Havlik v. Schindler Elevator Corp., Civil Action No. 12-4610

• Decision Date: 30 September 2014
• Docket Number: Civil Action No. 12-4610
• Court: U.S. District Court — District of New Jersey
• Parties: PATRICIA and DENNIS HAVLIK, w/h, Plaintiffs, v. SCHINDLER ELEVATOR CORP. and CAESAR'S ENTERTAINMENT CORP. d/b/a BALLY'S CASINO, Defendants.

PATRICIA and DENNIS HAVLIK, w/h, Plaintiffs, v. SCHINDLER ELEVATOR CORP.and CAESAR'S ENTERTAINMENT CORP.d/b/a BALLY'S CASINO, Defendants.

Civil Action No. 12-4610

UNITED STATES DISTRICT COURT DISTRICT OF NEW JERSEY

September 30, 2014

Hon. Joseph H. Rodriguez

MEMORANDUM OPINION & ORDER

This matter is before the Court on motions of the Defendants to preclude the testimony of Plaintiff's expert and for summary judgment. Oral argument was heard on the motions on September 9, 2014 and the record of that proceeding is incorporated here. For the reasons articulated on the record that day, as well as those set forth here, the motions will be granted.

Background

On November 19, 2010, Plaintiff Patricia Havlik and her husband, Plaintiff Dennis Havlik, were at Bally's Atlantic City Hotel and Casino in Atlantic City, New Jersey, which is owned and operated by Defendant Bally's Park Place, Inc. d/b/a Bally's Atlantic City. Patricia Havlik Dep., 13:1-5; Bally's Answer with Affirmative Defenses and Cross claims, Dkt. Entry 13, ¶ 3. In order to catch the elevator on the sixth floor, Ms. Havlik placed her right hand between the elevator doors as they were closing. Patricia Havlik Dep., 19:24-20:9, 20:16-17, 85:7-17; Dennis Havlik Dep., 9:22-10:2, 12:9-11. The elevator doors closed on Ms. Havlik's hand, causing injury. Patricia Havlik Dep., 20:17-21:5. Plaintiffs did not report the incident to the Casino on the day that it occurred, but returned the next day and filed a guest incident report. Patricia Havlik Dep., 32:9-15.

Plaintiffs have asserted claims of negligent maintenance of the elevator by Schindler (Count One), negligence/premises liability by Bally's (Count Two), and loss of consortium (Count Three). In support of their claims in this case, Plaintiffs have proffered an expert report dated July 29, 2013 authored by James Filippone as well as a supplemental report dated September 20, 2013 that was also authored by Mr. Filippone.

Procedural Posture

Presently before the Court is a motion by Schindler Elevator to preclude the expert reports and testimony of Plaintiffs' expert, James Filippone, pursuant to Fed. R. Civ. P. 702 and Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993) and for summary judgment pursuant to Fed. R. Civ. P. 56 [38]. Schindler has argued that Plaintiffs cannot prove causation because the Filippone reports amount to no more than an untested assumption that the elevator's 3D sensor was not functioning, and as such are unreliable under Daubert. Similarly, Bally's has filed a motion in limine to preclude James Filippone from testifying at trial [37] and a motion for summary judgment [36]. Bally's argues that Filippone's opinion that the 3D sensor for the elevator door was not functioning at the time of the incident because the 3D function was not on during his February 2013 inspection is an unreliable, speculative net opinion. In addition, Bally's argues that there is no evidence in the record that the elevator was operating abnormally or not within industry standard. Rather, Plaintiff testified that she put her hand in front of normally operating elevator door when it was almost entirely closed; the accident was caused by her own negligence. Bally's also seeks summary judgment on the cross-claim for indemnification by Schindler because Bally's, the property owner, contracted with Schindler for maintenance/inspection.

Discussion

"Summary judgment is proper if there is no genuine issue of material fact and if, viewing the facts in the light most favorable to the non-moving party, the moving party is entitled to judgment as a matter of law." Pearson v. Component Tech. Corp., 247 F.3d 471, 482 n.1 (3d Cir. 2001) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986)); accord Fed. R. Civ. P. 56 (a). The Court will enter summary judgment in favor of a movant who shows that it is entitled to judgment as a matter of law, and supports the showing that there is no genuine dispute as to any material fact 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).

An issue is "genuine" if supported by evidence such that a reasonable jury could return a verdict in the nonmoving party's favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A fact is "material" if, under the governing substantive law, a dispute about the fact might affect the outcome of the suit. Id. In determining whether a genuine issue of material fact exists, the court must view the facts and all reasonable inferences drawn from those facts in the light most favorable to the nonmoving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).

Initially, the moving party has the burden of demonstrating the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Once the moving party has met this burden, the nonmoving party must identify, by affidavits or otherwise, specific facts showing that there is a genuine issue for trial. Id.; Maidenbaum v. Bally's Park Place, Inc., 870 F. Supp. 1254, 1258 (D.N.J. 1994). Thus, to withstand a properly supported motion for summary judgment, the nonmoving partymust identify specific facts and affirmative evidence that contradict those offered by the moving party. Andersen, 477 U.S. at 256-57. "A nonmoving party may not 'rest upon mere allegations, general denials or . . . vague statements . . . .'" Trap Rock Indus., Inc. v. Local 825, Int'l Union of Operating Eng'rs, 982 F.2d 884, 890 (3d Cir. 1992) (quoting Quiroga v. Hasbro, Inc., 934 F.2d 497, 500 (3d Cir. 1991)). Indeed,

the plain language of Rule 56(c) mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial.

Celotex, 477 U.S. at 322. That is, the movant can support the assertion that a fact cannot be genuinely disputed by showing that "an adverse party cannot produce admissible evidence to support the [alleged dispute of] fact." Fed. R. Civ. P. 56(c)(1)(B); accord Fed. R. Civ. P. 56(c)(2).

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).

To prevail on a claim for negligence under New Jersey law, a plaintiff must establish the existence of a duty owed to the plaintiff by the defendant, a breach of that duty, and that the breach was the proximate cause of the plaintiff's injuries. Keith v. Truck Stops Corp. of Am., 909 F.2d 743, 745 (3d Cir. 1990). An owner of a building has a non-delegable duty to exercise reasonable care for the safety of tenants and persons using the premises at his invitation. Mayer v. Fairlawn Jewish Ctr., 186 A.2d 274, 277-78 (N.J. 1962). That the owner contracts for maintenance of an elevator does not relieveit of that duty, although it may secure indemnification by contract with the maintenance contractor or at common law. Rosenberg v. Otis Elevator, 841 A.2d 99,105 (N.J. Super. Ct. App. Div. 2004).

The parties agree that the basic facts of the case are not in dispute. Ms. Havlik testified that at the time of the accident she believed it was safe to put her hand in the elevator doors to stop them from closing. (Patricia Havlik Dep., 22:5-8.) Ms. Havlik approximated that the doors were open "a little more" than the width of a legal pad. (Patricia Havlik Dep., 85:13-17.) The doors closed on "the center of [her] hand," (id. at 23:9-13), such that "when [she] looked at [her] hand, the only thing [she] saw was a little edge of [her] hand and [her] wrist. The rest of it was in the elevator." (Id. at 23:4-7.) She also testified, "I remember leading with my hand." (Id. at 74:10.) Similarly, Mr. Havlik testified that "from her wrist to her fingers disappeared," and he noted, "[s]he's got a small hand." (Dennis Havlik Dep., 11:14-20.) Plaintiffs were not able to get on the elevator because "[t]he elevator left." (Patricia Havlik Dep., 75:17-20.) Ms. Havlik theorized, "I guess the elevator inside went to another floor, but the doors remained closed on my hand." (Id. at 75:21-23.)

In 2007, Bally's contracted with Otis Elevator Company to modernize the subject elevator, designated as elevator P-3 by Bally's. (Mattia Dep., 41:13-43:5.) At that time, Otis installed, among other things, new doors, controllers, and an Otis electronic door edge called a Lambda. (Mattia Dep., 42:13-19, 49:7-20, 57:6-21.) Schindler did not manufacture, design, or install the door protection device or any other part of the subject elevator and, since the 2007 modernization, the Lambda electronic edge has never been repaired or replaced by Schindler. (Mattia Dep., 43:12-14; 65:12-66:12.)

Schindler's service technician Gregory Mattia testified that he rides the subject elevator approximately once a day during the course of his duties at Bally's but has never noticed any problems with the electronic edge on the subject elevator, and is unaware of any patron other than Ms. Havlik claiming to have been injured by the subject elevator's doors. (Mattia Dep., 64:25-65:8, 67:17-20, 68:1-3.) Further, Schindler's Preventive Maintenance Work Reports from 2010, before and after the subject incident, do not evidence any problems with the subject elevator or its door reopening device. (Schindler maintenance tickets and maintenance summary, signed by Mattia.) The inspections performed by an inspector for Atlantic City f...