons below, this Court grants Statewide's Motion and Titan's Cross Motion.
FACUTAL AND PROCEDURAL BACKGROUND
This personal injury action arises from an alleged slip and fall that
occurred on February 23, 2008, at the Hilton Newark Airport Hotel (the
"hotel") located at 1170 Spring Street, Elizabeth, New Jersey. (Am.
Compl. ¶ 9.) At the time of the alleged accident, Statewide had a
contract with Defendant Titan, a snow removal company.*fn1
(Shim Aff. Ex. D.) Pursuant to that contract, Titan was
required to perform snow removal and de-icing services at the hotel.
The contract also required Titan to be "on call" for twenty-four hours
a day. (Shim Aff. Ex. D, Mutz Dep. 31:11-13.) Therefore, the hotel's
employees could call Titan if they observed a hazardous condition at
the hotel and Titan would come and perform the necessary services.
(Id. at 29:12-18.)
Plaintiff Peter Jensen ("Plaintiff" or "Jensen") was a guest at the hotel when the alleged accident occurred. (Shim Aff. Ex. C.) Plaintiff asserts that he slipped and fell on a puddle with black ice in an open area in the hotel's outdoor self-parking while he was on his way to dinner. According to Jensen, the accident occurred around 8:55 p.m. (Am. Compl. ¶ 9; Shim Aff. Ex. B, Jensen Dep. 35:1-3, 36:10-12, 53:7-10.) Plaintiff alleges that he first noticed the black ice when he touched the area he had fallen. (Shim Aff. Ex. B, Jensen Dep. 59:18-21.) After his fall, Plaintiff maintains that he walked to the guardhouse in the parking lot, which was about ten to fifteen feet from the location of the accident, and reported the incident to the parking attendant, Agnes Nyariki ("Nyariki"). (Shim Aff. Ex. B, Jensen Dep. 51:4-8, 53:15-20.)
Thereafter, Jensen refused Nyariki's offer of medical assistance, retrieved his vehicle from the parking lot, and drove to dinner without incident. (Shim Aff. Ex. B, Jensen Dep. 65:7-23.) Nyariki testified that she walked to the area where Plaintiff allegedly fell and she noticed that there were spots of black ice in the area. (Shim Aff. Ex. H, Nyariki Dep. 19:24-20:4.) Subsequently, Nyariki notified the hotel's security and engineering personnel and reported the accident. (Id. at 21:7-10.) Wayne Woods ("Woods"), one of the hotel's stationary engineers, reported to the scene of the incident. (Id. at 21:14-15.) However, Woods testified that he inspected the area near the booth and found it to be dry and clear of snow and ice. (Shim Aff. Ex. F, Woods Dep. 53:11-20.)
Although Plaintiff alleges that there was black ice in the parking lot, on February 22, 2008, the day prior to the alleged accident, Titan plowed and "salted" the hotel's outdoor parking lot from 1:10 p.m. to 2:55 p.m. (Shim Aff. Ex. D, Mutz Dep. 33:14-19, 34:3-9.) On the day of the alleged accident, there was no precipitation; however, Titan, once again, applied salt to the outdoor parking lot from 11:54 a.m. to about 4:00 p.m. (Id. at 34:15-24, 35:1-3; Shim Aff. Ex. B, Jensen Dep. 35:9-34, 36:1-2.) Mutz testified that his employees usually put the plowed snow in designated areas near sewers so that the snow could melt into the sewers. (Shim Aff. Ex. D, Mutz Dep. 21:3-6.) Furthermore, Woods, who is responsible for ensuring that the hotel's pavements and parking lot are without ice and properly plowed, asserted that on the day of the alleged accident, he checked the parking lot between 3:00 p.m. and 8:45 p.m. and did not notice any snow or ice related problems. (Shim Aff. Ex. F, Woods Dep. 17:17-20, 33:7-22; Shim Aff. Ex. G, at 2.) According to Woods, the snow in the outdoor parking lot had been plowed, "the decing material was applied and the lot surface was dry and free of ice" during his routine inspection of the parking lot. (Shim Aff. Ex. G, at 2.) Similarly, the parking lot was well lit and Plaintiff maintains that he did not observe any black ice in the parking lot when he checked into the hotel around 4:30 p.m. (Shim Aff. Ex. B, Jensen Dep. 52:1-20, 57:1-3; Shim Aff. Ex. C; Shim Aff. Ex. H, Woods Dep. 46:9-10.) Additionally, Jamie Louardo ("Louardo"), the director of property operations for the hotel, maintained that prior to Plaintiff's alleged accident, none of the hotel's customers complained about ice or snow in the parking lot. (Shim Aff. Ex. E, at 2.)
On November 19, 2008, Plaintiff a complaint in the Superior Court of New Jersey, Union County, alleging negligence against Statewide. On March 20, 2009, Statewide removed the action to the United States District Court for the District of New Jersey. Subsequently, on September 22, 2009, Plaintiff amended the Complaint and added Titan Property Management, LLC and Lipinski Snow Services, Inc., as Defendants. Thereafter, on December 1, 2010, Statewide filed its Motion and on January 3, 2011, Titan filed its Cross Motion.
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). The "mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247--48 (1986). A fact is only "material" for purposes of a summary judgment motion if a dispute over that fact "might affect the outcome of the suit under the governing law." Id. at 248. A dispute about a material fact is "genuine" if "the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Id. The dispute is not genuine if it merely involves "some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986).
The moving party must show that if the evidentiary material of record were reduced to admissible evidence in court, it would be insufficient to permit the non-moving party to carry its burden of proof. Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). Once the moving party meets its initial burden, the burden then shifts to the non-movant who must set forth specific facts showing a genuine issue for trial and may not rest upon the mere allegations, speculation, unsupported assertions or denials of its pleadings. Shields v. Zuccarini, 254 F.3d 476, 481 (3d Cir. 2001). "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. Indus. Crafting Co., 358 F.3d 241, 247 (3d Cir. 2004) (quoting Anderson, 477 U.S. at 255).
The nonmoving party "must present more than just ‗bare assertions, conclusory allegations or suspicions' to show the existence of a genuine issue." Podobnik v. U.S. Postal Servs., 409 F.3d 584, 594 (3d Cir. 2005) (quoting Celotex Corp., 477 U.S. at 325). Further, the nonmoving party is required to "point to concrete evidence in the record which supports each essential element of its case." Black Car Assistance Corp. v. New Jersey, 351 F. Supp. 2d 284, 286 (D.N.J. 2004). "[T]here is no issue for trial unless there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party." Anderson, 477 U.S. at 249. "Such affirmative evidence - - regardless of whether it is direct or circumstantial - - must amount to more than a scintilla, but may amount to less (in the evaluation of the court) than a preponderance." Williams v. Borough of West Chester, 891 F.2d 458, 460-61 (3d Cir. 1989). If the nonmoving party "fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which . . . [it has] the burden of proof," then the moving party is entitled to judgment as a matter of law. Celotex Corp., 477 U.S. at 322