FAYE G. MUCCIA v. EL CORONADO CONDO ASSN

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4114-11T4

FAYE G. MUCCIA and

DINO MUCCIA,

Plaintiffs-Appellants,

v.

EL CORONADO CONDO ASSN.,

individually, and d/b/a

EL CORONADO,

Defendant-Respondent.

____________________________________

August 29, 2013

Argued January 16, 2013 - Decided

Before Judges Axelrad and Nugent.

On appeal from the Superior Court of New Jersey, Law Division, Morris County, Docket No. L-2229-10.

Cory Anne Cassidy argued the cause for appellants (Riposta, Lawyers, L.L.C., attorneys; Ms. Cassidy, of counsel and on the brief).

AnnMarie Flores argued the cause for respondent (Gage Fiore, L.L.C., attorneys; Ms. Flores, on the brief).

PER CURIAM

This is a personal injury action. Plaintiffs, Faye G. Muccia and Dino G. Muccia, appeal from the summary judgment entered in favor of defendant, El Coronado Condo Assn., the association of unit owners of the El Coronado Resort where plaintiff Faye G. Muccia1 fell while walking from the lower level to the upper level of a condominium unit. Plaintiffs contend their engineering expert's report established a genuine issue of material fact that should have defeated El Coronado's summary judgment motion, even though plaintiff, upon entering the unit, recognized the alleged dangerous condition in the unit and pointed it out to others. We reject plaintiffs' contention and affirm.

We derive the following facts from the summary judgment record. Located in the Borough of Wildwood Crest, the El Coronado Resort is a six-story hotel open for business five and one-half months each year. The resort's 123 units, all privately owned, are available to rent. The unit owners, who are permitted to use their units only two weeks each year, share in the revenue. El Coronado Management Company is responsible for the resort's operations.

Plaintiff, age seventy-five, her husband, and another couple with whom they were friends, rented unit 305 for the 2009 Labor Day weekend. Unit 305 has two levels. The bedrooms and bathrooms are on the upper level and the kitchen and living room are on the lower level. A person entering unit 305 through the door from the common hallway walks into the unit's foyer on the upper floor; the bedrooms and bathrooms are on the right and left. Straight ahead, the foyer leads to the lower level living room on the left, and kitchen on the right.

The entryway or transition area from the upper-level foyer to the lower-level rooms is two feet ten inches wide, and the single riser between the two levels is six-and-three-eighths inches high.2 The lower-level floor at the base of the riser, where the living room floor on the left meets the kitchen floor on the right, is covered for ten inches (left to right) with brown living room carpet, and for two feet (right to left) with beige-colored ceramic kitchen tile. The carpet on the lower-level living room floor, the upper-level foyer floor, and the riser between levels, is the same color. Visible to those walking from the foyer into the living room or kitchen is a sign with gold lettering on a red background, attached to the side of a wall-mounted kitchen cabinet to the right. The sign reads: "Watch Your Step." Plaintiff fell while attempting to walk from the living room to the foyer.

Plaintiff and those with her arrived at the resort at approximately three o'clock on the afternoon of September 7, 2009. Plaintiff's husband and the other man loaded the luggage on a luggage cart and the two couples took the elevator to the third floor. Plaintiff entered unit 305 ahead of the others. Upon entering the unit, she "saw the step and . . . said[:] 'Wait a moment. Hold it. There's a step there.'" Plaintiff did not see the sign, but she "saw the step right away and . . . yelled to the men." The men "acknowledged that [she] yelled out to them and they didn't move." According to the transcript of plaintiff's deposition, she recalled that her husband might have said: "Oh my. Look at the step here. Very dangerous with no sign." Plaintiff did not see the sign until after she fell.

The couples went into their respective bedrooms, took about twenty minutes to unpack, and then went downstairs, that is, down the one step, to the living room. After socializing for approximately forty-five minutes, plaintiff decided to return to her bedroom to dress for dinner. She gave the following account of her fall at her deposition:

I was heading for my bedroom and I was in the living room and I was on the right side of the step as I recall. I was going up the step, and the next thing I know I fell. I fell in the foyer on my body. My arms . . . fell on the floor. My right shoulder hit the wall.

Plaintiff said she did not see the step. She could not recall which foot came into contact with the step, but she surmised it was her right foot. When asked at her deposition whether she actually felt either foot hit the step, she replied, "[n]o, I did not." She also thought that her shoulder hit the foyer wall before she fell. Although plaintiff felt "quite a heavy blow" on the front of her body and on her arms when she fell, she went to dinner that night and did not see a doctor until four days later.

After learning of plaintiff's fall, El Coronado Management Company's general manager directed maintenance to put a "Watch Your Step" sign on the living room wall. As one walks from the living room toward the step, the sign is "[o]n the living room wall to the right of the exit going up the step."

Plaintiffs retained a consulting engineer, Michael G. Natoli, who read the parties' interrogatory answers and inspected unit 305. In his report dated July 15, 2011 five days before plaintiff's deposition and two months before the deposition of defendant's manager he cited sections of the Borough of Wildwood Crest Property Maintenance Code, the BOCA International Property Maintenance Code, the "ICC/ANSI A117.1 code," the Regulations for Hotels and Multiple Dwellings, a "safety publication entitled Accident Prevention for Hotels, Motels and Restaurants," and "Publication ASTM F1637 entitled "Standard Practice for Safe Walking Surfaces" to support his conclusion that the step in unit 305 was an unsafe condition.

According to Natoli, "[t]he absence of handrails on the subject single step stair flight and lack of suitable delineation, creates extremely hazardous conditions for business patrons." Natoli believed "the lack of proper visual notification of the stair riser" caused plaintiff's injury. He did not mention in his report that plaintiff observed the step when she first entered unit 305, called it to the attention of her husband and the other couple, and traversed it to go to the living room after unpacking.

Defendant's expert, consulting engineer Stan A. Pitera, disputed both the applicability of the sources relied upon by Natoli and Natoli's conclusions. Pitera first noted that a 2004 inspection report from the State of New Jersey, Department of Community Affairs, Division of Codes and Standards, Bureau of Housing Inspection, listed unit 305 "as a unit/area that contained no violation." A December 2009 report from the same agency, based on a November 2, 2009 inspection for violations of the "Hotel & Multiple Dwelling Law" and the "Regulations for the Maintenance of Hotels and Multiple Dwellings," stated: "No Violations Found In The Following Areas/Units: 305."

Pitera explained that two of the Borough of Wildwood Crest's code sections, relied upon by Natoli, were revised to apply only to exterior maintenance of buildings; and two other sections had been deleted from the code. Further, a Uniform Construction Code standard cited by Natoli was adopted after construction of the hotel, was not retroactive, and did not require existing buildings to be modified to comply with modern code provisions.

Contrary to Natoli's opinion that "the harmonious blending of the carpet material surface colors . . . failed to delineate the stair's presence[,]" Pitera opined that "[t]he lighter-colored, ceramic tile floor located at the bottom of the riser clearly contrasted with the darker-colored carpet located on the riser and foyer floor." He believed the presence of the riser was clearly open and obvious.

Plaintiffs filed their complaint on July 9, 2010. Defendant filed an answer, the parties conducted discovery, and after discovery ended defendant moved for summary judgment. The trial court granted defendant's motion on March 9, 2012. In an oral opinion delivered from the bench, the court rejected plaintiff's theory that a handrail was required, reasoning that the code source for that requirement applied to a flight of stairs, and implicitly concluding that the single riser was not a flight of stairs. The court also found that plaintiff did not need a sign to alert her to the dangerous condition because she "not only knew it was there, but told others that it was a dangerous condition." Plaintiffs appealed.

Plaintiffs contend their expert's opinion establishes a triable issue as to defendant's liability. They maintain that "the lack of adequate signage, warning, and proper delineation separating the step from the upper and lower level . . . constitute[] violations of the applicable codes and safety standards." Emphasizing that "[t]here was no railing, lighting, warning, or other safety device in place[,]" they assert a reasonable juror could agree with their expert and determine defendant was responsible for the accident.

Defendant contends the trial court correctly granted its summary judgment motion because plaintiff was aware of the condition, namely, the step-down from the upper to the lower level of the unit. Defendant emphasizes that plaintiff's expert did not consider plaintiff's knowledge of the step-down when he wrote his report.

We review appeals from orders granting summary judgment de novo and apply the same standard as the trial court under Rule 4:46-2. Liberty Surplus Ins. Corp. v. Nowell Amoroso P.A., 189 N.J. 436, 445-46 (2007); Prudential Prop. & Cas. Ins. Co. v. Boylan, 307 N.J. Super. 162, 167 (App. Div.), certif. denied, 154 N.J. 608 (1998). First, we determine whether the moving party has demonstrated there were no genuine disputes as to material facts, and then we decide whether the motion judge's application of the law was correct. Atl. Mut. Ins. Co. v. Hillside Bottling Co., Inc., 387 N.J. Super. 224, 230-31 (App. Div.), certif. denied, 189 N.J. 104 (2006). In doing so, we view the evidence in the light most favorable to the non-moving party, Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995), and review the legal conclusions of the trial court de novo, without any special deference, Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995).

The Restatement (Second) of Torts, 358, entitled "Undisclosed Dangerous Conditions Known to Lessor," states in pertinent part:

(1) A lessor of land who conceals or fails to disclose to his lessee any condition, whether natural or artificial, which involves unreasonable risk of physical harm to persons on the land, is subject to liability to the lessee and others upon the land with the consent of the lessee or his sublessee for physical harm caused by the condition after the lessee has taken possession, if

(a) the lessee does not know or have reason to know of the condition or the risk involved, and

(b) the lessor knows or has reason to know of the condition, and realizes or should realize the risk involved, and has reason to expect that the lessee will not discover the condition or realize the risk.

In Reyes v. Egner, we held that the lessor of a two-week rental house at the Jersey Shore owed to the lessee a "duty . . . consistent with the precepts of Section 358 of the Second Restatement . . ." 404 N.J. Super. 433, 456 (App. Div. 2009), aff d by equally divided court on other grounds, 201 N.J. 417 (2010). That duty applies here.

Plaintiff has not distinguished defendant from either the unit owner or the management company for purposes of evaluating liability. We need not do so under the circumstances of this case, however, because even assuming that defendant's liability must be evaluated under "the precepts of Section 358 of the Second Restatement," the trial court correctly granted summary judgment to defendant.

To establish a genuinely disputed issue of material fact, plaintiff was required to show that she did not know and did not have reason to know of the condition or the risk involved, and defendant had "reason to expect that [she would] not discover the condition or realize the risk." It is undisputed, however, that upon entering unit 305, plaintiff observed the condition and called it to the attention of her companions, who replied that it could be dangerous. Moreover, plaintiff traversed the "condition" after unpacking, when she walked to the living room. And the management company had posted a "watch your step" sign in a location where they expected occupants to see it after entering the unit and before walking to the lower-level living room or kitchen. Consequently, by plaintiff's own admission, she was aware of the "step-down" and the risk it posed. Plaintiff s expert never addressed her knowledge of the condition. "A party cannot defeat a motion for summary judgment merely by submitting an expert's report in his or her favor." Brill, supra, 142 N.J. at 544. Expert reports based on "factually inaccurate . . . assertion[s] . . . do[] not create a genuine issue of material fact precluding the grant of summary judgment." Ibid.

For similar reasons, plaintiff's expert's opinion that defendant should have installed a handrail did not preclude the court from granting summary judgment to defendant. Although plaintiff was aware that the step did not have a handrail, defendant's expert also pointed out that the code requirement cited by plaintiff's expert did not apply to buildings that had been constructed before the relevant code section was adopted. Plaintiff did not dispute the non-applicability of the relevant code provision when she opposed defendant's summary judgment motion. In other words, plaintiff's expert report did not create a triable issue.

Affirmed.

1 Because plaintiff Dino G. Muccia's per quod claim is derivative, we refer to Faye G. Muccia as "plaintiff."

2 Plaintiff's expert reports that the riser is six-and-three-eighths inches high. Defendant's expert reports that it is six- and-one-quarter inch high.