The opinion
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
KEITH WOOLLEY, : Hon. Joseph H. Rodriguez
Plaintiff, : Civil Action No. 18-08553
v. : MEMORANDUM OPINION
HARRAH’S ENTERTAINMENT, :
INC. & HARRAH’S OPERATING
COMPANY, INC. :
Defendants. :
1. This matter comes before the Court by way of Defendants’ Motion for Summary
Judgment [Dkt. No. 32]. The Court has considered the written submissions of the
parties as well as the arguments advanced at the hearing on November 5, 2019. For the
reasons expressed on the record that day, as well as those set forth below, Defendants’
motion is granted.
2. BACKGROUND: This case arises out of an alleged slip and fall at Harrah's
Atlantic City Operating Company LLC d/b/a Harrah's Resort Atlantic City (“Harrah's”
or “Defendants”). [See Dkt. No. 1 (Compl.)] On or about December 23, 2015, around
6:30 p.m., Plaintiff, Keith Woolley (“Plaintiff”), brought his car to Defendants’ valet
parking area. (Pl. Dep. 91:2-92:4; 102:2-4). It was “warm” and raining, but “raining not
hard.” (Id.). After he left his car, Plaintiff began walking towards Harrah’s automatic
revolving door entrance and he noticed that the ground in the valet area was wet,
“[p]retty much everywhere.” (Id. at 106:1-12). Plaintiff thinks that he fell, “just went
down quick,” inside the revolving door as he stepped in. Plaintiff has “[n]o idea” what he
may have slipped on, or if he slipped at all. (Id. at 110:2-9; 106:6-19). Following this
incident, Plaintiff did not observe the floor in the area where he fell; he felt “dampness”
while on the floor but “not much.” (Pl. Dep. 115:10-116:4). Plaintiff does not know how
long any dampness or wetness was in the area of his accident prior to falling. (Id. at
118:11-14).
On December 7, 2017, Plaintiff filed a Complaint against Defendants, alleging one
count of Negligence, which claims Defendants were “negligent in relation to the
maintenance in the area of Plaintiff's alleged incident.” (Compl. ¶¶ 10-13; Def. SMF ¶ 1).
After conducting discovery, Defendants filed a Motion for Summary Judgment seeking
dismissal of Plaintiff’s Complaint. [Dkt. No. 32]. The Court heard oral argument on that
motion at a hearing held on November 5, 2019.
3. Summary Judgment Standard of Review: Federal Rule of Civil Procedure 56(a)
generally provides that the “court shall grant summary judgment if the movant shows
that there is no genuine dispute as to any material fact” such that the movant is “entitled
to judgment as a matter of law.” Fed. R. Civ. P. 56(a). Such a showing must be supported
by “citing to particular parts of materials in the record, including depositions,
documents, electronically stored information, affidavits or declarations, stipulations . . .
admissions, interrogatory answers, or other materials.” Fed. R. Civ. P. 56 (c)(1)(A). A
“genuine” dispute of “material” fact exists where a reasonable jury’s review of the
evidence could result in “a verdict for the non-moving party” or where such fact might
otherwise affect the disposition of the litigation. Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 248 (1986). Disputes over irrelevant or unnecessary facts, however, will fail to
preclude the entry of summary judgment. Id.
In evaluating a motion for summary judgment, the court must view the evidence
in the light most favorable to the non-moving party, and must provide that party the
benefit of all reasonable inferences. Scott v. Harris, 550 U.S. 372, 378 (2007); Halsey v.
Pfeiffer, 750 F.3d 273, 287 (3d Cir. 2014). Any such inferences “must flow directly from
admissible evidence[,]” because “‘an inference based upon [ ] speculation or conjecture
does not create a material factual dispute sufficient to defeat summary judgment.’”
Halsey, 750 F.3d at 287 (quoting Robertson v. Allied Signal, Inc., 914 F.2d 360, 382 n.12
(3d Cir. 1990) (citing Anderson, 477 U.S. at 255)). 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 v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). Credibility
determinations are the province of the factfinder. Big Apple BMW, Inc. v. BMW of N.
Am., Inc., 974 F.2d 1358, 1363 (3d Cir. 1992).
Analysis: To establish a claim for negligence, plaintiff must prove “(1) [a] duty of
care, (2) [a] breach of [that] duty, (3) proximate cause, and (4) actual damages [.]”
Weinberg v. Dinger, 524 A.2d 366, 373 (N.J. 1987). Accordingly, “in any case founded
upon negligence, the proofs ultimately must establish that defendant breached a duty of
reasonable care, which constituted a proximate cause of the plaintiff's injuries.” Brown
v. Racquet Club of Bricktown, 471 A.2d 25, 29 (N.J. 1984) (citing Hansen v. Eagle-Picher
Lead Co., 84 A.2d 281, 288 (N.J. 1951). The burden of proof resides with the Plaintiff.
Hansen v. Eagle Picher Leas Co., 84 A.2d 281, 284 (N.J. 1951). In this case there is no
dispute that Defendants owed a duty of care to plaintiff as an invitee, which “requires a
business owner to discover and eliminate dangerous conditions, to maintain the
premises in safe condition, and to avoid creating conditions that would render the
premises unsafe.” Nisivoccia v. Glass Gardens, Inc., 818 A.2d 314, 316 (N.J. 2003)
(citing O'Shea v. K. Mart Corp., 701 A.2d 475 (N.J. App. Div. 1997)).
Here, Plaintiff fails to establish any genuine factual dispute that Defendants
breached a duty owed to him, or even if there was a breach, that such breach caused his
accident or any injuries. Plaintiff cannot provide, beyond his own speculation, any
evidence pertaining to his incident on or about December 23, 2015. Aside from the
actual fall, Plaintiff fails to provide any evidence of how he fell or what caused his fall.
“Negligence is never presumed, and the mere occurrence of an accident causing injuries
is not alone sufficient to justify an inference of negligence.” Rivera v. Columbus Cadet
Corps of Am., 158 A.2d 62, 65 (N.J. Super. App. Div. 1960) (citations omitted).
Therefore, Plaintiff fails to produce proof of negligence sufficient to preclude summary
judgment.
In a light most favorable to Plaintiff, the facts establish that Plaintiff believes he fell
inside Harrah’s automatic revolving door, which he had used during his stay and on
prior visits to Harrah’s. (Pl. Dep. 92:1-4; 96:17-25; 102:16-23). After the incident,
“[o]nce inside . . . [he] heard security call somebody to get a bucket and mop that up.”
(Pl. Dep. 115:1-3). Plaintiff does not know what that statement was in reference to.
(Id.).“Plaintiff did not see anything on the floor inside the revolving door at any time
before his incident occurred . . . . [or] anything on the ground or floor outside the
revolving door where he would have had to walk to access the inside the revolving door .
. . .” (Def. SMF ¶¶ 8-9). After his fall, Plaintiff contends the he felt “dampness” on his
body, but he did not notice dampness or wetness inside the revolving door before his
accident. However, it was wet outside of the revolving door. (Pl. Dep. 117). Plaintiff
wouldn’t know how long any dampness or wetness was in the area prior to his accident
(Id. at 118:4-14). Plaintiff does not know “of any other source of dampness or wetness”
other than the rain that day. Finally, Plaintiff provides no expert testimony as to the
condition of Harrah’s floor, inside or outside, of the revolving door or Harrah’s lobby.
Without more, Plaintiff cannot establish that any dangerous condition existed, nor
that Harrah’s was aware of any condition on its floor. At oral argument, Plaintiff argued
that there are material factual issues concerning the wetness of the area where Plaintiff
fell because Plaintiff heard someone yell about getting a mop and bucket. But there is no
evidence concerning what area was to be mopped or that any mopping took place after
that statement. In other words, Plaintiff is guessing that someone was called to mop
where he fell. “An inference [of negligence] can be drawn only from proved facts and
cannot be based upon a foundation of pure conjecture, speculation, surmise or guess.”
Prioleau v. Kentucky Fried Chicken, Inc., 85 A.3d 1015, 1022 (N.J. App. Div. 2014), aff'd
as modified and remanded, 122 A.3d 328 (N.J. 2015) (citing Long v. Landy, 171 A.2d 1, 7
(1961)). Additionally, Plaintiff’s own testimony contradicts the inference that the area
where he fell was wet because a mop and bucket were called for. (See Pl. Dep. at 115
(stating that, he only felt “dampness”)). In fact, Plaintiff does not know whether he
tripped or slipped on wetness, or why he fell. (Id. at 106:6-19).
Even if the floor was wet, and that wetness was a dangerous condition, a “proprietor
generally is not liable for injuries caused by defects of which he had no actual or implied
knowledge or notice, and no reasonable opportunity to discover.” Brown v. Racquet
Club of Bricktown, 471 A.2d 25, 30 (N.J. 1984). Plaintiff argues Defendants were on
notice because another individual fell in the same area twenty (20) minutes prior to his
own fall. This argument also fails to create a genuine factual dispute. The record lacks
any facts that establish, to the extent someone else fell in Harrah’s, that they fell inside
or “basically” inside the revolving door or why they fell. At oral argument, Plaintiff could
not say that this person fell in the same place as him. Furthermore, in this case, Plaintiff
could see where he was walking, did not notice anything on the ground, and has “[n]o
idea” what he slipped on. (Id. at 110:2-9). With these facts, there is no indication (1) as
to what condition caused Plaintiff’s accident, (2) that any alleged condition was
dangerous, and (3) that defendant was, or could have been, on notice of it. Therefore,
Defendants are entitled to judgment as a matter of law.
4. Conclusion: For the forgoing reasons, as well as those expressed on the record of
November 5, 2019, Defendant Harrah’s Motion for Summary Judgment [Dkt. No. 32]
will be granted.
An appropriate Order shall issue.
Dated: December 18, 2019
____/s/ Joseph H. Rodriguez ___
HON. JOSEPH H. RODRIGUEZ
United States District Judge