MARIA FAILLA v. MOUNT AIRY CASINO RESORT, LP
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APPROVAL OF THE APPELLATE DIVISION
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SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-1847-20
MARIA FAILLA,
Plaintiff-Appellant,
v.
MOUNT AIRY CASINO
RESORT, LP, d/b/a
MOUNT AIRY CASINO
RESORT, and MOUNT
AIRY #1, LLC, d/b/a
MOUNT AIRY CASINO
RESORT,
Defendants-Respondents.
____________________________
Submitted January 24, 2022 – Decided February 2, 2022
Before Judges Fasciale and Sumners.
On appeal from the Superior Court of New Jersey, Law
Division, Bergen County, Docket No. L-2253-19.
Nowell, PA, attorneys for appellant (Jacek Zapotoczny,
on the briefs).
Hendrzak & Lloyd, attorneys for respondent (Susan
Smith Lloyd, on the brief).
PER CURIAM
In this slip and fall case, plaintiff appeals from two orders: a January 22,
2021 order granting summary judgment to Mount Airy Casino Resort, LP and
Mount Airy #1, LLC (collectively defendants) and a March 10, 2021 order
denying plaintiff's motion for reconsideration. After considering the proofs and
conducting oral argument, the judge concluded defendants were entitled to
summary judgment, reasoning the record was devoid of any evidence of a
defective condition, causation, or notice. For substantially the same reasons, we
affirm.
In March 2017, plaintiff, seventy-nine years old at the time, with her adult
son, traveled from their home in Lyndhurst, New Jersey, to defendants' casino
in Mount Pocono, Pennsylvania. Plaintiff alleged that at around 11:00 am, she
was traversing across the casino's handicapped parking lot when she tripped and
fell over an unmarked Belgian block curbing and the uneven, worn dirt path on
the grassy parking lot medium. Plaintiff testified that other patrons were
walking in front of and behind her on the grassy path. As a result of the fall,
plaintiff lost consciousness, and sustained a concussion as well as a laceration
on her head. Plaintiff's son wanted to take her home after the fall, but she
decided to stay at the casino. After approximately five hours, plaintiff began
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experiencing significant pain in her right arm and then again lost consciousness.
She was taken to Pocono Medical Center by ambulance. Plaintiff fractured and
dislocated her right shoulder and underwent open reduction internal fixation to
repair the fracture.
Plaintiff filed a complaint against defendants, as owners and operators of
the accident location, alleging they breached their duty to maintain a safe
premises for plaintiff by failing to inspect the property for dangerous conditions
and failing to remedy the dangerous condition that caused plaintiff's fall.
Defendants moved for summary judgment and argued that, because plaintiff fell
in an area not intended for pedestrians and she could not identify the cause of
her fall, there are no issues of material fact precluding judgment as a matter of
law in their favor. The judge agreed and entered the order under review after
permitting oral argument.
Plaintiff moved for reconsideration of the judge's summary judgment
order and argued the issues of causation and the existence of a dangerous
condition should be presented to a jury because there are genuine issues of
material fact. The judge denied plaintiff's motion for reconsideration and
rendered a written decision with her reasoning.
On appeal, plaintiff argues:
A-1847-20
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POINT I
THE [JUDGE] ERRED IN GRANTING
[DEFENDANTS'] MOTION FOR SUMMARY
JUDGMENT AS IT WAS PREMATURE BECAUSE
DISCOVERY HAD NOT BEEN COMPLETED DUE
TO [DEFENDANTS'] UNTIMELY SUBMISSIONS.
POINT II
THE [JUDGE] ERRED WHEN [SHE] RULED ON
QUESTIONS OF MATERIAL FACT IN
COMPETING EXPERT OPINIONS, INCLUDING
THE EXISTENCE OF A DANGEROUS CONDITION,
AND DEPRIVED THE CASE FROM A JURY.
POINT III
[DEFENDANTS] HAD NOTICE OF THE
DANGEROUS CONDITION.
POINT IV
THE [JUDGE] ERRED WHEN [SHE] RULED ON A
FACTUAL ISSUE RELATING TO THE CAUSE OF
. . . [PLAINTIFF'S] FALL.
POINT V
THE [JUDGE] ERRED IN APPLYING GILLIGAN V.
VILLANOVA [UNIVERSITY] AND THE CHOICE
OF WAYS DOCTRINE TO [PLAINTIFF'S] CASE.
A. Gilligan v. Villanova [University] Does Not
Apply To [Plaintiff's] Case.
A-1847-20
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B. The Choice Of Ways Doctrine Does Not
Apply To [Plaintiff's] Case.1
The parties consented to applying New Jersey procedural rules and
Pennsylvania substantive law because plaintiff was injured on defendants'
property in Pennsylvania. Appellate review of a trial judge's grant or denial of
summary judgment is de novo. Branch v. Cream-O-Land Dairy, 244 N.J. 567,
582 (2021). We consider, as the motion judge did, "whether the competent
evidential materials presented, when viewed in the light most favorable to the
non-moving party, are sufficient to permit a rational factfinder to resolve the
alleged disputed issue in favor of the non-moving party." Brill v. Guardian Life
Ins. Co. of Am., 142 N.J. 520, 540 (1995). We accord no deference to the motion
judge's conclusions of law. Nicholas v. Mynster, 213 N.J. 463, 478 (2013).
I.
Plaintiff contends that the judge erred when she determined that plaintiff
did not establish a dangerous condition or notice. Plaintiff also argues that the
judge improperly granted summary judgment because the issue of causation is a
question of fact for the jury. Under the facts of this case, we conclude the judge
appropriately granted summary judgment.
1
To comport with our style conventions, we altered the capitalization of
plaintiff's points A and B, but have omitted these alterations for readability.
A-1847-20
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In Pennsylvania, the elements of negligence are: (1) the plaintiff must
establish that the defendants owed her a duty of care; (2) that duty was breached;
(3) that breach caused the plaintiff's injury; and (4) the plaintiff suffered an
actual loss or damages. Merlini v. Gallitzin Water Auth., 980 A.2d 502, 506
(Pa. 2009). As to the duty of a landowner,
[a] possessor of land is subject to liability for physical
harm caused to his invitees by a condition on the land
if, but only if, he (a) knows or by the exercise of
reasonable care would discover the condition, and
should realize that it involves an unreasonable risk of
harm to such invitees, and (b) should expect that they
will not discover or realize the danger, or will fail to
protect themselves against it, and (c) fails to exercise
reasonable care to protect them against the danger.
[Winkler v. Seven Springs Farm, Inc., 359 A.2d 440,
442 (Pa. Super. Ct. 1976) (quoting Restatement
(Second) of Torts § 343 (1965)).]
A dangerous condition is defined as a condition "that involves an unreasonable
risk of harm." Steinhouse v. Herman Miller, Inc., 661 A.2d 1379, 1382 (Pa.
Super. Ct. 1995) (quoting Restatement (Second) of Torts § 343(a)).
Plaintiff's civil engineering expert William A. Erdman observed the
accident location and opined that "pedestrians walking across parking lot islands
which are not designed for that purpose are faced with a dangerous condition,"
due to the speed at which drivers are navigating the parking aisles, worn areas
A-1847-20
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in the grass behind the curb which create low spots that present tripping hazards,
and the presence of wetness on the ground. Based on these conditions and
defendants' alleged failure to discourage patrons from crossing the parking lot
islands, Erdman's report concluded that defendants were negligent in not
protecting plaintiff from a dangerous condition. Defendants' expert Daniel M.
Honig reviewed the accident location and "confirmed that there currently are no
less than code-compliant pedestrian conditions, including broken or missing
walkway elements, that could cause a pedestrian injury." Honig opined that
plaintiff's fall was caused by her failure to properly exercise caution while
traversing the parking lot.
Contrary to plaintiff's contention, Erdman's opinion does not preclude
summary judgment. Erdman's opinion must be based on facts "warranted by the
record," and the basis of his conclusion must not arise from the conclusion itself.
Collins v. Hand, 246 A.2d 398, 404 (Pa. 1967). Erdman's report found the
grassy island was a dangerous condition based on the potential presence of fast
drivers, low spots in the grass, and moisture on the ground, but his report fails
to articulate which of these potential hazards caused or contributed to plaintiff's
fall.
A-1847-20
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Plaintiff has the burden of proving what caused her fall, rather than
leaving it up to the jury to conjecture. See Rinaldi v. Levine, 176 A.2d 623,
626-27 (Pa. 1962). In Rinaldi, the plaintiff was unable to state exactly what
caused him to fall, as he testified that it was either "a piece of ice," "a ridge of
ice or something" on a sidewalk that caused him to slip. Id. at 626 (emphasis
and internal quotation marks omitted). The Pennsylvania Supreme Court held
that if the plaintiff did "not know what caused his fall, then only by conjecture
and guesswork could a jury find what caused him to fall." Ibid. The Court,
therefore, held that the plaintiff failed to establish the elements of negligence
because he failed in his obligation "to prove not only evidence of [a] dangerous
condition in the form of hills and ridges, but must show that the dangero us
obstructions on the sidewalk were the actual cause of the fall." Ibid. (quoting
Sellers v. Cline, 49 A.2d 873, 874 (Pa. Super. Ct. 1946)).
Plaintiff's deposition testimony did nothing to confirm the existence of a
dangerous condition. When asked whether she tripped and fell or slipped and
fell, plaintiff testified that she could not remember. When questioned regarding
what specific dangerous condition existed as referenced in her complaint,
plaintiff testified, "I just, you know, I fell, I fainted, or I lost consciousness, and
then I don't know anything else." Plaintiff stated she did not lose her balance
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when she put her foot on the brick and that she did not "remember exactly how
[she] fell." When asked about moisture on the ground, plaintiff stated her son
told her the ground was wet but that she did not know whether the wetness of
the grass caused her to fall.
Erdman's opinions contained in his report are, therefore, insufficient to
establish a factual dispute precluding summary judgment. He summarily
concluded a dangerous condition existed, but even plaintiff's deposition
testimony failed to establish that a dangerous condition caused her fall. Without
the existence of a dangerous condition or causation, defendants cannot be put
on actual or constructive notice. The evidence in the record lacks direct or
circumstantial evidence establishing that defendants' negligence caused
plaintiff's fall.
II.
Plaintiff argues the judge erred in granting summary judgment without
permitting plaintiff additional time to complete discovery. Plaintiff argues that
defense counsel did not produce the requested four pre-2017 incident reports
until after defendants' motion for summary judgment was filed and past the
discovery end date. Plaintiff contends that if she received the reports on time,
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she would have had the opportunity to investigate the incidents and depose
patrons and employees.
"Generally, summary judgment is inappropriate prior to the completion of
discovery." Wellington v. Est. of Wellington, 359 N.J. Super. 484, 496 (App.
Div. 2003). A plaintiff must "demonstrate with some degree of particularity the
likelihood that further discovery will supply the missing elements of the cause
of action." Ibid. (quoting Auster v. Kinoian, 153 N.J. Super. 52, 56 (App. Div.
1977)). The party opposing the summary judgment motion must specify the
need for more discovery, "rather than simply asserting a generic contention that
discovery is incomplete." Trinity Church v. Lawson-Bell, 394 N.J. Super. 159,
166 (App. Div. 2007). If the party cannot demonstrate the need for discovery
with sufficient particularity, like here, summary judgment is appropriate despite
discovery being incomplete. Badiali v. N.J. Mfrs. Ins. Grp., 220 N.J. 544, 555
(2015).
On June 23, 2020, plaintiff demanded records relating to patrons'
accidents while using the grassy medium. On July 23, 2020, defendants' counsel
sent one incident report identifying a September 4, 2019 injury sustained by a
patron. Following the deposition of the casino's security manager, in which he
described the requested reports, plaintiff's counsel sent a letter to defendants'
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counsel on October 5, 2020, requesting all of the reports from the last seven
years. Plaintiff's counsel sent multiple emails in October reiterating the request.
On October 30, 2020, the judge extended discovery to December 13. On
December 1, defendants' counsel sent a list of incidents relating to injuries
sustained while using the grassy medium, which was redacted. Plaintiff's
counsel sent another request for reports and narratives of the listed injuries.
Defendants filed a motion for summary judgment on December 2, and on
December 22, ten days after the close of discovery, defendants' counsel sent the
incident reports.
Plaintiff cannot demonstrate with particularity how further discovery will
support missing elements of her cause of action. See Wellington, 359 N.J.
Super. at 496. As the judge noted during the motion hearing, the record does
not clearly indicate the cause of her fall or the existence of a dangerous
condition. The requested discovery would not supply the missing elements of
negligence. Even if plaintiff could depose additional witnesses about their
accidents, their testimony would not provide plaintiff with evidence that an
allegedly dangerous condition caused her fall. Therefore, summary judgment
was not granted prematurely.
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III.
Plaintiff argues the judge's application of Gilligan v. Villanova
University, 584 A.2d 1005 (Pa. Super. Ct. 1991) to plaintiff's case was
misplaced. The judge relied on Gilligan in denying plaintiff's motion for
reconsideration, finding that plaintiff's choice to reject the available, marked
crosswalk when traversing the parking lot, the absence of a dangerous condition,
and the vagueness of what caused plaintiff's fall support granting summary
judgment in favor of defendants.
Gilligan involved a plaintiff's slip and fall while walking across the
Villanova University campus. Id. at 1006. The plaintiff was walking on a
"sidewalk which ended at some distance" before his destination. Ibid. "This
sidewalk ended where another began," which would have provided the plaintiff
with indirect access to his destination. Ibid. Instead of using the latter sidewalk,
the plaintiff crossed a grassy area in a direct route to the destination and fell.
Ibid. At the time, the weather was clear and cold, it was evening, and the
plaintiff testified the grassy area was snow-covered, uneven, and hilly. Ibid. On
appeal from the trial judge's grant of nonsuit to the defendant, the Pennsylvania
Superior Court concluded the plaintiff failed to state a cause of action when he
A-1847-20
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"voluntarily chose to walk upon an allegedly snow-covered grassy area, not
intended to be traversed by pedestrians, and subsequently fell." Id. at 1008.
Plaintiff distinguishes Gilligan because here, the ground was not snow-
covered, it was mid-day, and she was following other casino patrons through the
worn path on the grassy medium that was intended to be traversed. However,
the absence of other travelers on the route and the unestablished nature of the
plaintiff's path did not contribute to the Pennsylvania Superior Court's decision
in Gilligan. See ibid. The Superior Court concluded the plaintiff was familiar
with the safe, indirect sidewalk and offered no evidence that the safe pathway
was inadequate. Ibid. Although plaintiff testified that she was not aware of the
marked crosswalk leading from the parking lot to the casino, she had been to the
casino many times and her son testified that he was aware of and used the
marked crosswalk on prior visits to the casino. Plaintiff's expert observed
multiple signs directing patrons to "Please Use Crosswalk" at the end of various
parking lot mediums.
Gilligan is analogous to the facts here, as plaintiff chose to walk on a
shortcut through the grassy medium rather than the marked parking lot
crosswalks to enter the casino. There is no evidence that the crosswalks were
inadequate or not properly maintained. Furthermore, plaintiff cannot assert that
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the worn path on the grassy medium presents a dangerous condition yet argue
that the path was intended for patrons to use. Just as the Superior Court
discharged any duty from the defendants in Gilligan, here, defendants should
not be liable when plaintiff fell while voluntarily traversing an unmarked
shortcut instead of taking the safe, delineated crossway.
Plaintiff's remaining contentions are without sufficient merit to warrant
discussion in a written opinion. R. 2:11-3(e)(1)(E).
Affirmed.
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