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John Finke, and Susan Finke v. Borgata Hotel

June 17, 2011


The opinion of the court was delivered by: Noel L. Hillman, U.S.D.J.


HILLMAN, District Judge

Presently before the Court is defendant's motion for summary judgment on plaintiffs' claims concerning an assault that occurred on defendant's premises. Within defendant's motion for summary judgment is its request to bar the testimony of plaintiffs' security expert. For the reasons expressed below, defendant's summary judgment motion will be denied, and its request to bar plaintiffs' expert is also denied.


On September 23, 2006 at approximately 3:00am, plaintiff John Finke was in the port cochere, or valet, area of the Borgata Hotel and Casino waiting to leave the casino. Finke had patronized the casino that evening with Daniel Gordon, Finke's future son-in-law, and Daniel's brothers, Kevin and Stephen. Finke, Daniel, and Kevin exited the building, but Kevin immediately re-entered to purchase beer. Upon their exit, Finke and Daniel noticed about thirty non-employees "milling about," and five to seven people acting "unruly" in front of the casino doors. Daniel observed that this group was screaming and yelling, with one of them punching a taxi sign, knocking it down. Daniel also observed that the group was heckling other patrons, attempting to draw people into a fight.

After about three to five minutes, Daniel was drawn into the altercation. Daniel states that the group was "mouthing off" and "swearing" at him. At that time, Kevin exited the building and came into the valet area carrying an ice bucket full of beer bottles he had purchased inside. The exchange between the "hecklers" and Daniel escalated, and Kevin was drawn into the exchange.

Stephen then exited the building, and attempted to get between Kevin and one of the hecklers, pushing Kevin back, telling him it was not "worth it." Daniel observed that another heckler came from behind Stephen, and smashed an object into Kevin's face, splitting his nose open. The group of hecklers started to retreat around potted planters, and Daniel retrieved a glass from another planter and threw it in the direction of the hecklers. It smashed on the ground, not hitting anyone. Two hecklers ran away, and another one ran by Finke, striking him on the head as he ran past.*fn1 Finke suffered serious and permanent damage to his brain, head and scalp with permanent deficits of memory, behavior, emotions and cognitive functioning capacity.

Finke claims that the Borgata is liable for his injuries because it was negligent in its duty of care to protect him, a business invitee, from a known dangerous condition.*fn2 The Gordons state that from the time they first exited the building into the valet area until Kevin was punched in the face, six to eight minutes elapsed, and another two minutes passed before Finke was hit on the head. Also during this entire time, three Borgata valets were present, and personal vehicles and taxis were coming in and out of the valet area. The Gordons state that no security personnel were present, or dispatched to the area, until after Kevin was hit, and even at that time, only one person from security came to the area. That security person, a Borgata Crowd Control Specialist, Leo Staub, had been securing parking for a tour bus in another part of the valet area, along with Kathleen Wagner, a Borgata entertainment department employee, and a bellman, when a bottle from the heckler's altercation hit the tour bus. According to the Gordons, it was not until the bottle hit the tour bus, and after Kevin was punched in the nose, that Staub focused his attention to the melee. In his complaint, Finke claims that Borgata's lack of security in the valet area at that time of night proximately caused his injuries because the Borgata knew of the dangers of that area from past incidents, and with regard to this particular incident, the Borgata was aware of six to eight minutes of disruptive behavior that it negligently left unremediated.

The Borgata has filed a motion for summary judgment, arguing that Finke's claims fail because it did not owe Finke the duty he claims, and even if it did, it did not breach that duty. The Borgata has also moved to strike the opinion of Finke's security expert, arguing that the expert does not meet the standards set forth by Daubert v. Merrell Dow Pharma., 509 U.S. 579 (1993). Finke has opposed both motions.


A. Jurisdiction

This Court has jurisdiction over this matter pursuant to 28 U.S.C. § 1332 because there is complete diversity of citizenship between the parties and the amount in controversy exceeds $75,000.

B. Summary Judgment Standard

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 ...

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