ROMEO v. HARRAH'S ATLANTIC CITY PROPCO, LLC, No. 1:2013cv02133 - Document 32 (D.N.J. 2016)

Court Description: OPINION. Signed by Judge Joseph H. Rodriguez on 1/26/2016. (drw)

Download PDF
ROMEO v. HARRAH'S ATLANTIC CITY PROPCO, LLC Doc. 32 U N ITED STATES D ISTRICT COU RT D ISTRICT OF N EW JERSEY _________________________ CHARLES ROMEO, : Plaintiff, : v. Hon. J oseph H. Rodriguez Civil Action No. 13-2133 : : Caesar’s Entertainm ent Operating Com pany, Ltd d/ b/ a/ Harrah’s Resort Atlantic City, : : Defendants. _________________________ _ : : OPIN ION This m atter comes before the Court on Motion of Defendant Harrah’s Resort Atlantic City for Sum m ary J udgm ent pursuant to Fed. R. Civ. P. 56. 1 Principally, Harrah’s claim s that it is not liable for Plaintiff Charles Rom eo’s slip and fall accident at its casino because Plaintiff cannot m ake a prim a facie case of negligence. Harrah’s argues that it did not owe a duty of care to Romeo because it lacked both actual and constructive notice of the dangerous condition that Plaintiff alleges caused his fall. The Court has considered the written subm ission of the parties and heard argument on the m otion during a hearing on Septem ber 22, 20 15. On September 30 , 20 15, the Court ordered the parties to brief the im pact of 11 The caption of the case identifies Plaintiff as Caesar’s Entertainment Operating Company, Ltd d/b/a/ Harrah’s Resort Atlantic City. 1 Dockets.Justia.com the New J ersey Supreme Court’s decision in Prioleau v. Kentucky Fried Chicken, Inc. 223 N.J 245, 122 A.3d 328 (20 15) on the m atter at hand. The Court has considered the supplem ental subm issions. For the reasons expressed on the record on September 22, 20 15 and those that follow, Defendant’s m otion for sum m ary judgment is denied. I. Backgro u n d Rom eo claim s that he slipped and fell at Defendant’s Atlantic City casino on March 19, 20 11. Video surveillance shows that a patron of the casino spilled a liquid beverage on a com m on walkway at approxim ately 7:0 3 p.m . See Def. Ex. A, Surveillance Video. Approxim ately four m inutes later, the same video depicts Romeo slipping on the spilt liquid, appearing to cause his fall. Id. There is no dispute as to the contents of the video. Plaintiff alleges the liquid on the floor of the com m on area caused his fall and subsequent injuries. Harrah’s in house cleaning department is called EVS. EVS is responsible for cleaning the public areas of the casino and has its em ployees stationed throughout the casino. An EVS supervisor testified that the area in which Rom eo fell is inspected every thirty (30 ) to forty (40 ) m inutes. Given the tim e in between inspections by EVS and the short 2 window of tim e in between the spill and Rom eo’s fall, Harrah’s claim s that it did not have constructive notice of the dangerous condition. Plaintiff claim s that Defendant’s m ode of operation created the dangerous condition and thereby relieves Plaintiff of proving actual or constructive notice. Under this theory, Harrah’s drink services are an integral part of the casinos’ m ode of operation. Specifically, there are several vending m achines near the com m on walk way and patrons are provided with free drinks and bottles of water. Harrah’s em ploys over 145 cocktail servers to accom m odate its guests beverage needs in an effort to keep the guest on the gam bling floor. Holt Dep., Ex. B, 14:7-22; Exs. C, D, E. To accom plish this, the cocktail servers walk around the casino, including the com m on area. Patrons m ay also carry around free bottles of water, with the Harrah’s logo on the bottle, and drinks, purchased and/ or com plim entary, on the concourse and throughout the casino. Id., Ex. F. To the extent the mode of operation theory does not apply to Harrah’s, Plaintiff disputes Harrah’s notice claim , arguing that in addition to EVS, the casino has camera surveillance everywhere. The camera that captured the spill and subsequent fall appears to zero in on an individual at the 5:22 m ark, which Plaintiff claim s suggests hum an m anipulation and therefore im putes notice upon the casino. 3 II. Su m m ary Ju d gm e n t Stan d ard A court will grant a m otion for sum m ary judgment if there is no genuine issue of m aterial fact and if, viewing the facts in the light m ost favorable to the non-m oving party, the m oving party is entitled to judgm ent as a m atter of law. Pearson v. Component Tech. Corp., 247 F.3d 471, 482 n.1 (3d Cir. 20 0 1) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 322, 10 6 S. Ct. 2548, 91 L.Ed.2d 265 (1986)); accord Fed. R. Civ. P. 56 (c). Thus, this Court will enter sum m ary judgment only when “the pleadings, depositions, answers to interrogatories, and adm issions on file, together with the affidavits, if any, show that there is no genuine issue as to any m aterial fact and that the m oving party is entitled to judgm ent as a m atter 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, 10 6 S. Ct. 250 5, 91 L.Ed.2d 20 2 (1986). A fact is “material” if, under the governing substantive law, a dispute about the fact m ight affect the outcom e of the suit. Id. In determ ining whether a genuine issue of m aterial fact exists, the court m ust view the facts and all reasonable inferences drawn from those facts in the light m ost favorable to the nonm oving party. Matsushita Elec. Indus. Co. v. 4 Zenith Radio Corp., 475 U.S. 574, 587, 10 6 S. Ct. 1348, 89 L.Ed.2d 538 (1986). Initially, the m oving party has the burden of dem onstrating the absence of a genuine issue of m aterial fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 10 6 S. Ct. 2548, 91 L.Ed.2d 265 (1986). Once the m oving party has m et this burden, the nonm oving party m ust 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 sum m ary judgment, the nonm oving party m ust identify specific facts and affirm ative evidence that contradict those offered by the m oving party. Andersen, 477 U.S. at 256-57. Indeed, the plain language of Rule 56(c) m andates the entry of sum m ary judgment, after adequate tim e for discovery and upon m otion, against a party who fails to m ake 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, 477 U.S. at 322. In deciding the m erits of a party’s m otion for sum m ary judgm ent, the court’s role is not to evaluate the evidence and decide the truth of the m atter, but to determ ine whether there is a genuine issue for trial. 5 Anderson, 477 U.S. at 249. Credibility determ inations are the province of the finder of fact. Big Apple BMW, Inc. v. BMW of N. Am ., Inc., 974 F.2d 1358, 1363 (3d Cir. 1992). III. An alys is “In negligence cases under New J ersey law, a plaintiff m ust establish that defendant breached a duty of reasonable care, which constituted a proxim ate cause of plaintiff's injuries.” Keith v. Truck Stops Corp. of Am ., 90 9 F.2d 743, 745 (3d Cir. 1990 ). “It is well recognized that the com mon law im poses a duty of care on business owners to m aintain a safe prem ises for their business invitees because the law recognizes that an owner is in the best position to prevent harm.” Stelluti v. Casapenn Enterprises, LLC, 20 3 N.J . 286, 1 A.3d 678, 691 (N.J . 20 10 ). “Ordinarily an injured plaintiff asserting a breach of that duty m ust prove, as an element of the cause of action, that the defendant had actual or constructive knowledge of the dangerous condition that caused the accident.” Nisivoccia v. Glass Gardens, Inc., 175 N.J . 559, 818 A.2d 314, 316 (N.J . 20 0 3). However, under New J ersey law, a plaintiff need not prove that elem ent where “as a m atter of probability, a dangerous condition is likely to occur as the result of the nature of the business, the property's condition, or a dem onstrable pattern of conduct or incidents.” Id. In such circum stances, a plaintiff is afforded “an inference of negligence, im posing 6 on the defendant the obligation to com e forward with rebutting proof that it had taken prudent and reasonable steps to avoid the potential hazard.” Id. This is referred to as the “m ode-of-operation rule.” See id. (finding that when the very nature of a business's operation creates the hazard, the “m ode-ofoperation rule” creates an inference of negligence and “shifts the burden to the defendant to ‘negate the inference by subm itting evidence of due care’ ” (quoting Bozza v. Vornado, Inc., 42 N.J . 355, 20 0 A.2d 777, 780 (N.J . 1964)); Wollerm an v. Grand Union Stores, Inc., 47 N.J . 426, 221 A.2d 513, 514– 15 (N.J . 1966) (the rule requires the defendant to show it did “all that a reasonably prudent [person] would do in light of the risk of injury [the m ode of operation] entailed”). A defendant m ay then avoid liability if it shows that it did “all that a reasonably prudent man would do in the light of the risk of injury [the] operation entailed.” Nisivoccia, 175 N.J . 559, 818 A.2d at 317 (citation om itted). “The ultim ate burden of persuasion rem ains, of course, with the plaintiff.” Id. In Prioleau the New J ersey Suprem e Court reestablished the narrow application of the m ode of operation rule, lim iting its application to the setting of a “self service” business. Prioleau, 233 N.J . 245, 122 A.3d 328. Prioleau was a patron at a fast food restaurant who fell on a liquid substance as she walked from the counter toward 7 the restroom. The trial court instructed the jury to consider the “m ode of operation” rule. The New J ersey Supreme Court reversed, holding that the “m ode of operation” jury instruction was inappropriately applied because there was no evidence that the location of plaintiff's fall had any nexus to the self-service beverage com ponent of the defendants' business. Id. The Court set forth four principles governing application of the m ode of operation rule: (1) First, the m ode-of-operation doctrine has never been expanded beyond the self-service setting, in which custom ers independently handle m erchandise without the assistance of em ployees or may com e into direct contact with product displays, shelving, packaging, and other aspects of the facility that m ay present a risk. The distinction drawn by these cases is sensible and practical. When a business perm its its customers to handle products and equipm ent, unsupervised by employees, it increases the risk that a dangerous condition will go undetected and that patrons will be injured. Thus, the m ode-ofoperation rule is not a general rule of prem ises liability, but a special application of foreseeability principles in recognition of the extraordinary risks that arise when a defendant chooses a custom er self-service business m odel. (2) Second, the rule applies only to accidents occurring in areas affected by the business's self-service operations, which may extend beyond the produce aisle of superm arkets and other facilities traditionally associated with self-service activities. (3) Third, the m ode-of-operation rule is not lim ited to cases in which custom er negligence created the dangerous condition; it also applies to self-service settings in which the injury may have resulted from the manner in which employees handled the 8 business's products or equipm ent, or the inherent qualities of the m erchandise itself. Accordingly, the m ode-of-operation charge m ay be given even in the absence of evidence that the carelessness of the plaintiff, or another patron, gave rise to the dangerous condition. (4) Fourth, if the mode-of-operation rule applies, it affects the parties' burdens of proof in two respects. The rule relieves the plaintiff of the burden of proving actual or constructive notice of the dangerous condition. It also gives rise to an inference of negligence, shifting the burden of production to the defendant, who m ay avoid liability if it shows that it did all that a reasonably prudent m an would do in the light of the risk of injury the operation entailed. Thus, if the rule applies in a particular case, it substantially alters the ordinary allocation of the burdens between the parties. Prioleau, 122 A.3d at 338– 39 (citations om itted). Defendant does not contest that casino guests are perm itted to carry open beverages throughout the casino floor, including the concourse area where Rom eo fell. In addition, Defendant supplies some patrons with free or com plim entary beverages, at various places surrounding the concourse area. Defendant argues that because Rom eo’s slip and fall did not occur in an area of a “self service” station, there is no basis to expand the m ode of operation rule to the concourse area. Here, the m anager of Food and Beverage Services Antione Holt’s testim ony, in conjunction with the photographs of the cocktail servers, the adm issions of drink service at gam ing tables, drink ordering at the slot 9 m achines and the free bottled water all suggest that the m ode of operation at Harrah’s includes patrons drinking in the concourse area where Plaintiff fell. The video surveillance footage that captured Rom eo’s slip and fall depicts a steady stream of patrons traversing the concourse, m any holding what appear to be open beverage containers, bottled water, coffee cups, and beer bottles. Defendant does not dispute this fact. Instead, Defendant argues that a casino is not a self-serve business as contemplated by the rule. The Court need not determ ine whether a casino is a self-serve business as contemplated by the rule because, even if it was, Plaintiff cannot dem onstrate the required nexus between the spill and Defendants’ alleged self-service operation. There is no proof in the record that the spilt liquid in this case cam e from Defendant’s beverage service. Although there is no dispute that Defendant supplies beverages in self-service style to casino patrons, including bottled water, the nexus between that service and Plaintiff’s accident is tenuous; we do not know the identity of the person who spilled his beverage and therefore cannot determ ine whether or not he got the beverage from Defendant. Compare Katsaros v. Target Corp., No. 12-CV-770 8, 20 15 WL 456950 (D.N.J . Feb. 3, 20 15) (where a spilled beverage was purchased at Target self-service station). 10 Under the dictates of Prioleau, the m ode of operation rule does not apply. The New J ersey Supreme Court considered the very situation present here- whether a spill of unknown origin is enough to establish application of the m ode of operation rule in a self-service setting. Moreover, neither of plaintiff's theories of liability involves a self-service operation that m ight warrant a m ode-of-operation jury instruction. The theory offered by plaintiff to justify the m ode-of-operation charge, that oil and grease are used in cooking at the restaurant and that m anagers regularly exam ined the floor, establishes no nexus to custom er self-service or related business operations. If the accident occurred because restaurant em ployees tracked oil and grease from the kitchen to the restroom area, it resulted from the preparation of food in a kitchen area off lim its to patrons, a com ponent of the business in which custom ers played no part. While that evidence m ight support a finding that a plaintiff need not show actual or constructive notice because the condition was created by defendant or its em ployees, see, e.g., Sm ith, supra, 94 N.J .Super. at 464– 66, 228 A.2d 874 (holding that slip and fall on greasy stairway caused by sawdust tracked onto steps by defendant's em ployees warranted charge), it does not im plicate the m ode-ofoperation rule. Nor does plaintiff's alternative theory of negligence that patrons tracked water from the outdoors into the restaurant on a rainy evening bear any relationship to self-service activities. The potential for custom ers to track water into a building during inclem ent weather is not contingent on a defendant's business m odel; that risk exists in virtually any facility that adm its patrons from public sidewalks or parking areas into its facility. Thus, plaintiff's second theory of negligence does not support the jury charge given by the trial court. Prioleau, 122 A.3d at 339. 11 However, sum m ary judgm ent is denied because a jury question exists as to whether Defendant had constructive notice of the spill. Defendant agrees that it owed a duty to Plaintiff to m aintain the prem ises in a reasonably safe condition. A breach of that duty occurs where “the defendant had actual or constructive knowledge of the dangerous condition that caused the accident.” Nisivocci, 175 N.J . at 563. “Constructive knowledge refers to notice that a particular condition existed for such a length of tim e as reasonably to have resulted in knowledge of the condition, had the owner ... been reasonably diligent.” Kem pf v. Target Corp., No. 0 6– 1935, 20 0 8 WL 30 5457, at *2 (D.N.J . J an. 31, 20 0 8) (citing Parm enter v. J arvis Drug Store, 48 N.J . Super. 50 7, 510 (App. Div. 1957)). In other words, an owner breaches his duty where he either has notice of a dangerous condition or if the condition existed for such a length of tim e that the owner should have known of the condition and fails to rem ediate the problem. Id. Generally, the determ ination of whether a breach has occurred is a jury question. See Filipowicz v. Dilletto, 350 N.J . Super. 552, 561 (App. Div. 20 0 2). “It is the function of the jury to determ ine the condition of the property and the reasonableness of defendant's care.” Id. There is no evidence in the record that indicates that Defendants had actual notice of the spill. Plaintiff’s suggestion that alleged hum an m anipulation of the camera 12 at the five m inute m ark of the video is too rem ote in tim e from the duration of the spill in the post twenty six m inute tim e fram e to establish actual notice. However, a jury could reasonably find that Defendant had constructive notice of the spill. Defendant’s corporate designee Patti Geraci testified that the video depicts casino supervisor Fernando DaSilva walking in the general area of the existing spill, lingering for a m oment, and then departing the area. See Ex. H., Geraci Dep. 11:16-22. In addition, Ms. Geraci states that every em ployee is tasked with identifying hazards. Id. at 19-20 . Drawing all favorable inferences in Plaintiff’s favor, a genuine issue of m aterial fact exists as to whether Defendant had constructive notice of the spill, despite the fact that it existed for only four m inutes prior to Rom eo’s fall. See Matsushita Elec. Indus. Co., 475 U.S. at 587; Kempf, 20 0 8 WL 30 5457 at *2. Standing alone, the am ount of tim e is not enough to establish constructive notice. See, e.g., Bowm an v. Wal-Mart Stores E., LP, No. 14-3182, 20 15 WL 568570 , at *5 (E.D. Pa. Feb. 10 , 20 15) (“The approxim ately four-m inute period between the spill and Bowm an's fall is a short duration from which to find constructive notice for a hazard not caused by Wal– Mart.”) However, when coupled with the video surveillance of the area and the fact that Mr. DaSilva was in the area during the existence of the spill, the Court concludes that a 13 genuine issue of material facts exists as to whether or not Defendant had constructive notice of the spill. Defendant’s m otion for sum m ary judgm ent is denied. IV. Co n clu s io n For the reasons set forth above, Defendant’s m otion for sum m ary judgm ent is denied. An appropriate Order shall issue. Dated: J anuary 26, 20 16 s/ J oseph H. Rodriguez Hon. J oseph H. Rodriguez, UNITED STATES DISTRICT J UDGE 14

Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.