2004 D e c i sion s O p inion s of the U nit e d S t at e s C our t of Appe al s for the Thir d C ir c uit
1-15-2004 

# L ub e n v . Atl C t y S ho w

b o at I nc P r e c e de n t i al or N on-P r e c e de n t i al : N on-P r e c e de n t i al D ocke t N o . 03-1368

F o l lo w thi s a nd a dd it ion al work s at : h tt p://d i g it alc ommon s .l a w . v i l l a no va . e du/thir dc ir c uit_2004

Thi s de c i sion i s br ou gh t t o you for f r e e a nd ope n a c c e s s b y the O p inion s of the U nit e d S t at e s C our t of Appe al s for the Thir d C ir c uit at V i l l a no va U nive r sit y S choo l of L a

w Di g it al Re posit or y

. It h as be e n a c c e pt e d for inclusion in 2004 D e c i sion s b y a n author i z e d a dmini s tr at or of V i l l a no va U nive r sit y S choo l of L a

w Di g it al Re posit or y

. F or mor e infor m at ion, p le as e c on t a ct Be n j a min . C a rl s on@l a

w . v i l l a no va . e du . Re c omme nde d C it at ion

" Lube n v . Atl C t y S ho w

bo at I nc " (2004). 2004 D e cisio n s . P ape r 1088. h tt p://d i g it alc ommon s .l a

w . v i l l a no va . e du/thir dc ir c uit_2004/1088NOT PRECEDE NTIAL UNITED STATES COURT OF APPEALS FO R T HE TH IRD CIR CU IT


### No. 03-1368
SANDRA LUB EN
v. ATLAN TIC CITY SHOWBO AT, INC., Appellant

APPEAL FROM THE UNI TED STATES DIST RICT COURT

FOR THE DISTRICT OF NEW JERSEY D.C. CivilNo. 02-cv-00060 Distri ct Judge: The Honorable Joseph E. Irenas
Submitte d Under Third Circ uit LAR 34.1(a)

November 19, 2003

Be for e: R EN DE LL , BA RR Y, a nd C HE RT OF F, Circuit Judges (Opinion Fi led: J anuary14, 2004)

OPI NION

BA RR Y, Circuit

Judge Plaintiff Sandra Luben, a New Y ork resi dent, visi ted the Showboat Casino (“Showboat”) i n Atlanti c City , New Jerseyon the aft ernoon of January 21, 2000. During2

her vis it, Ms. Luben slippe d, fel l, and broke her ankl e. She fi led sui t in t he U.S. Dist

rict Co urt f or th e D istrict of N ew Jers ey see kin g da ma ges bas ed o n a th eor y of n eglig enc e. The Distric t Cou rt had d iversity jurisd iction u nder 28 U .S.C. § 133 2. Jurisd iction in this Court is proper under

28 U.S.C. § 1291. The Distri ct Court uphe ld the j ury ’s fi nding of neg li gen ce o n the p ar t o f Sh owbo at , a nd we wil l a ffi rm.

I. BACKGROUND A t tri al, M s. L ub en tes tif ied to th e f ol lo w in g: It h ad be en sn ow in g i n t he da ys precedi ng her vis it to Atlanti c City . On the dayof her vis it i t was verycold, and snow had accumulat ed on the ground. She drove hers elf t o the casi no from New Y ork, and used the val et parki ng servi ce at the hotel . Parki ng atte ndants were on duty and t he valet area was fil led with s now. No one was cleari ng or shovel ing the s now from the valet

area. There were no si gns warning of sl ipperysurfaces in the va let area or at the entrance to the c asino. Ms. Luben retri eved her l uggage from her t runk, and i n so doing walked thro ugh som e sn ow . Sh e the n en tered the c asin o, w alkin g th rou gh t wo sets o f do ors. There were no weather mat s placed be fore ei ther s et of doors , though an inlai d strip of permanent car

peting r an through t

he vestibule bet ween the set s of doors. She proceeded through t he vestibule and through the s econd set of doors. Upon her firs t st ep through t he second set

of doors and ont o a hard, s mooth, marbl e floor, she slipped and fellto the gro und in ag ony w ith a b rok en a nkl e.3

Showboat did not t ake iss ue with any thing Ms. Luben had s aid. Rather, it as sert ed that she had not presen ted facts suff icient to support a f inding of n egligence. It emphasized two aspects of her testimony: firs t, t

he fact t hat she coul d not reca ll whethe r she had wip ed h er fe et an d, se con d, th e fa ct tha t she did not kno w w hat c aus ed h er fa ll. Show boat reasoned that in the absence of any proof that there was snow or w ater on Ms. Lub en’s sh oes o r on th e floo r of the casino , insuff icient p roof of ca usation existed to support a finding of

neglige nce. Based on t his, Showboat elect ed not to c all any wit nes ses o r sub mit a ny ev iden ce, a nd i nste ad m ove d fo r jud gm ent a s a m atter of la w. The D istrict Court denied the motion, an d subm itted the case to the jury. The jury returned a verdi ct for Ms. Luben, and Showboat moved to set aside t he verdic t. The Distri ct Court de nied that moti on. Showboat ti mely appealed, and renews it s argument that a find ing of n eglig enc e is u nten able giv en M s. Lu ben ’s tes timo ny.

II . DIS CUSS ION We exercise plen ary review ov er the District Co urt’s decision to de ny Show boat’s Fed eral R ule o f C ivil P roc edu re R ule 5 0 m otio ns f or ju dgm ent a s a m atter of la w. Goo dma n v. Penn sylvania Tu rnpike C omm ’n , 293 F.3d 655, 664 -65 (3d C ir. 2002). “In reviewing t

he grant of

a judgment as a matter of law under Fed. R. Civ. P. 50 following a juryverdict , we must vie w the evidence i n the li ght most favor able t o the non-moving party , and det ermine whether the rec ord contai ns the ‘ minimum quantum of evidenc e4

from which a jury might reasonabl y afford reli ef.’” Glen n D istribs. C orp. v . Car lisle Plasti cs, I

nc. , 297 F.3d 294, 299 (3d Cir. 200 2) (citations omitted). “In negli gence cases under New Jerseylaw, a pl ainti ff must est ablis h that defendant br eached a duty of reasonabl e care, which consti tuted a proximatecause of plaint iff’s injuries. ” Keith v. Truck Stops Corp. , 909 F.2d 743, 745 (3d Cir. 1990) (citing Bro wn v. Racq uet

Clu b of Bri ckt own , 95 N.J. 280, 471 A.2d 25, 29 (1984)). As a business invitee, Ms. Luben was owed by Showboat a “reasonably safe pla ce to do that which is wit

hin the s cope of the i nvitat ion.’ ” Id. (quoti ng Butler v . Acme Mkts., Inc. , 89 N.J. 270, 27 5, 445 A .2d 1141 , 1143 (19 82)). Showboat contends t

hat theevidence was i nsuffici ent to s upport a fi nding of neglige nce. And Showboat is cor rect, in so far

as no direct

evidence was pr esented to the jury– no direct

evidence t

hat thefloor was wet, that s now had been tracked onto the floor, or that M s. Luben ’s slip and fall w as caused by water or sno w on the floor. But th er e i s n o rul e o f l aw o r l eg al au th or it y to whi ch Sho wbo at

poi nt s o r t

ha t we can locate which requi res caus ation to be proved bydirect evidence. Circumstant ial evidence wil l suffi ce. In Keith , for ex amp le, the pla intiff f ell and wa s injure d as a result of a stairway that became di slodged i n an auto-repair s hop. Despite the abse nce of dir ect proof of causat

ion, we affi rmed, expl aining: Th ere is no d irect evid enc e as to h ow the s tairw ay be cam e dis lod ged
. Ho we ver, the re w as circu mstan tial evide nce f rom wh ich a ju ry could reaso nably co nclud e that d efen dant w as ne gligen t in failing to ma intain its premises in a reasonab ly safe condition for a business inv itee. Thus, the jury5

could have i nferred t

hat theheavy s teel stai rway was not properl y se cured at the ti me and collaps ed under plainti ff at a posi tion where he was permitted to be. We, therefore, concl ude that the dis tri ct court

correctly denied defendant’ s motion for

a direc ted verdi ct and defendant ’s moti on for judg men t notw ithstand ing the verd ict. Keith , 909 F.2d at

745. It i s a given, however, that regardless of the type of evidence relie d upon–whether dire ct or circu ms tanti al–a find ing of c aus ation can not rely on pur e sp ecu latio n. According to t

he Restat ement (Second) of Torts, a plai ntiff must make it

appear that it

is more l ikely

than not t

hat the conduct of the defend ant wa s a substantial factor in b ringing abo ut the harm . A me re possibi lit y of s uch causation is not enough; and when the matter remains one of pure speculation and conjecture, or the probabili ties are at best evenlybalanced, it bec omes the duty of the court to direct a

verdict for the defe ndan t. Restatem ent (Secon d) of T orts § 433B cmt. on sub section (1). The evidence shows that 1) Ms. Luben sus taine d a broken ankl e from sli pping on the marbl e floor i n the Showboat Casino; 2) there was ice and snow on the ground outsi de of the casino where M s. Luben had just walked; and 3) there were no w eather mats, warning si gns, or

personnelplaced at

the doors of the cas ino. Based on this evidence, it was cer tainl y r easonable for the j ury to concl ude that 1) the casi no should have bee n aware that during i nclement weather, a mar ble fl oor in a hi gh traffic entran ce is like ly to beco me w et and slipper y; 2) it is reason ably fore seeab le that a perso n w ould or co uld slip on w et ma rble; 3) th e casin o ow ed bu siness in vitees a duty to provide w eather ma ts, warnings, or at least som e type of precau tionary measure to e nsuresafety; an d, mo st imp ortantly fo r this ap peal, 4 ) a pers on w ho slip s and falls im med iately

after w alking throu gh sn ow and ic e onto a ma rble flo or, likely slipp ed an d fell a s a resu lt of w ater on the m arble floor. The inference s drawn by t he jurybased on the e vidence Ms. Luben pres ented do not sound i n conjecture or spe culation, but in common sense. The judgment of the Dis trict C our t wi ll be a ffir me d.

TO THE CLERK OF THE CO URT: Kindly file the fore going Opinion.
/s/ M ar yan ne Tr um p B ar ry Circuit Judge