PAUL CROOK VS. HARRAH'S ATLANTIC CITY OPERATING CO., LLC, ETC. (L-1308-17, ATLANTIC COUNTY AND STATEWIDE) ( 2020 )

NOT FOR PUBLICATION WITHOUT THE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-2530-18T1
PAUL CROOK,
Plaintiff-Appellant,
v.
HARRAH'S ATLANTIC CITY
OPERATING CO., LLC d/b/a
HARRAH'S RESORT ATLANTIC
CITY,
Defendants-Respondents.
________________________________
Argued February 6, 2020 – Decided July 9, 2020
Before Judges Alvarez and Nugent.
On appeal from the Superior Court of New Jersey, Law
Division, Atlantic County, Docket No. L-1308-17.
Jeffrey V. Stripto argued the cause for appellant (Law
Offices of Roy D. Curnow, attorneys; Roy D. Curnow,
on the briefs).
Justin A. Britton argued the cause for respondents
(Cooper Levenson, PA, attorneys; Justin A. Britton and
Russell L. Lichtenstein, on the brief).
PER CURIAM
Plaintiff, Paul Crook, appeals the summary judgment dismissal of his
personal injury complaint, which alleged that he slipped, fell, and susta ined
injuries on steps leading to a pool in defendant Harrah's Atlantic City Operating
Co.'s (Harrah's) hotel and casino. Because we conclude genuine issues of
material fact should have precluded the grant of summary judgment to Harrah's,
we reverse and remand for trial.
This action's procedural history is uneventful. In March 2017, plaintiff
filed his negligence complaint against Harrah's in Monmouth County. Harrah's
answered and later filed a motion to change venue to Atlantic County, which the
court granted. Following completion of discovery, Harrah's moved for summary
judgment. The trial court granted the motion and plaintiff filed this appeal.
The motion record, construed in the light most favorable to plaintiff as the
non-moving party, Petro-Lubricant Testing Labs., Inc. v. Adelman, 233 N.J.
236, 256 (2018), includes the following facts. Plaintiff, an employee of a liquor
establishment, was attending a liquor industry convention at Harrah's with a co-
worker and his boss during the March 2015 evening of this fall. The convention
was held in an area known as the Pool After Dark (the pool room), which
plaintiff described as a large "nightclub setting" with an unoccupied pool in the
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middle. According to plaintiff, the pool room was dimly lit, crowded, and
humid. Plaintiff, his co-worker, and his boss walked around the pool room for
approximately an hour visiting various exhibit booths. When they finished
visiting the booths, they walked toward a three-step stone staircase, which they
had to descend. Plaintiff's boss and co-worker descended the stairs without
incident. Plaintiff, following behind, slipped on the second step, missed the last
step, and landed "Indian style" on the floor, injuring his left knee.
In his deposition, plaintiff testified there was a landing and three steps in
the area where he fell. He described his fall as follows:
I'm just basically walking as normal, like a regular
person, like regular, and went to step down. Got down
the first step. Went to the second step getting read[y]
to go to the third step. My foot just went from
underneath me. I completely missed the last step to get
to the bottom. Went directly to the bottom, and my left
leg went underneath me. At the same time I kind of
went falling down Indian style.
Plaintiff explained that after he fell, he noticed moisture on the step.
Asked to describe what he meant by moisture, he replied: "Like condensation.
Like little drips of water when we looked back, but I didn't see it at first." Asked
for a detailed description, plaintiff said he was not sure, "but it was basically
like I want to say a wet spot. I guess." He added: "Because it was kind of humid
in there, also. The [p]ool, it was, like real packed in there. So, it was really
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basically squeeze by, turn to the side room, and there was a lot of people in
there."
Pressed further to describe what he saw on the steps, plaintiff said he
"couldn't really see" but felt that it was wet. He explained, "[b]ecause as I went
to push up, you know, that's the first thing I grabbed was, like, the step to help
myself up." He further explained that he grabbed the second step and his hands
were wet with water, but he didn't have a drink.
Plaintiff was wearing Timberland construction boots with rubber soles.
After he fell, security personnel arrived with a wheelchair and removed him to
a back room. Plaintiff told the security guard what happened. Asked during his
deposition what the security person said about a dress code, plaintiff responded:
"When he asked how it happened, he looked down and saw I was wearing boots.
I had on Tims. 'That's why we don't allow people to wear boots,' and I said
nobody told us."
Plaintiff provided the certification of the co-worker who was with him
when he fell. The co-worker stated:
One of the Harrah's employees who had attended to
[plaintiff] spoke to me; he stated (as did [plaintiff]) that
he ([plaintiff]) had slipped on moisture on one of the
steps. Referring to [plaintiff's] footwear (rubber-soled
construction boots), the employee (a male) stated to me
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that "this is why we don't allow people with boots in the
pool area."
Plaintiff also submitted an expert report from a consulting engineer. The
engineer described the stairs as "masonry construction[,] . . . approximately
102.5-inches in overall width[,]" with stair riser heights and tread widths of
approximately six and twelve inches, respectively. She reported, "[t]he overall
stair count is three . . . steps from the pool area to the upper landing area." She
also noted handrails were located on both sides of the stairs.
The engineer opined the wet marble treads created a dangerous condition
that caused plaintiff's fall. She tested the steps, wet and dry, for a coefficient of
friction. "The coefficient of friction, a dimensionless number, reflects the level
of floor traction, enabling persons with the ability to safely traverse without
slippage or falling events." According to the expert's report, the American
National Standards Institute (ANSI) and the National Floor Safety Institute
(NFSI) determined that a coefficient of friction value of 0.60 is "High Traction"
with a "lower probability of slipping," while a coefficient of friction value from
0.40 to 0.60 is "Moderate Traction" with an "increased probability of slipping."
The American Society for Testing and Materials (ASTM) recommends a
coefficient of friction value of 0.5 and the Americans with Disability (ADA)
Code requires a coefficient of friction level of 0.6 for floor surfaces. The
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engineer performed tests to determine the coefficient of friction of the steps in
a dry state, 0.62, and in a wet state, 0.45. The engineer explained:
The reduction in traction represents an increase in
slipperiness, which is captured by the coefficient of
friction testing performed herein. Therefore, the
subject floor friction levels when matched against the
accepted industry standards and applicable codes (Code
of Federal Regulations, etc.), the resulting wet floor
fails to comply and produces a hazardous and
dangerous walking surface condition. In other words,
slippage occurs due to the diminished traction
available, which falls below the code required levels
(0.6 coefficient of friction) and the floor wetness
coupled with the lack of proper maintenance, i.e., floor
mopping efforts to maintain sanitary levels and/or
carpeted mat usage to cover the wetness to safeguard
the public from wet floor conditions, resulted in the
slippage event, causing the plaintiff's injury to occur.
The engineer's inspection of the steps included photographing them.
Concerning "Photo 6," the report states:
Detailed view of the stair tread surface. Not[e] the lack
of abrasive material and the smooth (shine) on the stair
tread. Also note the lack of stair tread nosing
delineation. Furthermore, the photo was taken with
water placed upon the stair tread which is not readily
discernible; even in daylight hours. As such, wetness
on the stair surface during "club-like" lighting
conditions would not be observable to the plaintiff.
Note the depressions in the stair tread which likely
capture and "pool" water in the same; thus preventing
any water from running off the surface and to remain
on same.
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The engineering expert explained, "the wetness/wet substance present and
the absence of nonslip/abrasive surfacing . . . on the stair tread regions yielded
unsafe conditions for pedestrians." She added, "[t]he plaintiff's fall occurred
because the amount of traction (frictional force) generated between the shoe sole
material and contact walking surface was insufficient due to the wetness on the
floor surface; thereby inhibiting the plaintiff's natural upright stability, which
results in fallings." The engineer opined "the fact that the stair surface, adjacent
to a pool (with water), creates an inherently slippery and dangerous walking
surface condition . . . further intensifies the hazard to pedestrians."
The expert concluded:
In my opinion, the plaintiff's injury would have been
avoided had the interior egress stairs been properly
maintained in accordance with applicable codes,
accepted industry standards and reasonable safety
practice and had the stair treads been constructed or
altered with non-slip surface. Therefore, had the
property owner/manager commercial business
establishment/responsible entity endeavored to
maintain the interior egress stairs free of hazardous
conditions and/or posted warning signage forewarning
the public of an inherently hazardous walking surface
hazard, then it is further my opinion that the plaintiff's
injury in this instance would have been avoided.
Additionally, the above-mentioned stairway hazards
represent a condition that could have been avoided
through a reasonable inspection of the property.
Therefore, the aforementioned hazard's existence,
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clearly underscores the lack of proper maintenance
afforded to the property, which ultimately caused the
plaintiff's injury to occur.
In the oral opinion it delivered from the bench following argument on the
motion, the trial court determined Harrah's had no actual or constructive notice
of the condition that caused plaintiff's fall. Specifically, the court found "the
plaintiff did not demonstrate in his moving papers that Harrah's created the
moisture, condensation or the wet spot on the steps, or had actual or constructive
notice of same." The court made no reference in its opinion to the statements of
the security personnel about why work boots were prohibited in the pool area.
Concerning plaintiff's expert, the trial court found the expert expressed a
net opinion. The court rejected the opinion because the expert based it on
plaintiff's testimony that the step was wet. The court stated, "this [c]ourt finds
that the record does not reflect what plaintiff slipped on or that the plaintiff
slipped on any particular liquid." Because the expert based her testimony on a
factual predicate the trial court found did not exist, namely, the step plaintiff
slipped on was wet, the court rejected the expert's testimony.
Plaintiff appeals from the order granting summary judgment. He argues
that genuinely disputed issues of material fact should have precluded the grant
of summary judgment. He contends no explanation exists for the trial court
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overlooking the significance of his footwear other than the court having
considered the certification from a defense witness that the court said it would
not consider. He also argues the trial court's "finding of fact" that he did not
establish water was on the step is contradicted by his deposition testimony;
consequently, the court's finding amounted to a determination of a disputed fact
that usurped the function of the factfinder. Last, he argues the trial court's
finding that his expert expressed a net opinion is based on the court's factual
determinations that are contradicted by the record and the court's disregard of
the standards the expert cited in her report.
Harrah's responds that the trial court did not err in determining plaintiff
could not prove negligence because plaintiff was incapable of establishing
Harrah's knew or should have known of the alleged dangerous condition.
Harrah's argues that plaintiff's expert did indeed express a net opinion. Harrah's
also argues the court did not rely upon an improper certification from a witness
in reaching its conclusion.
In evaluating these arguments, we are guided by settled legal principles.
A trial court's order granting summary judgment is entitled to no "special
deference" by an appellate court and is subject to de novo review. Cypress Point
Condo. Ass'n v. Adria Towers, L.L.C., 226 N.J. 403, 415 (2016). Appellate
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courts "review the competent evidential materials submitted by the parties to
identify whether there are genuine issues of material fact and, if not, whether
the moving party is entitled to summary judgment as a matter of law." Bhagat
v. Bhagat, 217 N.J. 22, 38 (2014) (citing Brill v. Guardian Life Ins. Co. of Am.,
142 N.J. 520, 540 (1995)); R. 4:46-2(c). Here, we conclude genuine issues of
material fact preclude the grant of summary judgment to Harrah's.
For purposes of the summary judgment motion, Harrah's conceded
plaintiff was a business invitee. "Business owners owe to invitees a duty of
reasonable or due care to provide a safe environment for doing that which is
within the scope of the invitation." Nisivoccia v. Glass Gardens, Inc., 175 N.J.
559, 563 (2003). "The duty of due care to a business invitee includes an
affirmative duty to inspect the premises and 'requires a business owner to
discover and eliminate dangerous conditions, to maintain the premises in safe
condition, and to avoid creating conditions that would render the premises
unsafe.'" Troupe v. Burlington Coat Factory Warehouse Corp., 443 N.J. Super.
596, 601 (App. Div. 2016) (quoting Nisivoccia, 175 N.J. at 563).
"Ordinarily an injured plaintiff asserting a breach of that duty must prove,
as an element of the cause of action, that the defendant had actual or constructive
knowledge of the dangerous condition that caused the accident." Nisivoccia,
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175 N.J. at 563 (citing Brown v. Racquet Club of Bricktown, 95 N.J. 280, 291
(1984)). A plaintiff may prove constructive notice by establishing "the
condition existed 'for such a length of time as reasonably to have resulted in
knowledge and correction had the defendant been reasonably diligent.'" Troupe,
443 N.J. Super. at 602 (quoting Parmenter v. Jarvis Drug Stores, Inc., 48 N.J.
Super. 507, 510 (App. Div. 1957)).
In addition, "[c]onstructive notice can be inferred in various ways." Ibid.
For example, "[t]he characteristics of the dangerous condition giving rise to the
slip and fall, or eyewitness testimony, may support an inference of constructive
notice about the dangerous condition." Ibid. (citations omitted).
In some instances, due to equitable considerations, a plaintiff may be
relieved of proof of actual or constructive notice. Nisivoccia, 175 N.J. at 563.
Thus, "when a substantial risk of injury is inherent in a business operator's
method of doing business, the plaintiff is relieved of showing actual or
constructive notice of the dangerous condition." Id. at 564. In those
circumstances, "[t]he plaintiff is entitled to an inference of negligence, shifting
the burden of production to the defendant, who may avoid liability if it shows
that it did 'all that a reasonably prudent [person] would do in light of the risk of
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injury [the] operation entailed.'" Id. at 564-65 (third alteration in original)
(quoting Wollerman v. Grand Union Stores, Inc., 47 N.J. 426, 429 (1966)).
Applying these principles to the facts on the motion record under ou r
established standard of review, we conclude plaintiff's complaint should not
have been dismissed on summary judgment. First and foremost, a factfinder
could reasonably infer the step plaintiff slipped on was wet. Plaintiff said it was
wet. Specifically asked during his deposition whether he saw anything before
he fell, the plaintiff replied he had not. When prodded, "what about after you
fell," defendant responded, directly and unequivocally, "[t]here was moisture."
Pressed further to describe what he meant by moisture, he said "[l]ike little drips
of water when we looked back, but I didn't see it at first." He added that it was
a wet spot. He also noted the humidity was high. Later in his deposition, he
added that the step was wet and that he felt it.
That plaintiff did not perceive the step was wet before he fell is
understandable, particularly when considered in light of his expert's testimony
and the photographs she included with her report. According to this evidence,
water on the step could not be discerned even when the area was well lit, in
contrast to the lighting on the night plaintiff fell. In short, if a factfinder
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determines plaintiff's testimony is credible, the factfinder can readily find the
step was wet.
Moreover, a reasonable factfinder could also infer from the statement
security personnel made to plaintiff and plaintiff's co-worker, particularly
considering the context in which the statements were made, that the condition
was recurring and posed a danger to patrons wearing boots. That evidence,
considered in light of plaintiff's engineering expert's conclusions based on
coefficients of friction on dry and wet stairs, supported the inference that
Harrah's personnel were aware of the condition and had implemented a
prohibition against wearing boots for that very reason. As previously noted, the
trial court did not mention the statements of the security personnel when it
delivered its opinion.
Plaintiff's failure to identify the precise cause of the wet step is not fatal.
Patrons were not using the pool the night plaintiff fell, so that is an unlikely
source of the moisture on the steps. Plaintiff apparently thought the humidity
caused the moisture. The source of the moisture, however, is not critical. The
knowledge the step when wet became a slipping hazard for people with boots,
and the foreseeability that the steps would become wet during Harrah's operation
of the pool room—for patrons using the pool, for business invitees attending a
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conference or convention, or for some other event—were facts from which a
jury could determine Harrah's breached its duty by not warning plaintiff or
taking other measures suggested by plaintiff's expert.
We would be remiss if we did not comment on Harrah's attempt to submit
the certification of a witness, not previously identified, concerning the pool
room dress code and other issues. Plaintiff objected to the use of the wi tness's
certification because the witness had not been named as such in Harrah's
interrogatory answers or elsewhere until after the first trial listing and after the
summary judgment motion was filed. Although the trial court, for other reasons,
did not consider the certification, our opinion should not be construed as
condoning such a practice. The non-disclosure of a key witness until after
discovery has ended can render meaningless the time and money a party who
complies with the court rules has expended in fairly conducting discovery. We
note only that a trial court has broad discretion and a range of remedies to
discourage such practice.
Last, we emphasize that our reversal includes the trial court's finding
plaintiff's expert expressed a net opinion. That said, we have not and do not
suggest plaintiff's expert either has, or has not, rendered a net opinion. The trial
court's decision the opinion was net is based on the erroneous determination
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plaintiff did not establish the step he slipped on was wet. Whether the opinion
is net, as is the case with any expert, can be appropriately addressed during a
hearing conducted pursuant to N.J.R.E. 104, where a comprehensive record can
be made in the event the need for appellate review arises in the future.
Reversed and remanded for further proceedings consistent with this
opinion. We do not retain jurisdiction.
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