THOMPSON et al v. HARRAH'S ATLANTIC CITY HOLDING, INC. et al
OPINION. Signed by Judge Joseph H. Rodriguez on 4/17/2017. (TH, )
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
HOWARD THPOMPSON and
DEBORAH THOMPSON, h/w
HARRAH’S ATLANTIC CITY
HOLDING, INC., et. al.
Hon. Joseph H. Rodriguez
Civil Action No. 14-2397
This matter arises out of an incident that occurred on May 30, 2012,
at Harrah’s Casino in Atlantic City. Plaintiff claims that he suffered
extensive burns to his feet while walking across the outside pool deck. He
filed a three-count complaint against several defendants, including the
moving defendant, Roofblok Limited, alleging negligence, violations of New
Jersey’s Product Liability Act, N.J. Stat. Ann. § 2A:58C-1, and his wife’s loss
of consortium claim. Specifically, he alleges that Roofblok designed,
manufactured, assembled, processed, distributed, reconditioned,
maintained, services, installed, inspected and made available for use and/or
advertise the pool and sundeck in question, and/or more of its component
parts, which are hereinafter referred to as “the product” which were
ultimately sold or leased to the hotel defendants and/or one or more of
defendant John Doe Corporations, and which ultimately caused the
Plaintiffs’ injuries and damages.
Roofblok moves for summary judgment pursuant to Fed. R. Civ. P.
56. The Court has considered the written submissions of the parties,
without oral argument. For the reasons that follow, summary judgment is
granted in favor of Roofblok.
Standard of Review
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 (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 (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. Zenith Radio Corp., 475
U.S. 574, 587 (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 (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.
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).
There is no evidence in the record to create a genuine issue of
material fact related to whether Rookblok’s pavers were a proximate cause
of Howard Thompson’s injury and summary judgment is granted in favor of
To establish a right to relief under New Jersey’s Product Liability Act,
“a plaintiff must show that the defendant manufactured the product, that a
reasonably foreseeable user was injured, that the product was defective,
that the defect existed when it left the defendant's control, and that the
defect was the actual and proximate cause of the plaintiff's injury.” Worrell
v. Elliott & Frantz, 799 F. Supp. 2d 343, 350 (D.N.J. 2011) (citing Myrlak v.
Port Auth. of N.Y. and N.J., 723 A.2d 45, 52 (N.J. 1999)).
To establish a claim for common law negligence,
[A] plaintiff must prove tortious conduct, injury and proximate
cause. “Proximate cause” has been defined as “any cause which
in the natural and continuous sequence, unbroken by an
efficient intervening cause, produces the result complained of
and without which the result would not have occurred.” The
burden of proof rests upon the plaintiff to prove a causal
relationship by a preponderance of the evidence. Thus, a
plaintiff must show that a defendant’s conduct constituted a
cause-in-fact of his injuries.
Dawson v. Bunker Hill Plaza Associates, 673 A.2d 847, 853 (N.J. Super.
App. Div. 1996) (citations omitted).
There is no competent evidence in the record to demonstrate that any
pavers manufactured by Roofblok were incorporated into Harrah’s pool
deck on May 30, 2012. The outdoor pool deck at Harrah’s was constructed
in 2007 with concrete pavers installed by defendant Thomas Company, Inc.
According to Thomas, the manufacturer of the installed concrete
pavers was Westile. See M. Thomas Dep. at 15-16. Thomas completed the
original installation of the concrete pavers at Harrah’s in April of 2007.
Thomas subsequently sold replacement pavers to Harrah’s in 2011 and
2013. According to Michael Thomas, Harrah’s would call from time to time
to obtain replacement pavers to replace broken ones. Thomas would then
order the pavers from the manufacturer and deliver them to Harrah’s,
whose maintenance staff would then install them. See M. Thomas Dep. at
18. Thomas was unsure if the replacement tiles he obtained in 2011 and
2013 came from Westile. He recalled locating a different supplier that sold
tiles in the same color as the original, but had no specific recall of the
manufacturer or supplier from which he ordered them. See M. Thomas
Dep. at 18-19. Delivery receipts show that on September 21, 2011, Thomas
delivered forty ginger pavers to Harrah’s, and that on September 30, 2011,
it delivered another fifty-four ginger pavers. The identity of the
manufacturer and upper-level distributor, if any, are not noted. See
Receipts. A second purchase order shows that Harrah’s purchased an
additional seventy-five pavers from Thomas on December 5, 2012, with a
delivery date of January 30, 2013. The paver color is not specified in the
documents, which post-date the accident by several months. See Purchase
Roofblok’s President, Paul Keating, is the person most knowledgeable
about the sale of pavers to Thomas. In an affidavit, he stated that he
searched Roofblok’s records for sales of 2’ x 2’ x 2” pavers to Thomas, and
found that the first instance occurred on April 17, 2012, at which time
Thomas purchased 100 sienna concrete pavers. See Keating Aff. at ¶ 4.
The sienna concrete pavers were not delivered to Thomas until May 8,
2012, and the bill of lading shows that these were sent to Thomas’ facility
on Delilah Road in Egg Harbor Township. See Keating Aff. at ¶ 5.
Roofblok’s next sale of pavers to Thomas occurred on October 23, 2012,
when Thomas purchased 264 natural grey pavers. The bill of lading
indicates that these were delivered to Harrah’s on October 22, 2012. See
Keating Aff. at ¶ 6.
In opposing the motion, Plaintiff argues that there are genuine issues
of material fact regarding the identity of the manufacturer of the pavers
installed at the exterior sun deck at Harrah’s on May 30, 2012. Plaintiff
objects to Roofblok’s use of the Keating affidavit as self-serving and to the
use of bills of lading not previously produced during discovery. Roofblok
counters that it was served on March 10, 2016 and entered the case by
answering the Fourth Amended Complaint on May 2, 2016, fact discovery
closed May 27, 2016, Plaintiff never sought any discovery from Roofblok
and did not seek to reopen fact discovery.
Fed. R. Civ. P. 26(a)(1)(D) provides: “[a] party that is first served or
otherwise joined after the Rule 26(f) conference must make the initial
disclosures within 30 days after being served or joined, unless a different
time is set by stipulation or court order.” Where a party fails to provide its
Rule 26 disclosures, Rule 37(c)(1) provides: “[i]f a party fails to provide
information or identify a witness as required by Rule 26(a) or (e), the party
is not allowed to use that information or witness to supply evidence on a
motion, at a hearing, or at a trial, unless the failure was substantially
justified or is harmless.” The exclusion of critical evidence, however, “is an
‘extreme’ sanction, not normally to be imposed absent a showing of willful
deception or ‘flagrant disregard’ of a court order by the proponent of the
evidence.” Meyers v. Pennypack Woods Home Ownership Ass’n, 559 F.2d
894, 904–905 (3d Cir. 1977) (citation omitted), overruled on other
grounds, Goodman v. Lukens Steel, 777 F.2d 113 (3d Cir. 1985).
In determining whether “exclusion of evidence is an appropriate
sanction for failure to comply with discovery duties”:
(1) the prejudice or surprise of the party against whom the
excluded evidence would have been admitted; (2) the ability of
the party to cure that prejudice; (3) the extent to which allowing
the evidence would disrupt the orderly and efficient trial of the
case or other cases in the court; and (4) bad faith or willfulness
in failing to comply with a court order or discovery obligation.
Nicholas v. Pennsylvania State Univ., 227 F.3d 133, 148 (3d Cir. 2000); see
also Pennypack Woods, 559 F.2d at 904-05. The Third Circuit has
supplemented that list, also considering (5) “the importance of the excluded
testimony” and (6) the party’s explanation for failing to disclose.
Konstantopoulos v. Westvaco Corp., 112 F.3d 710, 719 (3d Cir. 1997)
(quoting Pennypack, 559 F.2d at 905).
While the Rules mandate that Roofblok’s initial disclosures should
have been served by April 10, 2016, there is little or no prejudice to Plaintiff
because there was no evidence in the record linking Roofblok’s tiles to
Harrah’s as of May 20, 2012 and Plaintiff did not seek out fact discovery
from Roofblok, despite several case management conferences with the
Court after Roofblok entered the case. Roofblok points out that, aside from
insurance coverage information, the identification of Keating and the bills
of lading are the extent of the information Roofblok was required to
produce under Rule 26. Consideration of Keating’s affidavit and the bills of
lading will not disrupt any proceedings and there is no indication of bad
faith or willfulness in Roofblok’s failure to provide initial disclosures.
Finally, Plaintiff has not filed a motion under Rule 37 or Rule 56(d). The
Court will not impose the extreme sanction of excluding Roofblok’s
evidence presented in support of its motion for summary judgment.
Put simply, the record evidence shows that while Roofblok provided
replacement pavers for Harrah’s sun deck, these pavers were not provided
until after Plaintiff’s injury occurred. Because Plaintiff cannot show
proximate cause, summary judgment will be granted on his negligence and
PLA claims against Roofblok.
For the reasons stated herein, summary judgment is granted in favor
of Roofblok as to all claims.
An appropriate Order shall issue.
Dated: April 17, 2017
s/ Joseph H. Rodriguez
Hon. Joseph H. Rodriguez,
UNITED STATES DISTRICT JUDGE
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