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Spitko v. Harrah's Atlantic City Operating Company, LLC

United States District Court, D. New Jersey

March 27, 2019


          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 Defendant




         Plaintiff 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 summary judgment.

         II. BACKGROUND[1]

         A. Facts

         On 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, ¶¶ 7-10.]

         Prior 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.]

         Additionally, 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.]

         Mr. 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.]

         B. Procedural History

         Plaintiffs 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.


         At 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).

         A 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. at 252).

         IV. ...

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