Case Brief: DENEAN DAVIS v. DGMB CASINO, LLC, A-2627-19, 2021 WL 2099800 (N.J. Super. Ct. App. Div. May 25, 2021)

Parties:  Plaintiff: Denean Davis
Defendant: DGMB Casino

Submitted by New Jersey Personal Injury Lawyer, Jeffrey Hark.

Proc. Hist.:         Plaintiff appeals order granting summary judgment to defendant and dismissal of her claim with prejudice.  Plaintiff argues on appeal that a genuine issue of material fact existed as to constructive notice that should have been resolved by a jury.

Facts:                  Plaintiff gambled at defendant’s casino.  Plaintiff went outside to take a phone call.  She exited the casino at 10:16 am and walked over a flush rug.  She reentered 42 seconds later.  No other patrons exited or entered during this period. When she reentered the rug was “buckled” and plaintiff tripped and fell on the rug sustaining serious injuries to her back and right leg.

Issue:                  Did the trial court err when it granted summary judgment?

Holding:              The trial court did not err in its ruling.  According to plaintiff’s own testimony the rug became buckled during the 42 seconds during which she was outside.  That period of time was insufficient to support a finding of constructive notice.

Rule:                    A defendant has constructive notice when a dangerous condition existed “for such a length of time as reasonably to have resulted in knowledge and correction had the defendant been reasonably diligent.”  Parmenter v. Jarivis Drug Stores, Inc., 48 N.J. Super. 507, 5190 (App. Div. 1957.)

The absence of actual or constructive notice is generally “fatal to a plaintiff’s claim of premises liability.  Arroyo v. Durling Realty, LLC, 433 N.J. Super. 238, 243 (App. Div. 2013).   The mere existence of an alleged dangerous condition is not constructive notice of it.  Id.

Reasoning:         The court based its decision by focusing on the element of notice of the dangerous condition by the defendant.  Because plaintiff in her own testimony stated that the hazardous condition did not exist when she existed and was fine up until she returned from her 42 seconds outside of the casino, the court determined that the hazardous condition did not exist for a sufficient enough amount of time to give defendant an opportunity to know about the condition or cure it.

Disposition:       Affirmed.

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Jeffrey Hark is a New Jersey Civil and Criminal Lawyer.

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