FRANCES SIROTNIAK v. SALVATORE CICCO

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0796-10T3

FRANCES SIROTNIAK,

Plaintiff-Appellant,

v.

SALVATORE CICCO and

MARIANNE CICCO, husband

and wife,

Defendants-Respondents.

May 27, 2011

Argued May 9, 2011 - Decided

Before Judges Reisner and Alvarez.

On appeal from the Superior Court of New Jersey, Law Division, Ocean County, Docket No. L-2953-09.

Christopher J. Dasti argued the cause for appellant (Carluccio, Leone, Dimon, Doyle & Sacks, L.L.C., attorneys; Daniel J. Carluccio, of counsel and on the brief; Mr. Dasti, on the brief).

Cynthia A. Satter argued the cause for respondents (Law Offices of Stephen E. Gertler, attorneys; Kristin J. Vizzone and Ms. Satter, on the brief).

PER CURIAM

Plaintiff Frances Sirotniak, a luncheon guest invited to the home of defendants Salvatore and Marianne Cicco, tripped over a four-inch step in their doorway and sued for her injuries. The motion judge concluded the condition that caused the fall was readily apparent and had been safely negotiated by plaintiff twice within minutes of the incident; hence, defendants had no duty to warn. Since plaintiff could not establish defendants' breach of any duty, defendants were entitled to summary judgment and dismissal of the complaint. Plaintiff appeals and we affirm.

The party was hosted by the late Grace Franklin, defendant Marianne Cicco's mother. The luncheon guests passed through a garage entryway surrounding a four-inch step to a landing which led to the stairs going down to Franklin's apartment. Shortly after arriving, plaintiff became concerned she may have left the oven on at her home a short distance away, and decided to go check. As she traversed the doorway a third time upon her return, one of her flip-flop-type sandals caught as she negotiated the step. At depositions, plaintiff said she was unsure if it was her left or right foot which caught. As a result of the fall, plaintiff suffered a comminuted fracture of her right arm, requiring the insertion of a steel rod.

Plaintiff's expert attributed the fall to the height of the entryway step, which he characterized as a threshold. In his report, he cited to industry standards limiting threshold heights to no greater than three-quarters of an inch. Hence, he concluded, the entryway was an unsafe condition that caused plaintiff's fall.

In granting summary judgment, Judge O'Brien recognized the standard of care owed by property owners to social guests; namely, the duty to warn of conditions that pose an unreasonable risk of harm. Parks v. Rogers, 176 N.J. 491, 501 (2003). This duty to warn applies when a guest is unaware, or had no reason to be aware, of the condition. Tighe v. Peterson, 175 N.J. 240, 241 (2002). Where the guest is aware of the condition, or by reasonable use of his faculties should be aware of it, no such duty exists. Ibid. Accordingly, Judge O'Brien concluded plaintiff's prior use of the doorway was sufficient to put her on notice of the height of the step.

Pursuant to Rule 4:46-2, a court may only grant summary judgment if, after viewing the evidence in the light most favorable to the non-moving party, it finds no genuine issue of material fact. Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 523 (1995). An appellate court reviews a grant of summary judgment de novo, applying the same standard governing the trial court under Rule 4:46. Liberty Surplus Ins. Corp. v. Nowell Amoroso, P.A., 189 N.J. 436, 445-46 (2007).

Plaintiff contends the court's award of summary judgment was erroneous because by calling the entryway a step, not a threshold, it impermissibly acted as a fact-finder. Plaintiff compares the circumstances in this case with the facts in Campbell v. Hastings, 348 N.J. Super. 264 (App. Div. 2002).

In Campbell, the seventy-five-year-old plaintiff, unaware as she proceeded through a darkened doorway that there were two steps down to a sunken foyer, fell and suffered injuries. Id. at 266. Although she had previously walked through the foyer, she had entered it through a different door. Ibid. It was her first visit to the home. Id. at 269.

In this case, the safe passage through the doorway and the subsequent fall occurred in broad daylight. Plaintiff entered through the same doorway, and the conditions were unchanged. In fact, the fall occurred during plaintiff's third trip through in a short period of time.

We do not perceive the court's conclusion that plaintiff should have been aware of the four-inch step and the conditions necessary to safely traverse it as prohibited fact-finding. Calling the four-inch rise a step and not a threshold was not impermissible fact-finding either.

The conclusion did not call for credibility determinations improper at the summary judgment stage, see Conrad v. Michelle & John, Inc., 394 N.J. Super. 1, 13 (App. Div. 2007), nor did the court select one of several conflicting expert reports. See Davin, L.L.C. v. Daham, 329 N.J. Super. 54, 70-71 (App. Div. 2000). The court drew the common-sense conclusion, even giving plaintiff every favorable inference, that plaintiff was, or should have been, aware of the condition because of her recent experience. Therefore, defendants had no duty to warn. See Parks, supra, 176 N.J. at 498.

Affirmed.