Vanesko v. Marina Dist. Dev. Co.
| Decision Date | 05 August 2014 |
| Docket Number | Civil Action No. 13–01181. |
| Citation | 38 F.Supp.3d 535 |
| Court | U.S. District Court — Eastern District of Pennsylvania |
| Parties | Kristopher VANESKO v. MARINA DISTRICT DEVELOPMENT COMPANY, LLC et al. |
Steven L. Chung, The Philadelphia Injury Law Group, Philadelphia, PA, for Kristopher Vanesko.
Plaintiff Kristopher Vanesko sued defendant Marina District Development Company, LLC (“MDDC”), d/b/a the Borgata and defendant Strike Force Protective Services, Inc. after he was injured during a Stone Temple Pilots (“STP”) concert at the Borgata on August 6, 2011. Plaintiff claims that defendants negligently breached their duties of care to protect him from foreseeable injury. Presently before me are defendant MDDC's motion for summary judgment , defendant Strike Force's motion for summary judgment (Dkt. No. 22) and plaintiff's answer thereto (Dkt. No. 25). For the following reasons I will deny Strike Force's motion and grant MDDC's motion.
While attending a STP concert at the Borgata in Atlantic City, New Jersey on August 6, 2011, plaintiff allegedly suffered “serious and permanent injuries including but not limited to [injuries to] his left knee ....” which “require [ed] two (2) surgeries.” Dkt. No. 25 at ECF p. 1, 2, 5–6. He brings this negligence suit against protective services company Strike Force and venue company MDDC, claiming that defendants breached their duties of care proximately causing his foreseeable injuries. Plaintiff claims that Strike Force provided guards for the event, but inadequately trained its employees. Dkt. No. 25 at ECF p. 16. Plaintiff also claims that MDDC negligently omitted to confirm that Strike Force provided the appropriate number of licensed guards. Id. at 17.
Plaintiff's claimed injuries occurred when he was, in his words, “knocked over” while standing near the front of the venue trying to take a photograph of the band. See Dkt. No. 25–7 at ECF p. 18–21. Plaintiff described the incident in his deposition:
Id. at 3, 21. Plaintiff also stated in his deposition that prior to his fall he felt safe approaching the front of the venue and that the floor area of the event was crowded but typical for a concert. See id. at 19.
Since March 2009, MDDC has contracted with independent security company Strike Force to provide protective services for events held at the Borgata on an event by event basis.1 See Dkt. No. 25–3 at ECF p. 12–15. The contract between them stipulates that Strike Force “recognizes that it is engaged by MDDC as an independent contractor and acknowledges that all persons performing Services hereunder shall be employees or agents of [Strike Force]....” Id. at 5. In addition to requiring that Strike Force provide security during the show, the contract also required that prior to each event “Strike Force [ ] make recommendations to MDDC as to the appropriate security staffing levels ...” and that after each event, Strike Force provide post-event documentation including sign in/sign out sheets for all security personnel and incident reports. Id. at 14. At the STP concert, MDDC also supplied Strike Force with a 2–way radio “in order [for Strike Force] to communicate with MDDC Command Post....” Dkt. No. 25–2 at ECF p. 11; see also Dkt. No. 25–3 at ECF p. 14.
According to the deposition of Strike Force supervisor William Anderson, prior to the STP concert the Borgata provided Strike Force with an Entertainment Schedule that called for Strike Force to employ twenty-eight guards and two supervisors at the show.2 See Dkt. No. 25–2 at ECF p. 19; Dkt. No. 25–3 at ECF p. 21. It is undisputed, however, that the STP concert was staffed with only twenty-seven guards and two supervisors. See Dkt. No. 25–3 at ECF p. 21. Plaintiff and his expert claim that the absent additional guard could have been assigned to roam the concert floor area and if the guard had been on the floor he or she would have been in an opportune position to prevent plaintiff's injuries.3 See Dkt. No. 25–9 at ECF p. 12. Anderson testified that, before the concert, he did not instruct the guards assigned to the concert to monitor the floor area to ensure it did not get too crowded. Dkt. No. 25–2 at ECF p. 52:23–53:5.
Plaintiff's expert also submits that the Strike Force guards who worked the STP event were inadequately trained and in some cases unlicensed. See Dkt. No. 25–9 at ECF p. 24, 28. As of 2008, minimum licensing is required by the New Jersey Security Officer/Industry Registration Act (“SORA”) and a mandatory standardized 24–hour training is required for all security practitioners.4 See Dkt. No. 25 at ECF p. 9. Of the twenty-nine employees that Strike Force staffed the STP concert with, the record provides evidence demonstrating that up to seven guards were not licensed at the time of the STP concert and that one guard was working his first job and had been issued a temporary license immediately prior to the show. See Dkt. No. 25–9 at ECF p. 16; Dkt. No. 26 at ECF p. 1. Anderson's deposition further revealed that Strike Force does not provide its guards with any training beyond that required by SORA and that it is Strike Force policy that so long as a guard is SORA certified he or she can work. See Dkt. No. 25–2 at ECF p. 6. Plaintiff's expert, however, found the SORA training “simply inadequate to train a security officer for Event Security.” Dkt. No. 25–9 at ECF p. 19. Plaintiff's expert concluded that plaintiff's injuries “should have been [ ] avoidable [ ] had Strike Force Protective Services properly planned, managed and supervised the event.” Id. at 22.
Defendants counter that plaintiff's injuries were unforeseeable and could not have been prevented. See Dkt. No. 22 at ECF p. 6–10; Dkt. No. 23 at ECF p. 6–13. They contend that summary judgment should be granted in their favor because they did not breach their duties of care and even if so, their alleged breaches could not have thwarted plaintiff's unforeseeable injuries. See id.
Summary judgment will be granted “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 Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The party moving for summary judgment bears the burden of demonstrating 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) ; see Celotex, 477 U.S. at 322–23, 106 S.Ct. 2548. If the movant sustains its burden, the nonmovant must set forth facts demonstrating the existence of a genuine dispute. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). A dispute as to a material fact is genuine if “the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Id. A fact is “material” if it might affect the outcome of the case under governing law. Id.
To establish “that a fact cannot be or is genuinely disputed,” a party must:
Fed.R.Civ.P. 56(c)(1). The adverse party must raise “more than a mere scintilla of evidence in its favor” in order to overcome a summary judgment motion and cannot survive by relying on unsupported assertions, conclusory allegations, or mere suspicions. Williams v. Borough of W. Chester, 891 F.2d 458, 460 (3d Cir.1989). The “existence of disputed issues of material fact should be ascertained by resolving all inferences, doubts and issues of credibility against” the movant. Ely v. Hall's Motor Transit Co., 590 F.2d 62, 66 (3d Cir.1978) (citations and quotation marks omitted).
DISCUSSION
In order to prevail on a negligence cause of action in both Pennsylvania and New Jersey, plaintiff must prove: (1) that defendants owed him a duty of care; (2) that defendants breached their duties; and (3) that defendants' breaches proximately caused his injuries.5 See Robinson v. Vivirito,
217 N.J. 199, 86 A.3d 119, 124 (2014) (); Merlini ex rel. Merlini v. Gallitzin Water Auth., 602 Pa. 346, 980 A.2d 502, 506 (2009) (same). A plaintiff must demonstrate the existence of all three elements to prevail on his claim. See id.
Strike Force does not dispute that it had a duty to protect plaintiff from foreseeable injury. Dkt. No. 22 at ECF p. 7. Strike Force's duty is grounded in traditional negligence principles, which determination is ultimately grounded in “ ‘a question of fairness and public policy’ that implicates many factors.” J.S. v. R.T.H. , 155 N.J. 330, 714 A.2d 924, 928 (1996), quoting Clohesy ex rel. Dalton v. Food Circus Supermkts., Inc., 149 N.J. 496, 694 A.2d 1017, 1020 (1997). In...
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