United States District Court, D. New Jersey
Matthew S. Breslin, Esq. David Brian Rodden, Esq. Patrick J.
Rodden, Esq. RODDEN & RODDEN Attorneys for Plaintiffs
Matthew S. Breslin, Esq. Justin A. Britton, Esq. Russell L.
Lichtenstein, Esq. COOPER LEVENSON, P.A. Attorneys for
HONORABLE JEROME B. SIMANDLE, DISTRICT JUDGE
Michael Spitko (hereinafter “Mr. Spitko”) and his
wife, Plaintiff Virginia Spitko (hereinafter “Mrs.
Spitko”), brought this action alleging that Mr. Spitko
slipped and fell on a greasy substance as a result of the
negligence of Defendant, Harrah's Atlantic City Operating
Company, LLC (hereinafter “Defendant”). Defendant
moves for summary judgment. [Docket Item 47.] For the reasons
stated herein, the Court will deny Defendant's motion for
August 3, 2014, Plaintiffs ate dinner at the Waterfront
Buffet (hereinafter “Buffet” or “the
Buffet”) located within Harrah's Resort in Atlantic
City, New Jersey and operated by Defendant. [Docket Items
47-1, ¶ 1; 48, ¶ 1.] The Buffet is an
all-you-can-eat establishment featuring over a hundred food
and beverage items. [Docket Item 47-3, 821.] As Plaintiffs
exited the Buffet, through a tiled walkway between the food
service station and seating area [Docket Item 48,
¶¶ 17-18], Mr. Spitko slipped, fell, and landed on
his rear end. [Docket Items 47-1, ¶ 7; 48, ¶¶
to falling, Mr. Spitko did not notice any substance on the
floor. [Docket Items 47-1, ¶ 9; 48, ¶¶ 7-10.]
However, after the fall, he identified a “greasy, dirty
spot and a mark in it” on the floor. [Docket Items
47-1, ¶ 10; 48, ¶¶ 7-10.] Neither party
provided evidence to suggest how long this substance was on
the tile. [Docket Items 47-1, ¶ 12; 48, ¶¶
11-12.] Defendant produced a “Harrah's Incident
File Full Report” which indicates that Mr. Spitko fell,
injured his left elbow, and received first aid. [Docket Items
49-2, ¶¶ 16-19; 48-12, ¶¶ 16-19.] Both
parties agree that Defendant's Security Specialist took
photographs of the accident location [Docket Items 48-12,
¶ 23; 49-2, ¶ 20]; however, Plaintiffs allege that
Defendant's “Environmental Service” (EVS)
employee mopped the tile before Defendant's Specialist
took the photographs. [Docket Item 48-13, 28.]
Plaintiffs allege that Defendant's one-hour surveillance
video, capturing before, during, and after the fall, shows
only one EVS employee monitoring the Buffet floor. [Docket
Item 48-13]. However, Defendant claims that it typically
assigns two EVS employees and a Buffet employee known as a
“line wiper” to monitor and clean the Buffet
during the dinner shift. [Docket Item 47-2, 25-26.] Defendant
contends that it followed this alleged practice the night of
Mr. Spitko's fall. [Id.]
Spitko alleges that he suffered multiple injuries,
specifically to his knees and back, underwent a knee
replacement, and regularly receives lower back injections due
to the fall. [Docket Item 44, ¶ 33.]
filed a complaint on January 28, 2016 [Docket Item 1] and
subsequently filed an amended complaint on June 29, 2018.
[Docket Item 44.] Mr. Spitko claims one count of negligence
and Mrs. Spitko claims loss of consortium. [Id.]
Defendant filed a motion for summary judgment, which is now
pending before the Court. [Docket Item 47-2.] Plaintiff filed
a Response in Opposition [Docket Item 48] and Defendant filed
a Reply. [Docket Item 49.] The Court heard oral argument on
March 11, 2019.
STANDARD OF REVIEW
summary judgment, the moving party bears the initial burden
of demonstrating 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); accord Celotex Corp.
v. Catrett, 477 U.S. 317, 323 (1986). Once a properly
supported motion for summary judgment is made, the burden
shifts to the non-moving party, who must set forth specific
facts showing that there is a genuine issue for trial.
Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 250 (1986). In reviewing a motion for summary judgment,
the court is required to examine the evidence in the light
most favorable to the non-moving party, here the Plaintiffs,
and extend all reasonable inferences in that party's
favor. Scott v. Harris, 550 U.S. 372, 378 (2007);
Halsey v. Pfeiffer, 750 F.3d 273, 287 (3d Cir.
2014). Credibility determinations are not appropriate for the
court to make at the summary judgment stage. Davis v.
Portlines Transportes Maritime Internacional, 16 F.3d
532, 536 n.3 (3d Cir. 1994).
factual dispute is material when it “might affect the
outcome of the suit under the governing law, ” and
genuine when “the evidence is such that a reasonable
jury could return a verdict for the nonmoving party.”
Anderson, 477 U.S. at 248. The non-moving party
“need not match, item for item, each piece of evidence
proffered by the movant, ” but must simply present more
than a “mere scintilla” of evidence on which a
jury could reasonably find for the non-moving party.
Boyle v. Cty. of Allegheny Pennsylvania, 139 F.3d
386, 393 (3d Cir. 1998) (quoting Anderson, 477 U.S.