ROMEO v. CAESAR'S ENTERTAINMENT OPERATING COMPANY, INC.

Filing 32

OPINION. Signed by Judge Joseph H. Rodriguez on 1/26/2016. (drw)

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
_________________________
CHARLES ROMEO,
:
Plaintiff,

:

v.

Hon. Joseph H. Rodriguez
Civil Action No. 13-2133

:

Caesar’s Entertainment Operating
Company, Ltd d/b/a/ Harrah’s Resort
Atlantic City,
Defendants.
__________________________

:
:
:

OPINION

:
:

This matter comes before the Court on Motion of Defendant Harrah’s
Resort Atlantic City for Summary Judgment pursuant to Fed. R. Civ. P. 56. 1
Principally, Harrah’s claims that it is not liable for Plaintiff Charles
Romeo’s slip and fall accident at its casino because Plaintiff cannot make a
prima facie case of negligence. Harrah’s argues that it did not owe a duty of
care to Romeo because it lacked both actual and constructive notice of the
dangerous condition that Plaintiff alleges caused his fall.
The Court has considered the written submission of the parties and
heard argument on the motion during a hearing on September 22, 2015.
On September 30, 2015, the Court ordered the parties to brief the impact of
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The caption of the case identifies Plaintiff as Caesar’s Entertainment Operating Company, Ltd d/b/a/ Harrah’s
Resort Atlantic City.

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the New Jersey Supreme Court’s decision in Prioleau v. Kentucky Fried
Chicken, Inc. 223 N.J 245, 122 A.3d 328 (2015) on the matter at hand. The
Court has considered the supplemental submissions.
For the reasons expressed on the record on September 22, 2015 and
those that follow, Defendant’s motion for summary judgment is denied.
I.

Background

Romeo claims that he slipped and fell at Defendant’s Atlantic City
casino on March 19, 2011. Video surveillance shows that a patron of the
casino spilled a liquid beverage on a common walkway at approximately
7:03 p.m. See Def. Ex. A, Surveillance Video. Approximately four minutes
later, the same video depicts Romeo slipping on the spilt liquid, appearing
to cause his fall. Id. There is no dispute as to the contents of the video.
Plaintiff alleges the liquid on the floor of the common area caused his fall
and subsequent injuries.
Harrah’s in house cleaning department is called EVS. EVS is
responsible for cleaning the public areas of the casino and has its
employees stationed throughout the casino. An EVS supervisor testified
that the area in which Romeo fell is inspected every thirty (30) to forty (40)
minutes. Given the time in between inspections by EVS and the short

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window of time in between the spill and Romeo’s fall, Harrah’s claims that
it did not have constructive notice of the dangerous condition.
Plaintiff claims that Defendant’s mode of operation created the
dangerous condition and thereby relieves Plaintiff of proving actual or
constructive notice. Under this theory, Harrah’s drink services are an
integral part of the casinos’ mode of operation. Specifically, there are
several vending machines near the common walk way and patrons are
provided with free drinks and bottles of water. Harrah’s employs over 145
cocktail servers to accommodate its guests beverage needs in an effort to
keep the guest on the gambling floor. Holt Dep., Ex. B, 14:7-22; Exs. C, D,
E. To accomplish this, the cocktail servers walk around the casino,
including the common area. Patrons may also carry around free bottles of
water, with the Harrah’s logo on the bottle, and drinks, purchased and/or
complimentary, on the concourse and throughout the casino. Id., Ex. F.
To the extent the mode of operation theory does not apply to
Harrah’s, Plaintiff disputes Harrah’s notice claim, arguing that in addition
to EVS, the casino has camera surveillance everywhere. The camera that
captured the spill and subsequent fall appears to zero in on an individual at
the 5:22 mark, which Plaintiff claims suggests human manipulation and
therefore imputes notice upon the casino.
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II.

Summary Judgment Standard

A court will grant a motion for summary judgment if there is no
genuine issue of material fact and if, viewing the facts in the light most
favorable to the non-moving party, the moving party is entitled to judgment
as a matter of law. Pearson v. Component Tech. Corp., 247 F.3d 471, 482
n.1 (3d Cir. 2001) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.
Ct. 2548, 91 L.Ed.2d 265 (1986)); accord Fed. R. Civ. P. 56 (c). Thus, this
Court will enter summary judgment only when “the pleadings, depositions,
answers to interrogatories, and admissions on file, together with the
affidavits, if any, 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).
An issue is “genuine” if supported by evidence such that a reasonable
jury could return a verdict in the nonmoving party’s favor. Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S. Ct. 2505, 91 L.Ed.2d 202
(1986). A fact is “material” if, under the governing substantive law, a
dispute about the fact might affect the outcome of the suit. Id. In
determining whether a genuine issue of material fact exists, the court must
view the facts and all reasonable inferences drawn from those facts in the
light most favorable to the nonmoving party. Matsushita Elec. Indus. Co. v.
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Zenith Radio Corp., 475 U.S. 574, 587, 106 S. Ct. 1348, 89 L.Ed.2d 538
(1986).
Initially, the moving party has the burden of demonstrating the
absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477
U.S. 317, 323, 106 S. Ct. 2548, 91 L.Ed.2d 265 (1986). Once the moving
party has met this burden, the nonmoving party must identify, by affidavits
or otherwise, specific facts showing that there is a genuine issue for trial.
Id.; Maidenbaum v. Bally’s Park Place, Inc., 870 F. Supp. 1254, 1258
(D.N.J. 1994). Thus, to withstand a properly supported motion for
summary judgment, the nonmoving party must identify specific facts and
affirmative evidence that contradict those offered by the moving party.
Andersen, 477 U.S. at 256-57. Indeed, the plain language of Rule 56(c)
mandates the entry of summary judgment, after adequate time for
discovery and upon motion, against a party who fails to make a showing
sufficient to establish the existence of an element essential to that party’s
case, and on which that party will bear the burden of proof at trial. Celotex,
477 U.S. at 322.
In deciding the merits of a party’s motion for summary judgment, the
court’s role is not to evaluate the evidence and decide the truth of the
matter, but to determine whether there is a genuine issue for trial.
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Anderson, 477 U.S. at 249. Credibility determinations are the province of
the finder of fact. Big Apple BMW, Inc. v. BMW of N. Am., Inc., 974 F.2d
1358, 1363 (3d Cir. 1992).
III. Analysis
“In negligence cases under New Jersey law, a plaintiff must establish that
defendant breached a duty of reasonable care, which constituted a proximate
cause of plaintiff's injuries.” Keith v. Truck Stops Corp. of Am., 909 F.2d 743,
745 (3d Cir. 1990). “It is well recognized that the common law imposes a duty
of care on business owners to maintain a safe premises for their business
invitees because the law recognizes that an owner is in the best position to
prevent harm.” Stelluti v. Casapenn Enterprises, LLC, 203 N.J. 286, 1 A.3d
678, 691 (N.J. 2010). “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 v. Glass Gardens, Inc., 175 N.J. 559, 818 A.2d 314,
316 (N.J. 2003). However, under New Jersey law, a plaintiff need not prove
that element where “as a matter of probability, a dangerous condition is
likely to occur as the result of the nature of the business, the property's
condition, or a demonstrable pattern of conduct or incidents.” Id. In such
circumstances, a plaintiff is afforded “an inference of negligence, imposing
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on the defendant the obligation to come forward with rebutting proof that it
had taken prudent and reasonable steps to avoid the potential hazard.” Id.
This is referred to as the “mode-of-operation rule.” See id. (finding that when
the very nature of a business's operation creates the hazard, the “mode-ofoperation rule” creates an inference of negligence and “shifts the burden to
the defendant to ‘negate the inference by submitting evidence of due care’ ”
(quoting Bozza v. Vornado, Inc., 42 N.J. 355, 200 A.2d 777, 780 (N.J. 1964));
Wollerman v. Grand Union Stores, Inc., 47 N.J. 426, 221 A.2d 513, 514–15
(N.J. 1966) (the rule requires the defendant to show it did “all that a
reasonably prudent [person] would do in light of the risk of injury [the mode
of operation] entailed”). A defendant may then avoid liability if it shows that
it did “all that a reasonably prudent man would do in the light of the risk of
injury [the] operation entailed.” Nisivoccia, 175 N.J. 559, 818 A.2d at 317
(citation omitted). “The ultimate burden of persuasion remains, of course,
with the plaintiff.” Id.
In Prioleau the New Jersey Supreme Court reestablished the
narrow application of the mode of operation rule, limiting its
application to the setting of a “self service” business. Prioleau, 233
N.J. 245, 122 A.3d 328. Prioleau was a patron at a fast food restaurant
who fell on a liquid substance as she walked from the counter toward
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the restroom. The trial court instructed the jury to consider the
“mode of operation” rule. The New Jersey Supreme Court reversed,
holding that the “mode of operation” jury instruction was
inappropriately applied because there was no evidence that the
location of plaintiff's fall had any nexus to the self-service beverage
component of the defendants' business. Id.
The Court set forth four principles governing application of the mode of
operation rule:
(1) First, the mode-of-operation doctrine has never been
expanded beyond the self-service setting, in which customers
independently handle merchandise without the assistance of
employees or may come into direct contact with product
displays, shelving, packaging, and other aspects of the facility
that may present a risk. The distinction drawn by these cases is
sensible and practical. When a business permits its customers
to handle products and equipment, unsupervised by employees,
it increases the risk that a dangerous condition will go
undetected and that patrons will be injured. Thus, the mode-ofoperation rule is not a general rule of premises liability, but a
special application of foreseeability principles in recognition of
the extraordinary risks that arise when a defendant chooses a
customer self-service business model.
(2) Second, the rule applies only to accidents occurring in areas
affected by the business's self-service operations, which may
extend beyond the produce aisle of supermarkets and other
facilities traditionally associated with self-service activities.
(3) Third, the mode-of-operation rule is not limited to cases in
which customer negligence created the dangerous condition; it
also applies to self-service settings in which the injury may have
resulted from the manner in which employees handled the
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business's products or equipment, or the inherent qualities of
the merchandise itself. Accordingly, the mode-of-operation
charge may be given even in the absence of evidence that the
carelessness of the plaintiff, or another patron, gave rise to the
dangerous condition.
(4) Fourth, if the mode-of-operation rule applies, it affects the
parties' burdens of proof in two respects. The rule relieves the
plaintiff of the burden of proving actual or constructive notice
of the dangerous condition. It also gives rise 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 man would do in the light of the risk of
injury the operation entailed. Thus, if the rule applies in a
particular case, it substantially alters the ordinary allocation of
the burdens between the parties.
Prioleau, 122 A.3d at 338–39 (citations omitted).
Defendant does not contest that casino guests are permitted to carry open
beverages throughout the casino floor, including the concourse area where
Romeo fell. In addition, Defendant supplies some patrons with free or
complimentary beverages, at various places surrounding the concourse area.
Defendant argues that because Romeo’s slip and fall did not occur in an area
of a “self service” station, there is no basis to expand the mode of operation
rule to the concourse area.
Here, the manager of Food and Beverage Services Antione Holt’s
testimony, in conjunction with the photographs of the cocktail servers, the
admissions of drink service at gaming tables, drink ordering at the slot
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machines and the free bottled water all suggest that the mode of operation
at Harrah’s includes patrons drinking in the concourse area where Plaintiff
fell. The video surveillance footage that captured Romeo’s slip and fall
depicts a steady stream of patrons traversing the concourse, many holding
what appear to be open beverage containers, bottled water, coffee cups, and
beer bottles. Defendant does not dispute this fact. Instead, Defendant
argues that a casino is not a self-serve business as contemplated by the rule.
The Court need not determine whether a casino is a self-serve business
as contemplated by the rule because, even if it was, Plaintiff cannot
demonstrate the required nexus between the spill and Defendants’ alleged
self-service operation. There is no proof in the record that the spilt liquid
in this case came from Defendant’s beverage service. Although there is no
dispute that Defendant supplies beverages in self-service style to casino
patrons, including bottled water, the nexus between that service and
Plaintiff’s accident is tenuous; we do not know the identity of the person
who spilled his beverage and therefore cannot determine whether or not he
got the beverage from Defendant. Compare Katsaros v. Target Corp., No.
12-CV-7708, 2015 WL 456950 (D.N.J. Feb. 3, 2015) (where a spilled
beverage was purchased at Target self-service station).

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Under the dictates of Prioleau, the mode of operation rule does not
apply. The New Jersey Supreme Court considered the very situation
present here- whether a spill of unknown origin is enough to establish
application of the mode of operation rule in a self-service setting.
Moreover, neither of plaintiff's theories of liability involves a
self-service operation that might warrant a mode-of-operation
jury instruction. The theory offered by plaintiff to justify the
mode-of-operation charge, that oil and grease are used in
cooking at the restaurant and that managers regularly examined
the floor, establishes no nexus to customer self-service or related
business operations. If the accident occurred because restaurant
employees tracked oil and grease from the kitchen to the
restroom area, it resulted from the preparation of food in a
kitchen area off limits to patrons, a component of the business in
which customers played no part. While that evidence might
support a finding that a plaintiff need not show actual or
constructive notice because the condition was created by
defendant or its employees, see, e.g., Smith, supra, 94 N.J.Super.
at 464–66, 228 A.2d 874 (holding that slip and fall on greasy
stairway caused by sawdust tracked onto steps by defendant's
employees warranted charge), it does not implicate the mode-ofoperation rule.
Nor does plaintiff's alternative theory of negligence that
patrons tracked water from the outdoors into the restaurant on a
rainy evening bear any relationship to self-service activities. The
potential for customers to track water into a building during
inclement weather is not contingent on a defendant's business
model; that risk exists in virtually any facility that admits patrons
from public sidewalks or parking areas into its facility. Thus,
plaintiff's second theory of negligence does not support the jury
charge given by the trial court.
Prioleau, 122 A.3d at 339.

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However, summary judgment is denied because a jury question exists as
to whether Defendant had constructive notice of the spill.
Defendant agrees that it owed a duty to Plaintiff to maintain the premises
in a reasonably safe condition. A breach of that duty occurs where “the
defendant had actual or constructive knowledge of the dangerous condition
that caused the accident.” Nisivocci, 175 N.J. at 563. “Constructive
knowledge refers to notice that a particular condition existed for such a
length of time as reasonably to have resulted in knowledge of the condition,
had the owner ... been reasonably diligent.” Kempf v. Target Corp., No. 06–
1935, 2008 WL 305457, at *2 (D.N.J. Jan. 31, 2008) (citing Parmenter v.
Jarvis Drug Store, 48 N.J. Super. 507, 510 (App. Div. 1957)). In other words,
an owner breaches his duty where he either has notice of a dangerous
condition or if the condition existed for such a length of time that the owner
should have known of the condition and fails to remediate the problem. Id.
Generally, the determination of whether a breach has occurred is a jury
question. See Filipowicz v. Dilletto, 350 N.J. Super. 552, 561 (App. Div.
2002). “It is the function of the jury to determine the condition of the
property and the reasonableness of defendant's care.” Id.

There is no

evidence in the record that indicates that Defendants had actual notice of the
spill. Plaintiff’s suggestion that alleged human manipulation of the camera
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at the five minute mark of the video is too remote in time from the duration
of the spill in the post twenty six minute time frame to establish actual notice.
However, a jury could reasonably find that Defendant had constructive
notice of the spill.
Defendant’s corporate designee Patti Geraci testified that the video
depicts casino supervisor Fernando DaSilva walking in the general area of
the existing spill, lingering for a moment, and then departing the area. See
Ex. H., Geraci Dep. 11:16-22. In addition, Ms. Geraci states that every
employee is tasked with identifying hazards. Id. at 19-20.

Drawing all

favorable inferences in Plaintiff’s favor, a genuine issue of material fact exists
as to whether Defendant had constructive notice of the spill, despite the fact
that it existed for only four minutes prior to Romeo’s fall. See Matsushita
Elec. Indus. Co., 475 U.S. at 587; Kempf, 2008 WL 305457 at *2. Standing
alone, the amount of time is not enough to establish constructive notice. See,
e.g., Bowman v. Wal-Mart Stores E., LP, No. 14-3182, 2015 WL 568570, at
*5 (E.D. Pa. Feb. 10, 2015) (“The approximately four-minute period between
the spill and Bowman's fall is a short duration from which to find
constructive notice for a hazard not caused by Wal–Mart.”) However, when
coupled with the video surveillance of the area and the fact that Mr. DaSilva
was in the area during the existence of the spill, the Court concludes that a
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genuine issue of material facts exists as to whether or not Defendant had
constructive notice of the spill.
Defendant’s motion for summary judgment is denied.
IV.

Conclusion

For the reasons set forth above, Defendant’s motion for summary
judgment is denied. An appropriate Order shall issue.
Dated: January 26, 2016

s/ Joseph H. Rodriguez
Hon. Joseph H. Rodriguez,
UNITED STATES DISTRICT JUDGE

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