Jarrah v. Trump Hotels & Casino Resorts, Inc.

• Decision Date: 30 May 2007
• Docket Number: Civil Action No. 04-2365 (JEI).
• Citation: Jarrah v. Trump Hotels & Casino Resorts, Inc., 487 F.Supp.2d 522 (D. N.J. 2007)
• Parties: Faud JARRAH, and Suhaila Jarrah, Plaintiffs, v. TRUMP HOTELS & CASINO RESORTS, INC., Medical One A.C.E.C., Inc., and Linda A. Erthal, Defendants.
• Court: U.S. District Court — District of New Jersey

487 F.Supp.2d 522

Faud JARRAH, and Suhaila Jarrah, Plaintiffs, v.TRUMP HOTELS & CASINO RESORTS, INC., Medical One A.C.E.C., Inc., and Linda A. Erthal, Defendants.

Civil Action No. 04-2365 (JEI).

United States District Court, D. New Jersey.

May 30, 2007.

COPYRIGHT MATERIAL OMITTED

Soloff & Zervanos by Jeffrey P. Fritz, Cherry Hill, NJ, Law Offices of Soloff & Zervanos by John Nikitas Zervanos, Philadelphia, PA, for Plaintiffs.

Cooper, Levenson, April, Niedelman & Wagenheim, PA by Russell L. Lichtenstein, Atlantic City, NJ, for DefendantTrump Hotels & Casino Resorts, Inc.

Stahl & Delaurentis, PC by Dominic A. DeLaurentis, Jr., Voorhees, NJ, for DefendantsMedical One A.C.E.C., Inc. and Linda A. Erthal.

OPINION

IRENAS, Senior District Judge.

Plaintiffs commenced this personal injury action on May 20, 2004, against DefendantsTrump Hotels & Casino Resorts, Inc.("Trump"), Medical One A.C.E.C., Inc.("MO"), and Linda A. Erthal("Erthal").¹Plaintiffs allege that Trump is liable for breaching a duty to provide competent emergency medical service.Plaintiffs also claim that Trump is liable through vicarious liability and apparent authority.The Court has jurisdiction pursuant to 28 U.S.C. § 1332.The law of New Jersey, the forum state, applies on the substantive issues in this case.Marino v. Industrial Crating Co.,358 F.3d 241, 243 n. 2(3d Cir.2004).

Trump moves for summary judgment and for indemnity.For the reasons set forth below, the Motion for Summary Judgment will be granted, and the Motion for Indemnity will be dismissed as moot.

I.

Trump has contracted with MO since July 22, 2002, for MO to operate a medical station on Trump's premise.The contract between Trump and MO stated that:

MO shall be solely responsible for the operation of the medical station and is acting as an independent contractor hereunder.No relationship of employer and employee is created by this Agreement between MO and [Trump].[Trump] shall exercise no control or direction over the methods by which MO and the nurses and physicians who contract with MO perform their work and function.No MO employee performing services hereunder shall have any claim under this Agreement or otherwise against [Trump] for salary, or compensation, disability or unemployment insurance benefits or any other employee benefits of any kind.

(Trump Ex. A, at p. 6).

The contract term is three years.(Trump Ex. A, at p. 8).As consideration for MO's service, Trump provides a flat fee of $185,000.00 for the first year of the contract.(Id.).This fee would be renegotiated each subsequent year, but would not increase by more than 5%.(Id.).The contract also requires MO to carry insurance, and to indemnify Trump against loss of life, bodily or personal injury.(Id. at pp. 6-7).

The contract requires that a registered nurse licensed by New Jersey Board of Nursing be on-site for a minimum of 16 hours per day, 7 days per week.(Trump Ex. A, at p. 2).In addition, a physician is required to be on-site for a total of 15 hours per week, and on-call 24 hours per day, 7 days per week.(Id.).MO has the sole responsibility for the selection of physicians and nurses to staff the medical station.(Id.).

On or about February 24, 2003, PlaintiffFaud Jarrah("Faud") was visiting Trump's casino and hotel.At approximately 6:00 P.M., Faud complained of dizziness, difficulty moving his left leg and left arm, slurred speech, and inability to hold his bladder.

Faud requested emergency medical assistance, and was attended to by Erthal and other security personnel.Erthal was an employee of MO; she was not employed by Trump.Erthal performed a medical evaluation on Faud and, after learning that he was diabetic, directed him to sit down and eat.She did not recommend any treatment or arrange for Faud to be transported to a hospital.

After Faud ate, his symptoms continued to worsen.Because of his symptoms, his wife and friend drove him from the Casino to Lehigh Valley Hospital and Health Network in Allentown.In the hospital, Faud discovered that he had actually suffered a brainstem infarction (a type of stroke) with left side hemiparesis.Following this diagnosis, Faud's family and physicians sought information regarding his condition at the casino.The information was furnished by Trump's Risk Management Department.

Plaintiffs claim that Erthal's misdiagnosis prevented and delayed him from receiving proper care.They also claim that Trump is independently and vicariously liable, and liable through apparent authority.

II.

"Under Rule 56(c), summary judgment is proper if 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 law.'"Celotex Corp. v. Catrett,477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265(1986)(quotingFed.R.Civ.P. 56(c)),

In deciding a motion for summary judgment, the Court must construe the facts and inferences in a light most favorable to the non-moving party.Pollock v. Am. Tel. & Tel. Long Lines,794 F.2d 860, 864(3d Cir.1986).The role of the Court is not "to weigh the evidence and determine 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, 106 S.Ct. 2505, 91 L.Ed.2d 202(1986)."[A]party opposing a properly supported motion for summary judgment may not rest upon the mere allegations or denials of his pleading, but ... must set forth specific facts showing that there is a genuine issue for trial."Id. at 248, 106 S.Ct. 2505(internal quotation and citation omitted; ellipsis in original).

III.

A.

Plaintiffs claim that Trump is independently liable for the alleged negligence.Under New Jersey law, to establish premises liability, Plaintiffs bear the burden of proving that the premises owner breached the duty of care owed to them.Jerista v. Murray,185 N.J. 175, 191, 883 A.2d 350(2005).

The question of whether a duty exists is a matter of law properly decided by' heCourt.Strachan v. John F. Kennedy Memorial Hosp.,109 N.J. 523, 529, 538 A.2d 346(1988).Determination of the existence of a duty "is largely a question of fairness or policy."Id."The inquiry involves a weighing of the relationship of the parties, the nature of the risk, and the public interest in the proposed solution."Kelly v. Gwinnell,96 N.J. 538, 544, 476 A.2d 1219(1984).

[4] Under New Jersey law, "[b]usiness owners owe to invitees a duty of reasonable or due care to provide a safe environment for doing that which is in the scope of the invitation."Nisivoccia v. Glass Gardens, Inc.,175 N.J. 559, 563, 818 A.2d 314(2003).This duty arises out of the fact that business owners "are in the best position to control the risk of harm.Ownership or control of the premises, for example, enables a party to prevent the harm."Kuzmicz v. Ivy Hill Park Apartments, Inc.,147 N.J. 510, 517, 688 A.2d 1018(1997).

Faud was not injured by an unsafe physical condition on Trump's premises.Rather, his injury was the result of alleged medical negligence by MO's nurse.Thus, the question that the Court must resolve is whether Trump owed a duty to Faud to provide medical care.

Plaintiffs cite § 314A of the Restatement (Second) of Torts for the proposition that Trump owed them a duty to provide medical care.Section 314A states:

(1) A common carrier is under a duty to its passengers to take reasonable action

. . .

(b) to give them first aid after it knows or has reason to know that they are ill or injured, and to care for them until they can be cared for by others.

(2) An innkeeper is under a similar duty to his guests.

(3) A possessor of land who holds it open to the public is under a similar duty to members of the public who enter in response to his invitation.

No reported cases from New Jersey courts have considered whether a hotel has a duty to render medical aid to its business invitees.However, the Third Circuit has offered a prediction as to how the New Jersey.Supreme Court would rule on this question.²SeeLundy v. Adamar of New Jersey, Inc., 34 F.3d 1173(3rd Cir.1994).

In Lundy,the plaintiff, Lundy, suffered a cardiac arrest and fell to the ground unconscious while gambling at TropWorld Casino.Three other patrons, including a critical care nurse, a pulmonary specialist, and a surgeon, quickly ran to Lundy and began to assist him.At the time, Lundy was unresponsive, not breathing, and without a pulse.The TropWorld security personnel summoned an ambulance, and about 20 minutes elapsed between the time Lundy suffered cardiac arrest and the time the ambulance arrived.

TropWorld had a medical station with an on-call nurse.Prior to the arrival of the EMT, the nurse cared for Lundy.However, the nurse and the medical station did not have the equipment and skilled personnel necessary to perform an intubation, which was a necessary procedure for Lundy.Lundy subsequently sued the casino, arguing that TropWorld breached a duty to provide medical aid.

The Third Circuit rejected the plaintiff's claim.Because no New Jersey Supreme Courtcases clearly delineated the duties owed by a casino to patrons suffering medical emergencies, the Third Circuit had to predict New Jersey law on this question.Lundy,34 F.3d at 1178.The Lundy Court considered, as an analogy, the duty owned by an employer to its employees suffering medical emergencies.Id.

In Szabo v. Pennsylvania R.R. Co.,132 N.J.L. 331, 40 A.2d 562(N.J.Err. & App.1945), New Jersey's highest court held that, in the absence of a contract or statute, an employer generally had no duty to provide medical service to treat an ill or injured employee, even if the illness or injury was the result of the employer's negligence.Lundy,34 F.3d at 1178.However, if the employee, while engaged in the work of his or her employer, sustained an...