CONWAY et al v. URIE'S WATERFRONT RESTAURANT et al
Filing
60
OPINION. Signed by Judge Noel L. Hillman on 10/20/2016. (tf, )
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
SUZANNE CONWAY and GEORGE
BROOKS,
Civil No. 13-4453 (NLH)
Plaintiffs,
v.
OPINION
DIRYSA, LLC and RYSADI, LLC,
d/b/a URIE’S WATERFRONT
RESTAURANT, et al.,
Defendants.
APPEARANCES:
DANA KLAYMAN WEITZ, ESQ.
Schatz & Steinberg, P.C.
801 Kings Highway
Cherry Hill, NJ 08034
Attorney for Plaintiffs
LISA BAUGHMAN, ESQ.
Law Office of Charles A. Little, Jr.
112 West Park Dr., Suite 150
Mt. Laurel, NJ 08054
Attorney for Defendants
HILLMAN, District Judge
Plaintiffs, husband and wife Suzanne Conway and George
Brooks, claim that defendants Dirysa, LLC and Rysadi, LLC, which
do business as Urie’s Waterfront Restaurant, breached a duty of
care owed to Plaintiffs when Conway and Brooks fell into the
water off Defendants’ floating dock.
Before the Court is
Defendants’ motion for summary judgment. 1
For the reasons
expressed below, the Court will grant Defendants’ motion.
BACKGROUND
The following facts are not in dispute.
On August 24,
2012, Plaintiffs Susan Conway and George Brooks, a married
couple, went to Urie’s Waterfront Restaurant (“Urie’s”) in
Wildwood, New Jersey, for dinner, accompanied by their 12-year
old grandson, Rodney, and their daughter.
Floating docks are
located behind Urie’s for patrons to park their boats.
Rodney
wanted to see the boats, so at approximately 8:30 or 9:00 p.m.
Conway, her daughter, and Rodney walked down a ramp leading to a
1
This is Defendants’ second motion for summary judgment. During
the pendency of Defendants’ first motion, the Court ordered the
parties to file a joint certification of the citizenship of the
parties, for two reasons: (1) the complaint’s jurisdictional
allegations regarding defendants Urie’s Waterfront Restaurant
and Big Fish Restaurant Group were insufficient to establish
diversity jurisdiction in that the complaint failed to identify
what kind of business association these entities are, thus
preventing an application of the appropriate diversity
jurisdiction test or standard applicable to each, and (2)
judgment may only be entered against or in favor of a party
whose identity is properly established. (Docket No. 39.) The
parties complied with the Court’s Order by filing their joint
certification, which provided that “Big Fish Restaurant Group”
no longer exists, and “Urie’s Waterfront Restaurant” is owned by
Dirysa LLC and Rysadi LLC, and that the members of those
entities are citizens of New Jersey, therefore conferring
subject matter jurisdiction under 28 U.S.C. § 1332 because
Plaintiffs are citizens of Pennsylvania. (Docket No. 40.)
Thereafter, Plaintiffs filed an amended complaint naming the
proper parties as Defendants. (Docket No. 53.) Defendants
filed their answer (Docket No. 56, 57) and then filed the
instant motion for summary judgment.
floating dock to take a quick picture.
Conway testified in her
deposition that she was familiar with floating docks, she had
walked on them in the past, and she knew that they moved or
tilted.
She further acknowledged that, although it was just
beginning to be dusk, there was still enough light to see.
Conway testified that, as she stepped on the dock, the dock
tilted and she fell into the water.
Rodney went back to the restaurant and told Brooks that
Conway had fallen into the water.
Brooks testified at his
deposition that, “to save his wife from drowning” he quickly
walked “down the ramp, made the turn, and as soon as [he] put
[his] foot on the next ramp it tilted, and it threw [him] into
the water.”
(Deposition of George Brooks, ECF No. 23 at 35-36.)
From this incident, Conway fractured her left humerus,
among “other serious and permanent injuries.”
No. 1 at 3.)
(Complaint, ECF
Brooks’ corresponding injuries include lumbar
radiculopathy and lumbar disc injuries, among “other serious and
permanent injuries.” Id.
DISCUSSION
A.
Jurisdiction
Pursuant to 28 U.S.C. § 1332, this Court has jurisdiction
over this matter because the parties have complete diversity of
citizenship and the amount in controversy exceeds $75,000.
Plaintiffs are Pennsylvania citizens and Defendants are citizens
of New Jersey.
B.
See, supra, note 1.
Summary Judgment Standard
Summary judgment is appropriate when the Court is satisfied
that “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 a judgment as a matter of
law.” Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).
An issue is “genuine” if “the evidence is such that a
reasonable jury could return a verdict for the nonmoving party.”
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
A
fact is “material” if, under the governing substantive law, a
dispute about the fact might affect the suit’s outcome. Id.
A
district court, in considering a summary judgment motion, may
not weigh evidence or determine credibility; instead, the
nonmoving party’s evidence “is to be believed and all
justifiable inferences are to be drawn in his favor.” Marino v.
Indus. Crating Co., 358 F.3d 241, 247 (3d Cir. 2004) (quoting
Anderson, 477 U.S. at 255).
The moving party has the initial burden of demonstrating
the absence of a genuine issue of material fact, and, if this
burden is met, the nonmoving party must identify, by affidavits
or otherwise, specific facts that demonstrate the presence of a
genuine issue for trial. Celotex Corp., 477 U.S. at 317.
Accordingly, to withstand a properly supported summary judgment
motion, the nonmoving party must identify specific facts and
affirmative evidence contradicting those offered by the moving
party, Anderson, 477 U.S. at 256-57, and do more than solely
rest upon mere allegations, general denials, or vague
statements. Saldana v. Kmart Corp., 260 F.3d 228, 232 (3d Cir.
2001).
C.
Analysis
In their Complaint, Plaintiffs claim that Urie’s
negligently failed to maintain and repair the floating dock,
knowingly allowed a dangerous condition to exist, failed to warn
them of the dangerous and unsafe condition of the dock, and
failed to provide adequate lighting and barricades.
They claim
that Defendants’ negligence and carelessness caused Plaintiffs
to fall off the dock and suffer injury.
Defendants argue that they are entitled to summary judgment
under Fed. R. Civ. P. 56(c)(1)(B) because there is no evidence expert or otherwise – showing that the floating dock was in a
dangerous condition or that Defendants otherwise breached a duty
of care to Plaintiffs.
Under New Jersey law, a business owner has a duty “to
discover and eliminate dangerous conditions . . . that would
render the premises unsafe.”
Jerista v. Murray, 883 A.2d 350,
359 (N.J. 2005) (quoting Nisivoccia v. Glass Gardens, Inc., 818
A.2d 314, 316 (N.J. 2003)).
In addition, “[a]n owner or
possessor of property owes a higher degree of care to the
business invitee because that person has been invited on the
premises for purposes of the owner that often are commercial or
business related.”
Hopkins v. Fox & Lazo Realtors, 625 A.2d
1110, 1113 (N.J. 1993).
Plaintiffs argue that this Court should deny summary
judgment because the floating dock was a dangerous condition
that required warnings to the patrons of Urie’s.
They contend
that “[i]t is solely in the jury’s hands to determine whether
the existence of the floating dock was a dangerous condition
and, as such, whether it was the duty of Defendants to provide
warnings to their patrons regarding same.”
“In order to sustain a common law cause of action in
negligence, a plaintiff must prove four core elements: ‘(1) [a]
duty of care, (2) [a] breach of [that] duty, (3) proximate
cause, and (4) actual damages [.]’”
Polzo v. Cty. of Essex, 196
N.J. 569, 584, 960 A.2d 375, 384 (2008) (quoting Weinberg v.
Dinger, 106 N.J. 469, 484, 524 A.2d 366, 373 (1987)).
Contrary
to Plaintiff’s contention, “[w]hether a duty of care exists is a
question of law that must be decided by the court.”
Jerkins v.
Anderson, 191 N.J. 285, 294, 922 A.2d 1279, (2007); see also
Holmes v. Kimco Realty Corp., 598 F.3d 115, 118 (3d Cir. 2010)
(citing Carvalho v. Toll Bros. & Developers, 675 A.2d 209, 212
(N.J. 1996)).
Plaintiffs argue that Defendants had a duty to warn them
that floating docks move or to barricade the dock, but they
point to no evidence or authority showing that such duty exists.
Although the Supreme Court of New Jersey has not considered the
duty of care owed to patrons by a floating dock owner, and there
is no published Appellate Division decision on point, in an
unpublished opinion the Appellate Division rejected the argument
Plaintiffs make here.
See Mattaliano v. Comstock Yacht Sales &
Marina, No. A-0173-08T1, 2009 WL 1514945 (N.J. Super. Ct., App.
Div., June 2, 2009), certif. denied, 200 N.J. 367 (2009).
In
that case, the plaintiff visited defendant’s marina and, with
the assistance of an employee, he stepped from a floating dock
onto a boat which was for sale.
When plaintiff was ready to
leave the boat, he pulled the mooring line to get the boat
closer to the dock, but he let go of the line before stepping
onto the dock.
“The boat began to move away from the dock, and
as he was stepping onto the dock, plaintiff fell, injuring his
knee.”
Id. at *1.
In response to the defendant’s motion for summary judgment,
the plaintiff argued that defendant owed him a duty to provide a
safe and secure means of entering and departing the boat.
The
plaintiff “produce[d no] evidence, however, showing that the
manner and means used by defendant in providing access to the
boat deviated from or were otherwise inconsistent with a
recognized industry standard or regulatory scheme.”
2009 WL 1514945 at *1.
Mattaliano,
The trial court granted summary
judgment, noting that “the concept of a floating dock is that it
floats on the water. . . . [S]ince it is clear that the dock
floats on the water, the risk is obvious to any person who steps
onto such a dock.
Id. at *2.
The dock will move - that is its nature.”
The Appellate Division affirmed based on the
rationale of the trial court:
Plaintiff contends that defendant must tie up the boat
more sufficiently and have a spotter, e.g., an
employee here at all times to assist a customer onto a
boat. However, plaintiff has cited no authority for
such a proposition, nor has plaintiff come forward
with any professional standards where such a practice
is mandated . . . Moreover, public interest will not
be furthered through the imposition of such a new duty
on marina owners. Clearly, water’s movement cannot be
controlled. Thus, no genuine issue of material fact
has been raised about any duty[.]
Mattaliano, 2009 WL 1514945 at *3.
Similarly, in this case Plaintiffs have not come forward
with any evidence or authority to establish that Defendants had
a duty to warn them that a floating dock moves or had a duty to
barricade the dock.
In fact, Conway admitted in her deposition
that she knew that floating docks move.
Plaintiffs’ argument
that Defendants had a duty to provide warnings or a barricade
falls within the holding of Mattaliano.
Plaintiffs essentially
maintain that the floating dock was itself a dangerous
condition, an argument which Mattaliano squarely rejected, Id.
at *3, and which we reject here.
Plaintiffs also argue that the lighting was inadequate but,
again, Plaintiffs point to no evidence or authority showing the
inadequacy.
In fact, Conway testified in her deposition that,
although it was “just getting dusk,” it was light enough for her
to see.
Plaintiffs cite to the allegations in their Complaint,
but “to defeat a motion for summary judgment, a party cannot
rest simply on the allegations in the pleadings.”
Bhatla v.
U.S. Capital Corp., 990 F.2d 780, 786 (3d Cir. 1993); Fed. R.
Civ. P. 56(c)(1).
Because there is no genuine issue of material fact that
Defendants breached a duty of care and, thereby, caused injury
to Plaintiffs, Defendants are entitled to summary judgment.
CONCLUSION
For the foregoing reasons, the Court will grant Defendants’
motion for summary judgment.
An appropriate Order accompanies
this Opinion.
s/ Noel L. Hillman
NOEL L. HILLMAN, U.S.D.J.
Date:
October 20, 2016
At Camden, New Jersey
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