Opinion
Civil No. 01-2920 (JBS).
August 21, 2002
Robert W. Rubinstein, Esq., Rothenberg Rubinstein, LLC, Princeton, New Jersey, Attorney for Plaintiffs.
Victor P. Wasilauskas, III, Esq., Russell L. Lichtenstein, Esq., Cooper Perskie April Niedelman Wagenheim Levenson, Atlantic City, New Jersey, Attorneys for Defendant.
OPINION
This matter comes before the Court on defendant's motion for summary judgment in a personal injury action. Defendant Trump Castle Associates, L.P., d/b/a Trump Marina Hotel Casino ("Trump Marina"), is a casino in Atlantic City, New Jersey. On July 30, 1999, plaintiff Mary Habib tripped and fell on an allegedly unleveled area of carpeting at Trump Marina, sustaining injuries. Plaintiff alleges that defendant created and/or caused to be created an uneven carpet by failing to inspect and maintain the carpet and improperly and negligently running cable underneath the carpet; the uneven carpet at Defendant's casino caused her to trip and fall; and plaintiff suffered severe personal injuries as a direct and proximate result of her fall. (Pl.'s Statement of Material Facts at 2.) Defendant counters that plaintiff cannot prove Defendant breached a duty of care owed to plaintiff, created or had actual or constructive notice of an alleged dangerous condition, or caused plaintiff's alleged injuries. Defendant further seeks dismissal of co-plaintiff Michael Habib's loss of consortium claim with prejudice. For the reasons discussed herein, defendant's motion for summary judgment will be denied.
I. BACKGROUND
A. Facts and Procedural History
Plaintiff Mary Habib ("Habib") alleges that on July 30, 1999, while walking to the cashier's counter at Trump Marina after playing the slot machines with her husband Michael Habib, co-plaintiff in this suit, and mother Florence Goldberg, she tripped over an uneven carpet and fell forward onto her knees, causing severe personal injuries. (Habib Dep. Tr. at 44:15-21; Pl.'s Statement of Facts, ¶ 2; Amended Compl. ¶ 3.) Plaintiff was carrying a shoulder handbag and a bucket of coins. (Def.'s Statement of Facts, ¶ 5; Habib Dep. Tr. at 48:3-8, Wasilauskas Cert. Ex. C.) Habib alleges that the carpet was wet, but did not notice anything else unusual at the time she fell. (Def.'s Statement of Facts, ¶ 6; Habib Dep. Tr. at 59:10-22, Wasilauskas Cert. Ex. C.) Habib alleges that an incline in the carpet caused her to fall. (Habib Aff., ¶ 2.) Neither her husband nor her mother was with Habib at the time she fell. (Pl.'s Statement of Facts, at 1.) Plaintiff alleges that when her mother returned to the area of the casino where Plaintiff fell later that evening, her mother noticed an uneven area of carpet. (Goldberg Aff., ¶ 2.) Plaintiff stipulated at oral argument that she is not alleging that the wetness of the carpet contributed to her fall.
On or around September 26, 1999, approximately two months after her fall, Habib returned to Trump Casino and noticed that Defendant's employees were lifting the carpet in the area where she had fallen and appeared to be inspecting a cable box of some kind. (Habib Aff., ¶ 3.) Because the carpet had been lifted, Habib and her mother noticed that a cable box was located underneath the carpet. (Id.; Goldberg Aff., ¶ 3.) Plaintiff does not know how long the cable box was at that location. (Habib Dep. Tr. at 65:20-24, Wasilauskas Cert. Ex. C.) Plaintiff asserts that electrical wiring caused the surface of the carpet to be uneven. (Amended Compl. ¶¶ 6, 7.)
On June 18, 2001, Plaintiff Mary Habib filed a Complaint alleging negligence against Defendant Trump Marina. (Compl.) On September 10, 2001, Mary Habib filed an Amended Complaint, adding her husband Michael Habib as a co-plaintiff and bringing an additional claim for loss of consortium. (Amended Compl.) Trump Marina filed its Answer to the Amended Complaint on September 25, 2001. On July 12, 2002, defendant Trump Marina filed the instant Motion for Summary Judgment.
On June 4, 2002, Trump Marina filed a Notice of Intent to submit a Dispositive Motion for Summary Judgment, which this Court dismissed on July 9, 2002, as untimely. On July 15, 2002, this Court rescinded the Order of July 9, 2002, and defendant's motion filed on July 12, 2002 is deemed timely.
II. DISCUSSION
A. Summary Judgment Standard
Defendant Trump Marina seeks summary judgment pursuant to Rule 56(c), Fed.R.Civ.P., which provides that summary judgment shall be granted where
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 a judgment as a matter of law.
Fed.R.Civ.P. 56(c). A dispute is "genuine" if "the evidence is such that a reasonable jury could return a verdict for the non-moving party." See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). Disputes over irrelevant or unnecessary facts will not preclude a grant of summary judgment. Id.
Further,
Inferences to be drawn from the underlying facts contained in the evidential sources submitted to the trial court must be viewed in the light most favorable to the party opposing the motion. The non-movant's allegations must be taken as true and when these assertions conflict with those of the movant, the former must receive the benefit of the doubt.Bixler v. Central Pennsylvania Teamsters Health Welfare Fund, 12 F.3d 1292, 1297-98 (3d Cir. 1993) (quoting Goodman v. Mead Johnson Co., 534 F.2d 566, 573 (3d Cir. 1976)). The threshold inquiry is whether there are "any genuine factual issues that properly can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party." Anderson, 477 U.S. at 250. The moving party always bears the initial burden of showing that no genuine issue of material fact exists, regardless of which party ultimately would have the burden of persuasion at trial. See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).
The non-moving party, here the plaintiff, "may not rest upon the mere allegations or denials of" its pleading in order to show the existence of a genuine issue. Fed.R.Civ.P. 56(e). They must do more than rely only "upon bare assertions, conclusory allegations or suspicions." Gans v. Mundy, 762 F.2d 338, 341 (3d Cir.), cert. denied, 474 U.S. 1010 (1985) (citation omitted). If the non-movant's evidence is merely "colorable" or is "not significantly probative," the court may grant summary judgment. Anderson, 477 U.S. at 249-50.
B. Plaintiffs' Negligence Claim
In order to succeed in its motion for summary judgment, Trump Marina must demonstrate that there is no genuine issue as to any material fact regarding plaintiff's claim of negligence in this case. The elements of negligence applicable to an action for personal injuries are: (1) defendant owed plaintiff a duty of care, (2) defendant breached that duty, and (3) defendant's breach caused (4) plaintiff's harm. See Dixon Ticonderoga Co. v. Estate of O'Connor, 248 F.3d 151 (3d Cir. 2001) (holding that plaintiff in legal malpractice action must prove traditional elements of negligence: existence of a duty; violation of that duty; and causation of harm); Filipowicz v. Diletto, 350 N.J. Super. 552, 558 (App.Div. 2002) (citing Conklin v. Hannoch Weisman, 145 N.J. 395, 417 (1996)).
It is undisputed that plaintiff was a business invitee of Trump Marina. See Def.'s Br. at 6; Pl.'s Statement of Material Facts, ¶ 1. A defendant property owner owes a duty to a business invitee to provide a "`reasonably safe place to do that which is within the scope of the invitation.'" Filipowicz, 350 N.J. Super. at 559 (imposing duty of reasonable care on homeowner conducting a garage sale) (quoting Butler v. Acme Markets, Inc., 89 N.J. 270, 275 (1982)). This duty includes the obligation to "`use reasonable care to make the premises safe, including the duty to conduct a reasonable inspection to discover defective conditions.'" Filipowicz, 350 N.J. Super. at 558 (citations omitted). Here, where the parties do not dispute plaintiff's invitee status, imposition of a duty of reasonable care is further consistent with defendant's conducting business on the premises and its being in the best position to be aware of any latent problems. See id. at 559 (citing Hopkins v. Fox Lazo Realtors, 132 N.J. 426, 441, 445 (1993)).
The parties dispute whether defendant breached its duty owed to plaintiff. The issue of whether there is any material dispute whether defendant demonstrated reasonable care to keep the premises safe is a close one, but one that favors denial of summary judgment. The Filipowicz case provides guidance on this issue. In that case, plaintiff had argued that the issue of whether the condition of the overgrown lawn and the obstructed drop-off at the point of her fall was defective and created an unreasonable risk of harm was an issue of material fact for the jury. The New Jersey Appellate Division held that a homeowner conducting a garage sale owed a duty of reasonable care to an invitee customer, and agreed with plaintiff that "[w]hile it is within the province of the trial court to determine the legal status of a person coming on another's land, it is the function of the jury to determine the condition of the property and the reasonableness of defendants' care, and to determine the comparative fault of each party." Filipowicz, 350 N.J. Super. at 561 (citations omitted). The Appellate Division thus reversed the trial court, holding that the determination of whether defendant exercised reasonable care is an issue to be resolved by the jury, not the judge. See id. at 562 ("A jury might reasonably find defendants' knowledge of the drop-off, display of clothes and the overgrown grass that concealed the drop-off sufficient to hold defendant responsible with notice of a potentially defective condition.").
Here, plaintiff maintains that the alleged incline in the floor was a dangerous condition and that defendant should have noticed the condition and taken steps to warn of its existence. According to plaintiff's affidavit, plaintiff's toe hit an alleged incline in the carpet, causing her to fall forward on her knees. See Mary Habib Aff., ¶ 2. In addition, plaintiff asserts that the carpet was wet and that there was a protrusion from the carpet, allegedly caused by electrical wiring. On or around September 26, 1999, plaintiff returned to the defendant casino and observed workers lifting the carpet where she had previously fallen and inspecting a cable box of some kind. See id. ¶ 3. Plaintiff has also submitted photographs of the area that she asserts supports her position that the protrusion caused the carpet to rise unexpectedly. See Rubinstein Aff. Ex. B. As inFilipowicz, this Court finds that the condition of the property and the reasonableness of defendant's care are determinations for the jury on the basis of these facts.
Defendant contends that plaintiff has come forward with no facts to support any claim that defendant failed to conduct such reasonable inspections at the time of the alleged incident. Defendant argues that the simple fact of plaintiff's trip and fall is insufficient to present this case to a jury, citingRivera v. Columbus Cadet Corps. of America, 59 N.J. Super. 445 (App.Div. 1960), and Wyatt v. Curry, 77 N.J. Super. 1 (App. Div. 1962). Both cases are distinguishable. Rivera involved an appeal from an involuntary dismissal granted at the close of plaintiff's case for insufficient evidence upon which the jury could reasonably differ and find wrongdoing as to either defendant. See Rivera, 59 N.J. Super. at 451-52 (affirming involuntary dismissal for lack of evidence from which a jury could find negligence). Wyatt involved defendant's appeal from a jury verdict in favor of plaintiff, in which the court denied defendants' motion for involuntary dismissal. Although the court stated that "[n]egligence is a fact which must be shown and which will not be presumed[,]" it affirmed the denial of the motion for involuntary dismissal, stating that "the circumstantial evidence requir[ed] determination by the jury of the issues of negligence, contributory negligence and causation." Wyatt, 77 N.J. Super. at 8.
Unlike Rivera, despite its consideration of, not summary judgment, but an appeal of an involuntary dismissal, plaintiff's negligence claim in this case does not rely solely on the fact that she fell and was injured on the premises. Rather, plaintiff alleges that at the time of her fall, her toe hit an incline in the carpet, causing her to fall. In addition, plaintiff asserts that electrical wiring underneath the carpet contributed to her fall. She also alleges that approximately two months after her fall, she saw a cable box placed underneath the carpet that created a protrusion in the carpet. Giving the non-movant plaintiff all reasonable inferences, it can be inferred that the cable box had been at that location at the time of plaintiff's fall, even though plaintiff testified in her deposition that she did not know how long the cable box had been there. It can reasonably be inferred, in the light most favorable to plaintiff, that a cable running under a carpet creates an unreasonable condition in a public area of a casino because the carpeting's subtle elevation may not be obvious to a reasonably prudent customer. Because reasonable jurors could differ as to the condition of the carpet and as to whether defendant failed to exercise reasonable care in maintaining its premises, this factual allegation regarding a protrusion from the carpet and the inference of the cable box as its possible cause present disputed issues of material fact sufficient to overcome summary judgment. Accordingly, defendant's motion will be denied on this ground.
Defendant contends also that plaintiff has failed to prove that a dangerous condition existed in the area where plaintiff was injured, citing to Zentz v. Toop, 92 N.J. Super. 105, 112 (App. Div. 1966), aff'd, 50 N.J. 250 (1967), for the proposition that it takes more than the mere showing of an incident causing injury to plaintiff to find a condition to be unreasonably dangerous. InZentz, the court reversed the trial court's ruling of a judgment n.o.v. in favor of defendant after a jury verdict for plaintiff. The court found that the issue of whether the plaintiff roof repairer was entitled to a warning regarding wiring on the rooftop by the defendant landowner was a factual determination that had properly been submitted to the jury. TheZentz case presents neither the factual circumstances of a slip and fall case in a casino nor the procedural posture of a summary judgment motion. Nevertheless, it supports the proposition that the jury is suited to determine whether a landowner had been delinquent in the performance of his duty to inspect and warn of danger. Here, where there is a disputed issue of material fact regarding the condition of the premises, defendant's motion for summary judgment will be denied on this ground.
Defendant also argues that plaintiff has the affirmative burden of proving that plaintiff knew about the condition in question, citing to Parmenter v. Jarvis Drug Store, Inc., 48 N.J. Super. 507, 510 (App.Div. 1957), and Tua v. Modern Homes, Inc., 64 N.J. Super. 211 (App.Div. 1960), aff'd, 33 N.J. 476 (1960). Neither Tua nor Parmenter stand for the proposition that such an element is required, however. In Tua, a slip and fall case, the court considered the appeal of judgment in favor of plaintiff on the basis of denials of defendant's motions for dismissal at the end of plaintiff's case and the entire case. The court affirmed the verdict for plaintiff, finding that though there was no evidence that defendant had actual notice of the offending substance on the floor, there was other testimonial evidence allowing for an inference of the existence of the substance for a protracted period of time. The court in Parmenter reversed the involuntary dismissal of plaintiff's action because she had adduced sufficient proof to take the issue of negligence to the jury, even though there was no direct evidence that defendant had any actual knowledge that the condition of the premises was unsafe. As there is no requirement that plaintiff must prove that defendant knew about the condition in question, defendant's motion will be denied on this ground, since the jury could reasonably infer that a cable laid under the carpeting in a casino existed for a substantial period of time, encompassing the day of plaintiff's fall to the day plaintiff says the carpet was pulled up two months later in 1999.
Lastly, defendant blanketly contends that plaintiff cannot prove that defendant's breach proximately caused plaintiff's injuries. Contrary to defendant's contention that there is no evidence suggesting that defendant "failed to do something it was legally required to do that facilitated the happening of this accident," Def.'s Br. at 12, plaintiff has pointed to facts that present a genuine issue of material fact regarding the conditions of the premises and, if true, would give rise to proximate causation of plaintiff's injuries. Although defendant argues that plaintiff cannot prove that the alleged incline caused her to fall, inferences viewed in the light most favorable to the non-movant may be given to plaintiff under the summary judgment standard, and the inference that the protrusion contributed to plaintiff's forward tripping fall can be drawn from these facts. Defendant's motion will be denied on this ground.
C. Plaintiffs' Claim for Loss of Consortium
Defendant also contends that plaintiff's husband's claim for loss of consortium cannot be sustained and must be dismissed because plaintiff's negligence claim cannot survive summary judgment. A loss of consortium claim is a derivative claim which depends upon a viable tort claim of the spouse. See Finley v. NCR Corp., 964 F. Supp. 882, 889 (D.N.J. 1996) (citing Reilly v. Prudential Prop. Cas. Ins. Co., 653 F. Supp. 725 (D.N.J. 1987)). Here, because plaintiff's negligence claim survives summary judgment, plaintiff's husband's claim for loss of consortium will not be dismissed.
CONCLUSION
For the reasons stated above, defendant's motion for summary judgment will be denied, and both plaintiffs' claims of negligence and loss of consortium remain. The accompanying Order will be entered.
ORDER
THIS MATTER comes before the Court upon motion by defendant Trump Castle Associates, L.P., d/b/a Trump Marina Hotel Casino, L.P. ("Trump Marina"), for summary judgment against plaintiffs Mary Habib and Michael Habib; and the Court having considered the parties' submissions; and the Court having heard oral argument on August 21, 2002; and for the reasons discussed in the Opinion of today's date;IT IS on this day of August, 2002, hereby
ORDERED that defendant's motion for summary judgment [Docket Items 11-1, 14-1] be, and hereby is, DENIED.