Opinion
Civil No. 00-2557 (JBS).
Filed: August 20, 2001
Edward H. Mulvihill, Esquire, MARMERO MAMMANO, P.C., Berlin, New Jersey, Counsel for Plaintiff.
Kurt Lee Weinmann, Esquire, GARBARINI SCHER, P.C., Hackensack, New Jersey, Counsel for Defendant.
OPINION
This case arises from a slip and fall accident which plaintiff, Geraldine McCusker, had while eating lunch in the cafeteria at her place of employment, which was managed by the Marriott Corporation ("Marriott Corp"), Marriott Management Services Corporation ("Mariotta"), and Sodexho Marriott Management, Incorporated ("Sodexho") (collectively, "defendants"). Plaintiff alleges that defendants were negligently responsible for the accident, which caused her painful temporary and permanent injuries, and she seeks to recover damages, interest, and costs of suit. Edward McCusker, plaintiff's husband, also asserts a claim and seeks to recover for loss of consortium. Now before the Court is defendants' motion for summary judgment. For the reasons stated herein, defendants' motion will be denied.
Although Geraldine and her husband Edward are both plaintiffs, the Court refers to Geraldine as plaintiff singular throughout this opinion, because most of the events discussed do not involve Edward.
I. BACKGROUND
The undisputed facts are as follows. Plaintiff, Geraldine McCusker, is an employee of West Jersey Medical Center, located at 1000 Atlantic Avenue, Camden, New Jersey. On July 23, 1997, at approximately 12:30 p.m., plaintiff and a co-worker, Annamarie E. Sebastiano ("Sebastiano"), entered the West Jersey Medical Center cafeteria for lunch. Plaintiff purchased a bowl of soup in the serving area, which she brought back to the seating area for consumption. Upon completion of her meal, plaintiff brought her tray and bowl to the return-tray service area, where she slipped and fell. Plaintiff admits that she walked away from the accident.
The facts as stated here are compiled from the sparse factual submissions by the parties, which are largely in accord. Any relevant facts to which the parties have not agreed will be followed by the appropriate citation.
Plaintiff concedes that the lighting in the return-tray area was good and also that she was unaware of any previous complaints about the return-tray area. Plaintiff ate in the cafeteria on a daily basis. Although plaintiff did not see the alleged wet spot prior to her fall, plaintiff avers that she felt that the floor was wet after her fall. Sebastiano also gave deposition testimony that she recalled that the floor appeared wet prior to plaintiff's fall, although she could not describe the color or odor of the substance.
In her deposition, (see Pls.' Br., Ex. A), plaintiff testified that after her fall, a maintenance man helped her up and advised her that he had been moping and that he should not have left the area (see id. Tr. 39:20 to 42:10). Plaintiff also testified that the cafeteria manager advised her after the fall that the maintenance man had just mopped up a spill and had left to get a warning sign. (See Pls.' Br., Ex. A, Tr. 142:4-14.) Plaintiff knew the maintenance man only as Joe and the cafeteria manager only as Susan. Although the cafeteria where the accident took place was owned by West Jersey Hospital, the cafeteria was managed by defendants. According to deposition testimony proffered by plaintiffs, which defendants do not dispute, defendants were also responsible for housekeeping and floor cleaning in the cafeteria. (See Pls.' Br. at 3, ¶ 2; Ex. C Deposition of John F. Loughran; Exs. D-E, Interim Agreement between West Jersey Health System and Marriott Management Services Corp.)
On or about February 23, 2001, plaintiffs filed an amended complaint against defendants in the Superior Court of Camden County, Docket No. L-05407-99. On May 26, 2000, the case was removed to this Court. On February 27, 2001, defendants filed this motion for summary judgment. This Court has diversity jurisdiction pursuant to 28 U.S.C. § 1332, and the law of New Jersey provides the rule of decision.
II. DISCUSSION
A. Summary Judgment Standard
Summary judgment is appropriate when the materials of record "show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). A dispute is "genuine" if "the evidence is such that a reasonable jury could return a verdict for the non-moving party." See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A fact is "material" only if it might affect the outcome of the suit under the applicable rule of law. Id. Disputes over irrelevant or unnecessary facts will not preclude a grant of summary judgment. Id.
In deciding whether there is a disputed issue of material fact, the court must view the evidence in favor of the non-moving party by extending any reasonable favorable inference to that party.See Aman v. Cort Furniture Rental Corp., 85 F.3d 1074, 1080-81 (3d Cir. 1996); Kowalski v. L F Prods., 82 F.3d 1283, 1288 (3d Cir. 1996). The threshold inquiry is whether there are "any genuine factual issues that properly can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party." Liberty Lobby, 477 U.S. at 250; Brewer v. Quaker State Oil Refining Corp., 72 F.3d 326, 329-330 (3d Cir. 1995) (citing Anderson, 477 U.S. at 248) ("[T]he nonmoving party creates a genuine issue of material fact if it provides sufficient evidence to allow a reasonable jury to find for him at trial.").
The moving party, here the defendant, always bears the initial burden of showing that no genuine issue of material fact exists, regardless of which party ultimately would have the burden of persuasion at trial. See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986); Jalil v. Avdel Corp., 873 F.2d 701, 706 (3d Cir. 1989), cert. denied, 493 U.S. 1023 (1990). However, where the nonmoving party bears the burden of persuasion at trial, as in the present case, "the burden on the moving party may be discharged by `showing' — that is, pointing out to the district court — that there is an absence of evidence to support the nonmoving party's case." Celotex Corp., 477 U.S. at 325.
The non-moving party, here the plaintiff, "may not rest upon the mere allegations or denials of" its pleading in order to show the existence of a genuine issue. Fed.R.Civ.P. 56(e). It must do more than rely only "upon bare assertions, conclusory allegations or suspicions." Gans v. Mundy, 762 F.2d 338, 341 (3d Cir. 1985), cert. denied, 474 U.S. 1010 (1985) (citation omitted); see Liberty Lobby, 477 U.S. at 249-50; Celotex, 477 U.S. at 324-25. Once the moving party has carried its burden of establishing the absence of a genuine issue of material fact, "its opponent must do more than simply show that there is some metaphysical doubt as to material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). Thus, if the non-movant's evidence is merely "colorable" or is "not significantly probative," the court may grant summary judgment. Anderson, 477 U.S. at 249-50.
B. Application
In order to sustain their claims at trial, the plaintiffs must prove (in addition to damages), that some action or omission of the defendant caused the plaintiff's injuries, and that such action or omission fell below the applicable standard of care. In the summary judgment motion, defendants argue that, based on the record currently before the Court, plaintiffs have failed to establish that defendants had notice of the alleged wet condition of the cafeteria floor and also that plaintiffs have failed to show that the condition caused Mrs. McCusker's fall, and therefore summary judgment should be entered in favor of defendants. Plaintiffs argue that enough evidence has been presented, in the form of deposition testimony from plaintiff Geraldine McCusker and eyewitness Annamarie Sebastiano, to raise genuine issues of material fact about defendants' actual or constructive knowledge of the wet area and the wet area's causal relation to plaintiff's alleged damages. The Court agrees that plaintiffs have raised a genuine issue of material fact regarding defendants' liability, and therefore summary judgment is not proper at this time. Defendants' motion for summary judgment will be denied.
Defendants argue that summary judgment is proper because, based on the evidence presented, plaintiff cannot show by a preponderance of the evidence that a reasonable jury could find that defendants had actual or constructive knowledge of the wet floor condition or that defendants' actions, in not properly cleaning or warning of the wetness, negligently caused plaintiff's fall. See Thorn v. Travel Care, Inc., 296 N.J. Super. 341, 345 (App.Div. 1997) (citing Kulas v. Public Serv. Elec. Gas Co., 41 N.J. 311, 317 (1964)); Vander Gfoef v. Great Atlantic and Pacific Tea Co., 32 N.J. Super. 365 (App. Div. 1954) (quoting Hansen v. Eagle-Picher lead Co., 8 N.J. 133, 139-40 (1951)). The Court notes that defendants, in their reply brief in support of summary judgment, raise for the first time the defense that defendants may not be held liable under the doctrine of respondeat superior for the alleged negligence of a hospital maintenance worker. This is outside the scope of the pleadings (no such defense was raised by defendants) and outside the scope of the moving and opposition briefs. Because this issue is one that would require discovery about the actual employment status of the maintenance worker, the Court will not consider this argument in this motion.
Plaintiff has presented evidence from which a reasonable jury could find that the linoleum cafeteria floor, maintained by defendants, was wet at the time of her fall. Additionally, the Court is satisfied that plaintiff has come forward with enough evidence that defendants were aware of the wet floor condition prior to plaintiff's fall to defeat summary judgment at this stage. Defendants, however, correctly argue that a plaintiff must do more than prove that the defendant acted negligently in failing to make safe or warn others of a dangerous condition; the plaintiff must also prove that the negligence caused the injury.See Fedorczyk v. Caribbean Cruise Lines, Ltd., 82 F.3d 69, 74 (3d Cir. 1996) (plaintiff's expert opined that strips on bottom of bathtub were too far apart and that someone could slip if standing between them, but no proof of causation because no evidence that plaintiff was actually standing between the strips). This Court is satisfied that plaintiff has met her burden of showing that the wet area, whatever the actual substance, could reasonably be found to have caused her fall in the cafeteria. There is no evidence that any other obstacle caused her fall or that plaintiff was walking in a rushed, careless or inappropriate manner when she fell.
Plaintiff proffers the deposition testimony of herself and an eyewitness to the accident, Annamarie Sebastiano. In her deposition testimony, plaintiff refers to statements allegedly made by two cafeteria employees, which indicate that the wet area was known to the cafeteria management. Specifically, plaintiff testified that a maintenance man named Joe advised her that he had been mopping just prior to her fall, and that the cafeteria manager, Susan, informed her that Joe had left the area to retrieve a caution sign after he had mopped up a spill. (See Pls.' Br., Ex. A, Tr. 39:20-22 and Tr. 142:11-14.)
In the deposition testimony of eyewitness Annamarie E. Sebastiano, she stated that immediately prior to Geraldine's fall, she saw a wet spot on the floor. (See Pls.' Br., Ex. B, Tr. 18:7-10). Ms. Sebastiano stated that the wetness appeared to be clear. (Id.) Ms. Sebastiano further stated that she had, on previous occasions, seen wet spots in the cafeteria and, at times, warning signs alerting patrons to the condition. (Id. at Tr. 20:1-25.)
Thus, viewing all the evidence presented in a light most favorable to the non-moving party, here the plaintiffs, as a Court must on motion for summary judgment, this Court finds that a reasonable jury could conclude that the wet surface in the hospital cafeteria was a proximate cause of this accident. Because plaintiffs have shown that a genuine issue of material fact remains to be determined about the causation of plaintiff Geraldine McCusker's fall, summary judgment is inappropriate for the defendant at this time, and plaintiff's claim will proceed to trial, where she will bear the burden of proving her claims to the finder of fact by a preponderance of the evidence.
III. CONCLUSION
For the foregoing reasons, this Court will deny defendants' motion for summary judgment. Plaintiff's proofs, in the form of her testimony and the testimony of eyewitness Annamarie E. Sebastiano, are sufficient to present a material factual dispute as to duty and causation, upon which she still will have the burden of proof at trial. Accordingly, summary judgment for the defendant at this time is inappropriate. The accompanying Order is entered.
ORDER
This matter having come before the Court upon the defendants' motion for summary judgment; and the Court having reviewed the parties' submissions; and for the reasons stated in an Opinion of today's date;IT IS this day of August 2001 hereby
ORDERED that defendant's motion for summary judgment be, and hereby is, DENIED.