THOMAS E. SEELEY VS. CAESARS ENTERTAINMENT CORPORATION (L-1904-14, ATLANTIC COUNTY AND STATEWIDE) ( 2021 )

NOT FOR PUBLICATION WITHOUT THE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-2125-19
THOMAS E. SEELEY and
DANIELLE SEELEY, h/w,
Plaintiffs-Appellants,
v.
CAESARS ENTERTAINMENT,
CORPORATION d/b/a BALLY'S
CASINO, BALLY'S PARKPLACE,
INC., d/b/a BALLY'S ATLANTIC
CITY and BALLY'S CASINO,
Defendants-Respondents.
______________________________
Submitted January 4, 2021 – Decided March 18, 2021
Before Judges Hoffman and Smith.
On appeal from the Superior Court of New Jersey, Law
Division, Atlantic County, Docket No. L-1904-14.
Sacchetta and Falcone, attorneys for appellants (Marc
T. Sacchetta, of counsel and on the brief; Randi S.
Greenberg, on the brief).
Cooper Levenson, PA, attorneys for respondents (Amy
E. Rudley and Jennifer B. Barr, on the brief).
PER CURIAM
Plaintiffs Thomas and Danielle Seeley 1 appeal from the Law Division's
January 10, 2020 order granting the summary judgment dismissal of the slip-
and-fall premises liability action they filed against defendant Caesars
Entertainment Corporation. Because we conclude genuine issues of material
fact should have precluded the grant of summary judgment, we reverse and
remand for further proceedings.
I
The motion record, construed in the light most favorable to plaintiff as the
non-moving party, Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 523
(1995), reveals the following facts. On October 19, 2011, plaintiff – an attorney
– attended a deposition in Atlantic City at Bally's Casino, owned by defendant.
During a break, plaintiff and his co-counsel, Theodore Baker, went to a public
men's restroom. After Mr. Baker entered and went into a stall, plaintiff walked
1
In this opinion, we refer to Thomas and Danielle Seeley collectively as
"plaintiffs," and Thomas Seeley individually as "plaintiff." Plaintiff's wife sues
per quod.
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across the floor and slipped and fell on his back. Plaintiff sustained serious back
injuries and later underwent multiple-level lumbar fusion surgery. 2
Neither plaintiff nor Mr. Baker noticed moisture on the floor before the
fall. Upon hearing plaintiff fall, Mr. Baker exited the stall and offered assistance
to plaintiff; at that point, he also made several observations. He first observed
a pattern of moisture covering a "fairly wide area" of plaintiff's back. He then
investigated the floor, which felt wet and slippery, and observed "the amount of
moisture that would be left if you took a wet towel and rubbed it on the floor, or
a mop, or a sponge or something." It appeared to him that the amount of
moisture was "consistent . . . as if someone had cleaned [the floor], as if someone
had come in and wiped it down." Moreover, the pattern of moisture on the floor
was consistent with the pattern on plaintiff's back. Plaintiff and Mr. Baker both
assumed the moisture on the floor was water because it was odorless.
After hearing oral argument and reviewing the deposition testimony of
plaintiff and Mr. Baker, the motion judge issued an oral decision. The judge
found there was moisture on the floor, but concluded that Mr. Baker's testimony
regarding its source was "speculative at best" and that "the circumstantial
2
Plaintiffs filed this action in 2013; however, all proceedings in the case were
stayed in 2015, after defendants filed for bankruptcy. In 2019, the bankruptcy
court entered an order granting plaintiffs leave to proceed with this action.
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3
inference that [the moisture on the floor was created by defendants was not]
appropriate under these circumstances [of a public bathroom]." Accordingly,
the judge found plaintiff raised no genuine issues of material fact and granted
defendants' motion.
This appeal followed, with plaintiffs raising the following argument:
POINT I
MR. BAKER’S TESTIMONY AS TO THE
APPEARANCE OF THE LIQUID ON THE FLOOR
AND THE PATTERN ON MR. SEELEY’S JACKET
WAS SUFFICIENT TO CREATE A JURY
QUESTION ON THE ISSUE OF DEFENDANTS’
LIABILITY FOR PLAINTIFF’S FALL.
THEREFORE, THE SUMMARY JUDGMENT
SHOULD BE REVERSED.
II
On appeal, we review summary judgment orders de novo. Templo Fuente
De Vida Corp. v. Nat'l Union Fire Ins. Co., 224 N.J. 189, 199 (2016). We
"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, 142 N.J. at 540; R. 4:46-2(c)).
To establish a prima facie case of negligence, a plaintiff must set forth
evidence that: 1) defendant owed him a duty of care; 2) defendant breached that
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duty; and 3) defendants' breach of duty proximately caused plaintiff's damages.
D'Alessandro v. Hartzel, 422 N.J. Super. 575, 579 (App. Div. 2011).
"Under common law of premises liability, a landowner owes increasing
care depending on whether the visitor is a trespasser, licensee or social guest or
business invitee." Sussman v. Mermer, 373 N.J. Super. 501, 504 (2004). For
summary judgment, defendants 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).
Business owners are generally not liable for injuries caused by defects on
the premises of which they had no actual or constructive notice and no
reasonable opportunity to discover. Nisivoccia, 175 N.J. at 563. "Ordinarily,
an injured plaintiff . . . must prove . . . the defendant[s] had actual or constructive
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knowledge of the dangerous condition that caused the accident." Ibid.However, notice is not required if the injured plaintiff can establish that the
defendants created the dangerous condition. Craggan v. Ikea USA, 332 N.J.
Super. 53, 61 (App. Div. 2000).
Applying these principles and viewing the facts in the light most favorable
to plaintiff, Brill, 142 N.J. at 523, we conclude the motion judge erred in finding
Mr. Baker's testimony did not raise genuine issues of material fact. Mr. Baker
testified that the area of the restroom floor felt "wet" and "slippery" and
appeared to be covered in "the amount of moisture left if you took a wet towel
and rubbed it on the floor, or a mop, or a sponge or something." On this point,
we note the motion judge accepted that the restroom was "certainly cleaned by
the agents or employees of the casino."3 Based on this evidence, if the
testimony of plaintiff and Mr. Baker is accepted as credible, a reasonable jury
could legitimately infer that one of defendants' employees responsible for
cleaning the restroom created the wet and slippery condition that caused
plaintiff's fall and resulting injury. See Smith v. First National Stores, 94 N.J.
Super. 462, 466 (App. Div. 1967) (finding the plaintiff was not required to show
3
Although casino patrons use these restrooms too, the record contains no basis
to suggest the condition that caused plaintiff's fall was created by a mop-carrying
casino patron.
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notice of the slippery condition on a stairway because of the justifiable inference
that the supermarket created the dangerous condition).
Reversed and remanded for further proceedings consistent with this
opinion. We do not retain jurisdiction.
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