The opinion of the court was delivered by: Judge John E. Jones III
This is a personal injury action filed by Plaintiffs Patricia DeBiase and her husband Jeff DeBiase. Before the Court is the motion for summary judgment of Defendant Hershey Entertainment & Resorts Company ("HE&R").*fn1 (Doc. 54.) For the reasons that follow, the motion will be granted.
In accordance with the standard of review governing motions for summary judgment, the following facts, and any reasonable inference derived therefrom, are viewed in the light most favorable to the non-moving parties, the DeBiases. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986).
This action arises from a trip-and-fall accident that befell Mrs. DeBiase at HersheyPark on July 11, 2001. (Def.'s Statement of Undisputed Material Facts ["SUF"], Doc. 55 ¶ 1.) On that date, Mrs. DeBiase was walking toward the exit of the amusement park with her husband, daughter, and son, and carrying her grandson, when she tripped as a result of catching the toe of one of her shoes. (SUF ¶¶ 1, 3, 9.) Mrs. DeBiase fell to her knees, causing serious and permanent injuries to her knees and great pain and suffering. (SUF ¶ 1; Amend. Compl., Doc. 10-6 ¶¶ 1, 12.)
It is uncertain what Mrs. DeBiase tripped over. None of Mrs. DeBiase's family who were present at the time of the accident saw what Mrs. DeBiase tripped over. (SUF ¶¶ 9-15.) In an e-mail that Mrs. DeBiase sent to HE&R on July 16, 2001, Mrs. DeBiase states that "I tripped and fell to the ground over one of the three or four small metal ground covers that were almost at the exit gates, just a little ways down in the park from the gate." (Def.'s Ex. A, Doc. 54-3.)
Plaintiffs were initially represented by counsel in this action. Plaintiffs' counsel commissioned Stephen Fournier, a liability expert of the forensic engineering firm Robson Lapina, to investigate the accident. (See Doc. 69-5.)
Fournier's September 17, 2001 report states that "[a]s DiBiasi [sic] approached a ramp made of brick pavers, she tripped on a raised edge of a concrete curb"; that "Patti DiBiasi [sic] tripped and fell because of the inconspicuous exposed vertical edge between the asphalt walkway and the curb"; and that "[t]he exposed edge was inconspicuous and dangerous in a manner that caused Patti DeBiase to fall." (Def.'s Ex. C, Doc. 54-3 at 1, 2, 6.) The report notes the existence of "four water gate valve boxes" located 22 to 75 inches from the curb, but does not indicate that Mrs. DeBiase tripped over these boxes or that they caused Mrs. DeBiase's fall. (Id. at 2.)
On February 8, 2003, Dr. Teofilo A. Dauhajre, M.D. sent a letter to the Plaintiffs' counsel reporting the conclusions of his May 1, 2002 evaluation of Mrs. DeBiase. (Doc. 70-2.) Dr. Dauhajre's February 8 letter states that Mrs. DeBiase "while at Hershey Park in Pennsylvania, tripped on a water meter cover sticking out." (Id. at 1.) On April 1, 2003, Dr. Dauhajre sent another letter to the Plaintiffs' counsel, as an addendum to his February 8 letter, based on a reevaluation of Mrs. DeBiase conducted on March 17, 2003. Dr. Dauhajre's April 1 letter states:
At this time the patient [Mrs. DeBiase] states that she presents for reevaluation. Furthermore, the patient states that the history of the fall down accident of 7/11/01 was inaccurate as per my report of 2/8/03. The patient states that it was dark at the time of the fall of 7/11/01 and she assumed that she tripped over a raised water meter cap. According to the patient, she revisited the site of the fall down and states that she tripped on an uneven, raised curb resulting in injuries to both knees. Because of the darkness at the time of the fall and close proximity of the water caps to the curb, the patient states that she erroneously concluded that the fall was as a result of the water meter caps versus the uneven, raised curb. It was obvious on her re-expression at the accident site that she fell over the uneven, raised curb. (Doc. 70-3 at 1.)
The Plaintiffs' amended complaint, filed by their counsel on October 16, 2003, states that "as Patricia DeBiase approached the main exit to the park, she tripped over uneven and unsafe grade, thereby causing her to fall." (Amend. Compl., Doc. 10-5 ¶ 4.) The complaint further alleges that "the end of the walkway contains an inconspicuous exposed vertical edge between the asphalt walkway and the curb at the end of the walkway" (id. at ¶ 8) and that "[t]he raised edge and curb that caused Plaintiff, Patricia DeBiase, to fall was ... a dangerous condition" (id. at ¶ 11.) The complaint does not mention the water valve covers.
In its interrogatories to the Plaintiffs, HE&R asked the Plaintiffs to "describe fully and completely where, when and how the accident occurred, stating all events relating to the accident in sequential order, and describing the parts of your body that made contact with any parts of or objects near the accident site, and the sequence in which contact occurred." (Def.'s Ex. F, Doc. 54-3 at 3.) Mrs. DeBiase's answer, provided on April 11, 2007 states, in relevant part:
As I approached the main exit to the Park, I tripped and fell to the ground, landing directly on my knees, near the exit gates to the Park. After falling on my knees, I turned and looked back, and noticed four small metal ground covers on the ground, near the exit to the gates.... Subsequently, I learned that in the area immediately proximate to the small metal covers I noticed on the ground behind me when I fell, a raised curb was also in the path of my travel. Subsequent inspection of the raised curb by a professional engineer, revealed that it created an inherently dangerous tripping hazard, resulting in my fall, and injuries to my knees, later requiring surgery. (Id.) The Plaintiffs' answers to HE&R's interrogatories were prepared by their counsel, but were verified by Mrs. DeBiase. (Id. at 12.)
On April 11, 2007, the Plaintiffs' attorney moved to withdraw as their counsel in this action, citing a deterioration of his relationship with Mrs. DeBiase. (Doc. 33.) Mrs. DeBiase acknowledge her strained relationship with counsel, but requested that he not be dismissed because neither she nor her counsel could find another attorney to take the case. (Doc. 40.) After a hearing on the matter, counsel's motion to withdraw was granted on April 25, 2007. (Doc. 43.)
At her June 20, 2007 deposition, Mrs. DeBiase, now pro se, testified that, at the time of the accident, she was wearing open-toed leather flip-flips with two-inch thick rubbers soles, and that as she was exiting the park, she tripped by catching the toe of one of her shoes. (Dep. of Patricia DeBiase, Doc. 54-4, at 18:20-20:8, 31:17-32:8.) Mrs. DeBiase then testified as follows:
Q: Let me ask you, first of all, do you know what you tripped on?
A: Well, I think it was the curb, or could have been the meter. But there was an investigator that went up and determined whatever he determined, I am sure you ...