Opinion
DOCKET NO. A-1912-14T3
07-29-2016
MICHAEL BERNSTEIN, Plaintiff-Appellant, v. MARINA DISTRICT DEVELOPMENT COMPANY, LLC, d/b/a BORGATA HOTEL CASINO AND SPA, Defendant-Respondent.
Jerry C. Goldhagen argued the cause for appellant. Gerard W. Quinn argued the cause for respondent (Cooper Levenson, P.A., attorneys; Mr. Quinn, on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Sabatino, Accurso and Suter. On appeal from Superior Court of New Jersey, Law Division, Atlantic County, Docket No. L-107-13. Jerry C. Goldhagen argued the cause for appellant. Gerard W. Quinn argued the cause for respondent (Cooper Levenson, P.A., attorneys; Mr. Quinn, on the brief). PER CURIAM
Plaintiff Michael Bernstein appeals from a summary judgment dismissing his premises liability complaint against defendant Marina District Development Company, LLC, d/b/a Borgata Hotel Casino and Spa. We affirm.
Viewed in the light most favorable to plaintiff, the facts are as follows. Plaintiff, a professional poker player, took a taxi to meet a friend at the Borgata, where they planned to play poker. Plaintiff's friend said he would be parked in the Borgata's rear surface lot, and plaintiff asked the taxi driver to take him to that back lot. The taxi let him off just outside the entrance. Plaintiff knew his friend would be in a Jeep SUV, and he was looking for it. The day was sunny and pleasant. The lot was not crowded, and plaintiff quickly spotted his friend's car, parked inside the lot, not far from the entrance.
Plaintiff was unfamiliar with the lot. Instead of walking along a sidewalk into the parking lot, plaintiff took a more direct route toward his friend's car, walking "the wrong way" up the vehicle exit lane. He did not notice the concrete barrier dividing the entry and exit lanes at the entrance to the lot, or the mechanized parking gate arms on either side of that barrier regulating traffic in and out of the lot. He claims the metal box housing the mechanics of the gate arm regulating the exit lane was obscured by a fence enclosing the parking lot and that the gate arm was in the upright position and thus also obscured as he entered the lot.
A surveillance video, submitted to the motion judge and included in the record on appeal, shows plaintiff walking up the middle of the exit lane as a jitney exits the parking lot. The gate arm rises to let the jitney pass and plaintiff steps onto the grass along the fence to get out of its way. After the jitney passes his position, plaintiff steps back into the roadway and crosses into the parking lot where he is struck by the descending gate arm closing behind the jitney.
Defendant maintains the video shows plaintiff "after dodging the jitney which was leaving the lot, actually picked up his speed in order to try and 'beat' the gate as it was coming down." Plaintiff, although allowing he "may have picked up his pace a bit" when he saw his friend, maintains he "did not see any gate arm in an up or down position at the time he was walking straight forward" into the parking lot.
Staff of the Borgata referred to the gate that injured plaintiff as the "jitney exit" as it was designed for and limited to jitneys entering or exiting the property. Jitney operators would raise the gates with a remote control, and the gates would close automatically after the jitney passed through. The gates could not be accessed by members of the general public driving their own cars. The gate arms suffered routine damage from jitney drivers not waiting for the gate to open completely before attempting to pass through or attempting to follow immediately behind another jitney without using the remote control.
The gate mechanism had no audible warning or flashing lights. There was also no padding on the jitney gate arm that injured plaintiff, although Borgata padded other parking gate arms on its property. The arm was painted with warning stripes, but only on the side the jitney driver would see exiting the lot. The warning against pedestrian traffic on the yellow metal box housing the gate operating mechanism was faded and illegible. There was also no sign warning against entering the lot via the exit lane plaintiff used to gain entry. Although there was a sidewalk running parallel to the entrance lane, the closest crosswalk in the area was 100 to 150 yards away from the gate.
After hearing argument, Judge Savio granted Borgata's motion for summary judgment dismissing plaintiff's complaint, alleging negligence and seeking compensatory and punitive damages, in its entirety. The judge began his opinion by noting the principles neither party disputed, that "legally a business owner like the defendant is under a duty to discover and eliminate dangerous conditions, to maintain the premises in safe conditions, and to avoid creating a condition that would render the premises unsafe." He also made clear he was ignoring the dispute over whether plaintiff quickened his pace to "beat" the gate. That dispute, the judge found, was relevant only to plaintiff's comparative negligence, an issue irrelevant to whether Borgata breached a duty it owed plaintiff.
Turning first to plaintiff's "mode of operation" claim, the judge found:
I think that the mode of operation eliminates the need to demonstrate actual or constructive notice, but it's only available in situations where, as a matter of probability a dangerous condition is likely to occur as a result of the nature of the business that — that's being done on the property, i.e. the produce aisle in a supermarket where there's customers that are using or . . . taking produce off the shelf and it's foreseeable that the customers would drop slippery items onto the floor. That's mode of operation. In that situation the burden shifts to the defendant to show that the steps that it took were reasonable steps to avoid the hazard. It's common fact pattern that I see in the case law is that the patron can select and remove items of merchandise from the premises without intervention from the employee or of the storekeeper. That's not the situation here. I think that the law requires that the plaintiff, in addition to establishing the existence of a dangerous condition on Borgata's property, is also required to establish actual or constructive notice of that dangerous condition by Borgata.
The judge turned next to address whether the Borgata had actual and constructive notice of a dangerous condition of its property presented by the jitney exit and whether plaintiff needed an expert to establish the appropriate standard of care "with respect to the maintenance and the warnings that should have been placed on an apparatus with an arm that goes up and down to let vehicles in and out of a parking lot" and on his theory that the parking lot was negligently designed. Noting that N.J.R.E. 702 requires expert testimony whenever the subject matter is so esoteric a juror of common judgment and experience could not form a valid judgment as to the reasonableness of the defendant's conduct, the judge concluded "expert testimony is required to establish what is standard in the industry and to establish that what was being done at Borgata at the time of the plaintiff's injury was not consistent with what is standard in the industry."
Addressing Borgata's actual or constructive notice of the alleged dangerous condition presented by the jitney gate, the judge found
there is no evidence of actual notice of any dangerous condition. . . . It is not enough to establish that vehicles going in and out of this parking lot were struck over a period of time to charge the business owner with the responsibility of . . . determining — [a]nd I understand foreseeability, but I'm focusing on actual . . . notice here, charging the business owner with the responsibility of determining that there's a dangerous condition because a pedestrian may be struck by the arm.
I don't see any evidence of actual notice. The fact that there is a dangerous condition, in and of itself, does not establish constructive notice of the dangerous condition. There has to be knowledge or some chargeable knowledge on the part of the defendant that there was a dangerous condition on the property for a sufficient period of time prior to the plaintiff's injury for the . . . property owner to have taken steps to correct that dangerous condition. There is no evidence of that in this case. So for all of those reasons I'm going to grant the application for summary judgment. I've determined that the plaintiff, without an expert, cannot state a cause of action requiring a jury to resolve. . . .
On appeal, plaintiff contends that whether Borgata's actions or omissions were negligent are factual issues for a jury, that no expert witness was required to find Borgata negligent on the facts, and that Borgata could be held liable for punitive damages. We disagree.
We review summary judgment using the same standard that governs the trial court. Murray v. Plainfield Rescue Squad, 210 N.J. 581, 584 (2012). Thus, we consider "whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law." Liberty Surplus Ins. Corp., Inc. v. Nowell Amoroso, P.A., 189 N.J. 436, 445-46 (2007) (quoting Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 536 (1995)). In considering application of the law to the facts adduced on the motion, our review is de novo without deference to any interpretive conclusions we believe mistaken. Nicholas v. Mynster, 213 N.J. 463, 478 (2013); Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995). Applying those principles here, we agree with the trial court that summary judgment was appropriate.
In order to establish Borgata's liability, plaintiff needed to show "(1) a duty of care, (2) a breach of that duty, (3) actual and proximate causation, and (4) damages." Jersey Cent. Power & Light Co. v. Melcar Util. Co., 212 N.J. 576, 594 (2013). Because this is a premises liability case and the parties agreed as to plaintiff's status as a business invitee, see Rowe v. Mazel Thirty, LLC, 209 N.J. 35, 43 (2012), Borgata owed plaintiff "a duty of reasonable care to guard against any dangerous conditions on [its] property that the owner knows about or should have discovered. That standard of care encompasses the duty to conduct a reasonable inspection to discover latent dangerous conditions." Id. at 44 (quoting Hopkins v. Fox & Lazo Realtors, 132 N.J. 426, 434 (1993)).
Acknowledging there was no proof in the record of any pedestrian having previously been injured by an automated parking gate on Borgata's property, plaintiff sought to be relieved of the obligation to prove actual or constructive notice of the dangerous condition of the parking arm or design of the jitney exit by a mode of operation charge. That doctrine relieves a plaintiff of the obligation to prove actual or constructive notice of a dangerous condition when "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." Nisivoccia v. Glass Gardens, Inc., 175 N.J. 559, 563 (2003).
As the Supreme Court recently made clear, however, although the doctrine may be applicable beyond "the produce aisle of supermarkets and other facilities traditionally associated with self-service activities," it "applies only to accidents occurring in areas affected by the business's self-service operations." Prioleau v. Kentucky Fried Chicken, Inc., 223 N.J. 245, 262-64 (2015); see also Walker v. Costco Wholesale Warehouse, 445 N.J. Super. 111, 121-24 (App. Div. 2016); Troupe v. Burlington Coat Factory, 443 N.J. Super. 596, 603-04 (App. Div. 2016). Because the record demonstrated the jitney exit was limited only to jitney drivers equipped with a remote control to operate the gate, we agree with the trial court the gate is not a customer self-service aspect of Borgata's business and thus the mode of operation doctrine is inapplicable.
We also agree plaintiff required an expert to prove either of his two theories of liability, that is, that the parking gate arm was a dangerous condition which could foreseeably cause him injury or that the jitney exit was negligently designed. There is no dispute that Borgata had a duty to plaintiff to discover any dangerous condition on its property, including a defect in its automated, remote-controlled parking gate arm that would pose a safety hazard to its customers. Jerista v. Murray, 185 N.J. 175, 191 (2005). The issue was establishing the defect and Borgata's notice thereof.
Plaintiff offered no standard by which the jury could be expected to judge whether the automated parking gate was dangerous or involved an unreasonable risk of physical harm to visitors. See D'Alessandro v. Hartzel, 422 N.J. Super. 575, 580 (App. Div. 2011). He made no showing that padding on the gate arm, brighter warnings or an audible signal, all of which he asserted were "common sense" measures that would have avoided his accident, were required by any ordinance, statute, regulation, construction code or custom in the industry.
"[M]ere allegations of a design flaw or construction defect, without some form of evidentiary support, will not defeat a meritorious motion for summary judgment." Id. at 581. Although a reasonable juror could certainly be expected to appreciate that a pedestrian could be injured by a falling parking gate arm, altering the arm so as to avoid or lessen any potential impact and still allow the gate to function as intended is an engineering problem involving a complex instrumentality that jurors cannot be expected capable of solving. See Davis v. Brickman Landscaping, 219 N.J. 395, 407 (2014).
Even were we to assume the existence of the faded warning on the gate operating mechanism establishes Borgata's acknowledgment of a need to warn without expert testimony, see Kajetzke v. N.J. Bell, 241 N.J. Super. 193, 195-97 (App. Div. 1990), the result would not be different. Plaintiff testified he never saw the box housing the gate operating mechanism. If he never saw the box to which the warning was affixed, the lack of a legible warning obviously could not have been the proximate cause of the accident.
Finally, even assuming the gate created a potentially dangerous condition of which Borgata had actual or constructive notice, liability would still be precluded if plaintiff knew or had reason to know of the risk involved. See D'Alessandro, supra, 422 N.J. Super. at 581. Had plaintiff seen the concrete barrier dividing the lanes, the metal box housing the gate operating mechanism or the gate arm itself, the danger would have been obvious. To the extent he claims he did not see those things because of the configuration of the parking lot and jitney exit, his patently risky conduct in cutting through the gate, through which a jitney had just passed, instead of walking along the pedestrian sidewalk warrants the dismissal of his lawsuit. Borgata had no duty to protect plaintiff from his own inattentive and foolhardy behavior. See Matthews v. Univ. Loft Co., 387 N.J. Super. 349 (App. Div.), certif. denied, 188 N.J. 577 (2006).
Plaintiff's punitive damages point is without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION