SANDERS v. SHERATON HOTELS & RESORTS et al
Filing
38
OPINION. Signed by Judge Kevin McNulty on 1/7/2014. (nr, )
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
ROSALIND SANDERS,
Civ. No. 2:11-5489 (KM)(MCA)
Plaintiff,
OPINION
V.
SHERATON HOTELS & RESORTS, ABC
CORP., and JOHN DOE
Defendant.
MCNULTY, U.S.D.J.:
This matter comes before the Court upon the motion of defendant
Columbia Properties Newark, LLC’ (“Columbia Properties”) for summary
judgment. The motion will be granted because the plaintiff, Rosalind Sanders,
has not met her summary judgment burden of coming forward with evidence
that her injuries resulted from any breach of a duty of care by Columbia
Properties. There is no genuine, material issue of fact and Columbia Properties
is entitled to judgment as a matter of law.
Plaintiff alleges that she sustained serious injury as a result of a slip and
fall in the shower area of her room when she was staying at a Sheraton hotel.
According to Sanders, the hotel had a duty to provide a safe means of using,
entering and exiting from the shower, but failed to meet this duty. In short, she
argues that Columbia Properties acted negligently by failing to provide her with
a handicapped-accessible room. Columbia Properties maintains that it did not
act negligently in failing to assign Sanders to a handicapped-accessible room
because it had no reason to know that she needed or wanted one. For the
During oral argument, held on December 19, 2013, the parties stipulated that
Columbia Properties Newark, LLC, was incorrectly identified in Sanders’ Complaint as
“Sheraton Hotels & Resorts.” Accordingly, the proper defendant before this Court is
Columbia Properties Newark, LLC and the docket caption shall be amended to reflect
that the name of the Defendant is Columbia Properties Newark, LLC.
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reasons enumerated above, I will grant the motion of Columbia Properties for
summary judgment.
I. BACKGROUND
Plaintiff Rosalind Sanders commenced this action, No. L-6627- 11, in the
Superior Court of New Jersey, Law Division, Essex County, on August 11,
2011. Pursuant to 28 U.S.C. § 1441, Defendant Columbia Properties, LLC
removed the action to this Court on September 16, 2011. On September 23,
2013, Columbia Properties filed an Answer denying liability and raising several
affirmative defenses. All fact and expert discovery is now completed.
The following facts are taken primarily from Sanders’ deposition. I credit
them as true and draw all reasonable inferences in favor of Sanders for
purposes of this motion. That said, most of the facts appear to be undisputed.
The events giving rise to this action occurred on or about August 23,
20092 in Guest Room Number 224 of the Sheraton Newark Airport Hotel (the
“hotel”), located at 128 Frontage Road in Newark, New Jersey. Sanders alleges
that she was staying at the hotel when she slipped and fell in the shower area
of the bathroom, suffering an ankle injury. She attributes her accident to the
absence of handrails on the wall and/or no-slip strips on the bathroom floor.
(At oral argument the focus seemed to be on the handrails.) One (or both) of
these accommodations, she alleges, would have been present if she had been
assigned a handicapped-accessible room.
Sanders stayed at the hotel when traveling with her sister-in-law,
Stephanie Sanders, who was part of a Jehovah’s Witnesses tour group. Docket
No. 32—4 (“Sanders Deposition Transcript”) at 27—28. Sanders made all of her
travel arrangements through a travel agent, Ron-Mar Travel. According to
Sanders, she contacted the travel agent before the trip and requested a
handicapped-accessible room. The agent allegedly assured her that he would
request a handicapped-accessible room for her. Id. at 33—35. Sanders wanted
such a room because she had problems with her back and a previous ankle
injury. (These health conditions predated the injuries for which she sues.) Id. at
47. She testified that she did not speak directly to anyone at the hotel about
Though the Complaint states that the incident occurred on August 22, 2009,
Plaintiff admits to Defendant’s statement of uncontested material facts that the
incident occurred on August 23, 2009. Docket No. 32 at 1; Docket No. 34 at 1. The
discrepancy is not signfficant for the purposes of this motion.
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getting a handicapped-accessible room; the travel agent was supposed to take
care of it. Id. at 50:21—24.
Sanders’ tour group arrived at the hotel in the evening. Upon check-in,
Sanders did not speak to any hotel personnel. Instead, she met the travel agent
near the front desk. The agent had obtained room keys for everyone in the tour
group, and he distributed Sanders’ room key to her. Id. at 43—44. There is no
testimony that hotel personnel should have recognized Sanders’ need for a
handicapped-accessible room based on her appearance. For example, she did
not use a walker prior to the accident. Id. at 95:6—7. After receiving her key,
Sanders went to her room and discovered that the room was not handicappedaccessible. She testified that she was tired when she got to her room and
decided that, because she would only be there for one night, she would “chance
it.” Id. at 47:3—5. She did not contact the travel agent or the hotel’s front desk.
She did not request a change of rooms.
The next morning, Sanders took a shower. Before getting into the
shower, she was aware that there were no railings along the walls in the
shower area. Id. at 59:9—12. (There was, however, a railing inside the shower.)
Sanders testified that she was “not really” concerned, because she “thought
being that it was only going to be one night, that I would get by with it rather
than trying to switch to another room.” Id. at 59—60. Before showering, Sanders
put down a bath mat provided by the hotel. She steadied herself by holding the
towel rack that was over the toilet, and had no trouble getting into the shower.
Id. at 63:20—23. After showering, Sanders again grabbed the towel rack and
stepped out of the shower, left foot first. She then placed her right foot out of
the shower, but her foot missed the bath mat. She slipped and landed on the
tile floor. At the time of the fall, she was out of the shower. She testified that
her fall was caused by “slippery tiles.” The tiles were slippery, she states,
because “they had no protective strips like on the tile, like was in the bathtub.”
Id. at 67:10—13. She also testified that she thought the hotel was wrong in not
giving her “the handicapped room that I had requested.” Id. at 106:4—6.
Sanders did not speak to anyone associated with the tour group about
the accident. She did not call to complain that she did not receive a
handicapped-accessible room. Her first contact of any kind with hotel
personnel was after the fall. She filed the present action on August 11, 2011.
This Court heard oral argument on the summary judgment motion on
December 19, 2013.
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II. DISCUSSION
A. Summary Judgment Standard
Federal Rule of Civil Procedure 56(a) provides that summary judgment
should be granted “if the movant shows that there is no genuine dispute as to
any material fact and the movant is entitled to judgment as a matter of law.”
Fed. R. Civ.P. 56(a); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
248; Kreschollek v. S. Stevedoring Co., 223 F.3d 202, 204 (3d Cir. 2000). In
deciding a motion for summary judgment, a court must construe all facts and
inferences in the light most favorable to the nonmoving party. See Boyle v.
County of Allegheny Pennsylvania, 139 F.3d 386, 393 (3d Cir. 1998) (citing
Peters v. Delaware River Port Auth. of Pa. & N.J., 16 F.3d 1346, 1349 (3d Cir.
1994)). The moving party bears the burden of establishing that no genuine
issue of material fact remains. See Celotex Corp. v. Catrett, 477 U.S. 317, 322—
23 (1986). “[Wjith respect to an issue on which the nonmoving party bears the
the burden on the moving party may be discharged by
burden of proof.
‘showing’—that is, pointing out to the district court—that there is an absence
of evidence to support the nonmoving party’s case.” Celotex, 477 U.S. at 325.
.
.
Once the moving party has met that threshold burden, the non-moving
party “must do more than simply show that there is some metaphysical doubt
as to material facts.” Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475
U.S. 574, 586 (1986). The opposing party must present actual evidence that
creates a genuine issue as to a material fact for trial. Anderson, 477 U.S. at
248; see also Fed. R. Civ. P. 56(c) (setting forth types of evidence on which
nonmoving party must rely to support its assertion that genuine issues of
and pleadings are
material fact exist). “[U]nsupported allegations
insufficient to repel summary judgment.” Schoch v. First Fid. Bancorporatiori,
912 F.2d 654, 657 (3d Cir. 1990); see also Gleason v. Norwest Mortg., Inc., 243
F.3d 130, 138 (3d Cir. 2001) (“A nonmoving party has created a genuine issue
of material fact if it has provided sufficient evidence to allow a jury to find in its
favor at trial.”). If the nonmoving party has failed “to make a showing sufficient
to establish the existence of an element essential to that party’s case, and on
there can be ‘no
which that party will bear the burden of proof at trial.
genuine issue of material fact,’ since a complete failure of proof concerning an
essential element of the nonmoving party’s case necessarily renders all other
facts immaterial.” Katz v. Aetna Cas. & Sur. Co., 972 F.2d 53, 55 (3d Cir. 1992)
(quoting Celotex, 477 U.S. at 322—23).
.
.
.
.
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.
.
B. The Negligence Claim
1. Applicable legal standards
Because this matter involves a controversy between citizens of different
states and the amount in controversy is alleged to exceed the sum of $75,000,
this Court has jurisdiction pursuant to 28 U.S.C. §1332. New Jersey
substantive law will apply. See Erie R.R. v. Tompkins, 304 U.S. 64, 78 (1938).
Under New Jersey law, the three elements essential for the existence of a
cause of action in negligence are: “(1) a duty of care owed by defendant to
plaintiff; (2) a breach of that duty by defendant; and (3) an injury to plaintiff
proximately caused by defendant’s breach.” Endre v. Arnold, 300 N.J. Super.
136, 141, 692 A.2d 97, 99 (N.J. Super. Ct. App. Div. 1997). The burden of
proving such negligence is on the plaintiff; negligence cannot be presumed. See
Dawson v. Bunker Hill Plaza Associates, 289 N.J. Super. 309, 322, 673 A.2d
847, 853 (N.J. Super. Ct. App. Div. 1996). Though a plaintiff need not present
proof to a certainty, “evidence must be such as to justify an inference of
probability as distinguished from the mere possibility of negligence on the
defendant’s part.” Bratka v. Castles Ice Cream Co., 40 N.J. Super. 576, 584,
123 A.2d 793, 797 (N.J. Super. Ct. App. Div. 1956) (citation omitted). Evidence
of a fall is not enough to support an inference of negligence. Simpson v. Duffy,
19 N.J. Super. 339, 343, 88 A.2d 520, 522 (NJ Super. Ct. App. Div. 1952)
(“Proof of a fall alone would not be adequate to create an inference of negligence
• • . •“) (citations omitted). “It has often been said that there is a presumption
against the fact of negligence; the burden of proving negligence is upon the
plaintiff and must be sustained by proof of circumstances from which
defendant’s want of due care is a legitimate inference.” Bratka, 40 N.J. Super.
at 576, 123 A.2d at 797 (citing Hansen v. Eagle-Picher Lead Co., 8 N.J. 133,
139—140, 84 A.2d 281 (1951)).
This Court must apply New Jersey premises liability law to determine the
appropriate duty of care owed by a landowner. The common law of premises
liability in New Jersey has evolved over the years. At common law, a landowner
would owe a visitor a particular level of care depending on whether the visitor
was classified as a trespasser, licensee or social guest, or business invitee.
Sussman v. Mermer, 373 N.J. Super. 501, 504, 862 A.2d 572, 574 (N.J. Super.
In a letter dated May 11, 2011, Plaintiff set forth the scope and extent of her
injuries, treatment, and special damages and demanded a sum of $300,000. Docket
No. 1 (Exhibit B).
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Ct. App. Div. 2004). A business invitee, such as a hotel guest, was owed a
“duty of reasonable care to guard against any dangerous conditions on his or
her property that the owner either knows about or should have discovered.”
Hopkins v. Fox & Lazo Realtors, 132 N.J. 426, 434, 625 A.2d 1110, 1113 (N.J.
1993). That standard of care includes a duty “to conduct a reasonable
inspection to discover latent dangerous conditions.” Id. (citations omitted).
Moving away from the tiered premises liability approach, New Jersey
common law has moved toward “a broadening application of a general tort
obligation to exercise reasonable care against foreseeable harm to others.”
Butler v. Acme Markets, Inc., 89 N.J. 270, 277, 445 A.2d 1141, 1144 (1982)
(citations omitted). The court’s task is to “consider all the surrounding
circumstances to determine whether it is fair and just to impose upon the
landowner a duty of reasonable care commensurate with the risk of harm.”
Sussman, 373 N.J. Super. at 505, 862 A.2d at 575 (citing Brett v. Great Am.
Recreation, Inc., 144 N.J. 479, 509, 677 A.2d 705 (1996)). “In assessing whether
imposition of such a duty would be fair and just, courts weigh and balance the
following four factors: (1) the relationship of the parties, (2) the nature of the
attendant risk, (3) the opportunity and ability to exercise care, and (4) the
public interest in the proposed solution.” Id. at 505, 575 (citing Hopkins, 132
N.J. at 439, 625 A.2d at 1116).
The existence and scope of a duty of care are legal issues to be
determined by the court. Kuehn v. Pub Zone, 364 N.J. Super. 301, 310, 835
A.2d 692, 697 (N.J. Super. Ct. App. Div. 2003) (citing Carvalho v. Toll Bros. &
Developers, 143 N.J. 565, 572, 675 A.2d 209, 212 (N.J. 1996), Kelly v.
Gwinnell, 96 N.J. 538, 552, 476 A.2d 1219, 1226 (N.J. 1984)). A crucial
element of this inquiry is foreseeability, which refers to “the knowledge of the
risk of injury to be apprehended.” Amentler v. 69 Main St., LLC, CIV.A. 08-0351
FLW, 2011 WL 1362594, at *4 (D.N.J. Apr. 11, 2011) (quoting Kuehn, 364 N.J.
Super. at 310, 835 A.2d at 698). While the status of the injured party no longer
dictates a landowner’s liability, the common law classifications remain helpful
in determining the existence and scope of the duty of care. Amentler, 2011 WL
1362594, at *5 (citing Clohesy v. Food Circus Supermarkets, Inc., 149 N.J. 496,
502, 694 A.2d 1017, 1020 (1997)).
An “owner or operator of a hotel is under a duty to exercise ordinary care
to render the premises reasonably safe for the use of its guests.” Calierido v.
Trump Taj Mahal Assocs., CIV.03 5145 JBS, 2006 WL 3694605, at *2 (D.N.J.
Dec. 13, 2006) (quoting Wolfe v. Chateau Renaissance, 141 N.J. Super. 59, 63,
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357 A.2d 282, 284 (N.J. Super. Ct. App. Div. 1976)). “Traditionally, the duty of
a motel owner is not to insure the safety of guests but only to exercise
reasonable care to discover and correct dangerous conditions.” Ranalli v. Edro
Motel Corp., 298 N.J. Super. 621, 627, 690 A.2d 137, 140 (N.J. Super. Ct. App.
Div. 1997). A guest cannot, however, expect an owner to correct defects of
which he is not aware or that cannot be discerned upon reasonable inspection.
Id. The New Jersey Appellate Court has discussed the duty of care owed by a
motel owner to its guests, explaining that
[a] motel guest reasonably can expect that the owner diligently will
inspect the premises for defects and cure any deficiency
discovered. But the guest cannot reasonably expect that the owner
will correct defects of which he is unaware and that cannot be
discerned by a reasonable inspection. This basic element of actual
or constructive notice in the area of motel owner liability arising
out of the duty to maintain and repair [the] rented premises is
ingrained in our law as a necessary prerequisite to a finding of
negligence—the failure to exercise reasonable care.
Mendler v. Aztec Motel Corp., CIV. 09-2136 JBS/JS, 2011 WL 6132188, at *5
(D.N.J. Dec. 7, 2011) (quoting Ranalli, 298 N.J. Super. at 627, 690 A.2d at
140-41).
2. Discussion
Sanders has the burden to demonstrate that Columbia Properties
breached a duty of care, resulting in her fall and related injuries. For the
reasons enumerated below, I find that Sanders has failed to set forth any
evidence that would permit a reasonable jury to find that Columbia Properties
breached a duty to her. In fact, she has failed to point to evidence that in any
way connects her injuries to negligence on the part of the hotel. Accordingly, in
the absence of a dispute of material fact, I find that Columbia Properties is
entitled to judgment as a matter of law.
Plaintiff’s claim of negligence must first be defined. At oral argument,
Plaintiff’s counsel confirmed what is apparent from the face of the complaint
and subsequent filings: The only issue before this court is whether the hotel
was negligent in failing to provide Sanders with a handicapped-accessible
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room. Plaintiff’s counsel conceded that this case is not about a defective or
This clarification made at oral argument is further supported by Plaintiffs
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otherwise ill-maintained bathroom or shower area. In other words, Plaintiff is
not claiming that the room was unsafe for a non-handicapped guest. Rather,
her claim is based solely upon the fact that Sanders was not assigned to a
particular kind of room—a handicapped-accessible hotel room—upon her
arrival at the hotel.
Counsel’s concession appears sound as a matter of common sense; most
hotel rooms do not have no-slip strips on the bathroom floor or railings on the
bathroom walls, and it seems implausible that their lack would signify a breach
of a duty of care. The court’s research reveals no New Jersey case law to the
effect that the hotel has a general duty to outfit its bathrooms with the sort of
safety measures described by Plaintiff, and she makes no such claim.
Counsel’s concession is also appropriate because there is no expert testimony
in the record showing that the hotel’s bathroom design fell below a prescribed
industry standard or custom. See Giantonnio v. Taccard, 291 N.J. Super. 31,
43, 676 A.2d 1110, 1115 (N.J. Super. Ct. App. Div. 1996) (citations omitted)
(reasoning that certain specialized and technical questions are beyond the
purview of the average juror and, thus, require expert testimony to make a
conclusion). Sanders’ only support for her argument is her statement that she
has stayed in hotels that had protective strips on the bathroom floor tiles.
Sanders Deposition Transcript at 67-68. That, standing alone, is inadequate.
It is clear then, both from counsel’s concession and from the state of the
record, that Plaintiff’s sole theory of negligence is that the hotel failed to
provide her with a handicapped-accessible room. According to Sanders, such a
room would have had handrails on the walls of the bathroom (and,
presumably, slip-proof protective strips on the bathroom floor). Sanders’ claim
is that the hotel negligently failed to assign her to a handicapped-accessible
room, and that she was injured as a result.
The question arises as to whether there is any evidence that the hotel’s
room assignment breached any cognizable duty of care. Sanders stated
generally that she thought the hotel was wrong to not provide her with the
handicapped-accessible room she requested from the travel agent. Sanders
Deposition Transcript at 106:2—6. She acknowledges, however, that she did not
request such a room from the hotel. In fact, Sanders did not speak or have any
contact with any person affiliated with the hotel until after her fall.. She
requested the handicapped-access room assignment when making
brief filed in opposition to the motion now before the Court in which Sanders explicitly
states that “[w]e are not dealing with an alledged [sic] dangerous condition Defendant
Columbia Properties Newark LLC should have had notice of.” Docket No. 34 at 6.
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arrangements through the tour group’s travel agent, Ron-Mar Travel, which is
not affiliated with the hotel. She received her room key from the travel agent.
She acknowledges that the travel agent may have been in part responsible for
her accident by failing to relay to the hotel her request for a handicappedaccessible room. She did not, however, “look into” the travel agent’s potential
liability. Id. at 107. Sanders has not deposed any hotel personnel or sought any
further information about the travel agent’s interaction with the hotel.
Should the hotel nevertheless have known Sanders needed a
handicapped-access room and assigned her one? She makes no such claim.
She had no interaction whatever with hotel personnel when she checked in
through her intermediary, the travel agent. At any rate, there is no evidence
that Sanders’ physical appearance would have alerted the hotel to her need or
desire for such a room. She did not, for example, use a walker at the time, and
she did not herself check in at the front desk.
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Even after entering her room and realizing that it was not handicappedaccessible, Sanders did not alert the hotel or travel agent, and she did not ask
to change rooms. Sanders conceded that she remained in the room without
complaint. Instead, because she would only be staying there one night, she
decided to “chance it.” Id. at 47:3—5. And it was with full knowledge that the
bathroom was not handicapped-accessible that she decided to take a shower.
See Docket No. 32-5 (“Sanders’ Interrogatories”) at 5 and correlating answer.
Sanders’ first contact with any hotel personnel was after her fall.
At oral argument, Plaintiff’s counsel did not really dispute the foregoing
facts. Rather, he argued that Plaintiff’s remaining in her room without
requesting a change posed an issue of contributory negligence for the jury. I
disagree. Comparative negligence is often a jury issue, but the issue here is a
more fundamental issue of law for the Court. Sanders has failed to come forth
with any evidence that Columbia Properties acted negligently at all. Without
negligence, there can be no issue of comparative or contributory negligence.
Plaintiff’s fault, or not, for her injuries, is not a material issue. The threshold
issue is whether the hotel is at fault, and it is not.
The burden of proving negligence is on the Plaintiff. See Buckelew v.
Grossbard, 87 N.J. 512, 525, 435 A.2d 1150, 1157 (N.J. 1981) (holding that
In any event I would be hesitant to impose a duty on a hotel that would require
it to officiously impose a handicapped-access room upon a person who did not seek it,
based on the person’s appearance. That in itself might be viewed as a form of
discrimination, albeit of a more subtle kind.
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“ordinarily negligence must be proved and will never be presumed, that indeed
there is a presumption against it, and that the burden of proving negligence is
on the plaintiff’). I find that the proofs advanced by Sanders fail to meet that
burden as a matter of law. Giving Sanders the full benefit of her proofs and all
favorable inferences derivable therefrom, she has failed to show a breach of any
duty owed to her by Columbia Properties sufficient to raise a jury question of
negligence on its part. Sanders has failed to substantiate her negligence claim
with “proof of circumstances from which defendant’s want of due care is a
legitimate inference.” Bratka, 40 N.J. Super. at 576, 123 A.2d at 797 (citation
omitted). Without any showing that, at the very least, the travel agent in fact
relayed to the hotel her request for a handicapped-accessible room, it cannot
be said that she has put forth sufficient proof to raise an inference of the
probability of negligence by Columbia Properties. See id.
CONCLUSION
For the foregoing reasons, Defendant’s motion for summary judgment is
GRANTED. An appropriate order will be filed with this opinion.
cJtSj
KEVIN MCNULTY
United States District Judge
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