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MEDDICK v. BROOKDALE RESORT

January 5, 1995

JANET AND JEROME MEDDICK, Husband and Wife, Plaintiffs
v.
BROOKDALE RESORT, INC., Defendant



The opinion of the court was delivered by: THOMAS I. VANASKIE

 This suit involves a slip and fall in February of 1993 on the premises of the Defendant, Brookdale Resort, Inc. ("Brookdale"). Presently pending are Brookdale's motions for summary judgment, (Dkt. Entry # 9), and to strike the affidavit of Plaintiff Janet Meddick, (Dkt. Entry # 16).

 Brookdale contends that Janet Meddick's affidavit is too conclusory and not based on personal knowledge. Because Janet's affidavit of October 30, 1994, does not fail to comport with Federal Rule of Civil Procedure 56(e), Brookdale's motion to strike will be denied.

 The summary judgment motion is premised upon Plaintiffs' alleged inability to identify the cause of her fall and Janet Meddick's purported assumption of the risk. Because the Meddicks have presented sufficient facts to establish a triable issue as to the actual cause of Janet's fall, and because reasonable minds could disagree whether Janet deliberately and with the awareness of specific risks inherent at the time of her fall nonetheless walked upon the ice that allegedly caused her injury, Brookdale's motion for summary judgment will be denied.

 I. Factual and Procedural Background

 Janet and Jerome Meddick were guests at the Brookdale resort at the time of Janet's accident on February 18, 1993. On that date, the Meddicks went to the Brookdale Lodge at approximately 4:00 p.m. Snow flurries were gusting at the time. The Meddicks left the lodge shortly before 5:00 p.m. to go to their townhouse. By this time, snow was falling steadily and continued to do so through the time of the accident. The Meddicks left their townhouse about 7:10 p.m. to walk across the parking lot to their car. Janet slipped and fell before she stepped into her car.

 Brookdale filed the instant motion for summary judgment on September 14, 1994. In response to Brookdale's contention that Janet did not know with certainty the cause of her fall, the Meddicks filed an affidavit executed by Janet, in which she states, inter alia, "I know that I fell on the ice . . . ." (Dkt. Entry # 13 at Ex. "E.") On October 14, 1994, Brookdale moved to strike Janet's affidavit.

 II. Discussion

 A.

 In arguing that the Meddicks failed to establish the cause of Janet's fall, Brookdale relies upon Janet's following deposition testimony:

 
Q. And at the time you fell, do you know specifically what it was that caused you to fall?
 
A. . . . As I was getting up [after my fall], I couldn't get a firm hold on the ground, because I kept slipping . . . and I could tell at the time I was on solid ice. There's like, little bumps. I could, at least, get a grip on that. . . . So it was my assumption I fell because of the ice, which wasn't really as apparent because of the dusting of snow.

 (Janet's Dep. at 54-55 (emphasis added).) *fn1" In her affidavit, Janet averred:

 
I fell on ice which was formed in little bumps underneath the snow below my feet. . . . I know that I fell on the ice and it was formed in little bumps . . . . ...

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