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Pacella v. Resorts Casino Hotel

September 28, 2007

ADRIENNE PACELLA, PLAINTIFF,
v.
RESORTS CASINO HOTEL AND MILLAR ELEVATOR SERVICE COMPANY, DEFENDANTS.



The opinion of the court was delivered by: Johnson, Senior District Judge

MEMORANDUM AND ORDER

Plaintiff Adrienne Pacella ("Plaintiff") brings this action to recover damages for injuries sustained by her on an escalator in Defendant Resorts Casino Hotel ("Resorts") maintained by Defendant Millar Elevator Service Company ("Millar") (collectively "Defendants"). Plaintiff claims that Defendants were negligent in performing inspections of the escalator. Although she has submitted no direct evidence of Defendants' negligence, she argues that its negligence can be inferred through the res ipsa loquitur doctrine. Defendants have moved for summary judgment. For the following reasons, Defendants' motions are both DENIED.

BACKGROUND*fn1*fn2

Plaintiff and her husband went to Atlantic City on June 14, 2000, on a "Young at Heart" vacation package which included lodging at Resorts Casino Hotel, a free pass to the hotel's buffet, and complimentary gambling coins. On her first day in Atlantic City, Plaintiff "ate, gambled, and went on the boardwalk." (Plaintiff Dep. at 70:16-17.) She did not go to the buffet because her pass was only good for one day, and she and her husband decided to use the pass the following day. (Id. at 69:9-12.)

The next day, Plaintiff had breakfast, gambled for some time, and then made her way to the buffet. (Id. at 72:11-73:12.) She took the escalator to get to the buffet. (Id. at 73:13-15.) Plaintiff boarded the escalator in order to return to the casino floor. As she descended the escalator, Plaintiff was directly in front of her husband, (Plaintiff Dep. at 77:1-20; Pacella Dep. at 15:17-19), behind her travel companions, the Tortorellas, (Plaintiff Dep. at 168:7-10; Pacella Dep. at 13:12:15; Tortorella Dep. at 16:13-14), and in front of Henry Belmont, (Plaintiff Dep. at 77:10-12; Pacella Dep. at 15:17-19; Belmont Dep. at 18:19-21). As far as Plaintiff and other witnesses remember, there was no debris on the elevator steps. (Plaintiff Dep. at 92:21-23; Belmont Dep. at 45:18-21.)

At some point, the elevator "stopped [and] [i]t jerked." (Plaintiff Dep. at 94:24-95:1.) Other passengers on the escalator also felt a "lurch." (Tortorella Dep. at 23:18.) As the escalator stopped, Plaintiff's husband, Tortorella, and Belmont heard a loud mechanical noise. (Pacella Dep. at 51:13-18; Belmont Dep. at 19:9-11; Tortorella Dep. at 19:9-11, 21:17-22.) Plaintiff claims that "the momentum was pushing me forward, so I, in turn, pushed back rather than fall forward. I pushed back, and I either twisted or I knocked my knee as I twisted and I went back." (Plaintiff Dep. at 94:11-14; Pacella Dep. at 22:8-10.) According to Plaintiff and other witnesses, the escalator's abrupt halt was the cause of Plaintiff's fall. (Plaintiff Dep. at 102:23-103:6; 135:15-20; Belmont Dep. at 49:17-25.) Plaintiff was the only person to fall on the escalator. (Pacella Dep. at 64:5-18.)

Immediately after her fall, Plaintiff exclaimed, "When the escalator stopped, I banged my knee on the side wall." (Belmont Dep. at 54:22-23.)

After Plaintiff fell, her husband helped her stand up and then assisted her down the remainder of the escalator. (Plaintiff Dep. at 104:2-4; 137:22-23.) Hotel security was waiting for Plaintiff and her husband at the bottom of the escalator. (Plaintiff Dep. at 138:4-10; Pacella Dep. at 28:15-17.) When Plaintiff arrived at the bottom, she told hotel security about her fall. (Plaintiff Dep. at 138:13-14.) Hotel security took Plaintiff to the nurse after she began to feel "achy." (Id. at 104:6-25.) Between the time she fell and the time she was taken to the nurse, Plaintiff did not see the escalator restart. (Plaintiff Dep. at 139:24-140:3; Pacella Dep. at 25:22-24.)

When Plaintiff went to see the nurse, the nurse stated "Oh, it's that escalator again," which Plaintiff understood to mean that something similar had happened previously on the same escalator. (Plaintiff Dep. at 106:17-19; 141:18-21; Pacella Dep. at 34:5-16.) After she returned from the nurse, Plaintiff told Tortorella about what the nurse had said. (Tortorella Dep. at 59:7-13.)

Within the week following her return from Atlantic City, Plaintiff noticed that her knee began to swell. (Plaintiff Dep. at 113:19-25; 115:5-10.) The pain in her knee increased and she could not walk without pain. (Id. at 147:14-21.) At the end of that week, Plaintiff sought treatment for her knee and was diagnosed as having a torn meniscus. (Id. at 122:15-16.) Plaintiff underwent surgery, which was followed by physical therapy to rehabilitate her knee. (Id. at 126:4-7.) Plaintiff's doctor told her that she would be a candidate for knee replacement within five years. (Id. at 128:2-4.)

Plaintiff brought this action against Resorts, the owner of the premises, and Millar, the company responsible for the maintenance of the escalators on the premises. It is undisputed that Resorts entered into an agreement by which Millar was solely responsible for inspecting and maintaining the escalators within the hotel.

Defendants have now separately moved for summary judgment. Both Resorts and Millar claim that Plaintiff cannot prove that either defendant was negligent and that the doctrine of res ipsa loquitur does not apply.

JURISDICTION

This Court has jurisdiction over this action as the case involves diversity and a demand in excess of $75,000. ...


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