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The Path Less Traveled: Walk on Grassy Medium Leads to Summary Judgment

March 4, 2022

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<p style="text-align: justify;">Last month, New Jersey’s Appellate Division affirmed a trial court’s summary judgment decision where a Poconos Casino was granted summary judgment in a premises liability action.</p>
<p style="text-align: justify;">In <a href=""><em>Failla</em> </a><em>v. Mount Airy Casino Resort, LP</em>, a plaintiff and her son travelled from Lyndhurst, New Jersey to Mount Airy Casino Resort in Mount Pocono Pennsylvania. Plaintiff was walking in the casino’s handicapped parking lot when she fell over a Belgian block curbing and uneven dirt path on a grassy parking lot medium. Plaintiff claimed that other patrons were walking in front of and behind her on the path. Plaintiff lost consciousness and sustained a concussion – and despite her son urging her to go home, she decided to stay at the casino. She stayed for five hours when she again lost consciousness, after which she went to the hospital and was found to have fractured her right shoulder.</p>
<p style="text-align: justify;">Plaintiff alleged that defendants breached a duty their duty to maintain a safe premises for plaintiff by failing to inspect the property for dangerous conditions and failing to remedy the dangerous condition that caused plaintiff’s fall. Defendants moved for summary judgment arguing that plaintiff fell in an area not intended for pedestrians to walk on and that the plaintiff could not identify the cause of her fall. The trial judge granted summary judgment.</p>
<p style="text-align: justify;">Plaintiff appealed, arguing that summary judgment was inappropriate as discovery had not been completed, competing expert opinions created a question of material fact, and the judge erred in applying the Choice of Ways Doctrine. Plaintiff’s expert alleged a dangerous condition existed on the grassy medium due to worn areas in the grass behind the curb which present tripping hazards and the presence of wetness on the ground. Based on these conditions and defendant’s failure to discourage patrons from crossing the parking lot islands, plaintiff’s expert concluded that defendants were negligent. Defendant’s expert noted that the parking lot was code compliant for pedestrian conditions and plaintiff’s fall was from her failure to exercise caution.</p>
<p style="text-align: justify;">Plaintiff’s expert report was disregarded by the Appellate Division since although it identified dangerous conditions based on moisture on the ground and low spots in the grass, it failed to identify which of these hazards caused plaintiff’s fall. Moreover, plaintiff could not testify whether she tripped and fell or slipped and fell. She also did not remember how she fell. Moreover, even though discovery was not complete, plaintiff’s requested discovery that was outstanding would not supply the missing elements of negligence, so this was not a reason to deny summary judgment. Finally, the court analyzed Pennsylvania’s Choice of Ways Doctrine propounded by the Pennsylvania Superior Court in <em>Gilligan v. Villanova University</em>, 584 A.2d 1005 (Pa. Super. Ct. 1991). Under this doctrine, where a plaintiff voluntarily chooses to walk upon an area not intended to be traversed by pedestrians and subsequently falls, that plaintiff fails to state a viable cause of action. The New Jersey Appellate Division found that case to be analogous here as there were adequate crosswalks which Plaintiff could have used, yet she was injured when she chose to walk on a grassy medium not intended for pedestrians. Therefore, summary judgment was affirmed.</p>
<p style="text-align: justify;">Thanks to Brendan Gilmartin for his contribution to this post. Please contact <a href="">Heather Aquino</a> with any questions.</p>

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