The opinion of the court was delivered by: Royce C. Lamberth, United States District Judge,
This negligence case comes before the Court on a Renewed Motion  for Summary Judgment filed on behalf of defendant Washington Sports and Entertainment, LTD, ("Washington Sports"). Plaintiff filed a Second Amended Complaint alleging one count of negligence against the defendant,*fn1 claiming that plaintiff was a business invitee to whom Washington Sports owed the "highest duty" to use reasonable care to safely maintain the premises and protect her from unreasonable risk of injury. Plaintiff further claims that Washington Sports breached that duty by: failing to protect plaintiff from dangerous conditions of which they either were aware or should have been aware; failing to use reasonable care in maintaining, supervising and managing the dangers in its facility; and failing to supervise and control its patrons. Finally, plaintiff asserts that defendant's breach was a direct and proximate cause of severe injuries for which plaintiff was compelled to seek medical treatment and which resulted in plaintiff suffering lost wages and diminished earning capacity.
For the reasons set forth herein, the defendant's motion will be granted.
On the evening of January 11, 2002, plaintiff attended a Capitals hockey game, with her fiancé (now husband), at the MCI Center ("Center"), owned and operated by Washington Sports. (Pl. Amend. Compl. ¶ 5-6.) Plaintiff sat in the front row of the highest tier of seats, with a railing directly in front of her and her fiancé to her right. Deposition of Sarah W. Brisbin ("Brisbin Dep.") at 15-16. William Ellis was also in attendance that evening, seated several rows above the plaintiff "pretty close to the top" of the arena. Deposition of William Ellis ("Ellis Dep.") at 6, 10. By all accounts, the gradation of the seats at that level is steep and the aisles are narrow. Ellis Dep. at 6; Deposition of Michael Howard Mirch ("Mirch Dep.") at 11, 14-15. There were one or two Center employees in Ellis's and plaintiff's aisle at the start of the evening. (Ellis Dep. at 36.) Generally, the spectators in that section of the Center on the night in question were "pretty normal" for a hockey game and until the close of the first period the section went without incident of any kind. (Mirch Dep. at 30.)
At the end of the first period, during an intermission, plaintiff's fiancé got up for some refreshments, as did Ellis. (Brisbin Dep. at 16; Ellis Dep. at 16.) When Ellis rose from his seat, he turned to his left moving towards the aisle, however before he reached the aisle he was bumped by an unknown person on his left side and lost his balance. (Ellis Dep. at 18, 20.) After losing his balance, Ellis tripped over a seat and fell, sliding back-first down the rows of seats. (Id. at 19.) Witness, Michael Mirch, indicated that Ellis's fall was extremely fast, likening it to a toboggan going down the seats. (Mirch Dep. at 11, 25.) Ellis is uncertain how many rows he went over, before ultimately landing on top of the plaintiff. (Ellis Dep. at 21-23.) Plaintiff's only indication of a commotion was when she heard "a shuffle" behind her, moments before Ellis landed on her. (Brisbin Dep. at 17.) Plaintiff had been in a seated position, but the force of Ellis's fall pushed her forward so that her face touched her knees. (Id. at 19; Mirch Dep. at 12.) After the impact, Ellis, a 250-pound man, lay on plaintiff's back for under a minute and then slid off to her right side. (Brisbin Dep.at 20-21; Ellis Dep. at 21.)
After Ellis slid off the plaintiff, she sat back in her seat and experienced "horrible pain" from her shoulders to her hips, was shaking, and generally "hurt everywhere." (Brisbin Dep. at 21-22.) Ellis was able to get up from the fall without assistance, but suffered from intense pain "all over." (Ellis Dep. at 24.) After apologizing to the plaintiff and indicating help was coming, Ellis went to a lower level and began moving around in order to determine if he had any broken bones. (Id. at 25-27.) Having witnessed the "violent hit" and being trained in first-aid, Mirch went to the plaintiff and supported her neck and head from behind, while they waited for the Center's security and medical personnel to arrive. (Mirch Dep. at 15-16.)
A Center employee (her specific job title is unknown) arrived with a radio shortly thereafter, however it took the Center's medical staff about fifteen minutes to arrive with a backboard for transporting the plaintiff. (Brisbin Dep. at 25.) Plaintiff did not receive any treatment in the stands, but was taken to a small room at the Center for care, where in addition to being treated she was questioned for an incident report. (Id. at 28-29.) Plaintiff was ultimately transported by ambulance to Providence Hospital, where she was x-rayed and evaluated. (Id. at 31.) Since the accident, plaintiff has undergone extensive medical care for her injuries, suffered tremendous pain, and endured physical limitations. (Id. at 36-84.)
The Court must grant summary judgment where "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact." Fed. R. Civ. P. 56(c). While the moving party bears the burden of demonstrating a lack of genuine issues of material fact, Rule 56 further requires that the non-moving party "go beyond the pleadings by [entering evidence] showing there is a genuine issue for trial." Celotex Corp. v. Catrett, 477 U.S. 317, 323-324 (1986) (emphasis added). The presence of disputed facts by itself is insufficient to defeat summary judgment. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986). An issue of material fact qualifies as genuine only if there is evidence on which a jury could base a verdict for the non-moving party. Id. at 248.
If the moving party is successful, that party is entitled to summary judgment as a matter of law, if the opposing party "fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex, 477 U.S.at 322. In making this determination, the Court must view all inferences "in the light most favorable to the non-moving party." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587-588 (1986) (quoting United States v. Diebold, Inc., 369 U.S. 654, 655 (1962)).
B. Theories Barred Due to Plaintiff's Failure to Establish the ...