Janet v. Brookdale Resort, Inc.

878 F. Supp. 696, 1995 U.S. Dist. LEXIS 2791, 1995 WL 103663
CourtDistrict Court, M.D. Pennsylvania
DecidedJanuary 5, 1995
DocketNo. CV-94-0746
StatusPublished

This text of 878 F. Supp. 696 (Janet v. Brookdale Resort, Inc.) is published on Counsel Stack Legal Research, covering District Court, M.D. Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Janet v. Brookdale Resort, Inc., 878 F. Supp. 696, 1995 U.S. Dist. LEXIS 2791, 1995 WL 103663 (M.D. Pa. 1995).

Opinion

MEMORANDUM

VANASKIE, District Judge.

This suit involves a slip and fall in February of 1993 on the premises of the Defendant, Brookdale Resort, Inc. (“Brookdale”). Presently pending are Brookdale’s motions for summary judgment, (Dkt. Entry #9), and to strike the affidavit of Plaintiff Janet Meddick, (Dkt. Entry # 16).

Brookdale contends that Janet Meddick’s affidavit is too conelusory and not based on personal knowledge. Because Janet’s affidavit of October 30, 1994, does not fail to comport with Federal Rule of Civil Procedure 56(e), Brookdale’s motion to strike will be denied.

The summary judgment motion is premised upon Plaintiffs’ alleged inability to identify the cause of her fall and Janet Meddick’s purported assumption of the risk. Because the Meddicks have presented sufficient facts to establish a triable issue as to the actual cause of Janet’s fall, and because reasonable minds could disagree whether Janet deliberately and with the awareness of specific risks inherent at the time of her fall nonetheless walked upon the ice that allegedly caused her injury, Brookdale’s motion for summary judgment will be denied.

I. Factual and Procedural Background

Janet and Jerome Meddick were guests at the Brookdale resort at the time of Janet’s accident on February 18, 1993. On that date, the Meddicks went to the Brookdale Lodge at approximately 4:00 p.m. Snow flurries were gusting at the time. The Med-dicks left the lodge shortly before 5:00 p.m. to go to their townhouse. By this time, snow was falling steadily and continued to do so through the time of the accident. The Med-dicks left their townhouse about 7:10 p.m. to walk across the parking lot to their car. Janet slipped and fell before she stepped into her ear.

Brookdale filed the instant motion for summary judgment on September 14, 1994. In response to Brookdale’s contention that Janet did not know with certainty the cause of her fall, the Meddicks filed an affidavit exe[698]*698rated by Janet, in which she states, inter alia, “I know that I fell on the ice” (Dkt. Entry # 13 at Ex. “E.”) On October 14, 1994, Brookdale moved to strike Janet’s affidavit.

II. Discussion

A.

In arguing that the Meddicks failed to establish the cause of Janet’s fall, Brookdale relies upon Janet’s following deposition testimony:

Q. And at the time you fell, do you know specifically what it was that caused you to fall?
A. ... As I was getting up [after my fall], I couldn’t get a firm hold on the ground, because I kept slipping ... and I could tell at the time I was on solid ice. There’s like, little bumps. I could, at least, get a grip on that____ So it was my assumption I fell because of the ice, which wasn’t really as apparent because of the dusting of snow.

(Janet’s Dep. at 54-55 (emphasis added).)1 In her affidavit, Janet averred:

I fell on ice which was formed in little bumps underneath the snow below my feet____ I know that I fell on the ice and it was formed in little bumps____ [Affidavit attached as Ex. “E” to Dkt. Entry #13.]

In moving to strike this affidavit, Brook-dale argues that it does not comply with Fed.R.Civ.P. 56(e) for the following reasons: 1) no evidence exists to substantiate Janet’s “personal knowledge of the matters referred to in her affidavit”; and 2) the “affidavit provides ultimate or conclusory facts and has no probative value.” (Dkt. Entry # 16 at ¶ 5.)2 The affidavit, however, does not violate Fed.R.Civ.P. 56(e), for Janet merely states that which occurred in her accident. It is based on personal knowledge and speaks to the event which forms the very heart of this suit. Brookdale’s motion to strike consequently will be denied.

B.

Relying solely upon Janet’s deposition testimony, Brookdale argues that the Med-dick’s did not establish what caused Janet’s fall. (See Dkt. Entry # 10 at 6.) Brookdale relies on, inter alia, Burke v. Leader Dogs for the Blind, 516 F.Supp. 1374 (E.D.Pa. 1981), and Rogers v. South Philadelphia National Bank, 160 Pa.Super. 154, 50 A.2d 697 (1947). In Burke, 516 F.Supp. at 1375, the plaintiff, who was “blind, fell and suffered injuries when his seeing eye dog, supplied to him by defendant, reacted to the presence of another dog in the vicinity.” The evidence considered by the court consisted of the deposition testimony of an eyewitness who viewed the accident from across the street. Id. The witness testified that the accident occurred on the “sidewalk [which] contained uneven bricks uprooted by a tree.” Id. The court, in granting summary judgment to .the owner of the sidewalk, concluded that no evidence linked “the uneven bricks to plaintiffs fall.” The court reasoned that the plaintiff needs “to prove “what actually caused the accident, not what might possibly have caused it.’ ” Id. (emphasis in original).

In Rogers, 160 Pa.Super. at 156, 50 A.2d 697, the slip and-fall plaintiff testified that as she was walking, “she was ‘hurled to the pavement’ ” — and this description effectively constituted the only evidence about how the accident happened. The plaintiff examined [699]*699the site of the accident a few minutes after-wards and “found this pocket in the pavement, and it was shaped exactly like a heel,” which the plaintiff alleged was the defect that established the defendant’s negligence. Id. The court concluded that the-plaintiff failed to show that her injuries resulted because of the defendant’s negligence.

In contrast to those cases, in McMillan v. Mountain Laurel Racing, Inc., 240 Pa.Super. 248, 367 A.2d 1106, 1109 (1976), the slip and fall plaintiff stated:

I slipped and I fell, and it was something on the floor, whether — my trousers was wet in the back — but I don’t know what I slipped on. There was paper and cups and stuff all over the floor, but I don’t know what I slipped on.

The court rejected the contention that the plaintiff failed to identify the cause of her fall, stating: “ ‘It is not necessary ... that every fact or circumstance point unerringly to liability; it is enough that there be sufficient facts for the jury to say reasonably that the preponderance favors liability.’ ” Id., 367 A.2d at 1111.

The evidence concerning the cause of Janet’s fall is more probative than in Rogers or Burke. Janet clearly indicates, through her deposition testimony and affidavit, that the ice caused her to fall. This evidence constitutes “ ‘sufficient facts for the jury to say reasonably that the preponderance favors liability.’ ” McMillan, 367 A.2d at 1111.3

C.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Carey v. Beans
500 F. Supp. 580 (E.D. Pennsylvania, 1980)
McMillan v. Mountain Laurel Racing, Inc.
367 A.2d 1106 (Superior Court of Pennsylvania, 1976)
Howell v. Clyde
620 A.2d 1107 (Supreme Court of Pennsylvania, 1993)
Burke v. Leader Dogs for the Blind
516 F. Supp. 1374 (E.D. Pennsylvania, 1981)
Hardy v. Southland Corp.
645 A.2d 839 (Superior Court of Pennsylvania, 1994)
Rutter v. Northeastern Beaver County School District
437 A.2d 1198 (Supreme Court of Pennsylvania, 1981)
Carrender v. Fitterer
469 A.2d 120 (Supreme Court of Pennsylvania, 1983)
Rogers v. South Philadelphia National Bank
50 A.2d 697 (Superior Court of Pennsylvania, 1946)

Cite This Page — Counsel Stack

Bluebook (online)
878 F. Supp. 696, 1995 U.S. Dist. LEXIS 2791, 1995 WL 103663, Counsel Stack Legal Research, https://law.counselstack.com/opinion/janet-v-brookdale-resort-inc-pamd-1995.