Safar v. Cox Enters., Inc.

Decision Date12 August 2013
Docket NumberCivil Action No. 10-3069 (JLL)
CourtU.S. District Court — District of New Jersey
PartiesOMAR SAFAR & SEVEEM SAFAR Plaintiffs, v. COX ENTERPRISES, INC., et al. Defendant.

NOT FOR PUBLICATION

OPINION

LINARES, District Judge.

This matter comes before the Court by way of Defendant Manheim Remarketing, Inc. ("Defendant")'s motion for summary judgment. The Court has considered the submissions made in support of and in opposition to Defendant's motion and decides this matter without oral argument pursuant to Federal Rule of Civil Procedure 78. For the reasons set forth below, Defendant's motion is DENIED.

I. INTRODUCTION

This action arises out of a slip and fall incident at Defendant's Manheim Auto Auction facility (the "facility") in Newburgh, New York on June 20, 2007. On June 16, 2010, Plaintiffs Omar Safar ("Safar") and Seveem Safar filed a two-count complaint alleging causes of action for negligence and loss of consortium. Defendant moved for summary judgment on June 7, 2013.

II. FACTUAL BACKGROUND1

On the morning of June 20, 2007, Safar entered the facility to attend an auto auction. (Def. Statement of Undisputed Material Facts ("SUMF") at ¶¶ 1, 5.) Upon entering the facility, Safar turned to his right and walked to a badge machine to obtain a bidder's badge to participate in the auction process. (Pl. Supp. SUMF at ¶ 67.) Because the badge machine was out of order, Safar walked to a counter adjacent to the badge machine to obtain a bidder's badge from an auction representative. (Id.) As Safar walked to the counter, he slipped and fell, landing on his right elbow and sustaining injuries. (Id.)

National Weather Service observations and Doppler radar images confirm that on the evening before the alleged incident, there was rain in the Newburgh, New York area. (See Pl. Supp. SUMF at ¶ 62; Def. Resp. SUMF at ¶ 62.) The rain continued to fall intermittently until between 8:00 and 8:30 a.m on June 20, 2007. (Id.) According to Safar's weather expert, Frank Lombardo, approximately .20-.50 inches of rain fell between 10:00-10:30 p.m. on June 19, 2007 and 8:00-8:30 a.m. on June 20, 2007. (Pl. Supp. SUMF at ¶ 64, citing Lombardo Expert Rep. at 5.)2

After Safar's fall, Karl Kilpatrick—an employee of Defendant—generated a Customer Accident / Injury Report. (Pl. Supp. SUMF at ¶ 65.) In said Customer Accident / Injury Report,Kilpatrick noted that there was "rain outside" and that the "floor [of the facility's lobby was] not wet or slippery." (Anzalone Cert., Ex. B.)

Two witnesses who observed Safar's fall contradict Kilpatrick's assertion that the floor of the facility's lobby was not wet. Amjah Kaddourgh—an acquaintance of Safar—testified that the area around which Safar fell was wet and contained scattered footprints. (See Pl. Supp. SUMF ¶ 68, citing Anzalone Cert., Ex. E.) After Safar fell, Kaddourgh claims that he retrieved some of Safar's belongings from the floor which were wet. (Id.) According to Kaddourgh, workers placed two yellow "caution/ wet floor" signs in the lobby after Safar fell; these signs were purportedly not in the lobby prior to Safar's fall. (Id. at ¶ 69.) Kaddourgh further testified that he did not see any rubber mats or runners in front of the door through which he and Safar entered the facility. (Id. at ¶ 70.)

David Finnegan—an independent witness—made a statement noting that Safar lay "in a puddle of water" after he fell. (Pl. Supp. SUMF at ¶ 73.) Finnegan also noted that upon arriving at the facility via the door to his far right, there was no throw rug or runner in front of the door. (Id. at 72.)

Kathleen Giordano—another employee of Defendant—testified that while there were four entrances to the lobby area of the facility, the interior floor area in front of only three of those entrances had a mat in front of same, and that the door through which Safar entered was missing a mat. (Pl. Supp. SUMF at ¶ 85; Def. Resp. SUMF at ¶ 85.) Giordano also testified that it was Defendant's policy to place additional floor mats in the lobby when there was inclement weather for "drippings of feet and stuff and to place "caution, wet floor" signs in the entrance to the lobby to warn patrons of the potential slippery lobby floor and "prevent slippage from wet flooring." (Pl. Supp. SUMF at ¶ 86, citing Anzalone Cert., Ex. G.)

At the time of Safar's fall, the facility's lobby was equipped with a closed circuit surveillance video camera. (Def. SUMF at ¶ 2.) This camera recorded the area where Safar fell for approximately a half hour before Safar's fall and its immediate aftermath. (Id.) According to Defendant, the camera recorded a number of patrons entering and walking through the lobby prior to Safar's fall without incident. (See id. at ¶¶ 6-55.) Further, Defendant asserts that the video footage does not show anyone "carrying a rain jacket, umbrella, dripping wet, or who appears to be dressed in a manner that would protect against rainy conditions." (Id. at ¶ 61.) Safar's engineering expert—John S. Posouney, P.E.—has averred that "the subject surveillance video in this matter is not in real time." (Pl. Supp. SUMF at ¶ 89.) Posouney has further averred that, based on his review of the surveillance video, there was no long floor mat in the front of the right side door that Plaintiff used to enter the facility.

II. LEGAL STANDARD

A court "shall grant summary judgment if the movant shows 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). An issue is "'genuine' . . . if the evidence is such that a reasonable jury could return a verdict for the non-moving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The moving party must first demonstrate that there is no genuine issue of material fact in dispute, such that a grant of summary judgment would be appropriate. See Celotex v. Catrett, 477 U.S. 317, 325 (1986). To do so, "the moving party must show that the non-moving party has failed to establish one or more essential elements of its case on which the non-moving party has the burden of proof at trial." McCabe v. Ernst & Young, 494 F.3d 418, 424 (3d Cir. 2007). If the moving party satisfies this burden, the burden shifts to the non-moving party to point to sufficient evidence that creates genuine issues of disputed material fact "such that a reasonablejury could find in its favor." Id.; see also Celotex, 477 U.S. at 332. "While the evidence that the non-moving party presents may be either direct or circumstantial, and need not be as great as a preponderance, the evidence must be more than a scintilla." Hugh v. Butler County Family YMCA, 418 F.3d 265, 267 (3d Cir. 2005). In deciding whether there are any genuine issues of disputed material fact, courts must "view the facts in the light most favorable to the nonmoving party and draw all inferences in that party's favor." Farrell v. Planters Lifesavers Co., 206 F.3d 271, 278 (3d Cir. 2000) (citation omitted). "Thus, if a reasonable fact finder could find in the nonmovant's favor, then summary judgment may not be granted." Norfolk Southern Ry. Co. v. Basell USA Inc., 512 F.3d 86, 91 (3d Cir. 2008).

III. JURISDICTION

This Court has jurisdiction over this matter pursuant to 28 U.S.C. § 1332, as complete diversity exists between Plaintiffs and Defendant.3

IV. DISCUSSION

"To prevail on a negligence claim under New Jersey law,4 a plaintiff must establish the following four elements: (1) duty of care; (2) breach of duty; (3) proximate cause; and (4) actual damages." Brown v. United States, No. 08-3382, 2010 U.S. Dist. LEXIS 63521, at *9 (D.N.J. June 25, 2010) (citing Weinberg v. Dinger, 106 N.J. 469, 484 (1987)). "The existence of a duty is a question of law to be determined by a judge and, ultimately, is a question of fairness and policy." Arvanitis v. Hios, 707 N.J. Super. 577 (App. Div. 1998) (citing Snyder v. AmericanAss'n of Blood Banks, 144 N.J. 269, 292 (1996)). "Ordinarily, on the other hand, whether there was a breach of the duty, foreseeability, and proximate cause are issues 'peculiarly within the competence of the jury.'" Arvanitis, 707 N.J. Super, at 582 (quoting Anderson v. Sammy Redd & Assocs., 278 N.J. Super. 50, 56 (App. Div. 1994)).

In its brief in support of its motion for summary judgment, Defendant appears to argue that Safar cannot satisfy the breach and causation elements of a negligence claim because: (1) "no dangerous condition was present at the time [of Safar's fall]" and (2) Defendant had no "constructive or actual notice of an alleged dangerous condition." (See, e.g., CM/ECF No. 29-2 at 16, 19.)5

A. Whether a Reasonable Trier of Fact may Find that a Dangerous Condition Existed on the Floor of the Facility's Lobby

Defendant maintains that the "video evidence demonstrate[s] . . . that the alleged dangerous condition never existed on the lobby floor." (CM/ECF No. 29-2 at 19.) While Defendant concedes that there is contradictory testimonial evidence, it argues that this Court should disregard this evidence in light of the video footage. In so doing, Defendant relies primarily on Scott v. Harris, 550 U.S. 372 (2007).

In Scott, a police officer attempted to "stop a fleeing motorist from continuing his public-endangering flight by ramming the motorist's car from behind." Id. at 374. After ramming the rear of the motorist's vehicle, the vehicle overturned and crashed, causing the motorist to suffer injuries which rendered him a quadriplegic. Id. at 375. The motorist filed suit under 42 U.S.C. § 1983, alleging that the officer used excessive force resulting in an unreasonable seizure under the Fourth Amendment. Id. at 375-76. The motorist maintained that contrary to the police officer'sversion of the facts, his driving posed little threat to pedestrians and other motorists, as he was driving cautiously. See id. at 379. The U.S. Supreme Court rejected the motorist's version of events because a videotape confirmed that his vehicle was "racing...

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