MARIA FAILLA v. MOUNT AIRY CASINO RESORT, LP (L-2253-19, BERGEN COUNTY AND STATEWIDE)

• Court: New Jersey Superior Court Appellate Division
• Decided: February 2, 2022
• Docket: A-1847-20
• Status: Unpublished

Opinion

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.

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

A-1847-20 2 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 3 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 4 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 5 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 6 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 7 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

A-1847-20 8 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,

A-1847-20 9 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'

A-1847-20 10 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.

A-1847-20 11 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 12 "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

A-1847-20 13 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.

A-1847-20 14