PHILADELPHIA – The U.S. Court of Appeals for the Third Circuit has thrown out an appeal from an Ohio couple, who initially lost their case in a lower federal district court related to the wife’s fall over a sign located on a casino’s property.
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, 2020, the plaintiffs filed to appeal Baxter’s decision on the summary judgment motion to the Third Circuit – as well as filed a motion for certification to the Supreme Court of Pennsylvania, arguing that the state’s assumption-of-risk defense should be abolished
UPDATE
Third Circuit judges Cheryl Ann Krause, Peter J. Phipps and Julio M. Fuentes ruled on June 16 affirm the District Court’s decision as to the motion for summary judgment and further denied the motion for certification.
Fuentes authored the opinion in this matter and he wrote that the federal appellate court “may certify a question where the issue presented arises under state law and ‘will control the outcome of a case pending in the federal court.”
“The question Moknach asks us to certify is not dispositive of the issues before us because this is not an assumption-of-risk case. Despite some similarities, the ‘open and obvious’ danger doctrine on which the Casino relies is separate from the assumption-of-risk defense. ‘Unlike assumption of the risk, which requires actual subjective knowledge, the inquiry into whether a danger is open and obvious is an objective one’ that is ‘not dependent upon the actual knowledge of the [injured party] or [her] actual awareness of the danger,” Fuentes said.
“The District Court’s decision does not implicate assumption-of-risk principles, and the Casino acknowledges that it could not have raised such a defense – Ms. Moknach testified that she never saw the sign, and so she could not have appreciated or assumed the risk of tripping over it. For these reasons, we will deny the certification motion.”
The Third Circuit also chose to affirm the trial court ruling granting summary judgment.
“We also agree with the District Court’s summary judgment analysis and affirm its decision. The record before us, including surveillance footage, confirms that the sign was large and visible, and that Ms. Moknach was distracted and accidentally tripped over it,” Fuentes stated.
“It further confirms that Ms. Moknach was aware that the patio was used to store spare items, such as tables and chairs, and that the area was well lit. We do not doubt that she was badly injured and are sympathetic to her injuries, but we agree with the District Court that the sign would have been an obvious hazard to anyone exercising reasonable judgment and care. The Casino therefore owed no duty to Ms. Moknach for the risks created by the sign.”
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