                                                                                                                           Opinions of the United
2004 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


1-15-2004

Luben v. Atl Cty Showboat Inc
Precedential or Non-Precedential: Non-Precedential

Docket No. 03-1368




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Recommended Citation
"Luben v. Atl Cty Showboat Inc" (2004). 2004 Decisions. Paper 1088.
http://digitalcommons.law.villanova.edu/thirdcircuit_2004/1088


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                                                               NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT


                                     No. 03-1368


                                  SANDRA LUBEN

                                          v.

                       ATLANTIC CITY SHOWBOAT, INC.,
                                         Appellant


            APPEAL FROM THE UNITED STATES DISTRICT COURT
                    FOR THE DISTRICT OF NEW JERSEY
                            D.C. Civil No. 02-cv-00060
                 District Judge: The Honorable Joseph E. Irenas


                      Submitted Under Third Circuit LAR 34.1(a)
                                November 19, 2003


             Before: RENDELL, BARRY, and CHERTOFF, Circuit Judges


                           (Opinion Filed: January 14, 2004)


                                      OPINION




BARRY, Circuit Judge

      Plaintiff Sandra Luben, a New York resident, visited the Showboat Casino

(“Showboat”) in Atlantic City, New Jersey on the afternoon of January 21, 2000. During
her visit, Ms. Luben slipped, fell, and broke her ankle. She filed suit in the U.S. District

Court for the District of New Jersey seeking damages based on a theory of negligence.

The District Court had diversity jurisdiction under 28 U.S.C. § 1332. Jurisdiction in this

Court is proper under 28 U.S.C. § 1291. The District Court upheld the jury’s finding of

negligence on the part of Showboat, and we will affirm.




                                    I. BACKGROUND

       At trial, Ms. Luben testified to the following: It had been snowing in the days

preceding her visit to Atlantic City. On the day of her visit it was very cold, and snow

had accumulated on the ground. She drove herself to the casino from New York, and

used the valet parking service at the hotel. Parking attendants were on duty and the valet

area was filled with snow. No one was clearing or shoveling the snow from the valet

area. There were no signs warning of slippery surfaces in the valet area or at the entrance

to the casino. Ms. Luben retrieved her luggage from her trunk, and in so doing walked

through some snow. She then entered the casino, walking through two sets of doors.

There were no weather mats placed before either set of doors, though an inlaid strip of

permanent carpeting ran through the vestibule between the sets of doors. She proceeded

through the vestibule and through the second set of doors. Upon her first step through the

second set of doors and onto a hard, smooth, marble floor, she slipped and fell to the

ground in agony with a broken ankle.



                                              2
       Showboat did not take issue with anything Ms. Luben had said. Rather, it asserted

that she had not presented facts sufficient to support a finding of negligence. It

emphasized two aspects of her testimony: first, the fact that she could not recall whether

she had wiped her feet and, second, the fact that she did not know what caused her fall.

Showboat reasoned that in the absence of any proof that there was snow or water on Ms.

Luben’s shoes or on the floor of the casino, insufficient proof of causation existed to

support a finding of negligence. Based on this, Showboat elected not to call any

witnesses or submit any evidence, and instead moved for judgment as a matter of law.

The District Court denied the motion, and submitted the case to the jury. The jury

returned a verdict for Ms. Luben, and Showboat moved to set aside the verdict. The

District Court denied that motion. Showboat timely appealed, and renews its argument

that a finding of negligence is untenable given M s. Luben’s testimony.




                                    II. DISCUSSION

       We exercise plenary review over the District Court’s decision to deny Showboat’s

Federal Rule of Civil Procedure Rule 50 motions for judgment as a matter of law.

Goodman v. Pennsylvania Turnpike Comm’n, 293 F.3d 655, 664-65 (3d Cir. 2002). “In

reviewing the grant of a judgment as a matter of law under Fed. R. Civ. P. 50 following a

jury verdict, we must view the evidence in the light most favorable to the non-moving

party, and determine whether the record contains the ‘minimum quantum of evidence



                                             3
from which a jury might reasonably afford relief.’” Glenn Distribs. Corp. v. Carlisle

Plastics, Inc., 297 F.3d 294, 299 (3d Cir. 2002) (citations omitted).

       “In negligence cases under New Jersey law, a plaintiff must establish that

defendant breached a duty of reasonable care, which constituted a proximate cause of

plaintiff’s injuries.” Keith v. Truck Stops Corp., 909 F.2d 743, 745 (3d Cir. 1990) (citing

Brown v. Racquet Club of Bricktown, 95 N.J. 280, 471 A.2d 25, 29 (1984)). As a

business invitee, Ms. Luben was owed by Showboat a “reasonably safe place to do that

which is within the scope of the invitation.’” Id. (quoting Butler v. Acme Mkts., Inc., 89

N.J. 270, 275, 445 A.2d 1141, 1143 (1982)).

       Showboat contends that the evidence was insufficient to support a finding of

negligence. And Showboat is correct, in so far as no direct evidence was presented to the

jury – no direct evidence that the floor was wet, that snow had been tracked onto the

floor, or that Ms. Luben’s slip and fall was caused by water or snow on the floor.

       But there is no rule of law or legal authority to which Showboat points or that we

can locate which requires causation to be proved by direct evidence. Circumstantial

evidence will suffice. In Keith, for example, the plaintiff fell and was injured as a result

of a stairway that became dislodged in an auto-repair shop. Despite the absence of direct

proof of causation, we affirmed, explaining:

       There is no direct evidence as to how the stairway became dislodged.
       However, there was circumstantial evidence from which a jury could
       reasonably conclude that defendant was negligent in failing to maintain its
       premises in a reasonably safe condition for a business invitee. Thus, the jury

                                               4
       could have inferred that the heavy steel stairway was not properly secured at
       the time and collapsed under plaintiff at a position where he was permitted
       to be. We, therefore, conclude that the district court correctly denied
       defendant’s motion for a directed verdict and defendant’s motion for
       judgment notwithstanding the verdict.

Keith, 909 F.2d at 745.

       It is a given, however, that regardless of the type of evidence relied upon–whether

direct or circumstantial–a finding of causation cannot rely on pure speculation.

According to the Restatement (Second) of Torts, a plaintiff

       must make it appear that it is more likely than not that the conduct of the
       defendant was a substantial factor in bringing about the harm. A mere
       possibility of such causation is not enough; and when the matter remains
       one of pure speculation and conjecture, or the probabilities are at best
       evenly balanced, it becomes the duty of the court to direct a verdict for the
       defendant.

Restatement (Second) of Torts § 433B cmt. on subsection (1).

       The evidence shows that 1) Ms. Luben sustained a broken ankle from slipping on

the marble floor in the Showboat Casino; 2) there was ice and snow on the ground outside

of the casino where Ms. Luben had just walked; and 3) there were no weather mats,

warning signs, or personnel placed at the doors of the casino.

       Based on this evidence, it was certainly reasonable for the jury to conclude that 1)

the casino should have been aware that during inclement weather, a marble floor in a high

traffic entrance is likely to become wet and slippery; 2) it is reasonably foreseeable that a

person would or could slip on wet marble; 3) the casino owed business invitees a duty to

provide weather mats, warnings, or at least some type of precautionary measure to ensure

                                              5
safety; and, most importantly for this appeal, 4) a person who slips and falls immediately

after walking through snow and ice onto a marble floor, likely slipped and fell as a result

of water on the marble floor.

       The inferences drawn by the jury based on the evidence Ms. Luben presented do

not sound in conjecture or speculation, but in common sense. The judgment of the

District Court will be affirmed.




TO THE CLERK OF THE COURT:

       Kindly file the foregoing Opinion.


                                            /s/ Maryanne Trump Barry
                                            Circuit Judge
