Romeo v. Harrah's Atl. City Propco, LLC, Civil Action No. 13-2133

• Decision Date: 10 March 2016
• Docket Number: Civil Action No. 13-2133
• Citation: 168 F.Supp.3d 726
• Parties: Charles Romeo, Plaintiff, v. Harrah's Atlantic City Propco, LLC, Defendants.
• Court: U.S. District Court — District of New Jersey

168 F.Supp.3d 726

Charles Romeo, Plaintiff,

v.Harrah's Atlantic City Propco, LLC, Defendants.

Civil Action No. 13-2133

United States District Court, D. New Jersey.

Signed March 10, 2016

Dean I. Orloff, Robert G. Mangold, Law Office of Howard Taylor, Philadelphia, PA, for Plaintiff.

Lawrence M. Kelly, Mintzer, Sarowitz, Zeris, Ledva & Meyers, Cherry Hill, NJ, for Defendants.

AMENDED OPINION¹

Hon. Joseph H. Rodriguez

, UNITED STATES DISTRICT JUDGE

This matter comes before the Court on Motion of Defendant Harrah's Atlantic City Propco, LLC (“Harrah's”) for Summary Judgment pursuant to Fed. R. Civ. P. 56

. Principally, Harrah's claims that it is not liable for Plaintiff Charles Romeo's slip and fall accident at its casino because Plaintiff cannot make a prima facie case of negligence. Harrah's argues that it did not owe a duty of care to Romeo because it lacked both actual and constructive notice of the dangerous condition that Plaintiff alleges caused his fall.

The Court has considered the written submission of the parties and heard argument on the motion during a hearing on September 22, 2015. On September 30, 2015, the Court ordered the parties to brief the impact of the New Jersey Supreme Court's decision in Prioleau v. Kentucky Fried Chicken. Inc., 223 N.J. 245, 122 A.3d 328 (2015)

on the matter at hand. The Court has considered the supplemental submissions.

For the reasons expressed on the record on September 22, 2015 and those that follow, Defendant's motion for summary judgment is denied.

I. Background

Romeo claims that he slipped and fell at Defendant's Atlantic City casino on March 19, 2011. Video surveillance shows that a patron of the casino spilled a liquid beverage on a common walkway at approximately 7:03 p.m. See, Def. Ex. A, Surveillance Video. Approximately four minutes later, the same video depicts Romeo slipping on the spilt liquid, appearing to cause his fall. Id. There is no dispute as to the contents of the video. Plaintiff alleges the liquid on the floor of the common area caused his fall and subsequent injuries.

Harrah's in house cleaning department is called EVS. EVS is responsible for cleaning the public areas of the casino and has its employees stationed throughout the casino. An EVS supervisor testified that the area in which Romeo fell is inspected every thirty (30) to forty (40) minutes. Given the time in between inspections by EVS and the short window of time in between the spill and Romeo's fall, Harrah's claims that it did not have constructive notice of the dangerous condition.

Plaintiff claims that Defendant's mode of operation created the dangerous condition and thereby relieves Plaintiff of proving actual or constructive notice. Under this theory, Harrah's drink services are an integral part of the casinos' mode of operation. Specifically, there are several vending machines near the common walk way and patrons are provided with free drinks and bottles of water. Harrah's employs over 145 cocktail servers to accommodate its guests beverage needs in an effort to keep the guest on the gambling floor. Holt Dep., Ex. B, 14:7-22; Exs. C, D, E. To accomplish this, the cocktail servers walk around the casino, including the common area. Patrons may also carry around free bottles of water, with the Harrah's logo on the bottle, and drinks, purchased and/or complimentary, on the concourse and throughout the casino. Id. Ex. F.

To the extent the mode of operation theory does not apply to Harrah's, Plaintiff disputes Harrah's notice claim, arguing that in addition to EVS, the casino has camera surveillance everywhere. The camera that captured the spill and subsequent fall appears to zero in on an individual at the 5:22 mark, which Plaintiff claims suggests human manipulation and therefore imputes notice upon the casino.

II. Summary Judgment Standard

A court will grant a motion for summary judgment 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, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) ); accord Fed. R. Civ. P. 56 (c). Thus, this Court will enter summary judgment only when “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 judgment as a matter of law.” Fed. R. Civ. P. 56 (c).

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, 106 S.Ct. 2505, 91 L.Ed.2d 202 (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, 106 S.Ct. 1348, 89 L.Ed.2d 538 (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, 106 S.Ct. 2548, 91 L.Ed.2d 265 (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 party must identify specific facts and affirmative evidence that contradict those offered by the moving party. Anders o n, 477 U.S. at 256–57, 106 S.Ct. 2505. 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, 106 S.Ct. 2548.

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, 477 U.S. at 249, 106 S.Ct. 2505

. Credibility determinations are the province of the finder of fact. Big Apple BMW, Inc. v. BMW of N. Am., Inc., 974 F.2d 1358, 1363 (3d Cir.1992).

III. Analysis

“In negligence cases under New Jersey law, a plaintiff must establish that defendant breached a duty of reasonable care, which constituted a proximate cause of plaintiffs injuries.” Keith v. Truck Stops Corp. of Am., 909 F.2d 743, 745 (3d Cir.1990)

. “It is well recognized that the common law imposes a duty of care on business owners to maintain a safe premises for their business invitees because the law recognizes that an owner is in the best position to prevent harm.” Stelluti v. Casapenn Enterprises, LLC, 203 N.J. 286, 1 A.3d 678, 691 (N.J.2010). “Ordinarily an injured plaintiff asserting a breach of that duty must prove, as an element of the cause of action, that the defendant had actual or constructive knowledge of the dangerous condition that caused the accident.” Nisivoccia v. Glass Gardens, Inc., 175 N.J. 559, 818 A.2d 314, 316 (N.J.2003). However, under New Jersey law, a plaintiff need not prove that element where “as a matter of probability, a dangerous condition is likely to occur as the result of the nature of the business, the property's condition, or a demonstrable pattern of conduct or incidents.” Id. In such circumstances, a plaintiff is afforded “an inference of negligence, imposing on the defendant the obligation to come forward with rebutting proof that it had taken prudent and reasonable steps to avoid the potential hazard.” Id. This is referred to as the “mode-of-operation rule.” See id.(finding that when the very nature of a business's operation creates the hazard, the “mode-of-operation rule” creates an inference of negligence and “shifts the burden to the defendant to ‘negate the inference by submitting evidence of due care’ ” (quoting Bozza v. Vornado, Inc., 42 N.J. 355, 200 A.2d 777, 780 (N.J.1964) ); Wollerman v. Grand Union Stores, Inc., 47 N.J. 426, 221 A.2d 513, 514–15 (N.J.1966) (the rule requires the defendant to show it did “all that a reasonably prudent [person] would do in light of the risk of injury [the mode of operation] entailed”). A defendant may then avoid liability if it shows that it did “all that a reasonably prudent man would do in the light of the risk of injury [the] operation entailed.” Nisivoccia, 175 N.J. 559, 818 A.2d at 317 (citation omitted). “The ultimate burden of persuasion remains, of course, with the plaintiff.” Id.

In Prioleau

the New Jersey Supreme Court reestablished the narrow application of the mode of operation rule, limiting its application to the setting of a “self service” business. Prioleau, 223 N.J. 245, 122 A.3d 328. Prioleau was a patron at a fast food restaurant who fell on a liquid substance as she walked from the counter toward the restroom. The trial court instructed the jury to consider the “mode of operation” rule. The New Jersey Supreme Court reversed, holding that the “mode of operation” jury instruction was inappropriately applied because there was no evidence that the location of plaintiffs fall had any nexus to the self-service beverage component of the defendants' business. Id.

The Court set forth four principles governing application of the mode of operation rule:

(1) First, the mode-of-operation doctrine has never been expanded beyond the self-service setting, in which customers independently handle merchandise without the assistance of employees or may

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