THOMPSON et al v. HARRAH'S ATLANTIC CITY HOLDING, INC. et al, No. 1:2014cv02397 - Document 166 (D.N.J. 2017)

Court Description: OPINION. Signed by Judge Joseph H. Rodriguez on 4/17/2017. (TH, )
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THOMPSON et al v. HARRAH'S ATLANTIC CITY HOLDING, INC. et al Doc. 166 U N ITED STATES D ISTRICT COU RT D ISTRICT OF N EW JERSEY _________________ ____ HOWARD THPOMPSON and : DEBORAH THOMPSON, h/ w : : Plaintiffs, : : v. : : HARRAH’S ATLANTIC CITY : HOLDING, INC., et. al. : : Defendants. : _______________________ : H o n . Jo s e p h H . Ro d rigu e z Civil Action No. 14-2397 Op in io n This m atter arises out of an incident that occurred on May 30 , 20 12, at Harrah’s Casino in Atlantic City. Plaintiff claim s that he suffered extensive burns to his feet while walking across the outside pool deck. He filed a three-count com plaint against several defendants, including the m oving defendant, Roofblok Lim ited, alleging negligence, violations of New J ersey’s Product Liability Act, N.J . Stat. Ann. § 2A:58C-1, and his wife’s loss of consortium claim . Specifically, he alleges that Roofblok designed, m anufactured, assem bled, processed, distributed, reconditioned, m aintained, services, installed, inspected and m ade available for use and/ or advertise the pool and sundeck in question, and/ or m ore of its com ponent parts, which are hereinafter referred to as “the product” which were 1 ultim ately sold or leased to the hotel defendants and/ or one or m ore of defendant J ohn Doe Corporations, and which ultim ately caused the Plaintiffs’ injuries and dam ages. Roofblok m oves for sum m ary judgm ent pursuant to Fed. R. Civ. P. 56. The Court has considered the written subm issions of the parties, without oral argum ent. For the reasons that follow, sum m ary judgm ent is granted in favor of Roofblok. I. Stan d ard o f Re vie w A court will grant a m otion for sum m ary judgm ent 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. Com ponent Tech. Corp., 247 F.3d 471, 482 n.1 (3d Cir. 20 0 1) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986)); accord Fed. R. Civ. P. 56 (c). Thus, this Court will enter sum m ary judgm ent 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). 2 An issue is “genuine” if supported by evidence such that a reasonable jury could return a verdict in the nonm oving party’s favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A fact is “m aterial” 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. Zenith Radio Corp., 475 U.S. 574, 587 (198 6). 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 (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 m otion for sum m ary judgm ent, 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 judgm ent, after adequate tim e for discovery and upon m otion, against a party who 3 fails to m ake a showing sufficient to establish the existence of an elem ent 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. 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). II. An alys is There is no evidence in the record to create a genuine issue of m aterial fact related to whether Rookblok’s pavers were a proxim ate cause of Howard Thom pson’s injury and sum m ary judgm ent is gran ted in favor of Roofblok. To establish a right to relief under New J ersey’s Product Liability Act, “a plaintiff m ust show that the defendant m anufactured the product, that a reasonably foreseeable user was injured, that the product was defective, that the defect existed when it left the defendant's control, and that the defect was the actual and proxim ate cause of the plaintiff's injury.” Worrell 4 v. Elliott & Frantz, 799 F. Supp. 2d 343, 350 (D.N.J . 20 11) (citing Myrlak v. Port Auth. of N.Y. and N.J ., 723 A.2d 45, 52 (N.J . 1999)). To establish a claim for com m on law negligence, [A] plaintiff m ust prove tortious conduct, injury and proxim ate cause. “Proxim ate cause” has been defined as “any cause which in the natural and continuous sequence, unbroken by an efficient intervening cause, produces the result com plained of and without which the result would not have occurred.” The burden of proof rests upon the plaintiff to prove a causal relationship by a preponderance of the evidence. Thus, a plaintiff m ust show that a defendant’s conduct constituted a cause-in-fact of his injuries. Dawson v. Bunker Hill Plaza Associates, 673 A.2d 847, 853 (N.J . Super. App. Div. 1996) (citations om itted). There is no com petent evidence in the record to dem onstrate that any pavers m anufactured by Roofblok were incorporated into Harrah’s pool deck on May 30 , 20 12. The outdoor pool deck at Harrah’s was constructed in 20 0 7 with concrete pavers installed by defendant Thom as Com pany, Inc. According to Thom as, the m anufacturer of the installed concrete pavers was Westile. See M. Thom as Dep. at 15-16. Thom as com pleted the original installation of the concrete pavers at Harrah’s in April of 20 0 7. Thom as subsequently sold replacem en t pavers to Harrah’s in 20 11 and 20 13. According to Michael Thom as, Harrah’s would call from tim e to tim e to obtain replacem ent pavers to replace broken ones. Thom as would then 5 order the pavers from the m anufacturer and deliver them to Harrah’s, whose m aintenance staff would then install them . See M. Thom as Dep. at 18. Thom as was unsure if the replacem ent tiles he obtained in 20 11 and 20 13 cam e from Westile. He recalled locating a different supplier that sold tiles in the sam e color as the original, but had no specific recall of the m anufacturer or supplier from which he ordered them . See M. Thom as Dep. at 18-19. Delivery receipts show that on Septem ber 21, 20 11, Thom as delivered forty ginger pavers to Harrah’s, and that on Septem ber 30 , 20 11, it delivered another fifty-four ginger pavers. The identity of the m anufacturer and upper-level distributor, if any, are not noted. See Receipts. A second purchase order shows that Harrah’s purchased an additional seventy-five pavers from Thom as on Decem ber 5, 20 12, with a delivery date of J anuary 30 , 20 13. The paver color is not specified in the docum ents, which post-date the accident by several m onths. See Purchase Order. Roofblok’s President, Paul Keating, is the person m ost knowledgeable about the sale of pavers to Thom as. In an affidavit, he stated that he searched Roofblok’s records for sales of 2’ x 2’ x 2” pavers to Thom as, and found that the first instance occurred on April 17, 20 12, at which tim e Thom as purchased 10 0 sienna concrete pavers. See Keating Aff. at ¶ 4. 6 The sienna concrete pavers were not delivered to Thom as until May 8, 20 12, and the bill of lading shows that these were sent to Thom as’ facility on Delilah Road in Egg Harbor Township. See Keating Aff. at ¶ 5. Roofblok’s next sale of pavers to Thom as occurred on October 23, 20 12, when Thom as purchased 264 natural grey pavers. The bill of lading indicates that these were delivered to Harrah’s on October 22, 20 12. See Keating Aff. at ¶ 6. In opposing the m otion, Plaintiff argues that there are genuine issues of m aterial fact regarding the identity of the m anufacturer of the pavers installed at the exterior sun deck at Harrah’s on May 30 , 20 12. Plaintiff objects to Roofblok’s use of the Keatin g affidavit as self-serving and to the use of bills of lading not previously produced during discovery. Roofblok counters that it was served on March 10 , 20 16 and entered the case by answering the Fourth Am ended Com plaint on May 2, 20 16, fact discovery closed May 27, 20 16, Plaintiff never sought any discovery from Roofblok and did not seek to reopen fact discovery. Fed. R. Civ. P. 26(a)(1)(D) provides: “[a] party that is first served or otherwise joined after the Rule 26(f) conference m ust m ake the initial disclosures within 30 days after bein g served or joined, unless a different tim e is set by stipulation or court order.” Where a party fails to provide its 7 Rule 26 disclosures, Rule 37(c)(1) provides: “[i]f a party fails to provide inform ation or identify a witness as required by Rule 26(a) or (e), the party is not allowed to use that inform ation or witness to supply evidence on a m otion, at a hearing, or at a trial, unless the failure was substantially justified or is harm less.” The exclusion of critical evidence, however, “is an ‘extrem e’ sanction, not norm ally to be im posed absent a showing of willful deception or ‘flagrant disregard’ of a court order by the proponent of the evidence.” Meyers v. Pennypack Woods Hom e Ownership Ass’n, 559 F.2d 894, 90 4– 90 5 (3d Cir. 1977) (citation om itted), overruled on other grounds, Goodm an v. Lukens Steel, 777 F.2d 113 (3d Cir. 1985). In determ ining whether “exclusion of evidence is an appropriate sanction for failure to com ply with discovery duties”: (1) the prejudice or surprise of the party against whom the excluded evidence would have been adm itted; (2) the ability of the party to cure that prejudice; (3) the extent to which allowing the evidence would disrupt the orderly and efficient trial of the case or other cases in the court; and (4) bad faith or willfulness in failing to com ply with a court order or discovery obligation. Nicholas v. Pennsylvania State Univ., 227 F.3d 133, 148 (3d Cir. 20 0 0 ); see also Pennypack Woods, 559 F.2d at 90 4-0 5. The Third Circuit has supplem ented that list, also considering (5) “the im portance of the excluded testim ony” and (6) the party’s explanation for failing to disclose. 8 Konstantopoulos v. Westvaco Corp., 112 F.3d 710 , 719 (3d Cir. 1997) (quoting Pennypack, 559 F.2d at 90 5). While the Rules m andate that Roofblok’s initial disclosures should have been served by April 10 , 20 16, there is little or no prejudice to Plaintiff because there was no evidence in the record linking Roofblok’s tiles to Harrah’s as of May 20 , 20 12 and Plaintiff did not seek out fact discovery from Roofblok, despite several case m anagem ent conferences with the Court after Roofblok entered the case. Roofblok points out that, aside from insurance coverage inform ation, the identification of Keating and the bills of lading are the extent of the inform ation Roofblok was required to produce under Rule 26. Consideration of Keating’s affidavit and the bills of lading will not disrupt any proceedings and there is no indication of bad faith or willfulness in Roofblok’s failure to provide initial disclosures. Finally, Plaintiff has not filed a m otion under Rule 37 or Rule 56(d). The Court will not im pose the extrem e sanction of excluding Roofblok’s evidence presented in support of its m otion for sum m ary judgm ent. Put sim ply, the record evidence shows that while Roofblok provided replacem ent pavers for Harrah’s sun deck, these pavers were not provided until after Plaintiff’s injury occurred. Because Plaintiff cannot show 9 proxim ate cause, sum m ary judgm ent will be granted on his negligence and PLA claim s against Roofblok. III. Co n clu s io n For the reasons stated herein, sum m ary judgm ent is granted in favor of Roofblok as to all claim s. An appropriate Order shall issue. Dated: April 17, 20 17 s/ J oseph H. Rodriguez Hon. J oseph H. Rodriguez, UNITED STATES DISTRICT J UDGE 10