United States District Court, D. New Jersey
JOSEPH H. RODRIGUEZ, UNITED STATES DISTRICT JUDGE
matter comes before the Court by way of Defendants'
Motion for Summary Judgment [Dkt. No. 32]. The Court has
considered the written submissions of the parties as well as
the arguments advanced at the hearing on November 5, 2019.
For the reasons expressed on the record that day, as well as
those set forth below, Defendants' motion is granted.
BACKGROUND: This case arises out of an alleged slip
and fall at Harrah's Atlantic City Operating Company LLC
d/b/a Harrah's Resort Atlantic City
(“Harrah's” or “Defendants”).
[See Dkt. No. 1 (Compl.)] On or about December 23,
2015, around 6:30 p.m., Plaintiff, Keith Woolley
(“Plaintiff”), brought his car to Defendants'
valet parking area. (Pl. Dep. 91:2-92:4; 102:2-4). It was
“warm” and raining, but “raining not
hard.” (Id.). After he left his car, Plaintiff
began walking towards Harrah's automatic revolving door
entrance and he noticed that the ground in the valet area was
wet, “[p]retty much everywhere.” (Id. at
106:1-12). Plaintiff thinks that he fell, “just went
down quick, ” inside the revolving door as he stepped
in. Plaintiff has “[n]o idea” what he may have
slipped on, or if he slipped at all. (Id. at
110:2-9; 106:6-19). Following this incident, Plaintiff did
not observe the floor in the area where he fell; he felt
“dampness” while on the floor but “not
much.” (Pl. Dep. 115:10-116:4). Plaintiff does not know
how long any dampness or wetness was in the area of his
accident prior to falling. (Id. at 118:11-14).
December 7, 2017, Plaintiff filed a Complaint against
Defendants, alleging one count of Negligence, which claims
Defendants were “negligent in relation to the
maintenance in the area of Plaintiff's alleged
incident.” (Compl. ¶¶ 10-13; Def. SMF ¶
1). After conducting discovery, Defendants filed a Motion for
Summary Judgment seeking dismissal of Plaintiff's
Complaint. [Dkt. No. 32]. The Court heard oral argument on
that motion at a hearing held on November 5, 2019.
Summary Judgment Standard of Review: Federal Rule of
Civil Procedure 56(a) generally provides that the
“court shall grant summary judgment if the movant shows
that there is no genuine dispute as to any material
fact” such that the movant is “entitled to
judgment as a matter of law.” Fed.R.Civ.P. 56(a). Such
a showing must be supported by “citing to particular
parts of materials in the record, including depositions,
documents, electronically stored information, affidavits or
declarations, stipulations . . . admissions, interrogatory
answers, or other materials.” Fed.R.Civ.P. 56
(c)(1)(A). A “genuine” dispute of
“material” fact exists where a reasonable
jury's review of the evidence could result in “a
verdict for the non-moving party” or where such fact
might otherwise affect the disposition of the litigation.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
(1986). Disputes over irrelevant or unnecessary facts,
however, will fail to preclude the entry of summary judgment.
evaluating a motion for summary judgment, the court must view
the evidence in the light most favorable to the non-moving
party, and must provide that party the benefit of all
reasonable inferences. Scott v. Harris, 550 U.S.
372, 378 (2007); Halsey v. Pfeiffer, 750 F.3d 273,
287 (3d Cir. 2014). Any such inferences “must flow
directly from admissible evidence[, ]” because
“‘an inference based upon [ ] speculation or
conjecture does not create a material factual dispute
sufficient to defeat summary judgment.'”
Halsey, 750 F.3d at 287 (quoting Robertson v.
Allied Signal, Inc., 914 F.2d 360, 382 n.12 (3d Cir.
1990) (citing Anderson, 477 U.S. at 255)). In
deciding the merits of a party's motion for summary
judgment, the court's role is not to evaluate the
evidence and decide the truth of the matter, but to determine
whether there is a genuine issue for trial. Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 249 (1986).
Credibility determinations are the province of the
factfinder. Big Apple BMW, Inc. v. BMW of N. Am.,
Inc., 974 F.2d 1358, 1363 (3d Cir. 1992).
establish a claim for negligence, plaintiff must prove
“(1) [a] duty of care, (2) [a] breach of [that] duty,
(3) proximate cause, and (4) actual damages [.]”
Weinberg v. Dinger, 524 A.2d 366, 373 (N.J. 1987).
Accordingly, “in any case founded upon negligence, the
proofs ultimately must establish that defendant breached a
duty of reasonable care, which constituted a proximate cause
of the plaintiff's injuries.” Brown v. Racquet
Club of Bricktown, 471 A.2d 25, 29 (N.J. 1984) (citing
Hansen v. Eagle-Picher Lead Co., 84 A.2d 281, 288
(N.J. 1951). The burden of proof resides with the Plaintiff.
Hansen v. Eagle Picher Leas Co., 84 A.2d 281, 284
(N.J. 1951). In this case there is no dispute that Defendants
owed a duty of care to plaintiff as an invitee, which
“requires a business owner to discover and eliminate
dangerous conditions, to maintain the premises in safe
condition, and to avoid creating conditions that would render
the premises unsafe.” Nisivoccia v. Glass Gardens,
Inc., 818 A.2d 314, 316 (N.J. 2003) (citing
O'Shea v. K. Mart Corp., 701 A.2d 475
(N.J. App. Div. 1997)).
Plaintiff fails to establish any genuine factual dispute that
Defendants breached a duty owed to him, or even if there was
a breach, that such breach caused his accident or any
injuries. Plaintiff cannot provide, beyond his own
speculation, any evidence pertaining to his incident on or
about December 23, 2015. Aside from the actual fall,
Plaintiff fails to provide any evidence of how he fell or
what caused his fall. “Negligence is never presumed,
and the mere occurrence of an accident causing injuries is
not alone sufficient to justify an inference of
negligence.” Rivera v. Columbus Cadet Corps of
Am., 158 A.2d 62, 65 ( N.J.Super. App. Div. 1960)
(citations omitted). Therefore, Plaintiff fails to produce
proof of negligence sufficient to preclude summary judgment.
light most favorable to Plaintiff, the facts establish that
Plaintiff believes he fell inside Harrah's
automatic revolving door, which he had used during his stay
and on prior visits to Harrah's. (Pl. Dep. 92:1-4;
96:17-25; 102:16-23). After the incident, “[o]nce
inside . . . [he] heard security call somebody to get a
bucket and mop that up.” (Pl. Dep. 115:1-3). Plaintiff
does not know what that statement was in reference to.
(Id.).“Plaintiff did not see anything on the
floor inside the revolving door at any time before his
incident occurred . . . . [or] anything on the ground or
floor outside the revolving door where he would have had to
walk to access the inside the revolving door . . . .”
(Def. SMF ¶¶ 8-9). After his fall, Plaintiff
contends the he felt “dampness” on his body, but
he did not notice dampness or wetness inside the revolving
door before his accident. However, it was wet outside of the
revolving door. (Pl. Dep. 117). Plaintiff wouldn't know
how long any dampness or wetness was in the area prior to his
accident (Id. at 118:4-14). Plaintiff does not know
“of any other source of dampness or wetness”
other than the rain that day. Finally, Plaintiff provides no
expert testimony as to the condition of Harrah's floor,
inside or outside, of the revolving door or Harrah's
more, Plaintiff cannot establish that any dangerous condition
existed, nor that Harrah's was aware of any condition on
its floor. At oral argument, Plaintiff argued that there are
material factual issues concerning the wetness of the area
where Plaintiff fell because Plaintiff heard someone yell
about getting a mop and bucket. But there is no evidence
concerning what area was to be mopped or that any mopping
took place after that statement. In other words, Plaintiff is
guessing that someone was called to mop where he fell.
“An inference [of negligence] can be drawn only from
proved facts and cannot be based upon a foundation of pure
conjecture, speculation, surmise or guess.”
Prioleau v. Kentucky Fried Chicken, Inc., 85 A.3d
1015, 1022 (N.J. App. Div. 2014), aff'd as modified
and remanded, 122 A.3d 328 (N.J. 2015) (citing Long
v. Landy, 171 A.2d 1, 7 (1961)). Additionally,
Plaintiff's own testimony contradicts the inference that
the area where he fell was wet because a mop and bucket were
called for. (See Pl. Dep. at 115 (stating that, he
only felt “dampness”)). In fact, Plaintiff does
not know whether he tripped or slipped on wetness, or why he
fell. (Id. at 106:6-19).
the floor was wet, and that wetness was a dangerous
condition, a “proprietor generally is not liable for
injuries caused by defects of which he had no actual or
implied knowledge or notice, and no reasonable opportunity to
discover.” Brown v. Racquet Club of Bricktown,
471 A.2d 25, 30 (N.J. 1984). Plaintiff argues Defendants were
on notice because another individual fell in the same area
twenty (20) minutes prior to his own fall. This argument also
fails to create a genuine factual dispute. The record lacks
any facts that establish, to the extent someone else fell in
Harrah's, that they fell inside or
“basically” inside the revolving door or why they
fell. At oral argument, Plaintiff could not say that this
person fell in the same place as him. Furthermore, in this
case, Plaintiff could see where he was walking, did not
notice anything on the ground, and has “[n]o
idea” what he slipped on. (Id. at 110:2-9).
With these facts, there is no indication (1) as to what
condition caused Plaintiff's accident, (2) that any
alleged condition was dangerous, and (3) that defendant was,
or could have been, on notice of it. Therefore, Defendants
are entitled to judgment as a matter of law.
Conclusion: For the forgoing reasons, as well as
those expressed on the record of November 5, 2019, Defendant
Harrah's Motion for ...