Nelson v. Harrah's Atl. City Operating Co.

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ERICKA NELSON, Plaintiff, v. HARRAH'S ATLANTIC CITY OPERATING COMPANY, LLC D/B/A HARRAH'S RESORT ATLANTIC CITY and JOHN DOES 1-10, Defendants.

No. 1:20-cv-18602

United States District Court, D. New Jersey

August 12, 2022

OPINION

Hon Joseph H. Rodriguez, USDJ

Plaintiff Ericka Nelson (“Nelson”) sued Defendant Harrah's Atlantic City Operating Company, LLC D/B/A Harrah's Resort Atlantic City (“Harrah's”) for negligence after Nelson slipped and suffered injuries while walking through Harrah's Atlantic City casino. Harrah's moved for summary judgment, arguing principally that Harrah's had no actual or constructive notice of the hazard that caused Nelson's fall. Fact issues preclude the Court from granting Harrah's motion.

I. Introduction

Harrah's is a Delaware corporation with a principal place of business in Nevada. [Dkt. 1 ¶ 15]. Harrah's owns and operates a casino in Atlantic City, New Jersey. Nelson, a resident of Burlington County, New Jersey, was a guest at the casino. [Dkt. 1 ¶ 15; Dkt. 1-2, Am. Compl. ¶ 1]. Nelson claims that, on April 1, 2018, around 4:45 a.m., she stepped on a wet substance while walking through a casino hallway slipped, fell to the ground, and was injured.

[Dkt. 30, Harrah's SUMF ¶ 1].^[1] Nelson testified that she could not see the substance on the floor when she stepped in it but determined while on the ground that the substance appeared to be vomit. [Harrah's SUMF ¶¶ 1, 3, 6; Nelson's SUMF ¶ 25].

Approximately fifteen minutes before Nelson's accident, a surveillance camera zoomed in on and moved to track the movements of another patron (“Patron X”) as he passed through the same hallway with two other individuals. [See Dkt. 30, Exh. D; Dkt. 38, Nelson's SUMF ¶¶ 1115]. The surveillance video shows that Patron X was staggering. Patron X also leaned on and had his arm around one of the other individuals. When Patron X reached the same approximate location in the hallway where Nelson slipped, Patron X bent forward and directed his face toward the floor for approximately one second. When Patron X took his next step forward, Patron X's foot slipped. Nelson contends that this surveillance video appears to show that Patron X vomited on the floor approximately fifteen minutes before Nelson's accident. [See Nelson's SUMF ¶¶ 12-14]. Harrah's agrees that vomit was on the floor approximately fifteen minutes before Nelson slipped and cites the surveillance video as evidence. [Harrah's SUMF ¶ 4]. Harrah's both disagrees that the surveillance video shows Patron X appearing to vomit on the floor, [Dkt. 42-1, Harrah's Resp. to Nelson's SUMF ¶ 12], and agrees that Patron X “might have spit up/vomit” on the floor. [Dkt. 30 at 9].

Nelson filed this lawsuit in the New Jersey Superior Court, Burlington County asserting a single count of negligence against Harrah's. [See Dkt. 1-2, Am. Compl.]. Harrah's removed the case to federal court based on diversity of citizenship under 28 U.S.C. § 1332. [See Dkt. 1]. After discovery,^[2] Harrah's moved for summary judgment. [Dkt. 30].

II. Jurisdiction

The Court has jurisdiction over this case under 28 U.S.C. § 1332.

III. Standard of Review

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 (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 (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).

The moving party has the initial burden to demonstrate the absence of a genuine issue of material fact. Celotex Corp, 477 U.S. at 323. 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. Anderson, 477 U.S. at 256-57.

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.

IV. Analysis

Harrah's contends that Nelson's negligence claim cannot survive summary judgment. “To sustain a cause of action for negligence, a plaintiff must establish four elements: ‘(1) a duty of care, (2) a breach of that duty, (3) proximate cause, and (4) actual damages.'” Townsend v. Pierre, 110 A.3d 52, 61 (N.J. 2015) (quoting Polzo v. Cnty. of Essex, 960 A.2d 375 (N.J. 2008)).^[3] “The common law imposes a duty of care on business owners to maintain safe premises for their customers.” V.C. by Costello v. Target Corp., 454 F.Supp.3d 415, 424 (D.N.J. 2020) (citing Nisivoccia v. Glass Gardens, Inc., 818 A.2d 314 (N.J. 2003)). This duty requires business owners to take “reasonable care to guard against any dangerous conditions on his or her property that the owner either knows about or should have discovered. That standard of care encompasses the duty to conduct a reasonable inspection to discover latent dangerous conditions.” Hopkins v. Fox & Lazo Realtors, 625 A.2d 1110, 1113 (N.J. 1993) (citing Handleman v. Cox, 187 A.2d 708 (N.J. 1963)). “Ordinarily an injured plaintiff asserting a breach of that duty must prove .. that the defendant had actual or constructive knowledge of the dangerous condition that caused the accident.” Nisivoccia, 818 A.2d at 316 (citing Brown v. Racquet Club of Bricktown, 471 A.2d 25 (N.J. 1984)).

To determine whether a business owner knew or should have known of a foreign substance on a floor in a slip-and-fall case, courts consider (1) whether there was a hazardous foreign substance on the floor; (2) whether there is direct evidence of the business's actual or constructive knowledge of the hazard; and (3) if there is no direct evidence, whether the hazard was “on the floor long enough to give management or employees constructive notice” of the hazard. David by Berkeley v. Pueblo Supermarket of St. Thomas, 740 F.2d 230, 233-34 (3d Cir. 1984). “The mere ‘[e]xistence of an alleged dangerous condition is not constructive notice of it.” Arroyo v. Durling Realty, LLC, 78 A.3d 584, 586 (N.J.Super.Ct.App.Div. 2013) (quoting Sims v. City of Newark, 581 A.2d 524 (N.J.Super. Ct. Law Div. 1990)).

Harrah's does not dispute that there was vomit on the casino floor or that Nelson slipped on the vomit. Harrah's only argues that it is entitled to summary judgment because Nelson has no direct or circumstantial evidence that Harrah's knew or should have known of the vomit on the floor. [Dkt. 30 at 8]. Harrah's points out that Nelson herself testified that she was unable to see the vomit on the floor, [Dkt. 30 at 11-12], and that there is no evidence that anyone notified Harrah's staff of the hazard. [Dkt. 30 at 8].

Nelson responds that the available evidence creates a fact question as to whether Harrah's knew or should have known of the vomit on the floor. With respect to Harrah's actual knowledge, Nelson argues that surveillance footage shows that someone at Harrah's “manually operated the camera recording [Patron X] as he walked down the hallway, vomited on the floor, and then slid on his vomit.” [Dkt. 38-1 at 4].^[4] Nelson argues that the “obvious, and perhaps irrefutable inference” from the security video is that “someone was operating the surveillance camera for [Harrah's] during the creation of the dangerous condition, and manipulating the camera to record [Patron X] as he made the dangerous condition.” [Dkt. 48 at 2]. Nelson also points out that Harrah's does not dispute that it “did not clean the floor or provide any warning of the dangerous condition” before Nelson slipped. [Dkt. 38-1 at 4]. Nelson concludes that Harrah's knew that there was vomit on the floor which Harrah's failed to clean before Nelson slipped.^[5] In reply, Harrah's argues that the security video provides no evidence that Harrah's knew of the dangerous condition and that it is “pure speculation” that Harrah's employees operated the security camera. [Dkt. 42 at 5].

As the parties' arguments demonstrate, the issue is whether the fact that “someone” was operating the security camera when Patron X vomited on the floor, without more permits an inference that Harrah's actually knew of the hazard. David by Berkeley v. Pueblo Supermarket of St. Thomas is instructive on this point. 740 F.2d 230 (3d Cir. 1984). In that case, the Third Circuit ruled on an appeal of plaintiff's verdict in a slip-and-fall action and found that there was no evidence of actual knowledge presented at trial. Id. at 236. The plaintiff was...