On October 31, 2023, the United States District Court for the District of New Jersey granted Motions for Summary Judgment filed by Atlantic City and Bally’s Park Place, LLC (hereafter “Bally’s) in the case of Snead v. Bally’s Casino, 2023 U.S. Dist. LEXIS 194905 (D.N.J. Oct. 31, 2023). The Motions and underlying case stemmed from an incident where Plaintiff was walking on the Atlantic City boardwalk when her foot caught a raised board causing her to trip and fall. Plaintiff initially filed a Complaint against these defendants in State Court, but the case was removed to District Court on the basis of diversity jurisdiction.
The board at issue was approximately two inches higher than the other boards in the area. It was undisputed that Atlantic City owned the board at issue and that Bally’s fixed the board for public safety reasons instead of waiting for an Atlantic City representative to be dispatched for repairs. Atlantic City retains boardwalk inspectors and carpenters, who walk the entire length of the boardwalk at least five days each week looking for potential hazards. In the deposition testimony of a City representative, he acknowledged that the subject board would be considered a tripping hazard in need of repair if that condition were discovered during a regular inspection of the area.
On its Motion for Summary Judgment, Atlantic City relied on immunities granted to the municipality through the New Jersey Tort Claims Act. Specifically, Atlantic City claimed that the board at issue did not constitute a “dangerous condition” and that it had neither actual nor constructive notice of the board at issue. Even if it did have notice of this condition, Atlantic City argued that retaining inspection staff and carpenters to identify and repair these issues was not palpably unreasonable.
Plaintiff countered in her own cross-Motion for Summary Judgment that Atlantic City admitted the subject board was a dangerous condition because it admitted that the board constituted a tripping hazard. She also argued that the City had at least constructive notice of the subject board because her liability expert opined that the board existed as a hazardous condition for approximately one to two years prior to the fall. Allowing this condition to exist, Plaintiff argued that Atlantic City’s inaction was palpably unreasonable such that Tort Claims Act immunities could not be relied upon.
In ruling on Atlantic City’s cited Tort Claims Act Immunities, the Court began with whether Plaintiff was able to prove that the subject board constituted a dangerous condition. The Court rejected Plaintiff’s argument as to this immunity because it believed that Plaintiff’s reliance on Atlantic City’s representative testimony, her expert report and her own assumptions as to the board height were insufficient to meet the Act’s threshold. The Court felt that Plaintiff’s expert report was nothing more than net opinion that could not properly support her claims. Specifically, the Court found that the report cited no evidence for the conclusion that the elevated board existed for one to two years prior to the fall or that a faulty anchoring system was to blame for this condition. The Court noted a lack of relevant code citations in Plaintiff’s report, which was necessary to form the basis for the expert’s opinion.
The Court similarly rejected the argument that Atlantic City’s representative admitting that the raised board could be considered a tripping hazard was somehow an admission that a dangerous condition existed. Relying on a number of prior decisions, the Court dismissed Plaintiff’s reasoning and found that no such admission took place through the City’s testimony.
Similarly, the Court found that Plaintiff had not shown Atlantic City had actual or constructive knowledge of the subject board. This point was rejected because Plaintiff’s argument relied upon the net opinion of her expert, who opined without factual support that the subject board existed in a dangerous condition for approximately two years prior to the fall. The Court also rejected Plaintiff’s conclusion that the existence of a dangerous condition, if proven, automatically constitutes actual or constructive notice of same.
Finally, the Court found that even if Plaintiff had proven the existence of a dangerous condition of which Atlantic City was aware, its retention of boardwalk inspectors and boardwalk carpenters who are on the lookout for hazardous conditions is far from palpably unreasonable conduct.
Overall, the District Court granted Atlantic City’s Motion for Summary Judgment finding the City immune from liability under the New Jersey Tort Claims Act. The Court’s decision further solidified the degree and type of evidence that a plaintiff must submit in order to overcome the Act’s strict provisions emphasizing that immunity for public entities is the norm when potential liability may also exist.
