ERIE – An Ohio couple who lost their case in the District Court related to the wife’s fall over a sign located on a casino’s property, is now appealing the dismissal of that same action to the U.S. Court of Appeals for the Third Circuit.
Plaintiff Patricia Moknach and Ken Moknach first filed suit in the Erie County Court of Common Pleas on July 31, 2018, against Eldorado Resorts, Inc., Eldorado Resorts, LLC and Presque Isle Downs, Inc., all doing business in Erie County as “Presque Isle Downs Casino”.
On Jan. 1, 2016, Patricia Moknach was sent to the hospital after allegedly tripping and falling over a sign from a bar called Zelda’s, when she left to go to Presque Isle Downs’ casino’s outdoor patio.
The sign was set up outside of the bar because the bar was being renovated, and Moknach claimed that although the patio was well-lit, she was pre-occupied and not able to see the sign and tripped, resulting in the fall.
As a result, she sustained injuries to her right shoulder, arm, elbow, face and neck; and the muscles, ligaments, tissues, tendons and nerves in her body were strained, torn and/or dislocated, all of which are or may be serious and permanent injuries.
The injured plaintiff’s rationale didn’t pass muster with the defendants, who filed a motion for summary judgment on April 19 in response to the Moknachs’ claims.
“Defendant moves for summary judgment based on the Moknachs’ failure to establish that it owed Mrs. Moknach a legal duty under the negligence analysis,” counsel for the casino wrote.
“Because she was invited to its casino, Presque Isle had a duty to protect Mrs. Moknach from foreseeable harm. In this case, Zelda’s sign was an obvious hazard. The sign was several feet long, 30 inches high at one end and 12 inches high at the end over which Mrs. Moknach tripped. Mrs. Moknach had an obligation to observe her surroundings and she did not.”
U.S. District Court Judge Susan Paradise Baxter concurred and granted the defendants’ motion for summary judgment. Because Moknach’s negligence claim was denied, her husband’s related loss of consortium claim was also dismissed.
However, on March 13, the plaintiffs filed papers to appeal Baxter’s decision on the summary judgment motion to the Third Circuit. Further proceedings will take place in that forum.
The plaintiff was represented by Mark E. Milsop of Berger & Green, in Pittsburgh.
The defendant was represented by Michael J. Musone of Knox McLaughlin Gornall & Sennett, in Erie.
U.S. Court of Appeals for the Third Circuit case 20-1574
U.S. District Court for the Western District of Pennsylvania case 1:18-cv-00261
Erie County Court of Common Pleas case 13490-17
From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nick.malfitano@therecordinc.com